X, R (on the application of) v Mental Health Review Tribunal

MR JUSTICE COLLINS: The claimant in this case, whom I shall refer to as "X", was convicted in 1988 of very serious offences, including homicide and grievous bodily harm, and was sentenced to an order under sections 37 and 41 of the Mental Health Act, the restriction order under section 41 being without limitation of time.

The mental disorder from which he was suffering was psychopathic disorder, which is defined in section 1(2) of the Mental Health Act as meaning:

He is at present in a secure unit. He has made an application to the Mental Health Review Tribunal for his release. This came before the Tribunal on 3rd April 2003. The Tribunal had before it a number of reports, both on behalf of the hospital and also on behalf of the claimant. There were reports from two psychiatrists and two psychologists, if I may put it this way, one on each side, and there were also the usual and necessary reports from social workers.

One of the major issues, and clearly one which was fundamental and potentially determinative, was whether at the date of the hearing the claimant was still suffering from mental disorder so that the conditions for detention in hospital existed.

The psychiatrist called on his behalf stated clearly that in his view the claimant was not so suffering. He says this in his report:

The psychologist who was treating the claimant at the unit was essentially of the same view in the sense that it was his clear recommendation that he did not need supervision, he did not need medication or monitoring for the possibility of relapse, and that he should qualify for an absolute discharge. He recognised that there might be other reasons, not least institutionalisation, which would make some sort of support desirable, but not because he was suffering from mental illness, and the same view was expressed by the psychologist who reported on behalf of the claimant.

The Secretary of State in his written submissions submitted that the claimant did still suffer from a mental disorder and that it was necessary that he be kept under some degree of supervision, even if the Tribunal decided to release him. What was said in a letter of 1st April 2003 was that in the light of the reports which the Secretary of State had considered, which included the reports which were before the Tribunal and all other previous medical evidence, he was satisfied that X continued to suffer from mental disorder and to require detention in hospital in order to continue with the treatment he was receiving, both to alleviate and prevent a deterioration in his condition and for the protection of others.

The responsible Medical Officer who was in charge of the claimant, was a Dr T. Dr T did not produce a report. Instead, there were three reports: the first in April 2002; an addendum in September 2002; and a final addendum dated 14th January 2003. The earlier reports had, as I understand it, been produced in relation to an earlier application to the Mental Health Review Tribunal. Thus, the up to date report, which was required by the rules, was that of 14th January 2003.

That was not produced by Dr T, but by a Dr B, who is described as "staff grade in forensic psychiatry". I am informed by Mr Simblet that he is now a Consultant, but at the time and indeed until earlier this year, he was acting under the general supervision, it would seem, of Dr T, who was the Consultant Forensic Psychiatrist in charge of the treatment of X and who was his RMO.

It is to be noted that Dr B indicates in his report, in the addendum on 14th January 2003, that he had discussed X's progress with the psychologist and with the approved social worker and also with Dr T.

The addendum does not in terms state whether or not the claimant was still suffering from mental disorder. It is, I suppose, implicit from the indication that X should continue to be tested with increasing degrees of freedom, subject to the continued stability of his mental state and behaviour, with the aim of working towards his first unescorted town leave and then being found suitable supervised accommodation to which he can be conditionally discharged, that indeed he was suffering from mental disorder.

But it is interesting to note that Dr B does not spell it out in terms, although it is perfectly clear that when he came to give evidence before the Tribunal, he did state that that was his view.

The Tribunal heard the appeal. It lasted from 2.30 until 7.15 in the evening and oral evidence was heard from six witnesses and the written reports, which are in the bundle, were also taken into account. The claimant was represented by Mr Simblet, who has appeared for him before me, and the authority was represented by Dr B.

Following the conclusion of the evidence and submissions made by Mr Simblet, and I assume also by Dr B, the Tribunal, not surprisingly, did not reach any immediate decision. Indeed, it would have been surprising if it had. Its obligation on the face of it was to give a determination within seven days, but what it did was to announce, very shortly after the hearing, that it proposed to adjourn the hearing to 16th May (that is this coming Friday) and they directed that Dr T should attend the adjourned hearing and, if he was unable to attend on that date, to let the Tribunal know immediately so that another date could be fixed.

The purpose of requiring his attendance was so that he could answer any questions that might arise on his report. The Tribunal also they requested the social workers to attend in order to update and answer any questions arising. They required a psychiatric report by Dr T to be submitted by 2nd May at the latest and the Secretary of State's statement in response to be submitted by 15th May.

They stated as the reasons for their decision as follows:

It is clear that the Tribunal has power to adjourn of its own motion. Rule 15 of the Mental Health Review Tribunal Rules 1983, SI 1983/946, provides as follows:

Then rule 16 provides:

I have not specifically considered whether the circumstances fall within rule 15(1), which refers to the power to call for further information before or during any hearing. It has not been submitted that the hearing had concluded at the time that the decision was made, but whether or not it fell technically within Rule 15, clearly it fell within the more general power under Rule 16(1), which entitles the Tribunal to adjourn at any time for the purpose of obtaining further information.

Again, it refers to adjourning a hearing, but it seems to me clear that the word "hearing" must embrace the proceedings before the Tribunal until it reaches its formal decision upon the matter, and in my view, although it is no doubt exceptional and, as we shall see, there were mistakes made in the manner in which the Tribunal went about adjourning the matter, it had power in law to do what it did.

Mr Simblet accepts, as indeed he has to, that the Tribunal as a general proposition has power of its own motion to adjourn for the purpose of obtaining information, even though the parties have decided not to put that information before it.

Mr Simblet has submitted that the process before the Tribunal is adversarial and essentially it is for the parties to decide what material is appropriate to be put before the Tribunal and in general the Tribunal must reach its decision on the basis of such material as the parties choose to place before it.

Mr Chamberlain has drawn my attention to some observations of Scott J in W v Egdell [1990] Ch 359, 375, where he stated that the nature of a hearing before a Mental Health Review Tribunal was inquisitorial, not adversarial, and he drew attention to the Rules, including Rule 15 -- but there are others -- which pointed in that direction; for example, one of the matters that occurs in proceedings before the Tribunal is that the medical member of the Tribunal examines the patient and takes such other steps as he considers necessary to form an opinion of the patient's mental condition and he has the right, if he thinks it necessary, to see the patient in private and to obtain medical records and investigate them. So he is, unusually perhaps, required by the Rules to form an independent view of the mental state of the patient. That is not on its face consistent with a purely adversarial process.

In my view, it is not particularly helpful to label the proceedings one way or the other. The reality is that there is clearly a public interest involved in the exercise. The burden is of course upon the authority to establish to the satisfaction of the Tribunal that the conditions for detention exist.

Nonetheless, in carrying out that function, the Tribunal will inevitably, and particularly in a case involving the release of someone who has committed a very serious offence, have regard to whether there is any danger to the public, and in undertaking its task, it must of necessity be concerned that it has before it all relevant information which will enable it to reach the correct decision in the circumstances of the individual case.

The Tribunal will normally rely upon the material that is put before it by the responsible bodies: on the one hand the authority and the Secretary of State, if the Secretary of State chooses to involve himself, as he can, and produce his own evidence; and on the other, such material and such reports as the patient chooses to present before the Tribunal.

But the Tribunal must clearly have to consider in every case whether there is a gap in the evidence which it requires to be filled in order to enable it to reach the right decision.

Having said that, it is equally important that there is no unnecessary delay. Detention is potentially contrary to Article 5 of the European Convention if it continues for no good reason, and in B v Mental Health Review Tribunal and the Secretary of State [2002] EWCH 1553 Admin, a case decided on 22nd July of last year, Scott Baker J made it clear that it was important that there should be no unnecessary delay. At paragraph 39, he said:

In C v London & South West Mental Health Review Tribunal [2002] 1 WLR 176, the Court of Appeal referred to the approach of the Strasbourg Court in Article 5.4 cases, observing that:

In B's case, there had been good reason for an initial adjournment in March 2001 but, for various reasons, the appeal had not been heard until October, and Scott Baker J, having heard the explanations, was clear that that was an unacceptable delay and that as a result there was a breach of article 5(4) and, as I understand it, B has since been awarded compensation for the detention which was wrongful.

So that is the other side of the coin, which the Tribunal has to consider: whether the inevitable delay, which would be occasioned by an adjournment, is one which is justified. What it boils down to is this. The Tribunal should not adjourn a case unless it regards it as necessary for the purpose of doing justice and of reaching the right result in a given case, and in deciding whether it is necessary, it will have to balance the need which it perceives for the extra information against any delay that that will occasion to the determination of the appeal before it.

If, but only if, that decision is one which can be regarded as wrong in law, because irrational within the meaning of that term, as applied in administrative law, can this court interfere.

What is equally clear, and this was established again by the decision in B, is that if the Tribunal is considering adjourning, it must inform the parties and seek and receive submissions on whether it ought to adjourn.

Mr Simblet complains, and complains justifiably in this case, that instead of the determination, what was received was a notification of an adjournment which came out of the blue. As far as he was concerned, the case had been argued and concluded. Nothing had been said, either before or during the course of the proceedings, by the Tribunal, which suggested that they regarded evidence from Dr T as necessary.

That, Mr Simblet submits, is surprising if the reality is that they regarded it, once they had discussed the matter between themselves briefly after the hearing, as necessary.

Furthermore, there is a real possibility, and indeed that possibility has been translated into actuality in this case, of unfairness if an adjournment is announced to a particular day without asking the parties whether that day is convenient.

The directions referred only to the need to hear Dr T and the social worker but, as Mr Simblet very properly points out, it is necessary for the claimant to be able to have his psychiatrist present to deal with any matters raised by Dr T if Dr T is to give evidence. Furthermore, it would be unfair if Dr T's were the last word, and there must be the opportunity of calling his own psychiatrist to rebut, if necessary, anything which was said by Dr T.

The problem is, he tells me, that his own psychiatrist is on holiday on Friday and may not be able to attend. Equally, a message has apparently been received that the social worker is not available on Friday, but it is not entirely clear whether that means the social worker required by the Tribunal or the social worker who was acting on behalf of the claimant. Be that as it may, that in itself may create problems, and the result may be yet further delay if it is necessary for there to be a further adjournment and that, submits Mr Simblet with some force, is potentially unfair. Indeed, it is for that sort of reason that it is necessary for the Tribunal, if considering adjournment, to seek submissions from the parties.

What clearly should have happened here was that the parties should have been notified that this is what the Tribunal proposed before the final decision was made.

However, the fact that there was a breach of procedural propriety in what was done does not of itself mean that the decision was itself one which must now be quashed.

I have to consider the position as it now is. The delay has occurred, but the Tribunal has indicated that it ought to hear from Dr T. Is that a decision which ought itself to be quashed?

Mr Simblet submits, on both fairness and substantive grounds, that it is. He has referred me to the evidence. He has made the point that Dr B has made it clear that he is speaking on behalf of Dr T in the sense that what he says has been approved by Dr T, and it is to be noted that in all three reports -- the original report and the two addenda -- Dr B uses the plural. He talks of "we", which is clearly to embrace the views of Dr T.

Mr Chamberlain has drawn my attention to a paragraph in the report of the psychiatrist called on behalf of the claimant in which he refers, under the heading of Documents Not Available at the Time of Writing this Report, as follows:

It is to be noted that he had apparently not received, when he made his report on 6th March, the addendum of Dr B, which is dated 14th January 2003. That is clearly an omission. He ought to have had that report by early March, but I recognise that sometimes reports are not served when they ought to be, and I am not intending by those observations to criticise in any way those responsible for giving the relevant documentation to the psychiatrist.

But the fact is he did not have that report and Mr Simblet submits that one should not read too much into that observation because, since he did not have any up to date report, the report of Dr B should have been sufficient to cover the matter. On the other hand, it does make the point that it is unusual in a case where there is a dispute about whether a mental disorder exists for the RMO not to produce a specific report and not to give evidence.

There is before me a statement from Judge Laurie, who chaired the Tribunal. He explains why the Tribunal decided to act as it did. He states that he decided that evening, it would seem, or very shortly thereafter, that it would be unsatisfactory to proceed to determine the application, or indeed to deliberate further, without hearing from the RMO. He subsequently spoke over the telephone to his colleagues, and both entirely agreed that it would be unacceptable in the light of the evidence that had been heard and in the circumstances of the particular case, and it was that that decided them to adjourn.

I, of course, have no transcript of the evidence that was before the Tribunal. Mr Simblet has assisted, because he was there, but it seems to me that it would be quite wrong for me to seek to go behind the views of the Tribunal that it was unacceptable to proceed without the evidence from Dr T.

They had Dr B. They had the indication that Dr B had liaised with and spoken to Dr T and that Dr T approved his report. On the other hand, as I have already indicated, there was no express conclusion with reasons why it was decided that the mental disorder continued, and of course there was a direct conflict between Dr B, if he was, as indeed inferentially he was, stating that mental disorder still existed, and the Consultant Psychiatrist called on behalf of the claimant.

Mr Simblet has submitted that it would be wrong for the Tribunal to seek as it were to obtain extra evidence to justify detention; that if the doctor they fielded was not as persuasive as the doctor who gave evidence on behalf of the claimant, it would be quite wrong for the Tribunal to seek to obtain further and better evidence from one side.

If that is all the Tribunal was doing, that would be wrong, but I cannot, and do not, make that assumption.

In any event, there may be circumstances where a tribunal -- and I am not suggesting it is necessarily this case -- takes the view that the doctor who gives evidence on one side or the other is unsatisfactory, but that there is an underlying concern that, although the witnesses is an unsatisfactory witness, the reality is that the witness is correct, but the Tribunal is not in a position to feel satisfied one way or the other.

In my judgment, having regard to the important public considerations on both sides -- that is that there should be no release of someone who is a potential danger; equally, there should be no detention of someone who ought to be released for any longer than necessary -- the Tribunal may be justified in seeking further evidence to sort out the true position.

But at all times, as I have sought to emphasise, the Tribunal must direct itself that it should only adjourn for that purpose if it regards it as necessary to do so in order to reach a just decision, or the correct decision in an individual case.

As Judge Laurie himself says in his statement at paragraph 65:

It is clear from that that Judge Laurie, and indeed his colleagues, were of the view that they could not reach the right decision unless they heard from Dr T.

I recognise the problems of ensuring that those acting on behalf of the claimant are available to deal with this fresh material.

Mr Chamberlain suggested that they really ought to have made representations immediately they heard of the adjournment if it was the case that there were difficulties or impossibilities in the witnesses attending. Indeed, the Tribunal itself in its order recognised the possibility that 16th May might not be a convenient date, although that of course was directed initially to the availability of Dr T, but it recognised that there might be a need for a change of date.

It is not fair to be overcritical because of course the main thrust of the claimant's case was that there should not have been an adjournment at all and there should have been a subsequent hearing, and they have obviously been preparing themselves for that. Nonetheless, it does seem to me that they ought to have sorted the position out sooner in case the application that they made to this court did not succeed.

As it is, as will be clear I hope from the reasons I have given, I take the view that it does not succeed. It seems to me that, even though there was a considerable amount of material before the Tribunal, in the light of the way Dr B was putting the matter, it was entitled as a matter of law to decide that it was unacceptable, which seems to me to be an indication of the correct approach. I use the word "necessary. "Unacceptable" seems to me to convey the same approach. In those circumstances, I take the view that there was no legal flaw in the decision that was reached.

I emphasise that this will be a very exceptional case. It obviously is undesirable in the extreme that a decision of this sort is made after the submissions and evidence have been concluded and when the parties believe that the case is over, but for the determination. It is perhaps surprising that it was not appreciated at an earlier stage that the absence of Dr T was unacceptable. It is indeed surprising that this was not raised at any stage during the hearing, but this can happen, and it is clear that it may be, and indeed it was the case here, that it was not until the Tribunal began to think about it afterwards that the penny dropped.

It seems to me that it would be quite wrong to prevent a full hearing of all necessary material simply because the penny did not drop until that late stage, but I do emphasise that this must be an exceptional case, and it will be rare in the extreme -- possibly this will be an unique case -- that it is considered appropriate for an adjournment to be directed at such a late stage.

Having said all that, I am afraid that I take the view that this application must fail and that the hearing should therefore go ahead on Friday, subject of course to the question of whether the claimant can produce his evidence.

If there has to be any further adjournment, it is vitally important that it is kept as short as possible. Equally, it is clear to me that the hearing on Friday, or whenever it takes place, must ensure that the claimant has the last word and the right to call any evidence to rebut, if necessary, the evidence given by Dr T. It is of course possible, because I have not seen, nor has Mr Simblet, Dr T's report, that he will be favourable to the claimant, but the assumption I imagine is that he will not.

Nonetheless, it obviously will depend on what he says and how he says it whether in the end it is considered necessary to call any evidence in rebuttal, but the Tribunal must be aware of the need to ensure in the circumstances that the claimant has a fair hearing and is able to put forward all that he wishes.

The problem undoubtedly will be that if at the end of the day the Tribunal find against him, there is a risk that he will feel that he has not been fairly treated overall, and that may possibly be damaging to his state of mind. That is something which the Tribunal must watch with the greatest of care in reaching its conclusions and in giving the reasons for those conclusions.

This obviously is not an easy case. It is a very serious case, because of the circumstances of the offending which led to the hospital order, and having regard to the length of the hearing and the amount of evidence, it may be that the Tribunal will take the view, and perhaps should take the view, that when it gives its reasons, they should be a little fuller than sometimes is the case with Mental Health Review Tribunals.

Otherwise, of course, I leave it to the Tribunal to set any timetable, if one needs to be set, merely making the observation that it must be as tight as possible to avoid any unnecessary further delay. The formal order, therefore, will be that this claim is dismissed.

MR CHAMBERLAIN: My Lord, I have no further applications.

MR JUSTICE COLLINS: No, I think that is right. Do you want the usual?

MR SIMBLET: Could I have CLS taxation, my Lord, yes?

MR JUSTICE COLLINS: You do not call it that now, but whatever you do call it, you can have it.

MR SIMBLET: My Lord, could I raise the issue of permission to appeal?

It may, so far as X is concerned, not be possible to convene any appeal before the 16th.

MR JUSTICE COLLINS: I think it is impractical.

MR SIMBLET: My Lord, that assumes of course that X is in a position to go ahead on 16th May, in which case it might not be impractical. You have heard that there are physical difficulties with X.

MR JUSTICE COLLINS: I am sorry. I forgot to mention those. You remind me and when I correct the transcript, I will add in that he also has the operation.

MR SIMBLET: I was not seeking to raise it.

MR JUSTICE COLLINS: No. You are quite right. I should have mentioned it and I meant to mention it, but omitted it.

MR SIMBLET: In terms of permission to appeal, there is a broader issue as to how one resolves the conflict, or the potential tension, between the Tribunal's power to call for further material and there being a burden and standard of proof in relation to discharge, which in my submission is an issue which, in the extended test for permission in part 52 -- in other words and I am taking note of your Lordship's judgment so I can turn up the pages -- there are two bases on which I seek permission. One is real prospect of success, and obviously counsel always finds himself in an invidious position submitting to a judge who has just --

MR JUSTICE COLLINS: No. I hope that I recognise that I can get it wrong.

MR SIMBLET: But in my submission it does raise an issue of broader importance in a way that I hope I formulated it in terms that there might be some other compelling reason why the appeal should be heard; in other words, an issue of principle that it is appropriate for the Court of Appeal to determine, rather than to be one of a raft of first instance decisions, like B and the other cases which your Lordship --

MR JUSTICE COLLINS: I do not think that I have decided anything which opens the door wider than it was perceived to be before. The test I have suggested is a pretty narrow one and a pretty rigid one.

Of course, this case depends largely on its own facts as to whether the test has been met. I did not understand you essentially to quarrel with the way I formulated the test.

MR SIMBLET: I do not quarrel with it. I quarrelled with your Lordship's application.

MR JUSTICE COLLINS: You quarrelled with the application, but that is fact, or rather that is dependent on the facts of this case and gives rise to no legal principle, and I do not think in those circumstances it is appropriate to grant leave to appeal.

You obviously have your right to go to the Court of Appeal but, as I say, I think that I have not adopted any, or put forward any, test which you consider to be wrong.

MR SIMBLET: The other --

MR JUSTICE COLLINS: Mr Chamberlain might think it is too narrow.

MR SIMBLET: I hope Mr Chamberlain does not (inaudible).

MR CHAMBERLAIN: (Inaudible) your Lordship will be pleased to hear.

MR SIMBLET: Very well.

The other point that arises, and again it is a consequence of the order that was made and reviewed, was that, particularly since your Lordship's judgment refers to Dr B's promotion, it may in fact be possible to identify X from that. I do not know. I am not somebody sitting there with a grievance who might have time on his hands to work it out, but for that reason, instead of referring to the doctors as T and B, it might be better to use some other letters that do not relate to their names.

MR CHAMBERLAIN: My Lord, if it assists, I believe that my colleague was not there at the part of the judgment in which the promotion was mentioned.

MR JUSTICE COLLINS: The judgment will say.

MR SIMBLET: The judgment is public, you see.

MR JUSTICE COLLINS: I know.

MR SIMBLET: It is not suggested that, while the newspaper may carry it only for a day or so, those who might as it were have violent intentions towards X -- if such people there are -- might have rather longer to put the jigsaw pieces together.

MR JUSTICE COLLINS: All right. When I correct the transcript, which will be the judgment goes out, I do not know whether I call them different initials, but I will do something which avoids --

MR CHAMBERLAIN: My Lord, without wishing to prolong the proceedings, we have changed the initial from M to X in the first place. The likelihood of someone having an interest --

MR JUSTICE COLLINS: I agree. I really think you are taking it a bit far.

MR SIMBLET: It is no good me saying afterwards, so I thought it important to discuss the point with your Lordship.

MR JUSTICE COLLINS: No. I fully understand.

MR SIMBLET: I can see dangers in it.

MR JUSTICE COLLINS: I understand. I will consider it, but I think probably we have gone as far as is necessary.

MR SIMBLET: Your Lordship has already made mention of the order. I presume your Lordship is also, by dismissing the claim, saying that the declaratory relief aspect should be dismissed?

MR JUSTICE COLLINS: Yes.

MR SIMBLET: I only raise it because it was conceded that --

MR JUSTICE COLLINS: What I am saying is that I do not think there is any need for a declaration because the judgment speaks for itself and it will be clear from the judgment that the way they went about it was wrong. I have made that clear.

So that means that if there had been an application for costs, one would obviously have borne that in mind and they certainly would not have got all their costs, even if they had got any, for that reason -- because things had gone wrong.

What I have said is:

Thank you both. It seemed sensible to dispose of this today, rather than go over.