SLL v (1) Priory Health Care and (2) Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | Thomas Church |
| Judgment Date | 18 October 2019 |
| Neutral Citation | [2019] UKUT 323 (AAC) |
| Docket Number | HMW/273/2019 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 18 October 2019 |
Neutral Citation: [2019] UKUT 323 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Thomas Church
HMW/273/2019
Appearances: Mr Pezzani (instructed by Duncan Lewis) for SLL; Ms Paterson for the Secretary of State.
Facts: SLL was detained under ss37/41 Mental Health Act 1983 in 2015 after being convicted of arson. The offending occurred in the context of a psychotic episode; he was also diagnosed to have a dissocial personality disorder. His ongoing detention was considered by a Tribunal in February 2018, the hearing taking place at a prison where SLL was detained on remand, facing a charge of violent disorder from events in hospital. The Tribunal granted a conditional discharge on the basis that the criteria for detention were no longer met (so requiring a discharge by reason of s73(1) and (2) of the 1983 Act, the former of which incorporates s72(1)(b)) but that it was not satisfied that it was not appropriate for liability to recall to remain, so requiring a conditional discharge (s73(2)). The decision was challenged: the central arguments for SLL were that the Tribunal, having determined that the nature and degree of SLL's disorder did not require liability to detention (s72(1)(b)(i)) because of the absence of psychotic symptoms and the lack of any need for detention for treatment of the personality disorder, erred in law by not considering whether treatment was necessary for the health or safety of the patient or others (s72(1)(b)(ii)) or whether appropriate medical treatment was available (s72(1)(b)(iia)). It was contended that those matters were relevant to the question of whether discharge should be conditional (ie with liability to recall) or absolute; and that the reasons were inadequate.
As the decision of the First-tier Tribunal dated 13 November 2018 under reference TR25377 involved the making of material errors of law, it is set aside pursuant to s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (the “TCEA”).
Since further facts need to be found the case is remitted to the Mental Health Review Tribunal for Wales for rehearing before a differently constituted panel pursuant to s12(2)(b)(i) of the TCEA.
1. The Appellant was convicted of the index offence of simple arson. On 26 October 2015 he was made subject to a hospital order with a restriction direction (under ss37 and 41 of the Mental Health Act 1983 (as amended) (the “MHA”)).
2. On 14 February 2018 the Appellant applied to the Mental Health Review Tribunal for Wales for a review of his section.
3. The Appellant's application was heard by a panel of the Mental Health Review Tribunal for Wales at a 2-day oral hearing on 5 and 6 November 2018 (the “Tribunal”). The hearing took place at HMP Cardiff where the Appellant was a remand prisoner awaiting trial on a charge of violent disorder alleged to have occurred while he was a restricted patient detained at Llanarth Court Hospital (“Llanarth Court”).
4. The Tribunal heard oral evidence from the Appellant and from 5 expert witnesses. It also considered extensive written evidence.
5. The Tribunal decided that the statutory criteria under s72(1)(b)(i) MHA were not met but it was not satisfied that it was not appropriate for the Appellant to remain liable to be recalled to hospital for further treatment. It produced a detailed written decision with reasons dated 13 November 2018 which ordered the Appellant's conditional discharge (the “Decision”). The Tribunal decided not to impose any conditions on the Appellant.
6. The Appellant applied to the Mental Health Review Tribunal for Wales for permission to appeal the Decision to the Upper Tribunal.
7. Judge Mark Powell QC, Deputy President of the Mental Health Review Tribunal for Wales, decided that, given the unusual circumstances of the case (including that the application was heard at HMP Cardiff) and given the complexities set out in the Tribunal's judgment, it was appropriate to grant permission to appeal so the issues could be argued before the Upper Tribunal.
8. The matter came before me and I directed an oral hearing, which was held at The Rolls Building, London on 13 September 2019.
9. At the hearing of the substantive appeal Mr Pezzani of counsel (instructed by Duncan Lewis) represented the Appellant. The First Respondent was not represented. Ms Paterson of counsel appeared for the Second Respondent. I am grateful to both counsel for their clear and helpful submissions.
10. While the Appellant's permission application to the Mental Health Review Tribunal for Wales listed 5 grounds of appeal, for the purposes of the substantive appeal before me Mr Pezzani boiled them down to 2: first, the Tribunal failed properly to apply the 2-stage process required by s73 of the MHA and second, the Tribunal failed to give adequate reasons for its decision.
11. Mr Pezzani argued that the Tribunal erred because once it had decided that the criterion set out in s72(1)(b)(i) MHA was not met (and that it was therefore obliged to discharge the Appellant) it failed to go on to consider whether subss(1)(b)(ii) and (1)(b)(iia) were also satisfied.
12. The Appellant's case was that it was necessary in this case for the Tribunal to determine:
a. whether it was necessary for the health or safety of the Appellant or for the protection of other persons that he should receive medical treatment; and
b. whether appropriate medical treatment was available for him, because these matters were relevant to the exercise of its discretion to decide whether it was appropriate for the Appellant to remain liable to be recalled to hospital for the purpose of further treatment.
13. Mr Pezzani argued that the Tribunal erred in failing to give “adequate and intelligible” reasons for its decision, identifying 2 particular instances of the Tribunal failing to address evidence or argument which was relevant and which was material to the decision it had to make.
14. The Appellant asked me to set aside the Decision and to remit the matter to the Mental Health Review Tribunal for Wales for re-hearing by a differently constituted panel.
15. The First Respondent was aware of the hearing but opted not to be represented at the hearing and to make no written submissions either. It adopted a neutral position, neither supporting nor opposing the appeal.
16. In relation to the ground relating to the “2-stage test” the Second Respondent argued that the words of s73 subss(1) and (2) MHA were incapable of supporting the interpretation placed upon them by the Appellant, which would require the Tribunal to anticipate the circumstances in which an applicant may be recalled and to make findings as to the basis for his resulting detention. The Second Respondent's case was that such an assessment could only be made at the time of recall in the light of the Appellant's presentation at that time, and not before.
17. In relation to the Appellant's inadequacy of reasons arguments, Ms Paterson for the Second Respondent argued that the Appellant sought to set the bar for adequacy of reasons too high, especially given the realities of the task which the Tribunal had to undertake and the time and resources available to it. She invoked a line of authority which emphasizes the importance of appellate courts and tribunals showing due deference to first instance expert tribunals who have heard the evidence. The Second Respondent's case was that the reasons given for the Tribunal's decision comfortably met the standard of adequacy.
18. The Second Respondent opposed the appeal and asked me to uphold the Decision.
19. The Tribunal's jurisdiction in the case of a detained restricted patient is governed by s73 of the Mental Health Act. Subsections (1) and (2) of s73 MHA import the criteria in s72(1)(b) MHA.
20. Section 73 MHA provides:
Power to discharge restricted patients
“73(1) Where an application to the appropriate 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 the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if —
(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and
(b) the tribunal is 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 subjection does not apply,
the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(4) Where a patient is conditionally discharged under this section –
(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal or at any subsequent time by the Secretary of State.
(5) The Secretary of State may from time to time vary any condition imposed (whether by the Tribunal or by him)...
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SLL v (1) Priory Health Care and (2) Secretary of State for Justice
...v (1) Priory Health Care and (2) Secretary of State for Justice [2019] UKUT 323 (AAC) IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Case No. HMW/273/2019 Before Thomas Church, Judge of the Upper Tribunal Decision: As the decision of the First-tier Tribunal dated 13 November 2018 unde......