O, R (on the application of) v The Mental Health Review Tribunal

MR JUSTICE COLLINS: This is a claim for judicial review of a decision of the Mental Health Review Tribunal that it had jurisdiction to continue to consider the claimant's case following what was alleged to be a valid withdrawal of his application.

The decision in question was made as long ago as 30 November 2005, but the written reasons were not communicated to the claimant until January 2006. I granted permission in March and directed that the claim should be heard as soon as possible. Regrettably, it has not been possible to hear it until today. The result of the delay is that the claimant has been moved to another hospital from that in which he was detained, and it may be that, in those circumstances, the issue that is at stake in this application has become somewhat academic. Nonetheless, the point is an important one and it may affect the future conduct of the Tribunal, and so the future manner in which this particular claimant is dealt with.

He was detained pursuant to section 3 of the Mental Health Act, suffering from a mental illness that was probably paranoid schizophrenia. The claimant made an application, as he was entitled to do, pursuant to the Mental Health Act to the Mental Health Review Tribunal. That application was that he should be discharged. In due course, that application, which was originally made on 22 February 2005, came before a Tribunal initially on 31 March when the proceedings were adjourned to 25 May to enable further evidence to be provided. The point that was being made was that it was not then in dispute that the claimant was and for some time had been inadequately treated because of the unsuitability of his current ward. What the Tribunal said was that a low secure treatment setting was being sought and an assessment for a newly constructed unit nearby was under way. In fairness to the patient and in order to reduce the risk of further drift, the Tribunal required detailed information about the possible new treatment setting and the patient's acceptability for it.

The matter came back to the Tribunal on 17 June 2005, and it is that decision that is the important one because it has triggered the reason for the claim being made.

The Tribunal then decided that the patient should not be discharged because it was satisfied that he was suffering a relevant condition which made it necessary that he be detained. It was not appropriate to discharge him under the Tribunal's discretionary powers. However, what the Tribunal did was to make a recommendation, and it was in these terms:

The reasons for the Tribunal's decision I need not set out in any detail, but they indicated that, although he might be willing to remain on the ward as an informal patient until suitable accommodation was found, if the section was removed, he would almost certainly carry out his candidly expressed intention to stop all medication, and the risks that flowed from that in the case of somebody suffering from paranoid schizophrenia was all too clear.

It pointed out that there had been a delay in identifying placement for the patient, and it was necessary, it believed, that a more appropriate therapeutic hospital setting was needed for the patient to facilitate a future discharge from section, and therefore it decided to make a formal recommendation in that regard.

However, before 31 August, the solicitor representing the claimant had received a letter from the Hampshire Partnership NHS Trust in which it said that it was sorry to inform her that the claimant had been declined a place at the relevant low secure unit to which it had been hoped that he would go. It said that there had been an agreement made at a meeting that consideration should be given to residence at another particular place, which was a Challenging Behaviour Unit under the Rehabilitation Service for the Trust, and that the claimant had been referred to a consultant psychiatrist in rehabilitation for consideration. It pointed out that the clinical team would continue to work hard to secure a suitable placement, as all were agreed that the Department of Psychiatry no longer served his needs and welfare.

In those circumstances, the solicitor wrote a letter to the Mental Health Review Tribunal on 15 August, referring to the recommendation that he be transferred to a more therapeutic hospital setting and pointing out that because the process of referral might take several months and there was no guarantee that a suitable low secure unit would be found, she invited the Tribunal to reconvene on a convenient date in September. In fact, it was not able to reconvene until 10 October, when the matter was again adjourned to 31 October for further information, and partly too because the patient did not attend that hearing and was not represented before it.

On 9 November the solicitor indicated in a letter to the Mental Health Review (and that was the reason for non-attendance in October) that the claimant had ceased to instruct her and so the Tribunal had actually appointed her to represent him. In that letter, she wrote:

That letter having been sent, Miss Pottinger received a letter on behalf of the clerk to the Mental Health Tribunal dated 15 November, received by her on the 17th, in which this was said:

It seems that that letter was written pursuant to the then current protocol, which was adopted by all Mental Health Review Tribunals in respect of withdrawals of applications. What that said was this:

On 17 November 2005, an e-mail was sent to the solicitor from the Chairman of the Tribunal in these terms (in fact it was a copy of an e-mail sent to an official in the Trust):-

The matter came back before the Tribunal on 30 November when there was a further adjournment. But on that occasion, as the reasons indicate, the solicitor, Miss Pottinger, raised the argument that the Tribunal no longer had any jurisdiction to deal with the matter because they had agreed to the claim being withdrawn, and indeed it had been withdrawn. The argument was that the patient having complied with the formalities required by the relevant rule of the Mental Health Review Tribunal Rules, namely Rule 19, further involvement by the Tribunal could not be justified. The Tribunal said:

So the point that was being made, and indeed has been pursued before me on behalf of the Tribunal, is that the use of the word "case" in section 72(3)(b) means that it is not an application, and the application was brought to an end when the decision was made on 17 June that he was not eligible for discharge, but that a recommendation should be made. Any further consideration was not of the application, but was of the case.

I think I need not refer further to the reasons given by the Tribunal because I shall deal with them in the course of this judgment when referring to the submissions made by Mr Ward, which effectively follow the reasoning of the Tribunal.

The claimant takes issue with two points. First, he submits that the construction of the section applied by the Tribunal was wrong, that the application was still being considered and had not come to an end when the Tribunal -- the recommendation not having been complied with -- decided that it would consider it further. Secondly, Mr Pezzani has submitted that, as a result of the letter from the clerk to the Tribunal, the claimant had a legitimate expectation that his claim had been treated as withdrawn, and it was not in those circumstances open to the Tribunal to continue to hear it, and for that reason too, the Tribunal should have accepted that it had no jurisdiction.

I should now consider the relevant statutory provisions, both of the Act and of the Rules. Section 65 in Part V of the Act deals with Mental Health Review Tribunals. Section 65(1) provides:

A patient who is detained under section 3 of the Act can only be detained initially for a period of no more than six months. There is then the power to renew any detention, and that can be for a further period of six months, and thereafter, for further periods of 12 months at a time. There is a right given to apply to the Mental Health Review Tribunal during each relevant period -- thus within each initial period of six months and thereafter within each period of 12 months.

In addition to that, if a patient does not make an application within the relevant period, the authorities are obliged to make a reference to the Tribunal so that the Tribunal can consider, even though the patient has not made an application, whether he should continue to be detained. That is for the protection of the individual because detention under the Act is a restriction on his liberty and thus it is necessary that the matter be considered at regular intervals by an independent Tribunal. So much is needed to comply with Article 5 of the European Convention on Human Rights, which is now part of our law by virtue of the Human Rights Act.

The position therefore, as is perhaps obvious, can arise where if there are delays and adjournments by a Tribunal, it is possible that a second application can be made to a Tribunal, and so there can be two applications, or even a reference and an application which are running at the same time. When we come to the rules we will see that, at least in part, they cater that state of affairs.

Section 66 sets out the provisions which deal with the relevant periods within which applications are to be made, and I hope I have accurately summarised its effect in what I have just said.

Section 72 deals with the powers of Tribunals under the heading: "Discharge of patients". 72(1)(b) provides:

The Tribunal is directed to have regard to the likelihood of medical treatment alleviating or preventing a deterioration, and the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation (that is sub-section (2)). Then (3):

The Mental Health Review Tribunal Rules provide by Rule 3, under the heading: "Making an application":

As Mr Pezzani has pointed out, applications to the Tribunal are by no means always for discharge. Probably, the most frequent nature of an application is for discharge, but by no means always. Sometimes applications are for a recommendation because the patient is perhaps advised that in the circumstances he is not likely to be able to persuade a Tribunal that immediate discharge is appropriate, but that if, for example, he is in medium secure detention, then a Tribunal should be asked to recommend that he be placed in a less secure hospital with a view to his sooner discharge when his condition is such as would merit that discharge.

Sometimes too no specific remedy is sought in an application; it is merely an application to the Tribunal. That of course I imagine will be the case with most references because the patient will not have made an application, and thus the reference will not necessarily ask for anything in particular, although I suppose it is possible that an RMO may clearly believe that it is no longer necessary that the patient be detained and make that view clear to the Tribunal. Nonetheless, the reference may not seek any particular remedy.

Rule 5, I am told, deals with powers of the Chairman of the Tribunal to make various directions and includes reference to Rule 19 in what he can do. I only mention that because of the mention of Rule 5 in the Protocol which I have already cited.

The Tribunal by Rule 9 has power to postpone consideration. It says:

Rule 18 deals specifically with two or more pending applications, and provides:

Interestingly, and for no apparent good reason, that applies only to applications and does not apply to an application and a reference. If both those are pending, the suggestion is made that in these circumstances the Tribunal could proceed to hear the reference and then use its power under Rule 9 to postpone the hearing of the application. However, the general purpose of Rule 18 would appear to be that, where there is more than one application in being, the same Tribunal should, other things being equal, deal with both at the same time, and that seems to me to be an obviously sensible course to adopt.

Then rule 19:

Mr Pezzani, on behalf of the claimant, draws attention to the wording of section 72 which makes it clear that the Tribunal's powers of directing discharge, and indeed of doing anything else including a recommendation, depend upon an application being made for a reference. It is equally clear that, by paragraph 3 of the Rules, there is no requirement that an application should seek any specific relief. That being so, when the word "application" is used in the Act, it applies to the application which was made to the Tribunal and which the Tribunal has under its consideration. He submits that the use of the word "case" in section 72(3)(b) cannot have the effect of meaning that application has, as it were, spent its course. In those circumstances, it would be difficult to follow how the Tribunal could have the general powers which arise under section 72 because those powers can only be exercised in considering an application or a reference.

Furthermore, there is the decision of Kay J in Mental Health Review Tribunal v Hempstock, a decision of which I have a transcript but I do not know whether it has been formally reported. The decision itself was made on 10 July 1997. What the learned judge decided in that case was that the Tribunal had all the powers at the time of further consideration that it had had originally, that being a case where the Tribunal had acted under section 72(3). The Tribunal had formed the view that it had no power to reconsider its original decision, and that all it could do was to reconsider the reasons for failing to comply with the recommendation. The learned judge said: no, that was not correct; it had all the necessary powers.

At the bottom of page 117 in the bundle, the learned judge is reported as saying this:

Then over the page he refers to the contrary argument and identifies what was being said, and concludes:

Mr Ward accepts that he must argue that the observations of Kay J that "his case" means "his application" for discharge are wrong. Mr Pezzani says that he was right, subject to the words "for discharge", although of course in Hempstock's case it was an application for a discharge. The point is that "his case" means "his application".

If one considers the opposite contention, it does, in my judgment, produce some considerable anomalies. What, one asks oneself, is the Tribunal doing if it has completed its function of considering the application? It has nothing within the terms of the Act that is before it. Furthermore, and this case makes the point because of the delays, in the meantime circumstances have arisen which mean that a reference ought to have been made because of the time that has passed. Although that is being apparently deferred -- or rather, that has not been done -- because of the continuation of these proceedings, it clearly produces the result that a fresh application may have to be made or may be able to be made. Furthermore, a reference may have to be made because of the delay if it is necessary to adjourn to consider what can be done, and Rule 18 will not apply directly because there will not be two applications pending at the same time. If there is no longer the first, all that is pending is whatever is the appropriate description of what the Tribunal is considering and any fresh application or reference that may be made to it. So there are, as it seems to me, real problems in the approach adopted by the Tribunal.

The other side of the coin, if the construction suggested by the claimant is right, is that it is said to open the door to tactical applications for withdrawal. The Tribunal will have decided when making a recommendation that discharge is not appropriate. If in those circumstances when the recommendation is not achieved, because the alternative hospital in the end is not available for whatever reason, then the claimant may, if the application is still pending, be able to withdraw it and thus try again to seek to persuade a Tribunal that he is entitled to a discharge. That seems to me to be a wholly unrealistic concern.

First, following the decision in Hempstock, which in this respect Mr Ward does not seek to challenge, that it is open to the Tribunal to consider the whole of the case, it will be able in any event to consider whether, notwithstanding its previous decision, discharge has become appropriate, and if there has been any substantial passage of time, it may well find that it is possible that that has indeed been the case. I can understand perhaps that the patient may have some concerns that the Tribunal, having reached a decision against him, is not likely to change its mind, but that is something which is not, as it seems to me, a particularly relevant consideration.

Furthermore, it is open to the Tribunal to refuse to accept the withdrawal. Rule 19 says that it has to agree, and if it takes the view that it is merely a tactical ploy and is not in the interests of the patient, it can refuse to accept the withdrawal. The Protocol, to which I have already referred, seems to me to have been probably unlawful, because the agreement of the Tribunal to an application to withdraw must be a judicial act. The Tribunal has to consider whether it is indeed in the interests of the patient that the withdrawal takes place, and it is clearly a relevant consideration and would have been a relevant consideration in this case that the patient's solicitor had clearly advised him that it was not in his best interests that the application should be withdrawn. That is not of itself necessarily determinative, but it is obviously a factor which the Tribunal was entitled to and should have taken into account.

The Protocol in its form as it then existed effectively delegated to the administration the decision which should have been that of the Tribunal itself where the application was in a proper form. That is not what is required by the Rule. I am pleased to know that there has been a fresh Protocol (I am not sure when it was brought into effect) that now provides that all applications to withdraw should be submitted in writing with the necessary information, and the regional Chairman would give his decision on the relevant form and return it to the administration as soon as possible. It is made clear in the first paragraph of that Protocol that agreeing a withdrawal was a judicial and not an administrative function. That is the true position and that is clearly what should have happened and what should happen in the future. The concern about tactical withdrawals can easily be met by that.

The suggestion that by using the words "the case" instead of "the application" in 72(3)(b) Parliament intended the result that the application should have come to an end is not one which I find acceptable and is not consistent with the scheme of the Act and the obligations of the Tribunal, and it can lead, and this case perhaps is an example, to unfortunate situations.

Mr Pezzani's second argument based on legitimate expectation is not now needed as I have found in his favour on the construction point. It would in any event have failed on the short ground that clearly the letter sent by the clerk was a letter which was not in accordance with the law in the sense that she should not have had delegated to her in the circumstances the power to deal with the application and to allow a withdrawal. It was an error which was put right within a matter of hours, and it is quite impossible to suggest that the claimant was in any way prejudiced by the change of position between the letter from the clerk and the e-mail from the Tribunal Chairman.

Mr Pezzani has referred me to a number of authorities on legitimate expectation and has submitted that detriment is not a necessary feature. However, that will depend upon the circumstances of a particular case. Perhaps the matter can be most simply dealt with by referring to one paragraph in the judgment of Sedley LJ in R v Secretary of State for Education and Employment ex parte Begbie [2001] 2 WLR 1115, the quotation being from 1133, letter F. What the learned Lord Justice said, so far as material, is this:

What effectively the court was saying is that if a mistake is made, but is corrected within a reasonable time, and in the meantime the individual who was to take the benefit of the mistaken view has not in any way acted to his or her detriment, then it is highly unlikely that the court will take the view that a legitimate expectation which cannot be resiled from has been created. As it seems to me, that is clearly the position here. It is indeed perhaps a fortiori because, as I have said, the letter written by the clerk was a letter which she was not entitled as a matter of law to write because it was, as the Tribunal now recognises, a judicial function to decide in all cases whether a withdrawal should be accepted.

Now, that being so, I have no doubt that the Tribunal was wrong to decide on the basis that it did that the withdrawal could not be accepted. It would have had power to decide whether the withdrawal should be accepted, considering all the relevant circumstances. It seems from the Chairman's original e-mail that he would have been minded to have allowed the withdrawal were it not for the fact that he had been advised and took the view that the application had come to an end. In those circumstances, it is I think difficult for the Tribunal now to argue that there were in any event good reasons for refusing to accept the withdrawal, and it may well be that it should have accepted that it no longer was seized of the matter. However, it seems to me that that is to an extent now immaterial. Considerable time has passed. The situation has changed inasmuch as the claimant has now moved to another hospital, and it may well be that the recommendation will, in the Tribunal's view, even if the matter is reconsidered by it, have been complied with, in which case of course they would not take the matter any further. But, having regard to the lapse of time, there should have been a reference, whether or not a fresh application was desired.

It seems to me (and I did not understand Mr Ward or those instructing him to dissent from this -- and indeed the same applies to Mr Pezzani) that it would be desirable to start afresh and to consider the situation as it now is, rather than deal with the matter on the basis of a recommendation that was made a very long time ago on information that is clearly now out of date.

I am quite prepared, if it is considered necessary, to make a declaration in the form that I have perhaps rather foreshadowed, namely that the Tribunal ought not to have refused the withdrawal on the grounds that the application had come to an end, and having regard to what the Chairman said at the time, that it would be wrong for it now to continue the hearing. But I imagine that that will not perhaps be a necessary course for me to take and I will hear counsel on the matter.

So for the reasons that I have given, this claim succeeds.

Mr Pezzani, one thing which has occurred to me as I have been speaking is, should the claimant have had a litigation friend?

MR PEZZANI: Well, it is an interesting point. He did not need to have a litigation friend to apply to the Tribunal. He did not need to have a litigation friend to apply to withdraw from the Tribunal.

MR JUSTICE COLLINS: No, but the Rules may be rather different here. I do not insist upon it. I do not think it is necessary, but it is a difficult one this in the case of mental health applications, is it not?

MR PEZZANI: It is. As your Lordship knows very well, the idea of capacity -- the concept of capacity -- is something that is issue specific. I have not seen any determinative evidence that at the time that these proceedings were begun, the claimant did not have the capacity to give instructions.

MR JUSTICE COLLINS: I shall not go into it further. I do not think it is necessary, and I am not going to insist. It is an unnecessary expense in the circumstances of this case, but it is something that those who deal with these cases regularly perhaps should think about in the future.

MR PEZZANI: It is a pertinent point, my Lord. As your Lordship will know, hardly any cases taken by patients against the Tribunal involve the use of a litigation friend.

MR JUSTICE COLLINS: I follow that entirely. I am not aware of it, and it may be that at most it is unnecessary. It depends I suppose on the circumstances.

MR WARD: May I just make one point for the transcript, my Lord. Your Lordship referred to the e-mail of Mr Dumont of 17 November 2005 and referred to the fact it was forwarded on. I thought I heard your Lordship say that there had been an internal e-mail within the Tribunal.

MR JUSTICE COLLINS: I thought that is what it was.

MR WARD: In fact, if your Lordship looks at page 75 --

MR JUSTICE COLLINS: I got that wrong, did I?

MR WARD: At the bottom of page 75 is the e-mail from Aujila Surrinder, "WHT.NHS.UK", who I assume is the Trust concerned with the detention of the patient. So Mr Dumont has replied to that, but copied his reply to Miss Pottinger.

MR JUSTICE COLLINS: I am sorry, I had thought that this was internal, but you are right, it looks as if it was --

MR PEZZANI: My Lord, at page 76 you can see the end of that e-mail, and my learned friend is right. She is the Mental Health Act Administrator.

MR JUSTICE COLLINS: I will correct that in the transcript.

MR PEZZANI: Again, my Lord, on the judgment, if I may raise two points. First of all, the comments in the copies of the statutory provisions you have are from the Richard Jones, Mental Health Act Manual.

MR JUSTICE COLLINS: I thought they probably were. I was not 100 per cent sure.

MR PEZZANI: Yes, that is all.

MR JUSTICE COLLINS: All right, rightly or wrongly I have reached the decision that you both wanted me to reach. You are legally aided, I take it?

MR PEZZANI: My Lord, yes. As far as relief is concerned, do I take it that your Lordship --

MR JUSTICE COLLINS: Do you want me to make a declaration in any particular form? I am prepared to do so if it is considered necessary, but it may be that the judgment speaks for itself.

MR PEZZANI: It may be that the original claim was for a quashing order of the decision of 30 November and thereafter because they were made ultra vires on the basis of an error of law.

MR JUSTICE COLLINS: So what? They can be quashed or -- if I correctly understand it, and indeed what I have indicated in my judgment is that really these proceedings ought to be brought to an end, whether it is done voluntarily by the Tribunal or by me. I can quash them, if you want me to.

MR PEZZANI: My Lord, I would be more comfortable if your Lordship made a quashing order, consistent with the judgment. We have the indication from the Tribunal, but it is not set in stone. They have not given an undertaking and nor can they because this is a judicial decision.

MR JUSTICE COLLINS: I think there is some force in what he says. What do you say, Mr Ward?

MR WARD: I am sorry, my Lord, I was taking instructions for part of that.

MR JUSTICE COLLINS: What he suggests is that it may be tidier to quash the decision and get it out of the way that way, which I suspect takes the burden off your client's back to some extent.

MR WARD: Instinctively, like all respondents in this court, we are never in favour of a quashing order.

MR JUSTICE COLLINS: Obviously.

MR WARD: Your Lordship's judgment does indeed speak for itself, but I do not have any principle basis on which to oppose it.

MR JUSTICE COLLINS: I take your point, Mr Pezzani. I think to avoid any future delays or problems, it is probably sensible that I simply quash it, and then everyone will know that the process has to be started again. I imagine if your client does not make an application, there will have to be a reference.

MR PEZZANI: Yes, and I do not know what the answer to that will be.

MR JUSTICE COLLINS: Assuming he decides that he does not want to make an application or does not, then the time has passed to such an extent that clearly a reference will have to be made, will it not?

MR PEZZANI: Yes.

MR WARD: There is some doubt as to whether a reference would yet be necessary or required.

MR JUSTICE COLLINS: I do not need to go into that.

MR WARD: A quashing order is actually tidier.

MR JUSTICE COLLINS: A quashing order is tidier, and if the claimant decides he does not want to make an application, then no doubt consideration will be given as to whether a reference is needed and, if so, when.

MR WARD: And certainly sooner or later it will be.

MR JUSTICE COLLINS: Yes, all right, I do not need to go into that.

MR PEZZANI: My Lord, just on the matter of perhaps silly detail, there was more than one decision taken. There was the 30 November decision and subsequent decisions proceeded on the basis that that was --

MR JUSTICE COLLINS: They were all based on that one. If you want to include the others, I suppose you can, but once that goes, the rest have nothing to fall back on, do they?

MR PEZZANI: No.

MR WARD: In fact, that quashing order and your Lordship's judgment will be quite unambiguous.

MR JUSTICE COLLINS: Yes, I think so.

MR PEZZANI: I am obliged. So, my Lord, I only have two further applications. The first is for a detailed community funding assessment.

MR JUSTICE COLLINS: Yes, you can certainly have that.

MR PEZZANI: And the second application is for the claimant's costs.

MR WARD: My Lord, the claimant has obtained a quashing order, has won on the substantial point of construction. He of course did not succeed on his legitimate expectations argument and he did not need to in those circumstances.

MR JUSTICE COLLINS: I know it is public funds on both sides, but I am afraid on this occasion I think it is your public funds that have to bear it. Yes, costs to be subject to the detailed assessment, if not agreed.

MR PEZZANI: I am obliged, my Lord. Is it necessary for me to make an application for a transcript of your Lordship's judgment?

MR JUSTICE COLLINS: No, that will come automatically. You do not need an order. Thank you both very much.