MD v Nottinghamshire Health Care NHS Trust [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 25 February 2010 |
| Date | 25 February 2010 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2010] UKUT 59 (AAC)
Upper Tribunal (AAC), M/2704/2009
UTJ Jacobs
R Pezzani (instructed by RMNJ Mental Health Solicitors) for MD; G Irving QC (instructed by Mills and Reeve LLP) for the Trust.
Whether the detention of a patient who failed to engage with treatment was lawful; whether there was appropriate treatment; whether a Tribunal should have exercised its discretion to discharge; the proper approach to expert evidence.
MD, who was born in 1968, had numerous convictions; in 2003, he was sentenced to 5 years' imprisonment for child cruelty; time was added for threatening to take a hostage in prison. In July 2006, he was transferred to Rampton Hospital under s47/49 Mental Health Act 1983, on the basis of a personality disorder; as a result of the transfer, he remained there beyond the release date from his prison sentence, which was in December 2006. A Tribunal considered his case in February 2009, and found that the criteria for detention in s72 of the 1983 Act were made out, namely he was suffering from mental disorder (which it characterised as a psychopathic personality disorder), it was of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment, such treatment was necessary for the protection of others, and appropriate medical treatment was available, namely treatment which had the purpose of treating the disorder and which was appropriate for MD. In relation to the latter point, the Tribunal noted that there was a debate about whether personality disorders could be treated, but indicated that it did not have to resolve that debate; it agreed with the Responsible Clinician that, over the long-term, appropriate positive psychotherapeutic treatment was available, or alternatively that the nursing care and 'milieu' therapy on the ward (ie nursing and specialist day to day care under clinical supervision, in a safe and secure therapeutic environment with a structured regime) amounted to medical treatment: the Tribunal noted that there had been improvements in MD's behaviour in terms of the use of seclusion and his presentation at the Tribunal.
MD appealed to the Upper Tribunal, arguing that his detention was unlawful as it amounted to mere containment because there was no possibility of a reduction of the risk he posed or no prospect of him progressing beyond milieu therapy because he had no capacity to engage in treatment; and that the Tribunal ought to have found that detention was not appropriate or that there was no appropriate treatment, or ought to have exercised its discretion to discharge. There was a challenge to the Tribunal's reliance on the conclusions of the ward manager, and to its failure to deal with research evidence. An issue also arose as to the proper approach to expert evidence.
Decision
This decision is given under s11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2007/00007, held on 25, 26 and 27 February 2009, did not involve the making of an error on a point of law.
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 for Decision
1. This appeal concerns the continuing detention of a patient at Rampton Hospital. The principal issue that arises is whether 'appropriate medical treatment is available for him' under s72 of the Mental Health Act 1983. This is, so far as I know, the first time that this new statutory wording has been considered by the Upper Tribunal. I also comment on the procedure for expert evidence in the First-tier Tribunal.
2. The appeal is brought, with the permission of the First-tier Tribunal, against the decision of that tribunal that the patient should not be discharged. I held an oral hearing on 19 February 2010. The patient was represented by Mr Roger Pezzani of counsel, instructed by RMNJ Mental Health Solicitors. The hospital was represented by Ms Gillian Irving QC, instructed by Mills and Reeve LLP. I am grateful to both counsel for their submissions.
A. History - before removal to Rampton
3. The patient was born on 25 March 1968. He was warned for shoplifting at the age of 13 and has a record of convictions dating from 1988. They were for indecent assault, offences relating to the supply of drugs and possession of firearms, and shoplifting. Other allegations have been made, but not pursued to court.
4. In 2003, the patient was convicted on 2 counts of cruelty to children aged 3 and 5. Their injuries were extensive and inflicted over a period of time. The tribunal described the offences as 'grotesque'. Four other counts were left to lie on the file. All 6 were specimen counts. He was sentenced to imprisonment for 5 years and had time added to his sentence for threatening to take a female hostage while in prison.
5. The patient has not acknowledged his personal responsibility for any of his offences.
B. History - while detained in Rampton
6. On 27 July 2006, he was transferred to Rampton Hospital on the direction of the Secretary of State under s47 of the Mental Health Act 1983. He was also subject, by virtue of s49, to the special restrictions under s41 until 26 December 2006. The result is that he is detained in hospital at a time when he would have been released from prison.
7. He applied to the Mental Health Review Tribunal in October 2006, but the tribunal decided that he should not be discharged in September 2007. On 12 November 2007, the patient applied for his detention to be considered again by the Tribunal.
C. The course of these proceedings
8. The case was not heard until 25, 26 and 27 February 2009. By that time, the mental health jurisdiction had been transferred to the Heath, Education and Social Care Chamber of the First-tier Tribunal. The tribunal decided that he was not to be discharged. It gave its reasons on 17 March 2009.
9. The patient applied for permission to appeal on 22 April 2009. Permission was given by the First-tier Tribunal, but not until 5 August 2009. The Regional Tribunal Judge gave this reason for doing so:
'The applicant has an arguable case. In addition, the application raises issues as to the interpretation of the criterion under s72 of the Mental Health Act 1983 that appropriate medical treatment is available for the patient and in respect of which the law requires clarifying.'
10. A CLS Funding Certificate was issued on 8 October 2009 and the appeal was lodged with the office of the Upper Tribunal on 21 October 2009. It was referred to me and I gave directions for an oral hearing on 22 October 2009.
D. The legislation
The tribunal's powers
11. Section 72(2) of the Mental Health Act provides:
'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; or
(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.'
12. The conditions in para (b) reflect the conditions for admission, principally under s3(2). The subsection as a whole confers both a power and a duty. The tribunal is under a duty to discharge a patient ('the tribunal shall') if it is not satisfied by one of the four heads in para (b). It has a power to do so in other cases under the introductory words ('the tribunal may').
The definition of 'medical treatment'
13. This is defined by s145(1) and...
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