A, R (on the application of) v Secretary of State for the Home Department & Anor

MR JUSTICE STANLEY BURNTON: This is an application on behalf of a lady to whom I shall refer as "A" (there, is I think, an application for anonymity and that will be granted) for permission to apply for relief in respect of a Mental Health Review Tribunal hearing due to take place in four days' time; that is to say on Friday 14 February. The claimant is the subject of a restriction order. She appeared before a Tribunal in September 2001. The Tribunal made an order for her conditional discharge. Its decision is set out at pages 27 to 30 of the bundle. Its reasons are set out at pages 29 and 30. From those reasons one sees (a) what the diagnosis of her mental illness was; (b) to some extent its symptoms; and (c) the then views of the psychiatrist whose evidence was before the Tribunal. That evidence included the evidence of her RMO, Dr Warren, and of an independent psychiatrist, Dr Mikhail. There was also evidence from her approved social worker, Miss Martin. They were then unanimous that the claimant did not need to remain in hospital for treatment and, indeed, it was counter-productive that she should do so, and that she could appropriately be transferred to an appropriate hostel. The decision reads:

The evidence before me, I have to say, is unsatisfactory in a number of respects. One would like to know, even for the purposes of this hearing, what happened in the interim and what medical evidence is likely to be available to the Tribunal on Friday, or at least what the latest medical evidence is in relation to the claimant. The impression I have from Mr Bowen is that the RMO is of the view that there has been a deterioration in her mental state, such that her discharge is no longer appropriate, but that is to a significant extent speculative, since, as I say, I have not seen any evidence from the RMO, who has, in any event, changed. Nor do I know whether suitable accommodation, approved by the RMO, was ever identified, and, if it was, why the claimant did not move into it.

Since the last proceedings the claimant has moved from the hospital in Hampshire to one in Berkshire. Hampshire is within the area of the London South Mental Health Review Tribunal; Berkshire is in the jurisdiction of London North. In June of last year the Home Secretary referred the claimant's case back to the Tribunal, for consideration by it, pursuant to section 71(1) of the 1983 Act. The effect of the Act, in the view of the Secretary of State and the Tribunal and, in particular, of the making of the reference under section 71 was that, when the matter would come before a Tribunal for consideration, the original decision would be deemed to be revoked and the Tribunal would look at the matter afresh. That was perceived as unfair by the claimant and was one reason why the present proceedings were begun. That matter has been resolved because the Secretary of State, by letter dated 7 February 2003, withdrew his referral to the Tribunal.

The position now is, therefore, that the Tribunal is due to consider the claimant's application, not pursuant to section 71, but by reason of its power and duty to monitor the implementation of orders for deferred conditional discharge as explained by the Court of Appeal in the cases of R(C) v Secretary for State for the Home Department, [2002] EWCA Civ 647 and R(IH) v Secretary of State for the Home Department and another [2002] 3 WLR 967, to which I have been referred. In neither IH nor C did the Court of Appeal consider expressly the membership of a Tribunal which is to monitor and continue to consider a deferred conditional discharge.

These present proceedings have been continued by the claimant, notwithstanding the withdrawal of the section 71 application, because the Tribunal which is to sit on Friday will not consist of the same members as those who heard her original application. She feels it is unfair for her case to be considered by a wholly new Tribunal. She feels, therefore, that the Tribunal is acting unfairly and should not hear her case with the constitution that is now proposed.

There have been, in fact, two changes since the last hearing so far as the constitution of a Tribunal is concerned. The first I have already referred to: the transfer of the claimant from Hampshire to Berkshire, which involves a transfer from one Tribunal area to another Tribunal area. The second is that the chairman of the Tribunal which heard her case in September 2001 has retired. She is, therefore, unavailable to hear the application in respect of the claimant, whether on Friday 14 February or any other date.

The questions which arise in the present case are (1) whether, arguably, the claimant has a right to have her case considered by, so far as possible, the same members as heard her original application; and (2) if it is so arguable, whether there are qualifications to that right and, if so, what; and (3) whether it is right to grant relief by way of a stay on the material before the court today.

In my judgment the questions I have to consider other than the last are essentially covered by the Mental Health Review Tribunal Rules 1983. There are two rules of particular relevance: rules 8 and 17. Rule 8 is as follows:

I have to say that, for a case which has been considered provisionally by a Tribunal and is to be reconsidered by it, to be described as a class or group of proceedings is not a natural use of the words "class or group". There is really one proceeding. That it is right to draw a distinction between a class or group of proceedings on the one hand and a proceeding which is continuing because it has not been finally disposed of is supported by paragraph 4 of schedule 2 to the 1993 Act, which refers to the members who are to constitute a Mental Health Review Tribunal for the purposes of "any proceedings or class or group of proceedings under this Act" to be appointed by the chairman of the Tribunal. That paragraph clearly envisages that proceedings are not necessarily the same as a class or group of proceedings.

In my judgment this is not a case of a class or group of proceedings at all. These are proceedings which have not been finally disposed of and, therefore, apart from the transfer of jurisdiction, would be the subject of rule 17(1).

The application of rule 17, however, is complicated because there has been a transfer of the patient from one jurisdiction to another. Rule 17(2) is as follows:

The rule requires notice of the transfer of proceedings to be given to the parties. I am told that that notice was given orally. Whether the transfer of proceedings referred to was the transfer of the proceedings as they will now be, or the section 71 proceedings, is contentious, but it seems to me that the difference is effectively formal. The claimant and those advising her have known for some time that the Tribunal dealing with her case is to be the London North Tribunal, and there is nothing in the notice point which would lead me to order a stay of proceedings. I cannot see that, if there has been any defect in notice, it would make null that transfer of jurisdiction.

The question then arises whether rule 17(1) applies in that situation. On one view rule 17(2), if it arises, precludes the application of rule 17(1). Rule 17(1), in a sense, confers on a patient, or indeed on the Secretary of State and the hospital, a defeasible right to maintain the same constitution of a Tribunal throughout proceedings. The reasons, no doubt, are in part practical: if the members of the Tribunal have previously been apprised of a case, they can more quickly apprise themselves of the matters necessary for a review of a previous decision. Partly, it is a matter of the perception of fairness on the part of the patient and a perception of continuity, both of which are desirable; that is to say, the patient should not see his or her case chopping and changing from one tribunal member to another.

It is submitted by Miss Laing that the effect of rule 17(1) is that, where one member of the Tribunal cannot sit on a reconvened hearing, it follows that 17(1) does not apply at all. I do not accept that interpretation of rule 17(1), which contains no such qualification. The basis of rule 17(1) is that it is desirable for there to be, so far as practicable, a continuation of the constitution of a Tribunal. It is true that the chairman for Friday's hearing will have to get himself up to speed as to the matters to be considered and the matters that were before the Tribunal on the last occasion, but the fact that one member of the Tribunal has to do that does not necessarily mean that all three should. In cases where members of a Tribunal who hear the case of a patient who transfers from one jurisdiction to another do not sit in that second jurisdiction and are not available to sit in it, rule 17(1) will have the effect that an entirely new constitution will be required. Where, however, that is not the position, I do not see why rule 17(1) should not be applied by the chairman of the Tribunal into whose jurisdiction the patient has come.

The question, therefore, is whether rule 17(1) permits the creation of a new constitution in the present case. The matter is regrettably complicated by the fact that until very recently, last Friday, this was a section 71 case and, therefore, it appeared plain that the hearing was to be of a fresh application. That is no longer the case. The only material before me as to the application of the criteria laid down by rule 17(1) is a letter of 31 January 2003 from the Treasury Solicitor on behalf of the Tribunal. It says:

The matter can be taken somewhat further. The question for the Tribunal on Friday is whether there has been a material change of circumstances since the decision of September 2001, so as to require either an alteration in the conditions then fixed by the Tribunal, or the revocation of the conditional discharge, or the making of an order for absolute discharge. Where a relatively short time has passed between the original decision and its reconsideration, the advantages and the fairness involved in requiring the original constitution to reconsider the matter must be greater than when a considerable time has passed. One must bear in mind that the members of a Tribunal will have heard many other cases in the last 15 months and that, apart from that, the medical member is likely to have other activities which will have occupied him, as, indeed, will the lay member. Neither of them can be expected to retain a clear recollection of the case as it was before them. Both of them will rely on the written decision of the Tribunal, which is now available, which recites the unanimous medical evidence before the Tribunal.

There will be before them, I anticipate, new medical evidence on Friday. They will be able to compare that evidence with the evidence that was last before the Tribunal and its decision. This is not a case in which adverse findings of credibility have been made by a Tribunal against anyone, where perhaps it is more important that there should be a continuity of constitution, where the decision has been favourable to the patient at least.

In the circumstances of this case, it seems to me that the risk of any incorrect decision or any unfairness to the patient as a result of a change in constitution of the Tribunal is remote. In those circumstances, it seems to me that it would not be right to grant a stay. These matters should be considered as early as possible. There is no reason to believe that the Tribunal to be constituted on Friday will not be able to do so and do so fairly and give an impression of fairness. In those circumstances, I would refuse a stay and it equally follows that I would refuse permission. Stay is the more important question, since, if no stay is ordered, the proceedings then become academic. In those circumstances, although I have come to decisions on the procedure applicable favourable to the claimant, ultimately I have concluded that this application must be refused.

MR BOWEN: My Lord, there are only two matters. I do not think I can ask you for leave to appeal in relation --

MR JUSTICE STANLEY BURNTON: It is really a question of discretion, is it not?

MR BOWEN: I think the procedure is that I only need to ask the Court of Appeal.

MR JUSTICE STANLEY BURNTON: In which case you do not have to ask me and you can go straight to the Court of Appeal.

MR BOWEN: There is the question of a certificate of assessment.

MR JUSTICE STANLEY BURNTON: Of course you may have that. There is none on file.

MR BOWEN: I will arrange for one to be placed on file within seven days. I am not sure how easy it would be to get hold of a copy of the transcript quickly. If it is ordered to be expedited, I am not sure if that would speed things up.

MR JUSTICE STANLEY BURNTON: I think you had better ask for it. You have funding, have you?

MR BOWEN: We have funding. It is just a question of how quickly we can get it. If it does not come any more quickly then --

MR JUSTICE STANLEY BURNTON: I shall order a transcript to be prepared with expedition, so that you can look at it and decide whether to go to the Court of Appeal.

MR BOWEN: I am obliged my Lord.

MR JUSTICE STANLEY BURNTON: Anything else I can do for you? Thank you both.