RH v South London and Maudsley NHS Foundation Trust (Restriction Order) [Upper Tribunal (Administrative Appeals Chamber)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 08 February 2010 |
| Date | 08 February 2010 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2010] UKUT 32 (AAC)
Upper Tribunal (Administrative Appeals Chamber), M/695/2009
UT Judge Rowland
R Dunlop (instructed by Steel &Shamash) for H; the Respondents did not appear.
Whether a Tribunal decision not to lift a restriction order was adequately reasoned.
In 1978, RH was made subject to hospital and restriction orders for the manslaughter of his children. He was conditionally discharged in 1986, recalled in 1997 after sending threatening letters to various professionals (after seeing a report that described his crimes as "murder"), and again conditionally discharged in 1998. In June 2008, he applied under s75 Mental Health Act 1983 to have the restriction order lifted; he had support from his responsible clinician, social worker and an independent psychiatrist, but there was opposition from the Secretary of State. The Tribunal rejected the application, finding that liability to recall was not shown to be inappropriate as RH continued to have a personality disorder and the arrangements under the conditional discharge provided significant assistance to his ability to cope, including in relation to potential problems from gambling and alcohol, although it was accepted that he was unlikely to commit a further serious offence. RH appealed, arguing that the Tribunal's reasons were inadequate in light of the unanimous support for the lifting of the restriction order in the evidence. The respondent hospital did not appear; the Secretary of State made no submissions on law.
Decision: This appeal is dismissed.
Reasons for Decision:
1. The Appellant, who was aged 60 at the time of the hearing before the First-tier Tribunal, killed his 2 young children at home in October 1977. The elder, aged 9, he poisoned and then drowned in the bath. The younger, aged 5, he poisoned on the following day and then suffocated. Eight days later he attempted suicide by poisoning and it was following that that he was arrested. On 14 March 1978, he was convicted on 2 counts of manslaughter and hospital orders and restriction orders were imposed under the Mental Health Act 1959. He was admitted to Broadmoor Hospital on 6 April 1978 and transferred to Ashworth Hospital for administrative reasons in 1983. On 19 March 1986, he was conditionally discharged from Ashworth Hospital.
2. On 26 November 1997, he was recalled to hospital, after sending threatening letters to his probation officer and to mental health professionals involved in his treatment, and he was admitted to a secure unit in London, in circumstances that were described by the First-tier Tribunal (see below). On 4 November 1998, he was again conditionally discharged by a mental health review tribunal and he has not been recalled to hospital since then.
3. On 11 June 2008, the Appellant applied to a mental health review tribunal for a direction under s75(3)(b) of the Mental Health Act 1983 ("the 1983 Act") that the restriction order imposed on him should cease to have effect so that he would cease to be liable to be detained pursuant to the hospital order.
4. On 3 November 2008, mental health review tribunals in England were absorbed into the First-tier Tribunal. On 18 November 2008, the First-tier Tribunal considered the Appellant's application and rejected it, despite the fact that the application was supported by the responsible clinician who had been treating the Appellant, his social worker and an independent psychiatrist. Only the Secretary of State had opposed the application.
5. In view of the grounds upon which the First-tier Tribunal's decision is challenged, it is desirable to set out a large part of the statement of reasons. After referring to R (SC) v Mental Health Review TribunalMHLR[2005] MHLR 31 and recounting the early history of the case, the tribunal continued -
"7. He was recalled to the [hospital] by warrant of the Secretary of State dated 24 November 1997. The circumstances leading to that were that in November 1997 [the Appellant] saw a report written by his social supervisor describing [the Appellant] as 'murdering' his 2 children. [The Appellant] became angry and showed that by repeatedly sending faxed aggressive letters to the social work department. Over the weekend of 23/24 November [the Appellant] sent a fax message to his psychiatric supervisor criticising his social supervisor and naming a member of the Mental Health Unit. Later the same member of staff at the Mental Health Unit received a threatening fax message from [the Appellant]] reminding her of the details of his index offences and warning her to recall him or he would 'respond in kind', either to her or her supervisor. In addition some of the threats made indicated that [the Appellant] had been drinking heavily which was a feature of the index offences in 1977.
8. On the evidence of Dr Hukin, the Responsible Clinician, we find that [the Appellant] continues to suffer from mental disorder consisting of a personality disorder with mainly features of borderline type with some dissocial traits. He has a history of abnormal emotional development dating from early adolescence marked by anxiety concerning his body and confusion in relation to sexuality, and difficulty with interpersonal relationships. In the past he has marked feelings of inferiority and a tendency to use grandiose conversational style. Gambling and alcohol remain persistent problems.
9. We are not satisfied that it is not appropriate for [the Appellant] to remain liable to be recalled for the following reasons.
10. [The Appellant] continues to suffer from mental disorder of the nature and degree described above and the index offences were among the most serious possible offences.
11. He was subject to recall from conditional discharge in 1997 in circumstances that gave rise to serious anxiety as to the safety of members of the public and in response to appeals by [the Appellant], accompanied by threats, to be recalled.
12. Since his conditional discharge his life has not been without difficulties. He has been able to cope but we are satisfied that the support he received under his conditional discharge was very important to his capacity to cope.
13. Although both members of his present support team, Dr Hukin and Mr Oguntoyinbo, support absolute discharge, their evidence, both written and oral, was that [the Appellant] is well supported in his present arrangements and, even more important, benefits from that support and related support such as the availability of the services of Dr Hillier-Davies. [The Appellant] in his evidence confirmed all of that.
14. The report of the independent psychiatrist, Dr Boast, states as follows:
'5. In conclusion it can never be said that someone is not a risk. Individuals who kill have a higher risk of killing again than the general population. On the other hand … [the Appellant] falls into a group of restricted patients who are relatively unlikely to seriously re-offend again.
6. In addition he seems to appreciate that not being on a restriction order is not the same thing as not having input from a psychiatric team. He is someone who should have ongoing indefinite input because there is an element of vulnerability and he could have the sort of difficulties in the future that he had had since he left hospital; in 1989.'
We accept all of Dr Boast's analysis of [the Appellant's] position but do not share his conclusions. We agree that [the Appellant] is 'relatively unlikely to seriously offend again' but we cannot conclude from that that it is not appropriate for him to be liable to recall. We agree also that he continues to have vulnerabilities that may well entail the necessity of psychiatric intervention and, we would say, possible recall.
15. We have considered all the evidence before us very carefully and are satisfied that although, with his present level of support under his conditional discharge, [the Appellant's] condition is stable, it can, at most, be said, as Dr Boast states, that 'he is relatively unlikely to seriously offend again'. We bear in mind the index offences and the circumstances that led to his recall in 1997 as set out in para 7 above. He is a man with continuing vulnerabilities.
16. Our conclusion is that there remains a real risk to the public and to [the Appellant] from his mental disorder with an attendant risk of his recall to hospital.
17. We consider that the present conditions (modified earlier this year by the tribunal in its decision of 27 May 2008), meet any such risk admirably and with those conditions in place such risk is minimised. We conclude that it is desirable to continue the present conditions and that is our order."
6. The Appellant now appeals against that decision under s11 of the Tribunals, Courts and Enforcement Act 2007 with the permission of a Regional Judge of the First-tier Tribunal. The appeal is unopposed - a matter about which I will make further observations below - but the absence of any effective submission from anyone other than the Appellant does not remove from me the burden of considering the merits of the Appellant's case.
7. Although 3 numbered grounds of appeal are advanced, there are really only 2, because, as Mr Dunlop, who appeared on behalf of the Appellant, accepted, the second numbered ground (irrational failure to deal adequately or at all with the medical and social work evidence) is merely an aspect of the first (inadequate...
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