EC v Birmingham and Solihull Mental Health NHS Trust [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judge | Utj Rowland |
| Judgment Date | 29 May 2012 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM/3053/2011 and HM/3502/2011 |
| Date | 29 May 2012 |
Neutral Citation: [2012] UKUT 178 (AAC)
Upper Tribunal (AAC)
Judge: Utj Rowland
HM/3053/2011 and HM/3502/2011
Appearances: R Pezzani (instructed by Guile Nicholas) for EC; the Trust did not appear and was not represented.
Issues: Whether it was possible to appeal the failure of a Tribunal not to make an extra-statutory recommendation as to transfer or leave in the case of a restricted patient or the failure to give reasons as to the absence of such a recommendation.
Facts: In 2 cases, restricted patients sought recommendations from the Tribunal, one as to leave, one as to transfer to less secure conditions. Under s73 Mental Health Act 1983, unlike under s72 in relation to non-restricted patients, the Tribunal has no statutory power to make such recommendations; however, it had been indicated in a Parliamentary statement that any such recommendations would be considered by the Secretary of State, who has to consent to the granting of leave or the transfer of a restricted patient when requested by the clinical team. In the first case, the Tribunal indicated prior to evidence being called that it would not recommend leave and not allow questions relevant to that issue; in its reasons, it noted that leave was being considered by the clinical team and it would not be appropriate for it to be involved in the details of the patient's management. In the second case, the Tribunal judge indicated at the outset that he was reluctant to consider making a recommendation as to transfer to less secure conditions: whilst relevant questions were permitted, the Tribunal did not make any reference to the request in its reasons. In both cases, permission to appeal was sought and, in the alternative, applications for permission to apply for judicial review were made.
In light of previous authority in the immigration context that it was not possible to challenge failures to make non-statutory recommendations, it was argued for the patients that there was a legitimate expectation that they could seek recommendations because of the Parliamentary statement that they would be considered (which had not applied in the immigration context) and the long-standing practice of Tribunals making such recommendations; and that procedural fairness required that reasons be given for not making a recommendation.
Decisions: The appeals are dismissed. The applications for permission to apply for judicial review are refused. It is directed that, save for the frontsheet (which identifies the Appellants by their full names), these decisions may be made public
1. These appeals raise the question whether a patient detained under the Mental Health Act 1983 may challenge a decision by the First-tier Tribunal to refuse to make an extra-statutory recommendation as to his future care or treatment.
2. The main function of the First-tier Tribunal under the 1983 Act is to consider under ss72 and 73 whether or not patients who are detained, are subject to community treatment orders or are subject to guardianship should be discharged. It does not have the function of deciding whether leave of absence should be granted (which under s17 is a matter for the responsible clinician), or of deciding whether a patient should be transferred to another hospital or into guardianship (which, under reg 7 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 (SI 2008/1184) made under s19 of the Act, is a matter for the hospital managers and, in the case of guardianship, the relevant social services authority).
3. However, in addition to its powers and duties to discharge patients, the First-tier Tribunal does have statutory powers to make recommendations about matters on which it has no power to make substantive decisions. In particular, when it does not discharge a detained patient or a community patient under s72(1), it may, under s72(3)(a), with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or be transferred to another hospital or into guardianship. There are other statutory powers to make recommendationssee ss72(3A)(a) and 74(1)(b)but those are not material to the present case.
4. Indeed, even s72(3)(a) is not of direct relevance to the present cases, because the patients in these cases were both admitted to hospital under hospital orders made under s37, accompanied by restriction orders made under s41. The question whether or not a patient subject to a restriction order should be discharged is determined by the First-tier Tribunal under s73(1) and (2), rather than under s72(1) (see s72(7)), so that 72(3)(a) does not apply (see Grant v Mental Health Review TribunalTLR(The Times, April 26, 1986, QBD) for confirmation of what seems clear enough on the face of the statute).
5. Nonetheless, tribunals do make extra-statutory recommendations in cases involving restricted patients, apparently encouraged by a written parliamentary answer given by Mr Douglas Hogg MP, a Home Office minister who, when asked 25 years ago what would happen if a tribunal which had considered the case of a restricted patient included in its decision a recommendation that the patient be granted leave of absence or be transferred to another hospital or into guardianship, replied -
Any such recommendation received by the Home Office is acknowledged, and any comments are offered which can usefully be made at that stage. Correspondence with the tribunal is copied to the patient's responsible medical officer since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on a tribunal's recommendation, full account is taken of the tribunal's views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the tribunal has made. (Hansard HC Vol 121, col 261, October 28, 1987).
6. The relevant functions of the Home Secretary have now been transferred to the Secretary of State for Justice. He is involved because, where a patient is subject to a restriction order, s41(3)(c) has the effect that certain powers, including the power to grant leave of absence under s17 or the power to transfer the patient to another hospital or into guardianship under reg 7 of the 2008 Regulations, shall be exercisable only with the consent of the Secretary of State.
7. In the first case before me, the hospital order and restriction order were made in 2005. The patient was conditionally discharged in 2006 but recalled in 2008. He was again conditionally discharged on 1 April 2010 but was recalled on 30 April 2011. Following that recall, the Secretary of State referred the case to the First-tier Tribunal under s75(1)(a). The case came before the First-tier Tribunal on 7 September 2011. The Appellant's statement of facts, which has not been challenged and which I accept as accurate for the purpose of this appeal, says -
6. The appellant did not ask the tribunal to discharge him. His sole application was for a recommendation that he be granted leave outside the hospital.
7. The tribunal announced at the outset of the hearing and before hearing any evidence that it had decided [it] would not recommend that the appellant be granted leave. Further, the appellant's solicitor was told that she would not be allowed to ask any questions on the subject of leave. Later in the hearing, when the solicitor attempted to ask such questions of Dr Maganty, the responsible clinician, she was stopped from doing so.
8. The solicitor had also brought to the tribunal's attention an entry in the appellant's RIO computerised records, dated 22 August 2011, in which the responsible clinician had recorded that if the MHRT [sic] supports his request for escorted community leave then he will apply to the MoJ for escorted community leave further supported by the recommendation of the MHRT.
8. The statement of reasons was brief and I need set out only para 3 and para 7.
3. The Tribunal were concerned that in view of the fact that the Team was considering community leave to be imminent that it would not be...
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