JD HM 405 2016
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 19 July 2016 |
| Neutral Citation | 2016 UKUT 496 AAC |
| Subject Matter | Mental health |
| Respondent | West London Mental Health NHS Trust and Secretary of State for Justice |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM 405 2016 |
| Appellant | JD |
Decision of the Upper Tribunal
(Administrative Appeals Chamber)
Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.
This decision is given under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:
Although the decision of the First-tier Tribunal under reference MM/2015/20028, dated 23 November 2015, involved the making of an error on a point of law, it is NOT SET ASIDE.
Reasons for Decision
A. The patient and his representation- The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. I decided that it would not justify the staff time and his discomfort for him to attend an oral hearing either in person or by video link, especially as the issues would be ones of law rather than fact
- I directed an assessment of the patient’s capacity to continue to instruct his legal representatives. I accepted the responsible clinician’s assessment that he lacked the capacity and appointed Kate Luscombe of Abbotstone Law solicitors. She instructed Kerry Bretherton QC to appear for the patient at the oral hearing on 14 July 2016. Stuart Marchant of Bevan Brittan solicitors appeared for the Trust. The Secretary of State took no part, either in writing or at the hearing. I am grateful to the representatives for their written and oral arguments
- The patient was born in 1961. He first came to the attention of the mental health authorities in 2002, when he walked to Downing Street to bless God in relation to tax. The last of a series of admissions was in December 2006; he was transferred to medium secure conditions in December 2008. He has been charged with three offences. Two occurred in July 2009. On the first occasion, he lost his temper after his credit ran out during a telephone call and punched his victim. On the next occasion, he attacked members of the care team when they were administering a depot injection. The third offence occurred in January 2011 when he attacked his victim while under escort from the shower room. He was found unfit to plead and made the court applied sections 5 and 5A of the Criminal Procedure (Insanity) Act 1964 to make orders under sections 37 and 41 of the Mental Health Act 1983. He denies being mentally ill and violently resists depot medication. This has led to injuries to staff, despite their protective equipment, and to the patient himself.
- The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015.
- Disorder - The tribunal accepted the responsible clinician’s diagnosis of paranoid schizophrenia with delusions, disordered thought, paranoid beliefs, irritability, aggressive behaviour and total lack of insight. Ms Bretherton did not challenge this finding before me.
- Treatment - The tribunal found that the patient had available to him medication, psychological intervention, nursing, rehabilitation and occupational therapy. He received, but resisted, his medication. He refused occupational therapy and did not always engage with the psychologist. The purpose of the treatment was to reduce his symptoms, to alleviate or prevent a worsening or the disorder, its symptoms and its manifestations. His delusional beliefs had not reduced significantly, but they were less intense. However, he was warmer and calmer, he was less distressed than he had been, his mental state had improved subtly and it was possible to open his door and have a conversation.
- Protection – The evidence showed that he had no history of violence before being admitted to hospital. All of his aggression was now directed against hospital staff, but he had been violent towards others before he was secluded. He would not comply with his medication if discharged. The tribunal found he would be a risk to himself, as he would put himself in a position where retaliation was possible, and he had once been at risk of jumping onto railway lines. The tribunal further found that he would be a risk to others, as his violence is driven by his beliefs not by the administration of his medication. The tribunal rejected the argument that his violence was a reaction to the conditions of his detention.
- What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf.
- On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue:
to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?
D. The Mental Health Act 1983- Sections 72 and 73 contain the criteria for detention:
72 Powers of tribunals
(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—
…
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia) that appropriate medical treatment is available for him; …
73 Power to discharge restricted patients
(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—
(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and
(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above—
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.
- Section 145 defines ‘treatment’:
145 Interpretation
(1) In this Act, unless the context otherwise requires-
…
‘medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below);
…
(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.
E. The arguments- Ms Bretherton presented a detailed argument on Articles 5 and 8 of the European Convention on Human Rights. She argued that the tribunal had failed to deal with this argument, which she had raised both orally and in...
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