FW (a patient) v Cardiff & Vale University Health Board

In these reasons:

FW suffered a brain injury in 2017. In 2020, he was hospitalised in Spain for 12 days. Upon FW’s return to the UK, he was admitted to a specialist neuropsychiatric rehabilitation unit. In August 2021, FW was discharged to his home but soon readmitted following a hypoglaecemic episode which the MHRT(W) said was linked to his poor compliance with insulin medication. FW’s readmission was compulsory, pursuant to section 2 of the Mental Health Act 1983 but, subsequently, he remained at the hospital as an informal patient.

At some point in 2022, FW sought, or indicated that he wished, to leave the hospital at which he was informally admitted. In response, an application was made for FW’s admission to hospital under section 5(2) of the 1983 Act (application in respect of patient already in hospital). That was soon followed by an application under section 2 of the 1983 Act for FW’s compulsory admission to hospital for assessment. FW’s case came before the MHRT(W) in August 2022, but the tribunal refused to direct FW’s discharge from liability to detention under section 2. This is not the decision challenged on this appeal.

In August 2022, an application was made for FW’s compulsory admission to hospital for treatment under section 3 of the 1983 Act. FW applied to the MHRT(W) for discharge from liability to detention under section 3. The MHRT(W) dismissed JW’s application. This is the decision challenged on this appeal.

A few months after FW’s notice of appeal was received at the Upper Tribunal, he was, in July 2023, discharged from detention. My reading of the correspondence is that FW was discharged by order of his responsible clinician or hospital managers under section 23 of the 1983 Act rather than by the MHRT(W). FW’s representative requests that the Upper Tribunal nevertheless decides this appeal because the issues it raises are of general importance. The Respondent Health Board do no object.

JW’s application was hearing by way of video-link. JW’s solicitor attended but her participation was impeded by a poor internet connection. JW gave oral evidence as did his responsible clinician, nurse and social worker.

The MHRT(W) found that:

FW suffered from severe short term memory loss and cognitive deficits (paragraph 5 of the tribunal’s reasons);

FW was compliant with medication when prompted and used his extensive leave without incident (paragraph 5);

FW could manage his personal hygiene, eating and other basic functions independently. He presented little difficulty on the ward but was frustrated that he could not go home yet (paragraph 5);

despite “best efforts”, there was “no care package arranged that would allow [FW] to be safely discharged home”; “the inability of medical services and the local authority to agree responsibility for funding and arranging his care has led to substantial delay and a stagnation in his recovery and return to more independent life”. The next planning meeting was due in early November “and it is hoped that there will at long last be some progress” (paragraph 6);

at paragraph 7, the tribunal noted “it was suggested that further detention was not the least restrictive option because [FW] was ready for discharge from hospital” and that FW’s representative had asked the tribunal to “consider adjourning the case to establish details of the care package”;

the responsible clinician’s evidence was that FW only posed a risk to himself, not others, with the most immediate risk being to his physical health. The principal risk was FW’s history of poor diabetic control in the community, a potentially fatal risk. Three challenges were identified: (i) even in hospital, diabetic control had been difficult; (ii) FW was fixated on having a lower than recommended blood sugar level; (iii) whether FW would maintain abstinence from alcohol if discharged (paragraph 10);

only limited weight could be placed on FW’s assurances that he would “let go” of his pursuit of lower than recommended blood sugar levels, and abstain from alcohol. The Tribunal found “It is in the evenings and overnight that [FW] is most at risk to himself, and unfortunately this is exactly the time when community care services are most difficult to put in place” (paragraph 12);

the Tribunal noted that FW’s representative relied on the Court of Appeal’s decision in Ashworth. However, the circumstances of the patient in Ashworth were different. When that matter was before the High Court, Stanley Burton J found that a tribunal had wrongly discharged a patient without more information about aftercare; it should have adjourned for information or delayed discharge so that arrangements could be made. The Court of Appeal held that the tribunal had discharged the patient on the assumption, unsupported by evidence, that appropriate aftercare would be arranged (paragraph 13);

in FW’s case, the Tribunal was well aware of the inadequate aftercare arrangements “not for the want of trying from the professionals”. Discharge now would be reckless (paragraph 14):

the Tribunal refused to adjourn until after a proposed Complex Care Commissioning Team meeting in November 2022. If funding responsibilities could be agreed at that meeting, the Tribunal had no doubt that FW’s discharge would follow since “all concerned…agree that he is ready for discharge from hospital, subject to comprehensive support being put in place”. The Tribunal understood the current position and “would only be adjourning in the hope of a change in circumstances” (paragraph 15).

A Deputy President of the MHRT(W) granted FW permission to appeal to the Upper Tribunal. The grounds of appeal put to the MHRT(W), which the Deputy President considered demonstrated arguable errors on a point of law, were:

the MHRT(W) erred in law in paragraphs 13 and 14 of its reasons. The Tribunal found that R (Ashworth) v MHRT [2002] EWCA Civ 923 could be distinguished on the facts yet, in Ashworth, as in FW’s case, there was a lack of information about aftercare arrangements. The MHRT(W) acknowledged that all agreed that FW was ready for discharge subject to comprehensive support being in place (paragraph 15). It also found that there was no care package arranged and the inability of medical services and the relevant local authority to agree funding responsibilities had led to significant delay. In those circumstances, Ashworth required the Tribunal to adjourn with “appropriate directions for aftercare arrangements to be provided”;

paragraph 15 of discloses a further legal error. The uncertainty regarding putting in place aftercare arrangements, on which satisfaction of the discharge criteria would depend also called for adjournment, in accordance with Ashworth;

the Tribunal erred in paragraph 15 in finding that there was not a less restrictive option that met the identified needs and risks. Dr Mensah’s oral evidence was that detention on the ward was the least restrictive option “pending an aftercare plan”, and the social worker gave evidence that the least restrictive option was for FW to return home. The Tribunal’s findings were inconsistent with this evidence;

Dr Mensah’s report of 20 September 2022 referred to “the protracted delay in sorting out the appropriate aftercare package for him”. This was preceded by his email of 15 February 2022 which referred to “grave concerns about the delay in sorting out the discharge destination and aftercare funding”. These statements showed that, in hospital, only FW’s physical condition was being managed, and all that blocked discharge was suitable aftercare arrangements. The Tribunal itself recorded in paragraph 16 the need for urgent arrangements which further supported the case for an adjournment;

the fact that FW himself supported discharge, with a care package, called for an adjournment to ‘enable’ that package;

the Tribunal erred in law by finding that an adjournment would only be in the hope of a change of circumstances.

Section 72(1)(b) of the 1983 Act requires the MHRT(W) to discharge a patient liable to be detained under section 3 of that Act if it is not satisfied as to each of the following matters:

the patient is suffering from mental disorder, or mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment;

it is necessary for the health and safety of the patient, or protection of other persons, that the patient should receive such treatment;

appropriate medical treatment is available.

Section 72(3) of the 1983 Act confers power on the tribunal to direct discharge of the patient on a specified future date.

Section 117 of the 1983 Act applies to certain patients, including those detained under section 3, who “then cease to be detained and (whether or not immediately after so ceasing) leave hospital” (section 117(1)). Section 117(2) requires the Local Health Board and local authority to provide, or arrange, after-care services for such patients (“after-care services” is defined in section 117(6)).

Rule 21 of the Mental Health Review Tribunal for Wales Rules 2008 provides as follows:

“(1)

The Tribunal may at any time postpone or adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate.

(2)

Before postponing or adjourning any hearing, the Tribunal may give such direction as it thinks fit for ensuring the prompt consideration of the application at a postponed or adjourned hearing.

(3)

Where a party requests that a hearing postponed or adjourned in accordance with this rule be reconvened, the hearing must be reconvened if the Tribunal is satisfied that reconvening would be in the interests of the patient.

(4)

[…] before the Tribunal reconvenes any hearing which has been adjourned without a further hearing date being fixed, it must give to all parties not less than 14 days' notice (or such shorter notice as all parties may consent to) of the date, time and place of the reconvened hearing.”

The overriding objective of the 2008 Rules is to enable the MHRT(W) to deal with cases fairly, justly, efficiently and expeditiously (rule 3(1)). The Tribunal must seek to give effect to the overriding objective when it exercises any power under the Rules (rule 3(3)).

Ashworth concerned a patient who was discharged from detention under section 3 of the 1983 Act on 22 March 2001 by direction of the Mental Health Review Tribunal. But he remained in hospital, as a voluntary patient, because he had nowhere else to go. The Tribunal had refused to adjourn until it knew what after-care arrangements were in place. As subsequently stated in the High Court’s judgment, which preceded that of the Court of Appeal, “it is clear that there was consternation” on the part of the public authorities concerned that the patient’s immediate discharge had been directed. This had not been anticipated, and arrangements had not been made for an after-care package.

On 29 April 2001, a fresh application was made for the patient’s detention under section 3. The application was accepted by hospital managers and the patient detained.

Ashworth Hospital brought a claim for judicial review in the High Court, which argued that the Tribunal’s decision to direct immediate discharge was unlawful. The Hospital’s claim succeeded. Stanley Burnton J held that “no sensible tribunal” could have directed discharge, in particular because no after-care arrangements were in place. The patient appealed to the Court of Appeal.

Much of the Court of Appeal’s judgment was concerned with the question whether the High Court had power to grant a stay of a Tribunal’s order to discharge a patient. Those parts of the judgment are not relevant for present purposes, nor are those concerned with the circumstances in which an application for a patient’s admission may lawfully be made following a recent Tribunal decision to order discharge. Dyson LJ gave what the principal judgement, and the only one which dealt with matters relevant in the present case. His Lordship held as follows:

the question whether the patient’s mental illness was of a nature or degree which made it appropriate to be detained in hospital for medical treatment “was (to put it no higher) very likely to be heavily influenced by the after-care arrangements that were to be provided following his discharge” (paragraph 67);

the patient was one “in respect of whom it was essential that the Tribunal considered the availability of suitable after-care services when deciding whether to order his immediate discharge from hospital” and “if the Tribunal had any doubt as to whether such services would be available, they should have adjourned to obtain any necessary information” (paragraph 68);

adjournment was preferable to deferred discharge under section 72(3) of the 1983 Act because the requirement to direct discharge on a specified date requires certainty as to whether suitable after-care arrangements will be place on that date, and “in cases of doubt the safer course is to adjourn”. The Tribunal could not reasonably have assumed that services would be provided as soon as the patient was discharged into the community and, for that reason if no other, the decision was one that no reasonable tribunal could have taken (paragraph 68);

the Court of Appeal endorsed the “general observation” of Stanley Burnton J that, where satisfaction of the discharge criteria depends on availability of suitable after-care and accommodation, immediate discharge should not be ordered if no arrangements for after-care are in place and there is no time to make them. Instead, a Tribunal should consider whether to recommend a supervision application under section 72(3A) (since the Court of Appeal’s decision, section 72(3A) has been amended and now refers to a recommendation that the responsible clinician consider making a community treatment order). If that is considered inappropriate or unnecessary, and there is uncertainty as to after-care arrangements, the tribunal should adjourn to enable arrangements to be made

The patient’s notice of appeal was referred to me in early March 2023. On 22 March 2023, I gave case management directions which required the Respondent Health Board to provide a written response to the appeal within one month of the date on which the directions were issued. The directions were issued on 30 March 2023.

The Health Board did not comply with the above directions, despite a number of ‘chasing’ communications by Upper Tribunal staff. All the Health Board did was ask on a number of occasions for advice from the Upper Tribunal as to what a response to an appeal should contain. I gave further case management directions which again required a written response to be provided within one month. A response was received to these directions albeit late and without any request for an extension of time.

The Health Board’s response informed the Upper Tribunal that FW had now been discharged into the community, supported by an after-care package, and that the Board wished to adopt a neutral stance regarding the merits of his appeal.

The Health Board’s response was issued to the Appellant’s representative. Case management directions required a written reply within one month, but those directions were not complied with either. I then suffered serious injuries in an accident and was absent from my duties for an extended period. I apologise for the extent to which the delay in deciding this appeal has been my responsibility.

I shall take the Appellant’s stance to be as set out in his notice of appeal. There are no meaningful submissions from the Health Board. Neither party requests a hearing of this appeal. I doubt that a hearing would assist me in deciding this appeal. In the circumstances, I am satisfied that it is fair and just to decide this appeal without holding a hearing.

The essence of FW’s case is that the MHRT(W), in refusing to adjourn the hearing of FW’s application, failed to follow the course charted by the Court of Appeal in Ashworth. The ratio (dispositive legal reasoning) of Ashworth was, of course, binding on the MHRT(W).

Ashworth concerned a tribunal decision to discharge a patient from liability to detention under section 3 despite there being no evidence before it about after-care arrangements. The reason why there was no evidence was because no after-care arrangements had been made.

The Court of Appeal’s decision relates to a particular category of patient, that is one whose prospects of meeting the discharge criteria in section 72 of the 1983 Act are, if not dependent on, then very likely to be influenced by the nature of the after-care services available in the event of discharge. I think it can safely be inferred from the MHRT(W)’s decision that the Tribunal thought that JW was such a patient because, in paragraph 15 of the Tribunal’s reasons, it expressed confidence that he would be discharged once a comprehensive support package was in place. However, that does not, of itself, mean that JW’s grounds of appeal are made out. A further characteristic of the Ashworth case was that the tribunal decided to direct the patient’s discharge despite knowing nothing about the after-care services planned for the patient upon discharge.

Ashworth held that a tribunal dealing with a patient of the type just described must consider “the availability of suitable after-care services” when deciding whether to order immediate discharge. The MHRT(W) did not order JW’s immediate discharge and so, to this extent, the Tribunal acted in accordance with Ashworth. The real issue is whether the MHRT(W) acted in accordance with another aspect of Ashworth where the Court said held that where a Tribunal had “any doubt as to whether such [after-care] services would be available, they should [adjourn] to obtain any necessary information”.

On my reading of the MHRT(W)’s reasons, it seems that it identified, in general terms, the type of after-care services necessary in order for JW to meet the discharge criteria, or at least the after-care service that was proving difficult to commission, and also knew why after-care arrangements had been delayed. That follows from paragraph 12 of the Tribunal’s reasons which noted that JW was most at risk of a loss of diabetic control in evenings and overnight, which were the times when it was most difficult to commission support workers. JW’s case was not, therefore, on all fours with Ashworth. In Ashworth, a Tribunal ordered discharge despite knowing that no arrangements had been made for after-care services. In JW’s case, the Tribunal knew that attempts were being made to arrange after-care services and, in general terms, what the necessary services were. It also knew why they had been delayed – the public authorities involved had not agreed funding responsibilities. The question that arises on this appeal is whether the MHRT(W) was bound to find that those circumstances of JW’s case amounted to a ‘doubt as to the availability of suitable after-care services’ which called for an adjournment with directions for ‘the necessary information’, as referred to in paragraph 68 of Ashworth.

I shall first address JW’s argument that, as well as adjourning, the MHRT(W) should have given directions for after-care services to be provided. Whatever Ashworth requires, it does not require a Tribunal to give directions requiring provision of after-care services. Indeed, such directions would be contrary to section 117(2) of the 1983 Act in which Parliament conferred responsibility on the local authority and Health Board, not a Tribunal, for providing or arranging the provision of after-care services to certain patients. That is not to say that the Tribunal has no role in identifying the after-care services necessary in order for a patient to meet, or have a good prospect of meeting, the discharge criteria. Despite the formal after-care duty under section 117 only becoming active once a patient has left hospital, only the Tribunal can indicate with confidence what sort of after-care services would probably be needed in order for it to decide, in a case before it, that the discharge criteria were met. If public authorities then simply fail to discharge their duties under section 117, that is not something that the MHRT(W) has power to cure. Ultimately, a claim for judicial review in the High Court could be made to enforce compliance; in Clunis v Camden & Islington Health Authority [1997] EWCA Civ 2918 the Court of Appeal said:

“No doubt, too, a decision by the [relevant NHS body] or the local social services authority under [section 117] is liable to judicial review at the instance of a patient, see R. v Ealing District Health Authority, Ex Parte Fox [1993] 3 AER 170.”

It is relevant to now consider the consequences of the MHRT(W)’s refusal to adjourn JW’s case (i.e. dismiss his application).

Along with JW’s continued detention, a direct legal consequence of the MHRT(W)’s refusal to adjourn / dismissal of JW’s application was that the Tribunal ceased to have oversight of his case, potentially for a fairly significant period of time. Assuming that the present application was JW’s first application after being admitted to hospital under section 3 of the 1983 Act, he had no right to make another until the beginning of the next “relevant period” as defined in section 66(1) of the 1983 Act by reference to the renewal of authority to detain him. If the present application was JW’s first following admission, he would be entitled to apply again when authority for his detention was first renewed under section 20(2) of the 1983 Act. Section 20(2) provides that authority to detain a section 3 patient expires six months after admission unless renewed (subsequent periods of authority to detain last for 12 months).

Until JW attained and exercised a fresh right to apply to the MHRT(W), he could only be discharged if (a) authority for his detention expired without being renewed under section 20(2) of the 1983 Act, or (b) an order for discharge were made under section 23 of the 1983 Act. For a patient liable to be detained under section 3, orders for discharge may be made by the responsible clinician, the hospital managers (or the patient’s nearest relative). However professionally skilled these clinicians and officials are, they are not judicial office holders. I do not mean to suggest that they are less likely than a tribunal to give careful scrutiny to the continued justification for a patient’s detention, or are somehow prone to de-prioritise a case that is not the subject of ongoing Tribunal proceedings and let it ‘drift’, but the fact remains that they cannot reasonably be expected to consider a patient’s case in the same judicial manner as a tribunal. As a result of the MHRT(W)’s refusal to adjourn, the lawfulness of JW’s continued detention ceased to subject to judicial (tribunal) oversight. I shall return to this point in a moment.

In Ashworth, the Court of Appeal said that where there was “any doubt as to the availability of suitable after-care services”, a tribunal should adjourn “to obtain any necessary information”. On my reading of the MHRT(W)’s reasons, it read this stricture as inapplicable in JW’s case because it had already identified the required after-care services so that either:

there was no real doubt as to the availability of suitable services because, once the funding dispute was resolved, the services necessary for JW to be discharged would be put in place, which meant Ashworth was inapplicable; or

there was no ‘necessary information’ that remained to be obtained, which meant an adjournment would be pointless and not mandated by Ashworth.

I can follow the MHRT(W)’s reasoning but respectfully disagree with it. While suitable after-care services may have been identified, as well with the reason why, for the time being, they were unavailable, it seems to me that this does not mean there were no doubts as to their availability. It is true that the Tribunal had some ‘necessary information’ in that it knew what would be put in place once the funding impasse had been resolved, but it remained the case that crucial information was missing namely the date on which the after-care package could begin. While the MHRT(W) could not have obtained that information immediately (because it seems it did not yet exist), it could have given directions, say, for the information to be made available to it by a particular date. In my judgment, Ashworth applied to JW’s case and should have been followed by the MHRT(W).

As I have just said, in my judgment the MHRT(W) misconstrued Ashworth. If the matter is not as clear cut as I believe, and the words used in Ashworth are open to different interpretations, the wider context requires the words to be read so that, in a case such as JW’s, a Tribunal is required to adjourn and give directions as to the availability of after-care services. By ‘a case such as JW’s’, I mean a case where (a) a patient is not immediately discharged; (b) the patient has a good prospect of being discharged by the Tribunal if certain after-care services are in place, (c) those services have been identified with reasonable precision, (d) the section 117 after-care authorities agree that one or other of them should provide these identified after-care services, but (e) the section 117 authorities have yet to agree on funding responsibilities for the after-care services.

The wider context includes the fact that a patient such as JW, who may fairly be described as on the cusp of discharge, will cease to be subject to judicial / tribunal supervision until such time, which could be nearly 12 months, as authority to detain is next renewed under section 20 of the 1983 Act (assuming the patient does exercise the right to apply to the Tribunal). If Ashworth is open to different readings, the interests of the detained patient will be better served by a reading which requires adjourning rather than bringing MHRT(W) proceedings to an end by dismissing the patient’s application. By failing to adjourn JW’s application, the present MHRT(W) erred in law.

The MHRT(W)’s decision involved an error on a point of law. The Appellant’s grounds of appeal are made out, as explained above. However, there is no utility in setting aside the Tribunal’s decision because I am informed that JW was discharged into the community well over a year ago.