R (B) v South Region Mental Health Review Tribunal

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This is an application for judicial review, permission having been granted an oral hearing on 2nd May 2008. On granting permission the court ordered that the grounds be amended. This has been done.

The claimant seeks permission to challenge the decision of the Mental Health Review Tribunal dated 23rd September 2007 not to release him from Broadmoor. The Tribunal was chaired by His Honour Judge Fricker QC with a medical and lay member.

The background to this case is that on 15th February 1995 the claimant was convicted of the rape and false imprisonment of a deaf and dumb girl aged 17. He was in April 1995 admitted to Broadmoor for assessment, where he was diagnosed as suffering from schizophrenia and detained for treatment under the Mental Health Act 1995. Whilst this diagnosis has been questioned and varied on occasions by the medical experts, the defendant submitted at a hearing in September 2007 that the claimant was suffering from schizophrenia with paranoid traits.

The Mental Health Review Tribunal, at page 13 of its decision, indicated and accepted that whilst the claimant did not demonstrate strong symptoms of mental illness, some of his continuing unusual beliefs and expectations are indications of underlying mental illness. They listed symptoms as including avoidance of blood tests for irrational reasons; insistence on control of hygiene in a number of aspects of his life; selective refusal of engagement in therapeutic and social support work with staff for inappropriate reasons; inappropriate expectations of his attraction to and engagement with women; and minimising the seriousness of his conduct during the index offence and on other occasions.

At page 14 of the decision the Tribunal concluded that whilst each of these features was insufficient by themselves to justify a diagnosis of mental illness, the totality of them, together with the observations of clinical staff, gave rise to a diagnosis of psychotic illness, with symptoms that were alleviated by medication.

At page 16 of the decision the Tribunal recognised the difficulties in establishing the correct diagnosis of the claimant's condition, and indicated and concluded that given the claimant's difficult and at times challenging behaviour and fluctuating mental state, mood and presentation, the Tribunal accepted the varying interpretation as to what diagnosis is most appropriate, that these were not unreasonable. It also concluded that there had been a sufficient pattern of symptoms to justify the diagnosis of persistent psychotic illness, and concluded that the degree as well as the nature of the claimant's mental illness required detention for treatment:

“While he lacks insight into his illness and his need for medication to alleviate it, the likelihood and risks of non-compliance with medication and of deterioration of his mental state, should he be discharged into the community, and of dangers to others, are not acceptable. The Tribunal considers that [the claimant] has been relatively stable recently and might be appropriately managed in medium security. The Tribunal considers that the Authority should review putting him forward for transfer.”

So, in summary, the Tribunal took the view in relation to whether the claimant should be discharged or not that they were satisfied that he was suffering from a mental illness of a nature and degree which made it appropriate for him to be detained in hospital for treatment under section 72 of the Mental Health Act 1983.

The amended grounds challenge the decision of the Tribunal on three bases: (1) procedural impropriety arising from bias and/or the appearance of bias which has resulted in unfairness/apparent unfairness; (2) irrationality in failing to consider whether or not the risk of a deterioration in the claimant's mental health and any consequent risk to others could be adequately contained via a conditional discharge; and (3) the provision of inadequate reasons/irrationality in coming to its decision in six other respects.

The grounds in detail

Grounds 1 to 3

It is alleged that the Tribunal acted unlawfully, inappropriately, in breach of natural justice and failed to give the claimant a fair and impartial hearing when it sought to secure the attendance of a doctor to hear the claimant's evidence, and on a doctor not being available secured the attendance of a nurse instead. It is alleged that the Tribunal acted in excess of its jurisdiction; had prejudged the case prior to the completion of the evidence; was biased, or gave the appearance of bias; failed to ensure a separation of powers; failed to give the claimant privacy when giving evidence, risking his evidence being affected; and also failed to give reasons for the decision.

These three grounds arise out of the same facts. They are set out in extensive detail in the claimant's amended skeleton argument at paragraphs 12 to 32. Boiled down and simply put, complaint is made that the Tribunal decided to seek the attendance of a doctor on the morning of the last day of the hearing after the claimant had started his evidence. When one was not available, the Tribunal allowed a nurse to sit in during the claimant's evidence, contrary to the wishes of the claimant and the submissions of counsel. It is submitted that the Tribunal had no power to do so, because Rule 21 exists purely to protect the patient's privacy and with regard to Rule 22, there was no evidence to suggest that a doctor or nurse was required in the interests of the claimant's health. The word “appears” in Rule 22 refers to appearing as a witness. Alternatively, if the Tribunal did have such a power, by asking a nurse to be present it had clearly prejudged the case and decided that the claimant was going to stay in hospital, thereby demonstrating bias. Moreover, no reasons were given at the time for requiring the nurse to be present. The reasons given in the decision of the Tribunal are not clear, and in any event are not legitimate reasons for requiring the attendance of the nurse. The Tribunal had only one limited task, namely to consider whether or not the claimant should be discharged. It was not its function to consider any future treatment of the claimant.

In the absence of evidence from the defendant, the court when granting permission was concerned with three particular aspects of the claim, where it was not clear what exactly had transpired —namely, the presence of the nurse, the issue of consideration of a conditional discharge and the timing of the decision making. These last two issues will be dealt with later in the judgment.

The court now has a statement from the chair of the Tribunal, His Honour Judge Fricker QC, with which apparently there is no dissension on the part of the other two members of the Tribunal.

Dealing with grounds 1 to 3 —Judge Fricker in his statement indicates that the Tribunal had heard evidence that the claimant had been reluctant to engage with the clinical team. The Tribunal members thought that if their decision proved to be that discharge was not appropriate, the clinical team could gain insight by hearing the claimant answering questions put to him by his counsel and by the medical member of the Tribunal. They agreed between themselves to seek the presence of a medical member. Counsel for the claimant was informed and told that the tribunal considered that a member of the clinical team should hear the claimant's evidence. Counsel made submissions which were considered, but the decision of the Tribunal remained the same. When no doctor was present, they decided to allow the nurse to be present. The reasons for the decision are as follows, and they are to be found at paragraph 13 of Judge Fricker's statement. It reads:

“13. In reaching that view, we considered that: (i) the hearing would continue to be heard in private, as the nurse was there not as a member of the public but for the purpose of informing the clinical team; (ii) it is normal practice that member(s) of a clinical team treating the patient are present throughout MHRT hearings; (iii) the Claimant had a right and opportunity to supplement the evidence he gave in the presence of a member of the clinical team, by speaking to the Tribunal in private; and (iv) the Claimant's objection to a member of his clinical team hearing his evidence was unreasonable as his answers and demeanour might help the clinical teams' understanding of him. For the avoidance of any doubt, the hearing was conducted in private under Rule 21 (paragraph 1). The patient gave his evidence in the absence of any member of the public under Rule 22(4), the nurse being present as a member of the clinical team. The patient also later exercised his right under Rule 22(2) to speak to the tribunal in the absence of the nurse and of anyone else except his legal team.”

The reasons were recorded in the decision at paragraph 3 and read as follows:

“The Tribunal considered that it was desirable that a member of the clinical team should be present during questioning of the patient by the...