KF, MO and FF v Birmingham & Solihull Mental Health NHS Foundation Trust [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 02 June 2010 |
| Date | 02 June 2010 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2010] UKUT 185 (AAC)
Upper Tribunal (AAC), M/1089/2009, M/1152/2009 and M/1877/2009
Walker J (CP), HHJ Sycamore (CP), UTJ Wikeley
R Pezzani (instructed by Cox McQueen Howard Tain) for the patients; Mr Hooper (instructed by the Solicitor to the Secretary of State) for the Secretary of State for Health.
Whether academic appeals could be heard; the availability of judicial review as well as an appeal of a decision of the First-tier Tribunal; the approach to an appeal to the Upper Tribunal when events had moved on, in particular when a patient detained under s2 Mental Health Act 1983 had been placed under s3 or discharged; the effect of placement on a Community Treatment Order of a s3 patient whose case had been referred to a Tribunal.
(i) KF and MO:
KF and MO were admitted to hospital under s2 Mental Health Act 1983 and made unsuccessful applications to the First-tier Tribunal, which they sought to appeal. Both were admitted under s3, in MO's case before the s2 Tribunal convened. In KF's case, the challenge was that the decision was ambiguous and illogical; in MO's case, the challenge was that the Tribunal erroneously failed to apply the s3 criteria. The applications for permission to appeal in relation to the s2 decisions were refused by the Tribunal on the basis that they were academic as both of them had made further applications to the Tribunal in relation to their s3 detention. They sought permission to appeal from the Upper Tribunal, which was granted; they also sought permission to apply for judicial review of the Tribunal decisions on the basis that this might allow a wider range of remedies. Both had been discharged by the time of the substantive hearing.
The central issue was what should happen when an appeal against a s2 decision had been overtaken by events, such as the admission of the patient under s3 or the discharge of the patient. For KF and MO, it was argued that the appeal process, which included the possibility of remission to the Tribunal for a further hearing, should be dealt with speedily in order to comply with the policy of the 1983 Act to allow an effective challenge to the lawfulness of detention and the overriding objective in the Tribunal Procedure Rules 2008 of dealing with cases fairly and justly, which entailed speedy decisions; it was also suggested that Art 5(4) ECHR would be breached in the absence of such an approach.
The Secretary of State argued that Art 5(4) did not require a particular approach in relation to a s2 appeal when it had been overtaken by events. It was also argued that there was a discretion as to the granting of permission to appeal or substantive relief if a s2 patient was placed under s3 and made a further application to a Tribunal (given that this further application should be held in a manner that meets the requirements of Art 5(4), and the Tribunal would in any event have to apply the s3 criteria even if the application had been made initially in relation to the s2 detention); it was noted that there were resource implications from allowing both a further hearing in relation to the s2 decision if the original decision was quashed on appeal, and that the patient was not disadvantaged in light of the existence of the right to have a Tribunal as a result of the s3 detention. Finally, it was suggested that appellate proceedings should always be terminated (or no remedy granted) if the patient was discharged.
The arguments to the contrary were that a patient should not lose one of his or her limited rights to a Tribunal hearing through no fault of his or her own, and should be able to able to use a s2 application whilst maintaining control over his or her s3 application, and that administrative convenience and resource implications were of little weight in light of the substantive right to liberty.
(ii) FF:
FF was admitted under s3 in May 2008; as he did not apply to the Tribunal, his case was referred by the hospital managers, but before the reference was heard he was placed under a Community Treatment Order. The Tribunal decided that the reference ceased to have effect: on an application for review, the Tribunal took no action and refused permission to appeal; FF applied to the Upper Tribunal for permission to appeal the review decision, which was granted. Before the appeal was heard, the CTO was revoked and a further reference was made to the Tribunal; at that hearing, FF did not contest the continuation of his detention, and the Tribunal did not direct discharge. The issues arising on the appeal were which First-tier Tribunal decision could be appealed, and whether a reference to the First-tier Tribunal lapsed once a CTO was made.
Decision: Permission to appeal was granted by the Upper Tribunal. An oral hearing of the appeal took place at Harp House in London on 28 April 2010.
In KF's case the decision of the First-tier Tribunal dated 16 March 2009 involved an error of law within s12(1) of the Tribunals, Courts and Enforcement Act 2007. However, the Upper Tribunal exercises its discretion so as not to set aside the decision of the First-tier Tribunal (s12(2)(a) of the 2007 Act).
In MO's case the decision of the First-tier Tribunal on 17 December 2009 also involved an error of law within s12(1) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal again exercises its discretion so as not to set aside the decision of the First-tier Tribunal (s12(2)(a) of the 2007 Act).
In FF's case the First-tier Tribunal's decision of 21 May 2009, ruling that the referral made while FF was subject to s3 of the Mental Health Act 1983 ceased to have effect when FF was placed under a community treatment order, involved an error of law within s12(1) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal again exercises its discretion not to set that decision aside (s12(2)(a) of the 2007 Act).
Save for the frontsheet (which identifies the parties by name), this decision may be made public (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).
Reasons:
Introduction
The parties and their representatives
1. The 3 appellants, KF, MO and FF have all been admitted for treatment under the Mental Health Act 1983; KF and MO have both since been discharged, but FF remains detained in hospital. Each of them was under the care of the Birmingham and Solihull Mental Health NHS Trust (the First Respondents) and has been represented by the same solicitor, Mr Bellshaw, who has clearly been acting assiduously, promptly and responsibly in their best interests at all times. Mr Bellshaw appeared for each appellant before the First-tier Tribunal.
2. The 3 appellants were all represented at the oral hearing before the Upper Tribunal by Mr Pezzani of Counsel. The First Respondents have taken no active part in the proceedings before the Upper Tribunal. However, the Secretary of State for Health (the Second Respondent) has helpfully made submissions, and was represented at the oral hearing before the Upper Tribunal by Mr Hooper of Counsel. We are indebted to both Mr Pezzani and Mr Hooper for their careful and detailed submissions both before and at the hearing.
Was this a purely "academic" appeal?
3. We acknowledge at the outset that there was a considerable measure of agreement between Mr Pezzani and Mr Hooper, approaching but not quite attaining unanimity, on most but not all of the main issues. This was especially so in relation to the third appeal, FF. The extent of this consensus naturally raised the question as to whether the Upper Tribunal should be hearing the appeals at all.
4. The general principle is that appellate courts (and tribunals) will decline to hear "academic" appeals in private law cases (Sun Life Assurance v JervisELR[1944] AC 111 and Ainsbury v MillingtonWLR[1987] 1 WLR 379, in which Lord Bridge stressed that "courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved" (at 381B-C), whilst acknowledging that different considerations might apply in "friendly actions" or test cases). That general principle may not apply with quite the same force in public law cases, where the established view is that academic appeals should not be heard "unless there is a good reason in the public interest for doing so" (R v Secretary of State for the Home Department ex p SalemELR[1990] 1 AC 450, per Lord Slynn at 457A-B).
5. However, despite the general rule there will always be circumstances in which it is appropriate in the context of either public or private law proceedings for such an appeal to be heard (see eg Birmingham City Council v FELR[2007] Fam 41 and Rolls Royce plc v Unite the UnionWLR[2010] 1 WLR 318). Notwithstanding the considerable measure of agreement between the parties, we are entirely satisfied that the present proceedings are one such (joined) appeal. Both parties accept that there are important issues of principle to be determined. The appeals concern relatively narrow points of construction on which the parties have a legitimate interest in seeking clarification and guidance. The circumstances which arose in the present appeals were in no way unusual and will arise again. The parties and their representatives, along with others in similar situations, are entitled to expect a decision on the points at issue. We also bear in mind both that one of the functions of the Upper Tribunal is to provide authoritative guidance to the First-tier Tribunal and that these appeals concern one of the most precious of human rights, the individual's right to liberty.
6. In doing so, however, we acknowledge that there are inherent dangers in a court or tribunal (especially an appellate court or tribunal) expressing views on matters which do not arise for decision on...
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