Secretary of State for the Home Department, R (on the application of) v Mental Health Review Tribunal & Anor

MR JUSTICE BEATSON: In this application, the Secretary of State for the Home Department applies to judicially review the decision of the Mental Health Review Tribunal on 16th May 2003 to order a deferred conditional discharge of DH pursuant to section 73(7) of the Mental Health Act 1983. DH is detained pursuant to the powers in sections 37 and 41 of the 1983 Act. The offence which led to his detention under those powers was committed on 3rd August 1998 when, whilst an in-patient at a hospital, he stabbed another patient three times.

The Tribunal, the defendant to this claim, has elected to take no part in these proceedings, but DH opposes the application and submits that the Tribunal decision was lawful and proper. He submits that the Secretary of State should make his submissions to a future tribunal considering whether or not the arrangements to enable his conditional discharge be put into effect are satisfactory.

Permission was granted by His Honour Judge Wilkie QC on 14th August 2003. The learned judge imposed a stay on the Tribunal's order and ordered anonymity for the interested party, which I have renewed today.

I turn to the facts. These are taken from a summary put forward by the claimant which is accepted by the interested party, with one caveat. The interested party emphasises that DH has previously been discharged and spent some time in the community subject to strict supervision which enabled the authorities to act upon signs of relapse and recall him. It is against this background that the interested party states the facts should be judged.

DH was admitted to the Shaftesbury Clinic in 1998 and made subject to a hospital order with a restriction order in May 1999. Prior to the offence which led to the hospital order, he had consumed alcohol, and alcohol was a factor in his offence.

Between 1991 and 1997, DH was convicted of 16 offences including one conviction for assault and one of actual bodily harm. He also has a history of alcohol misuse and polysubstance misuse. He was first treated at an adolescent unit at the age of 15 after an attempted suicide. His first admission to an adult psychiatric ward was in 1993 when he was 17. His psychiatric history is characterised by episodes of self harm and failure of aftercare. There has been readmission shortly after discharge, non-compliance with medication in the community, misuse of alcohol and drug abuse, and there has been threatening behaviour involving screwdrivers and incidents involving knives, and the consumption of alcohol and drugs while detained or on community leave from hospital.

DH had been previously conditionally discharged by a Mental Health Tribunal in August 2001. He was not, however, discharged then, because the conditions were not met until February 2002. In the interim period, he used alcohol whilst on escorted ground leave.

In February 2002 he was discharged to a hostel in Islington. He was, however, recalled by the Secretary of State in January 2003 following reversion to levels of alcohol and drug use that were of concern, evidence of hostile behaviour and an episode of self harm. The latter involved DH cutting his forearm with a razor blade after having consumed alcohol and smoked cannabis.

After his recall, he returned from unescorted ground leave having consumed alcohol and his ground leave was suspended. Later, in April 2003, he overstayed his leave, consumed alcohol and became aggressive when staff tried to bring him into a ward. He also refused a urine drug test in March 2003.

I have noted that, on behalf of DH, the interested party, Mr Gledhill submits that the background is of discharge and time spent in the community subject to supervision, which enabled the authorities to act on signs of relapse. On behalf of the claimant, Miss Stern submits that it is characteristic of DH's history as put before the Tribunal that care in the community has failed. Alcohol and drug abuse has been a consistent problem despite numerous attempts to control this behaviour. He has on occasions caused serious harm to himself and harm to others after having used alcohol.

I turn to the law. Section 72(1)(b) of the Mental Health Act 1983 provides that:

By section 73(1):

Section 73(4)(b) provides:

By section 73(7):

It will be seen that in section 72(1)(b), two tests are laid down. The test in sub-subsection (i) has been termed the "appropriateness test", and that in sub-subsection (ii) has been termed the "necessity test". The relationship of those tests and their operation in this case, together with the phrase "nature or degree", are at the heart of the present application and the way the Tribunal dealt with them.

The Tribunal heard written and oral evidence from Dr Marc Lyall and Dr Azuonye, the independent psychiatrist on behalf of DH; Ms Yusuff, a staff nurse; Ms McPhail, a social worker; Ms Widdowson, a worker at the hospital; and DH himself. The Tribunal also had before it a statement by the Home Secretary which stated that the Home Secretary considered absolute discharge to be inappropriate in this case and expressing his concurrence with the views of DH's MDT that DH continued to receive detention in hospital for treatment.

The Tribunal stated that it was not satisfied DH was suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, or from any of those forms of disorder "of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment". It also stated that it was not satisfied that it was necessary for the health or safety of the patient or the protection of other persons that he should receive such treatment. It was however satisfied that it is appropriate for the patient to remain liable to be recalled.

The Tribunal ordered conditional release. The conditions were:

In its reasons for its decision, the Tribunal set out the evidence from Dr Lyall, which was to the effect that DH suffered from chronic schizophrenia at present of a nature and degree to render him liable to a hospital for his own safety and for the safety of others, and that of Dr Azuonye, that DH suffers from a drug-induced psychosis super-imposed on an emotionally unstable personality disorder.

Dr Azuonye's conclusion was that DH's illness was not of a nature or degree to justify detention in hospital as there was neither a risk to his own health and safety nor a risk to others, and he recommended an absolute discharge.

The Tribunal stated:

I have, in giving the reasons for the Tribunal's decision, summarised the nub of the evidence from the psychiatrists. At the hearing before me, both the claimant and the interested party drew my attention to aspects of the evidence. The claimant submitted that Dr Lyall's evidence showed the rapid deterioration of DH's mental condition when he is intoxicated, and the significant increase of risk, and the belief of the clinical team that DH continues to suffer from schizophrenia of a nature and degree which warrants in-patient treatment.

She noted that Dr Azuonye considered that the illness was likely to be lifelong and had manifested itself with a pattern of relapses and remissions; that DH had said he hoped he would be able to stop using other drugs as well, he had been able to stop the use of amphetamines; and that Dr Azuonye concluded that there was no need for DH to remain detained, especially as the risks he poses are only to himself; and that posing a risk to oneself thorough deliberate self-harm does not constitute a criterion for a Home Office report.

She submitted that this report evidenced a misunderstanding of the requirements for lawful detention and did not support its recommendation for an absolute discharge.

Mr Gledhill noted that Dr Lyall had reported that DH accepted that he had an illness, that he was compliant with medication, and that if DH could demonstrate that his mental state remain stable and he was able to resist alcohol and drugs, he would manage in the community. Mr Gledhill also pointed to aspects from Dr Azuonye's report and those of Miss McPhail and Miss Widdowson.

Miss Stern submitted that the finding of the Tribunal that DH's illness was of a nature to justify detention in hospital, coupled with its conclusion that it was not satisfied that his mental illness was of a nature or degree which made it appropriate for him to be liable to be detained, was a misdirection. It construed "nature or degree" in the statute as conjunctive rather than disjunctive. This tainted its consideration of both the appropriateness test and the necessity test, and coloured the decision as a whole, because the focus of the Tribunal was on the current degree of mental illness.

Miss Stern submitted that this meant that the Tribunal failed to grapple with the risk posed by DH when he was intoxicated and/or using drugs when considering whether or not continuing detention was justified. The only reference in the reasons to these was in the context of whether or not DH should remain liable to recall.

When considering the lawfulness of his current detention, the Tribunal considered only the risk posed by DH when he was in hospital and largely abstinent. The Tribunal, however, concluded that they had considerable reservations as to whether he would be able to moderate his alcohol and drug use. This conclusion implicitly accepted that the likelihood was that he would drink and use drugs to excess, and that his mental state deteriorated upon drug use or when drinking alcohol to an excess with an increased risk of self-harm and harm to others. This suggested that if they had considered these factors as part of the nature of his mental illness when answering the statutory questions, their conclusion may have been different. She also submitted that because of this misdirection, the Tribunal failed to address the likelihood of DH's mental state deteriorating by reason of alcohol or drugs use.

She relied on the decision of Latham J, as he then was, in R v London South & South West Region Mental Health Review Tribunal ex parte M [2000] Lloyd's Reports Medical 143 as to the proper approach in cases with a risk of relapse. In that case, it was said:

It was also said that:

Miss Stern submitted that with a substitution of a reference to the use of alcohol or drugs, this was applicable in the present case.

Latham J also stated that:

This was cited with approval in R (H) v Mental Health Review Tribunal North East London Region [2001] EWCA Civil 415 at paragraph 333 by the Court of Appeal. In that decision, Lord Phillips MR, delivering the judgment of the Court of Appeal, stated that:

Miss Stern submits that this is the correct approach, and that the reference to weighing the interests of the patient and justifying continued detention if, but only if, it is a proportionate response having regard to the risks, must be seen in its context; ie, where there was uncertainty as to whether the nature of the condition was sufficient to justify detention.

Mr Gledhill, and I shall return to this, submits that this passage is of a more general application and that the Tribunal should undertake a proportionality exercise in all cases.

The second limb of Miss Stern's misdirection submission was that the Tribunal misdirected itself in its reliance on the powers of recall to address future risk in the community. Section 73 (1) of the Act which I have set out above, she submitted, shows that recall does not fall for consideration until after the statutory assessment of risk and discharge criteria have been completed.

The second plank of the challenge to this Tribunal's decision is that it was irrational. Miss Stern submits that no reasonable Tribunal properly directing itself could in the circumstances of this case have concluded that the criteria for continuing detention were not satisfied.

She relied on a number of matters. These were; firstly, that DH's offence was an offence involving considerable violence and harm associated with alcohol use; secondly, the reservations of the Tribunal as to DH's ability to moderate his drinking and drug use; thirdly, the Tribunal's acceptance that excessive drinking and/or drugs use would increase risk; fourthly, DH's history of discharge and relapse, which was almost invariably associated with alcohol and drugs use; fifthly, the evidence that his mental state deteriorates rapidly when he is intoxicated; and finally, Dr Lyall's view that further substance misuse work was needed in hospital and that this would increase the chances of a successful community placement.

She submitted that the evidence demonstrated that the risk posed by DH could escalate with increased risk and without any apparent warning. In these circumstances, a decision to deal with such risk solely by way of recall was irrational.

Finally, Miss Stern submitted that the decision of the Tribunal was flawed by inadequate reasons. They stated that they could not accept either medical witnesses evidence in its entirety, but gave no reasons whatsoever for their rejection of Dr Lyall's evidence. She submits that it is not clear what aspects of Dr Lyall's evidence were accepted and what were rejected. She relies on the statement of Dyson LJ in R(H) v Ashworth Hospital Authority [2002] EWCA Civ 923 at paragraphs 77 and 78, approving the guidance from the Tribunal's handbook for members, which states, inter alia,

Dyson LJ states that the guidance does not expressly state but does imply that reasons must be given for the acceptance or rejection of disputed evidence, although it is not usually necessary for these to be lengthy.

Miss Stern cites the decision in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 at paragraph 17 for the position where expert evidence is rejected, and also relies on what Dyson LJ said in R v Ashworth Hospital Authority and the Mental Health Review Tribunal at paragraph 80, where he stated that:

Mr Gledhill's response to this challenge was as follows. First, with respect to the argument based on misdirection, he started with the proposition that the statutory provision had to be applied by a tribunal in a manner that is consistent with the Convention of Human Rights, and that lawful detention requires compliance with the criteria set out in Winterwerp v The Netherlands [1979] 2 EHRR 387, 403, paragraph 39:

He also relied on the passage from R (H) v The Mental Health Review Tribunal from which I have already quoted.

His submission was that the Tribunal followed the requirement of the statute and stated the legal grounds for its decision. It was required to answer the statutory questions set out in section 72 of the Act, which were designed to allow it to answer the question whether the detention of the patient is justified having regard to the nature of the illness, the current degree of the illness and the risk posed.

He stated that the Tribunal has set out why it has concluded that it would be disproportionate to detain DH as opposed to releasing him on strict conditions. It comments on the nature of his illness with a risk of relapse, including the risk of failing on his resolve not to take alcohol, and on the consequent risk to himself and others. It, however, notes its view that those risks are at the current time low, and takes into account the limited violence since the indexed offence. This, he submits, clearly goes to the proportionality of detention.

Further, the Tribunal notes the insufficient nature of the treatment regime in the hospital and the fact that treatment can be carried out in the community, and the importance of the conditions it imposes in reducing the risks which, it is emphasised, should be strictly observed.

At the heart of Mr Gledhill's submission is the centrality of the conditions imposed. He submitted that the decision should be read as a whole rather than by picking out particular sentences, and that the decision should be read with the conditions.

Mr Gledhill relied on the decision in Campbell v Home Secretary [1998] AC 120 per Lord Bridge at 127, and submitted that the claimant seeks to read the Tribunal's decision out of context. He submitted that the third paragraph of the Tribunal's reasons makes it plain that it has properly concluded that the risk posed by DH of violence to others is low and so his condition does not justify detention. He submitted that the claimant's submissions are inconsistent with the law as set out in Campbell's case and in the more recent case of R (IH) v Home Secretary [2002] EWCA Civ 646; [2003] QB 320 at paragraph 86. The central question, he submitted, is the risk currently posed by DH, and the Tribunal has found that it does not justify detention.

Finally he submitted that the claimant fails to take into account the package of conditions which are clearly designed to minimise risk.

Alternatively, he submitted that if the sentence: "We conclude that DH's illness is of a nature to justify detention in hospital but not at present of a degree" meant that the Tribunal should have answered question 2(a) of the legal grounds in the affirmative, this application should not succeed. This was because that went to the "appropriateness" test; the patient still has to be discharged unless the separate "necessity" test is met. He submits that this test has been met, and so any error in relation to the "appropriateness" test is irrelevant in terms of a final decision.

With regard to the claimant's submission on recall, he submitted that it is perfectly proper for the Tribunal to take account of the fact that there are mechanisms available to place a patient back in detention if there is a relapse, otherwise there would be a risk of detention on account of the risk of relapse, which was disproportionate.

On rationality, he pointed to the fact that the Tribunal had evidence that supported an absolute discharge and evidence that supported detention. It adopted an approach of release with a strict package of conditions to ensure that there is monitoring and treatment. On the oral evidence, the RMO had accepted that DH could manage in the community if he remained stable and avoided drug and alcohol abuse.

With regard to the factors relied on by Miss Stern to show irrationality, he noted that the Tribunal was aware of the index offence and the alcohol, but also of the fact that there had been little violence since then. Conditions 4 and 5 were designed to minimise risks from drinking and drug abuse. Miss Stern's reference to the history of discharge and relapse does not reflect the fact that there has been one recall after several months. The fact that there is rapid deterioration when intoxicated is reflected in the need for a 24-hour hostel.

With regard to reasons, Mr Gledhill submitted that this is a very different case from the Ashworth case, where a very brief statement of reasons did not deal with the evidence. He submitted that the purpose of reasons is so that the parties know the basis of the decision. In the present case the diagnosis, the nature and degree of disorder, and the nature of the risk and the way of dealing with it, all are visible from the reasons. The Tribunal, he submitted, has explained the basis of its findings as to the legal grounds for its decision to discharge with conditions. No one reviewing the reasons could be left with any doubt as to the basis of the decisions and its findings in relation to the criteria.

Mr Gledhill noted that the Tribunal agreed with Dr Lyall on all medical questions. The disagreement with Dr Lyall was over the consequences of the findings, whether they justified detention, and that that was a legal question. It also disagreed with Dr Lyall's assessment of risk. Mr Gledhill argued this was a quasi-legal question. In view of these factors he submitted that the reasoning was not open to question in this case.

I conclude that on the question of misdirection, paragraph 3 of the reasons given by the Tribunal, and in particular the sentence: "DH's illness is of a nature to justify detention in hospital but not at present of a degree", is inconsistent with the answer to the first statutory question, because it treats "nature or degree" as conjunctive. This misdirection is not saved, in my view, by the conclusion with regard to necessity in the answer to the second statutory question, because it tainted consideration of that.

The statutory words in section 72(b)(ii) state:

Such treatment refers back to the treatment which, given the nature or degree of his disorder, makes it appropriate for him to be liable to be detained. Accordingly, separate consideration is needed.

Because of the way the reasons are set out, this separation is not made, and the court therefore cannot conclude that the Tribunal, having misdirected itself with regard to the "appropriateness" test, did not carry that misdirection over into the "necessity" test.

Mr Gledhill's argument that the conditions should effectively be read into the decision to show the way the Tribunal grappled with the risk posed by DH as part of either the "appropriateness" test or the "necessity" test has caused me more difficulty. On the one hand, the court is aware of the conditions under which tribunals have to produce decisions. There is clear authority that the reasoning can be brief. These factors together with the specialised nature of the Tribunal mean that, as Mr Gledhill submitted, the reasons given should not be subjected to the sort of scrutiny to which statutory words are subjected.

Nevertheless, as Miss Stern submitted, this case is distinguishable from the Campbell case because there the conditions were an express part of the reasoning. In this case, there is simply a generalised reference to the conditions in paragraph 4, in which it is stated that it is considered:

There is no indication of how serious these conditions are. Mr Gledhill submits that it is obvious that they are serious enough to require a 24-hour staffed hostel and the other matters, but this is a brave attempt to read in from the conditions to the reasons for the decision.

Finally on this point, it cannot be said from the reference to the liability to recall that the Tribunal grappled with the risk. On this matter, I accept Miss Stern's argument that the issue of risk should be addressed first. It is perfectly in order for a tribunal which has addressed the question of risk then to consider recall, but to wrap it up in the way that has been done here risks undermining the careful scheme of the legislation.

Miss Stern's second ground of challenge was rationality. While the conclusion that the risk posed by DH could escalate quickly and without warning does not sit comfortably with the conclusion that such risk should be dealt with solely by recall, I do not consider that the high threshold for a finding of irrationality has been met. This was a case in which there was evidence from an independent psychiatrist supporting an absolute discharge. It cannot be irrational in those circumstances to order conditional discharge.

Finally, I turn to the argument based on reasons. I am, as I have indicated, conscious of the need not to subject tribunals to the burden of over-elaboration. I have concluded that although the reasons reveal a misdirection, and that misdirection involved a failure to assess risk in the proper way, the basis of the decision does emerge from the reasons and the reasons are not, as such, inadequate.

However, as the claimant has succeeded on the misdirection ground, he is entitled to the relief sought, which is that the decision be quashed and remitted to the Tribunal.

MS STERN: I am grateful, my Lord.

MR GLEDHILL: My Lord, just a few ancillary matters. First of all, might I have a legal aid detailed assessment of the interested party's costs.

MR JUSTICE BEATSON: Yes.

MR GLEDHILL: Secondly, just some very minor what may be called housekeeping matters. I have no doubt your Lordship will review the decision --

MR JUSTICE BEATSON: I have used the name several times.

MR GLEDHILL: There was one instance where your Lordship gave a reference to a case without giving the neutral citation number. I will alert the shorthand writer.

MR JUSTICE BEATSON: These are very useful, Mr Gledhill, thank you.

MR GLEDHILL: The one final thing is the question of permission to appeal. It is often difficult to raise that immediately after judgment has been handed down. My Lord, the point that I am alert to is that the issue of nature or degree or nature and degree, whether it is disjunctive or conjunctive, and how it fits in precisely with the Winterwerp criteria, it must be of real importance to tribunals carrying out their functions. It is also of general importance in the assessment of what is the law and where the balance is drawn as between the rights of patients and their liberty and the rights of the public to be protected in instances where there is a potential for risk from patients to the community.

What your Lordship has in effect found is that the Tribunal has got it wrong by reaching a conclusion as to nature, then concluding the present degree did not justify detention, and that in effect was a misdirection of the statutory provisions. My submissions were to the effect that a more general assessment has to be carried out by the Tribunal as to proportionality.

The point that arises from the way that your Lordship heard argument is whether what might be termed the "proportionality requirement" that is set out in H, the extent to which that is a more general proposition, and my learned friend's submission as to how that is to be used only in circumstances where there is a lack of certainty as to the future and its relevance there to the burden of proof question, which was in essence how she put it.

That is a feature, and although on your Lordship's conclusions it did not come through clearly about how that dispute is to be resolved, it is nevertheless the underlying essential point of law in this case, and it is an important point of law. It is my submission that those reasons, albeit that I have expressed them at the end of the day not perhaps eloquently, this is a case which justifies permission to appeal on what might be termed the second ground; namely the public interest at stake, which under the current practice direction is other points justifying appeal. There is a public interest in that and, of course, if I am right in my submission that you have to look at the Tribunal decision in the round to determine whether or not it has met the proportionality test, if I am right on that then I am also getting in on the first ground for granting permission to appeal; namely reasonable prospects of success.

My Lord, I am sorry for the inelegance with which I have put that, but I hope your Lordship sees the basis upon which I do seek permission to appeal at this stage.

MR JUSTICE BEATSON: Yes, I do.

MS STERN: My Lord, the proportionality of the Winterwerp criteria was incorporated into the statutory criteria which the Tribunal have to apply. This case really turns on whether the Tribunal applied the statutory criteria correctly, and it is well covered by the authorities as a point. In those circumstances, my Lord, we say that there is neither a public interest in this point going forward, nor a realistic prospect of success.

MR JUSTICE BEATSON: I am afraid that you will have to ask the Court of Appeal for permission. Imagine it had been the other way round. If the statutory criteria had not been observed, or had not been observed in a precise way, and for that reason, DH had been detained. The argument is that it would be right to look at it all in the round. You would be jumping up and down if Ms Stern said that. It is really a question of: the statute has to be interpreted in accordance with the Convention. You may persuade the Court of Appeal if you ask them not at 5.10 in the afternoon.

MS STERN: My Lord, might I just raise one thing. Your Lordship has directed the decision be quashed and remitted to the Tribunal. Might I ask that it be remitted to a differently constituted tribunal. It occurred to me later.

MR JUSTICE BEATSON: Did I not say that? A differently constituted tribunal, of course. Miss Stern, you had better have your colleague's book back.

MS STERN: Thank you, my Lord.

MR JUSTICE BEATSON: Again, in the interests of transparency, what I have written under the reasons for refusing permission is: "The issue is one of statutory interpretation. There is not, in my view, a reasonable prospect of success on that, and no point of general importance arises."

Thank you both for your clear submissions.