SM v Livewell Southwest CIC
| Jurisdiction | UK Non-devolved |
| Judge | Sarah Johnston,UTJ Christopher Ward,Nicol J |
| Judgment Date | 12 June 2020 |
| Neutral Citation | [2020] UKUT 191 (AAC) |
| Docket Number | HM/1690/2019 (V) |
| Year | 2020 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Neutral Citation: [2020] UKUT 191 (AAC)
Judges: Nicol J, UTJ Christopher Ward, Judge Sarah Johnston, DCP (HESC)
HM/1690/2019 (V)
Court and Reference: Upper Tribunal (AAC),
Facts: SM, who was detained under s2 Mental Health Act 1983, applied under s66 for a Tribunal to exercise its powers of discharge under s72: the statute allows 1 application per period of detention. She had the support of an Independent Mental Health Advocate, though he was not present when the Tribunal met. The Tribunal found that she did not have capacity to make the application at the time it was made and so struck it out. An alternative course of adjourning was rejected as impractical because, amongst other things, SM was about to give birth and be moved to a Mother and Baby Unit; the Tribunal noted that the Secretary of State could be asked to refer the case to a Tribunal under s67. Permission to appeal was granted and the matter was referred to a 3-judge panel of the Upper Tribunal.
Appearances: C Cuddihee (instructed by Alan Harris Mental Health solicitors) for SM; N Allen (instructed by Enable Law) for Livewell
The appeal is dismissed.
Nicol J and UTJ Ward:
1. This is an appeal against the decision of the First-tier Tribunal (‘F-tT’ or ‘the Tribunal’) composed of Judge Mostyn Evans, Dr Charles Montgomery, the medical member, and Mrs Carey Burton, specialist lay member dated 24 May 2019.
2. As required, we record that this was a remote hearing which had been consented to by the parties. The form of remote hearing was V (Skype for Business). A face to face hearing was not held because it was not practicable due to public health constraints and all issues could be determined in a remote hearing. The documents that we were referred to are in an electronic bundle, filed by the Appellant's solicitors on 11 May 2020, plus a copy of a checklist addressing the Appellant's s132 rights (see below), provided subsequently at the request of the panel. The Upper Tribunal's decision is set out above.1
3. The appeal had originally come before UTJ Ward, sitting alone, in Exeter on 2 December 2019. On establishing that the Appellant's grounds did entail a direct challenge to the correctness of the decision in VS v St Andrew's Health Care[2018] MHLR 337, with the agreement of both counsel he adjourned the appeal to enable the Chamber President, Farbey J, to consider whether to direct that the case be heard by a 3-judge panel. On 9 January 2020 the Chamber President did so direct, considering that the case involves an important point of principle.
4. It is often unfortunately the case that respondents are unrepresented in these appeals and we appreciated the fact that this was not so in the present appeal. We are very grateful to Mr Cuddihee and Mr Allen for their written and oral submissions.
5. The Appellant had applied to the F-tT to challenge her admission under Mental Health Act 1983 (‘the MHA 1983’) s2 for assessment, as a result of which she had been detained in the hospital. Her application was pursuant to the MHA 1983 s66(1)(a). The F-tT decided that the Appellant had lacked capacity to make the application when she had made it on 15 May 2019. The Tribunal therefore struck out the application pursuant to Tribunal Procedure (Health Education and Social Chamber) Rules 2008 (‘the F-tT Procedure Rules’) SI 2008 No 2699 r8(3) which says:
‘The Tribunal must strike out the whole or part of the proceedings if the Tribunal
(a) does not have jurisdiction in relation to the proceedings or part of them…’
6. With immaterial exceptions, from decisions of the F-tT there is a right of appeal on a point of law to the Upper Tribunal. Permission to appeal is necessary – Tribunals, Courts and Enforcement Act 2007 s11.
7. On 25 June 2019 F-tT Judge Dumont granted the Appellant permission to appeal. He did so on different grounds than had been raised by the Appellant. However, before explaining those grounds, it is convenient to set out more of the factual and legal background.
8. In view of the human rights issues which had been raised by Judge Dumont in granting permission to appeal, the Secretary of State for Health was offered the chance to participate, but he chose not to do so.
9. The Appellant was born on 23 May 1993. According to the medical report prepared on 22 May 2019 by Dr Gibson, a ST4 Psychiatry doctor working under the responsible clinician, Dr Cooper, who is a consultant psychiatrist, the Appellant suffers from paranoid schizophrenia.
10. Dr Gibson records that the Appellant had 1 previous spell in a psychiatric hospital. That had been in 2016.
11. On 7 May 2019, the Appellant was detained for assessment at the Bridford Ward of the Glenbourne Unit under s2 of the MHA 1983. The Glenbourne Unit is run by the Respondent.
12. The application for her admission to the hospital under s2 of MHA 1983 was dated 7 May 2019. It was supported, as required, by the opinion of 2 doctors: Dr Ishaan Gogaz and Dr Leanne Tozer (who were both approved under s12 MHA 1983).
13. At that stage, the Appellant was heavily pregnant. It was estimated that by 25 May 2019 she would be 36 weeks into her pregnancy. The hospital recognised that it would be desirable for her to be transferred to a Mother and Baby Unit, but at the time of the hearing before the Tribunal there was no available space.
14. The nursing report (dated 20 May 2019) gives some further background to the circumstances of her admission to hospital. This followed deterioration in her mental health. As the nursing report commented
‘Her support network of her mental health professionals, her mother and father and her community midwife had concerns regarding her mental health and her vulnerability.’
The baby's father was not included in ‘her support network’ and elsewhere in the nursing report it is mentioned that he and she were no longer together.
15. The nursing report also noted that she was unwilling to have contact with her parents. It also said that physical intervention had sometimes been necessary to administer prescribed drugs — Lorazepam and Olanzapine. At one point the nursing report observed, ‘she would like to be discharged.’
16. As we have said, she made an application to the F-tT under the 1983 Act s66(1)(a) on 13 May 2019 (the form was dated 23 May, but the Tribunal accepted that was an error). The application was received by the Tribunal on 15 May 2019.
17. In preparing for the tribunal hearing she had the support of Mr Rob Houghton, who was an Independent Mental Health Advocate (‘IMHA’), appointed under MHA 1983 s130A-130C.
18. The MHA 1983 s132 places an obligation on the Respondent to take steps to explain to a detained person (among other matters) under what powers he or she is being detained and the available remedies for challenging their detention. The Code of Practice issued under MHA 1983 s118 develops the content of the obligation (see eg para 4.15). The evidence about what had been done in the present case, and when, was somewhat equivocal. We were shown the form that had been completed in relation to the Appellant. Question 22 on the form asked whether s132 rights had been successfully completed. It seems in the Appellant's case they had not because a date when they were to be re-attempted was given. This was 26 May 2019 which, as it happened, was after the F-tT hearing. However, Questions 2 and 6, which dealt respectively with explaining the section under which the Appellant was detained and the right to apply to the Tribunal had been ticked, indicating (according to the rubric at the top of the form) not merely that information had been imparted, but that the patient understood. It may therefore be that the reasons why s132 rights required to be re-attempted was because of other information requiring to be imparted and understood that is not relevant for present purposes. However, the only clear date on the form is 22 May 2019 (ie well after the application to the Tribunal was made). Entries in the care plan on this particular issue are limited and appear unclear as to the date as of which they are speaking while the very brief entry on the admissions documentation dated 7 May 2019 records that the Appellant was informed of her rights but gives no indication whether or not she understood them.
19. On 22 May 2019, the nature of the Appellant's detention changed. Thereafter she was detained for treatment pursuant to MHA 1983 s3 (instead of for assessment under s2). No one suggested that this change affected the power of the Tribunal to consider her application (although the justification for her detention would need to be considered against the conditions in s3). We return below to the law on this matter.
20. On 23 May 2019, Dr Montgomery, the medical member of the Panel, conducted a pre-hearing examination of the Appellant, as required by r34 of the F-tT Procedure Rules.
21. The hearing by the Tribunal took place on the following day, 24 May 2019. The Appellant was represented, then as now, by Mr Cuddihee. The responsible authority, Livewell Southwest, was not then represented.
22. Dr Montgomery reported to the Panel that from his pre-hearing examination he found the Appellant to have a
‘very limited understanding that she was detained under the Mental Health Act 1983 or that the Tribunal was a body which will be able to decide whether she could be released. Indeed, he could find no evidence that she was able to understand either of these points.’
23. Dr Gibson told the Tribunal that the Appellant:
‘did not and has never had during her admission the ability to understand what a mental health review tribunal means. He said she did not fully understand what...
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SM v Livewell Southwest CIC
...v Livewell Southwest CIC [2020] UKUT 191 (AAC) IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Case No HM/1690/2019 (V) Before: The Hon. Mr Justice Nicol (sitting as a Judge of the Upper Tribunal); Upper Tribunal Judge Christopher Ward; Judge Sarah Johnston, DCP ( HESC ......