B, R (on the application of) v South Region Mental Health Review Tribunal & Ors

MRS JUSTICE DOBBS: This is an application for judicial review, permission having been granted an oral hearing on 2nd May 2008. On granting permission the court ordered that the grounds be amended. This has been done.

The claimant seeks permission to challenge the decision of the Mental Health Review Tribunal dated 23rd September 2007 not to release him from Broadmoor. The Tribunal was chaired by His Honour Judge Fricker QC with a medical and lay member.

The background to this case is that on 15th February 1995 the claimant was convicted of the rape and false imprisonment of a deaf and dumb girl aged 17. He was in April 1995 admitted to Broadmoor for assessment, where he was diagnosed as suffering from schizophrenia and detained for treatment under the Mental Health Act 1995. Whilst this diagnosis has been questioned and varied on occasions by the medical experts, the defendant submitted at a hearing in September 2007 that the claimant was suffering from schizophrenia with paranoid traits.

The Mental Health Review Tribunal, at page 13 of its decision, indicated and accepted that whilst the claimant did not demonstrate strong symptoms of mental illness, some of his continuing unusual beliefs and expectations are indications of underlying mental illness. They listed symptoms as including avoidance of blood tests for irrational reasons; insistence on control of hygiene in a number of aspects of his life; selective refusal of engagement in therapeutic and social support work with staff for inappropriate reasons; inappropriate expectations of his attraction to and engagement with women; and minimising the seriousness of his conduct during the index offence and on other occasions.

At page 14 of the decision the Tribunal concluded that whilst each of these features was insufficient by themselves to justify a diagnosis of mental illness, the totality of them, together with the observations of clinical staff, gave rise to a diagnosis of psychotic illness, with symptoms that were alleviated by medication.

At page 16 of the decision the Tribunal recognised the difficulties in establishing the correct diagnosis of the claimant's condition, and indicated and concluded that given the claimant's difficult and at times challenging behaviour and fluctuating mental state, mood and presentation, the Tribunal accepted the varying interpretation as to what diagnosis is most appropriate, that these were not unreasonable. It also concluded that there had been a sufficient pattern of symptoms to justify the diagnosis of persistent psychotic illness, and concluded that the degree as well as the nature of the claimant's mental illness required detention for treatment:

So, in summary, the Tribunal took the view in relation to whether the claimant should be discharged or not that they were satisfied that he was suffering from a mental illness of a nature and degree which made it appropriate for him to be detained in hospital for treatment under section 72 of the Mental Health Act 1983.

The amended grounds challenge the decision of the Tribunal on three bases: (1) procedural impropriety arising from bias and/or the appearance of bias which has resulted in unfairness/apparent unfairness; (2) irrationality in failing to consider whether or not the risk of a deterioration in the claimant's mental health and any consequent risk to others could be adequately contained via a conditional discharge; and (3) the provision of inadequate reasons/irrationality in coming to its decision in six other respects.

It is alleged that the Tribunal acted unlawfully, inappropriately, in breach of natural justice and failed to give the claimant a fair and impartial hearing when it sought to secure the attendance of a doctor to hear the claimant's evidence, and on a doctor not being available secured the attendance of a nurse instead. It is alleged that the Tribunal acted in excess of its jurisdiction; had prejudged the case prior to the completion of the evidence; was biased, or gave the appearance of bias; failed to ensure a separation of powers; failed to give the claimant privacy when giving evidence, risking his evidence being affected; and also failed to give reasons for the decision.

These three grounds arise out of the same facts. They are set out in extensive detail in the claimant's amended skeleton argument at paragraphs 12 to 32. Boiled down and simply put, complaint is made that the Tribunal decided to seek the attendance of a doctor on the morning of the last day of the hearing after the claimant had started his evidence. When one was not available, the Tribunal allowed a nurse to sit in during the claimant's evidence, contrary to the wishes of the claimant and the submissions of counsel. It is submitted that the Tribunal had no power to do so, because Rule 21 exists purely to protect the patient's privacy and with regard to Rule 22, there was no evidence to suggest that a doctor or nurse was required in the interests of the claimant's health. The word "appears" in Rule 22 refers to appearing as a witness. Alternatively, if the Tribunal did have such a power, by asking a nurse to be present it had clearly prejudged the case and decided that the claimant was going to stay in hospital, thereby demonstrating bias. Moreover, no reasons were given at the time for requiring the nurse to be present. The reasons given in the decision of the Tribunal are not clear, and in any event are not legitimate reasons for requiring the attendance of the nurse. The Tribunal had only one limited task, namely to consider whether or not the claimant should be discharged. It was not its function to consider any future treatment of the claimant.

In the absence of evidence from the defendant, the court when granting permission was concerned with three particular aspects of the claim, where it was not clear what exactly had transpired — namely, the presence of the nurse, the issue of consideration of a conditional discharge and the timing of the decision making. These last two issues will be dealt with later in the judgment.

The court now has a statement from the chair of the Tribunal, His Honour Judge Fricker QC, with which apparently there is no dissension on the part of the other two members of the Tribunal.

Dealing with grounds 1 to 3 — Judge Fricker in his statement indicates that the Tribunal had heard evidence that the claimant had been reluctant to engage with the clinical team. The Tribunal members thought that if their decision proved to be that discharge was not appropriate, the clinical team could gain insight by hearing the claimant answering questions put to him by his counsel and by the medical member of the Tribunal. They agreed between themselves to seek the presence of a medical member. Counsel for the claimant was informed and told that the tribunal considered that a member of the clinical team should hear the claimant's evidence. Counsel made submissions which were considered, but the decision of the Tribunal remained the same. When no doctor was present, they decided to allow the nurse to be present. The reasons for the decision are as follows, and they are to be found at paragraph 13 of Judge Fricker's statement. It reads:

The reasons were recorded in the decision at paragraph 3 and read as follows:

The defendant submits that the Tribunal had the power to admit the nurse under both Rules 21 and 22 of the Rules. The issue, it is submitted, is whether the power was exercised properly and it is submitted for the reasons given by Judge Fricker in paragraph 13 of his statement that it was.

The relevant parts of Rules 21 and 22 read as follows:

Rule 22:

Counsel for the claimant has provided no authority nor guidance to support her submissions about the restricted interpretation that she argues for with regard to Rules 21 and 22. In my judgment, the Tribunal did have power to admit the nurse, despite the objections of the claimant, whether it be under Rule 21 or Rule 22. It can be seen from these two and other rules that this Tribunal has a very wide discretion in the way it conducts its proceedings. Counsel had the opportunity to make submissions before the final decision was taken, and the Tribunal chair agreed and did note the objection in the record of the decision. There can be no argument of procedural unfairness in those circumstances. I do not accept that no reason was given for the requirement of the presence of the nurse. If no reason whatsoever was given, the first thing counsel would have asked would have been why the Tribunal required the presence of a medical member of the team in the light of the claimant's objections. If the reason given was not clear, then it should have been clarified. If one looks at the decision there is a note which (a) gives the essence of the reason for the presence of the nurse, and (b) the fact that counsel objected and the basis on which she objected.

In my judgment, sustainable reasons have been given for the decision to require a nurse to be present during most of the claimant's evidence, and I find that neither actual bias nor the appearance of bias had been shown by this decision. I also find that it has not been shown that the Tribunal failed to ensure a separation of powers between itself and the hospital, or failed to give the claimant a fair and impartial hearing for, inter alia, the following reasons:

This is set out in detail in paragraphs 33 to 47 of the claimant's amended skeleton argument. In summary, it is alleged that the Tribunal acted unlawfully and inappropriately and in breach of natural justice and failed to give the claimant a fair and impartial hearing when (1) it deliberated and formed, or appeared to form, a settled view during the course of the evidence and prior to its completion, and so was biased, or gave the appearance of bias; (2) it informed the claimant's representative that the case was highly complex and a decision would not be announced that day, when it had already deliberated on the case and it was likely to conclude its deliberations that day; (3) it deliberated for less than 15 minutes at the end of the case, suggesting a lack of understanding of the issues, a failure to take its task sufficiently seriously, or bias; and (4) on realising that less than 15 minutes would be required, failed to inform the claimant's representatives so as to avoid the appearance of bias.

In his statement Judge Fricker deals first of all with the approach of the Tribunal to the evidence over the course of the four-day hearing, which I summarise.

Before the hearing the three members of the Tribunal had read all the documentation. The chairman had prepared an analysis and summary of the issues and possible interpretation of the evidence which was provided to the two other members. The medical member was asked to prepare an analysis of the details of possible clinically significant features in the documentary evidence.

The analyses were combined and developed as the case evolved, with revisions being made each evening. The reasons in the decision are the final product of their deliberations, being developed, as it did, through discussion as the evidence went along and being settled following submissions on the final day.

It had been agreed before the final session that they would not announce their decision, as they did not want to feel under pressure and there was always the possibility of further amendments being made to their provisional views. With regard to counsel's final submissions, they had already heard and discussed the evidence and nothing in the submissions caused a further review of the evidence. They had in mind what was the central issue in the case — which was whether they were persuaded on the analysis of the claimant's condition as contained in Dr Horne's report and supplemented by the evidence of Dr Payne or that of Dr Sashidhran and Mr Schaapveld. They also considered the evidence of Pauline Tutani-Lewis and Mr Charman. Important for the Tribunal was the analysis of Dr Sashidhran's contentions in Dr Horne's report which was supported by Dr Payne, the latter whose evidence was tested in cross-examination.

The respondent accepts that the claimant and his representatives were informed that it was a complex case — it was — and indeed because of that, all papers had been read by the Tribunal with further discussion at the start of the day, during adjournments and at the end of the day. As is clear, it is submitted, from the extract quoted by the claimant's counsel in the case of Steadman-Byrne v Amjad and others [2007] EWCA Civ 625, a tribunal may and commonly does begin to form views about the evidence as it unfolds.

In the light of the evidence now before the court, it seems to me that this ground is unsustainable. In a case like this, if the Tribunal had not pre-read, prepared and put in some form of system for staying on top of the case, there would have been legitimate grounds for complaint. Proceeding in the way which they did meant that the members of the Tribunal were able to understand the issues and were familiar with the issues in the case as it went along. This is good case management. To hold a provisional view in the light of the evidence as it evolves cannot be criticised, so long as the Tribunal considers all the evidence with an open mind and provided it is ready and willing to amend or change its view in the light of the evidence when necessary. The fact that the Tribunal indicated at an earlier stage that no decision would be taken that day could in no way be characterised as misleading the claimant. That was the genuinely held belief at the time, the Tribunal adopting a cautious approach. That a decision in fact was taken soon after the case was finished does not change that position and in the light of the evidence now available does not suggest bias.

It is to be noted that much of the body of the decision document itself was a rehearsal of the evidence. The Tribunal had plenty of opportunity to discuss the evidence and their preliminary view of it during the currency of the proceedings — as has already been indicated, such would be sensible for an effective disposal of the case. It is also clear from the fact that the claimant's evidence was summarised in the decision that the members of the committee had also had the chance to discuss his evidence over the luncheon adjournment and before submissions which began at 2.00pm, as this was in the body of the decision. There are aspects of the claimant's evidence which are noted in the decision which would have been based on the medical tribunal member's expertise, whose questioning clearly took place on the final day before lunch, thus supporting the observation I have just made.

In the light of the findings on grounds 1 to 3, the evidence and the comments just made, there is in my judgment no basis for the allegations of bias, unfairness and misleading the claimant and his legal team. The submission by counsel for the claimant that 15 minutes was not long enough to come to a proper, reasoned decision is not sustainable in the light of the evidence, and given the cogency of the decision and the structured way in which the Tribunal approached its task. There is nothing to support the contention that the Tribunal paid other than proper attention to the issues involved.

A submission is made by counsel for the claimant that the Tribunal, having reached their decision, should have reconvened. The reason that the Tribunal did not do so, it is asserted, is because having reached their decision in a short space of time, the Tribunal knew that it would look bad, having said that the case was a complex one, to reconvene. This is an allegation which is (a) speculative, (b) made entirely without foundation, and (c) is unattractive, especially in the light of the explanation given by Judge Fricker at paragraphs 16 to 18 of his statement:

The reasons given are cogent and the effect of the challenge is that the reasons given by the chair are not the real reasons. As already indicated, to make such an allegation without any foundation is unattractive.

It is alleged that the Tribunal failed of its own volition to consider whether or not the risk of deterioration in the claimant's mental health could be managed by means of a conditional rather than absolute discharge. The reasons given do not support the proposition that the Tribunal considered the possibility of conditional discharge.

The Tribunal unlawfully relied on facts found by a differently constituted tribunal at an earlier hearing, some of which were inaccurate.

The Tribunal unlawfully rejected key evidence provided by Mr Charman and Ms Tutani-Lewis, both members of the nursing staff.

The Tribunal unreasonably concluded that the claimant's attitude and behaviour in respect of his avoidance of blood tests and high standards of hygiene were consistent with mental illness, without adequately explaining why it rejected the explanations provided by the claimant and Mr Charman for such attitudes and behaviour.

These grounds relate to the findings of mental illness by the Tribunal and challenge and criticise the Tribunal's findings.

The Tribunal chair deals with the grounds in paragraphs 20 to 30 of his statement. In short they boil down to this:

My finding are as follows:

The Tribunal did consider the issue of conditional discharge, albeit not expressed explicitly. No evidence has been produced to show that their decision in relation to the issue of conditional discharge was outside the range of reasonable responses open to the Tribunal. Moreover, the claimant did not want to be conditionally discharged. There was no submission in the alternative by counsel for the claimant that failing an absolute discharge, he should be conditionally discharged. There was passing reference to the issue when discussing the evidence of the experts relied on by the claimant in the submissions, and counsel for the claimant did not cross-examine Dr Payne on the issue. No conditions were put forward to the committee as being appropriate ones. In reality, the stark issue was absolute discharge or detention in hospital, although the Tribunal had to consider the alternative. It is hardly surprising, given the clear recommendation in the evidence which was accepted by the Tribunal and given the lack of clear direction on the issue in the evidence of the witnesses not accepted by the Tribunal and the lack of submissions by counsel, that there was no lengthy exposition in the decision on the issue.

The material from the previous tribunal was used by way of narrative background. This can be seen from page 7 of the decision, where the decision reads:

It is not clear how it can be said to be unlawful to prefer the evidence of one witness over another if intelligible reasons are given. Page 15 of the decision deals with this issue and the reasons for not preferring the evidence of the witnesses in question. The relevant extract from page 15 reads as follows:

Page 13 of the decision sets out the Tribunal's findings. To summarise, the Tribunal concluded that the claimant had displayed behaviour that was indicative of a mental illness in respect of his refusal of blood tests, which he had refused on the basis that he might be cross-infected or that his samples might be misused; and his high standards of hygiene, which included insistence on controlling hygiene in respect of placement of medication in his palm and not in standard pots, receiving bread he felt was dirty from the gloved hand of staff, cleaning kitchen utensils and cutlery, and drinking from one tap only.

The claimant has failed to show, although there may be alternative explanations, why this conclusion in the light of the evidence was perverse, irrational and one which no tribunal properly directing itself could come to.

The Tribunal found that the claimant displayed a number of symptoms which taken together justified a diagnosis of psychotic illness, and whilst the claimant lacked insight into his illness and his need to take medication to alleviate it, the likelihood of non-compliance should he be discharged into the community and his danger to others was not acceptable.

The Tribunal has to come to its decision based on the evidence. I have read the reports in this case. I have read the other material in this case, including the statement of the claimant. It should be noted that Dr Payne had dealt with the claimant since his admission to Broadmoor in 1995. Secondly, Dr Horne in a very comprehensive report dealt with the history and diagnoses by many experts, the overwhelming majority of whom took the view that this claimant was mentally ill. Moreover, Dr Horne in very clear and cogent terms set out why Professor Sashidhran's approach was not a proper and systematic one. It is not enough for the claimant to disagree with the findings of the Tribunal. It must be shown that the decision was perverse or irrational; was based on a lack of evidential foundation; that the evidence could not support such a finding et cetera. It is for the Tribunal to decide which evidence to accept and which to reject, its members having had the opportunity to see and hear the witnesses. They must of course give sustainable reasons for their findings. One must also bear in mind that there was an expert on this panel. A court should be slow to interfere with the decision of such a body.

The criticisms advanced, in my judgment, are unjustified. The claimant has produced no evidence to show that the decision was outside the reasonable range of responses of conclusions open to the tribunal. In essence, the claimant relies on what is in effect a difference of opinion between experts, without showing why the view accepted by the Tribunal was clearly wrong. The Tribunal in my judgment was entitled to come to their decision based on the clear evidence which they had accepted, for the reasons I have already set out and for the additional reasons set out in the defendant's skeleton argument at paragraphs 50 to 59.

It follows from the foregoing that this application for judicial review is refused.

I turn to one final matter. Following the service of the statement of the chairman of the Tribunal, counsel for the claimant on the day of the hearing sought leave to amend the grounds on the basis that Judge Fricker accepted in hindsight that he should have submitted the final version of the decision to the members. However, he considered that he had incorporated all that had been agreed. It is submitted that because of this omission, there has been no final decision. It is also submitted that there is no prejudice to the defendant in granting permission to amend.

The defendant submits that this ground was communicated to counsel just before coming into court. There is prejudice because the statement of Judge Fricker was served on 17th July and the lateness of the application means that the defendant was not able to obtain statements from the other members of the Tribunal to deal with this specific issue. It is submitted in any event that there is nothing in the point.

I refuse leave to amend the grounds for a number of reasons:

This point has been dreamt up at the last minute with no reason given as to why it has been left until the last moment if it really was considered to be a point with merit;

Yes, thank you. (Pause)

MR BARNES: My Lady, just the matter of costs. We seek an order that the claimant pay the defendant's costs to be assessed if not agreed. I have no schedule with me today. The claimant is I believe legally aided.

MRS JUSTICE DOBBS: Yes, I would have thought so.

MISS DAVIDSON: Yes, my Lady, that is correct. My Lady, we would resist that and ask --

MRS JUSTICE DOBBS: Sorry, I cannot hear you very well.

MISS DAVIDSON: We would resist that and ask for no order as to costs which is the usual --

MRS JUSTICE DOBBS: Sorry, you resist the application for costs?

MISS DAVIDSON: We would ask for no order as to costs.

MRS JUSTICE DOBBS: Why?

MISS DAVIDSON: Because the usual rule where the two parties are publicly funded is that there is no order as to costs. Furthermore, my Lady, we did get permission at an oral hearing.

MRS JUSTICE DOBBS: Yes, but you have lost now.

MISS DAVIDSON: We have, my Lady, but clearly there was considered to be some merits, sufficient merits to at least --

MRS JUSTICE DOBBS: As I indicated, it was in the absence of evidence that leave was given on limited areas of the claim and, despite the evidence that was produced, the claim was still pursued. But you say no order for costs is what you are asking for.

MISS DAVIDSON: Yes, my Lady.

MRS JUSTICE DOBBS: Mr Barnes, in reply; is this the usual order?

MR BARNES: My Lady, I do not have the benefit of any authority for my learned friend on this point. I am content for it to be left open and dealt with on paper, if that is the most appropriate way.

MRS JUSTICE DOBBS: I think that is probably the way to deal with it, because at the moment an assertion is being made without anything to back it up. So if you want no order for costs, if you are resisting it, then I will have submissions to be made in writing. You need not hurry because I will not — unless you can have them in by tomorrow at 4 o'clock, is that asking too much?

MR BARNES: My Lady, it may be a little difficult for me. My schedule in the next 48 hours is quite busy.

MRS JUSTICE DOBBS: If you can have them by Friday lunchtime. Can either side have them by Friday lunchtime, otherwise it will have to wait until October.

MR BARNES: Friday lunchtime is not going to cause us any problems.

MISS DAVIDSON: My Lady, at a push I can manage that.

MRS JUSTICE DOBBS: I am going to say 12 o'clock Friday, so midday Friday, submissions on costs. If the proposition is that the usual order is no order for costs, then I want to see something that supports that proposition, and then I will deal with it on the papers on Friday afternoon. Thank you very much.

MISS DAVIDSON: Thank you.