B, R (on the application of) v The Mental Health Tribunal & Anor

J U D G M E N T

1. MR JUSTICE STANLEY BURNTON: This is application for permission to appeal on behalf of the mother of a patient presently detained at the Huntley Centre in London, under the Mental Health Act 1983. There is an application for an order relating to the anonymity of the patient. I make an order that her name shall not be disclosed. Any report of my decision will be under the initial "B" alone. In view of the identity of her surname with that of her mother, the claimant, and her sister, who also appears in the papers, I extend that order to apply to their names as well. It seems to me that the order conferring anonymity on the patient would be ineffective if the order were not so extended. I am reminded by Miss Morris that the name of the daughter of the patient also appears in the papers. For the same reason, the order of anonymity will be extended to her, though in her case there may be independent grounds for making such an order in any event.

2. The claim relates to a decision of a Mental Health Review Tribunal which met on 23rd January of this year, on the application of the claimant, as the nearest relative of the patient, being her mother. The decision of the Tribunal was that the patient should be discharged from liability to be detained not immediately but with effect from 27th February, that is to say in two weeks time.

3. The reason given for the delay of discharge, as set out in the decision of the Tribunal was as follows:

"We have delayed the discharge by 5 weeks to enable [the claimant] together with [the patient's] clinical team and social services to work together to arrange an appropriate aftercare package to enable [the patient's] return to the community."

It is contended that that deferral of discharge was unlawful as being an improper and unlawful use of the power contained in section 72(3) of the 1983 Act.

4. The 1983 Act, as I have remarked in the course of argument, somewhat curiously applies different tests to the discharge of a patient at the instance of a nearest relative, as against applications for discharge at the instance of the patient himself or herself.

5. Where a nearest relative seeks the discharge of a patient detained under section 3, that is to say a patient in respect of whom there is no restriction order or the like, the patient must be discharged unless that discharge is barred by the Responsible Medical Officer (RMO). The grounds of discharge are danger to the patient or to members of the public as a result of the release of the patient.

6. The nearest relative is entitled to challenge the RMO's decision by application to a Tribunal, as happened in the present case. Section 72(1) of the Act sets out the now familiar grounds for an application for discharge, effectively requiring positive proof that the patient is suffering from a mental disorder et cetera, as described in section 72(1)(a), and that his or her detention is justified in the interest of his or her own health or safety, or with the view to the protection of other persons, as stipulated in section 72(2)(a)(ii). Section 72(1)(b) continues:

"The Tribunal shall direct the discharge of a patient liable to be detained, otherwise than under section 2 above, if they are not satisfied...

(3) In the case of an application, by virtue of paragraph (g) of section 66(1) above, for the patient to be released would be likely to act in a manner dangerous to other persons or to himself."

The application by a nearest relative for the discharge of a patient detained under section 3 is an application by virtue of paragraph (g) of section 66(1) of the Act. Therefore, it is necessary, if the patient is not to be discharged, in such a case for the Tribunal to be satisfied that the patient would, if released, be likely to act in a manner dangerous to other persons or to himself or herself.

7. Subsection (3) of section 72 is as follows:

"A tribunal may under subsection (1) above direct the discharge of a patient from a future date specified in the direction, and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may-

(a) with a view to facilitating his discharge on a future date recommend that he be granted leave of absence, or transferred to another hospital, into guardianship, and

(b) further consider his case in the event of such recommendation not being complied with."

8. The principal submission made on behalf of the claimant in the present case is that the power to defer under section 72(3) may not be used in the case of an application made by a nearest relative in relation to a patient detained under section 3 for the purpose of ensuring that there is aftercare available at the date of the release. In my judgment, it is quite clear that section 72(1)(iii) and section 72(3) must be read together. The phrase "if released" in section 72(1)(b)(iii) does not necessarily refer to immediate release. It would also take into account a future release, that is to say a release on a future date as envisaged by section 72(3). If a Tribunal, on the evidence before it, comes to the conclusion that a patient, if released immediately, would be likely to act in a manner dangerous to other persons, or to himself or herself, but that if proper aftercare arrangements are put in place that will not be the position, in my judgment, it is clear that the Tribunal may make an order for a deferred discharge under section 72(3) deferring discharge to a date when it is reasonably assured that the appropriate aftercare arrangements will be in place.

9. In my judgment, that conclusion follows from an ordinary and sensible interpretation of section 72. I am fortified in that approach by the decision of the Court of Appeal in R v On the Application of Ashworth Hospital Authority v Mental Health Review Tribunal [2001] EWHC Admin 901. That case did not concern a nearest relative application but, in my judgment, the same principles apply. I would, therefore, reject as not reasonably arguable the stark contention on behalf of the claimant that there was no possibility of a lawful deferral in the present case.

10. For the purposes of this application, I assume that the only considerations to be taken into account on deferral are those relating to danger. Considerations relating to the best interests of the patient, but not going so far as to relate to danger, are not to be taken into account when an application is made by a nearest relative. But I do not so decide. In the present case, the Tribunal came to the conclusion that the word "dangerous" required it to be established that the patient would act in a manner which was likely to cause serious psychological or physical injury to herself or others if the barring order was discharged. Also, that the word "likely" in section 72(1)(b)(iii) required that there be a probability, rather than a significant or substantial possibility, of the danger anticipated in relation to the patient would eventually eventuate. Again, I say nothing about the correctness of those interpretations of the test in section 72(1)(b)(iii). I approach this application on the basis that the Tribunal correctly applied the statutory test.

11. The first question that then arises is whether it was open to the Tribunal on the evidence before it to come to the conclusion that it was necessary to put arrangements in place, as referred to in the last three lines of their decision, in order to avoid the patient being a danger to herself, that being the relevant risk envisaged in the material before the Tribunal on her release. The Tribunal stated, I repeat:

"We have delayed the discharge by 5 weeks to enable [the claimant] together with the clinical team and social services to work together to arrange an appropriate aftercare package to enable the patient's return to the community."

12. During the course of argument I put to Mr Simblett, who appears on behalf of the claimant, that had the words "because otherwise she would present a danger to herself" been added to the decision, the Tribunal could not be accused of having acted either perversely or without sufficient evidence to support that finding. He initially accepted that point. I think in reply he somewhat retracted it. Having reviewed the evidence before the Tribunal, which included evidence that the patient had in the past completely refused to eat or drink, thinking that food and drink was poisoned, I conclude that it would have been open to the Tribunal to find that the patient might present a danger to herself. In my judgment, such a risk is a risk of a patient acting in a manner dangerous to herself, because a prolonged refusal to eat clearly would endanger her health and might even endangered her life. There were other risks set out in the material before the Tribunal to which I need not refer.

13. The position at the moment is this. The patient herself has not joined in this application. The Official Solicitor represents her interests, but has not had an opportunity to take proper instructions and, indeed, the taking of proper instructions would be a matter attended with some difficulty and might itself involve risks to the patient's mental health, and would have to be carried out with considerable care. Secondly, if this case were to go forward it would be necessary for the Tribunal to be given an opportunity to put in evidence to explain the basis of its deferral of discharge. I say that because the basis of the deferral was not made clear in the decision itself.

14. There are now only two weeks left of the five weeks provided by the Tribunal's decision as a period of deferral. This is a case which involves the liberty of a citizen. However, there is, at best, from the point of view of the claimant, an unclear decision of the Tribunal so far as this specific point is concerned. The court of course would give priority to a hearing of an application which involves the liberty of the subject, as this one does. Nonetheless, the prospects of their being an effective decision in this case, before the expiration of the five weeks, are remote.

15. In those circumstances, it seems to me, that in real terms this claim is, on the facts, academic. It would be wrong for me to grant permission for a claim which would be academic, notwithstanding the fact that the claim has been brought as speedily as it has. In deciding, as I do, for the reasons I have given, to refuse permission, I in no way criticise those acting for the claimant for the time taken to bring the matter before the court; they have clearly acted expeditiously. But in a context, such as the present, where one is dealing with a relatively short period, practicalities are important. There is nothing to indicate that those concerned with the discharge of the claimant, by whom I mean the RMO, the hospital, and the local authority, which is responsible under section 117 for making appropriate arrangements, are not doing so with due expedition and have regard only to the best interest of the patient.

16. In those circumstances, permission will be refused. As I indicated during the course of argument that having regard to the question raised as to the proper interpretation of section 72 in a case such as the present, I direct that this judgment may be reported notwithstanding that it is a judgment on a permission application. I have heard full argument on the power of a tribunal, in a case such as the present, within the parameters I have indicated. In those circumstances, I do make such a direction.

17. MISS MORRIS: My Lord, can I just ask in the order just made, if the court could specifically invite the Official Solicitor to act on behalf of the patient?

18. MR JUSTICE STANLEY BURNTON: Certainly.

19. MISS MORRIS: Can I just hand up the court file with the certificate of incapacity.

20. MR JUSTICE STANLEY BURNTON: Yes, there will be that order. Miss Morris, that order having been made, does the Official Solicitor propose to take instructions from the patient herself?

21. MISS MORRIS: Do you mean the Official Solicitor herself, or the patient herself?

22. MR JUSTICE STANLEY BURNTON: The patient herself.

23. MISS MORRIS: Yes, to the extent that the parent will be informed of the outcome of this hearing. It is right to say that there are already proceedings in the family division concerning the daughter of the patient, and the Official Solicitor is representing the daughter in those proceedings. To that extent, the Official Solicitor is in dialogue with the other parties about the patient's circumstances and the most appropriate way of providing for her, although plainly without (inaudible) the Official Solicitor will be acting out of (inaudible) the powers appointed to him.

24. MR JUSTICE STANLEY BURNTON: It seems to me sensible if there is any further application on behalf of the patient herself, resulting from the judgment I have given, and in relation to the decision of the Tribunal, if possible, it should come before me.

25. MISS MORRIS: Absolutely, my Lord, we would ensure that that was the case.

26. MR JUSTICE STANLEY BURNTON: Are there any other applications?

27. MR SIMBLETT: Only for public funding assessment.

28. MR JUSTICE STANLEY BURNTON: Of course you may have that.

29. MISS MORRIS: May we also have assessment?

30. MR JUSTICE STANLEY BURNTON: You require it too?

31. MISS MORRIS: We do and, my Lord, we have not been able to file a certificate because obviously it was granted under emergency powers in the last 24 hours or so. Can we have liberty to file the certificate within 7 days?

32. MR SIMBLETT: We have not got a sort of numbered certificate either.

33. MR JUSTICE STANLEY BURNTON: You will both undertake to file certificates within 7 days?

34. MR SIMBLETT: Could we say 14, because it obviously does depend on how quickly the legal services----

35. MR JUSTICE STANLEY BURNTON: That is all right, 14 days. Thank you.