PQR v Derbyshire Healthcare NHS Foundation Trust

PQR was the applicant before the First-tier Tribunal and is the appellant in these proceedings. He is also involved in Part 8 proceedings in the High Court, in which he is known by the same initials. The parties in the Upper Tribunal agreed that he should be known by the same initials in these proceedings also.

The High Court proceedings seek a declaration on the meaning of ‘examination’ in various provisions of the Mental Health Act 1983. One of those provisions is section 20A(4)(a), which deals with extensions of community treatment orders (CTOs). The issue is whether that examination has to be carried out in the presence of the patient. This issue might also arise in the tribunal proceedings, depending on the jurisdiction of the First-tier Tribunal. In the event, I have decided that the First-tier Tribunal has no jurisdiction to rule on the validity of a CTO. As the issue cannot arise within the First-tier Tribunal’s jurisdiction, it would not be permissible for the Upper Tribunal to deal with it as an academic issue: Secretary of State for Work and Pensions v Robertson [2015] CSIH 82 at [42]-[45].

PQR was born in 1966 and was diagnosed with schizophrenia in 1996. The First-tier Tribunal described the current nature of his condition as ‘a chronic, relapsing and remitting mental illness characterised by psychotic symptoms (particularly auditory hallucinations), thought disorder and associated disturbed behaviour. The patient has a lengthy and well recorded history of exhibiting violent behaviour at times of relapse.’

Since he was diagnosed, PQR has had frequent and regular involvement with the mental health services, involving both admissions to hospital (ten by my count) and intermittent discharges subject to CTOs. He was subject a CTO that was due to expire in 2020. In order to decide whether the CTO should be extended, his responsible clinician examined him but, on account of the pandemic, did so by telephone. There were further examinations in 2021 and 2022, both of which were carried out in the presence of PQR. Following all three examinations, the responsible clinician reported that PQR appeared to satisfy the conditions for the CTO to be extended.

In June 2022, PQR applied to the First-tier Tribunal. His solicitor argued that an examination necessary for a CTO to be extended had to be conducted in the presence of the patient. As the 2020 examination of PQR had been conducted by telephone, it did not comply with the requirements of the Mental Health Act 1983 and the CTO had not been extended. The Trust’s solicitor argued that that issue was outside the tribunal’s jurisdiction. The tribunal decided: (a) it did not have jurisdiction to consider the validity of the CTO (the jurisdiction issue); but (b) if it had jurisdiction, it would find that the examination did comply with the Act (the construction issue). It concluded: (c) PQR satisfied the conditions for a CTO to be extended.

PQR applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The tribunal refused permission. In doing so, the tribunal carried out a review under section 9 of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision on the construction issue on the ground that the tribunal should not have decided it. I gave PQR permission to appeal and the appeal was considered at an oral hearing on 7 August 2023.

The Secretary of State for Health and Social Care, who is a party to the High Court proceedings, applied to be made a party to the Upper Tribunal proceedings. I refused on the ground that this would not add value to the Upper Tribunal proceedings. I did, however, allow the Secretary of State to make submissions in the case. This was done in writing by Mr Laird. I am grateful to him and to counsel who appeared before me for their submissions. I am also grateful to PQR’s solicitor and counsel, all of whom are representing him pro bono.

These are the relevant provisions of the Act:

I have decided this appeal on the assumption that the examination in 2020 did not comply with section 20A(4)(a). At the hearing, we discussed two ways of analysing the consequences. I call them the logical approach and the pragmatic approach. For both, the issue for me is what jurisdiction would the First-tier Tribunal have?

Mr Simblet began with the logical approach. On this analysis:

an examination under section 20A had to be conducted in the presence of the patient;

as it had been conducted by telephone, the examination in 2020 was not carried out properly;

the result was that the CTO was not extended in that year;

at the end of the community treatment period for the CTO, the patient was discharged under section 20B; and

in 2021 and 2022, there was no longer a CTO that could be extended.

Even if all of that is correct, it does not help PQR in the tribunal proceedings. In order to commence proceedings, PQR would have to show that there had been a report to the managers (section 66(1)(fza)) and that the application was made within the relevant period as defined by section 66(2)(fza). He could satisfy the former. But he could not satisfy the latter because, on the logical approach, there had been no extension and, therefore, there was no relevant period within which to make an application.

Even if section 66(2) were satisfied, the First-tier Tribunal would have no powers under section 72(1). The tribunal is only given power to discharge, but on the logical approach, the patient would already have been discharged by operation of law under section 20B. Moreover, the power only exists in respect of a community patient, which is defined by section 17A(7) as someone in respect of whom a CTO ‘is in force’. But if there had been no extension, there would be no CTO in force. The logical approach prevents the First-tier Tribunal having any power to discharge.

In short, the logical approach is self-defeating in so far as the First-tier Tribunal’s jurisdiction is concerned. Whatever rights or remedies a patient may have, they are not to be found in the First-tier Tribunal. PQR in effect would be applying for a declaration that he was not subject to a CTO, but the logical analysis prevents the First-tier Tribunal having any power to deal with the application, let alone to give him the declaration he wants.

The law has recognised the dangers in following logic and takes an approach that recognises the ‘important values underpinning the court’s supervisory jurisdiction, such as the public interest in legal certainty, orderly administration, and respect for the rule of law.’ Those words come from the Supreme Court in R (Majera (formerly SM (Rwanda))) v Secretary of State for the Home Department [2022] AC 461 at [32].

As Lord Slynn put it in Boddington v British Transport Police [1999] 2 AC 143 at 165, ‘courts have had to grapple with the problem of reconciling the logical result with the reality that much may have been done on the basis that an administrative act or a byelaw was valid. The unscrambling may produce more serious difficulties than the invalidity. … [T]he law in this area has developed in a pragmatic way on a case by case basis.’

The leading authority is now the decision of the Supreme Court in Majera. The case involved a judicial decision, but the Court devoted a section of its judgment to administrative acts that had not been properly made in some way. I have taken account of the whole of the section, which runs from [27]-[42], but will limit myself to these quotations:

Recognising the problems with the logical approach, Mr Simblet accepted that the examination and report in 2020 had had some effect. He began by accepting that the purported extension had had a ’practical effect.’ Later, he used other expressions: ‘acting on it’, ‘treated as valid’ and ‘had effect’. He was right to use all those expressions. But on the authority of Majera and of authorities dating at least from the 1950s, what was done in 2020 also had ‘legal effect’ unless and until it was set aside in some lawful manner.

The ‘legal effect’ meant that the existing CTO was extended in 2020, even if the examination had not been properly conducted. And it had been further extended in 2021 and 2022. That would allow PQR to apply to the First-tier Tribunal under section 66 and the First-tier Tribunal would have power under section 72(1) to discharge him. But that would not mean that the First-tier Tribunal would have jurisdiction to rule on the validity of a CTO or its extension. There is no caselaw on this issue, but there is authority from the Court of Appeal and House of Lords on the same issue in respect of section 3 of the Mental Health Act 1983. The First-tier Tribunal relied on those cases in deciding the jurisdiction issue.

Ex parte Waldron [1986] QB 824 concerned the jurisdiction of the High Court to hear judicial review proceedings that challenged the validity of a recommendation that a patient be admitted for treatment under section 3. Ackner LJ rejected an argument that the proper remedy lay through (what is now) the First-tier Tribunal:

The other members of the Court did not deal with this issue. Ackner LJ’s conclusion was, though, approved by the House of Lords in R (von Brandenburg) v East London and the City Mental Health NHS Trust [2004] 2 AC 280. In that case, the patient had been readmitted under section 3 following an order by a tribunal that he be discharged. Lord Bingham gave the only judgment. He began by setting out what he called (in [6]) ‘certain familiar overriding principles, not in themselves controversial.’ Among those principles was this:

Mr Simblet argued that I was not bound by those passages. As to Waldron, it was only the opinion of Ackner LJ. The other judges did not find it necessary to deal with the argument. As to von Brandenburg, it was built on Waldron and was not necessary for the issue before the House of Lords.

Mr Simblet’s submissions may be technically correct as a matter of precedent. Nevertheless, I am going to apply Waldron and von Brandenburg for these reasons. (a) If they are not binding as precedent, they are statements by a Lord Justice of Appeal in the Court of Appeal and a unanimous House of Lords. (b) They have stood for decades; Waldron was decided not far short of 40 years ago and von Brandenburg was decided a few months short of 20 years ago. (c) The reasoning is compelling on the language of the legislation. Every point made by Ackner LJ is equally applicable to a CTO, as is the reasoning of the House of Lords. Read as a whole, the provisions allowing applications to be made to, and those conferring powers on, the First-tier Tribunal do not include power to deal with issues of validity.

Suppose, though, that I am wrong and that the cases I have just discussed can be distinguished to give the First-tier Tribunal jurisdiction on PQR’s application to rule on the validity of the continued existence of the CTO. Mr Simblet argued that the tribunal could give effect to its conclusion on the issue under its discretion in the opening words of section 72(1).

Section 72(1) confers a discretion to ‘direct that the patient be discharged’. That language – the statutory language - seems inapposite for a ruling on validity. The essence of the argument is that the 2020 extension should be treated as invalid, thereby depriving subsequent extensions of their validity also. Once that initial invalidity was accepted, PQR would be discharged by operation of section 20B. So, as soon as the tribunal had decided on invalidity, there would no longer be any need to exercise the discretion in order to give effect to PQR’s discharge. Perhaps this is too technical, pedantic even, for so serious a matter as the operation of the mental health legislation.

This does not mean that Mr Simblet’s argument would succeed, because there are good reasons why the tribunal should not exercise the discretion to discharge PQR. I have seen no evidence that the examination in 2020 was inadequate in some way that undermined the decision that an extension should be authorised. Mr Simblet suggested some ways in which this might occur, which I accept could happen, but there is no evidence that any of them did. Moreover, the 2020 examination did not occur in isolation. It has to be set in the context of the nature of PQR’s condition; I have already quoted the tribunal’s description of that condition. It is also part of a history that dated back two decades and more with numerous admissions and intermittent CTOs. Since 2020, there had been two further examinations, both conducted in accordance with section 20A, that have led to extensions. And the tribunal found that at the time of the hearing that there was no duty to discharge PQR under section 72(1)(c).

Mr Simblet emphasised that this case involved the liberty of the subject, which should only be curtailed in accordance with the law. I accept that. It is certainly one of the ‘important values underpinning’ the law’s approach to validity, to quote Majera. But it is not the only value. There are others, which are apparent in section 72(1)(c) and apply generally throughout the legislation. First, there is the ‘health or safety’ of the patients themselves. Second, there is ‘the protection of other persons’, family members, medical and nursing staff, and the public generally. All three factors – liberty, health and safety – have to be taken into account in the context of the case and the proper exercise of the tribunal’s discretion.

In the combined circumstances I have set out, I go so far as to say that it would have been perverse for the First-tier Tribunal to exercise its discretion in favour of PQR. This is, though, theoretical, because I have decided that the tribunal had no jurisdiction to exercise its discretion.

I notice that Mr Simblet did not rely on regulation 72(1)(c). The word ‘then’ in paragraph (c)(i) (and in the equivalent provisions in paragraphs (a)(i) and (b)(i)) requires the tribunal to decide whether the conditions are satisfied at the time of the hearing. That focus on the present would have been inconsistent with the focus of his argument, which was on the past and what was not done properly in 2020.

The First-tier Tribunal was right to decide that it had no jurisdiction to rule on validity. Having come to that conclusion, after hearing argument from both parties, it was under a duty to strike out that part of the proceedings under rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). This does not deprive PQR of a remedy; it means that the remedy lies in the courts and not in the tribunal system.