R v Canons Park Mental Health Review Tribunal, ex parte A
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE NOURSE |
| Judgment Date | 16 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0216-7 |
| Docket Number | QBCOF 93/1099/D |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 1994 |
[1994] EWCA Civ J0216-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN's BENCH DIVISION)
(DIVISIONAL COURT)
Before: Lord Justice Nourse Lord Justice Kennedy and Lord Justice Roch
QBCOF 93/1099/D
MR. S. RICHARDS and MR. R. SINGH (instructed by Treasury Solicitor) appeared on behalf of the Appellant
MR. R. GORDON (instructed by Steel & Shamash, London SE1 7AA) appeared on behalf of the Respondent
All those words were proforma except the entries "mental illness" and "psychopathic disorder". A marginal note appears against the 3rd group of words which begin "In my opinion further medical treatment…." namely:
"Delete unless patient is reclassified above as suffering from psychopathic disorder or mental impairment"
It would seem that the applicant had prior to her application to the hospital managers for her discharge and prior to the reclassification by Dr James applied for her discharge to the Mental Health Review Tribunal on the 29th March 1993. I shall refer in this judgment simply to the "Tribunal". The tribunal decided that the applicant should not be discharged. That decision was made on the 24th May 1993. Prior to making the decision the tribunal received oral evidence from Dr James, Dr James's registrar Dr Duffield, Dr Frank, a consultant psychiatrist instructed by solicitors acting on behalf of the applicant for her application to the tribunal and from the applicant herself. In addition the tribunal had documentary evidence being a psychiatric report of the 11th May 1993 from Dr Duffield, a report from Dr Frank dated the 21st May 1993, a supplementary report from Dr James dated the 24th May 1993, the Form 22 completed by Dr James, a Part A Statement and an undated social circumstances report from a social worker with the Islington Council who had responsibility for the fostering and care of the applicant's children.
The Tribunal's Decision:
The tribunal's decision is given in a document the first two pages of which contain 8 paragraphs of the proforma kind. The decision is contained in paragraph 5 and reads simply:
"The patient shall not be discharged from liability to be detained."
The next relevant paragraph for the purposes of this appeal is paragraph 7 which reads:
"7. Findings of the tribunal concerning the Statutory Criteria
The tribunal is obliged to discharge the patient if the answer to any of the following questions is "The tribunal is so satisfied"
Question Decision of the Tribunal
A.Is the tribunal satisfied that
the patient is NOT now suffering
from mental illness, psychopathic
disorder, mental impairment,
severe mental impairment or from The tribunal is/is not so
any of those forms of disorder of satisfied
a nature or degree which makes it
appropriate for the patient to be
liable to be detained in a hospital
for medical treatment?
B. Is the tribunal satisfied that it is
NOT necessary for the health and The tribunal is/is not so
safety of the patient or for the satisfied
protection of others that the patient
should receive such treatment?
NOTE:If the patient has not been discharged under the Criteria above, the tribunal has in any case a discretion to discharge the Patient."
The answers to Questions A & B were that the tribunal was not so satisfied.
Under paragraph 8 which is to be completed only if the Patient has not been discharged under paragraph 7 and which is headed
"Findings of the tribunal concerning the main issues affecting the exercise of the tribunal's discretion
QUESTION:
A.Is it likely that medical treatment is alleviating or preventing a deterioration of the patient's condition?
ANSWER: YES/NO"
The tribunal answered that question "No".
Paragraph 9 is headed:
"Reasons for the tribunal's decision"
There are then set out in manuscript five paragraphs of reasons for the decision in the applicant's case. Those paragraphs may be summarised in this way:
1. That the tribunal was satisfied that the applicant was suffering from psychopathic disorder.
2. That the only appropriate medical treatment which might alleviate the applicant's disorder would be psychotherapy in a group setting. Such treatment required the voluntary cooperation of the patient. The applicant was not at that time willing to cooperate.
3. That there was clear evidence of threats made by the applicant to a previous therapist and of a risk to the safety of that therapist if the applicant were not detained.
The 4th and 5th paragraphs of the reasons are the most important and I shall set them out in full:
"4.We accept the view of the RMO that the patient's mental condition may deteriorate for a time and there is evidence that this has happened. There is also evidence that she deteriorated during a period of absconsion (sic). However this deterioration may in due course give way to subsequent alleviation of her condition and she may then be willing to cooperate with appropriate therapy. Until then it is necessary that the patient should continue to be detained for nursing care under medical supervision. Consideration of her discharge is premature.
5.It was argued that the patient's aggressive behaviour should have been subjected to criminal investigation, rather than detention under the Mental Health Act. However, the tribunal takes the view that detention for medical treatment is appropriate for this patient. We are satisfied that it is in the interests of the patient's health and safety and for the protection of others that she should now be detained."
The Application for Judicial Review:
Following the tribunal's decision, an application was made on behalf of the applicant to the High Court for orders of certiorari to quash the tribunal's decision and that the matter be remitted to the tribunal to reconsider it and reach a decision in accordance with the findings of the High Court. Alternatively orders of mandamus were sought requiring the tribunal to hear the applicant's application according to law and requiring the tribunal to give proper adequate and intelligible reasons for it's decision. Two declarations were sought, first that where treatment is likely to result in a deterioration of a patient's condition, such a patient is entitled to be discharged under Section 72(1)(b)(i) of the Act, and that where treatment is not likely to alleviate or prevent a deterioration of a patient's condition, such a patient is entitled to be discharged under the same sub-section.
On the 29th June, Dr Michael James Raymond, a former consultant psychiatrist who was the medical member of the Tribunal swore an affidavit. In that affidavit Dr Raymond deposed first that the Tribunal had accepted the view of the applicant's responsible medical officer that the applicant's mental condition might deteriorate for a time and that there was evidence that this had happened. The Tribunal considered that the erosion of her condition was part of that deterioration. Second, that the Tribunal considered that there was a likelihood of improvement in due course, and that view was expressed in paragraph 4 of the Tribunal's reasons, and that Dr Raymond's view to that effect was based on his own professional experiences and the evidence of Dr James.
The final paragraph of Dr Raymond's affidavit read:
"I wish to dispel the impression which may be gained from reading the documents that it is highly unusual for patients suffering from psychiatric disorder, who are detained in hospital, to suffer a temporary deterioration in their condition. In my experience such patients dislike being subject to a controlled environment and are likely for a period to rebel against it, resulting in a deterioration of their condition."
In the Divisional Court Sedley J expressed the view that Dr Raymond's affidavit was not admissible, but if it were he would reject it as inconsistent with the Tribunal's expressed reasons. Sedley J said:
"The Tribunal have found very clearly that it is unlikely that treatment in hospital will either alleviate or prevent deterioration of the applicant's psychopathic disorder. At best such an outcome is in the Tribunal's view, a hope or a possibility" (Judgment p 11F—G)
On the 28th July 1993, a Divisional Court consisting of Mann LJ and Sedley J granted an order of certiorari to quash the decision of the tribunal and further ordered that the matter be remitted to the tribunal with a direction that the applicant be discharged.
Events following the Divisional Court's decision:
The tribunal which is the Cannons Park Mental Health Review Tribunal appealed from the orders made by the Divisional Court on the 6th August of last year seeking that the orders made by the Divisional Court should be set aside. On the 20th September a cross-notice was filed on behalf of the applicant that, despite the Divisional Court making two of the orders sought by the applicant, the Divisional Court had nevertheless erred in rejecting one of the applicant's submissions and not finding in the applicant's favour on another issue raised by the applicant before the Divisional Court. The error alleged in the Cross Notice was the rejection of the applicant's submission that the decision of the tribunal not to exercise its discretionary power to discharge the applicant was irrational. The other issue raised by the applicant before the Divisional Court referred to in the Cross Notice was that the reasons given by the tribunal for its decision were defective being neither...
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