Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
THE QUEEN ON THE APPLICATION OF SECRETARY OF STATE FOR THE HOME DEPARTMENT
(CLAIMANT)
-v-
THE MENTAL HEALTH TRIBUNAL & CH
(DEFENDANT)
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MISS M DEMETRIOU (instructed by GRAHAME STOWE BATESON) appeared on behalf of the CLAIMANT
MR HARRISON & MISS AGAR (instructed by TREASURY SOLS) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE STANLEY BURNTON: This is a claim by the Home Secretary for judicial review of a decision of a Mental Health Review Tribunal made on 7th January 2005, discharging the interested party, to whom I shall refer as "the patient", subject to specified conditions but deferring discharge until the Tribunal were satisfied that the necessary arrangements had been made to meet those conditions.
The patient was convicted of an offence of assault occasioning actual bodily harm on 27th October 2003, and on the same occasion of two offences of common assault. On 26th March 2004, on the basis of psychiatric evidence before it, the court made orders under sections 37 and 41 of the Mental Health Act 1983 authorising the patient's stay at Cygnet Hospital, Wyke, and restricting her discharge without limit of time.
The circumstances of the index offences are set out in a statement of the Home Secretary, prepared for consideration by the Tribunal at its hearing on 7th January as follows. The circumstances of the offences were reported to be on 26th October 2003:
"...first and second victims, a neighbour and her 13 year daughter, had just arrived home when they were confronted by [the patient]. [the patient] began ranting at her neighbour then attacked her, punching her repeatedly to the face and head, she then attacked the daughter, kicked her in the stomach and then punching her in the face.
The third victim, the neighbour's husband, arrived home to find his wife and daughter in a distressed state. He ran from his vehicle and pushed the patient away from his family. [The patient] then produced a knife and slashed out at him, causing injury to his hands and then lunged towards his stomach causing the victim to jump away. His wife called the police on her mobile phone and [the patient] left the area, but was arrested when the police arrived.
During the interview, [the patient] stated that she had been constantly victimised by neighbours and police. She admitted hitting the victim, saying: 'I did intend for her to feel the hurt, I'm sorry I didn't hit her hard enough.' she also stated that she intended to hit the victim's body with the knife."
The hearing of the Tribunal was occasioned by the patient's application for her discharge from detention under the Act. The position of the Home Secretary was as was stated in his statement, as follows:
"In the light of these reports [I interject to say those were reports of the patients RMO, Dr Kehoe, of the 5th October 2001 and a nursing report of Kurai Nyatanga of 4th November 2004] and all other previous medical evidence in the case, the Home Secretary is satisfied that the patient continues to suffer from mental illness and requires continued detention in hospital for medical treatment, which is necessary both for her own health and safety and for the protection of others."
The hospital also opposed the application for the patient's discharge from detention under the Mental Health Act.
The Tribunal had before it a psychiatric report of the RMO, Dr Kehoe, dated 9th October 2004, a nursing report of Kurai Nyatanga, a staff nurse, of 4th November 2004 and a social services report of a specialist social worker, Mr Dave Matthews, of 20th December 2004. Regrettably the notes made at the hearing of the evidence given to the Tribunal are not available and apparently have been mislaid. Dr Kehoe made a witness statement, dated 24th March 2005, in which he sought to set out the evidence he had given to Tribunal and indeed, to an extent the Tribunal's reaction to his evidence. He said:
"In my opinion the Tribunal did appear to listen to my evidence presented and that of other care workers. Pertinent questions were asked. However, the Tribunal panel did, from quite early on in the meeting, express the view that the patient had shown only one episode of violence and they appeared to rapidly form a view that [the patient] had been very settled and did not exhibit much risk to others. In my view [the patient] would become paranoid about neighbours wherever she resides - this point was put to the Tribunal to the best of my recollection. She would then become a risk to those neighbours.
I did express to the panel my view that [the patient] Had, throughout her hospital admission exhibited a systemised delusional complex and in the early stages of admission, events and the environment in the hospital were added to that delusional system.
I express the view that it would be a significant risk to others, particularly towards the Grice family, were [the patient] to be discharged there hospital. [The Grice family were those involved in the index offence, I interject]. I took this view because [the patient] has limited insight into her mental health problems and remains with a systemative delusional complex relating to neighbours, the police and the local government."
Under the heading "Issues relating to medication", Dr Kehoe said:
"I gave evidence to the Tribunal that [the patient] would be unlikely to be compliant with her medication if she were discharged from hospital. The reasons that I hold this view are that:
[1] [The patient] lacks insight into her condition and therefore does not understand the need for medication.
[2] She has consistently stated that she does not wish to continue with medication.
[3] [The patient] previously stopped taking her medication when she was discharged from hospital by a Tribunal.
The Tribunal did ask me whether [the patient] was more likely to comply with medication if recall can be used as a sanction for noncompliance. I said that this would increase the likelihood of compliance. However, I maintained to the Tribunal (and continue to hold the view) that, even with record of a sanction, [the patient] is unlikely to comply with her medication.
I further emphasised to the Tribunal that, although the medication had partially helped [the patient], it had not led to significant overall reduction of her level of persecutory beliefs."
There is the following paragraph of Dr Kehoe's statement preceded by the heading: "Nature of [the patient's] Condition". I read it and I think it is now common ground that it is an account of Dr Kehoe's opinions rather than an account of what he said to the Tribunal. He said:
"[The patient] is suffering from a chronic psychotic condition with paranoid delusions. In relation to the duration of her illness (15 to 20 years or more), the duration of her period of treatment in hospital has been relatively short. I would expect only limited clinical improvement during this time. A more prolonged period of treatment could further clinical improvement. I accept that on the other hand one may argue that she has chronic delusions for which the long term prognosis is poor and that medical interventions are likely to only bring about a partial response. I would emphasise that the nature of her illness is characterised by persecutory beliefs primarily about neighbours but also about the wider 'system' in relation to police, local authority and governments. Clearly, it is neighbours who are at most risk because they will be in closer proximity of [the patient] over a more prolonged period of time. I would have concerns about similar incidents recurring with any new neighbours albeit after a prolonged period of time."
Under the heading: "Risks posed by [the patient] were she conditionally discharged", he said:
"My report for the Tribunal outlined risk assessment in relation to current risk whist detained in the hospital. Also I suggested there were different risks were she to be discharged from hospital. At the Tribunal there was discussion of relatively low risk while she was in hospital. The Tribunal panel suggested that the risk were relatively low were [the patient] to be managed out of hospital. I suggested that there would be significant risk, particularly to potential neighbours and to the previous victims. I remain of the belief that [the patient] poses significant risk to others. I accept the issue that, [the patient] has exhibited significant violence on only one occasion (that being the event that led to her current period of detention) and that she had harboured persecutory delusions for many years prior to this. On this basis one may argue that now she is on some antipsychotic medication, any such risk is somewhat or at least slightly reduced, and that actual likelihood of further assault is relatively law. Although, in principle, I would accept this argument, in practice it depends upon [the patient] continuing to take that antipsychotic medication. As stated above, I doubt that she will."
One can see that that paragraph is a mixture of Dr Kehoe's views and his account of proceedings before the Tribunal.
The written reports, as I have mentioned, were threefold: that of Dr Kehoe referred to the patient's history. He said this:
"It emerges that she has a long history of delusionary ideas going back 15 - 20 years or more. At the time she had developed systematic beliefs that her family were descended from Babylonian and Egyptian Gods and that they were some sort of threat to the Royal Family. As a consequence the Royal Family, the Government, social and health services and all her neighbours were involved in a plot to destroy and discredit her. She believed that the police and neighbours were involved in plotting against her. She relates some of this to specific incidents that occurred as long back as when she was 17 years of age.
It is likely that some of her complaints of harassment are in fact based upon reality but overwhelming [the patient] interpreted events in a paranoid and persecutory fashion.
It emerges that [the patient] had been increasingly concerned about her safety and was carried a large kitchen knife with her approximately two years before the offence of October 2003. At that time [the patient] became involved in a dispute with a neighbour and the neighbour's daughter. [The patient] assaulted these individuals. The neighbour's husband subsequently arrived and attempted to intervene at which point [the patient] produced a knife and assaulted Mr Grice with it, inflicting several injuries to his hands.
On discussion of this incident, [the patient] made it clear that she wished she had been able to more seriously harm the victims of the assault.
She believed that she had learned things about the Government and the way it worked whilst employed by the Civil Service in the 1970's. She had become preoccupied with the ideas of a religious theme. She became a Jehovah's Witness. She linked similar concerns to being connected to an incident at the age of 17 at a party. She believes that the health service staff, including doctors, get some sort of sexual thrill by giving her injections. She has not shown insight into her beliefs. As time has progressed she has become increasingly reluctant to divulge details of her beliefs because she now understands that these ideas can be used against her to demonstrate that he is mentally unwell."
He referred to her past psychiatric history, which included anorexia at the age of 25, depression at the same age, including an overdose of Benzodiazepines. In May 2003 she had been admitted into a psychiatric unit in Scunthorpe for paranoid delusions and treated with Risperidone. She had been detained under the Mental Health Act but discharged by a Mental Health Review Tribunal.
Dr Kehoe set out the family history of the patient, referred to the fact that she denied drinking alcohol or using illicit substances. There was no forensic history other than the index offences. No serious physical illness. Under the heading "Initial Diagnosis and Treatment Plan Upon Admission to Cygnet Hospital", he said:
"It was recognised that she had long standing delusional disorder. After a period of initial assessment she was commenced on regular anti psychotic medication in the form of Clopixol intramuscular depot medication. She had refused to take any oral medication.
She was commenced on intramuscular Clopixol in April 2004. In June 2004 we offered her oral Clopixol instead of the depot but she refused to take the tablets.
In June 2004 it appeared that she was not developing any new delusional beliefs but remained adamant that there had been a conspiracy going on for many years. There have not been any episodes of aggression towards others or any voicing of ideas or self harm.
In August 2004 it was noted that she had been quite low in mood and showed some evidence of depression. She was concerned that this could partly be attributable to anti psychotic medication. We reduced the dose of Clopixol from 200 mgs each two weeks to 150 mgs each two weeks. We have continued to encourage her with occupational therapy activities and relaxation.
For several months now she has been having escorted leave within the grounds of hospital.
At interview she continues to express extensive delusional complex, particularly involving neighbours in the area that she was living and the police and also partly health workers.
Risk Assessment
Recent risk assessment in September 2004, in her current environment, the following risks applied..."
And the various risks were set out and for present purposes it is sufficient to note that suicide, self-harm, aggression to people, aggression to property and arson, were all assessed as being matters involving low risk; and moderate risk of absconding was stated.
Under the heading of "Current Medication", Dr Kehoe having referred to her medication said:
"She has become more compliant with her medication and no longer actively resists being given a depot each two weeks.
In terms of clinical response, it has to be said that her clinical response to date is limited. On the positive side she does not appear to be developing any new delusional beliefs. She has not gained insight into her pre-existing persecutory beliefs. It was upon the basis of such persecutory beliefs that she assaulted her neighbours and their child in October 2003."
His opinion and recommendation were as follows:
"[The patient] is a 54 year woman with a long history of persecutory beliefs. Her social functioning deteriorated from a level of employment some 10-15 years ago to a lifestyle which became increasingly based upon her paranoid interpretation of events going on around her. I understand that she was almost barricaded into her home based upon perceived fear by [the patient] that she would be victimised or harassed.
The most appropriate diagnosis is one of delusional disorder although she may be considered to be suffering from paranoid schizophrenia. Whichever, she is suffering from a mental illness within the meaning of the Mental Health Act 1983. She is detained primarily in the interests of her health and in the interest of the protection of others. Her illness is of a nature and degree that requires hospital care. The nature of her illness is one of a persistent chronic delusional state. The degree is such that her beliefs significantly impair her social functioning and at times causes her to be violent in his response to her general sense of persecution. While there has not been any further episodes of violence over the last six months, she retains most of her persecutory beliefs. Hence, if she were in a different environment there would have to be a significant risk to others. In particular, I would consider that she may wish to pursue further harm to her neighbours in the Scunthorpe area.
With respect to the risk to the general public this would appear to be relatively low, particularly if [the patient] were having escorted community leave. I am in the process of applying to the Home Office for such an escorted community leave to assist in her rehabilitation. She is keen to pursue her interest of clothes making and sewing and as part of this it would be helpful for her to purchase materials for this interest.
It is unlikely that [the patient] would comply with her medication were she not detained under the Mental Health Act. If she were discharged from the Mental Health Act detention then I would suggest the following plan:
Offer informal admission in Scunthorpe psychiatric unit.
Inform people at particular risk ([her] previous neighbours)....
RMO to revert to Dr Saleh.
Care Co-ordinator to continue as Mr Dave Matthews.
Identify supported accommodation if at all possible as it would be unsuitable for her to move back to the same accommodation where she used to live.
Recommend ongoing treatment with Zuclopenthixol im depot medication.
I would recommend that [the patient] continues to be detained under the Mental Health Act. She of course is subject to a restriction order. I think she needs ongoing anti psychotic medication. To date she has been treated with one such preparation. Alternatives may be more successful but each is likely to require a period of treatment of several months. The overall prognosis has to be guarded because of the long history and the marked lack of insight."
The staff nurse, Kurai Nyatang, in the report of 4th November 2004, said this, under the heading "Current Presentation":
"[The patient] is pleasant on approach with good social cues during interaction. She appears mildly despondent in mood and affect which could be due to the environment. [The patient] has not been observed responding to stimuli since admission to Bronte ward. She, however, continues to harbour memories of past delusions of persecution by the Crown, the Government and its security departments. She also harbours anger towards the Mental Health Services and Judiciary for her continued detention. [The patient] feels that these services want to 'tip her into a state of mind and behaviour' that would have her 'wrongfully' kept under Section, so as to have medication enforced upon her and for her to be silenced indefinitely. [The patient] lacks insight into her condition and does not believe she has a mental health illness. She places a lot of faith in homoeopathy and alternative medicines. She is also passively compliant with her depot medication."
The report referred to the patient's ward activities. Under the heading "Medication", it stated:
"Initially [the patient] used to offer resistance when overed her prescribed depot medication. She would hide under her bed, lock herself in the toilet and on one occasion threatened to defend herself by stating that she would use physical violence to any staff involved in administering the medication. Plans were put in place to have a C & R team present when her depot medication was being administered. This plan was carried out a couple of times before being dismissed as [the patient] reluctantly became compliant with prescribed medication. To date she has not offered any resistance when her depot medication has been administered."
Under the heading "Patient's Views", the report stated:
"[The patient] believes that she has no mental illness. She continues to believe that she has been seriously wronged and oppressed. She has reported that she is now suffering from depression due to being hospitalised. [The patient] has expressed that she feels frightened about her future and believes that she will remain in hospital for a very long time. She would like to be released and wants people prosecuted for all the wrongs against her. She also remains adamant that she was only acting in self defence when pulled out a knife on her neighbour."
The "Recommendations" were:
"Since admission [the patient] has posed no management problems. She has remained isolative with minimal interactions with both staff and peers. She is reluctantly complied with prescribed medication and I believe that if she were to be discharged she would stop taking her medication and resort to her previous reclusive life-style."
The specialist social worker's report referred to the patient's home and family circumstances and stated:
"Since local mental health services became aware of [the patient] she has been at odds with the community due to her delusional beliefs system. [The patient] has confronted her neighbours, accusing them of a wide range [of] improper behaviour, including prostitution and drug dealing. [The patient] was not registered with a GP and would not engage with other formal agencies including the Benefits Agency who would have stopped her benefit had mental health services not intervened on her behalf. Due to [the patient's] paranoid delusional beliefs about her neighbours, who she thought were conspiring against her and abusing her, she constructed a barricade on the inside to prevent anyone getting into her home."
The report referred to the views of the patient's nearest relative, Malcolm, who:
"...believes that she is in the wrong environment which, in his opinion, has been detrimental to her mental health. He feels that [the patient] does not cope well with confinement and being in close proximity to people he believes are more seriously ill than her. Malcolm also feels that [the patient] is not being provided with sufficient occupation or the opportunity to pursue her interest in woodwork and dressmaking. Malcolm acknowledges that [the patient] has an illness, which he believes should be treated at home by community mental health services, which, in the event of a crisis, could facilitate her readmission to Hospital."
The views of the client were stated as follows:
"[The patient] believes that she will not be discharged from Hospital, as it was her neighbours, and the local mental health service objectives to have her detained indefinitely. [The patient] does not believe that she has a mental disorder and does not require medication, but is resigned to taking it because she is on a Section of the Mental Health Act. [The patient] has stated that she would not return to Scunthorpe, if given the chance, as she believes that those who had previously conspired against her, would seek her out."
Part B of that report set out community support and relevant medical services. They were headed with a note:
"The facilities/resources which are outlined within this section are those which could be available to a client, were he/she to be discharged into the community. There would however require to be an assessment of his/her care needs prior to any considered discharge, to determine whether or not they would be adequate/relevant."
There were then set out the facilities available. Those facilities are generally facilities in Scunthorpe. It is clear from the heading to which I have referred that that part of the report was not tailored to the needs of the patient, and that it is no objection to the report, or indeed to the decision of the Tribunal, since the decision of the Tribunal entailed later consideration of the question whether arrangements had been made to satisfy the conditions which they stipulated.
In addition to the written reports and the oral evidence of Dr Kehoe, the Tribunal heard evidence from, I am told, and as indeed appears from its record, the ward manager, Mr Grimshaw; apparently also the nurse, and Mr Matthews, the specialist social worker; from the patient herself, and her brother, Malcolm. It would appear that the evidence of her brother was largely consistent with the references to his opinions in the social worker's report.
In the course of her evidence the patient affirmed that she would, if discharged into the community, be compliant with her medication, if only to prevent her recall into hospital.
In addition to Dr Kehoe's witness statement there are in evidence the attendance notes made by an employee of the solicitors acting for the patient. The notes are short. I do not think it is suggested that they are comprehensive, but, in the absence of better evidence, I accept them as being a statement of the substance of the evidence that was given. According to these notes Dr Kehoe stated:
"Illnesses of a nature and degree within the meaning of the Mental Health Act 1983 which requires her remaining in hospital for the safety of herself and others strongly of the belief that clients should not be discharged. Delusional beliefs continue to be strong, although no episode of violence whilst in hospital. If out of hospital she is very likely to be of danger to others. Her neighbours in the Scunthorpe area or new neighbour elsewhere. The client believes she should not be on medication caused by lack of insight and therefore unlikely to take it if discharged, causing problems. Would like to try different medications with the patient which would require her remaining in hospital, remaining on section means she would have no alternative but to comply."
Dave Matthews, a specialist social worker, gave oral evidence which summarised as:
"Discussed possible accomodation as for the patient as per his report, and be perhaps better if the patient was not accommodated near her old home."
Kurai Nyatanga, the staff nurse, is reported as saying this:
"At first client not compliant with medication and would hide etc now compliant. Keeps herself to herself in her room a lot. Does not want to join in activities offered on the ward."
That note does not refer to the evidence given by the ward manager, Mr Grimshaw, who did apparently give evidence, nor does it summarise the evidence given by the patient and her brother.
The Tribunal's written decision referred to the statutory criteria which it had had to consider and the satisfaction or otherwise of which it had had to determine. Under the heading "Legal grounds for Tribunal's decision," it stated:
Tribunal is not satisfied that the patient is suffering from mental illness, psychopathic disorders, severe mental impairment or mental impairment or any forms of disorder of the nature of degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment.
Tribunal is not satisfied that it is necessary for the health or safety of the patient or of the protection of other persons that she should receive such treatment.
The Tribunal is satisfied that it is appropriate for the patient to remain liable for recalled to hospital for further treatment."
The Tribunal determined that there should be three conditions attached to the proposed discharge of the patient:
That upon discharge the patient should be supervised by Dr Saleh (or his nominated replacement) as Responsible Medical Officer and should continue to take anti-psychotic medication(initially her present depot injections) as directed.
That upon discharge the patient should be under the supervision of an approved social worker (initially Mr Matthews or his nominated replacement) and should co-operate with him and members of the Assertive Outreach team.
That the patient should reside in appropriate accommodation as initially identified and later directed by her approved social worker."
The assertive outreach team was one of the facilities that had been described in Mr Matthews' report.
Curiously, the written decision recites that oral evidence had been given by Dr Kehoe, Mr Grimshaw, the ward manager, Mr Matthews, the patient and her brother, but omits to refer to Staff Nurse Nyatanga, who clearly did give evidence, as appears from the attendance notes to which I have referred, and, as is, as I think, common ground before me.
The reasons for the Tribunal's decision were as follows:
"The Tribunal noted that there is no significant forensic history. There has been one previous very short admission under section 2.
Though the Tribunal accepts that there was a history of long standing delusional beliefs of a paranoid nature and that such continuing and were indeed evidence by the patient in her evidence it is necessary to put such in context. First we accept the evidence that she was indeed subject to some harassment in the months (indeed years) leading up to the index offence. Her beliefs though grossly exaggerated may have some limited factual basis. Second it is important to record that she is not presently fixated by such beliefs and nor is there any evidence of new beliefs. Third and critically she has only once, on the occasion of the index offence, acted on those beliefs in a manner which poses risk or danger to others.
If those beliefs are longstanding (as we accept they are) she has managed to live in the community without coming to 'authority's' attention until shortly before the index offence. Further we recognise that many people with such delusional beliefs can successfully live in (and, where appropriate, be treated in) the community.
The patient has posed no management problems (save initially in relation to prescribed medication) over the last 10 months and we repeat there has only ever been the one incident of violence. We also think it right to record that that incident was directed at specific individuals for specific reasons and there is no evidence of any more general risk.
We understand Dr Kehoe's concern to seek to treat such beliefs through medication (and perhaps psychological intervention) but we note the very limited progress made thus far and the patient's continued resistance (arising, we accept, in substantial measure through lack of insight into her condition. We note Dr Kehoe frankly accepted that such presentation may well not (often does not) respond to treatment.
The question for us is whether we take the view her condition is of a nature (or more specifically) of a degree which makes it appropriate for her to be detained for treatment or, put another way could not that treatment properly and appropriately be based in the community. Risk assessments have identified only low risks of harm to self or other. She is enjoying significant unescorted ground leave and has not endeavoured to abscond.
It is right that she is reluctant to take medication (which she does not feel she needs) but she assures us that she will do so if only to avoid continued detention. We think that with the assistance of specialist community based workers compliance can be ensured with the sanction of recall being used if necessary.
We are also bound to record the evidence that not only is she making only limited progress in hospital but there is some indication that she is frankly deteriorating as signs of frustration and depression emerge. We accept her brother's evidence in this regard.
It is clearly right that she should remain liable to recall. An earlier discharge was not as successful as hoped given difficulty over ensuring compliance with medication but we hope future supervision will be more structured and (at least initially) more intensive.
Steps are now being taken to identify suitable (probably independent) accommodation away form her former neighbours and to put in place some considered care package but we hope (and expect) that this can readily be done within the period envisaged. If escorted leave will assist in this regard we hope such can be granted."
The Tribunal reconvened on 7th March 2005, to consider whether arrangements had been made to satisfy the conditions it had set. By that date it was aware that the Secretary of State was proposing to bring proceedings to challenge its original decision.
The Tribunal did not make a substantive decision on that occasion, but adjourned the proceedings for a further hearing to take place on 1st April 2005. I assumed that that hearing did not take place, in view of these pending proceedings.
In the reasons given for their decision to adjourn, the Tribunal referred to the letter before action that had been sent by the Home Secretary, and said:
"We sought to confine the evidence to the question of the conditions earlier identified and to avoid any revisiting of the original decision (or of the potential criticism of such). It was clear to us that some appropriate steps had been taken. Dr Saleh had agreed to act as RMO and a plan for out patient attendance could readily be completed. The Assertive Outreach Team were ready to supervise through initially daily attendance and could administer the depot medication which the patient was continuing to take. Additionally we were pleased to note that there had been significant escorted leave in the local vicinity and that such had gone well. Unhappily the Home Office have only recently granted permission for an escorted visit to the Humberside area to discuss housing needs. We understand that there still may still be some concerns as to the former neighbours...and there has been some discussion as to an 'exclusion zone'. We understand those concerns and could readily envisage adding an additional condition if and when discharge is ordered.
However those concerns have prevented a visit to the Humberside area and the identification of any appropriate accommodation. The patient is anxious to be discharged at the earliest opportunity. To that end there was a substantial discussion as to whether or not she could, as a short term measure, be accommodated at her mother's (and step-father's) home. We are not satisfied such would be appropriate at least in the absence of detailed assessment. It is not what we envisaged. It may be that if there are to be long delays in identifying appropriate accommodation the matter would have to be revisited but we take the view that as soon as the patient can be interviewed by the Local Housing Department appropriate accommodation should (relatively easily) identified. To that end we have adjourned matters further in the hope that such can be achieved."
The Tribunal also expressed the hope that the Home Secretary would decide whether or not to pursue the application for judicial review and, if so, to seek a stay of its proceedings before the adjourned hearing due to take place on 1st April.
In response to the present proceedings, the President of the panel of the Mental Health Review Tribunal, Mr Stuart Brown QC, made a statement which has been filed. He referred to the chairman's notes, of which the Home Office had sought a copy, and said that the notes he had taken were taken directly onto the case papers and referred to the Tribunal offices in the knowledge that the matter would require a further hearing, and could not then be located; as far as I am aware still cannot be located, a matter of considerable regret. He said:
"I have had the opportunity of reading the lay member's limited notes and have seen a summary of notes taken by the patient's then solicitor. I have a good recollection of the case.
The decision taken was a unanimous decision. It was taken for the reasons set out in the Decision Form. I am aware that it is suggested that those reasons are inadequate. I am emphasise the following features:-
First although there was a significant psychiatric history there had been but the one incident of (violence) acting out of delusional beliefs. In so far as Dr Kehoe's report suggested otherwise he was in error and we were frankly concerned by some obvious exaggeration of the risk. I refer to his original report and his reference to the degree of illness being 'at times such as to cause her to be violent in response to her general sense of persecution.' I repeat we were only made aware one such episode.
This matter impinges upon the question of risk; the only evidence we obtained (orally) as to risk was that there may be some continuing risk to the original victim. That was a matter we felt could be dealt with by appropriate placement away from risk area (and, as we now accept, by some additional condition incorporating an exclusion zone).
We were satisfied that an experienced and fully informed community team (Assertive Outreach) could appropriately manage the case in community. That was effectively the evidence we received Mr Matthews. It is right that there had been difficulties on an earlier discharge but the sort of arrangements we envisage were not then in place.
We were as the decisions reasons make plain very mindful concerns as to compliance (particularly given past history) but we accepted the patient's undertaking that she would continue to take medication if only because she 'had to'. If she failed to do so (and her condition could readily be monitored given that she was on depot medication), she would be liable to recall. We did not think this was a difficulty.
We were also frankly concerned to the absence of progress mad in the period of hospitalisation.
The original report from Dr Kehoe was dated some 3 months before the hearing. At that stage escorted community leave was contemplated as an imminent matter but it had still not began at the time of the hearing and indeed has only began subsequent to our order. We note that such has in the event gone well.
We also note there was no other actual other treatment other than the provision medication in fact being undertaken. There was some evidence, referred in our decision, that the patient was deteriorating.
We noted that she continued to suffer from an illness characterised by delusional beliefs but we accepted Dr Kehoe's evidence that such might not respond (ever) and we noted that she had lived in the community without causing serious concern (this incident put the index offence apart) for many years.
These were the factors which underlay our decision and which we believe were fully expressed within the reasons given."
I turn to the consider the grounds for the application for judicial review. This is a reasons challenge. It is not suggested that the decision made by the Tribunal was one which the Tribunal could not reasonably have made on the evidence before it. Indeed it is a decision with which I as a reviewing Court have considerable sympathy. The matters taken into account by the Tribunal were matters such as the concern as to the deterioration in the patient's condition which it was fully entitled to take into account.
The question, however, is whether the reasons given by the Tribunal were sufficient to justify its decision. The first ground to challenge the decision is that it erred in its consideration of the question whether the patient was suffering from mental illness, etcetera, "of a nature or degree" which makes it appropriate for her to be liable to be detained in a hospital for medical treatment.
It is submitted that the Tribunal erred because it confused and indeed conflated the questions of nature and degree which, as the authorities show, have to be considered disjunctively. The Tribunal treated the questions of nature and degree as effectively identical, as shown by its statement that appears to make "degree" as being a class of "nature". I refer to the words: "Her condition is of a nature or (more specifically) of a degree which makes it appropriate for her to be detained for treatment." The Tribunal did, however, continue with these words:
"Put another way, could not that treatment properly and appropriately be based in the community?"
The significance of the reference in the statutory criteria to nature or degree is discussed in Jones Mental Health Act Manual 9th ed at page 343, in which reference is made to the judgment of Popplewell J, in R v The Mental Health Review Tribunal the South Thames Region Ex parte Smith COD 148. The two paragraphs of the judgment cited there are to be inserted into my judgment:
"[At the time of the tribunal hearing the patient] was in a stable condition and it is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he had a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interretation that nature is some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may remain static. It seems to me that if the facts upon which the tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable."
His Lordship continued:
"If one had simply to look at the degree it would have been right for the discharge to take, but the nature of the condition was such that it was clear that he should not be discharged. It may well be in a great number of cases that nature and degree involve much the same questions ... and it may be that tribunals will be wise, if they have any doubts about it, to include them both [in their conclusions].
The finding of Popplewell J in Smith is consistent with the obligations place on the tribunal by Art 5 of the European Convention on Human Rights: see R (on the application of H) v Mental Health Review Tribunal, North and East London Region, CA, noted under "The Human Rights Act 1998" above.
Smith was followed by Latham J in R v London and South West Region Mental Health Review Tribunal Ex P Moyle, noted below, where his Lordship, when considering the position of a patient with a history of relapsing said..."
Jones continues with a statement that the judgment of Popplewell J is consistent with the obligations placed on the Tribunal by Article 5 of the European Convention of Human Rights and then refers to the judgment of Latham J in R v London South and South West Region Mental Health Review Tribunal, ex parte Moyle, reference to be supplied, in which Latham J (as he then was) said:
"The correct analysis, in my judgment, is that the nature of the illness of a patient such as the applicant is that it is an illness which will relapse in the absence medication. The question that then has to be asked is whether the nature of that illness is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment. Whether it is appropriate or not will depend upon an assessment of the probability that he will relapse in the near future if he were free in the community."
As I said during the course of argument, I have some sympathy with the difficulties faced by tribunals in addressing these statutory criteria and the distinction between nature and degree. In many cases the distinction is elusive, and it may not matter under which head the question is addressed. In a case such as the present, where the issues for the Tribunal are (a) the seriousness of the patient's condition; (b) whether, if the patient is discharged into the community, the patient will accept medication; and (c) the degree of risk to the patient, or to others, if she does not do so. The real question is one of degree of risk of relapse in the community, as made clear by Latham J in the passage to which I have referred. In a case such as the present that issue depends on the prospects that the patient will continue to accept, or to take, her medication if she is released into the community. It is clear that that Tribunal addressed the relevant issues. I would not set aside their decision on the somewhat academic ground that their reasons conflate the questions raised by nature and by degree.
The Home Secretary's other grounds of challenge are more substantial. It is submitted that there were inadequate grounds for the finding that the patient would comply with medication if discharged and insufficient reasons for rejecting the medical evidence, which was all one way that there was a serious risk that she would not do so and, if she did not do so, would pose a real risk to others. The requirement of reasons in the present context has been authoritatively considered by the Court of Appeal in H and Ashworth [2002] EWCA Civ 923, at paragraph 71 and following. I do not propose to set them out in this judgment. It follows from the Court of Appeal judgment, however, that it is not sufficient for a Tribunal to say it prefers one witness to another. It follows from that that it is equally insufficient that it appears from the reasons that they did so, and in the present case specifically, that they accepted the evidence of the patient as to the risk or lack of risk of her accepting medication, if discharged into the community, and implicitly rejected the views of her RMO and nurse. It is particularly important for the Tribunal to explain the basis of its decision and the reasons for its preferring one witness to another, where the RMO and nurse have not merely expressed a fear, but, as in the present case, have given substantial reasons for it, including the previous failure on release, the refusal or reluctance of the patient to accept medication, her threat of violence initially, her refusal to accept oral medication, her belief that she was not suffering from a mental illness and her belief that some sort of pleasure, apparently of a sexual kind, was obtained by staff giving her the medication.
It is also important that the reasons given by the Tribunal should be comprehensive. This Court will accept from the Tribunal subsequent evidence that is merely elucidatory of the reasons contained in the formal decision, but generally speaking will not receive evidence that there were reasons other than those given formally, unless that evidence discloses some other irregulatory in the decision of the Tribunal.
That principle is particularly important where, as in the present case, the medical evidence is one way, and where the potential risk to the public or to the patient is serious. Both of those conditions are satisfied in the present case. I have already referred to the state of the medical evidence. The patient carried a knife for a considerable period before the index offence. Although during that period that did not result in other offences beyond the index offence, the risk of injury if a knife was used was considerable. She did use a knife in the index offence. She intended to cause greater injury than she in fact caused and, if a knife were to be used again, the risk to a member of the public would be manifestly serious.
I regret to say that I cannot discern the reasons for rejecting Dr Kehoe's and the nursing evidence from the written reasons given by the Tribunal. Moreover, it seems that at least one of the reasons of the Tribunal for rejecting Dr Kehoe's evidence was not contained in its decision. I refer to paragraph (i) of Mr Brown's statement in which he said that the Tribunal:
"Were frankly concerned by some obvious exaggeration of the risk"
by Dr Kehoe in his report.
Not only was that reason not contained in the decision itself, but so far as it appears from the evidence before me, that was not a matter which was put to Dr Kehoe for him to give an opportunity to explain what he meant, whether he was referring to the difficulties, initially, in giving the patient her medication, or something else. One does not know. That is a matter of speculation. It is possible it was a slip of the pen. I have to say, looking at Dr Kehoe's report generally, I do not see real exaggeration. Indeed it is noticeable that, for example, he did say, in terms, that some of the patient's complaints of harassment were in fact based upon reality. There are other passages which appear to be me to be inconsistent with general exaggeration.
My view, whether or not the report is marked by exaggeration, is however neither here nor there. The fact remains that the reason was not referred to in the determination and the matter was not put to Dr Kehoe. If in the criticism of Dr Kehoe his evidence was well-founded, it might well have justified rejecting his evidence. But there is nothing before me to show that the matter was fairly explored, and as I have already stated, it is not reflected in the decision.
Mr Harrison, on behalf of the patient, submitted that there was nothing to show that that consideration was a crucial consideration so far as the decision of Tribunal was concerned. The difficulty is, as Miss Demetriou pointed out, since the matter was not referred in the determination itself, one does not know whether it was determinative or not. In any event, it is unnecessary for the Home Secretary to establish that it was a determinative reason, in so far as she complains that the reasons were inadequate and this reason was not given. It is sufficient that there was a reason which was material -- and clearly it was material -- which is not contained in the decision.
There are additional grounds relied on by the Home Secretary. In particular it is submitted that the Tribunal erred in finding that there was no evidence of a more general risk than the risk to the neighbours who had been involved in the index offence; and that, in stating that the risk assessments had identified only low risk of harm to self or others, the Tribunal erred, because those assessments, which in the context will appear to be assessments of risk in and out of hospital, where in fact risk assessments only in hospital.
Given my conclusion on the reasons given for rejecting the medical evidence, it is unnecessary for me to reach any final conclusion on those points. It is also said that there was not evidence on which the Tribunal could properly conclude that there would be adequate support in the community, as suggested by their decision. I would not have interfered with their decision on that ground, having regard to the comprehensive evidence they had received as to what might be available, and the fact that they had deferred actual discharge until arrangements had been made, which were, in their view, sufficient to satisfy the conditions they had stipulated.
A point is also raised as to whether the imposition of an exclusion zone to include, if not the whole of Scunthorpe, the area where the patient had previously lived, would be a condition additional to those originally stipulated and therefore a condition which could not properly have been imposed by the Tribunal at or after its adjourned hearing. Again, that is a matter I need not consider for the purposes of the present proceedings.
I have considered whether, in the light of all the evidence, it would be right not to interfere with the decision of the Tribunal, but it seems to me that the approach of the Tribunal to Dr Kehoe's evidence was fundamental to its conclusion.
In those circumstances, in my judgment, the proper order is an order quashing the decision of the Tribunal, and remitting the matter to be heard by a fresh Tribunal.
MR JUSTICE STANLEY BURNTON: Does either of you have anything to say about the order?
MISS DEMETRIOU: My Lord, no. As regards costs, we are not seeking any order for costs.
MR HARRISON: I have nothing to say about the order, but I do invite your Lordship to give leave for permission to appeal.
MR JUSTICE STANLEY BURNTON: On the ground?
MR HARRISON: I am particularly concerned, my Lord, to identify a ground of immediate and apparent substance. Your Lordship has dealt with the fundamental decision you have reached on the basis this was an H and Ashworth case. In our submission, it was not. As we have submitted, the question of assessment of whether or not this lady would take her medication, if released, was fundamentally for the Tribunal. It was the Tribunal's responsibility to decide that, not that of the doctor. This is not, as we submitted, a case where expert evidence on a critical issue was given and could only be rejected in the presence of counter-expert evidence. We would submit, respectfully, that your Lordship's decision is based upon an analysis that the claimant put before you: that in effect the tension in the evidence was between the doctor and the patient, but we submit it was not so, and that therefore the Ashworth approach did not arise. In my submission it is important, in cases of this sort, to know what limits of that decision are, because I am, with respect, concerned that if, as was argued in this case on the other side, an opinion by a doctor as to a matter which is fundamental in issue for the Tribunal is to be accepted by the Tribunal, unless plainly rejected on grounds of the existence of the contrary opinion, that that would be a misapplication of the law. I have to identify immediately a ground. I am not saying those are the only matters we would seek to air, but you asked me for a specific ground immediately and that is the one I have in mind.
MISS DEMETRIOU: My Lord, in my respectful submission that conflates two issues. One is the adequacy of reasons. The second one is the concern raised by Mr Harrison as to whether or not somehow expert evidence can trump, or necessarily trumps, other evidence. That is no part of our submission at all. We are simply saying: of course we accept it is open to the Tribunal to reject medical evidence. If it does so it has to explain why, as they did in our submission, and my Lord did not say anything different in his judgment.
MR JUSTICE STANLEY BURNTON: Mr Harrison, I do not propose to give permission. What I shall do is ask for the transcript to be expedited which will enable you to seek permission elsewhere.
MR HARRISON: That was my next application indeed.
MR JUSTICE STANLEY BURNTON: Thank you both.