GM v Dorset Healthcare NHS Trust and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 04 May 2020 |
| Neutral Citation | [2020] UKUT 152 (AAC) |
| Docket Number | HM/2172/2019 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Neutral Citation: [2020] UKUT 152 (AAC)
Judge: UTJ Jacobs
HM/2172/2019
Court and Reference: Upper Tribunal (AAC),
Facts: GM was detained under s2 Mental Health Act 1983 and then s3; the case was referred to a Tribunal under s68 by the hospital managers; before the reference was heard, GM was made subject to a hospital order under s37 (for an offence involving credit card fraud); the Tribunal then struck out the proceedings on the basis that the reference was no longer of legal effect and so it had no jurisdiction. This was appealed to the Upper Tribunal.
Appearances: S Waters of the Mental Health Practice for GM; neither the Trust nor the Secretary of State appeared or made representations.
The decision of the First-tier Tribunal did not involve the making of an error on a point of law under s12 of the Tribunals, Courts and Enforcement Act 2007.
1. There is inevitably a delay between an application or reference being made to the First-tier Tribunal in a mental health case and the hearing. What happens if the patient's status has changed in the meantime? That issue has arisen in a variety of different circumstances over the years. The circumstances of this case have not been considered before, certainly not by the Upper Tribunal or, as far as I know, by the courts.
2. In this case, the patient was detained under s3 of the Mental Health Act 1983 – all statutory references are to that Act — when his case was referred to the tribunal, but by the time of the hearing he was subject to a hospital order (without a restriction order). This differs from the issue in the other cases that have come before the Upper Tribunal, because a patient may not apply, or be referred, to the First-tier Tribunal for the first 6 months of a hospital order.
3. The patient was detained, first for assessment under s2, and then for treatment under section 3. While detained under s3, his case was referred to the First-tier Tribunal. On 1 August 2019, before the reference could be heard, the patient came before a magistrates' court charged with credit card fraud. The court made a hospital order under s37, but had no power to make a restriction order under s41. On 12 August 2019, the tribunal struck out the proceedings on the ground that it had no jurisdiction to hear the reference saying that the reference ‘now has no legal effect, leaving the tribunal with no jurisdiction to hear the case.’ In the absence of any clear authority on the matter, the tribunal gave permission to appeal to the Upper Tribunal.
4. There is this quirk. The patient had previously been tried and convicted of other offences. The prosecution for credit card fraud could have been dealt with as part of that trial, but it was not. The sequence and timing of the reference and the hospital order only occurred as a result of the separation of the fraud from the other offences.
5. I held an oral hearing of the appeal on 8 January 2020. Mr Sean Waters attended on behalf of the patient. The Trust, as is usual, did not appear. I had made the Secretary of State for Justice a party to the proceedings, but the Government Legal Department submitted that, as the patient was not subject to a restriction order, this was not an appeal in which it wished to make submissions. On reflection, I accept that that is an appropriate response. I am grateful to Mr Waters for his arguments and the discussion at the hearing. When I began to draft my decision, I found that my reasoning had departed somewhat from the approach we discussed at the hearing, so I gave the parties a chance to comment on it. Mr Waters took advantage of that opportunity and I am grateful for his detailed and thoughtful response.
6. I first set out my conclusions in outline and then explain them in detail.
7. The Act provides for judicial oversight of compulsory detention. Patients who are detained in pursuance of an application for treatment under s3 are given the right to apply to the First-tier Tribunal within 6 months (s66(1)(b) and (2)(b)), which is how long the initial authority to detain lasts (s20(1)). That ensures that the initial detention is potentially subject to judicial oversight. Thereafter, patients are given the right to apply to the tribunal once within each period for which authority to detain is renewed under s20 (s66(1)(f) and (2)(f)). That ensures that the subsequent detention is potentially subject to regular judicial oversight. If the patient does not exercise those rights, the Act imposes protective duties on the hospital managers, requiring them to refer their case to the tribunal after 6 months (s68(2) to (5)) and then after 3 years (s68(6)). Those provisions are well-known, so I have not lengthened this decision by setting them out. I take them as read.
8. In the case of a patient under a hospital order but with no restriction order, the Act modifies the patient's right to apply for initial scrutiny and the hospital managers' duty to refer. The modifications are contained in Part I of Sched 1 to the Act. In short, they remove the patient's right to apply to a tribunal within the first 6 months (by modifying s66) and the hospital managers' duty to refer the patient's case to the tribunal if the patient has not exercised that right (by modifying s68). Those provisions show a clear statutory policy that there should be no judicial oversight for the first 6 months following a hospital order. The rationale is the obvious one that as the order has been made by a court, there has been judicial oversight of the initial detention.
9. It would be contrary to that statutory policy, if the tribunal were to retain jurisdiction under an application or reference that was made before the date of the hospital order. This distinguishes the circumstances of this case from the decisions that have decided that an application survives a change in the status of the patient.
10. Moreover, the tribunal's jurisdiction when there has been a change in the status of the patient depends on the tribunal exercising the powers of discharge applicable to the patient's status at the time of the hearing. As the tribunal has no jurisdiction at all in the first 6 months of a hospital order, it cannot have any power of discharge that it can exercise. It is, therefore, conceptually impossible to apply the reasoning in the Upper Tribunal cases that have taken that approach to cases like the present.
11. Finally, I...
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GM v Dorset Healthcare National Health Service Trust and the Secretary of State for Justice
...Dorset Healthcare NHS Trust and the Secretary of State for Justice [2020] UKUT 152 (AAC) THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL CASE NO: HM/2172/2019 [2020] UKUT 152 (AAC) GM V DORSET HEALTHCARE NHS TRUST AND THE SECRETARY OF STATE FOR JUSTICE Decided following a......