Trident Housing Association v Birmingham City Council

The unanimous decision of the Tribunal is that the appeal be allowed and that the decision of the Respondent given on 27 November 1991, refusing registration of the Appellant in respect of premises at 32 Grove Avenue, Moseley, Birmingham, shall not have effect.

REASONS

We received oral evidence from the following:-

Witnesses called by the Respondent

Christopher Brian WILLIAMS, Assistant Director of Social Services
Jeffrey William REVILLE, Principal Assistant, Inspection Division
Michael ROCHFORT, Planning Officer, Services for People with Mental Health Problems, Birmingham City Council

Witnesses called by the Appellant

Cyprian Godfrey Nicholas MORETON, Director of Trident Housing Association
Isabel Jennifer ROBINSON, Manager of the Trident Housing Association
Robin Edward LAWRENCE, Consultant Psychiatrist, St Thomas' Hospital, London

Christopher John BEDDOE. Consultant on Social Care Issues
Rev David Leonard HART, Chaplain to West Birmingham Mental Health Services Unit
Toni GILLIGAN, Consultant Psychologist, Kidderminster & District Health Authority
Robin Russell HOBBES, Director, Psychotherapy Training Institute, Manchester
Peter John COOPER, Consultant Psychiatrist, Kidderminster General Hospital

Witness volunteering evidence and called upon by direction of the Tribunal Chairman

Mark STEIN, Local Government Officer, Bury, Lancashire.

In addition, bundles of various documents totalling almost 500 pages were submitted to the Tribunal.

In 1987 registration was granted under Part I of the Act to the (then) Trident Housing Society Limited in respect of a residential home in Shropshire for the rehabilitation of mentally disturbed young people. Before such registration was effected the fullest particulars of the Society, its aims, personnel and procedures were made known to the Shropshire Registration Authority. We accept unreservedly paragraph 4 of the statement of Mr Moreton to the effect that the project was subject to regular inspection and that at no time was it ever suggested that registration under Part I of the Act was inappropriate or that grounds ever existed to justify cancellation. A complaint was received in the form of a "dossier" prepared by a private individual, a friend of one of the residents, which led to a thorough examination of the workings of the project by officers of the Shropshire Social Services Department. The findings of this enquiry were made known to the Appellant, which led to changes in various procedures used, but at no stage was the appropriateness of the registration called into question by the Shropshire Registration Authority and this Tribunal has received no evidence to suggest that any other complaint concerning the project has ever been made.

After a need to vacate the premises in Shropshire became known, the Appellant approached the Birmingham City Council Registration Authority in January 1991 with a view to achieving its similar registration in respect of 32 Grove Avenue, Moseley. At the same time very full details were submitted, followed by a formal application on 27 March. A preliminary Report was placed before the Social Services (Elderly and Community Care) Sub-Committee on 24 April which indicated support, in principle, and a willingness to consider a departure from the guideline requirement of that Authority regarding single bedroom provision, but recommended that the Appellant should consider making application the South Birmingham Health Authority for registration under Part II of the Act. Enquiries to the Health Authority achieved the response that registration under Part II of the Act would not be appropriate and should be continued by the Respondent under Part I. In June 1991 the project moved from Shropshire to temporary accommodation in Birmingham in respect of which registration was not required, and a further Report was placed before the Sub-Committee which merely noted the Report and resolved that a further Report be submitted when further enquiries by the Director of Social Services had been completed. On 11 September the Sub-Committee considered a Report containing details of the "allegations made and concerns expressed in respect of the care practices at the establishment when in Shropshire" and proposed the refusal of registration for reasons based on section 9(1 ) and (c) of the Act. Oral representations were heard on 27 November, backed by documentary evidence, whereupon the Sub-Committee adopted its own proposal and made the decision now under appeal to this Tribunal. The decision was no longer based on section 9(a), it was based entirely on section 9(c), namely, on the grounds that "the way in which it is intended to carry on the home is such as not to provide services and facilities reasonably required by reason of:

The Tribunal can readily understand the perplexity of the Appellant upon receiving these grounds of refusal when the Notice of Decision was served having regard to (a) the undisputed evidence concerning the conduct of the hearing on 27 November 1991 (b) the quantity of material that was at least available by then to the Sub-Committee and (c) the possibility that the Sub-Committee may have been influenced by a press article, to which reference was made at the hearing, apparently emphasising the more controversial elements of the treatment offered.

In the words of Jennifer Robinson, the Project Manager, the aim is to provide a service for young adults "suffering from a degree of emotional disturbance serious enough to make residential care at least the preferred option". The intention is, and has always been, to establish a protective environment, in the sense of a refuge, within which to achieve thorough and lasting rehabilitation using a therapeutic community approach as the means to achieve it". She and others agree that some psychotherapeutic methods of treatment are unconventional and can cause anxiety to people who do not understand the context in which they are used. We are satisfied, however, that the most controversial methods of the "regressive psychotherapy" described to us, to the extent that they are still used, amount to an exceedingly small proportion of the entire regime. According to Dr Lawrence the unconventional aspects take up perhaps as little as 3 per cent of the time in therapy at the project and he stated "it is important not to place too much emphasis upon such unconventional aspects. The majority of the work that goes on is preoccupied with maximising adult functioning, keeping the residents in touch with reality and enabling them to think clearly despite feeling strong emotions". Most of the process of rehabilitation espoused by the project consists of methods of teaching a resident how to think and solve problems, broadening knowledge and experience of simple aspects of everyday living, and offering opportunities to make friendships, all in a community setting. As Dr Cooper's affidavit describes: "the techniques which I have discussed and seen practised at the project are, in my opinion, appropriate to the aims of rehabilitation of psychologically disturbed people in their social and interpersonal functioning". All the witnesses who had visited the project appear to have been impressed by what they saw. Mr Rochfort spoke of the open rapport between the staff and residents and described the establishment as "warm and accommodating". Correspondence indicates that serious doubts originally entertained by the Regional Director of the National Schizophrenia Fellowship were largely dispelled by his visit. The Rev.Hart, as chairman of the executive committee of MIND, visited the project after becoming alarmed by "an avalanche of information and allegations concerning the project from a former friend of a resident"; he stated that "it quickly became apparent that any concerns I had were without foundations" - he found the project to be "based on the principles of a therapeutic community" and "those who belonged to it felt part of a safe and caring environment and groups". It was the opinion of Dr Lawrence, following his visit, that "this is an extremely healthy environment in which the severely disturbed individual can be cared for".

Aspects of Treatment

Dr Cooper and others explained to our complete satisfaction that psychotherapy is a skill quite separate from the skills required to perform the core functions of other helping professionals. A psychotherapist does not need for the purposes of practice, or professionally, to be qualified either as a nurse or a doctor. After taking a degree in psychology Miss Robinson sought and obtained additional training in psychotherapy; thus, for example, supervision of her psychotherapeutic work (if required at all) could only be supervised rationally by another psychotherapist. It was indicated by Toni Gilligan that it is not unusual for a trained psychotherapist from a non-medical background to supervise a trainee psychotherapist who is a qualified doctor. The methods of treatment used at the project appeared to Dr Cooper to be aimed most effectively at people whose personal organisation and interpersonal relationships are very disturbed, the purpose being to contain their distress and help them to change. The psychotherapeutic treatment given will only work if the individual resident wants it to work in his or her case. Dr Lawrence described many of the admissions as being self-selective and agreed that at least those five of the residents seen by him could be described as "refugees from the abuses of conventional treatment". Significant aspects of the treatment at the Trident project, about which we were completely satisfied on the evidence, are that it is entered into, continued, and terminated, by each resident on a basis that is entirely voluntary, that the right of the residents to decide what they want in the nature of treatment is fully respected, that there exists an adequate and reliable complaints procedure available to each resident, and that none of the residents is so mentally disturbed as to be unable to complain or criticise in the unlikely event that the need to do so should arise.

It was conceded by Mr Peddie on behalf of the Respondent, towards the conclusion of the appeal, that the Registration Authority was not now seeking to pass judgement upon the propriety of the therapy being offered by the project or upon the appropriateness of the individuals by whom it is currently being provided. That concession was, in our opinion, entirely proper having regard to the overwhelming evidence adduced by the Appellant. We consider that the issues ultimately before the Tribunal were, firstly whether the project requires any additional professional supervision and medical oversight, and secondly whether for that or any other purpose registration is the more appropriate under Part II of the Act. The Appellant had no opportunity to deal with that second issue when making representations to the Social Services (Elderly and Community Care) Sub-Committee because the point was raised and discussed only after the parties had withdrawn. It was discussed by the Sub-Committee in the context of doubts expressed concerning the adequacy of the Authority's resources for inspection of the project under Part I.

Very little recent direct evidence regarding the project appears to have been at the disposal of the Registration Authority. Neither Mr Williams, nor Mr Reville, nor any of the councillors, visited it before the decision to refuse registration was reached. No medical or other specialist witness was called on behalf of the Authority, nor apparently did it seek medical or other specialist opinion at any earlier stage. We accepted the evidence of Mr Rochford who, at the request of the Authority, visited the project and provided a favourable Report in November 1991. We took into account the letter written to Mr Reville by Mr Wallace on 6 August 1991 after he had visited the project and spoken to residents. We considered the evidence of Mr Mark Stein concerning events occurring between October 1990 and February 1991 at the Shropshire home. His testimony (to the extent that it was critical of the therapy and its effect) so contradicts that of several experts, of factual witnesses called before us, and of other evidence, that we are quite certain the adverse inferences he seeks to draw from the information at his disposal are unsound and have no relevance whatsoever to the activities of the project at the present time. The only expert and other evidence strictly material to the live issues mentioned in paragraph 7 came from the Appellant's own witnesses. In general terms we were completely satisfied with the quality and reliability of their testimony.

Need for Professional Supervision/Medical Oversight?

We considered that there was merit in the submission of Mr Engelman to the effect that this consideration first arose only after his clients had withdrawn from the 'representations meeting' on 27 November 1991. The context in which the issue has now been raised constitutes a 'shift of ground' from the reasons then given for the Registration Authority's decision, and we do not doubt Mr Moreton who told us that this aspect of the case was never raised with him until the first day of the hearing before us. Nevertheless the issue was faced squarely by the Appellant's witnesses. By a change of emphasis the Respondent has suggested that, even if not necessary for the purpose of diagnosis or treatment, such supervision or oversight is nevertheless required in the form of a medically qualified person to act as a 'watchdog' or 'whistle-blower' in the event that things go wrong. It was submitted that the psychotherapeutic treatment provided by the project is 'untried and untested' in this country, that the professional guidance sub-commitee put in place by the Appellant is not itself a sufficient safeguard against possible abuse, and that there is a danger of the development of 'tunnel vision' without some outside source of professional

advice. It was contended that medical oversight would provide a means of independent diagnosis and avoid the perception of Jenny Robinson as being the only person to make an initial diagnosis before the admission of a resident to the Trident community: and further that day-to-day supervision of this kind (even if not strictly necessary) would be 'useful' for all these purposes. It was also submitted that, for these several reasons and because 'therapy' (in the dictionary sense of 'medical treatment') is being provided, registration under Part II of the Act must therefore be the more appropriate.

None of the Appellant's witnesses, even in cross-examination, would accept the validity of any of these contentions. Almost all those witnesses had at least some first-hand knowledge of the Trident project. We do no think it necessary to rehearse the evidence of all of them. Their evidence taken as a whole convinced us that a "day-to-day watchdog" is neither necessary nor desirable. We have no doubt whatsoever of the integrity of those actively engaged upon the project, in particular the Director of the Trident Housing Association, and the Project Manager. We decided that the evidence meets all the particular concerns voiced by counsel on behalf of the Respondent in his submission. In particular, we were quite satisfied with the evidence given on behalf of the Appellant in respect of the following matters:-

(1 ) the composition and qualifications, the activities, and the evident availability and approachability of the Appellant's professional guidance Sub-Committee;

(3 the introductory and probationary period system of admission;

The expert and factual evidence before us concerning the project and its activities left us in no doubt but that registration under Part I of the Act is appropriate. This was the opinion of Mrs Fulwell in May 1991, writing on behalf of the South Birmingham Health Authority; it seems also to have been the opinion of the relevant officer of the Department of Legal Services of the City Council. The same opinion was clearly expressed by a number of the Appellant's witnesses giving reasons based on their knowledge, experience and expertise. No witness suggested that Part II registration was either desirable or required. We agree with the summary by Mr Beddoe and by the Rev.Hart, and we accept the conclusions drawn on this aspect of the case from their practical appraisals following a visit to the project. But also, having regard to the nature of the psychotherapeutic treatment provided by the project, and the manner in which and the persons by whom it is provided, none of these opinions does violence, in our judgement, to the proper construction of the Act. We do not consider that the premises in Grove Avenue are intended for the provision to residents of "nursing or other medical treatment" or for their rehabilitation under "medical supervision" within the meaning of those words in section 22(1). The evidence has convinced us that registration of the Appellant in respect of 32 Grove Avenue is appropriate under Part I, those premises being an establishment - like many others - intended to provide "residential accommodation with both board and personal care for persons in need of personal care by reason of past or present mental disorder" in terms of section 1(1). For the meaning of "personal care" we apply the same understanding as that of the Tribunal in Harrison v Cornwall CC (Decision No 146), namely that it "embraces care in many forms, emotional or psychiatric as well as physical", and we take comfort from the knowledge that this understanding has since met with the approval of the Court of Appeal.

G F Harwood
M S Jobbins
B J Gray