R (MN) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PLENDER |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWHC 3383 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2008 |
| Docket Number | CO/5741/2007 |
[2008] EWHC 3383 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Plender
CO/5741/2007
Mr H Southey appeared on behalf of the Claimant
Miss M Demetriou appeared on behalf of the Defendant
: This is the judgment in R (On the Application of MN) v Mental Health Review Tribunal.
In this application Mr Southey moves on behalf of MN, a patient at a secure hospital, for review of the ruling of the Mental Health Review Tribunal dated 8 June 2007, by which the tribunal determined that the application made to it by MN when he was detained under Sections 47 and 49 of the [Mental Health] Act 1983 ceased to have effect when he ceased to be a restricted patient within the meaning of that Act.
The case raises a question on the interpretation of several sections of the 1983 Act, including Section 70. Section 70 provides:
“70 A patient who is a restricted patient within the meaning of Section 79 below and is detained in a hospital may apply to a Mental Health Review Tribunal -
(a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order; and
(b) in any subsequent period of 12 months.”
Put more crudely, Section 70 ensures to a patient who is a restricted patient the right to make an annual application to the Mental Health Review Tribunal, save that in the first 12 months of his detention any application must be made in the second half of that year. That coincides with the common experience that those who are detained pursuant to the Mental Health Act, particularly under Section 37 thereof, are likely to have had a hearing before a judge or a recorder in the Crown Court at which evidence of psychiatrists will have been heard. So in the first six months of the detention of the patient there will be a recent hearing.
The position of MN is not an uncommon one. During the period of his detention the sentence —or the operative part thereof —had partly expired with the result that he ceased to be a restricted patient. The question then arises whether an appeal which he has made pursuant to Section 70 remains in force. Mr Southey submits that it must for, even if, as is the practice of the tribunal, the application made under Section 70 is treated as converted into one under Section 69 (2) applicable to non-restricted patients, the result, says Mr Southey, is that a patient loses one of his periodical rights to apply and may be faced with the embarrassment or disadvantage of having an application under Section 70 treated as live when he would prefer that it were not so treated.
In order to understand the basis of Section 70, we have to look at the scheme of the Act more generally. Assistance is derived from Section 41 (5) which provides:
“(5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order is in force, the provisions of Section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date when the restriction order ceased to have effect.”
Putting that language more crudely but colloquially, I would express it as follows. On the termination of the restriction order in relation to the patient, the patient will be treated as though he had been admitted to hospital in pursuance of an ordinary hospital order, that is to say one made without restriction, on the date on which the restriction order ceased to have effect. The last word requires some emphasis. It is from the date of the termination of the restriction order that the patient is treated as though he had been admitted to the hospital otherwise than on a restriction order.
It is submitted on behalf of the tribunal by Miss Demetriou that since the patient's restriction order is deemed to have ceased to have effect, the application that he had made under Section 70 must also necessarily lapse. That is so because an application under Section 70 is, by definition, one made by a patient who is a restricted patient within the meaning of Section 79 below. Further it is urged by the tribunal that the regime that applies to restricted patients differs from the regime applicable to non-restricted patients. The statutory scheme does not envisage that patients float between one category and another.
The claimant's application to the tribunal was made pursuant to Section 70 and that can only apply in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order. By contrast, once a claimant is detained pursuant to a hospital order under Section 41 (5), that is to say a notional or deemed hospital order, he has the right to apply to the tribunal within the first six months of his detention, that is to say his detention as a non-restricted patient.
Thirdly, it is urged before me on behalf of the tribunal that the procedure applying to restricted patients and the procedure applying to non-restricted patients differs in significant respects. Perhaps the most important of these is that the Secretary of State must participate in tribunal hearings concerning restricted patients. The Mental Health Tribunal Rules 1983, Rule 6, provides:
“The responsible authority shall send a statement to the tribunal and, in the case of a restricted patient, the Secretary of State, as soon as practicable and in any case within 3 weeks of its receipt of the notice of application; and such statement shall contain -
…..”
It sets out what it contains. Sub-paragraph (2) states:
“Where a patient is a restricted patient, the Secretary of State shall send to the tribunal, as soon as practicable, and in any case within 3 weeks of receipt by him of the authority's statement, a statement of such further information relevant to the application as may be available to him.”
If the Section 70 application continued there would apply to it mandatory language of Rule 6 which requires that the Secretary of State shall send such further information relevant to the application as may be available to him. When I pressed Mr Southey on this point he stated it was his submission that the Secretary of State drops out of the picture. The Secretary of State drops out, as I understand it, because the patient is no longer a restricted patient and the Secretary of State no longer has a relevant interest. But I cannot reconcile the proposition that the Secretary of State drops out with the mandatory word “shall” which governs the Secretary of State's obligations. Moreover the concession that by some means or other the rules applicable to the participation of the Secretary of State do not apply to the person in the category of the present claimant who has ceased to be a restricted patient seems to me to disclose the unreality of the present submissions.
I have been referred to two domestic authorities of some relevance but neither is directly in point. The first is the judgment of Mr Justice Collins in R v South Thames Mental Health Review Tribunal ex p M CO/2700/1997. In that case Mr Justice Collins held that a change in status of a patient from a Section 2 to a Section 3 patient would not deprive him of a tribunal hearing in circumstances in which the change took place after the application was made but before being heard. This is an unsurprising if important decision.
The difference in the status of a patient governed by Section 2 and one in Section 3 relates to the provision of...
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