Care Principles Ltd, R (on the application of) v The Mental Health Review Tribunal

MR JUSTICE COLLINS: There are before the court two claims for judicial reviews which concern AL, who at present is a patient detained at L House Hospital under section 3 of the Mental Health Act 1983. He is now some 23 years old. He suffers from what is described as a mild form of learning disability, and that has in the past, so it is said, led to incidents of violence. I say "so it is said", because there is, as will become apparent, some question mark as to whether the learning disability from which he suffers is associated with the episodes of violence that undoubtedly have occurred.

He had not been detained in a hospital until October 2006, when he was admitted to L House Hospital under section 2 of the Act for assessment. This admission resulted from his actions in relation to social workers, due again to concerns about his behaviour (violence and offending) particularly when he had drunk too much, although not entirely associated with that. He had been put under the care of the social services in Middlesborough. He had on a number of occasions made significant threats of violence against, indeed threats to kill his social workers, and those were threats which they understandably took seriously. It was decided that he ought to be admitted to hospital for an assessment to see whether he had any particular form of mental disorder, whether that form of mental disorder was susceptible to treatment, and, if so, what treatment was appropriate. That is the normal basis upon which there is an admission under section 2.

He appealed, as was his right, to a Mental Health Review Tribunal. The admission to the hospital was on 13 October. An admission under section 2 can last for no more than 28 days. Accordingly, that particular detention in hospital would have come to an end on 9 November, and indeed, as matters turned out, did come to an end on that day. However, he appealed to the Mental Health Review Tribunal, and on 30 October, following a hearing, that Tribunal decided that he should be discharged, although it took the view that because he was vulnerable and homeless and needed a comprehensive support package in the community, that discharge should not take place until 10 o'clock in the morning of Friday 3 November -- about a week or so before the 28 days would come to an end.

The Tribunal having made that order, the social workers were concerned that full information had not been put before the Tribunal, and the managers of the hospital (the claimants in the first claim for judicial review, Care Principles Limited), took the view that the Tribunal's decision was flawed, that its reasons showed that it had adopted a wrong approach in law, and that accordingly there should be an application for judicial review of its decision. However, it was obviously necessary that any application should be made very speedily. What was done was to lodge a claim for judicial review on 2 November, and to incorporate in it an application for an interim order whereby the decision of the Tribunal was halted and the discharge would not take place. That application was made without notice to the other parties, that is to say the Tribunal itself and the patient, and was heard by Lloyd Jones J out of hours on the 2nd. He had before him the claim form and the court documents which were produced, and he also discussed the matter with counsel, Mr Collins, who represented the claimants. He was persuaded that he should make such an order.

So it was that the 28 days elapsed, whereupon the social worker made an application under section 13 of the 1983 Act that the patient should be detained in the hospital under section 3 of the Act. That application was accepted by the hospital, and so it is that the patient, AL, remains in hospital.

The decision of Lloyd Jones J was that the time for submitting an acknowledgment of service should be abridged to 8 November, and that a hearing should take place as soon thereafter as possible. Mr Collins tells me that he did not seek to persuade the judge to make such an order, and indeed he suggested that it was not an entirely appropriate order, having regard to the fact that its effect was to nullify the decision of the Tribunal and to disable anyone from dealing with the matter substantively until after the 28-day period had elapsed. In the result the order of the Tribunal under section 2 has in one sense become academic, but in another sense has a real effect, because if I were to decide that the decision of the Tribunal was not unlawful and thus should have been followed, I have to consider whether the application and the admission to hospital under section 3 was itself unlawful, because if it was, then the patient should not remain in hospital, but should be discharged.

The patient has a right of appeal to the Mental Health Review Tribunal now that he is detained under section 3 on a different basis from that under which he was detained before. But, as Mr Pezzani on his behalf submits, and correctly submits, that is an appeal that he does not need to make if the original detention was itself unlawful because he should then be released, subject of course to there being a fresh application if his behaviour has warranted it, now that some time has passed. I bear in mind, as one always has to in these mental health cases, that patients' behaviour can change over a very short period of time. In saying that, I have no reason to believe that there has been any development. I simply make the point that, if there has, a subsequent application is not by any decision of mine in favour of the patient precluded.

Sullivan J heard an application made after the 28 days had elapsed. He decided that there should be what is called a rolled-up hearing, that is to say a hearing at which permission is considered, and if permission is granted, the substantive hearing will follow immediately. He also indicated that the patient ought, if so advised, to make an application himself for judicial review of the decision to admit him to the hospital under section 3. He has done that, and so it is that I am concerned with the two claims: the first by Care Principles relating to the decision of the MHRT; the second by the patient relating to the admission under section 3.

I shall deal first with the application by Care Principles Limited.

The consensus of opinion by the RMO and the social workers involved was that the patient should be detained in hospital for assessment, that it was necessary and appropriate that he should remain in hospital for that purpose, and that there was a risk of harm, particularly to others, although marginally to himself, were he to be released. I say "marginally to himself", not because it was likely that he would do himself self-harm (although there had been some suggestions of that possibility in the past), but he was a vulnerable person and he was one of whom advantage had been taken by others, and he had been and was liable to be bullied. So because of his disability, he might find himself the subject of such treatment. Of course that itself led to the risk that he would retaliate and thus cause harm to others. So the two, to an extent, went together.

It is important to bear in mind the basis upon which the Tribunal acts in these cases. Section 2 of the Act permits admission for assessment of a patient on the grounds that he is suffering from mental disorder of a nature or degree which warrants his detention in a hospital for assessment, or for assessment followed by medical treatment, for at least a limited period, and he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

Going back to section 1 of the Act, one sees mental disorder is defined as mental illness, arrested or incomplete development of mind, psychopathic disorder and any other personality disorder or disability of mind, and mentally disordered is to be construed accordingly. It is common ground that the learning disability from which it is agreed the patient suffers is properly categorised as a mental disorder within the meaning of section 1(2) of the Act.

Section 3 of the Act is in slightly different terms because it permits an admission to hospital on the grounds that the patient is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital. In that sub-section, it is clear that mental disorder is not a separate basis; the mental illness etc are themselves forms of mental disorder. The only possibly relevant one in the context of this case, as I understand it, in regard to section 3 is mental impairment. That means a state of arrested or incomplete development of mind, which includes significant impairment of intelligence and social functioning, and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.

It is clear that the Act envisages that a person who has a mental disorder which justifies admission to hospital should be admitted for the purposes of assessment, and if that assessment establishes that he is suffering from mental illness etc within section 3, then he can be detained under section 3. Naturally, in some cases there is an immediate admission under section 3 where circumstances justify it. That was the basis upon which this admission was requested by the social worker.

The social worker in question was acting under section 13 of the Act, which provides that:

Section 6 of the Act provides:

Finally, as far as the Act is concerned, I should refer to section 72, which deals with the powers of Tribunals under the heading: "Discharge of Patients", and which, so far as material, provides:

That follows the wording of section 2 of the Act, and an important word in section 72(1)(a)(i) is the word "then", because this establishes that the Tribunal is concerned with the condition of the patient when the Tribunal considers the matter. Whether or not he was properly taken into hospital is not material for that consideration. When I say "properly", I mean whether there was indeed material which justified the admission, or indeed the other way round, whether at the time it was clearly justified. The question before the Tribunal is: is the detention proper now? The burden is upon the hospital, or those who seek his continued detention, to establish that that detention is necessary and within the terms of the Act.

One must never forget that detention of a patient against his will in a hospital is just that, and Article 5 of the European Convention on Human Rights applies. It is always necessary for any such detention to be justified. The standard required is the balance of probabilities. The Tribunal has to be persuaded that it is more probable than not that the detention is needed. It has been said in another context that there needs to be some cogent evidence before the Tribunal to establish that the detention is necessary.

The material before the Tribunal included, as one would expect, a psychiatric report from the RMO, Dr Wilson. He gave a narrative account of the medical and psychiatric history, indicating a number of incidents of self-harm and attempted suicide when he was younger. He had been admitted to hospital due to self-harm, but had not been detained under the Mental Health Act prior to his admission on this occasion. He records that in April 2006 (it may have been in February but the precise date does not matter: it certainly was at least six months before the admission with which we are concerned), he had assaulted a fellow tenant, in premises he was then living in, with a fire extinguisher, and in addition he had made serious threats to stab and burn his social worker. He was vulnerable. He had had his eyebrows shaved. He had been photographed naked with a flower inserted into his penis, and there had been previous sexual assaults. There was some bizarre ideation possible. He had caused damage, following the death of his stepmother, to his father's house. It turns out that that damage was quite substantial, amounting to something in the region of £2,500-worth. It was the increasing aggressive behaviour and threats to kill his social worker that had led to his admission to L House. He had tended to drink substantial quantities of alcohol, had abused cannabis, and most of the incidents, the psychiatrist said, of aggressive behaviour had occurred whilst he was under the influence of alcohol, although he had also been aggressive at other times. He had been subjected to a number of police cautions, and the police were still investigating the threats to the social workers and the criminal damage to his father's house.

Whilst in hospital, he had been polite and co-operative. He had not been on any medication. There had been some grandiose ideas and some persecutory thoughts regarding social services. He apparently had explained his attack on the fellow tenant with a fire extinguisher on the basis that the victim had been looking at him with "evilness in his eyes". He had an IQ of 67, and mild learning disability, and problems in childhood were associated with seriously irresponsible behaviour. The assaults and threats to kill, and the damage to property and some inappropriate setting of fires led the psychiatrist to take the view that, for his own safety and that of others, he required continued assessment and treatment, although an early transfer to a less secure hospital would be appropriate.

The social worker in his report covered very much the same ground. He referred to the threats to kill social workers and the graphic description how those would be carried out, the fact that they were being pursued by the police, and an indication that on one occasion he had rung the social worker back, after making the initial threat, to say that he had meant what he said. He had had some bizarre thoughts. He had had to leave his previous hostel after he had thrown bricks through the office window when entry was refused due to his level of intoxication. It now seems from further evidence, which I will come to in due course, that he had made threats to the person in charge of the hostel, and had thrown what was variously described as a boulder or bricks or a flower pot through the window, apparently intending, if he could, to hit the individual in question.

The conclusion of the registered social worker was that, because of his bizarre comments, his threats to kill, his aggressive behaviour and his failed previous community placements, the section 2 detention in hospital should be maintained. There was a report from hospital managers which dealt largely with progress since admission, but made the point that he had been no problem; he had been polite and appropriate. Then this was said:

The recommendations were that the disruptive nature of the house in which he was lodged had made it difficult accurately to assess him. It was felt that he required an environment less secure than that of a medium secure setting. He had identified that he had in the past drunk too much, and this had led to undesirable incidents. The report went on:

So that report was positive, but it made also the point, which was picked up by the Tribunal, that the environment of a medium secure hospital, such as that in which he was detained, was not an appropriate place for the assessment.

The Tribunal gave the appeal very careful consideration. I am told that the members retired for over two hours before reaching their decision. They have given relatively lengthy reasons for reaching their conclusion. They refer to the history: the fire extinguisher incident when he was under the influence of alcohol, and the patient's explanation that he believed that the other resident might be about to attack him. He deciphered that from the other resident's "evil eyes and looks". The point is made that there was no prosecution that followed -- it seems because the victim declined to press any charges. They record the problems at the hostel when the windows were broken. They go on:

They made the point that he had a long history of abusing illicit substances and alcohol, convictions for drunk and disorderly behaviour, and that he was vulnerable. They considered at length the evidence given by the authority, to which I have referred, as regards mental disorder and the patient's behaviour and the relationship between the two (if any). They referred to the RMO's evidence and the fact that he was not on medication. They referred to the nursing evidence that he needed further assessment on section, but certainly not at L House, which was totally inappropriate for him. They continue:

That observation, which was based upon her live evidence, was of course of considerable importance, and it is clear that the Tribunal attached considerable weight to it. That they were entitled to do. It is a matter for them to assess the evidence before them and to decide what weight to attach to it.

They refer to the social worker's evidence. I have referred to his statement, and his concerns about the patient's aggressive behaviour and vulnerability. The tribunal records:

Then their conclusions were these:

Those conclusions are attacked by the claimant essentially and broadly on the basis that the conclusions reached were not in accordance with, and could not reasonably be said to accord with, the findings of fact. This meant that the Tribunal had failed to pay due regard to the evidence before it, and had reached conclusions which were inconsistent with its own findings of fact. This meant that it had applied a test which appeared closer to section 3 than to section 2.

The Tribunal clearly did, as it indicates, take account of the evidence of the psychiatrist and of the social worker. It did have regard to his previous behaviour and also to his behaviour whilst he was in the hospital, and the fact that he had not previously been detained and that he was not on medication. One must never forget that this Tribunal has an expertise. One of its members was himself a doctor who had experience in dealing with those suffering from mental disorders.

Mr Collins submits that the tribunal had failed to consider, or apparently failed to consider, whether the consumption of alcohol and the anger were themselves linked to his mental disorder. But it seems to me that that is not a submission that can properly be made, because it is clear that the Tribunal did consider whether there was a link to the behaviour, but was not persuaded that there was. It is clear that it accepted that there was a mental disorder -- indeed no other conclusion could properly be reached -- but it was not satisfied that the nature or degree of that disorder warranted continued detention for assessment.

It cannot be sensibly suggested that it was not aware of the approach that it had to adopt. In my judgment, there is nothing in the reasons given which suggests that it reached a conclusion which was one it was not entitled to reach. It is plain that it accepted to an extent the evidence given by the patient himself. It seems to me that that is something which is implicit in the decision that was reached. It heard him. It heard and considered the other evidence that was put before it and reached the conclusion that it did. That conclusion was clearly not one which was considered to be acceptable by the claimants, and they thought, and they may have had good reason to think, that that was a wrong conclusion. But that is what the Mental Health Review Tribunal is there to do, and it does sometimes reach decisions which do not accord with the views of the hospital psychiatrists or the social worker or whoever. There is no appeal on fact. This court does not and cannot sit as an Appeal Tribunal from the Mental Health Review Tribunal. It is only if there is an error of law that this court can intervene.

I should add that there was a further point taken by Mr Collins relating to the decision that the discharge be deferred until November 3. The Tribunal has power under section 72(3) to defer discharge, but there is no power to reconsider that deferment if circumstances show that what is required cannot be put in place. But before the Tribunal, there was no particular evidence which required it to take the view that it would not be possible within a three-day period to produce a support package. After all, he was, and had been for some time before his admission to hospital, under the supervision of the relevant social services department. Although one recognises the difficulty of finding somewhere for a homeless person to live, nonetheless so far as the Tribunal is concerned, it cannot be said in my view that it was irrational for it to have reached the decision that it did in relation to discharge. Accordingly, I am satisfied that this was a decision which was not unlawful and that the claim made by the hospital fails.

I should add that an unfortunate aspect was the order made by Lloyd Jones J. I say that because it is plain that, as the law stands, it is not appropriate to make an order which prevents the discharge of a patient unless the judge is satisfied that the claim that the Tribunal erred in law is a very strong one. The reason for that is that the effect of the order is to maintain in being a detention. At paragraph 47 of R(H) v Ashworth Hospital Authority [2003] 1 WLR 127, Dyson LJ said this:

In striking the balance (that is the balance between the public interest in seeing that patients who may be a danger are deprived of their liberty and given the treatment they need, as against the importance of not detaining and thus depriving of his liberty a person unless it is necessary so to do) Dyson LJ continues:

It is important, in my view, that in cases involving an attempt to prevent a discharge, the claimant should always, unless there are very exceptional circumstances, give notice both to the patient's solicitors or representatives and to the Tribunal that such an application is going to be made. One appreciates the need for speed in circumstances such as these, but that cannot outweigh the obligation to ensure that the other parties are aware of and have had the opportunity to make submissions in relation to any such application. The form N463, which the court issues, makes it clear that, generally speaking, there should be notification to the other party or parties in respect of any application for interim relief. One appreciates that there may be circumstances in which that is impracticable. But in the circumstances of this sort of case, I doubt whether it would be possible, as I indicated, save in very exceptional circumstances, to suggest that it is impractical.

Furthermore, the necessary basis for the grant of any stay or its equivalent must be drawn to the judge's attention. This is particularly important when an application is made to the duty judge, because a duty judge may not be a nominated judge and may not have experience of mental health matters such as these. But even a judge who has that experience cannot be expected to bear in mind all relevant considerations that apply. While I am not persuaded that it is necessary to grant permission for judicial review, normally it would be wrong, as the Court of Appeal indicated in H, to grant a stay unless there is cogent evidence that, if the patient is released, he will indeed be a danger to himself or the public. It is difficult to see that that test was met in the circumstances of this case.

Indeed, the Court of Appeal made it clear that there is inevitably an element of risk when a patient is released. If a patient shows, having been released, any symptoms or signs of possible harm, whether to himself or others, then that will justify a recall, as again in the same case one of the Lord Justices said, "The proof of the pudding in those circumstances would be in the eating". I do not in the least criticise Lloyd Jones J, nor is this intended as a specific criticism of Mr Collins or those instructing him in the circumstances of this case, but for the future, and this case illustrates the point perhaps rather graphically, what I have suggested must be followed. Equally, the judge must be informed of all the relevant criteria which must be applied in deciding on a stay.

That leads me to the claim for judicial review which is levelled against the social worker and Care Principles Limited in relation to the section 3 detention. The social worker in question was a JB. She was concerned, as were her colleagues, that the decision of the Tribunal had not properly taken into account the evidence, in particular concerning the threats to the various social workers. It was felt, and understandably felt in the light of the material which she sets out in her statement, that the Tribunal had not been given the full picture. The Tribunal had been aware of the threats, and there was a social worker who gave evidence, and who should have been able to indicate the strength of the material. Miss JB was also concerned with the previous matter, such as the assault with the fire extinguisher. There was an indication that there was another assault in December 2005 upon a tenant -- it may be the same individual -- in which apparently the patient admitted that he had broken his foot because he had been kicking the victim in his head. It was also pointed out that the breaking of the windows at the Salvation Army Hostel where he was then living was coupled with threats to kill and an apparent attempt to assault with a weapon, namely a boulder, brick or plant pot -- whatever it may have been. It was the view of Miss JB, formed after consultation with her colleagues, that there was fresh information.

The approach in relation to making a fresh claim following a decision of the Tribunal was considered by the House of Lords in R(von Brandenburg) v East London and City NHS Trust [2003] 3 WLR 1265. The only reasoned speech was given by Lord Bingham. That case considered the approach that should be adopted where there was a decision of the Tribunal that the patient should be discharged, but those responsible took the view that, notwithstanding that, he should be detained. In paragraph 8 on page 1272, Lord Bingham said this:

I entirely accept -- indeed, the contrary has not been pressed -- that the decision of the social worker was made in good faith and because she believed that the material which she referred to had not been put before the Tribunal sufficiently clearly, and so there was new information. However, unfortunately she did not refer to that in her submission to the hospital. In paragraph 12, in dealing with this aspect, Lord Bingham said this on page 1276:

It is accepted, and indeed is clear in this case, that reasons were in fact not given. But that is not necessarily fatal to the decision if it was justified. Section 6(3) of the Act enables the hospital to act upon an application which it is satisfied is made by the proper person and contains the relevant information. It is not necessary in many cases for the hospital to consider the matter in any greater depth. But here, the situation was that the hospital managers were aware of the Tribunal decision and of the general circumstances. What Miss Farrington (who was the acting mental health administrator at the hospital) says, is this:

Although the application is made by the social worker, the decision is that of the hospital managers. It is that decision which detains; it is not the application which detains. Parliament has given a general protection to hospital managers in the form of section 6(3). But the extent of their obligations must depend upon the facts of any particular case. If they are aware, as they were here, of the existence of the Tribunal decision, it requires a critical consideration of the justification for the detention which was contrary to the decision of the Tribunal. It was not, in my view, in the circumstances of this sort of a case, sufficient for them simply to say: we were satisfied that the social worker had properly considered it and discussed it, although it is not specifically explained in the application. I have to consider whether, objectively speaking, the admission was reasonable in the light of the decision of the Tribunal. While I recognise the concern that the material was not presented to the Tribunal in as forceful a way as might have been considered desirable, nonetheless the fact is that the Tribunal's conclusion was, as we have seen, that it was not persuaded that there was the necessary link between the mental disorder and the conduct in question.

That being so, there was no proper basis for deciding that, notwithstanding the Tribunal's decision, a section 3 detention was appropriate. It seems to me that the combination of the social worker and the hospital managers reached a decision which they should not have reached upon the material that was before them. In those circumstances, I am satisfied that the admission under section 3 was, as a matter of law, unlawful, having regard to the decision of the Tribunal.

In the circumstances, I propose to grant permission on each of the claims. I think that there was an arguable case presented by the hospital managers, albeit I have rejected it. I shall: dispense with all procedural steps; treat, as Sullivan J's order indicated, this as the hearing of both claims, and of course this judgment covers both the claims; dismiss the hospital manager's claim; and allow the claim of the patient. The result will be that the section 3 admission will be quashed, and he must now be discharged in accordance with the decision of the Tribunal. As I indicated earlier, that is without prejudice to any subsequent developments which may have taken place or may take place.

MR HYAM: My Lord, I ask for my costs of the application and participation in the second claim.

MR JUSTICE COLLINS: You cannot resist that, I think.

MR COLLINS: My Lord, no.

MR JUSTICE COLLINS: To be assessed if not agreed.

MR PEZZANI: My Lord, I make two applications: firstly for a public funding assessment, and secondly for the costs of the interested party in relation to both claims.

MR JUSTICE COLLINS: Yes, who are you asking to pay your costs in relation to --

MR PEZZANI: I would --

MR JUSTICE COLLINS: Incidentally, who is the paying body? Is it the same for you two, or is it a different one? I suppose it is a different one, is it not? I would have thought the fair order would be that you share, because I have found that each decision was wrong. I would have thought that the right order would be that each of you contribute half of the claimant's costs.

MR COLLINS: My Lord, I do not think I can resist that.

MR JUSTICE COLLINS: And you have your usual necessary detailed assessment under the terms of the legal aid.

MR PEZZANI: I am obliged, my Lord.