R (S) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 2002 |
| Neutral Citation | [2002] EWHC 2522 (Admin) |
| Docket Number | CO/3084/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2002 |
[2002] EWHC 2522 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Hoourable Mr Justice Stanley Burnton
CO/3084/2002
Kris Gledhill (instructed by Galbraith Branley) for the Claimant
David Forsdick (instructed by the Treasury Solicitor) for the Defendant
and (instructed by the Solicitor to the Department of Health) for the Interested Party
Introduction
In these proceedings the Claimant challenges the compatibility of Rule 11 of the Mental Health Review Tribunal Rules 1983 with the requirements of the European Convention on Human Rights, and in particular Article 5.4.
S was a restricted patient, having been detained under sections 37 and 41 of the Mental Health Act ("the Act") by an order of the Wood Green Crown Court on 11 November 1999. On 20 November 2001, he made an application to the Mental Health Review Tribunal pursuant to the provisions of Part V of the Act for the review of his detention.
A Mental Health Review Tribunal normally consists of three persons, the chairman, who is a legally qualified member "having such legal experience as the Lord Chancellor considers suitable" (paragraph 1(a) to Schedule 2 to the Act), a registered medical practitioner appointed by the Lord Chancellor after consultation with the Home Secretary and a lay member "having such experience in administration, such knowledge of social services or such other qualifications or experience as the Lord Chancellor considers suitable" (paragraph 1(c) to Schedule 2). The medically qualified member is normally a consultant psychiatrist or a retired consultant.
Section 72(1)(b) of the Act is as follows:
"The tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied –
(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of 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 not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself."
Section 73(1) and (2) provide:
"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if –
(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient."
Rule 11 is as follows:
"Medical Examination
11. At any time before the hearing of the application, the medical member or, where the tribunal includes more than one, at least one of them shall examine the patient and take such other steps as he considers necessary to form an opinion of the patient's mental condition; and for this purpose the patient may be seen in private and all his medical records may be examined by the medical member, who my take such notes and copies of them as he may require, for use in connection with the application and in the case of Appeal Panel subject to after-care under supervision this rule shall also apply to such other records relating to any after-care services provided under section 117 of the Act."
S believed that all psychiatrists view him unfavourably. Initially, he refused to agree to his solicitors obtaining an independent psychiatric report for the purposes of his application. For the same reason, he instructed his solicitors to inform the Regional Chairman of the Mental Health Review Tribunal, Mr Michael Christie, that he objected to being seen by the medical member of the tribunal that would consider his application in advance of the hearing. His solicitors' letter to Mr Christie dated 10 April 2002 therefore asked that Rule 11 should not be applied. Mr Christie responded to the effect that Rule 11 is mandatory, and that S's refusal to be seen by the medical member of the tribunal would prevent his application from being heard. In consequence, on 11 April 2002, S's solicitors informed Mr Christie that S preferred to be seen by the medical member than not to have a his application heard by the tribunal. However, these proceedings were begun to challenge the mandatory requirement of an examination by the medical member before the hearing.
S was subsequently seen by the medical member of the tribunal that considered his case, and by the time of the hearing before me the tribunal had ordered his conditional discharge pursuant to section 73(2). The decision of the court on this application is therefore academic in his case. It is, however, of general importance, and for that reason his application for judicial review was heard.
The contentions of the parties
S contends that the requirement in Rule 11 that he be seen by the medical member of the tribunal before the hearing of his application was incompatible with his right under Article 5.4 of the Convention to an independent and impartial judicial determination of his detention; that, by section 6(1) of the Human Rights Act, but subject to section 6(2), the enforcement of Rule 11 is therefore unlawful; that, in relation to section 6(2), neither the Act nor any other primary legislation required the making of Rule 11 or requires its enforcement; and that enforcement of Rule 11 is therefore unlawful. On this basis, the medical member might examine a patient with his or her informed consent, but not otherwise.
Mr Gledhill submitted that these conclusions follow from the decision of the European Court of Human Rights in DN v Switzerland [2001] ECHR 27154/95. He submitted that Rule 11 requires the medical member to form an opinion of the patient's mental condition before the hearing; that the medical member becomes both witness who cannot be cross-examined and judge; and that a situation in which a member of the tribunal forms an opinion before the hearing is inconsistent with the requirement of a fair and impartial judicial hearing.
The Mental Health Review Tribunal and the Department of Health dispute these contentions: they contend that Rule 11 is compatible with the Convention, and that an examination by the medical member of a tribunal does not prevent the hearing of a patient's application to the tribunal being independent and impartial.
In his claim form, S relied on Article 6 of the Convention as well as Article 5. However, Mr Gledhill did not pursue the claim under Article 6.
Discussion
It is common ground that Mr Christie correctly interpreted Rule 11 as mandatory. Its requirements are unique in English practice, and are arguably anomalous. Other tribunals with the same or similar functions do not have the equivalent of Rule 11. In Scotland, the functions of a Mental Health Review Tribunal are carried out by a sheriff. The Discretionary Lifer Panel of the Parole Board may include a medically qualified member, but he or she does not conduct a separate assessment of a prisoner: the prisoner's case is considered entirely on the material before the Board. The recently published draft Mental Health Bill appears to envisage the abolition of Rule 11. It requires a tribunal to appoint a medical expert who must prepare a report for the tribunal dealing with the merits of the application, and that he may for that purpose interview and examine the patient in private and require the production of his medical records. Thus the medical expert will be a tribunal-appointed expert whose report will be made available to the patient and to the parties appearing before the tribunal so that they can address evidence and submissions to it.
As long ago as 1983, the Council on Tribunals expressed its concern that the medical member is:
"… effectively a witness and a member of the tribunal deciding the validity of his own evidence, and that the applicant should have an opportunity of knowing what evidence he has given and commenting on it. Under the present system a medical member examines an applicant before the hearing and then (generally in the course of the hearing) raises any material factors which in his view should be open for comment; he then advises the tribunal in private. While this is not ideal, it is probably the best that can be devised."
It is clear that care is required if Rule 11 is not to result in unfairness. In R (on the application of H) v Ashworth Hospital Authority [2002] EWCA Civ 923 Dyson LJ cited what I had said in that case at first instance at paragraph 86 of my judgment:
"86. … it appears …. that at no stage of the hearing before the Tribunal announced their decision were the parties before the Tribunal informed of the findings of Dr Cashman as a result of his interview with H. The parties should be given the...
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