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

MR JUSTICE MOSES: In these proceedings the Secretary of State for the Home Department challenges a decision of the Mental Health Review Tribunal given on 19 November 2003. The Tribunal directed the discharge of the patient, Mr Wilson. It directed an absolute discharge but deferred the absolute discharge for 12 weeks, until 11 February 2004, so that the Home Secretary could consider his position. The Tribunal has consented to the quashing of that decision. It accepts that it was made in error of law. However, the interested party, Mr Wilson has not. The other interested party, Nottinghamshire Health Care National Health Service Trust has indicated that it is neutral.

The interested party, Mr Wilson, was arraigned on 4 November 1963 at York Assizes in respect of two counts of murderer. He was found unfit to plead. It is unnecessary to develop the facts of those alleged offences, save to note that it was contended that he had on one occasion, on 7 September 1963, shot one woman in the head, who was accompanying another lady that he knew, whom he then strangled. The court made an order under section 2 of the Criminal Lunatics Act 1800 that Mr Wilson be detained during Her Majesty's pleasure. He was detained firstly at Broadmoor Hospital, subsequently at Ashworth and finally at Rampton.

By virtue of the Mental Health Act 1983 ("the 1983 Act"), he is treated as if subject to a hospital order and restriction order without limit of time imposed under section 47 and 41 of the 1983 Act. Since his original detention in 1963 at Broadmoor, he has been diagnosed as suffering from a psychopathic disorder -- a diagnosis confirmed on a number of occasions by Tribunals, most recently on 14 March 1997 and 8 August 2000.

The Tribunal decision which is impugned was given in writing and the Tribunal concluded that it was not satisfied that Mr Wilson, as a patient, 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.

The statutory framework in which the Tribunal came to that conclusion is contained in sections 72 and 73 of the 1983 Act. It is however, in order to put those sections in context, necessary to consider the provisions that concern not the discharge of a patient but his admission. By section 3(2):

The discharge of a patient subject to restriction is contained under section 73 of the 1983 Act. Section 73(1) reads:

It is therefore necessary to consider section 72(1)(b)(i), and (ii) concerning discharge of patients not subject to a restriction. By section 72(1)(b):

It will be apparent that the Tribunal reached the conclusion that it was not satisfied that Mr Wilson was suffering from a psychopathic disorder, and therefore concluded that it was bound to direct the absolute discharge of Mr Wilson, albeit it purported to defer that absolute discharge. That is confirmed by the form, which is provided for recording decisions of such Tribunals, where, under paragraph 2, headed, "The legal grounds for the Tribunal's decision", the Tribunal ticked "(a)" confirming that it was not satisfied that Mr Wilson was suffering from a psychopathic disorder, but drew a line through "(b)":

The reasons given for the Tribunal's decision are set out under paragraph 6. Before the Tribunal there was a written report from Dr Diana Tamlyn, a consultant psychiatrist, dated 19 September 2003. The doctor's conclusion recorded that the patient was now 60 years old. It recorded how well he had done since his transfer from Rampton Hospital to Ashworth Hospital and that he has remained friendly and polite. He has, however, declined any assessment or psychotherapy and undertakes no off-ward activities since they would form part of some assessment. The doctor, in her written report, concludes:

The Tribunal recorded the conclusions in the written report, but added a brief record of what the doctor had said in oral evidence in these terms:

The Tribunal considered that evidence and proceeded:

I should pause at this stage to observe that it appears that the Tribunal was rejecting the conclusion of Dr Tamlyn. The Tribunal was perfectly entitled to reject that conclusion provided that it gave its reasons for so doing. It was entitled to reject that conclusion notwithstanding that there was no evidence to contradict Dr Tamlyn.

There was, as is invariably the case of such Tribunals, a qualified doctor as a member of the Tribunal with a Queens Counsel. But, if the Tribunal is to disagree with the conclusions of the doctor, it is incumbent upon the Tribunal, if only in short terms, to explain why it was disagreeing. No such explanation is given. All the Tribunal says is that the doctor's conclusion was not sufficient; there is no hint as to why it was not sufficient to establish that Mr Wilson was suffering from a psychopathic disorder. The decision, in short, merely states the conclusion and gives no reason for it. I mention that at the outset, although I should emphasise that that is not the ground upon which this decision is challenged, and Mr Knapp, who has conducted this case on behalf of Mr Wilson with enormous tact, good sense and elegance, has pointed out that it is not the case that he has come to meet, or should be expected to meet. The Secretary of State has not challenged this decision on the basis that it was not open to the Tribunal to reach the conclusion that it was not satisfied that Mr Wilson was suffering from a psychopathic disorder. But the remainder of my judgment, in respect of those elements which are challenged, must be considered in the context of what I regard as inadequate reasons for rejecting the sole medical evidence before them, which merely echoed medical evidence which had been given on a number of previous occasions, namely that Mr Wilson was, in fact, even if the evidence about it was not strong, suffering from a psychopathic disorder.

The Tribunal went on to consider an alternative basis for reaching its conclusion, namely that the condition, if he was suffering from a condition, was not treatable. In a number of paragraphs following, the Tribunal consider an alternative basis for reaching a conclusion that he should be absolutely discharged. The Tribunal records the doctors's evidence that the patient does need to be detained:

This passage in the decision is the subject of challenge by the Secretary of State. The Secretary of State points out that the analysis of whether the disorder, if he was suffering from a disorder, is treatable, is wrong in law. The question of treatability within the meaning of section 72, as applied by section 73, has been considered by the House of Lords in Reid v Secretary of State for Scotland [1999] 2 AC 512 in the context of parallel Scottish legislation. The concept of treatability is wider than that with which doctors would be familiar. It is not confined merely to psychological or psychotherapeutic intervention. It is, as Lord Hope said at page 531(d):

I agree with the submission advanced by Mr Chamberlain on behalf of the Secretary of State for the Home Department, that the Tribunal's expression of the treatability of Mr Wilson's condition, were he suffering from a disorder, exposes an error of law. The Tribunal accepted that the hospital could prevent deterioration by his continuing in custody. Having accepted that factual proposition, it seems to me it was bound to conclude that the condition was susceptible to treatment in that it would prevent deterioration of the symptoms of the mental disorder were he suffering from a mental disorder. The error of the Tribunal was, as I have said, in equating treatability as a doctor would understand it with treatability as explained by the House of Lords in Reid. However, in my judgment, that is of no avail to the Secretary of State.

As Mr Knapp has pointed out, having concluded that Mr Wilson was not suffering from a psychopathic disorder under section 72(b)(i), there was no obligation upon the Tribunal to consider the treatability of any condition were he suffering from such a condition. The conditions, in other words, under section 72(b)(i) as applied in section 73(1)(a) were satisfied. The Tribunal was not satisfied as to those matters, and that, in my judgment, was the end of the matter. True it was that there was an error in the approach of the Tribunal in relation to what was meant by treatment under statute, but it did not infect its conclusion as to the mental condition of this patient. It makes one concerned as to its approach to that mental condition, but it cannot of itself amount to an error which vitiates its decision.

The third matter which is the subject matter of challenge, however, concerns section 73(1)(b). It is plain from the structure of the statute that the Tribunal is only required to direct an absolute discharge where it is both not satisfied as to the matters referred to in section 72(1)(b)(i) or (ii), and where it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. As to that, the Tribunal says nothing. The Tribunal merely struck a line through the reference to that provision under 2(c) of the form and made no findings whatever as to why either it was or was not satisfied that it was appropriate for Mr Wilson to remain liable to be recalled to hospital for further treatment. All the Tribunal did was say, as I have said, that it concluded that the patient should be discharged.

It then, understandably, referred to the difficult practical consequences of risk to the public. It concluded its reasoning saying this:

There is no power in the Tribunal to defer an absolute discharge. It must either absolutely discharge the patient where the conditions under the statute are satisfied, or it must not. But it was faced with a truly awful dilemma. Either it should absolutely discharge if it was satisfied, or it faced the prospect of what the doctor regarded and expressed as a terrifying risk. I hasten to emphasise that I am not in anyway decrying Mr Wilson, who has not had the opportunity in these proceedings, understandably, of challenging that view of the doctor and whose behaviour throughout his time in hospital has been impeccable. His attitude, indeed, is that he wishes to face trial, plead guilty and be sentenced under the prison system rather than the mental health system. So it is important to emphasise he is to be acquitted of any sense of not caring as to the future. But the real question is whether the failure of the Tribunal to consider what is shortly described as a conditional discharge is an error which vitiates its decision. In my view, it was.

It is plain to me, even where the Tribunal conclude that a patient is not suffering from a psychopathic disorder, or any of the other conditions referred to in section 72(1)(b)(i), it is incumbent upon the Tribunal in cases of restricted patients to go on to consider whether it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. That is clear from the words of section 73(1)(b).

Mr Knapp submitted that there was no obligation upon them to consider that question, which would be subsumed in the question of whether Mr Wilson was suffering from a psychopathic disorder or was not. Once it was concluded that he was not suffering from a psychopathic disorder, there was no room for any consideration as to whether it was or was not appropriate for him to remain liable to be recalled to hospital. After all, he either is suffering from a psychopathic disorder or he is not. Once it is concluded, so Mr Knapp argued, that he is not, that is the end of the matter. I do not agree.

As Lord Hope pointed out in Reid, what has to be considered are the symptoms which might manifest themselves in a different way within the closed conditions of a hospital from those which might manifest themselves once a patient is released.

The unfortunate Mr Wilson has been detained now for some 41 years. There is reference in the medical evidence to the effect upon him -- the disturbing and destabling effect on him -- were he to be released. He has not lived in an open environment for so very long. In those circumstances, it is all too easy to consider the real risk that symptoms might manifest themselves which had not hitherto manifested themselves.

Furthermore, this was a borderline case. I have already drawn attention to the lack of reasoning for the conclusions that the Tribunal reached in disagreeing with the doctor. It might very well be in such a case that, whilst a Tribunal would not be satisfied at one particular moment that someone was suffering from a psychopathic disorder, later on symptoms might emerge which would make it highly appropriate and indeed necessary for such a patient to be recalled to hospital. All those considerations need to be brought to mind when a Tribunal considers whether or not it is satisfied for the purposes of section 73(1)(b). That that is plain from the statutory scheme is also confirmed in authority, particularly in the decision of the Divisional Court in R(Secretary of State) v Mental Health Review Tribunal [2001] EWHC Admin 849 in the judgment of Pill LJ at paragraph 25. In that paragraph, he points out that the question of liability to be recalled must be dealt with expressly. That is also confirmed, although the case was concerned with a different issue, in R(H) v Ashworth Hospital Authority and Others [2002] EWCA Civ 923 in the judgment of the Master of the Rolls at paragraph 76 and at paragraph 90.

I conclude that it was incumbent upon the Tribunal to consider the question of a conditional discharge. I further conclude that the Tribunal did not deal with that issue. Mr Knapp, on behalf of Mr Wilson, contends that it did so in the final paragraph of its decision when it stated that conditions had no valid part to play in the circumstances of this case. In so concluding, I take it to mean that no conditions on a conditional discharge would satisfy the requirements of safety, having regard to the doctor's views. But no reasoning was given as to why they were satisfied that it was not appropriate. Indeed, no express conclusion about it was made at all.

In my judgment, that failure vitiates this decision. The decision cannot stand in a case where, in respect of a restricted patient, the Tribunal concludes that he is not suffering from one of the conditions referred to in section 72(1)(b)(i), but fails to deal with the requirement about which it has to be satisfied under section 73(1)(b).

The next question is: what should be done about it? In my view, the only appropriate remedy is for the decision of the Tribunal to be quashed and for a fresh Tribunal to reconsider the matter. Mr Knapp said that it was plain what the Tribunal thought and it would be wrong and unfair for the matter to go before a different Tribunal. All that need happen is for this Tribunal to revise its decision in accordance with the judgment and make clear what he contended was implicit. My reasons for rejecting that submission I hope are clear from the earlier parts of my judgment. I am most concerned, as I have said, about the primary conclusion it reached, that Mr Wilson is not suffering from a psychopathic disorder. The Tribunal may be right and may be entitled to reach that conclusion, but at least it ought to say why. It did not do so.

In any event, the Tribunal must look at the matter as at the date of the Tribunal's decision and matters may have changed between the time of that decision and at any time when it is possible for a Tribunal to reconsider this matter. Once the Tribunal has considered the question of psychopathic disorder, if it concludes that he is suffering from a psychopathic disorder, it will also have to consider susceptibility to treatment in accordance with the meaning of that expression under the statute as explained by Lord Hope in Reid. Once it has done that, if it concludes that the conditions under section 73(a) are not satisfied, and under (b) that are satisfied, then it will have to say why, and the question of absolute discharge with the consequential criminal trial that I was told would then have to take place, or alternatively, the question of conditional discharge, will have to be considered.

For the reasons I have given, however, the Tribunal's decision in failing to deal with the issue under section 73(1)(b) is fatally flawed and will be quashed, and I order that a fresh Tribunal should consider this matter afresh.

MR CHAMBERLAIN: My Lord, I am grateful for that. I think there was just one matter in your Lordship's extemporary judgment which may need to be corrected. The judgment which your Lordship referred to in the H case was the judgment of the Master of the Rolls rather than Dyson LJ.

MR JUSTICE MOSES: If I remember to do so, I shall not insult Dyson LJ by keeping his name there.

MR CHAMBERLAIN: My Lord, the only other matter is an application for the usual legal aid public funding costs order.

MR JUSTICE MOSES: Which is the correct order now? It has been in force about two years.

MR CHAMBERLAIN: My Lord, as I understand it, it is an order that the claimant pay the defendant's costs. The amount, if any of such costs, to be assessed by the costs judge.

MR JUSTICE MOSES: I thought it then had to be postponed. What are the terms of the fresh order? You have forgotten.

MR CHAMBERLAIN: That is certainly the order that I have had in other cases. I stand corrected if anybody --

MR JUSTICE MOSES: If you are going to ask for costs I really would like to know the correct form of the order. Do you want to say anything about costs?

MR KNAPP: Mr Wilson is obviously legally aided.

MR JUSTICE MOSES: Then there is a form or order now that has been in force at least two and a half years.

MR KNAPP: I do ask for taxation of Mr Wilson's costs. Can I formally ask, your Lordship, that as I am instructed by those who deal (inaudible) that it is actually common practice for the Tribunals not to apply the recall ground where no disorder is found, and for that reason this judgment may be of interest. I do ask for formal leave to appeal.

MR JUSTICE MOSES: What do you want to say about that?

MR CHAMBERLAIN: All I have to say about that is that the matter is covered by two authorities which were cited in your Lordship's judgment. It is clear and I say that permission should be refused.

MR JUSTICE MOSES: I shall not give permission. It seems to me that this matter has already been clearly covered by other authority, both the Divisional Court and the Court of Appeal implicitly, and I was not intending to say anything new in this decision. So you must ask their Lordships.

You have until I finish the next case to tell me what order I should make in relation to costs. I shall give you your costs but that is not the complete order, and I would like to know the correct wording on it before I finish today. Thank you very much.