JD v West London Mental Health NHS Trust and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] UKUT 496 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 19 July 2016 |
| Docket Number | HM/0405/2016 |
Neutral Citation: [2016] UKUT 0496 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Jacobs
HM/0405/2016
Appearances: K Bretherton QC (instructed by Abbotstone Law) for JD; S Marchant of Bevan Brittan for the Trust.
Issues: Whether a Tribunal failure to deal with arguments that ongoing detention breached Arts 5 and 8 ECHR but instead simply to apply the statutory criteria was unlawful; the proper remedy for any such unlawfulness.
Facts: JD was detained as a restricted patient after being found unfit to stand trial but to have committed an assault. He was diagnosed to have schizophrenia, but he denied that he was ill and violently resisted the administration of depot medication, as a result of which he was held in conditions of strict seclusion. Nursing staff could only enter his room with safety equipment and he was allowed to leave the room only under escort and with restraints. His case was referred to a Tribunal, which upheld detention. It found that he was mentally disordered, and that treatment was available and was aimed at treating his condition or its manifestations; it rejected a contention that his violence was a reaction to detention and found that it arose from his beliefs and that he would pose a risk to himself and others if released. On appeal, it was contended that the Tribunal had erred in not dealing with arguments put under Arts 5 and 8 ECHR, in essence that the treatment resulted in such a minimal improvement in his condition that its continuation in such extreme circumstances was not the least restrictive option (and that its views as to the risks were not well-founded). The detaining trust argued was that JD's rights were adequately protected by the statutory criteria the Tribunal had applied, and that its conclusions were soundly based on the evidence.
Save for the cover sheet, this decision may be made public (r14(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 s12(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.
1. 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.
2. 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.
3. 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 3 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 ss5 and 5A of the Criminal Procedure (Insanity) Act 1964 to make orders under ss37 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient's behalf.
9. On 7...
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