SAM Gisagara v The Upper Tribunal (Administrative Appeals Chamber)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 16 February 2021 |
| Neutral Citation | [2021] EWHC 300 (Admin) |
| Date | 16 February 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/776/2020,Case No: CO/776/2020 |
[2021] EWHC 300 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Steyn DBE
Case No: CO/776/2020
The Queen - on the application of -
and
Chris Buttler (instructed by Campbell-Taylor Solicitors) for the Claimant
David Lawson (instructed by Hempsons Solicitors) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 11 February 2021
Approved Judgment
The Claimant seeks permission to challenge a decision of the Upper Tribunal (Administrative Appeals Chamber) made on 4 February 2020 (“the UT decision”) refusing permission to appeal to the Upper Tribunal against a decision of the First Tier Tribunal made on 25 July 2019 (“the FTT decision”).
The Claimant was detained under s.3 of the Mental Health Act 1983. It is unnecessary, in this permission decision, to detail his long history of compulsory detention in psychiatric hospitals in the UK and abroad, and numerous conditional discharges. In October 2018 the Claimant was discharged on a Community Treatment Order (“CTO”). He was recalled to hospital and had his CTO revoked in March 2019 and again in May 2019. The hearing before the FTT took place as a result of those revocations.
At the time of the hearing before the FTT, the Claimant's responsible clinician had sent him home on s.17 leave and she intended to discharge him imminently on a further CTO. The FTT found that there was compelling evidence that the imposition of a CTO was an “essential precondition” to his discharge because without this legal framework the Claimant would not accept his anti-psychotic medication and without that treatment his mental health would soon deteriorate again.
As this is a claim for judicial review of an Upper Tribunal decision, CPR 5.7A applies. CPR 5.7A(7) provides:
“The court will give permission to proceed only if it considers —
(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and
(b) that either—
(i) the claim raises an important point of principle or practice; or
(ii) there is some other compelling reason to hear it.”
The application for permission was listed for an oral hearing, pursuant to the order of Freedman J dated 29 December 2020 on the grounds that the arguments are “ sufficiently substantial to merit further consideration at an oral hearing”.
In his statement of facts and grounds, and his skeleton argument, Counsel for the Claimant, Mr Buttler, identified the important point of principle as being a conflict of authority as to whether the criteria in the Mental Health Act 1983 for discharging patients from psychiatric detention mirror the criteria for admission. The Court of Appeal held that they do not in R (Canons Park Mental Health Review Tribunal ex p A [1995] QB 60. Whereas the House of Lords came to the opposite conclusion in relation to the equivalent provisions in the Scottish Mental Health Act in Reid v Secretary of State for Scotland [1999] 2 AC 512. The House of Lords declined to follow Canons Park, but as the Mental Health Act 1983 (i.e., the Act that applies to England and Wales) was not before the House of Lords in Reid, Canons Park could not be overruled.
The Interested Party's statement of grounds, although opposing the grant of permission, submitted that the FTT was bound by Canons Park and could not lawfully follow the House of Lords' approach in Reid. If that were the case, it would provide strong support for the Claimant's contention that there is an important conflict of authority that requires to be resolved.
However, in his skeleton argument and at the hearing Counsel for the Interested Party, Mr Lawson, refuted the contention that there is an ongoing conflict of authorities, drawing attention to two cases in which the Court of Appeal has followed Reid rather than Canons Park.
The doctrine of precedent means that the Court of Appeal cannot depart from any of its own decisions unless one of the three exceptions to the rule identified in Young v Bristol Aeroplane Co Ltd [1944] KB 718 applies. The exceptions are:
i) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
ii) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.
iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
In R (H) v North & East London Mental Health Review Tribunal [2002] QB 1 the Court of Appeal held that the “ criteria that the tribunal has to consider on an application under section 73 are the same criteria that have to be satisfied before a patient can be admitted under section 3” (Lord Phillips MR giving the judgment of the Court at [15] and [20]). The Court of Appeal's attention was drawn to both Canons Park and Reid. In following Reid, the Court of Appeal must, unsurprisingly, have considered that the second of the Young v British Aeroplane exceptions applied.
In R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2002] QB 235 Lord Phillips MR referred at [17] to Counsel's attack on a decision of Laws J that there was no cross-reference between the section 3 regime and the tribunal's functions under sections 66 and 72(1). He said:
“17. …[Counsel] submitted that the decision of the House of Lords in Reid v Secretary of State for Scotland [1999] 2 AC 512, which relates to provisions of the Mental Health (Scotland) Act 1984 which are essentially identical to those of the Mental Health Act 1983, demonstrates that the criteria for admission under section 3 and discharge under section 72 mirror one another.
18. This is plainly correct.”
Again, the Court of Appeal was made aware of the conflicting authority of Canons Park and may be taken to have applied the second exception.
In B v Secretary of State for Justice [2012] 1 WLR 2043 Arden LJ (with whom Moses and Maurice Kay LJJ agreed) said at [25]:
“The conditions referred to in section 73(1)(a) mirror the detention criteria in section 3. As Roch LJ put it in his dissenting judgment in R v Canons Park Mental Health Review Tribunal, Ex p A [1995] QB 60, 77, cited with approval by Lord Hope of Craighead in Reid v Secretary of State for Scotland [1999] 2 AC 512, 528, it is evident from section 72 that: “The policy of the Act, in relation to patients with psychopathic disorders, is treatment not...
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