Mental Health Tribunals – Essential Cases

Introduction The law relating to detention on the basis of mental disorder and the tribunal at the centre of applications for release should be settled and certain, given that it involves deprivation of liberty and a vulnerable population, two factors that make it important that the law be clear. However, the vast (and growing) body of case law suggests that this is not so. In this context, the aim of this book is to collate important cases relating to the powers and procedures of the Mental Health Review Tribunal. The book is broken into different sections, each dealing with different areas of the Tribunal’s substantive powers or issues of procedure that arise. Each section sets out a summary of the statutory position in the Mental Health Act 1983 and the MHRT Rules 1983 (and the full text of relevant parts of the Act and the Rules is set out in an appendix), followed by a series of propositions that have been established by the cases; there are then extracts from the relevant cases. These sections are set out in alphabetical order: so to find the case law relating to a particular issue, look down the list of different sections to find the relevant one. There is also a full index at the front, which refers to the relevant part of the statute or rules and, if there have been cases, the chapter of the text. I would like to thank Professor Jeremy Cooper for helpful suggestions as to the structure of the book. The text is updated regularly via a subscription service. Kris Gledhill Original Text - December 2005 Update 1 – February 2007: index, ch 18, ch 19(i) and (ix) Update 2 – April 2008: index, ch 4, ch 5 Note: in relation to restricted patients, the functions of the Home Secretary were transferred to the Secretary of State for Justice when the Ministry of Justice was created in 2007. Naturally, most of the cases cited involving restricted patients are from when the Home Secretary exercised the relevant functions. ISBN 0-9552071-0-X (978-0-9552071-0-5) © Copyright Southside Legal Publishing Limited 2005-8. All rights reserved: no part of this publication may be reproduced in any material form without the written permission of the copyright owner except as allowed by statute. Crown copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Office; material from the European Court of Human Rights is reproduced with the permission of the Registrar of the Court. Full reports of all relevant cases from 1999 can be found in the Mental Health Law Reports. Published by Southside Legal Publishing Limited. www.southsidepublishing.co.uk Contact Southside Legal Publishing Limited for more information on the Mental Health Law Reports and other niche law reports (including Prison Law Reports, Police Law Reports, Inquest Law Reports and Extradition Law Reports). Printed by Century Press Ltd, 132 High St, Stalham, Norfolk NR12 9AZ.

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Sections

1. Absolute discharge

(i) Untreatable psychopaths (ii) Failure to consider conditional discharge (iii) Deferred – whether possible (iv) Conditionally discharged patient seeking absolute discharge

2. Adjournment

(i) As alternative to decision; irrational not to (ii) Natural justice – representations and reasons, to hear from RMO or report writers (iii) Non-statutory power (iv) To see if patient improves (v) Length of – whether lawful

3. Aftercare

(i) Need for full information before discharge (ii) Duty/power as to planning

4. Capacity – Patients without

(i) The lack of a reference in s2 cases (ii) Bournewood patients

5. Conditional and deferred conditional

discharge (i) Conditions and the test for discharge (ii) Whether conditions amount to detention (iii) Conditions which will not be put into practice (iv) Deferred conditional discharges are provisional decisions (v) Condition to accept medication – effect of

6. Detention and discharge

(i) Admission criteria (ii) Barring order – tribunal following (iii) Displacement action – tribunal during (iv) In-patient treatment – level of (v) Nature or degree (vi) Necessity (vii) Redetention following tribunal discharge (viii) Risk assessment and quantification (ix) Section 2 or Section 3

7. European Convention 8. Guardianship 9. Medical member 10. Mental disorder

(i) Mental disorder (ii) Mental illness (iii) Mental impairment (iv) Psychopathic disorder

11. Nearest relative

(i) “Caring for” patient (ii) Consultation

(iii) Restricted patients 12. Rationality of tribunal decision 13. Reasons – adequacy 14. Reclassification 15. Transfer and recommendations for transfer

(i) Powers of tribunal on reconvening (ii) Lack of power to secure transfer – Art 5 (iii) Other Convention arguments

16. Transfer direction and restriction direction 17. Treatability 18. Treatment

(i) Meaning of treatment (ii) Treatment and classification (iii) Demarcation between Tribunal and Administrative Court

19. Tribunal proceedings

(i) Applications and references (ii) Bias (iii) Burden and standard of proof (iv) Delays, cancellations and listing (v) Nature of jurisdiction (vi) Parties (vii) Private or public hearing (viii) RMO – role of (ix) Withdrawal

20. Victims

(i) Party to proceedings (ii) Communication of decision (iii) Domestic Violence, Crime and Victims Act 2004

Appendices: - Extracts from 1. Mental Health Act 1983 2. Mental Health Review Tribunal Rules 1983 3. European Convention on Human Rights 4. Human Rights Act 1998

Index

(References are to the relevant part of the text, the relevant section of the Mental Health Act 1983 or the relevant rule of the Mental Health Review Tribunal Rules 1983) Absolute Discharge Conditional discharge – need to consider – pt1(ii) Conditionally discharged patient – application by

- Reports – Secretary of State to collate – r6(3) - Statutory test – s75(3), pt1(iv)

Deferred – pt1(iii)

2

Detained patient - Statutory provision – s73(1) - Transferred prisoner – s74

Effect of – ss42(2), 42(5), 73(3) Secretary of State

- Power to grant – s42 - Right to comment – pt19(vi)

Transferred prisoner – recommendation – s74 Treatability test not met (where relevant) – pt1(i) Adjournment Art 5 European Convention – pt2(ii)2, pt2(v) Improvement in condition of patient, to assess – pt2(iv) Irrational not to adjourn – pt2(i) Length of – pt2(v) Natural justice – pt2(ii) Non-statutory power and – pt2(iii) Oral evidence from report writers, to obtain – pt2(ii)3 Reasons for – pt2(ii) Representations by parties – pt2(ii) Responsible Medical Officer, to hear from – pt2(ii)2 Aftercare Charging for – lawfulness – pt3 (intro) Delays or failure to provide – pt3(ii) Extent of duty – pt3 (intro), pt3(ii) Need for full information before discharge – pt2(i), pt3(i) Statutory provision – s117 Supervised discharge – separate heading Application to MHRT Capacity to make – pt19(i) Contents of application – r3 Jurisdiction based on residence – s77(4), r2 Notice of application – to whom given – r4 Patient - change in status - effect of

- s2 changed to s3 – pt19(i) - s3 changed to s25A – pt 19(ii)

Power to make application - - Civil patient - s66 - Criminal patient – s69 - Limited to single application – s77 - Restricted patient – s70

Withdrawal - Effect on right to apply – s77(2) - Procedure - r19

Capacity - Patients without Common law detention – Art 5 – pt4(ii) Section 2 detention – referral to MHRT – pt4(i) Test for – pt4(intro) Tribunal application by – pt4(i) Classification and Reclassification – See Mental Disorder Code of Practice Issue of – s118 Status of – 7(v) Conditional Discharge Conditions

- Interplay with test for discharge – pt5(i) - Lawfulness of

- unlikely to be put into practice – pt5(iii) – whether detention – pt5(ii)

- Variation - by Secretary of State – s73(5) - by MHRT – s75(3)

Deferred conditional discharge - Assessments ongoing – pt5(iv) - Provisional decision and reviews - pt5(iv)

Recall from - Secretary of State’s power – s42 - Tribunal following – s75, r29

Secretary of State - Grant of – s42 - Recall from – s42(3)

Tribunal powers - Detained patient - grant of – s73(2) - Transferred prisoner – recommendation for – s74

Detention (and Liability to Detention) Assessment – admission for – s2 Common law – pt4(ii) Discharge from – separate heading Duration of

- Assessment – s2(4) and s29(4) - Hospital order – s40(4) and Sched 1 - Restriction order – s41(3) - Treatment – s20

Emergency admission – s4 Holding power – s5 Hospital direction – s45A Hospital order – s37

- Without conviction – ss37 and 51 Informal admission

- Compliant incapacitated patient – pt4(ii) - Holding power – s5 - Minors - aged 16 and capable of expressing views – s131(2) - Retention of - s131(1)

In-patient treatment, level of – pt6(iv) Leave

- Absence without – s18 - Grant of - s17 - Restricted patient – s17, s41(3)

Redetention following Tribunal discharge – pt6(vii) Restriction direction – s49 Restriction order – ss41, 51(6) Transfer – separate heading Treatability – pts6(i), 17 Treatment – admission for – s3 Discharge Absolute Discharge – separate heading Admission criteria – Tribunal to consider – pt6(i) Conditional Discharge - separate heading Hospital managers, by

- Civil patient – s23 - Hospital order patient – ss23, 40(4) and Sched 1 - Restricted patient – ss23, 40(4), 41 and Sched 1

- factors to be taken into account – s72(2) - power - s72(1)

MHRT, by - Civil patients and non-restricted criminal patient

- discretion - s72(1), s72(2), pt6(ii)2 3

- duty to discharge - s2 patient – s72(1)(a) - s3 patient – s72(1)(b)(i) and (ii) - s3 patient following barring order – s72(1)(b)(i)-(iii), pt6(ii)

- future date – s72(3) - Restricted patient

- absolute discharge – separate heading - conditional discharge – separate heading - transferee from prison – s74, pt16(intro) and (ii)

Nature or degree of disorder – pt6(v) Nearest relative, by -

- Civil patient - power to apply - s23 - restrictions on – barring order - s25

- Hospital order patient – lack of power – pt6(ii) - MHRT following barring order

- Application for (s3 patient) – s66(1)(g), s66(2)(d) - Power to defer – 6(ii)1 - s2 patient – discretionary discharge –6(ii)2 - s3 patient - test to apply – s72(1)(b)(iii)

Necessity of detention – pt6(vi) Redetention following Tribunal discharge – pt6(vii) Responsible Medical Officer, by

- Civil patient – s23 - Hospital order patient – ss23, 40(4) and Sched 1 - Restricted patient – ss23, 40(4), 41 and Sched 1

Guardianship Art 5 – relationship with – pt8 Discharge by MHRT

- Deferral – whether permissible – pt8 - Test – s72(4)

Duration of – s20 Effect of – ss8ff Imposition – ss7, 37 Recommendation by MHRT – s72(3) Renewal – s20 Transfer to detention – s19 Tribunal

- Application to – ss66, 69 - Test – s72(4)

Hospital Definition – s34 Hospital and Limitation Direction Criteria for - s45A Effect of – s45B Hospital Managers Discharge of patient – s23 Information to patients, provision of – s132 Jurisdiction to detain – s6, s40 References to MHRT – see References Responsible Authority in MHRT proceedings - r2 Hospital Order Criteria for imposition –

- Basic provision - s37(1) and (2) - Without conviction

- Crown Court – s51(5) and (6)

- magistrates court – ss37(3), 51(5) and (6) Effect of – s40(4) and Sched 1 pt1 Restriction order – separate heading Human Rights Act 1998 and European Convention on Human Rights Adjournment

- Art 5 to be taken into account – pt2(ii)2 - Length of – pt2(v)

Bias – pt9(ii), pt19(ii) Capacity, patients without – pt4 Deferred conditional discharge, monitoring – pt5(iv) Delays in Tribunal hearings – pt19(iv) Detention

- Clinic or hospital, in – pt7(ii)4 - Lawfulness – pt7(ii)1 - Liberty, presumption of – pt7(ii)2 - Procedural protections – pt7(ii)5 - Proportionality – pt7(ii)3 - Reasons for and Art 5(2) – pt7(iii) - Restrictions on movement – pt5(ii), pt8 - Review of – pt5(iii)

General – pt7 Guardianship and Art 5 – pt8 Inhuman or degrading treatment – pt7(i) Medical member

- Bias and Art 6 – pt9(ii) - Role of and Art 5 – pt9(i)

Nearest relative - Consultation with against patient’s wishes – pt11(ii) - Inability of patient to change – pt11

Privacy rights – pt7(v) Redetention following discharge – pt6(vii) Technical lifer – Art 6 – pt16(intro) Transfer

- Lack of Tribunal power to secure - pt15(ii) - Recommendation for

- failure to make – pt15(iii) - whether duty to follow – pt15(iv)

Leave of Absence Custody during – s17(3) Power to grant – s17(1), s41(3) Recommendation by MHRT – s72(3) Revocation of – s17(4), s41(3) Time limits – s17(2) Treatment, whether – pt6(iv), pt18(i)3 Medical Member Bias and Art 6 – pt9(ii) Examination of patient

- Duty to conduct - r11 - Findings, passing on – pt9(iii)

Role of and Art 5 – pt9(i) Mental Disorder Classification – pt14 Mental disorder – definition – s1, pt10(i) Mental illness – definition – pt10(ii) Mental impairment - definition – s1, pt10(iii) Paedophilia – whether covered – pt10(iv)2 Psychopathic disorder – definition – s1, pt10(iv) Reclassification

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- RMO’s power – s16, pt14(i) - Tribunal following, right to apply – s66(1)(d) - Tribunal power – s72(5), pt14(ii) - Tribunal – whether duty to use – pt14(iii)

Treatability – separate heading Treatment – separate heading MHRT Decision Absolute discharge – separate heading Alien patient – repatriation – s86 Appeal by case stated – s78(8) Conditional discharge – separate heading Discharge – separate heading Guardianship – s72(4) Proof, Burden and Standard – pt19(iii) Rationality – pt12 Reasons – r23(2), pt13 Recommendations – s72(3), s72(3A) Risk

- Evaluation – pt6(viii)2, pt 19(ii) - Failure to quantify – pt6(viii)1 - Level of – pt6(viii)3

Transfer, recommendation – see separate heading Supervised discharge – s72(4A) MHRT Proceedings Adjournment – separate heading Application – separate heading Approach to issues – pt19(v) Barring order, Tribunal following – separate heading Decision – see MHRT Decision Delays and cancellations – pt19(iv) Displacement of nearest relative

- proceedings for - extension of s2 detention – need for further Tribunal hearing – pt6(iii) - Tribunal following, application for – s66(1)(h)

Jurisdiction, territorial - r2 (definition of tribunal) Listing

- recalled restricted patient – r29(cc) -s2 patient – r31 - s3 patient – pt19(iv)

Medical member – separate heading Members – change for further hearing – r17, pt15(i) Natural justice - adjournments and – pt2(ii) Nature of jurisdiction – pt19(v) Parties – r2, pt19(vi) Preliminary rulings – by Regional Chair – r5 Public hearing – r21, pt19(vii) Reference to – separate heading Reports for – r6 and Sched 1 to Rules Responsible authority – definition – r2 Responsible medical officer

- Rejection of evidence – pt13.3 - Role during MHRT – pt19(viii)

Secretary of State - consultation - restricted case – pt19(vi) Victims

- Decision – provision of details – pt20(ii) - Involvement under discretion of MHRT – pt20(iii) - Involvement under Domestic Violence, Crime and Victims Act – pt20(iii) - Party to MHRT – pt20(i)

Nearest Relative Consultation with

- Basic requirements – s11 - Effect of patient’s wishes – pt11(ii)

Discharge, application by – see Discharge Displacement of

- MHRT following – s66(1)(h) and (2)(g) - MHRT during displacement proceedings – pt6(iii) - Provision for - ss29ff

Identification of - Basic rule - s26(1)-(3) - Children and young persons in care – s27 - Exclusions (incl those resident outside UK and married but separated) – s26(5) - Living together as husband and wife – s26(6) - Minors under guardianship, residence orders – s28 - Ordinary residence together

- not related – s26(7) - relative – s26(4)

- Relative “caring for” patient – s26(4), pt11(i) - Relative “ordinarily resident” with patient – s26(4)

MHRT proceedings - Application following displacement – s66(1)(h) and (2)(g) - Definition excluding restricted patient – r2, pt11(iii)

Role and powers – pt11(intro) Reclassification – see Mental Disorder Reference to MHRT Civil Patients

- Hospital managers – duty of – s68 - MHRT powers – s72(6) - Secretary of State for Health – power - s67

Criminal Patients - Non-restricted

- hospital managers – duty of – s68(2) - Secretary of State for Health – power – s67 and Sched 1, para 1

– Restricted – by Secretary of State - duty - ss71(2) and 75(1) - power – s71(1)

Responsible Medical Officer Adjournment to hear from – pt2(ii)2 Barring order – see Discharge, Nearest relative, by Definition – s34 Evidence, rejection of by MHRT – pt13.3 Role of in MHRT – pt19(viii) Restriction Order Criteria for imposition of – s41(1) Effect of – s41(3), Sched 1 pt2 End of

- Effect - ss41(5), 42(5) - Power of Secretary of State to lift – s42

Restricted patient – definition – s79

5

(See also Absolute Discharge, Conditional Discharge, Hospital and Limitation Direction, Hospital Order, Restriction Order, Transfer from Prison to Hospital) Supervised Discharge Application for – ss25Aff Duration of – s25G, s25H Effect of – s25D Grounds for – s25A(4) MHRT –

- Application to – s66(1)(ga), (gb) and (gc) - Need for fresh application if s3 patient placed on supervised discharge – pt19(i) - Test – s72(4A)

Transfer between Hospitals European Convention

- Failure by MHRT to make recommendation – pt15(iii) - Lack of MHRT power to secure transfer – pt15(ii)

MHRT recommendation - Duty to follow, whether – pt15(iv) - European Convention – Arts 3 and/or 5 – failure to make – pt15(iii) - Non-restricted patient

- reconvened MHRT – powers – pt15(i) - statutory power – s72(3)

- Restricted patient - failure to make – pt15(iii) - practice of making – pt15(intro)

Treatment, whether – pt18(i)3 Transfer from Prison to Hospital Application to MHRT – s69(2) Life sentence prisoner

- Successive reviews of detention by Tribunal and then Parole Board – pt16(intro) - Technical lifer – pt16(intro)

MHRT powers - No restriction direction – ss51(3), 72 - Restriction direction – ss50, 74

Restriction direction - Effect of – s49(2) - End of – s50(2) and (3) - Power to make – s49(1) - Reports to Secretary of State – s49(3) - Return to prison – ss50(1) and 74, pt16(intro)

Transfer direction - Effect of – s47(3) - End of underlying case of remand prisoner – s51(2) - Hospital order - Licence supervision – whether continues – pt16(ii) - Power to order

- Remand/civil/immigration prisoners – s48 - Serving prisoner – s47

- Return to prison – s51(3) and (4) Treatment and treatability Administration of medication without consent – ss56ff, pt 18 Classification – relevance – pt18(ii)

Containment – pt18(i)3 Definition of medical treatment – s145, pt18(i) Future treatment likely – pt6(iv)2 In-patient treatment, level of – pt 6(iv) Transfer between hospitals – pt18(i)3 Treatability –

- Admission and – ss3(2)(b), 37(2)(a), 47(1)(b) - Discharge and – pt17 - Meaning of – pt17

Table of Cases Referred To

(References are to chapter and section; cases are listed by name of applicant) A - R v Canons Park MHRT ex p A [1995] QB 60 17, 18(i) - R (A) v MHRT [2005] MHLR 144 15(i), 19(i) R (Abu-Rideh) v MHRT [2004] MHLR 308 16(ii) Aerts v Belgium (1998) 29 EHRR 50 7(ii) Ashingdane v UK (1985) 7 EHRR 528 7(ii) R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority [2002] MHLR 314 2(i), 9(i), 12(i), 13 B - R v Barking, Havering and Brentwood Community Healthcare NHS Trust ex p B [1999] 1 FLR 106 6(iv), (ix) - R (B) v Ashworth Hospital Authority [2005] MHLR 47 14(ii), 18(ii) - R (B) v (1) Camden LBC (2) Camden & Islington Health and Social Care Trust [2005] MHLR 258 3(ii) - R (B) v Dr SS and Others [2006] MHLR 131 18(iii) - R (B) v MHRT [2003] MHLR 218 6(ii) - R (B) v MHRT and Home Secretary [2003] MHLR 19 2(ii), 7(iv), 13, 19(iv) - R (KB and others) v MHRT [2003] MHLR 1 and 28 7(iv), 19(iv) - Re MB [1997] 2 FLR 426 4 Bath and North East Somerset Council v AJC [1999] MHLR 184 8 Benjamin and Wilson v UK [2003] MHLR 124 16 R v Parole Board ex p Bradley [1991] 1 WLR 134 6(viii) C - R (C) v MHRT London South and South West [2001] MHLR 110 19(iv) - C v South London and Maudsley NHS Trust and LB Lambeth [2001] MHLR 269 6(ix) - R (C) v South London and Maudsley NHS Trust and MHRT [2004] MHLR 280 2(v) - FC v UK [1999] MHLR 174 11 - R (SC) v MHRT and Others [2005] MHLR 31 1(iv), 7(ii), 14(iii) - R (WC) v (1) South London and Maudsley NHS Trust (2) David Orekeye [2001] MHLR 187 11(i) Campbell v Home Secretary [1988] AC 120 5(i), 19(vi) R v MHRT ex p Clatworthy [1995] 3 All ER 699 10(iv) D - R (D) v Home Secretary [2003] MHLR 193 16 - Re D (mental patient: nearest relative) [2000] MHLR 50 11(i)

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- R (PD) v West Midlands and North MHRT [2004] MHLR 174 9(ii) R v SW Thames MHRT ex p Demetri 12 June 1996 14(ii) De Wilde v Belgium (1979) 1 EHRR 373 7(iv) E - R (E) v Ashworth Hospital Authority [2002] MHLR 150 7(v) - R (E) v Bristol City Council [2005] MHLR 83 11(ii) - E v Norway (1990) 17 EHRR 30 7(iv) - JE v DE [2007] MHLR 39 4(ii) R (Epsom & St Helier NHS Trust) v MHRT [2001] MHLR 8 6(iv) F - R (F) v Oxfordshire Mental Health NHS Trust and another [2001] MHLR 140 18(i) - JF v LB Hackney [1999] MHLR 175 10(iii) - Re TF (An Adult: Residence) [2000] MHLR 120 10(iii) Fox v Stirk [1970] QB 463 19(i) R (G) v MHRT [2004] MHLR 265 5(ii) H - R (H) v MHRT [2000] MHLR 203 11(iii), 19(vi) - R v MHRT, London North and East ex p H [2000] MHLR 242 6(i), 9(iii) - R (H) v MHRT [2001] MHLR 48 7(ii), 8, 19(iii) - R (H) v (1) MHRT (2) Secretary of State for Health [2002] MHLR 362 15(iii) - R (IH) v Nottinghamshire Healthcare NHS Trust and Others [2004] MHLR 51 2(i), 5(iv) - IH v UK [2005] MHLR 252 5(iv) - R (LH) v (1) MHRT (2) Secretary of State for Health [2002] MHLR 130 15(iii) - R (MH) v (1) Secretary of State for Health (2) MHRT [2004] MHLR 155 (Admin Ct) 6(ii) - R (MH) v Secretary of State for Health [2005] MHLR 302 (HL) 4(i), 6(iii), 8, 19(i) - R (RH) v Ashworth Hospital Authority [2001] MHLR 241 7(v) - R (SH) v MHRT – [2007] MHLR 234 5(v) R v Anglia and Oxfordshire MHRT ex p Hagan [1999] MHLR 204 14(iii) R v MHRT ex p Hall [1999] MHLR 63 2(i), 3(ii), 5(ii) R v MHRT ex p Hempstock 10 July 1997, (1998) 39 BMLR 123 15(i) Home Secretary - R (Home Secretary) v MHRT [2000] MHLR 209 2(iii) - R (Home Secretary) v MHRT [2004] MHLR 91 6(v), (vi) - R (Home Secretary) v MHRT (AO as Interested Party) [2004] MHLR 170 19(vi) - R (Home Secretary) v MHRT (G as Interested Party) [2002] MHLR 260 1(ii) - R (Home Secretary) v MHRT (PG as Interested Party) [2002] MHLR 381 5(iv) - R (Home Secretary) v MHRT (CH as Interested Party) [2005] MHLR 199 6(v), (vi) - R (Home Secretary) v MHRT (PH as interested party) [2003] MHLR 202 5(ii) - R (Home Secretary) v MHRT (MP as interested party) [2004] MHLR 273 5(ii) - R (Home Secretary) v MHRT (VW as Interested Party) [2004] MHLR 184 1(ii), (iii), 17 - R v Nottingham MHRT ex p Home Secretary 15 September 1988 2(iv) R v Riverside Mental Health Trust ex p Huzzey (1998) 43 BMLR 167 6(ix) R (LI) v MHRT [2004] MHLR 150 12(ii), 13

R (DJ) v MHRT – see R (AN) v MHRT R (K) v Camden and Islington Health Authority [2001] MHLR 24 3 Kay v UK (1998) 40 BMLR 20 5(i) Kolanis v UK [2005] MHLR 238 5(iv) L - R v Bournewood Community and Mental Health NHS Trust ex p L [1999] AC 458 4 - R (AL) v (1) Home Secretary (2) Secretary of State for Health [2005] MHLR 12 14(iii) - HL v UK [2004] MHLR 236 4(ii), 7(ii) Litwa v Poland [2000] MHLR 226 7(ii) M - R (M) v MHRT [2006] MHLR 46 19(ii) - R (M) v Secretary of State for Health [2003] MHLR 254 11 - R v South Thames MHRT ex p M 3 September 1997 6(ix) - HM v Switzerland [2002] MHLR 209 8 R v MHRT ex p Manns [1999] MHLR 101 19(viii) Megyeri v Germany (1992) 15 EHRR 584 7(iv) Mersey Care NHS Trust - R (Mersey Care NHS Trust) v MHRT [2003] MHLR 354 19(viii) - R (Mersey Care NHS Trust) v MHRT [2004] MHLR 284 19(vii) R (Miah) v Home Secretary [2004] MHLR 302 16(i) R v London South and South West Region MHRT ex p Moyle [1999] MHLR 195 6(i), (vi), 19(v) R (Munjaz) v Mersey Care NHS Trust [2005] MHLR 276 7(v) N - R (N) v Ashworth Special Hospital Authority [2001] MHLR 77 7(v) - R (N) v Dr M and others [2003] MHLR 157 7(i) - R (N) v MHRT [2002] MHLR 70 6(viii), 13 - R (AN) v MHRT [2005] MHLR ... (CA), [2005] MHLR 56 (Admin Ct) 6(viii), 19(iii) - DN v Switzerland [2001] MHLR 117 7(iv), 9 R (O) v MHRT [2006] MHLR 326 19(ix) P - R (P) v Mersey Care NHS Trust and others [2004] MHLR 107 15(iv) - R (P) v Home Secretary [2004] MHLR 64 16 - R (P) v MHRT [2002] MHLR 253 10(iv) - MP v Nottinghamshire Healthcare NHS Trust [2003] MHLR 381 15(ii) R - R (DR) v Mersey Care NHS Trust [2002] MHLR 386 6(iv) - R (IR) v Dr Shetty (No 2) [2004] MHLR 130 16 - R (SR) v MHRT [2006] MHLR 121 19(i) Reid - Reid v Secretary of State for Scotland [1999] 2 AC 512 1(i), 6(i), (vi), 17, 18(i) - Reid v UK [2003] MHLR 226 7(ii) Ruddle v Secretary of State for Scotland [1999] MHLR 159 17 S - R v Collins ex p S [1998] 3 WLR 936 10(i) - R v North West London Mental Health NHS Trust ex p S (1996) 39 BMLR 105 6(vi)

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- R (S) v MHRT [2003] MHLR 118 7(iv), 9(i) - R (CS) V MHRT [2004] MHLR 355 6(iv), 7(ii) Secretary of State v JJ and Others [2007] UKHL 45 4(ii) R (Sim) v Parole Board [2004] Prison Law Reports 44 8 R v MHRT for the South Thames Region ex p Smith 4 August 1998 6(v) South West London and St George's Mental Health NHS Trust v "W" [2002] MHLR 392 17, 18(i) Sunderland v PS [2007] MHLR 196 4(ii) T - R (T) v MHRT [2001] EWHC Admin 602 (noted in [2002] MHLR 275) 20(i) - R (T) v MHRT [2002] MHLR 275 20(ii) - JT v UK [2000] MHLR 254 11 Van der Leer v Netherlands (1990) 12 EHRR 567 7(iii) R v (1) Tower Hamlets Health Care NHS Trust and (2) Snazell ex p Von B [2004] MHLR 44 6(vii) W - R (W) v Doncaster MBC [2004] MHLR 201 3, 5(iv) - R (W) v Feggetter [2002] MHLR 178 13 - R v LB Richmond ex p W [2002] MHLR 377 3 - R v Pathfinder NHS Trust ex p W [1999] MHLR 142 14(i) - W v L [1974] QB 711 10(ii) - R (KW) v Avon and Wiltshire Mental Health Partnership NHS Trust and Bristol City Council [2003] MHLR 315 9(iii), 13 R (Wheldon) v Rampton Hospital Authority [2001] MHLR 19 17 Wilkinson v Secretary of State for Scotland [1999] MHLR 17 10(iv) R v Wilson ex p Williamson [1996] COD 42 6(ix) Winterwerp v Netherlands (1979) 2 EHRR 387 7(ii) R (Wirral Health Authority and Wirral Borough Council) v (1) MHRT (2) Dr Finnegan; DE as Interested Party [2001] MHLR 66 12(i) X - R (X) v MHRT [2003] MHLR 299 2(ii), 7(iv), 19(iv), (v), (viii) - X v UK (1981) 4 EHRR 188 7(iii)

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Chapter 1 Absolute discharge Under s73 MHA 1983, if a restricted patient does not meet the criteria for detention, a discharge must follow: this can be absolute or conditional, but the latter (with liability to recall and the possibility of conditions) is to be used unless the patient demonstrates that the discharge should be absolute (which brings the restriction order to an end). A conditionally discharged patient is entitled to apply to a tribunal with a view to having a conditional discharge made absolute (s75); the Secretary of State may grant an absolute discharge (s42). The following propositions arise from the case law:

(i) an absolute discharge is appropriate in the case of an untreatable psychopath; (ii) the tribunal must always consider why a conditional discharge is not appropriate; (iii) a deferred absolute discharge is not possible; (iv) when a conditionally discharged patient seeks an absolute discharge, the Secretary of State must be allowed to comment; and the test under s75, when construed in context, meets the requirements of legality.

(i) Untreatable psychopaths should be absolutely discharged - Reid v Secretary of State for Scotland [1999] 2 AC 512 HL Facts and outcome: - See ch 6(i) and ch17. Various comments were made about whether someone who suffered from psychopathic disorder but did not meet the treatability requirement was entitled to an absolute discharge. Lord Hope (530D-F) It is hard to reconcile an opinion that medical treatment in a hospital is not, and never will be, likely to alleviate the condition or to prevent it from deteriorating with the view the sheriff should be invited to order a conditional discharge. ... If the sheriff is satisfied that medical treatment in a hospital is not likely to alleviate or prevent a deterioration of the patient's condition, he must direct the patient's absolute discharge. He cannot direct a conditional discharge, because the only purpose of a conditional discharge is to enable the patient to be recalled to hospital for "further treatment" - that is to say, in the case of those conditions to which it applies, treatment which satisfies the "treatability" test. In other words, a conditional discharge is not an option in these cases. If the "treatability" test cannot be satisfied, the only option is an absolute discharge. Lord Hutton (552G) But there may be other cases where the evidence before a sheriff does not lead to a finding by him that a psychopathic patient is receiving treatment which is likely to alleviate his condition. In such a case under the construction which I and the majority of your Lordships place upon s64(1)(a) the sheriff would be obliged to direct the absolute discharge of

the patient irrespective of what fears there might be that he would be likely to harm other persons. Lord Clyde (537H) The appearance of para (c) in s64(1) and the possibility of further treatment which a conditional discharge involves might be thought to sit uneasily with the making of an order for discharge of a psychopath on the ground that the requirements of treatment set out in sub-para (i) of s17(1)(a) are no longer met. But it is not difficult to anticipate that cases could occur where the patient has reached a position of stability but where after release from hospital his condition may change and recall may become desirable. In the case of psychopathic patients, even if the provisions for discharge can be overcome, such a course may well require to be seriously considered. [There is at the very least a difference of emphasis between Lord Clyde and the others quoted; Lord Slynn agreed with Lord Clyde about the ratio of the case but agreed with Lord Hope’s guidance as to the application of the statutory provisions (which seems to include the dicta as to whether a discharge should be absolute). Lord Lloyd does not mention this point because he did not feel that the issue of treatability was part of the test in front of the sheriff.] (ii) Failure to consider conditional discharge 1. R (Home Secretary) v MHRT (G as Interested Party) [2002] MHLR 260 Admin Ct Facts and outcome: G was detained under ss37 and 41 MHA 1983 in 1993 on being convicted of manslaughter. He was diagnosed at the time as suffering from mental illness. His case was considered by a tribunal in October 2001, by which time it was agreed that he was not suffering from mental illness. G’s RMO asked that he be reclassified as suffering from psychopathic disorder; G relied on a contrary opinion from another psychiatrist. The tribunal granted G an absolute discharge, finding that the detaining hospital had not met its burden of showing that G was suffering from psychopathic disorder. The decision was quashed on the basis that there was no indication as to whether the tribunal had considered whether the discharge should be conditional (ie, with the possibility of recall) as opposed to absolute. Pill LJ 24. … the order of the tribunal must, in my judgment, be quashed. As Cresswell J pointed out in the course of argument, the tribunal have entirely ignored the provisions of s73(1)(b). The requirement in that paragraph must be satisfied before an absolute discharge can be directed. There is no finding of satisfaction that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. Mr Gledhill submits that the decision is intended to be read by an informed audience. Having

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regard to the finding that there was no mental illness, there was no need expressly to consider a liability to be recalled. It followed from the finding under subpara (a) and could be implied. 25. I do not accept that submission. The possible consequences for the safety of members of the public and the patient, when an order of absolute discharge is made, are such that the question of liability to be recalled must be dealt with expressly. That is confirmed by s73(2) which requires that a course different from absolute discharge is to be taken, if the tribunal are not satisfied a to the matters referred to in para (b). Moreover the printed part of the form, at para 8, expressly raises the possibility of conditional discharge and the need for reasons as to why the patient should remain liable to recall in that event. 26. The importance of the factor of public safety, where restriction orders have been made, has recently been affirmed by the House of Lords: Anderson and Others v Scottish Ministers [2001] MHLR 192. An order of absolute discharge has the effect of determining finally the s37 and s41 orders. The failure to deal with the requirement of s73(1)(b) is a flaw fatal to the tribunal's decision. 2. R (Home Secretary) v MHRT (VW as Interested Party) [2004] MHLR 184 Admin Ct Facts and outcome: VW was found unfit to stand trial for murder, ordered to be detained during Her Majesty’s Pleasure, and so treated as if detained under ss37 and 41 MHA 1983. His RMO felt that he was suffering from psychopathic disorder, but the tribunal was not satisfied as to this; it directed an absolute discharge without indicating why conditional discharge was not appropriate. In light of the danger posed by VW, discharge was deferred for 12 weeks to allow the Home Secretary to decide whether he should be remitted to prison to stand trial. The decision was quashed on the basis that the tribunal had erred in law by not considering whether discharge should be conditional. The judge also noted that an absolute discharge cannot be deferred. Moses J ... 18. The third matter which is the subject matter of challenge, however, concerns s73(1)(b). It is plain from the structure of the statute that the Tribunal is only required to direct an absolute discharge where it is both not satisfied as to the matters referred to in s72(1)(b)(i) or (ii), and where it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. As to that, the Tribunal says nothing. The Tribunal … made no findings whatever as to why either it was or was not satisfied that it was appropriate for VW to remain liable to be recalled to hospital for further treatment. All the Tribunal did was say … that it concluded that the patient should be discharged. …

20. … the real question is whether the failure of the Tribunal to consider what is shortly described as a conditional discharge is an error which vitiates its decision. In my view, it was. 21. It is plain to me, even where the Tribunal conclude that a patient is not suffering from a psychopathic disorder, or any of the other conditions referred to in s72(1)(b)(i), it is incumbent upon the Tribunal in cases of restricted patients to go on to consider whether it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. That is clear from the words of s73(1)(b). 22. Mr Knapp submitted that … [o]nce it was concluded that he was not suffering from a psychopathic disorder, there was no room for any consideration as to whether it was or was not appropriate for him to remain liable to be recalled to hospital. … I do not agree. 23. As Lord Hope pointed out in Reid1, what has to be considered are the symptoms which might manifest themselves in a different way within the closed conditions of a hospital from those which might manifest themselves once a patient is released. [The judge noted that VW had been detained for 41 years and so might be destabilised if released into an open environment, producing a risk that symptoms of disorder might appear. The failure to consider this and so to deal with s73(1)(b) vitiated the decision.] (iii) Deferred – not possible - R (Home Secretary) v MHRT (VW as Interested Party) [2004] MHLR 184 Admin Ct (see above for facts and outcome) Moses J ... 20. There is no power in the Tribunal to defer an absolute discharge. It must either absolutely discharge the patient where the conditions under the statute are satisfied, or it must not. … (iv) Conditionally discharged patient 1. Secretary of State not allowed comment – fundamental flaw - R (Home Secretary) v MHRT (AO as Interested Party) [2004] MHLR 170 Admin Ct - see ch 19(vi) 2. Test to be applied – adequately certain to meet test of legality when properly understood in context - R (SC) v MHRT and Others [2005] MHLR 31 Admin Ct Facts and outcome: SC, a conditionally discharged restricted patient, challenged a failure to grant an absolute discharge, one ground being that the test in s75(3) MHA 1983 (which allows the tribunal to vary

1 The reference to Lord Hope should probably have been a reference to Lord Clyde.

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any condition or lift the restriction order) did not meet the requirements of legality, as was necessary to comply with Art 8 ECHR, because it provided no criteria and so offered no protection against arbitrariness. The challenge was dismissed on the basis that s75(3) had to be construed in context, namely ss37, 41 and 73 of the Act – which indicated the factors the tribunal should consider in determining whether there should be liability to recall; a broad discretion exercisable by a judicial authority was acceptable, and allowed an appropriate response to the varied situations which could arise. Munby J [An argument by the Secretary of State that Arts 8 and 6 ECHR were not engaged was not pursued: the question was whether the Convention was breached.] … 52. … the requirement that interference with Convention rights should be in accordance with the law embodies 3 principles:

(i) the interference in question must have some basis in domestic law; (ii) the law must be adequately accessible; and (iii) the law must be so formulated that it is sufficiently foreseeable.

The dispute between the parties in the present case is essentially whether the law – s75(3) – provides a sufficient degree of foreseeability to satisfy the third requirement. … 53. … the law need not be known with absolute certainty. What is required is that it must be foreseeable to a degree that is “reasonable in the circumstances”, having regard to “the particular subject-matter” and to “the legitimate aim of the measure in question”, and affording the individual “adequate protection against arbitrary interference”. The fundamental principle is that ‘the law’ must be formulated with sufficient precision to give the individual adequate protection against what the Court has called “arbitrary interferences by public authorities”. … 54. What is the context in which the question arises in the present case? It seems to me that there are 4 separate elements that have to be borne in mind:

(i) First, we are concerned with liberty. … the decision of the Tribunal under s75(3) will be determinative of whether or not the Secretary of State retains the power of recall. (ii) Secondly, we are concerned with the exercise by State authorities of compulsory powers in relation to persons suffering from mental disorder. That calls for increased vigilance in reviewing whether the Convention has been complied with … (iii) On the other hand, we are not here concerned with the exercise of powers conferred on officials or Ministers … The relevant power in s75(3) is entrusted to the Tribunal, a body which acts judicially and on the basis of a contested hearing.

(iv) Finally, we are not here concerned with a statutory provision defining the circumstances which entitle the State to intervene in the first place. SC … is a restricted patient as a result of decisions by the Crown Court … He is a conditionally discharged restricted patient as a result of the decision of the earlier Tribunal exercising its powers under s73 of the Act.

55. This last point leads on to another and, as it seems to me, very important aspect of s75(3). … the exercise of the Tribunal’s powers pursuant to s75(3) is informed by the statutory context. 56. Section 75(3) applies only to a restricted patient who, like SC, has been conditionally discharged. Bearing in mind the provisions of ss37, 41 and 73 of the Act, one can, as it seems to me, readily identify the most important of the factors that are likely to feed into the exercise of discretion under s75(3). Any patient applying under s75(3) will, by definition, have been, just as SC was:

(i) convicted of a criminal offence sufficiently grave as to merit a possible sentence of imprisonment: s37(1); (ii) found to be suffering from mental disorder meriting his detention in hospital for treatment: s37(2)(a)(i); (iii) found to be someone whose risk of re-offending is such that a restriction order is “necessary for the protection of the public from serious harm”: s41(1); and (iv) found by the Tribunal (unless previously discharged by the Secretary of State under s42(2)) to be someone who, although not requiring for the time being to be detained in hospital for medical treatment (ss72(1)(b), 73(1)(a), 73(2)(a)), should nonetheless remain liable to be recalled to hospital for further treatment: s73(2)(b).

57. It is against this background that the exercise by the Tribunal of its powers under s75(3) takes place. Accordingly the Tribunal when exercising these powers will need to consider such matters as the nature, gravity and circumstances of the patient’s offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient re-offending, the degree of harm to which the public may be exposed if he re-offends, the risk and likelihood of a recurrence or exacerbation of any mental disorder, and the risk and likelihood of his needing to be recalled in the future for further treatment in hospital. The Tribunal will also need to consider the nature of any conditions previously imposed, whether by the Tribunal or by the Secretary of State, under ss42(2), 73(4)(b) or 73(5), the reasons why they were imposed and the extent to which it is desirable to continue, vary or add to them. 58. … in exercising the powers under s75(3) questions as to the patient’s mental health, his safety and questions of public safety are evidently relevant. They are … directed to the evidently legitimate policy aims served by the existence of the broad

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discretion which is conferred by s75(3). … this broad discretion serves to ensure that the Tribunal can respond flexibly and appropriately to the varied and potentially complex situations which may arise when a restricted patient has been conditionally discharged. This enables the Tribunal to ensure that both the interests of the patient and the interests of public safety which arise in the case of a restricted patient are adequately served. … 59. The Convention does not preclude the exercise of a broad discretion by authorities acting in a judicial capacity. But even if the discretion conferred by s75(3) is broad and on the face of it unfettered, the statute itself, as I have sought to demonstrate, contains a number of powerful indications as to the kind of factors that the Tribunal is likely to have to consider. Moreover, … s73 also points the way to a crucial question which the Tribunal will need to consider when exercising its powers under s75(3). The consequence of an order under s75(3)(b) is that the restriction order ceases to have effect; in other words, that what was previously only a conditional discharge becomes in effect an absolute discharge. But, as s73 demonstrates, the difference between the 2 is the difference between the patient who is, and the patient who is no longer, liable to be recalled to hospital for further treatment. So, in effect, one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under s75(3) is whether it is – as s73(1)(b) puts it – “satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.” If the Tribunal is not so satisfied, then it is difficult to see that it could be appropriate for it to make an order under s75(3)(b). 60. Mr Pezzani correctly points out that s73 “shall not apply” to an application under s75(2). But this … does not mean … that the matters which are referred to in ss72(1)(b)(i) and 72(1)(b)(ii) are “excluded” by s75(3) from the Tribunal’s consideration of an application under s75(2). Nor, specifically, does it mean that there is “explicitly excluded” from consideration by s75(3) … the question of whether it is appropriate that the patient remains liable to be recalled. … the effect of s75(3) is not to preclude the Tribunal from considering the kind of factors which fall for consideration under s73. Rather … the effect is that the Tribunal, when exercising its discretion under s75(3), is not constrained by the mandatory terms of s73, which bind the approach of the Tribunal when considering the exercise of its powers under s73. 61. For all these reasons it seems to me that the statutory context, and the provisions of ss37, 41 and 73 in particular, go a long way to identifying not merely the various factors which the Tribunal is likely to take into account when exercising its powers under s75(3) but also, importantly, what is likely to be one of key questions that the Tribunal will wish to ask itself. In other words, the 1983 Act itself goes a

significant way, in my judgment, towards making the law sufficiently foreseeable. … 66. By the time a case such as this reaches a Tribunal considering an application under s75(2), it will necessarily already have been not merely before the court which made the original restriction order but also (unless the Secretary of State has previously directed conditional discharge under s42(2)) before a Tribunal which has directed conditional discharge under s73(2). The decision of that Tribunal will, in principle, have been amenable to judicial review. The Tribunal hearing the s75(2) application is a body which acts judicially and in accordance with the MHRT Rules 1983. These rules provide the patient with a full opportunity to meet any case advanced before the Tribunal that might conceivably engage Art 8 and enable him to respond to the expert and other evidence, whether by instructing his own experts, as happened in this case, by cross-examination or by submissions. ... The Tribunal, moreover, is itself a public body which must act in a way which is compatible with the patient’s Art 8 rights. This means that it is not enough that it acts rationally. Its decision must be informed by the Convention principles of necessity and proportionality. Again, the decision of the Tribunal will in principle be amenable to judicial review. [The judge also noted that the Tribunal decision does not lead to loss of liberty, but the prospect of recall by the Home Secretary, who must act compatibly with the Convention before recalling a patient and must then refer the matter to the Tribunal within one month under s75(1).] 67. So, in short, at each stage of the process important safeguards are available, either in the form of the Tribunal and/or by way of judicial review. Those safeguards, in my judgment, adequately protect the patient from all risk of arbitrariness. … 70. I entirely accept that the mere availability of judicial review is not necessarily and in all contexts a complete answer to a claim that ‘the law’ has not been formulated so as to be sufficiently foreseeable. But … the availability of appropriate mechanisms of judicial control or judicial review of discretionary decision-making may in appropriate cases, and when taken in conjunction with all the other circumstances, suffice to satisfy the requirements of the Convention. The present, in my judgment, is clearly such a case. Moreover, … [t]here is, in my judgment, a very significant degree of what Mr Pezzani calls precedent certainty, for, as I have already sought to explain, the 1983 Act itself contains powerful indications as to the kind of factors that the Tribunal is likely to have to consider and s73 points the way to a crucial question which the Tribunal will need to consider when exercising its powers under s75(3).

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Chapter 2 Adjournment Under r16 MHRT Rules 1983, a tribunal may adjourn “at any time ... for the purpose of obtaining further information or for such other purposes as it may think appropriate.” Note that under r15 “Before or during any hearing the tribunal may call for such further information or reports as it may think desirable”: the degree of overlap between these two rules has not been the subject of any detailed judicial decision1. On adjourning, directions can be given “for ensuring the prompt consideration of the application” when it reconvenes: but r16(3) provides a discretion to resume based on the “interests of the patient”. Given that the patient has a fundamental right to a court review of the merits of detention (Art 5(4) ECHR), it is likely that only exceptional circumstances will mean that a hearing should not resume on the grounds of the patient’s best interests, particularly as in HL v UK2 one of the arguments which the government unsuccessfully advanced to support the view that patients such as HL should not be sectioned and reviewed by tribunals was that it would not be in their best interests to follow an invasive process: the ECtHR decision indicated that it was more important to have a court review to guard against the possibility of mistakes by the professionals. The propositions arising from the case law are:

(i) In some situations, a tribunal should adjourn rather than making a decision on the merits; it may be irrational not to adjourn; (ii) Natural justice requires 1. the chance to make representations before a decision, and reasons; 2. this applies when the adjournment is to hear from the responsible clinician; 3. it may also be necessary to adjourn to allow oral evidence to be called if written evidence is to be rejected. It is to be noted that directions should be given to ensure a speedy completion of the case; (iii) It is not lawful to adjourn to obtain information relating to a non-statutory power; (iv) Nor is it proper to adjourn to see if the patient improves.

There has also be an unsuccessful challenge to a decision to adjourn and the length of it. (i) Adjourning as alternative to decision 1. Examples of judges endorsing the course of adjourning as an alternative: In IH3 at para 27 Lord Bingham, having endorsed the view that a deferred conditional discharge was to be treated as a provisional decision which could be revisited, stated: “27. … Mr Owen was, I think, right to submit that the tribunal could have achieved the same result ... by a judicious use of its power to

1 See R (X) v MHRT below at paras 17-19 for some discussion 2 See ch 4 3 See ch 5(v)

adjourn and by proleptic indication of the conditions it had in mind to impose, but it is undesirable to restrict the procedural freedom of tribunals in a field as important and sensitive as this, where personal liberty and safety and public protection are all at stake: the outcome should not turn on procedural niceties.” Similarly, in Hall4 the Court of Appeal – in discussing the problems arising from lack of information as to after-care arrangements –noted at para 21 that the tribunal had various powers to secure more information, including an adjournment to enable an after-care plan to be prepared. Further, at para 22, Kennedy LJ stated “I, like the judge, would like the Tribunal to have been more interventionist. I believe that a good deal might have been achieved by adjourning and calling for a care plan. If that did not work it might have been worthwhile to call for reports and even to summon one or two witnesses....” 2. Irrational to make decision rather than adjourning - R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority [2002] MHLR 314 CA (upholding [2002] MHLR 13 Admin Ct) Facts and outcome: H had been detained at a high security hospital under s3 MHA 1983 for several years. Of the several reports in front of a tribunal only one, by Dr W, thought H did not need to be detained, but he suggested a supervised discharge (s25A MHA) and noted that was unviable in the absence of the appropriate aftercare plans. The tribunal nevertheless discharged H with immediate effect: in its written reasons, it accepted that H suffered from schizophrenia which had manifested itself in violent behaviour, paranoid ideas and auditory hallucinations; but noted that there had been no violence since 1997, that H accepted he was ill and complied with medication and was likely to continue to do so. The decision was successfully challenged as irrational, as H was a patient in respect of whom it was essential that there be suitable aftercare services available; any doubt as to whether such services would be available should have led to an adjournment to obtain any necessary information; the tribunal could not reasonably have assumed that the necessary services would be provided to H, as it indicated had been its approach according to evidence filed in the proceedings, and so its decision was unreasonable. Dyson LJ … 66. The judge concluded that ... no reasonable tribunal could have made an order that H should be discharged immediately into the community without at the very least being satisfied that suitable after-care arrangements were in place. The evidence before the Tribunal could not have given them confidence that such arrangements had been or would be made. The judge referred … to the fact that the Tribunal had

4 See ch 5(iv) 2-1

little or no information from the s117 authorities. The question of after-care was fundamental to the issues before the Tribunal. In these circumstances, the Tribunal should not simply have ordered immediate discharge. They should have either deferred discharge to a future date under s72(3), or adjourned and called for information from the s117 authorities. The course that they took was an unjustified “step in the dark”. 67. In my view, the judge was right. This was a case in which, if the criteria for discharge were to be met, it was obvious that suitable after-care should be available. H was a man who had been detained in Ashworth for about 6 years. He had a history of serious violence, and previous attempts to release him into the community had been unsuccessful. The Tribunal accepted that H was still suffering from schizophrenia. The issue was whether it was of a “nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment” (s72(1)(b)(i) of the Act). The Tribunal was also required to have regard to “the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard against serious exploitation” (s72(2)). The answer to the question whether H’s mental illness was of a nature or degree which made it appropriate for him to be liable to be detained in a 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. … As Miss Morris points out, the Tribunal cannot assume that any, still less any suitable, after-care services will be provided, since s117 does not impose an absolute duty on the health and social services authorities to provide the services. The duty is no more than to use reasonable endeavours to provide after-care services … 68. In agreement with the judge, I would therefore hold that H was a patient 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. If the Tribunal had any doubt as to whether such services would be available, they should have adjourned to obtain any necessary information. I regard the alternative of a deferral under s72(2) as less satisfactory. Section 72(3) authorises a tribunal to “direct the discharge of a patient on a future date specified in the direction”. Under this subsection, therefore, the tribunal must specify a particular date for discharge. But if the tribunal is in doubt as to whether suitable after-care arrangements will be made available, it is difficult to see how they can specify a particular date for discharge. In cases of doubt, the safer course is to adjourn. On the facts of the present case, the Tribunal could not reasonably have assumed that the services would be provided as soon as H was discharged into the community. For that reason alone, in my opinion the Tribunal’s decision was one which no reasonable tribunal could properly have made. …

69. I would endorse the general observation of the judge at para 69:

“In general, in a case in which after-care is essential, and satisfaction of the discharge criteria depends on the availability of suitable after-care and accommodation, as in H’s case, a tribunal should not direct immediate discharge at a time when no after-care arrangements are in place and there is no time for them to be put in place. The Tribunal should consider whether to exercise its power under s72(3A) to recommend that the RMO should make a supervision application. If it considers that to be inappropriate (and it should be borne in mind that the previous unwillingness of an RMO to make an application may not persist in the face of the Tribunal’s views) or unnecessary, and there is uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends, the tribunal should adjourn pursuant to r16 to enable them to be put in place, indicating their views and giving appropriate directions: cf ex p Hall [1999] MHLR 63 at para 21, per Kennedy LJ."

70. Having found that Mr Simms did say that immediate discharge was ordered because otherwise nothing ever happens at Ashworth, the judge said that this statement revealed an “unreasonable motivation” for the decision not to adjourn until it was known what after-care arrangements were in place, or to defer discharge to enable such arrangements to be put in place, thereby placing immediate and unnecessary pressure on the authorities charged under s117 with responsibility for after-care. I agree with the judge. This merely reinforces the conclusion that I have already reached as to the reasonableness in the Wednesbury sense of the Tribunal’s decision. … (ii) Natural justice – 1. Representations and reasons – R (B) v MHRT and Home Secretary [2003] MHLR 19 Admin Ct Facts and outcome: B was made the subject of a hospital order and a restriction order in February 1992. He committed further offences whilst on leave, but was sentenced to 7 years’ imprisonment because it was felt that, although he was suffering from psychopathic disorder, he was untreatable. However, on 2 February 2001, the day B was due to be released from prison, the Home Secretary recalled him to hospital under s42(3) MHA 1983 Act, having obtained a report from Dr H, who assessed him in prison. On 8 February 2001 the Home Secretary referred B’s case to the tribunal (under s75(1)). Rule 29(cc) MHRT Rules 1983 requires a Tribunal hearing between 5 and 8 weeks after receipt of the reference. On 8 March 2001, a medical report was prepared by a Registrar at the detaining hospital which concluded that B was not treatable. On 22 March 2001, the Home Secretary sought an adjournment of the tribunal hearing listed for 28 March 2001, to obtain

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medical evidence. This was granted on 26 March 2001 by the Regional Chair, though no reasons were given; he declined to change the decision when B’s solicitors made representations. The decision to adjourn was challenged by judicial review on the basis that natural justice was breached as B’s representatives were not given an opportunity to be heard; and that it should not have been granted because the Home Secretary was at fault in not instructing an expert until such a late stage. B emphasised that the recall tribunal was the only body able to review the detention of a recalled patient, who could not make an application until 6 months after recall. The Regional Chair noted in a witness statement that as an adjournment was proper on the facts, unnecessary attendance was saved by making the decision in advance. The Court held that the Home Secretary had not acted improperly in seeking an adjournment, since he was not obliged to determine whether to seek independent medical evidence until after receiving the report of the treating psychiatrist; but that the Regional Chair breached natural justice in granting an adjournment without first giving B’s representatives an opportunity to be heard; that brief reasons should have been given for the decision; and that directions should have been given to ensure a hearing date in the foreseeable future (a return date and clear directions to ensure that all the expert evidence was available for the adjourned hearing). Scott Baker J ... 21. Mr Mould, who has appeared for the tribunal, has not sought to support the decision of Mr Christie to adjourn without giving B’s representatives an opportunity to make representations. He accepts that the failure to afford such an opportunity in the present case was both contrary to good practice and unfair. Now it seems to me that in the light of the conclusions that I have reached about the Secretary of State’s position, to which I shall come to in a moment it was inevitable that this case should be adjourned. However, what Mr Christie appears to have overlooked is the necessity to give case management directions either under r13 (which he himself could have given) or under r16(2) (which the full tribunal could have given). With hindsight it should never have taken until mid-October for this reference to be determined. But could anything have been done about it with reasonable foresight? I am satisfied that it could. In the first place it was unsatisfactory, and in my judgment bad practice, for the hearing that was due to take place on 28 March 2001 to have been adjourned without a return date being fixed. Mr Mould accepted that where the liberty of the subject is concerned it is not good practice to adjourn a hearing without any indication when it will be resumed. If for some reason it is impossible to identify a specific date at the moment of adjournment, it is perfectly in order to say that the adjourned hearing will take place not later than a certain date. It appears to have taken a judicial review application to obtain a date in this case.

22. What was required was not only a return date when the case could be heard but also some clear directions to ensure that all the expert evidence was available for the adjourned hearing. It seems to me that to provide for expert evidence to be obtained sequentially is a recipe for delay. I cannot see why the hearing could not have been adjourned on 28 March 2001 on terms giving both the Secretary of State and the Claimant, and if necessary the RMO, leave to file further evidence by a given date. Nor do I see why the experts should not have met at an early stage to try and identify, and if possible narrow, any differences of opinion. Such an exercise generally results in a shorter substantive hearing. 23. Mr Christie should also have given brief reasons for his decision to adjourn, albeit the reason in this case was obvious. There should be no hardship or difficulty in a legally qualified chairman giving reasons. ... That too was conceded by Mr Mould, albeit the absence of reasons was not the cause of any problem in this case. … [The judge then considered the role of the Home Secretary in relation to “patients who have been convicted of a serious offence and are judged to be at risk of committing further offences involving serious harm to the public if at large”; he noted that the recall was lawful on the facts, and that the case had been referred to the tribunal promptly; but he found that the Home Secretary did not know the issues that would be before the tribunal until the hospital medical evidence was supplied which was written by a registrar, did not state the RMO’s views, and was late; and that having received the report, he would naturally be concerned to be involved in the hearing and to seek a further report to that end.] 37. I do not accept Mr Bowen’s argument that if Dr Horne’s report was insufficient for his purposes the Secretary of State should have commissioned another report at the time of referral. The Rules do not require him to do so. In the vast majority of cases it will be unnecessary and in the present case there was no reason to do so until [the registrar]’s report, with its unexpected but provisional conclusions, arrived in his in-tray. 38. It is true that recall of restricted patients falls into a special category and that early review by an independent tribunal is particularly important in this type of case. I note Mr Bowen’s comparison with the requirements for restriction orders under ss37 and 41 of the 1983 Act and the requirements for admissions to hospital under ss2 and 3. However, it seems to me that the legislation provides an adequate safeguard against inappropriate recall with the 5-8 week hearing requirement under r29(cc). Certainly I do not think that the Secretary of State is required in restricted cases to decide whether to obtain separate medical evidence and to obtain that evidence before the RMO has produced his report under r6(2).

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2. Adjournment to hear from RMO – R (X) v MHRT [2003] MHLR 299 Admin Ct Facts and outcome: At a tribunal hearing concerning X, a restricted patient, a staff grade forensic psychiatrist prepared the written report and gave oral evidence; X had instructed independent expert witnesses, who also prepared reports and gave oral evidence. The tribunal hearing concluded (having sat from 2.30 to 7.15pm); the tribunal members dispersed, and in their subsequent deliberations decided to adjourn to receive a written report and oral evidence from the RMO and oral evidence from a social worker. A date was set, though it was noted that this could be changed if the RMO could not attend. The decision to adjourn was challenged by judicial review. The Court held that (i) the tribunal may adjourn of its own motion to obtain further information; (ii) in determining whether to release someone who has committed a serious offence, the tribunal must have regard to danger to the public and so be concerned to have all relevant information, which may involve deciding whether there are gaps in the evidence which need to be filled; (iii) this has to be balanced against the need to comply with Art 5 ECHR (speedy hearing); (iv) before a tribunal adjourns, the parties should be allowed to make submissions. The tribunal erred in not doing this and in not taking into account the need for X to call his witnesses at the adjourned hearing, though on the facts the tribunal had been entitled to conclude even at the late stage that it was necessary to hear from the RMO. Collins J … 17. It is clear that the Tribunal has power to adjourn of its own motion. Rule 15 of the MHRT Rules 1983 provides as follows:

"(1) Before or during any hearing, the Tribunal may call for such further information or reports as it may think desirable and may give directions as to the manner in which, and the persons by whom, such material is to be furnished."

18. Then r16 provides:

"(1) The Tribunal may at any time adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate. (2) Before adjourning any hearing, the Tribunal may give such directions as it thinks fit for ensuring the prompt consideration of this application at an adjourned hearing."

19. I have not specifically considered whether the circumstances fall within r15(1), which refers to the power to call for further information before or during any hearing. It has not been submitted that the hearing had concluded at the time that the decision was made, but whether or not it fell technically within r15, clearly it fell within the more general power under r16(1), which entitles the Tribunal to adjourn at

any time for the purpose of obtaining further information. 20. Again, it refers to adjourning a hearing, but it seems to me clear that the word "hearing" must embrace the proceedings before the Tribunal until it reaches its formal decision upon the matter, and in my view, although it is no doubt exceptional and, as we shall see, there were mistakes made in the manner in which the Tribunal went about adjourning the matter, it had power in law to do what it did. 21. Mr Simblet accepts, as indeed he has to, that the Tribunal as a general proposition has power of its own motion to adjourn for the purpose of obtaining information, even though the parties have decided not to put that information before it. 22. Mr Simblet has submitted that the process before the Tribunal is adversarial and essentially it is for the parties to decide what material is appropriate to be put before the Tribunal and in general the Tribunal must reach its decision on the basis of such material as the parties choose to place before it. 23. Mr Chamberlain has drawn my attention to some observations of Scott J in W v Egdell [1990] Ch 359, 375, where he stated that the nature of a hearing before a MHRT was inquisitorial, not adversarial, and he drew attention to the Rules, including r15 - but there are others - which pointed in that direction; for example, one of the matters that occurs in proceedings before the Tribunal is that the medical member of the Tribunal examines the patient and takes such other steps as he considers necessary to form an opinion of the patient's mental condition and he has the right, if he thinks it necessary, to see the patient in private and to obtain medical records and investigate them. So he is, unusually perhaps, required by the Rules to form an independent view of the mental state of the patient. That is not on its face consistent with a purely adversarial process. 24. In my view, it is not particularly helpful to label the proceedings one way or the other. The reality is that there is clearly a public interest involved in the exercise. The burden is of course upon the authority to establish to the satisfaction of the Tribunal that the conditions for detention exist. 25. Nonetheless, in carrying out that function, the Tribunal will inevitably, and particularly in a case involving the release of someone who has committed a very serious offence, have regard to whether there is any danger to the public, and in undertaking its task, it must of necessity be concerned that it has before it all relevant information which will enable it to reach the correct decision in the circumstances of the individual case. 26. The Tribunal will normally rely upon the material that is put before it by the responsible bodies: on the one hand the authority and the Secretary of State, if the Secretary of State chooses to involve himself, as

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he can, and produce his own evidence; and on the other, such material and such reports as the patient chooses to present before the Tribunal. 27. But the Tribunal must clearly have to consider in every case whether there is a gap in the evidence which it requires to be filled in order to enable it to reach the right decision. 28. Having said that, it is equally important that there is no unnecessary delay. Detention is potentially contrary to Art 5 of the European Convention if it continues for no good reason ... … 31. So that is the other side of the coin, which the Tribunal has to consider: whether the inevitable delay, which would be occasioned by an adjournment, is one which is justified. What it boils down to is this. The Tribunal should not adjourn a case unless it regards it as necessary for the purpose of doing justice and of reaching the right result in a given case, and in deciding whether it is necessary, it will have to balance the need which it perceives for the extra information against any delay that that will occasion to the determination of the appeal before it. ... 33. What is equally clear ... is that if the Tribunal is considering adjourning, it must inform the parties and seek and receive submissions on whether it ought to adjourn. … 39. What clearly should have happened here was that the parties should have been notified that this is what the Tribunal proposed before the final decision was made. [The judge then concluded that it would be wrong on the facts to prevent the Tribunal reconvening to hear the RMO and so did not quash the decision despite the procedural error.] 53. But at all times, as I have sought to emphasise, the Tribunal must direct itself that it should only adjourn for that purpose if it regards it as necessary to do so in order to reach a just decision, or the correct decision in an individual case. … 60. I emphasise that this will be a very exceptional case. It obviously is undesirable in the extreme that a decision of this sort is made after the submissions and evidence have been concluded and when the parties believe that the case is over but for the determination. … 3. To hear from report writers - R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority (digested fully above) In the Administrative Court [2002] MHLR 13, Stanley Burnton J stated

“85. In R v South West Thames MHRT ex p Demetri [1997] EWHC Admin 622, Kay J, at para 53 of his judgment, stated that in the circumstances of that case the tribunal was under

a duty to draw to the attention of the legal representative of the applicant that the unavailability for cross-examination of one of the doctors materially affected the weight that the Tribunal proposed to give to his evidence, so as to give the legal representative of the applicant an opportunity to ask for an adjournment so that the doctor could be called. In my judgment, the Tribunal in the present case were under a similar duty if they proposed (as they did) to reject the evidence of the several doctors whose recent written reports were before them and who were of the opinion that H should not be discharged. Particularly given the preponderance of that opinion in the written reports, it was inappropriate for the Tribunal to determine the issues before them as if the only significant evidence was the oral evidence, and in any event without giving the Hospital and the local authority the option of calling Dr Heads or Dr Lomax (neither of whom, incidentally, could be said to be other than independent of Ashford), provided that could be done without undue delay.”

The Court of Appeal, however, felt that this went too far: [2002] MHLR 314. Dyson LJ stated:

“85. The comment in para 85 does, however, concern me. I entirely agree that it would have been “inappropriate for the Tribunal to determine the issues before them as if the only significant evidence was the oral evidence”. But I do not accept that, as a matter of law, it was not open to the Tribunal to accept the evidence of Dr Williams without allowing Ashworth and the local authority an adjournment to call some of the doctors who had made written reports. If a tribunal consider that the absence of doctors from a hearing is likely to affect materially the weight they feel able to give to the opinions expressed in their written reports, and if that is likely to be critical to their ultimate decision, then I would agree that fairness demands that the tribunal at least give serious consideration to an adjournment to enable the doctors to give oral evidence which can be tested by cross-examination. But to go further, as the judge has done, is in my view to go too far. In the present case, although I have criticised the Tribunal’s decision and the quality of their reasoning, I would not criticise them for failing to invite an application to adjourn so that Dr Heads or Dr Lomax or any of the other doctors could be called.”

(iii) Non-statutory power - whether lawful to adjourn for further information - R (Home Secretary) v MHRT [2000] MHLR 209 Admin Ct Facts and outcome: W, a restricted patient in a high secure hospital, made an application to a tribunal, seeking a transfer to less secure conditions. The tribunal granted an application to adjourn to obtain so that it could have more information about a pending assessment as to her suitability for transfer to a less secure unit. The Home Secretary, who had opposed

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the application on the basis that directions as to transfer are outside the tribunal’s powers and so the hearing could not be adjourned for that purpose, challenged the decision by judicial review. The application was successful: the High Court held that the tribunal could not exercise the power to adjourn solely to allow it to obtain information relevant to the non-statutory practice of making recommendations. Collins J … 12. … there is no express power under the Mental Health Act 1983 which enables the Tribunal to make such a recommendation [ie as to transfer to a less secure hospital] in the case of restricted patients. But Tribunals do regularly make such recommendations and it is not suggested that they are forbidden to do so. If they do make a recommendation, the Secretary of State will take such recommendation into account, but is not bound to follow it. His approach was indicated by the then minister in the Home Office, Mr Douglas Hogg QC, in a written answer to a Parliamentary question on 28 October 1987. 13. The question was what steps the department currently took when, in relation to a patient to whom s73 of the 1983 Act applied, that is to say a restricted patient, a MHRT included in its written decision a recommendation that a patient be granted leave of absence or be transferred to another hospital, or be transferred into guardianship. The reply from the minister was this:

“Any such recommendation received in the Home Office is acknowledged, and any comments are offered which could usefully be made at that stage. Correspondence with the Tribunal is copied to the patient’s responsible medical officer, since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on a Tribunal’s recommendation, full account is taken of the Tribunal’s views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the Tribunal had made.”

14. The minister went on to indicate that there was no intention to amend s73 to enable Tribunals to make recommendations in the case of restricted patients. … 30. … the powers of the Tribunal are limited. First, it may discharge absolutely; second, it may discharge conditionally; and thirdly, it may decide that it is not appropriate to discharge. When one adds in the powers given by s72(5) it will be seen that the statutory powers of the Tribunal are thereby limited to four courses of action, because one adds in the power to reclassify. … [The judge considered the statutory power as to rule-making, including s78(1) and the specific powers in s78(2) to make rules for specific purposes, including (j) “for conferring on the Tribunals such ancillary

powers as the Lord Chancellor thinks necessary for the purposes of the exercise of their functions under this Act.”] 35. The Rules made in pursuance of s78 … cannot give to the Tribunal powers which are not given by the statute. 36. They do indicate, as Miss Foster has pointed out, that the Tribunal is given an inquisitorial role. It is up to the Tribunal to obtain evidence in the form that it thinks appropriate, and to seek the assistance of such witnesses as it thinks appropriate. … [The judge referred to r13 and the power to give directions “to ensure the speedy and just determination of the application”; he noted that speed was of importance as patients should not be detained for longer than necessary, and that in practice it may take time for arrangements to be made to allow discharge.] 39. Rule 16(1) is the rule which was applied in the circumstances of this case. It reads:

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

[The judge then summarised the submissions made, namely the Home Secretary arguing that the power of adjournment in relation to restricted patients is limited to the statutory powers of discharge and classification. The Tribunal argued that the Act and Rules allowed adjournments for the purpose of considering a recommendation for a transfer; the patient argued the same, suggesting that Art 5(4) ECHR supported this.] … 50. [The judge noted that an adjournment might be needed to ensure fairness: he gave an example of the patient’s representative being ill-prepared.] But … in considering whether or not to adjourn under r16, the Tribunal must bear in mind that the only purpose for which they can adjourn is to enable them to carry out their statutory duties or powers. That, as it seems to me, is made perfectly clear. [The judge then referred to Court of Appeal authority binding on him, Oxford MHRT and Another ex p Smith 25 January 1995, which upheld the decision of McNeill J in Grant v MHRT of Trent Times, 26 April 1986, that the s72(3) powers to make recommendations in relation to non-restricted patients were not part of s73. He then passed to the argument that the Tribunal had a power to offer advice – such as to make a recommendation that a transferred prisoner be returned to prison, but held that this did not confer powers beyond those contained in ss72 or 73. He then found that the inquisitorial nature of the tribunal conferred a latitude in the manner in which it exercises its functions rather than indicating the extent of its functions.]

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61. I entirely accept that there would have been a power to adjourn implicit in any event, but that power would have been limited to adjournments in order to ensure fairness, and for the purposes of enabling the Tribunal to exercise its functions properly. So one has the same thing. The only purpose for which an adjournment could properly be granted under section 78(1) would be precisely the same as that under section 78(2)(j), because however wide the power is stated to be, it must, in my judgment, be exercised for the purposes of enabling the Tribunal to do what the statute requires it to do. 62. Mr Bowen submits that there is to be implied into the Act a power to give advice. This, he submits, arises because the Secretary of State must obtain advice in order to carry out his functions in relation to transfer and to discharge. There is nothing to limit the bodies or persons from whom he can seek such advice. If the Tribunal gives him advice in the form of a recommendation, he will take it into account. … 65. … The patient undoubtedly has a legitimate expectation that the Secretary of State will pay heed to the advice given, not that he will follow it, but that he will take it into account in reaching his decision. Mr Bowen submits that it follows from that that there is a legitimate expectation that the Tribunal should be able to give the best advice that it can, and therefore to get information to enable it to do so. The Secretary of State, he submits, is entitled to seek advice from the Tribunal, and again, that means that the Tribunal should be in a position to give him such advice. The fallacy of that argument is that the Secretary of State does not seek advice from the Tribunal. Of course, if the Tribunal chooses to give it, he will properly take it into account. 66. In any event, the submissions are imaginative and ingenious but are unacceptable. The fact that there may be a legitimate expectation that advice will be heeded if given does not indicate that the Tribunal should in all cases, or indeed whenever it thinks fit, obtain material relevant only to the giving of such advice. That is not its role. … Its role is limited … by the provisions of ss72 and 73. [An argument that there was a breach of Art 5(4) ECHR was rejected on the basis that transfers within different categories of detention are not covered by Art 5 of the Convention. The judge commented at para 79. “If the Secretary of State were unreasonably to veto a transfer, there is no need for Art 5. Domestic law would give all the necessary protection. There would be judicial review available. There would be habeas corpus available and there may even be available a claim for damages. If of course the Secretary of State acts reasonably, then again, there can be no importation of Art 5(4), as the authorities make clear.”] 81. Before leaving the case, I would like to make clear that nothing I have said is intended to inhibit the Tribunal from making recommendations if it

considers it appropriate in any case to do so. Equally, there is nothing to prevent the Tribunal receiving or seeking evidence relevant to that issue, nor can it be criticised if it chooses to do so. What it cannot do is to use its powers of adjournment solely for the purpose of obtaining such material. If it has reason to adjourn to obtain information material to the matters upon which it has to decide, that is to say discharge or classification, there is nothing to stop the Tribunal at the same time obtaining information which may be relevant to transfer. 82. One can readily see that in some cases there may be an overlap between the two, and the Tribunal may be assisted in its functions by seeing what the position might be in relation to conditions, or in relation to whether discharge should be gradual or immediate. But the Tribunal, whether or not it has a duty to do so, clearly, and this is in accordance with good practice, does give reasons for adjourning. The form, as I have already indicated, has a box on it which is headed “Reasons for Adjournment”. So, if the Tribunal decides to adjourn, it must have and must give reasons which show that there was a proper purpose behind such adjournment. That must mean that there is something beyond the desire to obtain the material which would be relevant only to the making of a recommendation. (iv) To see if patient improves R v Nottingham MHRT ex p Home Secretary 15 September 1988 (Times, 12 October 1988) CA Facts and Outcome: In one case (T), a restricted patient had been involved in an attack on another patient 2 months before a tribunal; the tribunal concluded that he required further treatment in high secure conditions before it could recommend a transfer to medium secure conditions, and adjourned the hearing for 6 months, citing the attack and the need for further treatment as its reasons. In another case heard at the same time (C), the RMO indicated that the patient had recently and considerably improved as a result of a new treatment, and the tribunal adjourned for a period not exceeding 6 months for further progress to be monitored. The judge declared that the tribunals had exceeded their powers, noting that their function was the judicial role of determining whether on the evidence available the patient should be discharged or not. The Court of Appeal dismissed appeals, noting that whilst a tribunal could adjourn to obtain further information as to the present mental health of the patient, this had not been what had happened in the cases; and whilst r16 allows a tribunal to adjourn “for such other purposes as it might think appropriate”, this could only be for purposes ancillary to their functions under the Act, which did not include a general supervisory function over the progress of a restricted patient, and so it was not permissible to grant an adjournment to see whether a patient’s condition improved or an improvement was sustained.

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(v) Length of – whether lawful - R (C) v South London and Maudsley NHS Trust and MHRT [2004] MHLR 280 Admin Ct Facts and outcome: C was detained under s2 MHA 1983 on 19 September 2003; she made an application to a tribunal, which met on 30 September 2003: there was a delay in it starting and so it commenced in the afternoon; after hearing 7 witnesses, it adjourned part-heard at 5pm for submissions to be completed on 8 October 2003. She challenged the decision to adjourn and its length. The application was dismissed on the basis that it was not unlawful in light of the difficulties in completing the case as carefully as was necessary to secure a fair hearing. Nicholas Blake QC … 18. ... the tribunal must exercise its jurisdiction and determine cases that concern the legality of the detention as soon as reasonably practicable and promptly within the terms of Art 5.4 of the European Convention of Human Rights. But it must not be forgotten that the single question of legality referred to in Art 5.4 is, in the British system, divided into 2 questions: first, the legality of a jurisdiction to detain; secondly, the necessity, on the facts, of continued detention. It is really the tribunal's role, and important role it is too - to examine the latter; to be the independent authority forming the necessary opinions of fact as well as law as to the necessity of continued detention. That must be done speedily and promptly. 19. However, since it is not the court looking primarily, if at all, at the legality of the initial admission, it is not simply a question of hearing some legal submissions and ruling upon them, there being only one obvious answer. It is a question of fairly considering a mass of complicated factual material, it is hearing submissions upon it and giving a fair assessment and fair ruling. In those circumstances the idea that an adjournment for 7 days is so wrongful an exercise of the discretion to adjourn as to be unlawful whether under purely domestic law or domestic law, seen in the light of Art 5.4 appears to be somewhat fanciful. What precisely "promptly" means in the circumstances of the case is a matter of fact and degree. 20. It embarked upon a day's hearing, only halfway through that day and finding, in the judgment of the chairman, that there are real difficulties to concluding the day's hearing after 5 o'clock, it would seem very difficult to suggest that the tribunal was bound to continue although no doubt they took into account all factors urged upon them. If an adjournment was regrettably necessary because it could not complete its work as carefully and as thoughtfully as it needed, then there is no basis in my judgment for saying that the adjournment was excessive when it was to the first available date that that tribunal could reconvene and it was within 7 days; and in any event within the 28 days of the s2 procedure. The alternative it appears to me would have been to start from all over again a

de novo hearing with fresh experts, fresh witnesses, possibly fresh advocates, and even then there is no guarantee that the tribunal would have been able to complete its business within the time-scale. … [Comment: this situation in this case probably reflects a tribunal which underestimated the amount of time it would take to complete a hearing which started late and consequently produced a situation in which there was a greater delay than if the tribunal had not commenced at all. Given that a s2 patient has a right to a hearing within 7 days of making an application, an adjournment from 30 September to 8 October does seem to be on the edge of what should be lawful.]

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Chapter 3 Aftercare Under s117 MHA 1983, a patient who has been in hospital under s3/37 or on transfer from prison (but not, it should be noted, s2) is entitled to aftercare until he or she no longer requires it. There can be no charges made for s117 aftercare: R v LB Richmond ex p W [2002] MHLR 377. The “duty” to provide aftercare is a duty to use best endeavours as to provision: see R (K) v Camden and Islington Health Authority [2001] MHLR 24 and R (W) v Doncaster MBC [2004] MHLR 201. This duty arises in advance of actual discharge in relation to a deferred conditional discharge (see R (B) v Camden, below). The propositions arising from the case law are:

(i) tribunals should not take “steps in the dark” in assuming that aftercare will be available if it is needed before release can be allowed; (ii) there is a public law power to plan for the provision of aftercare services in advance of a tribunal decision.

(i) Need for full information as to aftercare before discharge - R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority [2002] MHLR 314 CA – see ch 2 In this case it was held that a tribunal acted irrationally in not adjourning to obtain further information on aftercare, since its availability was central to any decision as to release. Note, however, that it will be possible to use the s72(3) power to delay discharge to allow arrangements to be put in place if this does not amount to a step in the dark1. (ii) Duty and/or power of planning 1. R v MHRT ex p Hall [1999] MHLR 63 CA – see ch 5 Kennedy LJ 22. ... The 1999 Code of Practice issued by the Department of Health shows, at para 27.7, that before a Tribunal hearing takes place relevant professionals and agencies should have met “so that suitable after-care arrangements can be implemented” in the event of the patient being discharged. That suggests that today, at least in embryo, plans should be available before a Tribunal hearing takes place, ... 2. R (B) v (1) Camden LBC (2) Camden & Islington Health and Social Care Trust [2005] MHLR 258 Admin Ct Facts and outcome: B, a restricted patient; was granted a deferred conditional discharge in September

1 and see R (B) v MHRT [2003] MHLR 218 (digested under ch 6(ii)) - deferral is possible to allow time to provide aftercare to a patient discharged when the dangerousness criteria are relevant following a s25 barring order.

2003, including a condition of residence in a hostel, and discharged in July 2004; there were delays in providing funding for the hostel. In proceedings taken in relation to the delay, it was held that the duty under s117 MHA 1983 includes a duty when a deferred conditional discharge has been granted to act so as to allow it to be effected, and also includes a power to take preparatory steps in advance of discharge; a similar conclusion applies to the duty to assess the potential need for community care services under s47 National Health Service and Community Care Act 1990. Stanley Burnton J ... 57. ... the terms of s117(1) are clear. The duty under subs(2) is only owed to a person who ceases to be detained and leaves hospital. If so, in the present case, the duty could not have arisen until after the decision of the tribunal that the preconditions for B’s discharge had been satisfied and that he was conditionally discharged, and as a result of that decision he left Avesbury House. ... 58. This conclusion, however, creates a practical problem. In the case of B, as in many other cases, his safe discharge into the community required there to be suitable supported accommodation and other community services immediately available. How can those services be identified and made available if a s117 authority is under no duty to arrange or to provide them before discharge? Practicality requires s117 authorities to be under a duty before discharge, at least in cases where a tribunal has provisionally decided that a conditional discharge is appropriate, as the tribunal did in respect of B on 11 September 2003. 59. It is not surprising that these considerations have troubled the Courts. For present purposes, it is sufficient to refer to the judgment of Scott Baker LJ (with which the other members of the Court of Appeal agreed) in R (W) v Doncaster [2004] MHLR 201. He cited paras 20 and 29 of the judgment of Lord Phillips MR in R (K) v Camden & Islington Health Authority [2001] MHLR 24, [2002] QB 198, in which Lord Phillips endorsed the concession made by counsel for the defendant in that case as to the duty of a s117 authority before the discharge of a patient that:

“(a) a health authority has the power to take preparatory steps before discharge of a patient; (b) it will normally be the case that, in the exercise of its discretionary power, an authority should give way to a tribunal decision, and should use reasonable endeavours to fulfil the conditions imposed by such a decision, in so far as they relate to medical care; (c) failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion.”

60. Neither Lord Phillips MR’s endorsement of that concession, nor its citation with evident approval in

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W is authority binding on me: in K the point was not the subject of controversy, and in W Scott Baker LJ stated at [49] that the issue as to when the s117 duty arises was irrelevant to the outcome of the appeal. However, their judgments were considered expressions of the law by the Court of Appeal, and in my judgment I should follow and apply them. ... This conclusion is consistent with what was said by Lord Bingham in IH in the House of Lords [2004] MHLR 51, [2004] 2 AC 253, at [29]. ... 62. It seems to me that it is inconsistent with the lack of any express duty imposed by s117 in respect of a detained patient that a s117 authority should be under a duty to monitor the condition of such patients with a view to deciding whether there is occasion to exercise their discretion to arrange for the provision of such services in case he is discharged. Where a patient is represented, as B was before the tribunal, one can expect his solicitor to inform the s117 authorities of the decision; and the hospital should do so too. ... 64. ... Section 47(1) [of the NHSCCA 1990] provides:

“(1) … where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority—

(a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.

… (5) Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.”

65. ... Parliament could not have intended local authorities to have to devote their resources to making assessments of the possible future needs of persons for such services. Furthermore, subs(2) requires a local authority, on completion of its assessment, to “then decide whether his needs as assessed call for the provision by them of such services”. The words “then” and “call for” show that Parliament envisaged a need at the date of assessment. The words “may be in need” were used in subs(1) because, necessarily when the assessment is carried out, it has not yet been ascertained whether the person in question has a need for services. They denote possibility, not futurity. They do not refer forward in time. 66. In my judgment, the words “a person … may be in need of such services” refer to a person who may be in need at the time, or who may be about to be in need. A detained patient who is the subject of a

deferred conditional discharge decision of a tribunal, which envisages his conditional discharge once s117 after-care services are in place, is a person who “may be in need of such services”, since if such services are available to him he will be discharged and immediately need them. Whether a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing is an issue I do not have to decide in the instant case, but I incline to the view that he is. 67. However, the duty under s47 does not arise until it “appears” to the local authority that a person may be in need, and it cannot appear to it that he may be in need unless it knows of his possible need. It is presumably for this reason that the Community Care (Delayed Discharges etc) Act 2003 was enacted. It follows that s47 does not impose an obligation on a local authority to monitor a patient detained in hospital in case he should at some later time be in need. The decision of the local authority under s47(1)(b) whether his needs call for the provision of services falls to be made by reference to the result of the assessment it has carried out. It follows that s47 cannot require the local authority to monitor the situation of a patient to consider providing for his changed needs. ...

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Chapter 4 Capacity – Patients Without The common law test for capacity in relation to medical matters involves determining whether the patient cannot understand or retain the information relevant to the decision, or use or weigh the information in the process of making the decision: see Re MB [1997] 2 FLR 426. This test has been adopted by s3 Mental Capacity Act 2005 (which also makes express that an inability to communicate a decision is an indication of lack of capacity). Note that s28 of the 2005 Act provides that it does not apply to treatment if that is regulated by the Mental Health Act 1983. Under r3 and r30 MHRT Rules 1983, an application to a tribunal has to be in writing, signed by either the applicant (usually the patient) or a person authorised on behalf of the applicant: this language implies a need for capacity. The 1983 Act requires references to the tribunal if there has been no application after the first 6 months of a s3 detention and thereafter every 3 years, and every 3 years for a restricted patient (see ss68 and 71); this will catch those without capacity to make an application. In addition, s67 allows the Secretary of State for Health to refer civil cases to the tribunal at any time and s71 gives a similar power in relation to restricted patients to the Secretary of State for Justice. In R v Bournewood Community and Mental Health NHS Trust ex p L [1999] AC 458, the House of Lords held that compliant patients without capacity could be treated under common law rather than the 1983 Act: this was held by the ECtHR to produce a breach of Art 5 ECHR because of the lack of safeguards against arbitrariness: see HL v UK below. Subsequently, domestic litigation has dealt with what amounts to detention and the process to be followed if detention is authorised under the inherent jurisdiction of the High Court where the 1983 Act does not apply. The propositions arising from the case law are:

(i) the lack of an automatic reference to the tribunal in the case of a s2 patient felt to be without capacity did not breach Art 5 ECHR; (ii) the informal detention of compliant incapacitated patients breaches Art 5 ECHR.

(i) Incompetent patients detained under s2 – R (MH) v Secretary of State for Health [2005] MHLR 302 HL Facts and outcome: MH was detained under s2. She was thought to have no capacity to apply to a tribunal. Amongst the issues raised1 was whether the failure to refer a s2 case to a tribunal or other court able to review the merits of detention was compatible with Art 5 ECHR. The Court of Appeal felt that the statutory scheme was incompatible ([2004] MHLR 345), but the House of Lords held that Art 5(4)

1 See under ch 6(ii) and 6(iii)

required that every sensible effort be made to allow a patient access to a tribunal, which was achieved by the statutory regime. Baroness Hale (Lords Bingham, Hope, Rodger and Brown agreeing) ... 21. The question ... is whether s2 is incompatible with the additional procedural protection given by Art 5(4), which is designed to procure the speedy release of someone who should not in fact have been detained in the first place or should not be detained any longer. 22. The short answer to this question is that Art 5(4) does not require that every case be considered by a court. It requires that the person detained should have the right to "take proceedings". The wording is different from Art 5(3) [which provides that a person arrested on suspicion of having committed a criminal offence or to prevent his committing an offence or fleeing after having done so “...shall be brought promptly before a judge”] The difference between a right to "take proceedings" and a right to "be brought promptly before a [court]" must be deliberate. It stops short of requiring judicial authorisation in every case. It leaves to the person detained the choice of whether or not to put the matter before a court.... 23. [The respondent argues] that a right "to take proceedings" is ineffective if the patient lacks the ability to do so. Given that the Convention is there to secure rights that are "practical and effective" rather than "theoretical and illusory" this is a powerful argument. But it does not lead to the conclusion that s2 is in itself incompatible with the Convention or that the solution is to require a reference in every case. Rather, it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so. ... 25. ... our system tries hard to give patients and their relatives easy access to the tribunal which is itself designed to meet their needs. The managers of the hospital have a statutory duty, under s132 of the Act, to take such steps as are practicable to ensure that the patient understands the effect of the provisions under which she is detained and the rights of applying to a MHRT which are available to her. This has to be done as soon as practicable after the patient is detained. Unless the patient wishes otherwise, this information is also to be given to the patient's nearest relative. Under the Code of Practice (published March 1999 pursuant to s118 of the Act by the Department of Health and Welsh Office), s14, information should be given to the patient "in a suitable manner and at a suitable time" by a person who "has received sufficient training and guidance". Patients and nearest relatives have to be told how to apply to a tribunal, how to contact a suitably qualified solicitor, that free legal aid may be available, and how to contact any other organisation which may be able to help them make an application. In other

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words, the hospital managers have to do the best they can to make the patient's rights practical and effective. 26. MHRTs ... are designed to be user-friendly and to enable the patient and her relative to communicate directly with the tribunal. A reference to the tribunal must be considered in the same way as if there had been an application by the patient: see r29. Hence although the initiative is taken by someone else, the patient's rights are the same. Although an application has to be made in writing, it can be signed by any person authorised by the patient to do so on her behalf: see r3(1). This could be any relative, a social worker, an advocate, or a nurse, provided of course that the patient has sufficient capacity to authorise that person to act for her. The common law presumes that every person has capacity until the contrary is shown and the threshold for capacity is not a demanding one. ... 27. Even if the patient's nearest relative has no independent right of application, there is much that she, or other concerned members of the family, friends or professionals, can do to help put the patient's case before a judicial authority. The history of this case is a good illustration. The patient's mother was able to challenge every important decision affecting her daughter. Most helpfully, she stimulated the Secretary of State's reference to the tribunal very quickly after it became clear that her daughter was to be kept in hospital longer than 28 days. Had MH been discharged once the 28 days were up there would, in my view, have been no violation of her rights under Art 5(4). It follows that s2 of the Act is not incompatible with Art 5(4). .... [Comment: note that Baroness Hale emphasised the low threshold for capacity, which is presumed in any event, suggesting that few patients should be considered incompetent to make an application. The result of the decision must be that the focus falls on hospitals, which must ensure that practical and effective steps are taken to allow patients to apply to tribunals; the Mental Health Act Commission should be required to review how this operates in practice.] (ii) Compliant incompetent patient – detention under common law – HL v UK [2004] MHLR 236 Facts and outcome: HL, who was born in 1949, had a limited level of understanding and was unable to speak; he frequently became agitated and had a history of self-harming behaviour. After spending over 30 years in hospital, he was discharged in March 1994 to live with carers, Mr and Mrs E. In July 1997, HL became particularly agitated and began to self-harm at a day care centre; he was taken to the local accident and emergency unit where 2 psychiatrists, including Dr M, who had been his treating psychiatrist for some 20 years, recommended admission to hospital in his best interests. He was admitted as an informal patient because he was compliant, though he would not have been allowed to

leave. His carers were not allowed to visit him as it was felt that this would prejudice ongoing assessments (into whether he had a mood disorder) and led HL to think he was able to leave hospital. In domestic proceedings, the Court of Appeal (R v Bournewood Community and Mental Health NHS Trust ex p L [1998] 2 WLR 764) held that detention on the basis of mental disorder should only occur under the MHA 1983. Following this, in late October 1997, HL was placed under s3 of the Act; he was given leave to his carers on 5 December 1997 and on 12 December 1997, the hospital managers discharged him under s23. However, in June 1998, the House of Lords overturned the Court of Appeal ([1999] AC 458), holding that compliant incapacitated patients could be treated in hospital as informal patients under the common law on the basis of the doctrine of necessity combined with a duty to act in the best interests of the patient. The European Court of Human Rights was asked to examine the situation between his admission and the use of formal powers. It held: (i) HL was deprived of his liberty for the purposes of Art 5(1) of the Convention, as the health care professionals exercised complete and effective control over HL’s movements from 22 July to 29 October 1997: he was not free to leave, and his carers were not allowed to take him away until the professionals allowed them to; (ii) he was reliably shown to be of unsound mind for the purposes of Art 5(1)(e). (iii) There were inadequate safeguards against arbitrary detention in the use of the common law to meet the requirement that detention be “lawful”: (a) the case law relating to the doctrine of necessity and the assessment of best interests had been developing at the relevant time; (b) but even if HL’s detention was foreseeable on that basis, the aim of avoiding arbitrariness was not satisfied in light of the lack of any fixed procedural rules for admission and detention, in contrast to the position of those sectioned under the Act; in particular, there were no formalised admission procedures covering who could propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions, there was no requirement to fix the purpose of admission and no limits in terms of time, treatment or care attached to the admission; there was no requirement for the continuing clinical assessment of the persistence of a disorder warranting detention, and there was no nominated person who could object on the patient’s behalf. As such, the health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments, without the procedural safeguards designed to protect individuals against misjudgements and professional lapses. Accordingly, Art 5.1 of the Convention was violated. Further, there was no court review of detention such as complied with Art 5(4), as habeas corpus did not allow a review of the merits of detention; nor did judicial review at the time allow an adequate

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examination of the merits of clinical views on the persistence of mental disorder justifying detention; and neither civil actions for damages, or the declaratory jurisdiction of the High Court, had been shown to be adequate in practice to allow a merits review of the lawfulness of detention. Judgment (of the unanimous ECtHR) … [The Court set out the facts and the domestic proceedings, including the information provided to the House of Lords by the Mental Health Act Commission which had outlined the beneficial consequences to patients of the Court of Appeal's conclusion that persons such as HL were “detained” for the purposes of the 1983 Act, including the application to such persons of its substantive and procedural safeguards, and that a survey suggested that the application of the judgment would result in an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act. The Court also set out the relevant jurisprudence, including that relating to the common law doctrine of necessity and best interests.] … A. Was the applicant “deprived of his liberty” from 22 July to 29 October 1997? … 89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance … 90. The Court observes that the High Court and the majority of the House of Lords found that the applicant had not been detained during this period while the Court of Appeal and a minority of the House of Lords found that he had. Although this Court will have regard to the domestic courts' related findings of fact, it does not consider itself constrained by their legal conclusions as to whether the applicant was detained or not, not least because the House of Lords considered the question from the point of view of the tort of false imprisonment … rather than the Convention concept of “deprivation of liberty” in Art 5§1, the criteria for assessing those domestic and Convention issues being different. … The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The Court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the Court accept as determinative the fact relied on by the Government that the regime applied to the applicant (as a compliant incapacitated patient) did not

materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The Court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373, §§64-65), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. 91. Turning therefore to the concrete situation … the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October 1997. More particularly, the applicant had been resident with his carers for over 3 years. On 22 July 1997, following a further incident of violent behaviour and self-harm in his day care centre, the applicant was sedated before being brought to the hospital and subsequently to the IBU, in the latter case supported by 2 persons. His responsible medical officer (Dr M) was clear that, had the applicant resisted admission or tried to leave thereafter, she would have prevented him from doing so and would have considered his involuntarily committal under s3 of the 1983 Act …: indeed, as soon as the Court of Appeal indicated that his appeal would be allowed, he was compulsorily detained under the 1983 Act. The correspondence between the applicant's carers and Dr M … reflects both the carer's wish to have the applicant immediately released to their care and, equally, the clear intention of Dr M and the other relevant health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence: the applicant would only be released from the hospital to the care of Mr and Mrs E as and when those professionals considered it appropriate. … Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court's view, fairly described by Lord Steyn as “stretching credulity to breaking point” and as a “fairy tale” … 92. The Court would therefore agree with the applicant that it is not determinative whether the ward was “locked” or “lockable” … [The Court referred to the case of Ashingdane v UK, where the applicant was “detained” for the purposes of Art 5§1(e) even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and unescorted leave outside the hospital.]

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93. [The Court referred to the case of HM v Switzerland1] … while there may be similarities between the present and the HM case, there are also distinguishing features. In particular, it was not established that HM was legally incapable of expressing a view on her position, she had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay. This combined with a regime entirely different to that applied to the present applicant (the foster home was an open institution which allowed freedom of movement and encouraged contacts with the outside world) allows a conclusion that the facts of the HM case were not of a “degree” or “intensity” sufficiently serious to justify the conclusion that she was detained … 94. The Court therefore concludes that the applicant was “deprived of his liberty” within the meaning of Art 5§1 of the Convention from 22 July 1997 to 29 October 1997. B. Was that detention “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Art 5§1(e)? [The Court concluded that HL was reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement which persisted during his detention between 22 July and 5 December 1997.] 2. Lawfulness and protection against arbitrary detention … (c) The relevant principles 114. The Court recalls that the lawfulness of detention depends on conformity with the procedural and with the substantive aspects of domestic law, the “lawful” term overlapping to a certain extent with the general requirement in Art 5§1 to observe a “procedure prescribed by law” (the above-cited Winterwerp2 judgment, §39). It is also recalled that, given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that all law be sufficiently precise to allow the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail … 115. It is further recalled that it must be established that the detention was in conformity with the essential objective of Art 5§1 of the Convention which is to prevent individuals being deprived of their liberty in an arbitrary fashion … This objective, and the broader condition that detention be “in accordance with a procedure prescribed by law”, require the existence in domestic law of adequate legal

1 See ch 8: it involved the placement of HM in an old people’s home 2 (1979) 2 EHRR 387

protections and “fair and proper procedures” (the above-cited Winterwerp judgment, at §45 …). (d) The Court's assessment 116. The Court considers it clear that the domestic legal basis for the applicant's detention between 22 July and 29 October 1997 was the common law doctrine of necessity: the House of Lords may have differed on whether his admission and stay in hospital amounted to detention, but they were unanimous in finding that he had been admitted to hospital pursuant to that doctrine. In addition, the Court considers that, when the doctrine of necessity was applied in the area of mental health, it accommodated the minimum conditions for the lawful detention of those of unsound mind … 117. In these respects, the Court has noted that as early as 1772 the common law permitted detention of those who were a potential danger to themselves in so far as this was shown to be necessary. In the early 1990s necessity was the recognised legal basis for the consideration of authorisations for certain medical treatment (sterilisations and artificial nutrition and hydration) of incapacitated individuals (para 57 above). The cases of Re S (Hospital Patient: Court's Jurisdiction) and Re S (Hospital Patient: Foreign Curator) together with the case of Re C (Mental Patients: Contact) reported in 1993 and 1996 resulted in declarations being made as to the best interests of incapacitated individuals pursuant to the doctrine of necessity where there was a conflict over certain welfare issues … In addition, all of the judges of the House of Lords in the present case relied on the case of Re F (Mental Patient: Sterilisation) in unanimously concluding that the admission and treatment of an incapacitated compliant patient could be justified on the basis of the doctrine of necessity: … Moreover, all counsel before the House of Lords were in agreement as to the precise elements of the doctrine of necessity to be applied …: these were “simply” that (i) there must be a necessity to act when it is not practicable to communicate with the assisted person and (ii) that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person. Furthermore, as is clear from the statistics provided by the Mental Health Act Commission to the House of Lords, the applicant was one of thousands of compliant incapacitated patients detained each year on the basis of the doctrine of necessity. Finally, the Court does not consider that the lack of a definition of “compliant” rendered the applicant's detention unforeseeable: the majority of the House of Lords expressed no particular difficulty in applying the notion of compliance in the present case. 118. It is true that, at the time of the applicant's detention, the doctrine of necessity and, in particular, the “best interests” test were still developing. Clinical assessments of best interests began to be subjected to a double test (the Bolam “not negligent” test together with a separate duty to act in a patient's best

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interests). Broader welfare matters were also introduced to the “best interests” assessment (Re F (Adult: Court's Jurisdiction) and RB (A patient) v Official Solicitor, sub nom Re A (Male Sterilisation), … It is therefore true that each element of the doctrine might not have been fully defined in 1997. … 119. Whether or not the above allows the conclusion that the applicant could, with appropriate advice, have reasonably foreseen his detention on the basis of the doctrine of necessity …, the Court considers that the further element of lawfulness, the aim of avoiding arbitrariness, has not been satisfied. 120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act … is, in the Court's view, significant. In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The nomination of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities. 121. As a result of the lack of procedural regulation and limits, the Court observes that the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left “effective and unqualified control” in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, the very purpose of procedural safeguards is to protect individuals against any “misjudgments and professional lapses” (Lord Steyn, at para 49 above). … 123. The Government's submission that detention could not be arbitrary within the meaning of Art 5§1 because of the possibility of a later review of its lawfulness disregards the distinctive and cumulative protections offered by paras 1 and 4 of Art 5 of the Convention: the former strictly regulates the circumstances in which one's liberty can be taken

away whereas the latter requires a review of its legality thereafter. 124. The Court therefore finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Art 5§1 of the Convention. On this basis, the Court finds that there has been a violation of Art 5§1 of the Convention. II. Alleged Violation of Art 5§4 of the Convention … 1. General principles 135. Article 5§4 provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court in the light, not only of domestic law requirements, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by para 1: the scheme of Art 5 implies that the notion of “lawfulness” should have the same significance in paras 1(e) and 4 in relation to the same deprivation of liberty. This does not guarantee a right to review of such scope as to empower the court on all aspects of the case or to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person, in this case, on the ground of unsoundness of mind … 2. Application to the present case 136. The Government mainly argued that an application for leave to apply for judicial review of the decision to admit and detain, including a writ of habeas corpus, constituted a review fulfilling the requirements of Art 5§4 of the Convention. The applicant disagreed. 137. The Court considers that the starting point must be the above-cited X v UK judgment1 (§§52-59) where the Court found that the review conducted in habeas corpus proceedings was insufficient for the purposes of Art 5§4 as not being wide enough to bear on those conditions which were essential for the “lawful” detention of a person on the basis of unsoundness of mind since it did not allow a determination of the merits of the question as to whether the mental disorder persisted. The Court is not persuaded by the Government's argument that the X case can be distinguished because it concerned detention pursuant to a statutory power: no authority has been cited and no other material adduced to indicate that the courts' review of detention based on the common law doctrine of necessity would indeed have been more intrusive. 138. Nor does the Court find convincing the Government's reliance on the development of the

1 See (1981) 4 EHRR 181 4-5

“super-Wednesbury” principles of judicial review prior to the entry into force of the Human Rights Act 1998 in October 2000. Those principles were outlined and applied in the domestic judgment in the above-cited case of R v Ministry of Defence ex p Smith1. In the subsequent application to this Court by the same applicant, it was found that, even if his essential complaints under Art 8 of the Convention had been considered by the domestic courts, the threshold at which those courts could have found to be irrational the impugned policy prohibiting homosexuals from the armed forces had been placed so high that it effectively excluded any consideration by the domestic courts of the question whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lay at the heart of the Court's analysis of complaints under Art 8 of the Convention. The Court concluded that the remedy of judicial review, even on a “super-Wednesbury” basis, could not therefore constitute an effective remedy (within the meaning of Art 13) for a breach of Mr Smith's rights under Art 8 (see the above-cited judgment of this Court in the case of Smith and Grady v UK2, at §§35, 129-139). 139. The Court considers that it can be equally concluded for the purposes of Art 5§4 … that, even with the application of the “super-Wednesbury” principles on judicial review, the bar of unreasonableness would at the time of the applicant's domestic proceedings have been placed so high as effectively to exclude any adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention. This is indeed confirmed by the decision of the Court of Appeal, in a case where the necessity of medical treatment was contested by the patient (R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital, cited at para 63 above3), that pre-incorporation judicial review of necessity in accordance with “the super-Wednesbury” criteria was not sufficiently intrusive to constitute an adequate examination of the merits of the relevant medical decisions. 140. For these reasons, the Court finds that the requirements of Art 5§4 were not satisfied, as suggested by the Government, by judicial review and habeas corpus proceedings. … 141. The Government also contended, without elaboration, that a dissatisfied patient could bring a civil claim for damages for negligence, false

1 See [1996] QB 517, in which the Court of Appeal held that a higher standard of review in judicial review proceedings would be required when human rights were involved. 2 See (2000) 29 EHRR 493, in which the ECtHR held that the level of scrutiny allowed in domestic judicial review proceedings was not sufficient to provide an effective remedy for a breach of Convention provisions, as required by Art 13 3 See [2001] MHLR 224

imprisonment and for trespass to the person (technical assault consequent on detention for treatment) which actions would be “likely” to cause the hospital to justify its treatment of the patient without consent. The Government then proposed, without further detail, that the applicant could have invoked the declaratory jurisdiction of the High Court. However, the applicant did not allege that the relevant health professionals were negligent but rather that they had been incorrect in their diagnoses. His own action in false imprisonment and assault did not involve the submission of expert evidence by each of the parties or any assessment by the courts of that expertise and no case, decided at or around the relevant time, has been cited where such expertise was requested or such a merits review was carried out. As to seeking declaratory relief from the High Court, the Government have not cited any case decided around the relevant time where the High Court accepted that there was a “serious justiciable issue” to be examined by it in a case such as the present one where the patient was re-admitted and detained for assessment and treatment (which treatment was not of an exceptional nature) on the basis of a consensus amongst the health professionals that admission was necessary … 142. In such circumstances, the Court concludes that it has not been demonstrated that the applicant had available to him a procedure which satisfied the requirements of Art 5§4 of the Convention. There has been therefore a violation of this provision. … [Comment. On a conservative approach to this case, it could be noted that the facts were unusual, and in particular that HL had somewhere else to go – namely his carers, access to whom was regulated to prevent him wishing to leave hospital (thereby becoming a non-compliant patient), at which point he would have had to be placed under section and its procedural safeguards (both at the time of detention and thereafter). In para 91, the Court certainly emphasises the importance of the position of the carers. On a wider view, the central question is whether the professionals were concerned to ensure that HL remained in hospital and so would have made use of formal powers had HL sought to leave (the strength of this view as to where he needed to be explaining their attitude towards access by the carers): para 92 supports this view, the Court noting that the important question is not whether a ward is locked but whether it is lockable – ie that steps would be taken to prevent HL leaving should he try to. Whichever of these views is correct, the focus in relation to patients who do not have the capacity to determine whether to stay in hospital should be the Convention concept of loss of liberty rather than the domestic tort of false imprisonment. The latter concentrates on whether there is a lawful basis for action (which can come from the relatively imprecise concepts of common law necessity): the former involves a wider-ranging review of whether there is

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detention (ie exercise of control) and if so whether there is a legal regime in place which offers sufficient safeguards to prevent error. The reason why this should be the focus is that the Convention is now part of domestic law and will only not apply if, by virtue of s6(2) Human Rights Act 1998, a statute prevents public bodies operating in accordance with the Convention. There is nothing obvious in the language of ss2 or 3 Mental Health Act 1983 which prevents the use of formal powers in relation to a compliant incompetent patient who is detained: although s3 refers to treatment that can only be provided if the patient is detained under section, to argue that this allows the use of informal status and common law powers would be to ignore completely the HL decision and its emphasis on the need for formal safeguards. The decision also suggests that formal powers should not be lifted on the basis that a patient without capacity will remain as an informal patient, since the whole purpose of the HL decision was to emphasise the need for judicial oversight to ensure that loss of liberty was proportionate, and an informal loss of liberty still requires a process that complies with Art 5. See also Storck v Germany [2005] MHLR 211, in which the ECtHR emphasised that the importance of the right to liberty means that merely giving oneself up to detention does not amount to a waiver of Art 5 rights. The facts of that case related to a young woman attending a clinic with her father: that was held not to amount to consent to being placed there. In addition, those without capacity cannot give their consent to be in detention. The English courts have developed a significant body of case law on what amounts to a loss of liberty. For example, in the context of the monitoring of and restrictions on suspected terrorists, an 18-hour curfew plus geographic limitations on movement during the other hours and prohibitions on social visits without permission amounted to a deprivation of liberty: see Secretary of State v JJ and Others [2007] UKHL 45. In the context of those without capacity to decide where to live because of fairly common problems of old age (on the facts, a stroke and geriatric deterioration), it was decided that placement in a care home and a prohibition on returning to the own home to which the patient repeatedly expressed his wish to go amounted to a deprivation of liberty: JE v DE [2007] MHLR 39. It was then determined in Sunderland v PS [2007] MHLR 196 that the High Court could authorise detention under its inherent jurisdiction so long as it ensured that there were Convention compliant procedures in place (including a review process). The High Court must be satisfied that detention meets the requirements of Art 5(1)(e) ECHR on the merits. These developments do not mean, however, that all patients who are without capacity should be placed under detention (whether by use of the Mental Health Act 1983, the common law or the new procedure for detention of residents under Sched A1 to the Mental

Capacity Act 2005, as inserted by s50 of and Sched 7 to the Mental Health Act 2007, when that comes into force). There is a distinction between loss of liberty and restrictions on freedom of movement, though the two are on a continuum and which is involved may be a difficult question in some cases. (See the cases digested under Conditional Discharge and Guardianship for examples.) The main impact of the HL decision should be that hospitals (and registered establishments within s34 of the 1983 Act) involved in the care and treatment of patients such as HL should determine whether on the individual facts a patient is deprived of his or her liberty and, if so, should use formal powers to regulate this. When the case of such a patient comes in front of a tribunal, perhaps most likely on a reference under s68, it will have to determine whether or not the regime in place amounts to loss of liberty: if it does, the tribunal should not be quick to release the patient from section if the regime will remain the same (ie loss of liberty) since that would be to remove the protection of an independent review of whether detention remains proportionate. Naturally, it is to be hoped that the care team will be taking steps to move the patient towards a regime, perhaps in a different location, which does not amount to loss of liberty; the tribunal may be able to encourage this. But so long as there is detention, the tribunal should not end its role on the basis that informal status is sufficient, because the change of status from formal to informal will not change the reality of the situation. Any arguments about the need to avoid the disruption of using formal powers and having tribunal intrusion were part of the government’s argument in HL and were rejected by the Court. If the place of detention is not authorised for the purposes of the 1983 Act, the inherent jurisdiction of the High Court can be used. It might also be suggested that guardianship could be used, since it does allow control over residence: but para 13.8 of the Code of Practice notes that detention cannot be authorised under guardianship.] [Ch 4 was updated in April 2008]

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Chapter 5 Conditional Discharge and Deferred Conditional Discharge Under s73 MHA 1983, if a restricted patient does not meet the criteria for detention, a discharge must follow. This can be absolute or conditional, but the latter (with liability to recall by the Secretary of State and the possibility of conditions) is to be used unless the patient demonstrates that the discharge should be absolute (which brings the restriction order to an end). A conditional discharge can be deferred until any conditions that are set can be met. Note that the Secretary of State can also grant a conditional discharge and can amend any conditions imposed. The propositions arising from the case law are:

(i) the use of conditions can mean that the test for detention is no longer met; (ii) whether conditions amount to ongoing detention is a matter of fact, with account being taken of the purpose of the conditions; (iii) knowledge that conditions will not be put into effect does not make it unlawful for the tribunal to impose them; (iv) a deferred conditional discharge is a provisional decision that the tribunal must revisit to ensure that the patient is not left in limbo for too long; but this does not allow discharge whilst assessments are ongoing (v) a condition that a patient accept medication is and should be expressed as being subject to the right of the patient to give or withhold consent.

See ch 1, absolute discharge (including the need to reject a conditional discharge before granting an absolute discharge), and chs 12 and 13, relating to the rationality of decisions and the adequacy of reasons. See also ch 19(vi) for the proposition that it is a fundamental flaw if the Secretary of State is not allowed to comment on the material before a restricted patient’s tribunal. (i) Conditions may mean that detention is no longer proper See Campbell v Home Secretary [1988] AC 120, in which Lord Bridge stated at 127:

“... the answers to the questions (a)(i) whether or not the patient's disorder is "of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment," or (a)(ii) whether or not it is necessary for his own health or safety or for the protection of others "that he should receive such treatment," which must here mean treatment under detention, may be vitally influenced by the conditions which are to be imposed to regulate his life style upon release into the community. To take obvious examples suggested by the decision of the tribunal in this case, the tribunal may perfectly properly be satisfied that hospital detention is no longer necessary provided that the patient can be placed

in a suitable hostel and required to submit to treatment as an out-patient by a suitable psychiatrist. These are matters to be secured by imposing appropriate conditions.”

The same idea was expressed by Lord Bingham in IH (below) in the following terms:

“26. … the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised otherwise than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permits that possibility to be explored and, it may be, tried.”

(ii) Conditions - whether discharge – (a) that not leave hostel without escort 1. R (Home Secretary) v MHRT (PH as interested party) [2003] MHLR 202 CA (upholding [2002] MHLR 241 Admin Ct) Facts and outcome: PH was a restricted patient who had been detained at a high security hospital for 44 years; he was 77. He was given a deferred conditional discharge by a tribunal, including conditions that he reside at suitable specialist accommodation with full-time care and appropriate security and not leave it without an escort (which was put forward as a suitable basis for discharge with the agreement of the RMO). This was challenged by the Home Secretary, but upheld by the judge. The Court of Appeal dismissed an appeal noting that the distinction between restrictions on freedom of movement (Art 2 of Protocol 4 to the Convention) and deprivation of liberty (Art 5) is one of degree based on the intensity of the restrictions, not of nature or substance. An assessment must be made on the facts, taking account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question; the cumulative effect of the various restrictions must be taken into account. Further, the purpose of the restriction is also relevant: so measures taken principally in the interests of the individual who is being restricted may well not amount to a deprivation of liberty within Art 5(1). On the facts, the conditions were imposed because of PH’s need for care and assistance in light of his frailty and his long incarceration; the need for “appropriate security” was for his benefit, as it applied to protect patients with dementia and the like, rather than for the protection of the public; the conditions did not inevitably require a regime so restrictive that PH would be deprived of his liberty. The Court also commented that there can be a discharge even though a patient is required to reside in a “hospital” within

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the extended definition given in the 1983 Act, so long as he or she is not detained there. Judgment: Keene LJ (Kay LJ and Sir Anthony Evans agreeing) … 14. There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Art 5(1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Art 2 of Protocol no 4 and do not amount to a breach of Art 5. … 15. Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above. 16. Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Art 5(1) would arise. [The Court referred to Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland [2002] MHLR 2091.] 18. In the present appeal the Secretary of State’s case is that the effect of conditions 3 and 42 would be that PH would be confined within the institution in which he would reside save when it was possible to provide him with an escort to go out. His excursions into the community would therefore be in practice in the gift of the institution. … 19. … Since the distinction between deprivation of liberty and restrictions on freedom of movement is one of fact and degree … [the Secretary of State] has to demonstrate that the implementation of the conditions will inevitably involve the continued detention of PH. But he submits that such would be their necessary effect. 20. The judge below did not accept that, and neither do I. … [The judge referred to a witness statement from the president of the tribunal in which it was noted that the

1 HM v Switzerland is digested in ch 8 and includes reference to earlier ECtHR case-law. 2 Which were “(3) PH reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security; (4) PH shall not leave the accommodation without an escort.”

final decision as to discharge depended on the details of a care plan to be approved by the tribunal, and emphasised that the purpose of the conditions was PH’s need for assistance and care in respect of his own physical needs and institutionalisation rather than to protect the public.] 24. I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty. Condition 3 is sufficiently broadly phrased as to allow for measures which would fall short of such a deprivation, and both it (where it deals with security) and condition 4 have as their purpose the protection of PH himself and would therefore be in his interests. I should add that there is some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable PH to go out with an escort whenever he chose to do so. On this principal issue, therefore, I conclude that the conditions would not involve his transfer from one state of detention to another state of detention. They are therefore not ultra vires. 25. … If a patient is discharged from detention, that is still an effective discharge, even though he may be required to reside in another institution which qualifies as a “hospital.” So long as he is not detained there, the Tribunal has lawfully discharged him. 2. R (Home Secretary) v MHRT (MP as interested party) [2004] MHLR 273 Admin Ct Facts and outcome: MP was a restricted patient: he had been convicted of the manslaughter of a boy (and had previous convictions for indecent assault); a tribunal, having found that the danger of sexual abuse and violence he posed to children was dependant on his having unsupervised access to a victim, directed his conditional discharge, including conditions that he take anti-libidinal medication and reside at accommodation with qualified staff experienced in working with violent sexual offenders, and that he only leave that accommodation when escorted by a member of staff. A challenge to this decision by the Home Secretary was successful. The Court found that it was irrelevant that MP could be managed in accommodation outside a hospital if there was a need for security which would prevent him from leaving that accommodation or ever being on his own in the community, which was the purpose of the conditions: he remained deprived of his liberty, and so there was no valid discharge. Collins J … 12. It is clear that the tribunal in this case accepted that the claimant remained a real danger to young boys in particular if he was ever out in the community unescorted. … The purpose of the restrictions was to ensure that the claimant could not get out into the community unsupervised or unescorted. Thus he had to be prevented from leaving the accommodation without an escort and could, if he was out, never be

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left on his own. He could never therefore be at liberty because, if he was, he would be a danger to young boys. It is in my view quite impossible to argue that what is proposed could amount to anything less than a deprivation of liberty. The fact that MP could be managed in accommodation outside a hospital is nothing to the point if there is a need, as there is in this case, for security which will prevent him from leaving that accommodation or ever being on his own in the community. … 13. I have no doubt that the conditions imposed in this case would inevitably result in a deprivation of liberty. … (b) that patient reside in hospital – R (G) v MHRT [2004] MHLR 265 Admin Ct Facts and outcome: G, a restricted patient, had been transferred from high secure conditions in March 2000 and into a rehabilitation flat at that hospital in January 2003. On 15 July 2003, he was granted a deferred conditional discharge, with conditions including residence at a named hostel: but it would not accept him and efforts to find an alternative placement were unsuccessful. At a tribunal hearing to monitor the progress of the discharge, an application was made to amend the condition to one of residence in the rehabilitation flat (which would remain subject to regulation by staff). The tribunal did not accept that this would amount to a discharge, and so, in light of the inability to put the conditions of the discharge into effect, it was set aside. In judicial review proceedings, it was argued that the suggested condition was not a deprivation of liberty but a permissible restriction on freedom of movement; and that if it did amount to a deprivation of liberty, it was something he consented to and so he should be regarded as a voluntary patient. The application was dismissed: although a patient could cease to be detained but stay at the same hospital, G would have remained detained as the regime applicable would remain the same and its purpose was to protect the public; and there was a contradiction between being in hospital as a voluntary patient and being required to remain by a condition imposed by a tribunal. Collins J … 10. ... a patient is to be regarded as being detained within the meaning of the 1983 Act if he is in terms of Art 5 of the European Convention on Human Rights deprived of his liberty. … 13. Any detention of a mentally ill person for treatment may be regarded as in his best interests, but that cannot prevent such detention being a deprivation of liberty within the meaning of Art 5. ... The reality in this case is that, because no hostel can be found (and such hostel placement would have involved compulsory supervision), the only way forward is, it is submitted, a conditional discharge to Thornford Park, if that is lawful. ...

17. While I accept that it is possible for a patient to cease to be detained if discharged with a condition that he receive and is subject to supervision at the same hospital in which he is detained, it is difficult to see that that could occur when the regime and the purpose of the restrictions remain the same. ... … 21. In all the circumstances, I am not persuaded that there will be other than a deprivation of liberty if the condition of residence at Thornford Park is imposed. … 22. ... Mr Bowen raised an alternative submission. This was that, even if the claimant remained deprived of his liberty, the defendants could make the desired order because he would consent to the deprivation and should thus be regarded as a voluntary patient. ‘Discharge’ within the meaning of s72(1)(b) means discharge from liability to be detained, not discharge from a hospital. Reliance is placed on s131(1). 23. This argument is, I am satisfied, ill-founded. A conditional discharge does not operate as a discharge from a liability to be detained. So much is clear from the provisions of s73[(3) and (6)]. Furthermore, there is a contradiction between the concept of remaining in hospital as a voluntary patient and being required by a condition imposed by a tribunal so to remain. Section 131(1) only applies where there is no ‘order or direction rendering him liable to be detained under this Act’. In any event, I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal. A deprivation remains since the consent cannot convert into something else. … [See also the comment on ch 4(ii) for other case law relevant to what amounts to a deprivation of liberty.] (iii) Conditions that will not be put into practice - whether wrong to impose – R v MHRT ex p Russell Hall [1999] MHLR 63 CA Facts and outcome: H, a restricted patient, was granted a deferred conditional discharge by a tribunal, the conditions including residence and supervision. There were delays in putting the conditions into effect (in part because of disputes about who was responsible for providing aftercare), and action was taken against the aftercare authorities. An additional issue which arose was whether the tribunal erred in law in imposing conditions it knew would not lead to discharge because of difficulties in putting them into effect. The judge held ([1999] MHLR 49) that the tribunal was in error because in determining whether to impose any conditions and if so what conditions, it had failed to take into account H’s right to liberty and the fact that he was likely to be detained in hospital as a result of the conditions it imposed. The Court of Appeal overturned this finding: it held that although it is desirable that conditions imposed by a tribunal should be capable of implementation within a reasonable time, the prospect of delay cannot make it unlawful for it to impose conditions which are necessary and reasonable; and there is no requirement

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that the tribunal have a care plan setting out workable conditions before they can be imposed. The Court also indicated that the tribunal should have been more proactive on the facts in calling for further reports, including a care plan, or in calling witnesses. Kennedy LJ (Ward and Tuckey LJJ agreeing) … 19. The conditions which the Tribunal decided to impose (as to residence, medical supervision and social supervision) were not in any way unusual, and, but for the history, could not possibly have been challenged as in any way unreasonable. [The judge set out why on the evidence the conditions were reasonable.] 20. … It is important to recognise that there was no evidence to suggest that the conditions imposed were impossible although previous experience did suggest that they were likely to be difficult. … Obviously it is desirable that conditions should be capable of being met within a reasonable time scale. As the European Court of Human Rights said in Johnson v UK (1997) 27 EHRR 296 at 323 it is of paramount importance that when discharge is deferred it is not unreasonably delayed, but ... once the Tribunal has stipulated its conditions the burden is passed to the local authority and the health authority to make the necessary arrangements within a reasonable time (see s117 of the 1983 Act) and to the appellant to co-operate with arrangements which are made. … [The judge then referred to the view of the law at the time that the tribunal could not reconsider the matter and change the conditions imposed, but noted other methods which could be used, including a further application or referral to a tribunal and a complaint under the Local Authority Social Services Act 1971.] 21. … There are also, as the judge pointed out, ways in which a MHRT which foresees problems can exercise its powers to ensure that they are addressed at an early date. The Tribunal can adjourn, pursuant to r16 of the MHRT Rules 1983, to enable those involved to produce a care plan, and that period of adjournment can be finite. ... The Tribunal can, if necessary, call for reports (r15) and even summon witnesses such as directors of Social Services or chairmen of Health Authorities (r14) but in the end the Tribunal can only gather information and impose conditions. It may shame others into action, but it cannot otherwise ensure that its reasonable conditions are met within a reasonable time, and, if the statutory conditions are met it must discharge its own duty by ordering conditional discharge. So, as it seems to me, the fatal flaw in the judgment of the learned judge is that, in the last resort, the judgment blames the Tribunal for failing to exercise a power that it did not have. ... delay and non-compliance by the Local Authority and/or the Health Authority cannot convert the lawful imposition of conditions by the Tribunal into an unlawful decision, nor can the prospect of such delay and/or non-compliance prevent the Tribunal from imposing conditions which the Tribunal considers to be necessary, and which the court regards as reasonable. Furthermore, nothing in any statutory provision, or any

rule of procedure, requires the Tribunal to have available a care plan setting out workable conditions before those conditions are imposed. 22. I, like the judge, would like the Tribunal to have been more interventionist. I believe that a good deal might have been achieved by adjourning and calling for a care plan. If that did not work it might have been worthwhile to call for reports and even to summon one or two witnesses. The 1999 Code of Practice issued by the Department of Health shows, at para 27.7, that before a Tribunal hearing takes place relevant professionals and agencies should have met “so that suitable after-care arrangements can be implemented” in the event of the patient being discharged. That suggests that today, at least in embryo, plans should be available before a Tribunal hearing takes place, but the 1999 Code was not in force in April 1998 when the Tribunal met, and its predecessor, the 1993 Code, was less forward looking, suggesting in para 27.6 that a care-plan need only be formulated “when a decision has been taken to discharge”. Mr Gordon points out that, according to the Explanatory Note the new Code only expands, clarifies and updates the guidance given in the 1993 Code, but, as Mr Pleming points out, the Codes are directed to Health Authorities and Local Authority Social Services and not to Tribunals. Furthermore, although it may be desirable for a Tribunal which is aware of the history to do everything in its power to encourage other agencies to fulfil their statutory duties with reasonable expedition, that is a long way from saying that a Tribunal which simply discharges its obligations and leaves other agencies to discharge theirs is to be regarded as judicially reviewable because it did not do more. In my judgment, as a matter of domestic law, the challenge to the decision of the second Tribunal should have failed. The decision was not in any sense irrational or otherwise open to judicial review. [The judge then considered whether the application of Art 5 ECHR would make any difference were it yet part of domestic law: he concluded that whilst the case law, including Johnson v UK 27 EHRR 296, calls into question the efficacy of the measures available to ensure that reasonable conditions are complied with in a reasonable time “28. … Nothing in the Johnson decision suggests, for example, that a Tribunal should refrain from imposing a condition which it considers to be both necessary and reasonable, and nothing in that decision can vest powers in a Tribunal which Parliament has not entrusted to it.”] (iv) Deferred conditional discharge - provisional decision – R (IH) v Nottinghamshire Healthcare NHS Trust and Others [2004] MHLR 51 HL (upholding [2002] MHLR 77 Admin Ct, [2002] MHLR 87 CA) Facts and outcome: H was a restricted patient at a high secure hospital. A tribunal indicated that it was minded to discharge and adjourned for more information; at the reconvened hearing, in February 2000, it granted a deferred conditional discharge

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under s73(7) MHA 1983: the RMO and H’s local area medium secure unit were opposed to this. The conditions included psychiatric supervision, drug monitoring, residence at a suitable hostel and exclusion from the locality where his victim (his son) lived. However, no psychiatrist prepared to supervise H in the community was found. In judicial review proceedings, the issue arose as to whether the lack of statutory provisions to secure the implementation of the deferred conditional discharge within a reasonable time breached Art 5(4) ECHR. The matter proceeded to the House of Lords, which, in agreement with the judge and Court of Appeal, held that Art 5 required that s73(7) be interpreted to enable the tribunal to monitor a conditional discharge and to amend the conditions if necessary: previous case law to the effect that a tribunal was functus officio once it made a decision – Campbell v Home Secretary (Home Secretary v Oxford Region MHRT) [1988] AC 120 – was not followed. Guidance was given that a deferred conditional discharge should be treated as a provisional decision, and the tribunal should monitor progress towards implementing it so as to ensure that the patient is not left in limbo for an unreasonable length of time; the tribunal can amend its decision if fresh material shows that the patient’s condition has deteriorated or improved, or if it is not possible to put in place the arrangements necessary to enable the proposed conditions to be satisfied. There was no breach of Art 5(1) on the facts. The House distinguished between a patient who no longer met the criteria for detention under Art 5(1): if conditions to ensure that patient’s reintegration into the community cannot be met, the patient has to be discharged without specific conditions. But no such finding was made in relation to H: rather, he could be satisfactorily treated and supervised in the community only if the conditions set by the tribunal were met, the alternative being continued detention. There was, however, a breach of Art 5(4) from keeping him in limbo for too long. Lord Bingham (Lords Steyn, Hobhouse, Scott and Rodger agreeing) … 23. … the Court of Appeal … held the decision in the Oxford case ([1988] AC 120) to be incompatible with the Convention and ruled ...:

"71. Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the tribunal. Such material may, for instance, show that the patient's condition has relapsed. It may show that the patient's condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a

provisional decision, and the tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time."

24. In paras 90 and 91 of its judgment the court considered 2 different situations, in these terms:

"90. Where the tribunal is not satisfied that a restricted patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, the tribunal must discharge the patient, either absolutely or conditionally. That is the effect of s73(1) and (2) when read together with s72(1)(b)(i). The effect of those provisions reflects the first of the 3 requirements in Winterwerp 2 EHRR 387. In order to comply with Winterwerp and Johnson 27 EHRR 296 a conditional discharge must not be deferred under s73(7) beyond a reasonable limited period. After that the tribunal must discharge the patient whether or not it has proved possible to put in place arrangements to accommodate the conditions that the tribunal originally wished to impose. If it has not, then the tribunal should make appropriate modification to the conditions so that it will be possible for the patient to comply with them. Thus far there is no incompatibility between the Act and the Convention. 91. It is possible that a tribunal may conclude that a patient is still suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, that this is no longer of a nature or degree that makes it necessary that the patient should be detained in hospital for treatment, even if he cannot receive treatment in the community, but that it is appropriate that the patient should be subject to recall. In such a situation the tribunal may defer discharge for a reasonably limited period to enable arrangements to be put in place for a conditional discharge. If, however, the preferred arrangements prove impossible, the tribunal must make appropriate modifications to the conditions and direct the discharge of the patient. Such a course is necessary because in this situation the second and third requirements in Winterwerp will not be satisfied."

The Court of Appeal then turned (in para 92) to the "critical impasse" which occurs

"where a tribunal considers that it is necessary for the health or safety of the patient or the safety of others that the patient continues to receive psychiatric treatment, and that it is reasonable for such treatment to be provided in the community, but the psychiatrists who would have to provide such treatment refuse to do so because they disagree with the tribunal's view that the patient can safely be treated in the community."

The court resolved that impasse...:

"96. We consider that in a case such as the present the provisions of s73 of the Act operate as

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follows. Where a tribunal decides (i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of other persons and (ii) that detention in hospital for that treatment is not necessary if, but only if, psychiatric treatment is provided in the community, the tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangements to be made for providing psychiatric treatment in the community. The health authority subject to the s117 duty will then be bound to use its best endeavours to put in place the necessary after-care. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the health authority is unable to provide the necessary services, the tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision."

In para 98 of its judgment the court made the following summary:

"The following summary of the position of a tribunal considering the conditional discharge of a restricted patient substantially accords with submissions made to us on behalf of the Secretaries of State.

(i) The tribunal can, at the outset, adjourn the hearing to investigate the possibility of imposing conditions. (ii) The tribunal can make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under s117 of the Act make the necessary arrangements to enable the patient to meet those conditions. (iii) The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place. (iv) Once the arrangements have been made, the tribunal can direct a conditional discharge without holding a further hearing. (v) If problems arise with making arrangements to meet the conditions, the tribunal has a number of options, depending upon the circumstances; (a) it can defer for a further period, perhaps with suggestions as to how any problems can be overcome; (b) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered; (c) it can order a conditional discharge without specific conditions, thereby making the patient subject to recall; (d) it can decide that the patient must remain detained in hospital for treatment. (vi) It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be

unable to comply because it has not proved possible to make the necessary arrangements."

In its conclusion (para 100) the court held that the appellant's right under Art 5(1) had been violated, but only because the wording of s73, before its amendment in 2001 by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), permitted detention to be continued provided the tribunal was not satisfied that the patient was not suffering from a relevant mental disorder rather than where the tribunal was satisfied that the patient was suffering from such a disorder: see R (H) v London North and East Region MHRT [2001] MHLR 48, [2002] QB 1. Conclusions … 26. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court. What Art 5(1)(e) and (4) require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in Art 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised otherwise than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permits that possibility to be explored and, it may be, tried. 27. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's Art 5(4) right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in para 71 of its judgment quoted above. Evidence before the House shows that that ruling is already yielding significant practical benefits. Mr Owen was, I think, right to submit that the tribunal could have achieved the same result, consistently with the Oxford case, by a judicious use of its power to adjourn and by proleptic

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indication of the conditions it had in mind to impose, but it is undesirable to restrict the procedural freedom of tribunals in a field as important and sensitive as this, where personal liberty and safety and public protection are all at stake: the outcome should not turn on procedural niceties. [The judge then noted that on the facts there was no time when H did not meet the Winterwerp criteria, and so there was no breach of Art 5(1)(e) because the grounds for detention continued: he was not like the applicant in Johnson v UK – who no longer had a mental disorder – but was a person who “could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention”.] 29. The duty of the health authority, whether under s117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist. Thus the appellant can base no claim on the fact that the tribunal's conditions were not met. This conclusion makes it unnecessary, in my opinion, to address a question on which the House heard argument, but which was not considered below, whether in a context such as this psychiatrists were or could be a hybrid public authority. … [Note: in IH v UK [2005] MHLR 252, the ECtHR declared IH’s application to it inadmissible because (i) the Art 5(1) criteria for detention were always made out, and a requirement that the aftercare authorities use their best endeavours to comply with tribunal imposed conditions was adequate to prevent arbitrariness; (ii) IH was no longer a victim for the purposes of Art 5(4) as he had been granted a remedy – namely a declaration in the domestic proceedings. On the same day, in Kolanis v UK [2005] MHLR 238, the Court held that the regime applicable prior to the IH decision in the domestic courts had amounted to a breach of Art 5(4), since it prevented consideration of any new issues arising affecting the lawfulness of detention from the fact that conditions set by a tribunal were not being put into effect. In (W) v Doncaster MBC [2004] MHLR 201 CA, Scott Baker LJ stated, in relation to a claim against an aftercare authority for delays in putting a conditional discharge into effect: “70. ... It would be helpful in cases such as the present, where the patient continues to suffer from an underlying mental illness which can only be managed in the community provided the conditions imposed are implemented, if the tribunal says so when it makes the conditional discharge

order. ...” One of the issues in that case had been whether or not the patient met the criteria for detention under Art 5(1): the Court held that the tribunal decision properly interpreted meant that he met the criteria for detention unless and until the conditions were in place. The guidance given suggests that the tribunal should make plain in its reasons what its assessment is. The possibilities seem to be: (i) the patient is not mentally disordered, in which case there is no basis for detention if any conditions imposed, likely to be to assist the transition to the community, are not fulfilled in a reasonable time (and there may be good grounds to consider an absolute discharge); (ii) the patient is mentally disordered but not of the necessary nature or degree to warrant detention; in this case, the conditions, likely to be to allow ongoing monitoring, should be modified to allow release if they are not put into effect within a reasonable time; (iii) the patient is mentally disordered so as to merit detention unless a conditional discharge regime is in place which will allow his release; in this case, the failure to meet conditions does not require that conditions necessary to allow discharge be lifted. There are grey areas between these categories: for example, a patient’s disorder may not be of a nature or degree at the present to justify detention, but there may be real risks of relapse which require close ongoing monitoring: it may be open to argument whether on the particular facts, the disorder in such a case is of a nature to place the patient within category (iii) as opposed to being in category (ii).] Deferred conditional discharge – not allow discharge whilst assessments ongoing – R (Home Secretary) v MHRT (PG as Interested Party) [2002] MHLR 381 Admin Ct Facts and outcome: A tribunal ordered the deferred conditional discharge of G, citing a recent significant improvement in his recurring mental illness, his willingness to participate in treatment groups dealing with alcohol, drug abuse and illness awareness, and a forthcoming programme of community leave; it suggested that 6-8 months was an appropriate period to continue the assessment of G and find suitable accommodation. The decision was quashed on the basis, inter alia, that a deferred conditional discharge, even though it was provisional, was not proper when it depended on an assessment not yet completed. Newman J … 29. ... Deferral under s73(7) is permitted for the express purposes of ensuring that such arrangements as appear to the tribunal to be necessary for the conditional discharge have been made to the tribunal's satisfaction. … 32. … Contrary to Mr De Mello's submission, this was in my judgment a “wait and see” decision; not for the proper objective of seeing whether the nature of the accommodation was to be available or for other matters in connection with arrangements, but for the

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purpose of seeing the results of the therapeutic assessment and the results of the community leave, which the tribunal anticipated would be taking place, as a response to their exhortation to the Secretary of State to change his view and to permit it. (v) Condition that patient accept medication – remains matter for patient’s choice - R (SH) v MHRT – [2007] MHLR 234 Admin Ct Facts and outcome: SH, a conditionally discharged restricted patient, challenged a condition that he comply with medication prescribed by his treating psychiatrist: he argued that the general language in ss73 and 75 of the 1983 Act allowing conditions to be imposed, as limited by the principle of legality, could not be used to override fundamental rights such as whether to accept medication. The judge held that any power to require a patient to accept medication irrespective of consent would require specific statutory language such as found in Part IV of the Act, the consent to treatment provisions, which did not apply to a conditionally discharged patient. Consequently, the condition that SH accept medication did not override his fundamental rights as the medical professionals involved in providing medication by injection to SH had to be satisfied on each occasion that he consented. He also held that a tribunal should not impose a condition requiring medication unless the patient does and will consent to treatment. As that was factually so in SH’s case, the condition was justifiable. The judge suggested that a condition that a patient accept medication should be accompanied by a phrase such as "subject always to his right to give or withhold consent to treatment or medication on any given occasion". Holman J: ... [The judge set out the power to impose conditions.] 18. The references to conditions are entirely general and open ended and there are no express words in ss73, 75 or elsewhere limiting the scope or effect of any condition which may be attached. Clearly, however, the law imports or requires some limitations. A condition could not lawfully be capricious and must be relevant and for a proper purpose within the scope of the statute. It is not suggested that condition 1 [ie the condition relating to medication] is not relevant and for a proper purpose. ... 19. Mr Hugh Southey, on behalf of the claimant, submits that s73(4)(b) is subject also to the principle of legality ... 20. I fully accept that that principle applies to this case and operates as a limitation to the scope of a condition which may lawfully be imposed. The question in issue, however, is whether condition 1, properly understood and applied, does override any fundamental right of SH. ...

35. In my view, this claim fails both on the law and on the facts. The law with regard to consent to treatment is clear .... An adult of full capacity has an absolute right to choose whether to consent to medical treatment. That applies to every aspect of treatment and every occasion of treatment. Thus in this case, on each occasion that SH attends, or should attend, for his fortnightly depot injection he has an absolute right to choose whether to consent to it or not. The treating doctor or nurse must, on each occasion, satisfy himself that the apparent consent is a real consent and that the independence of the patient's decision or his will has not been overborne ... The tribunal must be presumed to know the law and, in my view, condition 1 is intended to be, and should be, read as subject to the general law. 36. [The judge noted that there was no sanction for failure to comply with a condition, and that recall would not automatically follow but could only occur “on the basis of up to-date medical evidence as to risk to the patient or others”.] 37. It thus follows, in my view, that condition 1 ... must be read as respecting and being subject to his own final choice, which must be his real or true choice. 38. [The judge noted that “Any pressure upon SH is from the continuing conditional nature of his discharge, not from condition 1 itself.”] 39. This approach no doubt requires that a tribunal should not attach a condition in, or similar to, the terms of condition 1 unless there is a proper basis for anticipating that the patient does, and will, consent to the treatment. [On the facts] ... there was, and is, no infringement at all of his absolute right to choose. It was eminently justifiable to attach the condition ... 40. If, contrary to my above view, imposition of a condition does interfere with any Art 8(1) right, then, on the facts of the case, (1) that interference is plainly justifiable and proportionate in terms of Art 8(2); and (2) adequate procedural safeguards are provided by the tribunal hearing before the condition was imposed and the availability of judicial review or a further tribunal hearing if ... the Secretary of State were arbitrarily to recall SH merely for breach of the condition. ... 42. I make the concluding comment that in my view it would be preferable for a tribunal, when imposing a condition similar to condition 1, to make express what I have held to be necessarily implicit. It would be better if there were added to condition 1 some such words as "subject always to his right to give or withhold consent to treatment or medication on any given occasion". ... [Ch 5 was updated in April 2008]

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Chapter 6 Detention and Discharge The following discrete issues are covered: (i) the relevance of the admission criteria, (ii) the test to be applied by a tribunal following the making of a barring order, (iii) the regime applicable if there are displacement proceedings, (iv) the level of in-patient treatment required for liability to detention to be appropriate, (v) the nature or degree and appropriateness of detention, (vi) the necessity test, (vii) the circumstances in which redetention is appropriate following a tribunal ordered discharge, (viii) risk assessment, and (ix) the different purposes of s2 and s3 detentions. The following topics are covered in separate chapters: ch 1, Absolute Discharge; ch 5, Conditional Discharge. See also ch 4, Capacity – Patients Without, which deals with detention under common law. However, it should be noted that there is no legal obligation to abide by conditions included in a conditional discharge and the power of recall depends on the mental condition of the patient warranting recall: Kay v UK (1998) 40 BMLR 20. It will be a question on the facts whether mere failure to abide by conditions is a sign of deterioration in mental state. (i) Admission criteria – relevance The criteria for discharge in ss72 and 73 do not mirror for the criteria for admission under ss2 and 3 or continued detention: in particular, there is no mention of treatability in ss72 or 73, the criteria for admission under s37 do not include a “necessity” test, and the renewal criteria under s20 are different (since there is a general treatability requirement with an alternative that those who are mentally ill or severely mentally impaired can be detained if they are unlikely to be able to care for themselves or guard themselves against serious exploitation. However, the propositions arising from the case law are:

(i) the treatability test relevant to admission under the category of psychopathic disorder has to be met when consideration is being given to discharge (and so also in relation to mental impairment); (ii) consideration should be given to whether the admission criteria are met.

1. Discharge test includes treatability of psychopathic disorder - Reid v Secretary of State for Scotland [1999] 2 AC 512 HL Facts and outcome: R, who had been convicted of culpable homicide, was a restricted patient in Scotland: his ongoing detention under the Mental Health (Scotland) Act 1984 was on the basis of a mental disorder “manifested only by abnormally

aggressive or seriously irresponsible conduct” (similar to psychopathic disorder in s1 of the 1983 Act in England), although he had been diagnosed under the category of mental deficiency when convicted. Under s17 of the 1984 Act, a patient can only be “admitted to a hospital and there detained” on the basis of psychopathic disorder if treatment in hospital “is likely to alleviate or prevent a deterioration in his condition”. In judicial review proceedings, the issue arose as to whether the treatability requirement was part of the test for discharge, since s64 of the 1984 Act provides for discharge if the patient is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment or it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment (ie without any express reference to the treatability criteria). The House of Lords held that the requirement in s64 that the sheriff be satisfied as to liability to detention for treatment meant that the provisions of s17 were to be read into the test for discharge, so that a patient suffering from psychopathic disorder could only be detained if treatment was likely to alleviate or prevent a deterioration in his condition. Lord Hope ... (525E) Section 64(1) of the Mental Health (Scotland) Act 1984 sets out three conditions to which the sheriff must direct his attention when he is considering whether or not to direct the patient's absolute discharge. The first two are stated in the alternative. The third is one as to which he must be satisfied in either case. They are set out in the subsection in these terms:

"(a) that the patient is not, at the time of the hearing of the appeal, suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (b) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and (in either case) (c) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment."

... (527C) ... [t]he language [of s17 and s64] is different because in the case of an application for admission to a hospital it must be shown positively that all the relevant conditions are satisfied. An application for discharge requires that these issues be addressed negatively, because it will be enough that one of the relevant conditions for admission to a hospital is not satisfied. But there is a sufficient link between the language of the two subsections to show that the conditions are the same. This is to be found in the phrase "which makes it appropriate for him to be liable to be detained in a hospital for medical treatment" which appears in s64(1)(a). ...

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(528G) It seems to me that, in the case of the person in whose case the "treatability" test requires to be satisfied, the question as to whether the "appropriateness" test is satisfied cannot be addressed unless and until the treatment which one is talking about has been identified. The "treatability" test refers to "such treatment," as also does the "safety" test. The effect of the "treatability" test, where it applies, is to define the treatment which needs to be considered in order to see whether all three tests can be met. It is only if the "treatability" test is satisfied that it will be necessary to consider whether it is appropriate that that treatment should be received by the person in a hospital and, if so, whether it is necessary for his health or safety or for the protection of other persons that he should receive such treatment. No good purpose would be served by considering the "appropriateness" test first in those cases which must pass the "treatability" test. ... Lord Clyde: ... (535C) It is to be noticed that while s17(1) refers to it being appropriate to receive medical treatment in a hospital, s64(1)(a) refers to it being appropriate to be liable to be detained in a hospital for medical treatment. The distinction between these phrases is of significance. ... in order to have the status of one who is liable to be detained it will be necessary that all the terms of s17(1) have been satisfied. ... (536E) ... The express addition of the words "for hospital treatment" in the statutory formula contained in s64(1)(a) seems to me significant. The propriety which is to be assessed is not just a propriety for detention, but a propriety for detention in hospital for medical treatment. The medical treatment for which the patient is to be detained may vary according to the nature and degree of his disorder. In the case of the psychopath the treatment must be such as is likely to alleviate or prevent a deterioration of his condition. ... Lord Hutton ... (549A) ... when s64(1)(a) refers to mental disorder of a nature or degree which makes it "appropriate for him to be liable to be detained in a hospital for medical treatment," the treatment referred to is treatment which "is likely to alleviate or prevent a deterioration of his condition." ... 2. Tribunal must consider admission criteria – but not required ask question expressly (a) R v London South and South West Region MHRT ex p Moyle [1999] MHLR 195 Admin Ct Facts and outcome: M was a restricted patient whose illness was controlled by medication; the psychiatric evidence was that his condition would not lead to him being detained afresh, but that he would relapse if he did not take his medication and pose a danger to himself or others. The tribunal rejected a submission that the criteria for admission and discharge mirror each other in relation to mental

illness, and that accordingly M should be discharged as he did not meet the former. (It also concluded that, as it did not accept M’s assurances that he would continue to comply with medication in the community, they were not satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained.) In judicial review proceedings, M argued that (i) as the tribunal was a reviewing body it was bound to discharge as the criteria for admission were not met; and (ii) it failed to direct itself that the admission and discharge criteria mirrored each other. The Court held that, although the tribunal has an original jurisdiction rather than a reviewing one and so may disagree with the evidence in front of it, it has to apply the same criteria as for admission (subject, at the time, to a reversed burden of proof). The decision was quashed as the tribunal had misdirected itself in law. Latham J … 32. ... the Tribunal ... accepted [that M suffered from schizophrenia]. They also accepted ... that the illness was not of a degree that made it appropriate for him to be liable to be detained, because it was in complete remission. They determined, however, from their own assessment of the risk of the applicant failing to comply with medication, that they could not be satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained in hospital for medical treatment. They further, for the same reason, concluded ... that they were not satisfied that it was not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment. They differed, therefore, from the psychiatrists in the assessment of risk. ... The Tribunal was not only entitled, but bound, to come to its own conclusions as to the risk of the applicant failing to comply with his medication. And there was material from which they could conclude that risk was significantly greater than had been assessed by the psychiatrists. The value judgments which had to be made in the light of that assessment of risk were also judgments to be made by the Tribunal. 33. I accept ... that the decision in Reid requires the question of discharge to be approached on the basis that the criteria for discharge are meant to be matching or mirror images of the admission criteria. But I do not accept ... that the Tribunal was bound by the opinions of the psychiatrists, either as to risk, or as to the value judgment as to whether it was no longer appropriate for the applicant to be liable to be detained for treatment or that it was necessary for the health or safety of the patient or for the protection of others that he should receive such treatment. 34. ... the patient applying for discharge is ex hypothesi in a different situation from the person who is in the community. As a patient, he or she is receiving care and medication in the controlled environment of the hospital and not when free to exercise his or her own wishes. In a case like the

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present, the assessment of risk this must involve a judgment as to the extent to which release into the community will give rise to the likelihood that he or she will not comply with medication, with the consequences described by the psychiatrists. ... 35. The first question the Tribunal had to decide was whether or not the applicant was suffering from a mental illness. The evidence was clear. He was suffering from schizophrenia. The Tribunal then had to decide the nature and degree of that illness. As far as its degree was concerned, they decided that the illness was in remission by reason of medication. They decided however that the nature of the illness was such that, absent medication, it would relapse very rapidly on cessation of medication and would thereafter become substantially more difficult to control. They further decided that insofar as the Applicant’s eligibility for discharge depended on his continued compliance of medication they could not be satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to detained in a hospital for medical treatment. 36. ... The ... nature of the illness of a patient such as the applicant is that it is an illness which will relapse in the absence of medication. The question that then has to be asked is whether the nature of that illness is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment. Whether it is appropriate or not will depend upon an assessment of the probability that he will relapse in the near future if he were free in the community. That value judgment has to be exercised in the context of the reversed burden of proof. If the Tribunal are not satisfied that there is no probability of relapse in the near future, they would be unlikely to be able to conclude that this criteria had been satisfied. I have derived this formulation of the appropriate test from a passage in a book called “Mental Health Review Tribunals, Law and Practice” by Mr Anselm Eldergill. In this book at p213, he states:

"Where there is evidence of mental disorder, the use of compulsory powers requires that it is of a “nature or degree” which either makes in-patient treatment appropriate or warrants the patient’s detention for assessment or reception into guardianship (“the diagnostic question”). Practitioners and Tribunals commonly confine their consideration of a patient’s mental state to the degree of mental disorder present, seemingly interpreting the words “nature” and “degree” as essentially interchangeable. Accordingly a patient is considered not to be detainable if his condition has responded to medication and is no longer acute. This approach takes no real account of the nature of the particular disorder and mistakenly quotes its “degree” with its “severity”. As such, there is a failure to give due weight to the chronicity of the disorder and prognosis... “Nature” Many mental disorders wax and wane because they are cyclical in nature, because the patient

enjoys periods of remission - for example, during periods of low stress - or because they are intermittently alleviated by a course of treatment. A particular patient may have a long history of re-admissions indicative of a severe, chronic condition which is resistant to treatment or a record of poor compliance with informal treatment following previous discharges. Although the degree of disorder may be quite low at any given time, either in absolute terms or relative to his known optimum level of functioning, the serious nature of the disorder is revealed by its historic course. Likewise, with illnesses or recent onset, the prognosis associated with the diagnosis may point strongly towards the probability of a serious, further deterioration of the patient’s condition in the near future. In both instances it may be the nature of the disorder rather than its degree which brings the patient within the first of the grounds for making an application... ... ... it is not necessary as a matter of law to wait until the condition becomes acute before compelling the patient to receive the treatment which will prevent the otherwise inevitable further decline. Mental Health Review Tribunals Within the context of s3 Tribunal proceedings, a patient may have responded to treatment and be in remission by the time the hearing takes place. As such, and given the importance which attaches to a citizens liberty in English Law, the degree of mental disorder which remains may be insufficient to warrant a continuance of his liability to detention. The Tribunal is not, however, obliged to discharge unless it is also satisfied that the nature of the patient’s disorder, evidenced by his medical history or the outcome usually associated with such condition, also makes liability to detention inappropriate. Similarly, where the degree of disorder apparently at the time of the hearing is quite low but the patient’s recent mental state has been subject to marked fluctuations, the nature of the disorder may mean that the Tribunal cannot be satisfied that the first of the grounds for discharge is made out."

... 38. These passages seem to me to be helpful in providing the key to understanding the way in which the admission and discharge criteria can be given equivalence, which, in my judgment, is required by the decision of the House of Lords in Reid ... 39. It follows that the Tribunal in the present case did not ask themselves the right question when considering this aspect of the case. By expressly disavowing the relevance of the admission criteria, I consider that they were wrong in law. 40. Further, and in any event, the Tribunal failed to deal adequately with the question of whether or not it

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was necessary for the health or safety of the patient or for the protection of other persons that he should receive hospital treatment. The Tribunal was obliged to consider this as a discrete question. The test of “necessity” is different from the test of “appropriateness”. It may well be that the facts found by the Tribunal to support the conclusion that the patient does not satisfy the criteria relating to “appropriateness” may determine the question of whether or not he or she has satisfied the criteria in relation to “necessity”. But that will not inevitably be the case. However, it is fair to say, that if the test that I have formulated as the test in relation to “appropriateness” cannot be met by a patient whose mental illness is of a nature which, untreated, may result in danger to himself or others, that is likely to be sufficient to justify the conclusion that he cannot meet the “necessity” test; nonetheless, the statute requires that both issues be resolved. (b) R v MHRT, London North and East ex p H [2000] MHLR 242 Admin Ct Facts and outcome: In its reasons for not discharging a restricted patient from high secure conditions, but to recommend a transfer to medium secure conditions, a tribunal commented that the admission and discharge criteria do not mirror each other. This was challenged in judicial review proceedings as an error of law. The application was dismissed on the basis that it was not fatal if a tribunal decision does not expressly consider whether the patient meets the admission criteria, so long as it has considered the discharge criteria and effectively considered all the criteria relevant to admission. Crane J … 51. In my view, it is not fatal to a decision of a MHRT if it does not consider, or include in its reasons, a specific answer to the admission criteria question. ... in my view, provided a tribunal considers the discharge criteria, and provided in the process it has effectively considered all the criteria that would be relevant to admission, its decision is not flawed simply because it does not ask itself separately the question whether admission criteria would be fulfilled. It may very well be a helpful exercise to do so, but in the circumstances I have outlined, it is not fatal if that is not done. 52. Moreover, if the question is asked, namely would the admission criteria be fulfilled if this patient presented today, that question undoubtedly requires amplification in the case of a patient detained in hospital. If a doctor is considering admission criteria, he must ask himself whether there is a risk of failure to take medication in the future and of a consequent deterioration. So, similarly, if the patient is already in hospital, a similar question must be asked. If he is no longer in hospital, to what extent is there a risk of a failure to take medication and of consequent deterioration? It would plainly be too simplistic a

question simply to ask, if he were as he is today, would he qualify for admission? … 67. Of course, if, as in Moyle, in the light of Latham J’s finding, the Tribunal specifically direct themselves that the criteria are different, that may well lead to a conclusion that they misdirected themselves. In the present case, the specific questions which arose under the Act, and which mirrored, although in slightly different layout, the usual admission criteria, were answered “no”. In my view, it must be taken that the Tribunal did honestly and conscientiously consider those questions. Of course, when one is simply asked, to put it colloquially, to tick a box, one then looks carefully to see whether reasons are given for the conclusion come to. …

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(ii) Barring order – tribunal following In relation to a s3 patient, the nearest relative may apply to a tribunal (under s66(1)(g)) if he or she has sought to discharge the patient under s23 and this has been barred under s25: the tribunal has to then consider the more stringent s25 dangerousness criteria (see s72(b)(iii)). However, note that the nearest relative may not act under s23 in relation to a patient detained under a hospital order, and so neither s25 nor s72(b)(iii) can apply; instead, the nearest relative may apply to a tribunal under s69(1). (See R (Central and North West London Mental Health NHS Trust) v MHRT [2005] MHLR 183 for an example of a tribunal making an error in this regard.) The propositions emerging from the case law are:

(i) a discharge under s72(b)(iii) may be deferred; (ii) a tribunal sitting in relation to a s2 patient where a barring order has been issued is not obliged to consider the dangerousness criteria.

1. Whether power to defer - R (B) v MHRT – [2003] MHLR 218 Admin Ct Facts and outcome: B, the nearest relative, made an application under s23 MHA 1983 to discharge the patient; this was barred by the RMO under s25, and B then applied to a tribunal. The tribunal discharged the patient, but used its power under s72(3) to defer discharge for 5 weeks to allow an appropriate aftercare package to be put into place. In judicial review proceedings, it was held that there was a power to defer discharge since it is possible that a patient who, if released immediately, would be likely to act in a manner dangerous to self or others, would not if proper aftercare arrangements were in place. On the facts, although the tribunal had not in its reasons mentioned the need for an aftercare package to prevent dangerous behaviour, that could have been met on the facts. Stanley Burnton J … 8. ... In my judgment, it is quite clear that s72(1)(iii) and s72(3) must be read together. The phrase "if released" in s72(1)(b)(iii) does not necessarily refer to immediate release. It would also take into account a future release, that is to say a release on a future date as envisaged by s72(3). If a Tribunal, on the evidence before it, comes to the conclusion that a patient, if released immediately, would be likely to act in a manner dangerous to other persons, or to himself or herself, but that if proper aftercare arrangements are put in place that will not be the position, in my judgment, it is clear that the Tribunal may make an order for a deferred discharge under s72(3) deferring discharge to a date when it is reasonably assured that the appropriate aftercare arrangements will be in place. ... 10. … In the present case, the Tribunal came to the conclusion that the word "dangerous" required it to be established that the patient would act in a manner

which was likely to cause serious psychological or physical injury to herself or others if the barring order was discharged. Also, that the word "likely" in s72(1)(b)(iii) required that there be a probability, rather than a significant or substantial possibility, of the danger anticipated in relation to the patient would eventually eventuate. Again, I say nothing about the correctness of those interpretations of the test in s72(1)(b)(iii). I approach this application on the basis that the Tribunal correctly applied the statutory test. ... 12. ... Having reviewed the evidence before the Tribunal, which included evidence that the patient had in the past completely refused to eat or drink, thinking that food and drink was poisoned, I conclude that it would have been open to the Tribunal to find that the patient might present a danger to herself. In my judgment, such a risk is a risk of a patient acting in a manner dangerous to herself, because a prolonged refusal to eat clearly would endanger her health and might even endangered her life. There were other risks set out in the material before the Tribunal to which I need not refer. [The judge also commented that it would not be practicable to have a full hearing before the deferral period was at an end in any event.] 2. Section 2 patient – whether duty to consider dangerousness criteria - R (MH) v (1) Secretary of State for Health (2) MHRT [2004] MHLR 155 Admin Ct Facts and outcome: see also ch 4. The nearest relative of a s2 patient sought to use her s23 power of discharge; this was barred under s25. An application was made to place the patient under guardianship: the nearest relative objected and displacement proceedings were commenced, which had the effect of extending the s2 period. During the extension period, the case was referred to a tribunal by the Secretary of State (under s67); the tribunal declined to apply the dangerousness test on the basis that s72 refers to that test only in relation to a s3 patient. In judicial review proceedings, the tribunal decision was upheld on the basis that the tribunal was not obliged to consider the dangerousness test in relation to a s2 patient, and had not erred in exercising its discretion not to apply that test. Silber J … 78. I consider that the Tribunal was correct to find that the dangerousness of the claimant was not a matter which the Tribunal had to consider for 9 separate overlapping reasons. First, it is significant that, whereas the dangerousness criterion is set out in relation to one category under s3, there is no similar criteria in respect of those detained under s2 of the 1983 Act, which requires detention if the patient suffers from an appropriate mental disorder and he ought to be “so detained in the interests of his own health and safety with a view to the protection of other persons”.

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79. Second, Parliament did not accidentally omit the criterion of dangerousness in s72(1) of the 1983 Act. Significantly, it made express reference to it in the very next paragraph of the same subsection (s72(1)(b)(iii)) ... If Parliament had intended the Tribunal to be under a duty to take the dangerousness criteria into account in a case outside the narrow category specified in s72(1)(b)(iii), it would have said so expressly. 80. It is a settled rule of statutory interpretation that in such a case, the omission of the dangerousness criterion in respect of a patient whose detention is being considered under s2 of the 1983 Act should not be regarded as an accident but that it should be construed a deliberate decision by Parliament, which should be respected by the courts. In other words, in the light of the provision in s72(1)(b)(iii) of the 1983 Act, if Parliament had intended that dangerousness of a patient should be considered by a Tribunal before detaining a patient held under s2, it would have said so specifically but its failure to do so shows what Parliament intended. [The judge distinguished the case of R v Riverside Mental Health Trust ex p Huzzey (1998) 43 BMLR 167, in which the failure of hospital managers to consider the dangerousness criteria when determining whether to exercise their discretion to discharge under s23 in relation to a s3 patient whose nearest relative application to discharge had been barred was held to be an error of law, on the basis that no criteria had been set out by legislature under s23, and so Parliament had left it to the courts to work out the criteria. In contrast, as Parliament had set criteria in s72(1)(a), “84. so that, beyond the considerations which Parliament has specifically required the Tribunal to take into account, it was for the Tribunal to say what would be and what would not be relevant to its decision, subject only to Wednesbury review. Therefore, although the Tribunal may consider the question of dangerousness, it was not obliged to do so. Whether it does so will depend on its assessment of the facts of an individual case.”] 85. … In this case, having concluded that the detention criteria were met, the Tribunal was faced with a choice of two options, namely the continued detention of the claimant or her discharge into the care of her mother, in which case the claimant “would be at an unacceptable level of risk to her health and well-being”. This would or might explain why the Tribunal concluded that, irrespective of whether the dangerousness test was met, it would not be in the interests of the claimant to be discharged so as to return to her mother. Even if the claimant was not a danger to others or to herself, she would still be at an unacceptably high risk if she returned to the family home. In the light of this conclusion, I consider that it would have been a waste of valuable time for the Tribunal to have spent time hearing evidence directed to whether the dangerousness criterion was satisfied.

86. Fifth, I am unable to accept Mr Bowen’s contention that s3 of the HRA requires that s2 of the 1983 Act should also include a requirement of dangerousness. No cogent reason was put forward why s2 has to be read in that way, especially as it is not a requirement that has to be satisfied under ECHR law before a person of unsound mind can be detained. … 88. Sixth, it would mean that in every s2 case, the court would have to consider dangerousness on an application for discharge, in addition to the other statutory conditions because the Tribunal should have adopted it before making the decision under challenge. Seventh, dangerousness would also have to be considered before any s2 order could initially be made. In other words, by implication the requirement on dangerousness would then become a condition required for an initial detention under s2 of the 1983 Act. No cogent reason has been put forward to support that argument. 89. Eighth, if the Tribunal had been under a duty to discharge the claimant if she did not meet the dangerousness condition, it would have meant that she would have been discharged into the care of a person, whose suitability to discharge the statutory functions of the nearest relative was being challenged in County Court proceedings, who was a person who had been found by the court to be unfit to discharge the statutory function of the nearest relative. Finally, as in this case, the Tribunal would have been under a duty in almost all cases to discharge a patient into the care of a person, even where it had reason to believe that the patient might thereby be put at a greater risk than if he or she had remained in hospital. I do not believe that it could have been the Parliamentary intention for these last two consequences to occur. …

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(iii) Displacement proceedings – tribunal during If in relation to a s2 patient the nearest relative is consulted and objects to either a s3 admission order or s7 guardianship order, and proceedings to displace the nearest relative are commenced in the county court under s29 of the Act before the s2 detention has ended, it is extended until the end of the displacement proceedings. Section 2 brings a single right to apply to a tribunal, within time limits. Case law establishes:

the patient’s case should be referred to the tribunal during the extension of the s2 by the Secretary of State for Health (s67).

Note that if in the displacement proceedings an interim displacement order is made and a s3 or s7 order then completed, that will bring a right to apply to a tribunal. R (MH) v Secretary of State for Health [2005] MHLR 302 HL Facts and outcome: The detention under s2 of a patient was extended beyond the normal 28 day period because proceedings were taken to displace her nearest relative. A number of issues were raised in the case1, including whether the lack of a right to apply to a tribunal during this extension period was compatible with Art 5. The Court of Appeal granted a declaration of incompatibility ([2004] MHLR 345), but this was overturned by the House of Lords, which held that the statutory regime was capable of being operated compatibly with the Convention if the county court makes a swift displacement order, or of the Secretary of State refers the case to a tribunal. Baroness Hale (Lords Bingham, Hope, Rodger and Brown agreeing) ... Is section 29(4) incompatible? 28. ... The system is obviously capable of being operated compatibly. The patient is entitled to make an application during the initial 14 days of the s2 admission, thus complying with her right, should she choose to exercise it, to a speedy initial judicial determination of the lawfulness of her detention. The county court proceedings may produce a swift displacement order, whether interim or final, after which the patient is admitted under s3. The patient then has a fresh right to apply to a tribunal, which will arise at a "reasonable interval" after the first. Alternatively, a displacement order may be refused, in which case the patient can no longer be detained unless the relative has been persuaded to withdraw her objection to the s3 admission. But in that event a fresh right to apply to a tribunal will also arise. 29. The problem arises when the county court proceedings drag on and the patient is detained indefinitely without recourse to a tribunal. Indeed, it

1 See under ch 4 and ch 6(ii)

may be difficult for the county court to proceed too quickly, without endangering the rights of the parties under Art 6 and the rights of both the patient and her relative under Art 8. Hence there may well come a time when her Art 5(4) rights will be violated unless some means of taking proceedings is available to her. That time may come earlier if she has not made an initial application, so that the lawfulness of her detention has never been subject to judicial determination, than it would do if there had been an early tribunal hearing. But here again the means are available, within the existing law, of securing that she does have that right. 30. The preferable means is what happened in this case: that the Secretary of State uses her power under s67(1) to refer the case to a tribunal. This is preferable because MHRTs are much better suited to determining the merits of a patient's detention and doing so in a way which is convenient to the patient, readily accessible, and comparatively speedy. ... a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings. It can, of course, be objected that this solution depends upon the Secretary of State being willing to exercise her discretion to refer. But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention. In this case this happened at the request of the patient's own lawyers. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so. It would also be possible for the hospital managers or the local social services authority to notify the Secretary of State whenever an application is made under s29 so that she can consider the position. ... 31. Judicial review and/or habeas corpus would, of course, also be available to challenge the lawfulness of the patient's detention. [The judge noted that whilst a judicial review court might engage in a sufficient review of the merits of detention, “it is not well equipped to do so” because it rarely hears oral evidence, is not readily accessible because it sits in London and is not an expert tribunal and so will need to hear more evidence and argument, which takes time, thus increasing the risk of a breach of Art 5(4).] 32. Hence, while judicial review and/or habeas corpus may be one way of securing compliance with the patient's Art 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State's reference under s67. Either way, however, the means exist of operating s29(4) in a way which is compatible with the patient's rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.

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(iv) In-patient treatment – level of – appropriateness of detention The test for discharge in s72(1)(b) refers to liability to detention “in a hospital for medical treatment” being appropriate; such treatment must also be necessary; those who are liable to detention – a phrase taken to include those on leave under s17 - can be compelled to take medication (under the provisions of Part IV MHA 1983, relating to treatment without consent). The granting of leave of absence can be treatment itself. One of the issues which arises is the level of treatment in (or at) a hospital which means that liability to detention is appropriate. Case law indicates that:

(i) there is no need for the patient to be an in-patient; (ii) the statutory test requires that a significant part of the treatment as a whole is treatment at a hospital, which can be treatment designed to allow the patient to make a successful transition to the community; but there must be some present treatment at a hospital.

1. R v Barking, Havering and Brentwood Community Healthcare NHS Trust ex p B [1999] 1 FLR 106 CA Facts and outcome: B was detained under s3 MHA. At the time when her RMO completed the form to renew detention under s20, she was allowed leave under s17 to be at home between Thursday and Monday inclusive, and leave to be away from the hospital during the other days; she was compliant with her medication; 4 weeks after her detention was renewed, she was granted leave 7 days a week (though was subsequently readmitted following a breakdown in her mental condition). There was ongoing monitoring to determine whether she was using illicit drugs. The renewal was challenged on the basis that there was insufficient in-patient treatment to justify the test in s20(4)(c) that medical treatment in hospital “cannot be provided unless he continues to be detained”. The Court of Appeal, in rejecting the challenge, held that the phrase “continues to be detained” should be construed to mean “continues to be liable to be detained” and that the treatment as a whole – including returning from leave and being monitored for drug use – was sufficient to meet the test. Lord Woolf MR (Hobhouse LJ agreeing) [The judge described R v Hallstrom ex p W, R v Gardner ex p L [1986] QB 1090 (McCullough J), in which W was placed under s3 and L’s detention was renewed under s20 for the purpose only of making them liable to detention and so required to take medication. He said (112E) “It is important to note that in both cases it was accepted that they did not require treatment as inpatients ... On the facts the decision ... that their detention was unlawful is perfectly justified.” He then went on to hold that the judge in that case erred in construing the language of s20 to require that the patient be detained as opposed to liable to detained, which was the correct construction, though noting

(112H) “So far as his analysis causes McCullough J to come to the conclusion that s3 ‘only covers those whose mental condition is believed to require a period of inpatient treatment’ I have no reason to quarrel with his reasoning.”] (113C) Mr Gledhill’s argument depends on looking not at the appellant’s treatment as a whole, that is both at what happens in hospital and when she is on leave, but only that part of the treatment of the appellant when she is “detained” as an inpatient. ... [In relation to patients] who should be treated partly as an inpatient and partly as an outpatient ... the activities which take place as part of the inpatient treatment may all individually be capable of being performed without the treatment taking place in the hospital, yet for the treatment as a whole to be successful there will often need to be an inpatient element to the treatment which means it is in fact “appropriate for him to receive medical treatment in a hospital” and “that it cannot be provided unless he continues to be detained”. The requirement that the patient has to return to hospital and be monitored and is liable to be recalled and from time to time is subjected to the discipline of being treated in hospital as an inpatient under direct supervision with urine and other tests is an essential part of the treatments. They enable the patient to attempt the process of rehabilitation in the wider community which would be more precarious otherwise. This appears to be just the type of treatment contemplated by the second half of the definition of treatment contained in s145 of the Act. As the Code of Practice states in para 20.1, leave “can be an important part of a patient’s treatment plan.” It is the treatment as a whole which must be calculated to alleviate or prevent a deterioration of the mental disorder from which the patient is suffering. As long as treatment viewed in that way involves treatment as an inpatient the requirements of the section can be met. ... (114E) The fact that assessment by itself cannot amount to treatment for s3 does not mean that assessment cannot be a legitimate treatment under ss3 and 20. Often assessment or monitoring of progress will be an important part of treatment. This will certainly be the case where as here there is an evolving programme of treatment. Having clarified the legal position the question as to whether Dr Taylor was entitled to furnish the report on 11 November 1997 continuing the appellant’s detention can only be answered in the affirmative. Thorpe LJ (117G) Medical treatment as defined by s145 includes rehabilitation under medical supervision. Obviously a statutory power to grant leave of absence under s17 is an important power where the appropriate treatment for the patient is rehabilitation under medical supervision. ... [As of the date the renewal took effect] the primary treatment thought appropriate for B was rehabilitation under medical supervision. The endeavour to rehabilitate was dependant upon her regular consumption of the prescribed drugs and her abstinence from the illicit

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drugs which in the past had proved her undoing. The stepping stones to the goal of rehabilitation were weekly leaves of absence under s17, gradually extended in duration so long as there were no setbacks. But her home base remained the hospital despite the fact that she slept many more nights out than in and despite the fact that she had a daily leave of absence for 4 hours on each of the 2 days per week when she returned to the hospital. It seems obvious to me that those 2 days of detention each week were an essential ingredient of the treatment. If it were to succeed structure and discipline were important ingredients. Indeed once those elements were reduced to minimal levels the treatment soon failed. Furthermore those periods of weekly detention were crucial to allow Dr Taylor to assess Miss Barker’s state of mental and psychological well-being and to monitor her progress. Mr Gledhill’s submission that medical treatment cannot be construed to include general monitoring or urinalysis is in my opinion plainly wrong. How can there be medical supervision of the rehabilitation without monitoring and without the resident medical officer having the power to carry out physical tests, such as urinalysis, to ascertain the patients behaviour when not subject to direct detention? I found equally unconvincing the submission that Warley Hospital was no more than a dormitory to B during her 48 hours of weekly detention. The fact that she did not receive any specific or additional treatment during those 48 hours does not justify the submission that she was receiving no treatment during those 48 hours. Her presence in the hospital each Tuesday and Wednesday was an essential part of the treatment package, it could only be provided in the hospital and could only be effectively provided if B continued to be detained. She was throughout, and her disorder made it appropriate for her to be, a detained patient enjoying generous weekly leaves of absence to put her possible rehabilitation to the test. 2. R (Epsom & St Helier NHS Trust) v MHRT [2001] MHLR 8 Admin Ct Facts and outcome: W’s mental disorder included an irrational belief that she was unable to swallow, which led to weight loss and dehydration. Having been detained when her condition became life-threatening, her liability to detention was renewed but she was granted leave to stay in a nursing home: her treatment was nutrition and hydration via a feeding tube and reviews of her mental state; she refused to cooperate with other treatment options. A tribunal decided that W should be discharged because there was no ongoing inpatient treatment: the hospital had argued that W should remain liable to detention because there was a certainty that she would need to be readmitted as an in-patient at some point for replacement of her tube and a significant possibility that in-patient treatment would be necessary because of her lack of cooperation with her treatment programme. A challenge by judicial review was dismissed: it was held that whilst it was necessary to

look at the whole course of treatment, including future treatment, the tribunal could decide that it was no longer appropriate to continue liability to detention if the timing of future treatment was too uncertain; and they were entitled to attach greater weight to past and current treatment in deciding the reality of the situation on which they had to rule. Sullivan J … 47. [Barking] is authority for the proposition that one has to look at the whole course of treatment. To do so, one has to look at the past, present and future. It is not enough to say that a patient is not receiving treatment at a particular time. … The timing of in-patient treatment, whether it falls within or outside a particular period of liability to detention, might be dictated by factors other than the patient's own state of health, for example, resource availability or the availability of specialised staff, and so forth. 48. Moreover, any approach to ss17 and 72 has to recognise the progressive nature of treatment in many cases ... One hopes that, at least in the majority of cases, there will be progressively longer periods of leave, with a corresponding reduction in the need for in-patient treatment. … … 52. The matter has to be looked at in the round, including the prospect of future in-patient treatment, but there will come a time when, even though it is certain that treatment will be required at some stage in the future, the timing of that treatment is so uncertain that it is no longer “appropriate” for the patient to continue to be liable to detention. It is the Tribunal's function to use its expertise to decide whether the certainty, or the possibility, of the need for in-patient treatment at some future date makes it “appropriate” that the patient's liability to detention shall continue. 53. Reading the decision letter as a whole, it is plain that the Tribunal did perform this function … … 60. [The judge noted that the Barking case involved “a significant, albeit reducing element, of in-patient treatment” and rehabilitation from gradually extending leave.] In the present case, on the evidence before the Tribunal, there was no suggestion, sadly, that there was any significant likelihood of that kind of progress being made. In truth, on the material in front of the Tribunal it would appear that W's treatment in the nursing home, by means of the PEG tube, would simply continue for the foreseeable future. 61. ... the Tribunal should look at “the reality of the situation” in deciding whether it is appropriate that a patient should be liable to be detained in hospital for medical treatment. Artificial cut-offs should not be applied. It follows that there will be a broad spectrum between the Hallstrom type of case at one end, where no in-patient treatment is, or is proposed to be, provided, and the Barking type of case at the other,

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where in-patient treatment forms “an essential ingredient” of the overall treatment programme. It was for the Tribunal to decide where W's case fell within that spectrum. It was entitled to conclude that, in effect, this case was sufficiently close to the Hallstrom end of the spectrum to make continued liability to detention under s3 inappropriate. … 3. R (DR) v Mersey Care NHS Trust [2002] MHLR 386 Admin Ct Facts and outcome: DR was detained under s3 MHA 1983, having suffered a relapse in a psychotic illness; she responded to treatment and was granted increasing amounts of leave. When an application was made to renew her detention under s20 MHA, she was on permanent leave of absence save that she had to attend occupational therapy at the hospital during the day on Friday and attend the ward round on Monday for monitoring and review; she would be given medication at home. The hospital managers allowed the renewal to proceed, having heard evidence from the clinical team that DR would not take her medication except under section and would then deteriorate rapidly. A judicial review challenge was dismissed on the basis that the statutory scheme requires a significant component of treatment in hospital, which was met on the facts; it was noted that treatment can include leave of absence. A complaint that the managers had not considered a supervised discharge did not invalidate the decision as DR would not take medication without the compulsion of being liable to detention. Wilson J … 29. … The test is what is laid down in s20(4)(a) (and s3(2)(a)), namely whether the plan is for the patient to receive medical treatment in a hospital. [The judge noted that in the “plain cases of Hallstrom and Gardner, where there was no plan for any treatment in hospital, whether in-patient or out-patient,” it had been suggested that the test embraced only in-patient treatment, but that this was obiter comments and the “distinction between treatment at hospital and treatment in hospital is too subtle for me. When I eat at a restaurant, I eat in a restaurant.” He also noted that as the Barking case involved in-patient treatment “it was natural that that word might again be deployed. But that does not make it become the test”. He then commented “There is no magic in a bed; indeed the facility for treatment at night, when the patient is in bed, must be much less than for treatment during the day.”] 30. The question therefore in my judgment is whether a significant component of the plan for the claimant was for treatment in hospital. It is worth noting that, by s145(1) of the Act, the words “medical treatment” include rehabilitation under medical supervision. There is no doubt, therefore, that the proposed leave of absence for the claimant is properly regarded as part of her treatment plan. As para 20.1 of the Code

of Practice states, “leave of absence can be an important part of a patient’s treatment plan”. Its purpose was to preserve the claimant’s links with the community; to reduce the stress caused by hospital surroundings which she found particularly uncongenial; and to build a platform of trust between her and the clinicians upon which dialogue might be constructed and insight on her part into her illness engendered. Equally, however, the requirement to attend hospital on Fridays between 9:00am and 5:00pm and on Monday mornings was also in my judgment a significant component of the plan. The role of occupational therapy as part of the treatment of mental illness needs no explanation. But the attendance at hospital on Monday mornings seems to me to be likely to have been even more important. Such was to be the occasion for the attempted dialogue; for monitoring; for assessment and for review. In the Barking case both Lord Woolf at 114E and Thorpe LJ at 118B stressed the importance of the arrangements for weekly monitoring and assessment in the hospital. 31. I therefore hold that a significant component of the plan for the claimant was treatment in hospital and that the conditions for renewal set by s20(4) were satisfied. [The judge then dismissed an argument that a supervised discharge should have been considered because of the evidence that DR needed to be liable to detention to ensure she took her medication.] 34. … the compulsory administration of medication to a patient can be secured only by making him liable to be detained or renewing such liability; … such may be achieved only if a significant component of the plan is for treatment in hospital; and …, in such an enquiry, the difference between in-patient and out-patient treatment is irrelevant. 4. R (CS) V MHRT [2004] MHLR 355 Admin Ct Facts and outcome: CS, who was diagnosed as suffering from paranoid schizophrenia, had a history of not complying with medication when discharged, leading to a deterioration of her condition and readmission to hospital. She was detained under s3 MHA 1983. By the time of a tribunal hearing she was on leave with a requirement to attend a ward round once every 4 weeks (which included discussion of progress, whether changes in medication were required, and motivational interviewing to assist the move to outpatient treatment); she received anti-psychotic medication by injection in hospital because she did not wish to receive it at home; there was also a weekly session with the ward psychologist. The plan was to transfer her care to the Assertive Outreach Team in the community. The tribunal upheld the section on the basis that her insight remained poor, there was a history of non-compliance with medication and disengagement with services (including during recent months whilst on leave), and so it was likely that she would refuse medication and

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deteriorate rapidly if taken off section. (Five weeks later, her care was transferred to a community psychiatrist and the section was lifted approximately 6 weeks after that.) A challenge to the tribunal decision failed on the basis that there was a significant element of treatment at hospital as part of a transition towards discharge, which was designed to break the historical cycle of relapse and readmission. The Court also held that the test in s72 is designed to prevent arbitrary detention and so there is no need for a tribunal to consider the issue of the proportionality of liability to detention to ensure compliance with Art 5 ECHR. Pitchford J … 44. Viewed as a whole the course of treatment should be seen, it is submitted, as a continuing responsive programme, during which the need for treatment in hospital and on leave was being constantly reassessed depending upon the circumstances, including CS's responses to [Assertive Outreach] and the ward round. Until such time as the transition was complete, the element of treatment at hospital remained a significant part of the whole. [The judge indicated that he accepted this submission, though he indicated that he was not convinced that “the mere existence of the hospital and its capacity to be treated by the patient as a refuge and stability is part of the treatment of the patient at that hospital.”] … 46. … It is clear to me that the RMO was engaged in a delicate balancing exercise by which she was, with as light a touch as she could, encouraging progress to discharge. Her purpose was to break the persistent historical cycle of admission, serious relapse and readmission. It may be that in the closing stages of the treatment in hospital her grasp on the claimant was gossamer thin, but to view that grasp as insignificant is, in my view, to misunderstand the evidence. [The judge quoted evidence from the RMO as to the importance of a phased discharge as opposed to an abrupt discharge followed by the need to resection CS when she deteriorated, which would upset her, damage the relationship between her and the clinical team, and mean that mental health services could only engage once CS had suffered a significant deterioration into a very distressing illness.] 47. In my judgment the tribunal acted lawfully and rationally upon the evidential material available. … 51. … Article 5 protects against arbitrary detention: it does not incorporate any additional requirement of proportionality. The repeated view of the European Court of Human Rights has been that the requirements to be satisfied to protect an individual from arbitrary detention under Art 5(1)(e) are those set out in Winterwerp v Netherlands (1979) 2 EHRR 387 at para 39 and Ashingdane v UK (1985) 7 EHRR 528 at para 44.

52. It seems to me that … the question is whether or not domestic law permits the arbitrary detention of those in the position of the claimant. It seems to me that manifestly it does not. Accordingly, there is no dimension further to s72 of the 1983 Act which needs to be added to the statutory right to discharge and the exercise of the residual discretion. The application of the principle of proportionality to this case leads in any event, in my view, to only one conclusion: the interference with the claimant's freedom of movement and choice were minimal in the context of the object to be achieved, namely her satisfactory return to community care. For these reasons, the claim must be dismissed.

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(v) Nature or degree - Appropriateness The test for discharge in s72 – in s72(1)(a)(i) and (1)(b)(i) – refers to the mental disorder being of a “nature or degree” which makes detention warranted in relation to a s2 patient or appropriate in relation to all others. Case law makes it plain that this is a disjunctive test. 1. R v MHRT for the South Thames Region ex p Smith 4 August 1998 Admin Ct Facts and outcome: S, a restricted patient, diagnosed as suffering from schizophrenia, had absconded from hospital and obtained employment: when readmitted, he was stable (despite not having had medication for a short period); he had remained stable in hospital, compliant with medication, and presented no symptoms of schizophrenia. A tribunal accepted the view of the RMO that the illness, currently controlled by medication, was of a nature but not a degree which justified liability to detention: it relied on his lack of insight, history of non-compliance with medication and rapid relapses. The decision was challenged on the basis that the question of the “nature or degree” of the disorder in s72 should be read conjunctively, so that detention depended on the current degree of the disorder (which was subject to change, whereas the nature was unchanging); this was dismissed on the basis that the test is to be applied disjunctively. Popplewell J [The judge referred to the passage in Eldergill’s "Mental Health Review Tribunals, Law and Practice" set out above in ex p Moyle (Admission Criteria).] The evidence about the Applicant's condition, at the time the Tribunal had to consider it, was static. He made excellent progress. He was in a stable condition and it is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he has a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interpretation that nature is in some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may not remain static. It seems to me that if the facts upon which the Tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable. In my judgment there is a reason for the distinction, of which this case is perhaps a good example. If one had simply to look at the degree it would have been right for the discharge to take place, but the nature of the condition was such that it was clear that he should not be discharged. It may well be that in a great number of cases that nature and degree involve much the same questions - I hesitate to give examples - and

it may be that Tribunals will be wise, if they have any doubts about it, to include them both. However, that in my judgment in the instant case is not a ground for setting aside this Tribunal's decision which seems to me, on the material before it, to have properly applied the law. 2. R (Home Secretary) v MHRT [2004] MHLR 91 Admin Ct Facts and outcome: DH was a restricted patient; a tribunal granted him a conditional discharge, stating in its reasons that, although it was unlikely that he would be able to stick to his intention to moderate his alcohol use and abstain from drugs, ongoing treatment could be carried out in the community, and so his illness was of a nature to justify detention in hospital, but not at present of a degree; it also felt that the risks to his own health and safety and to others were low. In judicial review proceedings, DH sought to uphold the tribunal decision on the basis that the decision as a whole – including the conditions imposed, which required residence at a 24 hour staffed hostel and drug screening as well as ongoing medical and social work supervision – showed that detention was properly felt to be disproportionate, and that the necessity test was not met. The judge quashed the decision (despite finding it rational and adequately reasoned) as the tribunal erroneously treated "nature or degree" as conjunctive rather than disjunctive, and the reasons given for the necessity test not being met did not show that this error had not tainted consideration of that question also; it was not possible to read the conditions into the reasoning to show that the tribunal had dealt with the issues of risk, nor was it possible to rely on the fact that recall was possible to meet the risks posed. Beatson J ... 57. I conclude that on the question of misdirection, para 3 of the reasons given by the Tribunal, and in particular the sentence: "DH's illness is of a nature to justify detention in hospital but not at present of a degree", is inconsistent with the answer to the first statutory question, because it treats "nature or degree" as conjunctive. This misdirection is not saved, in my view, by the conclusion with regard to necessity in the answer to the second statutory question, because it tainted consideration of that. 58. The statutory words in s72(b)(ii) state:

"(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment."

59. Such treatment refers back to the treatment which, given the nature or degree of his disorder, makes it appropriate for him to be liable to be detained. Accordingly, separate consideration is needed. 60. Because of the way the reasons are set out, this separation is not made, and the court therefore cannot

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conclude that the Tribunal, having misdirected itself with regard to the "appropriateness" test, did not carry that misdirection over into the "necessity" test. 61. Mr Gledhill's argument that the conditions should effectively be read into the decision to show the way the Tribunal grappled with the risk posed by DH as part of either the "appropriateness" test or the "necessity" test has caused me more difficulty. On the one hand, the court is aware of the conditions under which tribunals have to produce decisions. There is clear authority that the reasoning can be brief. These factors together with the specialised nature of the Tribunal mean that ... the reasons given should not be subjected to the sort of scrutiny to which statutory words are subjected. 62. ... In this case, there is simply a generalised reference to the conditions in para 4, in which it is stated that it is considered:

"... the conditions imposed will ensure that the risks to DH and to the public are kept to a minimum, and that these conditions should be strictly observed."

63. There is no indication of how serious these conditions are. Mr Gledhill submits that it is obvious that they are serious enough to require a 24-hour staffed hostel and the other matters, but this is a brave attempt to read in from the conditions to the reasons for the decision. 64. Finally on this point, it cannot be said from the reference to the liability to recall that the Tribunal grappled with the risk. On this matter, I accept Miss Stern's argument that the issue of risk should be addressed first. It is perfectly in order for a tribunal which has addressed the question of risk then to consider recall, but to wrap it up in the way that has been done here risks undermining the careful scheme of the legislation. [Note: in some cases, the issue of what is the nature of the illness as opposed to its degree, is not clear cut. In R (Home Secretary) v MHRT (CH as Interested Party) [2005] MHLR 199, Stanley Burnton J said: “33. ... I have some sympathy with the difficulties faced by tribunals in addressing these statutory criteria and the distinction between nature and degree. In many cases the distinction is elusive, and it may not matter under which head the question is addressed. In a case such as the present, where the issues for the Tribunal are (a) the seriousness of the patient's condition; (b) whether, if the patient is discharged into the community, the patient will accept medication; and (c) the degree of risk to the patient, or to others, if she does not do so. The real question is one of degree of risk of relapse in the community ... In a case such as the present that issue depends on the prospects that the patient will continue to accept, or to take, her medication if she is released into the community. ...”]

(vi) Necessity test In relation to s2 patients, the test in s72(1)(a) requires that detention be warranted and also “justified in the interests of his own health or safety or with a view to the protection of others”; in relation to other patients, s72(1)(b) requires that it be “necessary for the health or safety of the patient or for the protection of other persons” that he should receive treatment in a hospital. The propositions arising from the case law are:

(i) the necessity test requires separate consideration; (ii) the test is necessity not desirability; (iii) ‘other persons’ can cover an individual.

See also ch 6(viii), Risk assessment and quantification, below. 1. Separate consideration is required See ex p Moyle [1999] MHLR 195 (above, Admission Criteria) at para 40 See also R (Home Secretary) v MHRT [2004] MHLR 91 (above, Nature or degree) at paras 58-59. 2. Necessity is not desirability In Reid v Secretary of State for Scotland [1999] 2 AC 512 HL (see ch 6(i)) Lord Clyde at 540 made the obvious point that “The standard here is one of necessity, not desirability.” 3. The need to protect another individual is sufficient In R v North West London Mental Health NHS Trust ex p S (1996) 39 BMLR 105 Admin Ct, Harrison J held that “other persons” can relate to an individual person: there is no need for a risk to society as a whole.

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(vii) Redetention following tribunal discharge Under s11 MHA 1983 an application for admission may be made by the nearest relative or an approved social worker: ss2 and 3 set out that an application may be made on the basis of the grounds set out in the relevant sections (with appropriate medical evidence). This language - which is phrased as a discretion – is supplemented in the case of an approved social worker by s13(1), which provides that “It shall be the duty of an approved social worker” to make an application “where he is satisfied that such an application ought to be made” and that it is “necessary or proper” for him or her to make it. But this is also the language of discretion. The proposition established by the case law is:

the decision of a tribunal must be respected and redetention following a tribunal discharge is only proper if there is fresh information or a change in circumstances which demonstrates that discharge would no longer be granted.

R v (1) Tower Hamlets Health Care NHS Trust and (2) Snazell ex p Von B [2004] MHLR 44 HL Facts and outcome: V was discharged from detention under s2 MHA 1983 by a tribunal, which found that his disorder did not warrant detention; this was deferred for 7 days to allow after-care to be arranged. On the day before the discharge was due to take effect, a s3 application was made by an approved social worker, with 2 supporting medical recommendations. The question arising was when it was proper to section a patient after a tribunal-ordered discharge. The House held that the rule of law requires that effect be given to tribunal decisions: and so an ASW may not lawfully apply to redetain a patient discharged by a tribunal unless information not known to the tribunal puts a significantly different complexion on the case. In judicial review proceedings, the issue will be what the ASW knows and whether his or her view is reasonable and bona fide; the obligation to interview the patient should mean that the tribunal decision is uncovered, but there is no more far-reaching duty of enquiry. On the facts, V had reneged on an assurance that he would take medication, and had deteriorated: the application was therefore reasonable. Lord Bingham (Lords Steyn, Hobhouse, Scott and Rodger agreeing) … [The judge set out various principles: 1. “the common law respects and protects the personal freedom of the individual, which may not be curtailed save for a reason and in circumstances sanctioned by the law of the land. This principle is reflected in, but does not depend on, Art 5(1) of the European Convention on Human Rights.” 2. “the law may properly provide for the compulsory detention in hospital of those who suffer from mental disorder if detention is judged to be necessary for the health or safety of the patient or the protection of others. The necessity for such

detention in appropriate cases is recognised by Art 5(1)(e) of the Convention, and has long been given effect in domestic law.” 3. “a person compulsorily detained on mental health grounds should have the right to take proceedings by which the lawfulness of his detention may be decided by a court and his release ordered if the detention is not lawful. This right is expressed in Art 5(4) of the Convention ...” and led to the introduction of the tribunal power to order the discharge of restricted patients in the Mental Health (Amendment) Act 1982 following X v UK (1981) 4 EHRR 188.] 8. Fourthly, the rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided. ... It follows that no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such a tribunal. The regime prescribed by Part V of the 1983 Act would plainly be stultified if proper effect were not given to tribunal decisions for what they decide, so long as they remain in force, by those making application for the admission of a patient under the Act. It is not therefore open to the nearest relative of a patient or an ASW to apply for the admission of the patient, even with the support of the required medical recommendations, simply because he or she or they disagree with a tribunal's decision to discharge. That would make a mockery of the decision. 9. In applying these principles, account must be taken of certain important considerations:

(1) While doctors may be expected to exercise their best professional judgment in diagnosing the condition and assessing the cases of those suffering from mental disorder, and prescribing treatment, their conclusions will rarely be capable of scientific verification. There will often be room for a bona fide difference of professional opinion. … (2) … the condition of many of those suffering from mental disorder will not be static. Episodes of acute illness may be followed by episodes of remission. Thus it does not follow that a tribunal decision, however sound when made, will remain so. Other things being equal, the longer the period since the decision was made the greater the chance that the patient's mental condition may have altered, whether for better or worse. (3) [The language of s72 indicates that the tribunal considers the state of the patient when it meets.] The tribunal will doubtless endeavour to assess a patient's condition in the round, and in considering issues of health, safety and public protection … it cannot ignore the foreseeable future consequences of discharge, but the temporal reference of "then" is clear and the tribunal is not called upon to make an assessment which will remain accurate indefinitely or for any given period of time. (4) [The RMO may discharge the patient if he or she feels that detention is not required.] Thus hearings will take place where (as here) a patient

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seeks to be discharged and the responsible doctors, or some of them, judge that he should not be discharged. Where an order for discharge is made by the tribunal, it will (unless the resisting doctors revise their opinion during the hearing) indicate that the tribunal has not accepted their judgment. A conscientious doctor whose opinion has not been accepted by the tribunal will doubtless ask himself whether the tribunal's view is to be preferred and whether his own opinion should be revised. But if, having done so, he adheres to his original opinion he cannot be obliged to suppress or alter it. His professional duty to his patient, and his wider duty to the public, require him to form, and if called upon express, the best professional judgment he can, whether or not that coincides with the judgment of the tribunal. (5) Account must be taken of s13 of the 1983 Act, which so far as relevant provides:

"(1) It shall be the duty of an approved social worker to make an application for admission to hospital or a guardianship application in respect of a patient within the area of the local social services authority by which that officer is appointed in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him. (2) Before making an application for the admission of a patient to hospital an approved social worker shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."

It is plainly of importance that the ASW is subject to a statutory duty to apply for the admission of a patient where he is satisfied that such an application ought to be made and is of the opinion specified.

Conclusion 10. … Consistently with the principle identified in para 8 above, an ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a MHRT of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. It is impossible and undesirable to attempt to describe in advance the information which might justify such an opinion. I give 3 hypothetical examples by way of illustration only:

(1) The issue at the tribunal is whether the patient, if discharged, might cause harm to himself. The tribunal, on the evidence presented, discounts that

possibility and directs the discharge of the patient. After the hearing, the ASW learns of a fact previously unknown to him, the doctors attending the patient and the tribunal: that the patient had at an earlier date made a determined attempt on his life. Having taken medical advice, the ASW judges that this information significantly alters the risk as assessed by the tribunal. (2) At the tribunal hearing the patient's mental condition is said to have been stabilised by the taking of appropriate medication. The continuing stability of the patient's mental condition is said to depend on his continuing to take that medication. The patient assures the tribunal of his willingness to continue to take medication and, on the basis of that assurance, the tribunal directs the discharge of the patient. Before or after discharge the patient refuses to take the medication or communicates his intention to refuse. Having taken medical advice, the ASW perceives a real risk to the patient or others if the medication is not taken. (3) After the tribunal hearing, and whether before or after discharge, the patient's mental condition significantly deteriorates so as to present a degree of risk or require treatment or supervision not evident at the hearing.

In cases such as these the ASW may properly apply for the admission of a patient, subject of course to obtaining the required medical support, notwithstanding a tribunal decision directing discharge. The position of the patient's nearest relative, in those cases where he or she makes the application with knowledge of the tribunal decision, does not differ in principle from that of the ASW, although the nearest relative could not in many cases be expected to be familiar with the evidence or appreciate the grounds on which the tribunal had based its decision. 11. [On the facts, the ASW had attended the tribunal and so was aware of the evidence given there and so could form an opinion on whether there was “information not known to the tribunal which put a different complexion on the case as compared with that which was before the tribunal”.] But this will not always be the case, particularly where time has passed since the tribunal made its decision and the patient has been discharged and has perhaps moved to a different locality. In such circumstances the ASW may not know there has ever been a tribunal decision and the former patient may not choose to tell him. … As appears from s13(2) of the 1983 Act ... an ASW is obliged, before making an application for admission of a patient to a hospital, to interview the patient in a suitable manner and also to satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need. Save perhaps in the most exceptional circumstances, or where the relevant facts are already known to him, performance of these statutory duties will oblige an ASW to enquire into the patient's background and medical history, consulting those

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doctors who have pertinent information to give. In the course of such enquiries he may well learn of an earlier tribunal decision and will then, no doubt, wish to know the reasons for it. But if, despite performing these statutory duties in a reasonable way, he does not learn of a tribunal decision, I can see no ground for implying a more far-reaching duty of enquiry not expressed in the statute. There is no central register of decisions which the ASW could consult and the duty could be onerous and time-consuming to perform, as it would for a nearest relative making an application, since presumably an extra-statutory duty would fall on such nearest relative also. … 12. … While it will doubtless be helpful if a medical recommendation identifies any new information on which it is based, a recommending doctor is not in my opinion required to do more than express his or her best professional opinion. I would however accept that a limited duty should lie on the ASW, and this was accepted by counsel for the second respondent, although the prescribed form of application as it now stands does not make provision for the giving of such reasons. The principle that tribunal decisions should be respected for what they decide in my opinion requires that a patient should be informed why an earlier tribunal decision is not thought to govern his case if an application for admission is made by an ASW inconsistent in effect with the earlier decision. Such duty must however be limited, since the ASW cannot be required to make any disclosure potentially harmful to the patient or others, as (for example) where the ASW has based his opinion on information gained from the spouse or family of the patient or from a doctor with whom the patient has a continuing and trusting relationship. It may be necessary for the ASW to give reasons in very general terms. … [Note: one of the effects of this decision is that it becomes more important for tribunals to specify in their reasons what factual findings they made and what evidence they heard, given the grounds upon which a recent tribunal decision need not be held to govern the question of whether detention is proper. The other main effect of the decision is that clinical teams and aftercare authorities who disagree with a tribunal decision must consider challenging it by judicial review given that the option of seeking to have the patient re-sectioned is less likely to be open.]

(viii) Risk assessment and quantification The propositions arising from the case law are:

(i) a tribunal is not required to quantify the level of risk posed by a patient beyond finding that it is substantial and sufficiently grave; however, it might be required to quantify the risk if all evidence was available; (ii) the tribunal task is one of evaluating an unknowable future; (iii) the precise level of risk which meets the statutory test cannot be specified.

1. Failure quantify level of risk - whether unlawful – R (N) v MHRT [2002] MHLR 70 Admin Ct Facts and outcome: N was a restricted patient categorised as having psychopathic disorder. The evidence before a tribunal included an indication that an assessment was being carried out as to his insight and attitude towards his offences, pending the completion of which it was not possible to know the level of risk posed by N to himself or others. A judicial review challenge to the decision to uphold detention was dismissed on the basis that the tribunal was entitled to conclude that there was a substantial, if unquantifiable, risk which was sufficiently grave to fulfil the statutory test, particularly in light of the nature of the risk (N’s offences being homicide); although a tribunal might be required to quantify the risk posed by a patient if all available evidence was presented, it was not required to speculate where there was ongoing work to assess risk. Gibbs J … 49. … it was open to the Tribunal to conclude, and at the very least it was not unreasonable for it to conclude, that there was a substantial, if unquantifiable, risk in this case; and that whilst that risk was uncertain in its degree it was sufficiently grave to fulfil the statutory test. … … 53. ... I accept … that there may arise a stage at which a Tribunal must reasonably be required to quantify a risk. It depends on the context. If it was clear that all available evidence was there for it to consider but that the Tribunal simply walked away from its responsibility and sat on the fence, then there would be justice in the criticism. I acknowledge also that even where the medical evidence before it does not enable it to quantify the risk there must come, or may come, a point where continuous deferment of quantification is unreasonable. But if one sees the matter in the context in which the Tribunal was making its decision in this case it is plain, in my judgment, that such a criticism is unfounded. 54. Here the context is one in which [the RMO] is, in my judgment, clearly expressing the view that there is a substantial and unacceptable, if unquantifiable, risk. There is a project for the treatment of the claimant, partially completed, one of the purposes of which is to define that risk more closely. There is, in my

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judgment, nothing wrong in principle in the psychiatrist, pending the outcome of that process, defining the possible range of risk widely. Nor, in my judgment, is there anything wrong in principle with the Tribunal accepting the psychiatrist's view. It is, in my judgment, unreasonable in that context to say that the Tribunal should attempt the impossible and reach some kind of assessment of risk which would be in danger of amounting to purely arbitrary speculation. … 2. Tribunal task – evaluation - R (DJ) v MHRT, R (AN) v MHRT – see 19(ii) It is emphasised in this case that the nature of the tribunal task is one of evaluation and judgment as to an unknowable future. 3. Level of risk – R v Parole Board ex p Bradley [1991] 1 WLR 134 Divisional Ct The release of life sentence prisoners rests on whether there is an unacceptable risk of offending: see now s28(7) Crime (Sentences) Act 1997, under which the test is whether it is “no longer necessary for the protection of the public that the prisoner should be confined”. Stuart-Smith LJ referred at p143 to s72 MHA (which was in its original form, requiring discharge if the patient showed that detention was not necessary) and noted “the precise level of risk is not (surely cannot be) spelled out.” A submission that the test for the release of a life sentence prisoner mirrored the test for the imposition of a life sentence in the first place was rejected. Stuart-Smith LJ then said (at p146) “But that leaves still wholly undefined the level of risk required to justify continued detention of post-tariff discretionary lifers. Yet undefined we fear it must remain. Unless the required test is expressed in percentage terms (in the same way that likelihood arguably implies more than 50%), which is surely impossible, it seems inevitable that one can say really no more than this: first, that the risk must indeed be "substantial" ..., but this can mean no more than that it is not merely perceptible or minimal. Second, that it must be sufficient to be unacceptable in the subjective judgment of the Parole Board to whom Parliament has of course entrusted the decision ... Third, that, in exercising their judgment as to the level of risk acceptable, the Parole Board must clearly have in mind all material considerations. ...” [Note: the same process of reasoning should apply to the tribunal’s task in that questions of judgment as to whether detention is appropriate and necessary cannot be quantified easily and rest on the view of the tribunal as to what is an unacceptable risk. This does, however, leave a troubling level of uncertainty in that the subjective assessment involved might well mean that two different panels considering the same facts reach different results because one panel happens to be more risk-averse than another.]

(ix) Section 2 and section 3 Although the function of the tribunal is to determine on the lawfulness of ongoing detention, rather than on the lawfulness of the initial section1, the issue may still arise in a tribunal as to whether the ongoing detention is being used for a proper purpose; there is also the issue of what happens to a s2 tribunal if the patient has been placed on a s3 order. The propositions arising from the case law are:

(i) repeated applications under s2 are not permitted; (ii) a s3 detention cannot be for assessment alone, but ongoing assessment as a part of treatment is proper; (iii) doctors can change their view as to whether s2 or s3 is appropriate; (iv) if a s2 tribunal meets and the patient has been placed under s3, the tribunal should apply the s3 test.

1. Successive s2 applications not allowed - R v Wilson ex p Williamson [1996] COD 42 Tucker J - “a s2 application is intended only to be of short duration for a limited purpose – assessment of the patient’s condition with a view to ascertaining whether it is a case which would respond to treatment” (which would allow a s3 application if necessary). As the statute lays down that the time limit is 28 days, back to back applications which extend assessment beyond 28 days are not permitted. 2. Ongoing assessment - acceptable part of s3 detention – not sole purpose See R v Barking, Havering and Brentwood Community Healthcare NHS Trust ex p B [1999] 1 FLR 106 CA (ch 6(iv)) for the proposition that ongoing assessment and monitoring is a proper part of s3. However, if there was only ongoing assessment to determine what treatment should be provided, that would be an impermissible basis for continuing the section: see R v Riverside Mental Health Trust ex p Huzzey (1998) 43 BMLR 167 (in which the Court quashed a failure of managers to exercise their general power of discharge set out in s23 MHA in relation to a s3 patient in such a situation). 3. Medical recommendation can support s2 or s3 on same facts - C v South London and the Maudsley Hospital NHS Trust and LB Lambeth [2001] MHLR 269 High Ct Facts and outcome: this was an application to bring proceedings for false imprisonment; C had been assessed as requiring admission under s3 MHA, but this did not proceed as his nearest relative objected: C then indicated that he would attend hospital

1 see Nicholas Blake QC in R (C) v South London and Maudsley NHS Trust and MHRT [2004] MHLR 280 (ch 2(v))

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voluntarily, but changed his mind and a few days later was placed under s2: one of the medical recommendations came from a doctor who had provided a s3 recommendation. The High Court prevented a claim for damages for false imprisonment (on the basis that the s2 process was used improperly) proceeding: there was no suggestion of bad faith or negligence by the social worker who made the application (as required by s139 MHA) or by the doctors. McCombe J ... 36. Obviously the period of treatment under s3 is potentially longer than that of detention under s2, and no doubt for that reason the consent of the nearest relative is needed under that Section, whereas it is not under s2. I see no reason why a doctor in the position which Dr Gupta found himself on Monday 31 January should not reasonably and in good faith take the view that his grounds for thinking that a patient’s disorder warranted detention for assessment followed by treatment and to recommend accordingly, even if he thought that in the end the s3 admission possibly for a longer period would almost inevitably follow.” [Note: some guidance is given in Part 5 of the Code of Practice as to the pointers as to whether s2 or s3 should be used. There is also guidance on what should not be relevant, including the fact that a nearest relative objects to the use of s3.] 4. Detention converted to s3 before s2 tribunal meets – s3 criteria to be applied – R v South Thames MHRT ex p M 3 September 1997 Admin Ct Facts and outcome: M was detained under s2 MHA on 9 July 1997; on 10 July she applied for a tribunal hearing, and the date was fixed for 18 July. On 15 July, she was placed under s3. The tribunal decision that it would proceed as if it was the tribunal to which she was entitled to apply having been placed under s3 (ie that she would have no further right to apply) was successfully challenged by judicial review: it was held that the right to apply to a tribunal arises from the fact of admission and is not lost by the change of status from s2 to s3, though that does change the criteria the tribunal has to apply. Collins J ... Section 66(1) does not refer to the detention, merely to the admission, as the foundation for the right of application to the tribunal. ... "admission" is something which happens at a moment in time ... it is not a continuing state of affairs. ... If one goes to s72 ... there is nothing in that which suggests that the change of circumstances (that is to say the change in the nature of the detention from s2 to s3) affects the validity of the application, nor is there any reason why it should. The powers of the tribunal under s72 are ... to be exercised on consideration of the state of affairs before the tribunal. ... Accordingly when the

matter comes before the tribunal, if there has been the change from s2 to s3, then the tribunal must exercise its powers in relation to a patient who is liable to be detained otherwise than under s2 above and therefore must consider what are loosely described as the s3 criteria in determining the case before them. Since the Act makes clear that the basis for an application lies in the admission, whether under 2 or 3, then the determination of the tribunal on the s2 application cannot prevent the applicant from making a subsequent s3 application if the s2 application is unsuccessful.

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Chapter 7 European Convention on Human Rights The ECHR has led to changes in legislation when the UK has lost cases in the ECtHR and now it is applicable directly via the interpretative obligation under s3 Human Rights Act 1998 (which applies to tribunals) and the s6 duty on tribunals not to breach the Convention unless a statute requires them to do so. Various cases involving Convention points are digested in the relevant sections of this book: what follows is a brief overview of Convention law as applicable to psychiatric patients. (i) Article 3 Article 3 – the prohibition on inhuman or degrading treatment – may be engaged in an extreme situation: its main use has been in relation to arguments as to whether forced medical treatment is appropriate: see R (N) v Dr M and others [2003] MHLR 157. (ii) Article 5(1) This provides a presumption in favour of liberty, but allows detention “in accordance with a procedure prescribed by law” in several situations, including following conviction and “(e) the lawful detention ... of persons of unsound mind”. See ch 5(ii) and ch 8 for case law relating to the difference between a loss of liberty and restrictions on freedom of movement. 1. “Lawful” detention – Winterwerp v Netherlands (1979) 2 EHRR 387 ECtHR This case allowed the Court to explain what was required by Art 5(1)(e):

39. ... In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of "unsound mind". The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder …

2. Presumption of liberty - R (H) v MHRT, North and East London Region [2001] MHLR 48 CA The Court of Appeal granted a declaration that it was incompatible with the Convention presumption of liberty to require a patient to prove the reverse of the admission criteria to secure release: this led to a change in the statutory language1.

1 The Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712)

3. Detention must be proportionate In Litwa v Poland [2000] MHLR 226, the European Court held considered the detention of an alcoholic, which is also permitted under Art 5(1)(e) and laid out the following proposition:

78. The Court reiterates that a necessary element of the “lawfulness” of the detention within the meaning of Art 5§1(e) is the absence of arbitrariness. The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is executed in conformity with national law but it must also be necessary in the circumstances.

However, it has been commented that the test set out in s72 is designed to ensure that detention is permitted only when it is proportionate, and so there is no need for separate consideration of this issue: see R (CS) V MHRT [2004] MHLR 355 at paras 51-52 (above ch 6(iv)). 4. Detention must be in a clinic – Ashingdane v UK (1985) 7 EHRR 528 This case involved an alleged breach of Art 5(1) on the basis that the patient was held in conditions of greater security than necessary. The Court held that this did not engage Art 5:

44. The Court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the "detention" of a person as a mental health patient will only be "lawful" for the purposes of sub-para (e) of para 1 if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the foregoing, Art 5(1)(e) is not in principle concerned with suitable treatment or conditions ...

[Note: see also Aerts v Belgium 29 EHRR 50 (detention in a prison hospital wing breached Art 5(1)(e)2); Reid v UK [2003] MHLR 226 (detention of untreatable psychopath in hospital, under amended Scottish statute, not breach Art 5(1)). The latter case also confirms that there is no right to treatment under Art 5(1)(e). See also ch 16.] 5. Detention requires adequate procedural safeguards – HL v UK – see ch 4 In this case, a patient with severe learning problems was held in hospital without being formally detained

2 Ashingdane and Aerts also make it plain that even if the route into detention was an order made in criminal proceedings to which Art 5(1)(a) applies, the requirements of Art 5(1)(e) are also applicable.

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because he was compliant: had he attempted to leave he would have been detained, but the issue never arose. As a result, he was accorded informal status in English law and, as he lacked capacity to make decisions relating to his treatment, decisions were taken by the clinical team in accordance with their assessment of his best interests. The European Court found that there had been a breach of Art 5(1) because, although it was clear that HL was suffering from a mental disorder, the absence of adequate procedures before he was detained or to ensure that detention was warranted on an ongoing basis meant that the protection against arbitrary detention which was at the heart of Art 5(1) could not be guaranteed. A contrast was drawn between the formalities involved in the detention of non-compliant patients (the need for statutory criteria to be satisfied, requirements as to consultation, the time limits on detention before a renewal process had to be followed) and the reliance on a professional view that detention was needed in the case of compliant individuals without capacity.1 See R (SC) v MHRT (ch 1(iv)) for a discussion of what is required to ensure that the law is sufficiently clear and foreseeable to conform with the requirement of legality. (iii) Article 5(2) This requires that everyone arrested has to be given the reasons for arrest: in an example of the expansive reading of the Convention in Van der Leer v Netherlands (1990) 12 EHRR 567 the Court held that this language covers all forms of detention and so on the facts included the change of status of a patient from voluntary to compulsory. This means that reasons have to be given for the detention of patients. (iv) Article 5(4) This provides a right for those detained “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”. 1. Right to take proceedings at reasonable intervals This was established in De Wilde and Others v Belgium (1979) 1 EHRR 373, which related to vagrants and applied to the mental health sphere in X v UK (1981) 4 EHRR 188, where the Court said:

52. ... By virtue of Art 5(4), a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is thus in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the

1 contrast with HM v Switzerland (ch 8): Art 5 inapplicable to placement in a home which amounted to restrictions on freedom of movement rather than loss of liberty.

"lawfulness" - within the meaning of the Convention ... - of his detention, whether that detention was ordered by a civil or criminal court or by some other authority.

2. Review must be of the merits of detention See X v UK above. In essence, since the Winterwerp criteria make it plain that the lawfulness of detention rests on matters which may change over time, there is a need to reassess that lawfulness over time. 3. Court must have power to order release See X v UK above: the Court held that domestic law as it then stood – in which the tribunal could only make recommendations as to release in relation to restricted patients - was insufficient because the other court proceedings (habeas corpus or judicial review) involved only an examination of whether lawful procedures had been followed, not whether detention was justified on the merits. The statute was changed to meet this objection2. 4. Speedy hearings In R (KB and others) v MHRT (ch 19(iv)), the High Court applied the principle that countries which sign up to the Convention thereby guarantee that they will be able to comply by its requirements – so the judicial system must be organised to allow speedy hearings and, if there are any problems caused by the lack of resources, they must be addressed. What amounts to speedy is a fact-specific test, so it will depend on the complexity of the case. But some indication of the potential rigours of what is required comes from E v Norway (1990) 17 EHRR 30, where a breach was found when there was a time scale of 8 weeks between application and court judgment. The sequence of events is worth noting. E was transferred from a hostel to a secure setting on 21 July 1988; he applied for a court hearing on 3 August 1988, but did not have one until 7 September 1988, the reasons for the delay being judicial holidays and then difficulties contacting lawyers; the judgment was given on 27 September 1988. In domestic terms, E was akin to a conditionally discharged restricted patient. The need for a speedy review of detention is also relevant in relation to decisions as to whether or not to adjourn (see R (X) v MHRT and R (B) v MHRT, digested in ch 2(ii)). 5. A judicial process must be followed The requirement of a court to review the requirements of detention does not merely mean that there has to be

2 The tribunal cannot force compliance with its orders for conditional discharge in the same way that other court orders are backed up by the police powers of the state: however, this has been held not to be a breach of the Convention: see ch 5(v)

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a judicial body involved, but that there must be a sufficiently judicial process involved: so whilst a specialist judge rapporteur may be involved, he or she must not give the appearance of being biased in the sense that he or she has reached a concluded opinion before the end of the hearing: DN v Switzerland and R (S) v MHRT, digested in ch 9(i); see also ch 19(ii) on bias. In another case, Megyeri v Germany (1992) 15 EHRR 584, the Court found that, in order for the periodic review under Art 5(4) to be effective, there may need to be procedural safeguards to ensure that a case is presented adequately: on the facts of the case, there was a breach in that there was no lawyer involved even though the patient had not wanted one. This may have implications for the way in which r10(3) MHRT Rules is operated, since this authorises the tribunal to appoint a representative for a patient who does not appoint one. (v) Article 8 Issues of the conditions in a hospital setting have to look to Art 8 of the Convention1: this is the right to respect for one’s privacy and home, which again has been given an expansive reading and is understood to cover all aspects of the right to self determination and the essential elements of living as a member of society. However, there have been relatively few situations in which breaches of Art 8, which allows only a proportionate interference, have been found. So, the monitoring and recording of telephone calls by patients in a high secure hospital has been upheld by the High Court on the grounds of security in R (N) v Ashworth Special Hospital Authority [2001] MHLR 77; in R (E) v Ashworth Hospital Authority [2002] MHLR 150, restrictions on cross-dressing by a male patient in the same hospital were upheld on the basis of both therapeutic and security concerns. A third example from the same hospital is R (RH) v Ashworth Hospital Authority [2001] MHLR 241, in which the refusal to allow condoms to be issued because there was a no-sex policy was upheld, despite the dangers of infection with a sexually transmissible disease if the policy was breached. Again, however, it may be that the procedural obligations are more important. Article 8 requires that there be a procedure prescribed by law before any interference can be permitted. A breach of Art 8 can follow irrespective of the proportionality of the interference if there is no proper procedure (which must meet the requirements of legality, namely that the law be sufficiently accessible and predictable). The Code of Practice, and indeed hospital policies which deviate from the Code for good reasons, may provide an adequately certain “law”: see R (Munjaz) v Mersey Care NHS Trust [2005] MHLR 276, HL, which related to a policy on seclusion.

1 or Art 3 in an extreme situation

See also ch 11 relating to nearest relatives; and ch 16 relating to transfer to a hospital closer to a patient’s family.

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Chapter 8 Guardianship See s7ff MHA 1983 as to admission and the effect of guardianship; an order may also be made in criminal proceedings under s37. Section 19 allows for regulations to be made as to the transfer of patients from guardianship to hospital; see Regs 7-9 Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 for transfer from guardianship to detention. There is a right for a patient subject to guardianship to apply to a tribunal, and the transfer to hospital triggers an additional right of application. There are no duties to refer guardianship cases to a tribunal, but see MH (digested in ch 4) in which Baroness Hale noted that there was a low test for allowing patients to authorise others to make applications on their behalf. The powers of a tribunal to discharge guardianship are set out in s72(4), which placed the burden on the patient to demonstrate that the order is not required (though there is also a discretion to discharge). In Bath and North East Somerset Council v AJC [1999] MHLR 184, the council had ignored the decision of a tribunal which purported to grant a deferred discharge of a guardianship order (which was to allow other services to be put in place): their decision to renew the order was quashed on the basis that the tribunal order was valid until set aside. The Court did not decide whether or not the tribunal could defer discharge: since the power to direct discharge on a future date in s73(3) applies only in relation to s2 or s3 patients, its non-application to s7 patients suggests that there is no power to defer the discharge of a guardianship order: however, if the reason for wishing to defer is to allow other care to be put into place (which could not be s117 aftercare, as s117 does not apply), the tribunal may always adjourn under r16 MHRT Rules 1983 and seek further information on what can be put in place. Guardianship and Art 5 - HM v Switzerland [2002] MHLR 209 Facts and outcome: HM, who was born in 1912, was placed in a home by the government (with police assistance) in December 1996 following a request made by the Guardianship Commission and contrary to her wishes: the ground was serious neglect as her flat was inadequately heated and unhygienic, it was not certain that she had enough to eat and she had leg sores and an eye cataract which needed attention. The Cantonal Appeals Commission found that HM had not been looked after adequately, and was suffering from senile dementia (another basis for placement); and that her deprivation of liberty on grounds of welfare assistance complied with Art 5§1(e) on the basis that “vagrancy” was to be understood in a wide sense. (The Commission noted that HM was ambivalent about being in the home; the placement order was lifted in January 1998 when HM agreed to remain there.) In ECtHR proceedings, the

government argued that HM was not detained, but if she was then it was within the concept of vagrancy. The Court held that the distinction between deprivation of liberty (Art 5) and restrictions on liberty of movement (Art 2 of Protocol No 4) is one of degree depending on the specific situation, taking account of factors such as the type, duration, effects and manner of implementation of the measure in question. As HM’s home conditions and medical care were inadequate, the old persons’ home provided the necessary care and allowed freedom of movement and the ability to maintain contacts with the outside world, and as HM was ambivalent about her placement and ultimately agreed to remain there voluntarily, and the placement was in her own interests, there was no deprivation of liberty and Art 5§1 was not applicable (per 5 judges). (Two judges held that HM was detained: one felt it was justified on account of her mental illness; the other disagreed that mental illness was established on the facts.) Judgment (of the majority): … 28. Section 397a et seq of the Swiss Civil Code concern the withdrawal of liberty on grounds of welfare assistance. Section 397 states as follows:

“An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness, mental weakness, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care. In this context, account must be taken of the burden which the person represents for his or her environment. The person concerned must be released as soon as the situation permits it.”

… 42. In order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see Ashingdane v UK (1985) 7 EHRR 528, §41). 43. The Court recalls Nielsen v Denmark (1988) 11 EHRR 175, concerning the placement of a 12 year old boy, at his mother’s request, in the psychiatric ward of a State hospital for 5½ months. In that case, in which no deprivation of liberty within the meaning of Art 5§1 of the Convention was found, the Court considered that:

“70. The applicant was in need of medical treatment for his nervous condition and the treatment administered to him was curative, aiming at securing his recovery from his neurosis. ... The restrictions on the applicant’s freedom of movement and contacts with the outside world were not much different from restrictions which might be imposed on a child in an ordinary hospital: it is true that the door of the Ward, like

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all children’s wards in the hospital, was locked, but this was to prevent the children exposing themselves to danger or running around and disturbing other patients; the applicant was allowed to leave the Ward, with permission, to go for instance to the library and he went with other children, accompanied by a member of the staff, to visit playgrounds and museums and for other recreational and educational purposes; he was also able to visit his mother and father regularly and his old school friends and, towards the end of his stay in hospital, he started going to school again; in general, conditions in the Ward were said to be “as similar as possible to a real home” ... The duration of the applicant’s treatment was 5½ months. This may appear to be a rather long time for a boy of 12 years of age, but it did not exceed the average period of therapy at the Ward and, in addition, the restrictions imposed were relaxed as treatment progressed ... Nor did the intervention of the police, which would have been appropriate for the return of any runaway child of that age even to parental custody, throw a different light on the situation”.

44. Turning to the circumstances of the present case, the Court notes that the applicant had the possibility of staying at home and being cared for by the Lyss Association for House and Sick Visits, but she and her son had refused to co-operate with the Association. Subsequently, the living conditions of the applicant at home deteriorated to such an extent that the competent authorities of the Canton of Bern decided to take action. On 16 December 1996 the Aarberg District Governor visited the applicant at home in order to assess the situation and, as a result, on 17 December 1996 decided to place her in the S old persons’ and foster home on account of serious neglect. On 16 January 1997, after carefully reviewing the circumstances of the case, the Cantonal Appeals Commission of the Canton of Bern concluded that the living and hygienic conditions at the applicant’s home and her medical care were insufficient, and that the particular foster home, which was in an area which the applicant knew, could provide her with the necessary care. 45. Furthermore, it transpires from the Government’s submissions that the applicant was not placed in the closed ward of the foster home (which was uncontested by the applicant). Rather, she had freedom of movement and was able to entertain social contacts with the outside world. 46. The Court notes, in addition, the decision of the Cantonal Appeals Commission of 16 January 1997, according to which the applicant hardly felt the effects of her stay in the foster home, which were mostly felt by her son who did not wish to lose his mother. Moreover, the applicant herself was undecided as to which solution she in fact preferred. For example, at the hearing before the Appeals

Commission, she stated that she had no reason to be unhappy with the foster home. 47. Finally, the Court notes that, after the applicant had moved to the foster home, she agreed to stay there. As a result, the Aarberg District Government Office lifted the applicant’s placement order on 14 January 1998. 48. Bearing these elements in mind, in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances of Nielsen v Denmark, the Court concludes that in the circumstances of the present case the applicant’s placement in the foster home did not amount to a deprivation of liberty within the meaning of Art 5§1, but was a responsible measure taken by the competent authorities in the applicant’s interests. Accordingly, Art 5§1 is not applicable in the present case. … [Note: In relation to liability to detention, a burden being placed on the patient was found to be a breach of Art 5 ECHR and the language of s72 was amended1. Guardianship authorises a requirement to reside at a particular place (and s18 authorises the police or social services to take into custody a patient who is absent from that place and return them there): this gives rise to a question as to whether guardianship with a condition of residence (enforceable by custodial powers) amounts to loss of liberty for the purposes of Art 5. There is a distinction between loss of liberty and restrictions on freedom of movement: see HM (ch 4) and the cases under conditional discharge (ch 5(ii)). In essence, the distinction is one of fact and degree, and the factors include whether restrictions are imposed for the benefit of the patient. But guardianship can be imposed for the protection of others. There are likely to be factual situations where the patient will be detained by virtue of guardianship, in which case it will breach Art 5(4) to place the burden of persuasion on the patient. Although the Court of Appeal in H (see fn 1) felt that it could not construe language apparently placing a burden on a patient so as not to do so, in R (Sim) v Parole Board [2004] Prison Law Reports 44, the Court of Appeal was able to construe a provision that a prisoner be released if detention is no longer necessary “but not otherwise” in fact places a burden on the state to show that detention is required.

1 see ch 7(ii) - R (H) v MHRT [2001] MHLR 48 and the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712)

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Chapter 9 Medical member Schedule 2 MHA requires that each tribunal panel consist of “one or more” medical members; r11 MHRT Rules 1983 requires the medical member (or one of them) to examine the patient and take steps to form an opinion of the patient’s mental condition; the patient “may be seen in private” and the medical records may be examined. The propositions arising from the case law are:

(i) the medical member must not form a concluded view in advance of the end of the hearing; (ii) the medical member can work for the Trust which operates the hospital at which the patient is detained, but not at the same hospital; (iii) fairness requires that the parties be informed of information obtained by and provisional views of the medical member.

One issue which might arise is what should happen if a patient refuses to see the medical member in private. It is to be noted that under r19, a patient who is subject to a supervised discharge who applies to a tribunal but refuses to undergo a medical examination under r11 is deemed to have withdrawn their application. In relation to other categories of patient as r11 gives a discretion to see the patient in private, this must be operated in accordance with the Convention (s3 and s6 Human Rights Act 1998); the question will be whether it is proper on the facts to adjourn the hearing to seek cooperation (which has implications under Art 5(4)) or whether the medical member should conduct an examination with the patient’s representative present or in the course of the tribunal hearing. The latter is less consistent with the rule (since the medical member’s action is to be “at any time before the hearing of the application”); but the effect of s6 of the 1998 Act is that delegated legislation such as the MHRT Rules are ignored if they do not comply with the Convention. (i) Role of Medical Member - Art 5(4) ECHR - doctor also member of court – 1. DN v Switzerland [2001] MHLR 117 Facts and outcome: When DN was refused permission to leave hospital, she applied to the Administrative Appeals Commission to order her release. The Commission appointed Dr RW to act as judge rapporteur. He examined DN, indicated that he would recommend that her appeal be dismissed, and then filed a written report. The bench consisted of a professional judge and 4 others, including Dr RW; it heard evidence from 2 doctors at the clinic and DN; the Commission dismissed DN’s application, relying inter alia on Dr RW’s expert opinion. The ECtHR held that there had been a breach of Art 5(4): judicial review proceedings must provide appropriate guarantees, independence being one of the most important elements of a “court” dealing with such a

sensitive issue as the deprivation of liberty of “persons of unsound mind”. In determining the impartiality of a judge rapporteur, there is both a subjective test (in relation to which impartiality is presumed unless there is proof to the contrary, which was not in issue on the facts) and an objective test, which involved determining whether there were guarantees sufficient to exclude any legitimate doubt as to impartiality; appearances may be important because of the need for confidence in the courts. On the facts, Dr RW was an expert judge who had formed his opinion and disclosed it to the parties before the hearing; as expert evidence is given to assist a court, and it is for the judges to assess it (and all other relevant information and evidence), a legitimate concern as to the impartiality of the court arises under the objective test if it is called upon to assess evidence which has been given by one of its judges in the form of expert advice. As such, DN had a legitimate fear that Dr RW had a preconceived opinion and so was not impartial, which would be reinforced by his position on the bench as the sole psychiatric expert and the only person who had interviewed her, and so a person whose opinion carried particular weight in the decision. Judgment (of the majority of the Grand Chamber): … 41. According to the Court’s case-law, although it is not always necessary for proceedings under Art 5§4 to be attended by the same guarantees as those required under Art 6§1 for criminal or civil litigation, they must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question … 42. It is true that Art 5§4 of the Convention … does not stipulate the requirement of that court’s independence and impartiality and thus differs from Art 6§1 which refers, inter alia, to an “independent and impartial tribunal”. However, the Court has held that independence is one of the most important constitutive elements of the notion of a “court” … In the Court’s opinion, it would be inconceivable that Art 5§4 of the Convention, relating, inter alia, to such a sensitive issue as the deprivation of liberty of “persons of unsound mind” within the meaning of Art 5§1(e), should not equally envisage, as a fundamental requisite, the impartiality of that court. … 44. … impartiality must be determined by a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also by an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect … 45. The personal impartiality of a judge must be presumed until there is proof to the contrary, and in the present case no such proof has been put forward … 46. Under the objective test, it must be determined whether, irrespective of the judge’s personal conduct, there are ascertainable facts which may raise doubts

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as to his impartiality. Account must be taken in particular of internal organisation, though the mere fact that civil servants sit on account of their experience cannot give rise to doubts as to the independence and impartiality of the court … In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public, including the parties to the proceedings. … … 50. The Court has distinguished the following activities of RW as judge rapporteur. First, on 15 December 1994 he conducted an interview with the applicant as a result of which he concluded that “[he would] propose to the court to dismiss the action”. Next, on 23 December 1994 he submitted his expert opinion on the applicant’s state of health in which he stated that “if the applicant’s situation [did] not clearly improve until the date of the hearing, [he would] recommend dismissal of the action”. Five days later, on 28 December 1994, the Administrative Appeals Commission conducted a hearing at which the applicant and other persons were heard; all judges were present, including RW. Finally, still on 28 December, the Administrative Appeals Commission issued its decision which was prepared by all judges, including RW. 51. In view of these various activities, the present case differs, in the Court’s opinion, from proceedings where a judge rapporteur is in a position, after the hearing and during the court’s deliberations, to examine and comment upon specialised evidence, for instance expert opinions, submitted to the court by an external specialist. … 52. Indeed, while it is to be expected that a court-appointed expert will duly transmit the expert opinion, with its conclusions, both to the court and to the parties to the proceedings, it is unusual for an expert judge, as in the present case, to have formed his or her opinion and disclosed it to the parties before the hearing. 53. …in the Court’s opinion, … experts are only called upon to assist a court with pertinent advice derived from their specialised knowledge without having adjudicative functions. It is up to the particular court and its judges to assess such expert advice together with all other relevant information and evidence. An issue will arise as to the impartiality of the court under the objective test if it is called upon to assess evidence which had previously been given by one of its judges in the form of expert advice. The Court must accordingly examine the apprehensions which arose for the applicant in the course of these proceedings. 54. When the applicant attended the hearing before the Administrative Appeals Commission on 28 December 1994, RW had already twice formulated his conclusion – orally during the interview on 15 December, and in writing in his report of 23 December – that, as a result of the psychiatric

examination, he would propose to the Administrative Appeals Commission to dismiss her request for release from detention. In the Court’s opinion, this situation raised legitimate fears in the applicant that, as a result of RW’s position in these proceedings, he had a preconceived opinion as to her request for release from detention and that he was not, therefore, approaching her case with due impartiality … 55. The applicant’s fears would have been reinforced by RW’s position on the bench of the Administrative Appeals Commission where he was the sole psychiatric expert among the judges as well as the only person who had interviewed her. The applicant could legitimately fear that RW’s opinion carried particular weight in taking the decision. 56. In the Court’s view, these circumstances taken as a whole serve objectively to justify the applicant’s apprehension that RW, sitting as a judge in the Administrative Appeals Commission, lacked the necessary impartiality. 57. Consequently, there has been a violation of Art 5§4 of the Convention in the present case. 2. R (S) v MHRT [2003] MHLR 118 Admin Ct Facts and outcome: S, a detained patient who had applied to a tribunal, asked it to disapply r11 MHRT Rules 1983 on the basis that it breached Art 5(4) and so should not be followed in light of s6 HRA 1998. The tribunal refusal was judicially reviewed. The application was dismissed: it was held that r11 requires the medical member to take the steps necessary to form an opinion not to form a concluded opinion as to the condition of the patient before the hearing; to remain impartial and comply with Art 5(4), the medical member must keep an open mind until the end of the hearing and be seen to do so; a provisional view formed before the commencement of the hearing by the medical member is not objectionable, and should be communicated to the parties so that they can deal with it. It was noted that if there is a factual conflict between the medical member and the patient, for example, as to what was said by the patient to the medical member, and that conflict may be material to the decision of the tribunal, the tribunal must consider whether it can properly continue to hear the patient’s application. Stanley Burnton J … [The judge contrasted the position of the medical member with the psychiatrist on a Parole Board lifer panel, who does not examine the prisoner.] 17. It is also clear from the guidance given to tribunal members that r11 gives rise to sensitivity. [The judge quoted various parts of the Members’ Handbook, noting that in relation to medical members it is stated that “6. (in the pre-hearing meeting) … It is usually inappropriate for medical member to give his opinion of the patient’s mental condition at this stage.” And

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“7. (in relation to the questioning of witnesses) … he must appreciate that he performs a dual role at the Tribunal as a fact-finder and as a decision-maker and it is therefore essential that his opinion of the patient’s mental condition, if it differs significantly from that of RMO, should have been disclosed to the patient and the representative at the outset of the hearing. Thus, a situation will be avoided where the members of the Tribunal are acting on the basis of evidence known only to themselves which would, of course, be a breach both of a fundamental principle of natural justice and also of a Human Rights principle, and likely to invalidate the decision.”] … 19. [The judge also quoted the guidance of the MHRT Regional Chairmen on human rights law, and the impact of DN v Switzerland]:

“4.05 The European Court of Human Rights’ decision largely turns upon the fact that the Medical Member had, to all intents and purposes not only formed his opinion prior to the hearing, he had also disclosed it to the parties and other Tribunal members before the hearing. The Court accordingly concluded that the ‘circumstances taken as a whole serve objectively to justify the applicant’s apprehension that [the Medical Member] lacked the necessary impartiality’. 4.06 Medical Members must therefore be very careful not to disclose in the preview their own opinion as to discharge of the patient and must retain an open and judicial mind on the question of discharge until all the evidence has been heard. 4.07 Tribunals must make absolutely sure that any significant findings by the medical member and any factual differences between what the RMO says and what the medical member has found, are laid open for the patient’s representative to explore. This must be done at the start of the Tribunal hearing. It should normally be done by the President, but could be done by the Medical Member. The President should not allow ‘cross examination’ of the Medical Member but should ensure that any differences or additional information are fairly and fully laid open in the hearing at the outset. It is recommended that representatives should not be invited into the Preview to hear the Medical Member’s report.”

... 21. Rule 11 does not expressly require the medical member to form an opinion of the patient’s mental condition: it requires him to take the steps necessary to form his opinion. Quite apart from the requirements of the Convention, I would not interpret it as requiring the medical member to form an opinion before the conclusion of the hearing. To the contrary, it is obvious that the medical member must not form a concluded opinion until the conclusion of the hearing, since otherwise the outcome of the hearing would be prejudged. …

22. As a matter of our domestic law (by which I mean English law apart from the Human Rights Act), there can normally be no objection to members of a tribunal or court forming or discussing their provisional views of a case before the hearing. ... The forming of an opinion before the hearing is normally objectionable only if it is not provisional, liable to be changed by the evidence adduced and the submissions of the parties, but is firm and concluded: in which case the hearing is an ineffective charade. … 23. The general prohibition on the disclosure of the medical member’s opinion before the hearing in the last sentence of para 6 of the Handbook cited above suggests a concern that the communication of the opinion of the medical member to the other members of the tribunal will unduly influence his colleagues. On the other hand, it may be difficult to manage the placing before the parties of the provisional view of the medical member if he has not communicated it at least in outline to his colleagues. In my judgment, as a matter of domestic law, there can be no objection to the expression of a provisional opinion by a medical member of a tribunal to his colleagues before the hearing, provided the other members are aware that it is only a provisional opinion and treat it as such, and provided that they understand that they are free to disagree with it if the evidence and submissions before them lead them to a different conclusion. … [The judge summarised and analysed DN v Switzerland.] 32. In my judgment, “due impartiality” in the present context requires a member of a tribunal not to have a preconceived concluded opinion on the merits of the applicant’s case. The European Court did not suggest that a provisional view formed before the commencement of the hearing is objectionable. If an otherwise impartial and independent member of a tribunal has a preconceived concluded opinion, or if he expresses himself in such a way as to give rise to reasonable apprehension that he has a preconceived concluded opinion, he lacks the necessary impartiality, but not otherwise. 33. It follows that I reject Mr Gledhill’s submission that r11 is inconsistent with the requirements of Art 5.4 as interpreted by the European Court in DN. 34. Rule 11 clearly raises issues which must be handled sensitively. It is imperative that the medical member of the tribunal keeps an open mind until the conclusion of the hearing, and is seen to do so. The guidance cited above at para 7 of the Members’ Handbook must be observed. Furthermore, if during the course of the hearing, it appears that there is a factual conflict between the medical member and the patient, for example, as to what was said by the patient to the medical member, and that conflict may be material to the decision of the tribunal, the tribunal must consider whether it can properly continue to hear the patient’s application. I do not think that I should express a view in the present case as to any

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general rule of practice in such circumstances: it would be better for the issue to be considered on the facts of a particular case, if and when one arises. … (ii) bias – Art 6 – medical member employed by detaining authority at a different hospital – R (PD) v West Midlands and North MHRT [2004] MHLR 174 CA (upholding [2004] MHLR 25 Admin Ct) Facts and outcome: PD was detained under s3 MHA 1983 at a hospital operated by the Mersey Care NHS Trust, which controlled a large number of hospitals; its Adult Mental Health Directorate was divided into 2 geographical areas: the medical member, Dr I, was employed by the Trust at a hospital in one area, D was detained at a hospital in the other. The issue which arose in judicial review proceedings was whether Dr I should have been disqualified on account of bias. The Court of Appeal rejected the application, holding that Dr I was not an officer of the Trust for the purposes of r8(2) MHRT Rules, and could not be considered to be biased merely because he was employed by the Trust as it had no particular interest in the outcome of the proceedings, and both it and a consultant psychiatrist would find the welfare of the patient to be the primary consideration; further, as a consultant, Dr I’s conditions of employment were not susceptible to beneficial or detrimental treatment at the whim of the Trust. It was noted that it might have been different had he been employed at the same hospital. Lord Phillips MR (for the court, including May and Jonathan Parker LJJ) … Rule 8(2) of the 1983 Rules 22. The 1983 Rules are made under the authority of s78 of the Act. Rule 8(2)(b) provides:

“A person shall not be qualified to serve as a member of a Tribunal for the purpose of any proceedings where … (b) he is a member or officer of a health authority which has the right to discharge the patient under s23(3) of the Act.”

It is accepted that Dr I did not classify as a ‘member’ of the Trust for the purpose of this Rule. Mr King submitted, however, that he classified as an ‘officer’. This submission was largely based on the definition of an ‘officer’ in s128 of the National Health Service Act 1977, namely that ‘“officer” includes servant’. That definition applies to the Act in which it is found and to Part 1 of the National Health Service and Community Care Act 1990, which established National Health Service Trusts. It does not apply to the 1983 Rules. Its effect is to extend the natural meaning of the word ‘officer’. There can be no basis for applying that extended meaning in relation to the 1983 Rules unless the context so requires. … 24. The meaning of the word ‘officer’ will depend upon the context in which it is used. The present context is the composition of a Tribunal responsible

for considering whether or not the criteria for detaining a patient in a mental hospital are demonstrated. The object of having a Tribunal hearing is that this question should be considered by a body that is independent of the authority that is detaining the patient. To that end it is natural to exclude from the Tribunal those who manage the affairs of the authority in question. … 25. Our conclusion is thus that the wording of r8(2)(b) does not, of itself, lead to the conclusion that Dr I was disqualified from sitting on the Tribunal. We have to go on to consider whether Mr King is correct to submit that Dr I is disqualified because an employee of the Trust will necessarily not appear to be independent and impartial, if sitting as a member of the Tribunal. If so he will be disqualified regardless of the interpretation of r8(2)(b). If not, there will be no reason to give that Rule the unnatural meaning for which Mr King contends. Dr I’s position as an employee of the Trust … 27. The term ‘party’, in the context of court or tribunal proceedings, usually describes someone who is taking part in those proceedings and who has an interest in their outcome. … 28. The following matters were relied upon by D as demonstrating that the Trust was a party with an interest in the outcome of the Tribunal hearing:

“(i) The application for the Appellant’s admission to hospital would have been made to the hospital managers (s11(2) of the 1983 Act). In the case of a hospital that forms part of a trust, the managers are the trust (s145(1) ...). As a consequence it is implicit that the trust is responsible for the decision to detain the Appellant; (ii) At any stage during the Appellant’s detention he can be discharged by the trust (s23(2) ...). As a consequence it is implicit that the trust is responsible for the continuing detention of the Appellant; and (iii) This submission is consistent with r2 of the MHRT Rules 1983 ..., which expressly provides that a trust providing accommodation for a patient is the ‘responsible authority’ and hence a ‘party’ to proceedings. Rule 2 implicitly recognises the role that Mersey Care plays in detaining the Appellant.”

These factors demonstrate why the Trust was interested in the Tribunal hearing. They do not, however, demonstrate that the Trust had any particular interest in the outcome. Mr King advanced two arguments as to why the Trust might wish D’s application to the Tribunal to be dismissed. The first was that the Trust might have a financial motive to retain D as a patient. The second was that the Trust might be concerned that, if the Tribunal ordered D to be discharged, this would demonstrate that D was being wrongfully detained and might result in D bringing a claim for damages.

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29. We consider that both of these submissions are fanciful. [The judge referred to the Code of Practice of March 1999 and its Guiding Principles.] These principles demonstrate, as one would expect, that the primary consideration of a Trust in relation to patients detained under the Act is the welfare of those patients. Trusts are not profit-making institutions. There is no reason to believe that a Trust will benefit financially by keeping a patient detained. … We have no hesitation in rejecting the suggestion that any reasonable and informed member of the public would suspect that an NHS Trust was anxious to keep in detention patients whose condition did not justify this in order to improve their cash flow. 30. The judge found paradoxical the suggestion that a Trust might wish a Tribunal to reject an application for the discharge of a patient because of the fear of being sued for wrongfully detaining him. We do not find the suggestion paradoxical. … Once again, however, we regard as fanciful the suggestion that a Trust would hope for a Tribunal finding adverse to its patient for this reason. 31. We can envisage reasons why those responsible for the detention of a patient under the Act, such as the RMO and the hospital managers, might hope that a Tribunal would not direct the patient’s discharge. Having formed the view that the need for treatment justified the detention of the patient, self-esteem might make them wish to see their assessment upheld by the Tribunal. They might also believe that, if the Tribunal formed a different view, this would not be in the best interests of the patient and the public. In general, however, we do not consider that the reasonable and informed member of the public would expect the managers of a Trust to be overly concerned should a Tribunal decide to direct the discharge of a patient. 32. We are not, of course, directly concerned with the reaction of the managers of the Trust should the Tribunal direct the discharge of a patient. The question is whether the reasonable and informed member of the public might suspect that someone in the position of Dr I would be so concerned at the potential reaction of the managers of the Trust, and the implications of such reaction for his own position, that this might consciously or unconsciously affect his decision. 33. … We consider that that observer would expect a consultant psychiatrist to apply the same concerns for the welfare of a patient, whether that patient was the consultant’s own, or a patient whose liberty depended upon the objective clinical judgment of the consultant in the context of a Tribunal hearing. … 35. … An employer who decides on an employee’s remuneration, location, conditions of service and promotion will be in a position to affect an employee beneficially or detrimentally. Positive evidence was adduced about Dr I’s status and terms of employment as a consultant psychiatrist, which showed that he

was not susceptible to beneficial or detrimental treatment in these matters at the whim of the Trust. We can see no way in which dissatisfaction with or approval of Dr I’s decisions as a member of the Tribunal would or could lead to a difference in the way that he was treated by the Trust. Nor do we consider that the reasonably informed observer would have reached any different conclusion. 36. We question whether the considerations that we have been discussing are aptly to be described as ‘safeguards’. None of them is a precaution put in place to ensure that Dr I can serve on a Tribunal without apprehension as to the consequences for him of the Tribunal’s decision. They are no more than features of the particular circumstances of Dr I’s employment, and of the nature of his employer, that render it impossible for a reasonable and informed observer to question his independence and impartiality as a member of the Tribunal. … Contact with those responsible for D’s detention 37. … Had he been employed at the Rathbone hospital where D is detained, there might have been reasonable apprehension that he would have come into contact with those actually responsible for D’s detention – the RMO, the social worker concerned and the hospital managers. In that event, there might also have been reasonable apprehension that, out of respect for, or friendship with, those concerned Dr I might have been reluctant to express a view which differed from that which they had reached. No suggestion of apparent bias on such grounds was, or could have been made, on the facts of this case. … (iii) Fairness - steps required to pass on medical member’s findings – 1. R v MHRT, London North and East ex p H [2000] MHLR 242 Admin Ct Facts and outcome: In judicial review proceedings1, one of the issues which arose was what fairness required in terms of disclosure of the opinion of the medical member. It was held to require that if the medical member is taking into account or is drawing to the attention of other members of the tribunal evidence or his views as an expert, then the patient and his advisers should be alerted to such evidence and such views in sufficient detail, and sufficiently early in the proceedings, to enable them to deal with them (which had been done on the facts). Crane J … 56. … what is required, in my judgment, as a matter of fairness and of natural justice at common law, is that if the medical member is taking into account or is drawing to the attention of other members, either evidence or his views as an expert, then the claimant and his advisers should be alerted to such evidence

1 More fully described under ch 5(i)

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and such views in sufficient detail, and sufficiently early in the proceedings, to enable them to deal with them. [On the facts, the judge was satisfied that this test was met; he relied on a statement from the Tribunal president that

“8. Dr Nott did not make a formal statement during the hearing putting those present on notice that he disagreed with the evidence of the witnesses. However I believe that it was clear from the issues which were raised by Dr Nott during the examination of the witnesses and the way in which those issues were put to the witnesses that his views were different from those of Dr Basson and Dr Somekh. I have already referred in paras 5 and 6 to 2 instances in which Dr Nott’s views were made plain in the course of his examination of witnesses. He put to Dr Basson the basis for his view that the patient did not have insight, ie that he had said that he was not ill and that the voices he heard were not a sign of illness. In cross examining him Dr Nott also put to Dr Basson his view that [H’s] desire for a second opinion led him to conclude that the patient did not have insight and could not be expected to take medication if discharged. 9. Dr Nott’s views were not specifically put to Dr Somekh. Dr Somekh had indicated that his view on this case was exactly the same as that of Dr Basson, and Dr Nott’s views had already been fully canvassed with Dr Basson.”]

2. R (S) v MHRT – see above at para 34. 3. R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority – see ch 2(i) In the Administrative Court ([2002] MHLR 13), Stanley Burnton J commented:

“86. Secondly, it appears from Mr Lloyd’s note that at no stage of the hearing before the Tribunal announced their decision were the parties before the Tribunal informed of the findings of Dr Cashman as a result of his interview with H. The parties should be given the opportunity to address and to comment on any significant findings of the medical member, both because fairness so requires and because they may have comments or evidence to put before the Tribunal that may lead it to depart from the provisional opinion formed by the medical member. That this should be the practice is supported by the guidance from Regional Chairmen of MHRTs referred to at p159 of the Leggatt Report on Tribunals and in para 57 of the judgment of Crane J in R (H) v MHRT.”

In the Court of Appeal ([2002] MHLR 314), Dyson LJ for the Court quoted para 86 with approval, stating:

84. … It seems to me both fair and sensible that, if the medical member of the tribunal has formed any views on the basis of his or her interview with

the patient, the substance of those views should be communicated to the patient and/or those who are representing him. I cannot think of any good reason why this should not be a requirement, although I would not wish to rule out the possibility of exceptional cases where such a course may not be practicable.”

4. R (KW) v Avon and Wiltshire Mental Health Partnership NHS Trust and Bristol City Council [2003] MHLR 315 Admin Ct. Facts and outcome: A tribunal discharged a s2 detention on the basis that it was not satisfied that it had been shown that there was a mental disorder, which meant that it rejected the evidence of the RMO that there was a disorder. The decision was quashed on the grounds that it gave no reasons for its conclusion that there was no mental disorder and had acted unfairly by not giving advance notice that it doubted the existence of a mental disorder (which must have been based on the view of the medical member). Silber J ... 21. In the present case, it is impossible to know from its reasons why the Tribunal decided that KW was not suffering from a mental disorder. … The Tribunal gave no reasons for rejecting the evidence of Dr O’Connor, which was the only psychiatric evidence before it on this issue. Their reasons provided no explanation as to what it considered to be the cause or nature of KW’s symptoms. The Tribunal simply did not explain why it considered that KW did not have a mental disorder. … 24. The Tribunal failed to inform the parties at the hearing of the findings of Dr Mian, the medical member, as a result of his interview with KW. … 25. If, as may reasonably be assumed to be the case in the light of the Tribunal’s conclusion that KW did not have a mental disorder, Dr Mian must have made findings relevant to the existence of a mental disorder, or had formed a provisional opinion as to the existence or otherwise of a mental disorder. That view should have been shared with Dr O’Connor in the course of the hearing. In fact neither Dr Mian nor any other member of the Tribunal gave any impression that they doubted the existence of a mental disorder (supplemental statement of Dr O’Connor, para 7).

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Chapter 10 Mental disorder (i) Mental disorder Section 1 MHA sets out the definition of mental disorder as “mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind”. It then provides in s1(3) that it cannot arise “by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs”. Note that aside from for s2 patients and those admitted under the provisions of the Criminal Procedure (Insanity) Act 1964 (as amended), the patient must be classified under one of the four specific forms of mental disorder (or more than one): ie mental illness, mental impairment, severe mental impairment or psychopathic disorder. However, since those admitted under the 1964 Act are treated as if detained under a hospital order, a tribunal which upholds their detention must be satisfied that one (or more) of the specific forms of disorder applies. Case law indicates that:

Mental disorder cannot be equated with having irrational thought processes

See also Reclassification, Treatability and Treatment. R v Collins ex p S [1998] 3 WLR 936 CA Facts and outcome: This case involved the detention under s2 MHA of a pregnant woman who refused to accept that natural childbirth was dangerous to her and her child because she was suffering from pre-eclampsia (and on whom the High Court subsequently authorised a Caesarian section). The Court of Appeal declared that this had been wrong. Judge LJ (for the Court, including Butler-Sloss and Robert Walker LJJ) (957) The Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual, even apparently bizarre and irrational, and contrary to the views of the overwhelming majority of the community at large. The prohibited reasoning is readily identified and easily understood. Here is an intelligent woman. She knows perfectly well that if she persists with this course against medical advice she is likely to cause serious harm, and possibly death, to her baby and to herself. No normal mother-to-be could possibly think like that. Although this mother would not dream of taking any positive steps to cause injury to herself or her baby, her refusal is likely to lead to such a result. Her bizarre thinking represents a danger to their safety and health. It therefore follows that she must be mentally disordered and detained in hospital in her own interests and those of her baby. The short answer is that she may be perfectly rational and quite outside

the ambit of the Act, and will remain so notwithstanding her eccentric thought process. (ii) Mental Illness The only one of the four categories of mental disorder not defined is mental illness. Case law indicates that:

The phrase must be given its natural meaning. W v L [1974] QB 711 CA Facts and outcome: In the context of the displacement of the nearest relative of a patient whom the professionals wished to place under the equivalent of s3 MHA 1983 (s26 MHA 1959), there was a consensus that the patient in that case suffered from psychopathic disorder (he had killed various pet animals and held a knife to his wife’s throat), but the 1959 statute only allowed admission under that category until the age of 21 and he was 23. There had also been a consensus that there was no mental illness, but a consultant psychiatrist expressed the view that there was a mental illness as well. Part of the argument in the case was whether there was in fact mental illness as opposed to a doctor using the wrong label because of a defect in the statutory scheme. Two members of the court made no comment as to what is meant by mental illness, saying merely that it had been open to the trial judge to find that the evidence of the consultant was acceptable. However, Lawton LJ went further and suggested that the words be construed as ordinary people would construe them. Lawton LJ (719) The words are ordinary words of the English language. They have no particular medical significance. They have no particular legal significance. ... ordinary words of the English language should be construed in the way that ordinary sensible people would construe them. That being, in my judgment, the right test, then I ask myself, what would the ordinary sensible person have said about the patient's condition in this case if he had been informed of his behaviour to the dogs, the cat and his wife? In my judgment such a person would have said: "Well, the fellow is obviously mentally ill." If that be right, then, although the case may fall within the definition of "psychopathic disorder" ..., it also falls within the classification of "mental illness"; and there is the added medical fact that when the EEG was taken there were indications of a clinical character showing some abnormality of the brain. It is that application of the sensible person's assessment of the condition, plus the medical indication, which in my judgment brought the case within the classification of mental illness and justified the finding of the county court judge.

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[The first part of Lawton LJ’s test – ie the “obviously mentally ill” test - is of little real assistance, since it amounts to a circular argument that ‘what you do is what a mentally ill person would do and so you are mentally ill’. It therefore comes close to what was said in Collins above to be impermissible: namely, ‘you have bizarre views of the sort that a mentally-ill person would have and so you are mentally-ill’. There was the additional feature in W v L that there was an abnormal feature found in a brain-scan: it is perhaps the combination of strange behaviour and an organic cause together which should be taken as the assistance to be gathered from this case.] (iii) Mental Impairment This is “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 …” Case law establishes that

Mental impairment must be given a restricted meaning.

Re TF (A Child: Guardianship) - JF v LB Hackney [1999] MHLR 175 CA Facts and outcome: TF, who was 17 but had a mental age of 5-8, and her 7 siblings were removed from the family home pursuant to emergency protection orders under the Children Act 1989: the local authority’s concerns were based on poor parenting skills, poor hygiene at the home, and exposure of the children to adults prone to sexual abuse. As TF was over 16, no interim care order could be made. When her parents withdrew their consent to her remaining in a children’s home and TF indicated that she wished to return home, the local authority applied for a guardianship order under s7 MHA 1983 on the basis of mental impairment. The issue for the Court of Appeal (in the context of an appeal from displacement proceedings as TF’s nearest relative objected to the guardianship application) was whether TF was mentally impaired. The Court held that a restrictive meaning was to be given and a natural desire to return home was not “seriously irresponsible” conduct and so the 1983 Act could not have been used; it also held that wardship proceedings should have been used.1 Thorpe LJ (for the Court including Evans and Mummery LJJ) … 8. In expressing our preference for a restrictive construction of mental impairment associated with seriously irresponsible conduct we refer back to the

1 Subsequently, after TF passed the age for wardship, the Court of Appeal held that it was open to the High Court to use its declaratory jurisdiction to control TF’s residence: Re TF (An Adult: Residence) [2000] MHLR 120

Mental Health Act 1959. [The judge noted that when the term was introduced in the Mental Health (Amendment) Act 1982 to replace ‘subnormality’, the government indicated in Parliament that the new phrase was designed not to be used except for a ‘small group’ and so it was defined as ‘associated with abnormally aggressive or seriously irresponsible conduct’.] ... 13. Finally in approaching the construction of this statutory phrase it must be remembered that it not only exposes the patient to the regime of guardianship but also to detention, subject to the requirements of s2(2)(b) being also satisfied. 14. Opting as we do for a restrictive construction what is its application to T’s case? The urge to return is almost universal. Research has demonstrated that of children severed from their home by care orders 92% return by the age of 18. (See Children Going Home: Bullock, Little & Gooch - Ashgate 1998.) It seems easy to understand why. The deficiencies of the home are more apparent to other adults than to the young who have known no other. Furthermore any measure of irresponsibility must depend upon an evaluation of the consequences of return. How great are the shortcomings and what are the perils and what is the degree of exposure? … Clearly each case must depend on its particular facts and we would not wish to be taken as offering any general guideline. But it is our opinion that it is simply inapt to construe T’s determination as constituting seriously irresponsible conduct. … [The Court then dealt with the reasons why wardship was more appropriate even though it could only run until TF’s 18th birthday.] (iv) Psychopathic disorder This is a “persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct”. The propositions arising from case law are:

(i) there is no need for current abnormally aggressive or seriously irresponsible behaviour; (ii) the exclusion of sexual deviancy from the definition of mental disorder may not prevent the detention of those whose conduct is deviant.

1. R (P) v MHRT [2002] MHLR 253 CA (upholding [2002] MHLR 250 Admin Ct) Facts and outcome: In 1992 P was detained under a hospital order and restriction order, categorised as suffering from psychopathic disorder, following his conviction for manslaughter: he challenged a tribunal refusal to release him, arguing that the absence of any aggressive or irresponsible conduct for several years meant that the legal definition of psychopathic disorder was no longer met. The issue was whether

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current such conduct (or incipient conduct curtailed by nursing intervention) was necessary; a contrast was drawn with the definition of “mental impairment”, which requires an association with abnormally aggressive or seriously irresponsible conduct. The application was dismissed on the basis that there is no requirement for current abnormally aggressive or seriously irresponsible conduct: past such behaviour and a risk of future such behaviour will suffice; although the absence of recent such conduct may mean that the disorder no longer exists, it may also mean that it has not recently manifested itself in such conduct. So the tribunal must have regard to the likelihood of that behaviour, which is a feature of the disorder, occurring. Pill LJ … 21. The judge's conclusion was at para 27: “In my judgment, the definition of psychopathic disorder requires that the disability of mind should be one which is either liable or capable of resulting in abnormally aggressive or seriously irresponsible conduct. It is then a matter for medical judgment, of the judgment of a Tribunal, whether, if those conditions are satisfied, it is necessary for the patient to be detained by reason of the nature or degree of his illness and in accordance with the statutory questions reflected in the pro forma decision of the Tribunal.” … 23. … the question which the medical evidence is required to address … is whether there is a psychopathic disorder as defined in the statute. The extent to which abnormally aggressive or seriously irresponsible conduct now occurs may throw light on whether there is a psychopathic disorder, but the disorder may still exist, even if there has been no such conduct for several years. 24. The conduct or absence of it may assist in deciding whether the disorder exists, but it may continue to exist without proof of such conduct in the recent or fairly recent past. The task of the Tribunal is to decide on the evidence, not what has resulted from the condition, but whether the condition exists at the material time. 25. Hospital treatment of the kind undergone by P may have no effect on a patient, but if it has a beneficial effect in terms of there having been a reduction or an elimination of the conduct defined in the section, there are 2 possible consequences. The first is to create a situation in which the patient is no longer suffering from psychopathic disorder. … In my judgment there is a second, which is that the condition continues to exist but has not recently manifested itself in abnormally aggressive or seriously irresponsible behaviour. In considering whether the disorder continues to exist, the Tribunal must have regard to the likelihood of that behaviour, which is a feature of the disorder, occurring. 26. I have no difficulty in accepting that the Tribunal were entitled to decide that a disorder which

admittedly existed in 1992, still existed in 2001, even though, because of successful management of the condition, no abnormally aggressive or seriously irresponsible conduct has occurred for several years. 27. I have no difficulty with the fact that the expression “associated with” is used in the case of other disorders as distinct from the expression “results in”, in the definition now under consideration. Psychopathic disorder is defined by reference to a susceptibility to aggression and irresponsible behaviour in a way that is not the case with other conditions, in relation to which the expression “associated with” is appropriate. … 30. …Whether it is possible to make a diagnosis of psychopathic disorder, without there ever having been conduct amounting to abnormal aggression or serious irresponsibility, a point raised in the course of argument, does not require decision in this case. Indeed, it is extremely unlikely ever to arise in the present context. In my judgment, it was appropriate in this case, for reasons already given for the judge to use the expression “liable or capable of resulting” as he did in his judgment. The possibility or likelihood of further conduct within the meaning of the section is also plainly appropriate to the risk assessment which, as part of its responsibilities, the Tribunal is obliged to undertake. … Chadwick LJ (with whom Clarke LJ agreed) … 43. … I accept, of course, that the Tribunal must address the question whether the patient suffers from a persistent disorder or disability of mind which is current at the time when the matter is before them. But I do not accept that that disorder of mind cannot fall within the statutory definition of psychopathic disorder unless that disorder causes him, at that time, to engage in abnormally aggressive or seriously irresponsible conduct. 44. It is enough, in my view, that the disorder of mind has done so in the past and that there is a real risk that, if treatment in hospital is discontinued, it will do so in the future. That that is the true meaning and effect of the statutory definition which is to my mind the proper conclusion when the definition is construed in the context of the other provisions of the Act. [His Lordship referred to the requirements in ss3 and 37 that psychopathic disorder be treatable before admission is possible, and accordingly that such a patient is likely to be received treatment.] 46. It is plain, therefore, that a person who has been diagnosed as suffering from psychopathic disorder and has been admitted to hospital on the basis of that diagnosis, is likely to be undergoing treatment which will be designed either to cure his tendency to abnormally aggressive or seriously irresponsible conduct or, at least, to suppress it by removing whatever outside influences may stimulate or give rise to a tendency to aggression or irresponsibility. It

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would be bizarre if Parliament had intended that treatment which was successful to the limited extent of suppressing abnormally aggressive or seriously irresponsible conduct should be discontinued simply because the conduct was being suppressed; notwithstanding that but the disorder of mind had not been cured. In those circumstances, it is cannot have been intended that psychopathic disorder should depend upon current symptoms of abnormal aggressive or seriously irresponsible conduct. 47. The contrast between the definition of psychopathic disorder and the definitions of severe mental impairment and mental impairment - in s1(2) of the Act - is a contrast between a disorder of mind which causes or has caused abnormally aggressive and seriously irresponsible conduct and a state of arrested or incomplete development, which is associated with, but not necessarily causative of, such conduct. 48. There is no justification, in my view, in giving to the phrase “persistent disorder which results in conduct” a meaning which requires a current manifestation of such conduct. … 2. The impact of s1(3) MHA 1983 In R v MHRT ex p Clatworthy [1995] 3 All ER 699, a case primarily concerned with reasons, Mann J considered that the language in s1(3) that mental disorder cannot arise ‘by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’ “is apparently to prevent there being a condition of psychopathic disorder when the abnormally aggressive or seriously irresponsible conduct is conduct which is a manifestation of sexual deviancy.” However, in Wilkinson v Secretary of State for Scotland [1999] MHLR 17, the Inner House of the Court of Session, considering similar language, emphasised that the phrase “by reason only” means that it is possible to detain someone whose tendency to engage in abnormally aggressive and seriously irresponsible conduct is manifested in a sexually deviant manner: such a person is detained on account of a disorder not only by reason of the deviancy. These two judicial comments are apparently in conflict.

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Chapter 11 Nearest Relative The role of the nearest relative (including in tribunal proceedings as an applicant or party) was summarised in R (M) v Secretary of State for Health [2003] MHLR 254 by Maurice Kay J:

“4. The nearest relative plays an important part in the scheme of the Act. He may make an application for admission for assessment (s2), an emergency application for admission for assessment (s4) and an application for admission for treatment (s3). No application for admission or treatment under s3 may be made by an approved social worker without first consulting with the nearest relative unless the social worker considers that such consultation is not reasonably practicable or would involve unreasonable delay (s11(4)). The manager of a psychiatric institution in which a patient is detained has to inform the nearest relative in writing about, amongst other things, the right to apply to a MHRT, the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (s132(4)). A nearest relative may order the discharge of a patient who is detained under s3 (s23). Prior to exercising this important power the nearest relative can appoint a medical practitioner to examine the patient and the appointed practitioner can require the production of records relating to the detention or treatment of the patient (s24). The right to order discharge under s23 is limited when the responsible medical officer certifies that the patient would, if released, be likely to be a danger to himself or others (s25). Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (s133(2)). 5. In addition to the power to order a discharge under s23 the nearest relative may apply to a MHRT for the discharge of the patient pursuant to s66. Moreover if someone else makes an application to the MHRT, the nearest relative must receive notice of the proceedings pursuant to r7(d) of the MHRT Rules. The nearest relative then becomes a party to the proceedings in the Tribunal “unless the context otherwise requires” (r2(1)). Once a party to the proceedings, the nearest relative is entitled to be informed as to their progress and may be represented in the proceedings, may appear at the hearing and take such part in the proceedings as the Tribunal thinks proper (r22(4)). As a party, he will also receive the decision of the Tribunal and the reasons for it (rr24 and 23). Where the nearest relative is the applicant to the Tribunal he may appoint a registered medical practitioner to visit and examine the patient and that practitioner may require production of and inspect any records

relating to the detention and treatment of the patient (s76(1)). As the applicant, the nearest relative may attend the Tribunal hearing, be heard by the tribunal, call witnesses and cross examine the witnesses (r22(4)). Moreover, as an applicant, he also receives a copy of every document received by the Tribunal (r12(1)). Some of these provisions may be modified by the Tribunal in the interests of the patient.”

The rules for the identification of the nearest relative are contained in s26 MHA: in essence, there is a list of degrees of relative in order of priority; if there are two or more of the same priority, the elder is the nearest relative; however, if the patient “ordinarily resides with or is cared for by” a relative, that relative becomes the nearest relative (or the elder if there are more than one). The patient may not change their nearest relative1. The propositions arising from the case law are:

(i) the test of “caring for” in s26(4) involves giving the ordinary meaning to the words; (ii) statutory language should be construed where possible to reflect any wish of the patient not to have their nearest involved if that is necessary to comply with Art 8 ECHR; (iii) the nearest relative of a restricted patient does not necessarily become a party to tribunal proceedings.

See also ch 6(ii) and (iii) relating to tribunals following barring order and during displacement proceedings. (i) "Caring for" patient so as to become "nearest relative" - test – Re D (mental patient: nearest relative) [2000] MHLR 50 CA (upholding [1999] MHLR 181 Admin Ct) Facts and outcome: D challenged the lawfulness of his detention under s3 MHA 1983 on the basis that the social worker had consulted his younger child rather than his older child as the nearest relative and so had consulted the wrong person; the case for the social worker was that the right person had been consulted because the younger child “cared for” within s26(4) and so was nearest relative. The factual basis for this was that she visited her father weekly, carried out functions such as laundry, and ensured that his financial affairs were in order, including paying his water bill. The application was dismissed as (i) the younger child’s services were more than minimal and amounted to “caring for” her father (ii) in any event, the issue under s11(4) was who appeared to the social worker to be the nearest

1 In M, the judge granted a declaration of incompatibility in relation to this, as the nearest relative in involved in matters which engage Art 8: the problem had already been identified in litigation in the European Court: see FC v UK [1999] MHLR 174; JT v UK [2000] MHLR 254.

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relative, ie the honesty of the social worker’s view: the question for the court was whether his decision was plainly wrong, which it was not. Otton LJ … 15. … First, as a matter of construction ... I do not accept that the word “ordinarily” qualifies “resident” and “cared for” in s26(4). If this had been the intention of the draftsman he would have omitted the word “is” between the words “or” and “cared for”. Moreover, the concept of “ordinarily resident” is well established in English jurisprudence. In any event, in the context of this section I doubt whether if “ordinarily” were placed before to qualify “cared for” this adds anything to Mr Gledhill’s argument or in any way affects the outcome of this case. Second, the words “care for” are not defined in the Act. However, they are clear and everyday words set in a context where the approved social worker has to act in a pragmatic and common sense manner in a situation which is fraught with emotion and difficulty. In my view, the words do not call for or require the qualification or elaboration contended for to give them their common and everyday meaning and effect. .... Lorraine could qualify as a carer, provided her services were more than minimal, even though they fell short of the long term care which was the expression used by Mr Gledhill in argument to cover and include the definition in the [Carers (Recognition and Services) Act 1995]. [The judge set out that the question for the court was whether the person consulted by the ASW was someone who appeared to be the nearest relative, that being the requirement of s11(4). This was held not to impose any duty of reasonable inquiry (in relation to which see also R (WC) v (1) South London & Maudsley NHS Trust (2) David Orekeye [2001] MHLR 187). The question for the court was the honesty of his assertion as to who appeared to be the nearest relative, which involved asking whether his decision was plainly wrong.] [Note: in the tribunal context, the right to apply to the tribunal belongs to the nearest relative rather than the person “appearing to be” the nearest relative. This is clearly a stricter test; the rules as to being a party to proceedings are, however, more lax: the person named by the hospital as exercising the powers of the nearest relative (under r7) is a party by virtue of the definition in r2.] (ii) Consultation - practicability – effect of patient’s wishes – R (E) v Bristol City Council [2005] MHLR 83 Admin Ct Facts and outcome: E, who had been detained under the MHA 1983 several times, did not want her nearest relative, her sister, involved with her care at all; E’s psychiatrist considered that it would be unhelpful to her mental health for her sister to act as nearest and the sister agreed to delegate her responsibilities to the local authority. However, it felt that it remained

obliged to inform her (s11(3) MHA) and to consult her (s11(4)). A judicial review challenge to this succeeded on the basis that the language of ss11(3) and 11(4) – which required the local authority to take such steps as to informing or consulting the nearest relative as are “practicable” - allowed it to avoid contact which was contrary to E’s wishes, could harm her health, and would either be futile or give E’s sister the opportunity to interfere in E’s life; the alternative construction suggested in the Code of Practice – that practicability was a matter of availability rather than appropriateness - was too restrictive and could lead to positive injustice in breach of E’s Art 8 rights. Bennett J … 9. It would seem clear to me that this Mrs S is not an appropriate person to carry out the many powers and responsibilities given to her as the claimant's nearest relative under the Mental Health Act 1983. I say that because (i) the claimant does not want her as her nearest relative, (ii) it might be positively harmful to the claimant's mental and emotional well-being for Mrs S so to act, and (iii) Mrs S, it seems, does not wish so to act. Indeed, if it is necessary I would go so far as to find that it is not in the best interests of the claimant for Mrs S to be involved in any way with the claimant and, in particular, with the assessment and/or treatment of the claimant's mental health problems. [The judge then noted that there was no provision in the Act for E to change her nearest relative from S. He also considered the role of the nearest relative, noting that he or she was “entitled to take actions affecting the fundamental rights of the patient and to have access to sensitive information concerning the patient.”] 17. It seems to me, in the circumstances of this instant case, that the claimant's rights under Art 8 either have been interfered with or are in real danger of being interfered with. [The judge then set out s11(3) and (4)] 18. So in the claimant's case, prima facie, the approved social worker is obliged to inform the nearest relative under subs(3) and consult with her under subs(4). If such were to happen it would be against the claimant's express wishes and it could harm her health. Furthermore, in my judgment such contact with Mrs S would either be futile, as Mrs S would take no interest in the matter, or it might give Mrs S the opportunity to interfere even benevolently, as she might see it, in the life of the claimant. 19. However, within both subss(3) and (4) are the words "as are practicable" and "not reasonably practicable" respectively. Can these words be so legitimately interpreted so as to retrieve the approved social worker, in the instant case, of having to inform, under subs(3), and/or consult, under subs(4), with

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Mrs S. In my judgment they can, for the reasons which I will now give. 20. Section 3(1) of the Human Rights Act 1998 requires the court, in construing s11 of the Mental Health Act, so far as possible, to interpret it in a way which is compatible with the claimant's rights under the European Convention. In my judgment that is perfectly possible. Indeed, even without that statutory imperative, "practicable" and "reasonably practicable" can be interpreted to include taking account of the Claimant's wishes and/or her health and well-being. [The judge referred to case law in other contexts; and also the fact that para 2.16 of the Code of Practice issued under s118 of the 1983 Act stated that "Practicability refers to the availability of the nearest relative and not to the appropriateness of informing or consulting the person concerned."] 28. However, in my judgment, the Code of Practice is issued for guidance. It does not have the force of a statute. In any event, in my judgment, the passage I have quoted from above is wrong. The author, with respect, has fallen into the trap of confusing the different concepts of "possibility" and "practicability". The words in para 2.16 are contrary to the authorities I have referred to and, with respect, to common sense. Is the approved social worker really bound to inform/consult the nearest relative of a patient who may intensely dislike a patient and/or who would, or might, not act in the patient's best interest? The answer in, my judgment, is, of course not and particularly so where the patient, as here, is competent and has strongly expressed her wish that her nearest relative, Mrs S, is not informed or consulted. 29. Is, therefore, the defendant, or the approved social worker, relieved of the duty to inform (s11(3)) and consult (s11(4)) with Mrs S in the particular circumstances of this case? That, in my judgment, requires a balancing act to be performed … On the one hand, Parliament clearly intended for the nearest relative of a patient to have the opportunity of playing a significant role in the protection of the patient or otherwise acting in his or her interests. … It is not lightly to be removed by invoking impracticability. On the other hand, to confine practicability, as does the Code of Practice, is far too restrictive and could lead and, in my judgment, would lead to positive injustice in the breach of the claimant's rights under Art 8. … In all the circumstances of the case, I would hold that it is not practicable for the defendant to carry out its duty to inform under s11(3) and to consult under s11(4). [Note: the context of this case was the language of practicability in s11. The similar issue for the tribunal will be whether a nearest relative should be involved as a party contrary to the patient’s wishes that his or her privacy be respected: there is no language of practicability available, and so the tribunal will have

to confront the issue of whether provisions in the MHRT Rules can be construed in a manner compatible with Art 8 (under s3 Human Rights Act 1998) and if not whether it would be lawful to follow them: the rules are delegated legislation and so not necessarily saved by s6(2) of the 1998 Act; accordingly, it will most likely be a question of proportionality, which will depend on all the circumstances, including for example whether the release of the patient will directly affect the nearest relative. If the nearest relative is the applicant to the tribunal, that will introduce the additional element of an inevitable right to be involved as a party which may attract Art 6 rights.] (iii) Restricted patient - whether nearest relative party to proceedings – R (H) v MHRT [2000] MHLR 203 Admin Ct Facts and outcome: H was a restricted patient whose offence was the manslaughter of his parents. When he applied to a tribunal, the hospital included on the statement of information required in Part A of Sched 1 to the MHRT Rules 1983 the name of H’s nearest relative, his sibling, the effect of which was that she became a party to the proceedings (and made written representations in opposition to H’s application). H did not wish him to know the outcome of the tribunal, and sought an order to prevent the tribunal following r24, which requires the decision to be notified to all parties, on the basis that he should not have been made a party. The Court upheld the claim, as the nearest relative of a restricted patient has no statutory role to play under the Act and the 1983 Rules defined “nearest relative” to exclude the nearest relative of a restricted patient; and so the Part A statement should not have named the nearest relative, thereby preventing them becoming a party automatically, though the tribunal may make them a party as a person taking a close interest in the case. Longmore J … [The judge referred to the statutory scheme, including the provisions of Sched 1 of the Act, which result in the position that the nearest relative of a s37 patient may apply to a Tribunal but not if there is also a restriction order.] 26. I come to the Mental Review Tribunal Rules of 1983. There is an interpretation section and that provides relevantly a definition for the purpose of the Rules … of the nearest relative, which is:

“... a person who has for the time being the functions under the Act of the nearest relative of a patient who is not a restricted patient.”

27. The definition of the word “party” is:

“... the patient, the responsible authority, any other person to whom a notice under r7 or r31(c) is sent or who is added as a party by direction of the tribunal.”

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[The judge then referred to the requirement under r6 that the hospital provide the statement containing the information listed in Part A of Sched 1 to the Rules, which includes ‘11. The name and address of the patient’s nearest relative or of any other person who is exercising that function’ and ‘12. The name and address of any other person who takes a close interest in the patient’.] 32. … We then have r7 headed “Notice To Other Persons Interested” and that provides:

“On receipt of the authority’s or, in the case of a [conditionally discharged patient], the Secretary of State’s statement, the tribunal shall give notice of the proceedings...”

33. Then six separate entities are indicated including:

“(d) where any person other than the applicant is named in the authority’s statement as exercising the functions of the nearest relative, to that person; and... (f) to any other person who, in the opinion of the tribunal, should have an opportunity of being heard.”

… 37. Mr Gledhill submits that there is no scope for the nearest relative to have any part to play once the case is deemed to be a case of a criminal patient subject to a restriction order. The definition of nearest relative in para 2 of the Rules expressly says that the nearest relative means the person who has the function under the Act of the nearest relative of a patient who is not a restricted patient. He submits, therefore, that r6 and the statement by the responsible authority in the form set out in Part A of Sched 1 can legitimately name the nearest relative only when the patient is not subject to a restriction order and, therefore, the Part A statement in the present case had no business to name a nearest relative and should, as it has done in other parts, have said “not applicable” opposite item 11 in that statement. 38. As a matter of analysis that seems to me correct. Once one reads the interpretation paragraph’s definition of nearest relative it does seem to me that that must follow. So not only is there no obligation on a responsible authority to nominate a nearest relative as such in a Part A statement when the patient is a criminal patient subject to a restriction order, but there is, in fact, an obligation on them not to do so because the legislation gives the nearest relative no part to play when the criminal patient is subject to a restriction order. 39. Of course, the responsible authority and the Tribunal have certain powers that they can exercise if they think it right to do so. The Tribunal can, for example, give notice of the proceedings pursuant to para 7 of the Rules to any person who, in their opinion, should have an opportunity of being heard. In that context it is relevant to remind oneself that para 12 of the Part A statement does specify the name and address of any other person who takes a close interest in the patient. So both the responsible

authority and the Tribunal have powers that they can exercise under that paragraph of the Part A statement and para (f) of r7. But, no doubt, they would not wish to exercise such powers in a case where the patient indicated that he did not wish, for reasons of confidentiality or other good reason, for a particular person to be named or given notice in that way. …

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Chapter 12 Rationality of Tribunal Decision The judicial review jurisdiction to quash the decision of a tribunal may arise if:

(i) the decision is unreasonable to the point of irrationality; (ii) it has failed to take into account relevant matters (or taken into account irrelevant matters).

It is to be noted that challenges of this nature are often coupled with a reasons challenge (see ch 13) on the basis that the tribunal has failed to explain why a particular conclusion is reached. Since judicial review involves the High Court respecting the fact that specialist decision-makers such as tribunals are given the function of making decisions in their particular area, the Court will not intervene as might an appeal court on the basis of a disagreement with the tribunal on the merits of a decision. A decision with a rational explanation should stand as long as it is not irrational, ie outside the range of conclusions a tribunal could reach.1 (i) Irrationality (or lack of adequate reasons) 1. R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority [2002] MHLR 314 CA – see ch 2(i) and ch 13. In this case, it was held that the discharge could not be appropriate in the absence of satisfaction that aftercare arrangements were in place, and so it was irrational to grant an immediate discharge rather than adjourning for further information. 2. R (Wirral Health Authority and Wirral Borough Council) v (1) MHRT (2) Dr Finnegan; DE as Interested Party [2001] MHLR 66 Admin Ct Facts and outcome: DE was held in a high secure hospital following his transfer from prison, and treated as if detained under s37 MHA 1983. On 6 July 2000, a tribunal adjourned to enable an aftercare package to be put into place and to allow a period of trial leave in the community: a psychiatrist agreed to supervise him, but the hospital would not allow leave because of concerns about him bringing drugs into hospital. On 20 November 2000, the tribunal reconvened and directed DE’s discharge on 8 January 2001, finding that the criteria for detention were not made out: the deferral of 7 weeks was to allow an aftercare package as DE needed a high level of support in the community (due to his underlying illness and degree of institutionalisation). Neither the clinical team nor the aftercare authorities supported discharge. The latter declined to offer aftercare

1 The other main grounds for judicial review are making an error of law and breaching the requirements of natural justice: most of the chapters in this book involve one or the other.

services, as they felt that DE posed too great a risk to his ex-wife and others; they successfully sought judicial review of the tribunal's decision on the basis of irrationality and inadequacy of reasons. Scott Baker J … 20. The MHRT made no mention in its reasons of the dissenting voices, nor did it refer to its earlier observation that DE should be tested with trial unescorted leave in the community before discharge. … 38. Ms Morris … argues … that the decision of the Tribunal plainly cannot stand. She says that there is no justification for how the Tribunal came to reject a substantial body of evidence that disagreed with Dr Kulupana, nor for the Tribunal's apparent about turn in being prepared to accept that DE should be released without a successful trial period. 39. In this regard she drew my attention to Dr Kulupana's report that was initially before the Tribunal, dated 25 May 2000 (that is before the adjourned hearing). The last two sentences of that report read:

“His [that is DE's] basic personality characteristics cannot be changed. If DE's proposed trial leave is a success it will not be appropriate to detain him any longer.”

40. Ms Morris makes the point that the clear implication there is that discharge from detention is conditional upon successful trial leave. That, of course, is something that we now know has not taken place, and it is unclear how the Tribunal was able to change its position in the meantime. … 58. … I have come to the clear conclusion that the decision is bad in law for the reasons advanced by Ms Morris. … (ii) Irrelevant matter relied on – R (LI) v MHRT [2004] MHLR 150 Admin Ct Facts and outcome: LI was detained under ss37 and 41 MHA 1983, following convictions for sexual offences against women; a tribunal upheld his detention, concluding that an immediate move to community living would present a small but unacceptable risk of further offending; it accepted LI’s progress but “reflected upon the fact that the index offences were attributable both to [his] mental condition at the time and also his attitude (divorced from any illness) to women generally.” The decision was quashed in judicial review proceedings on the basis that the reasons were inadequate as they did not disclose what was meant by “reflected upon” LI’s attitude to women, whether risks other than re-offending were taken into account, whether the attitude increased the risks of non-compliance with medication and so of offending, and whether this risk made detention proportionate.

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Newman J … 12. It is clear that the continued detention of a patient must be linked to his or her mental disorder but I read the reference to the claimant’s “attitude (divorced from any illness) to women generally” not to go to the nature or degree of his illness but to whether or not the Tribunal “was satisfied that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment”, namely the second criterion. The Tribunal was, in my judgment, in this part of its reasons deliberating upon the risk factor, namely whether his detention was justified in the interests of his own health and safety or with a view to the protection of others. … 18. The misgivings I have stem from the Tribunal merely stating, without more explanation, that it had “reflected upon the fact that the index offences were attributable both to the Applicant’s mental condition at the time and also his attitude (divorced from any illness) to women generally”. 19. It is clear the Tribunal’s consideration of risk started (in my judgment correctly) with the risk of re-offending should the claimant fail to take his medication when in the community. There was evidence to support the existence of a risk from his “sudden” exposure to pressures of life in the community and the availability of illicit drugs. Although not expressly stated, I take it as sufficiently plain from the context of the reasoning that illicit drugs were seen as giving rise to a risk he would cease to take his medication and therefore re-offend. 20. Had the Tribunal said no more I cannot see that there could be any reason for complaint. But it did say more and, as I have already indicated, it is not clear how his attitude to women generally was taken into account by the Tribunal or why it considered it to be relevant, although I have no difficulty in seeing its potential significance to the case. 21. Mr Chamberlain, counsel for the Tribunal, suggested that the claimant’s attitude to women, given he re-offended, was capable of enhancing the risk he presented to women ... By way of example, compare the risk presented by 2 patients, one a strong man, the other incapacitated. One poses a greater risk, if they both re-offend, than the other. I agree this would have been a legitimate and proper consideration but it does not emerge from the reasons and the reference to a process involving reflection. [The judge then referred to the witness statement of the tribunal president and commented that what was set out there was not consistent with contemporaneous notes made as to the decision-making process.] 23. … it is not clear whether the opportunity to continue with Sex Offender Group treatment was being treated as a justification for his continued detention or whether the opportunity was being regarded as an incidental advantage to the need for

continued detention which was justified because of the risk he would cease his medication and re-offend. Further the notes do not show that his attitude to women was treated as relevant to the existence of a greater risk of re-offending or as relevant to the enhanced seriousness of any re-offending which might take place. …

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Chapter 13 Reasons - adequacy Under r23 MHRT Rules 1983, the tribunal has to give reasons for its final decision; in addition the common law duty of fairness has gradually expanded the duty to give reasons, such that other decisions in the course of proceedings will require reasons. As an example, see R (B) v MHRT under ch 2(ii) (adjournments); as another example in the mental health sphere, see R (W) v Feggetter [2002] MHLR 178, in which the Court of Appeal held that a doctor giving a second opinion to allow treatment to be given by force if necessary (s58 MHA) is obliged to provide adequate reasons. The propositions arising from the case law are:

(i) reasons must explain how a conclusion is reached, so that a party knows why his or her submissions or evidence have been rejected; it is not enough to set out the conclusion; however, they can be brief; (ii) the tribunal must deal with the substantial issues raised (or explain why they were not relevant); (iii) reasons have to be read in a common-sense way, and do not have to meet the strictures of a statute; however, they should not assume that they are being read by an informed audience aware of the issues raised and evidence heard.

The following cases give instances of these various propositions. 1. R (Ashworth Hospital Authority) v MHRT; R (H) v Ashworth Hospital Authority [2002] MHLR 314 (CA) (upholding [2002] MHLR 13 (Admin Ct) in part and reversing it in part) Facts and outcome: see ch 2(ii). In relation to reasons, the Court held that their adequacy should not to be judged by reliance on the knowledge of the parties as to the issues in front of the tribunal and the evidence given because others may have to consider the decision (such as an approved social worker considering whether to resection a patient, who may not know what was said at the tribunal); the reasons must deal with the substantive points in front of the tribunal, including explaining why disputed evidence is accepted or rejected (not simply stating that one expert view is accepted and another is rejected). In the face of powerful expert evidence against discharge, cogent reasons were required for its rejection; and to explain why the tribunal discharged in the absence of after-care arrangements. Dyson LJ Reasons … 76. … I am in no doubt that the reasons given by the Tribunal in this case were inadequate. But before I explain why, I want to make 2 preliminary general

comments. The first concerns Mr Walker’s reference to the problems of excessive workload and inadequate resources. If tribunals do not have the time and back-up resources that they need to discharge their statutory obligation to provide adequate reasons, then the time and resources must be found. I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not, and the sufficiency of resources is irrelevant to that question. The adequacy of reasons must be judged by reference to what is demanded by the issues which call for decision. What is at stake in these cases is the liberty of detained patients on the one hand, and their safety as well as that of other members of the public on the other hand. Both the detained persons and members of the public are entitled to adequate reasons. 77. I note in passing that the Rules require reasons to be given within 7 days of a decision. That is not an unreasonable period within which to produce adequate reasons. I note further that the Handbook issued to tribunal members in September 2000 contains the following advice about reasons:

“Tribunals must give detailed reasons, based on the evidence and the logical application of sound judicial principles, for their decisions (this has been given substance by decisions in the High Court). The reasons need not be elaborate but they must deal with the substantive points, which have been raised and must show the parties the basis on which the Tribunal has acted. It is not sufficient merely to repeat the statutory grounds. It is not usually necessary to review the evidence at length. It is important to say which evidence has been accepted and often which has been rejected. It is not usually necessary to give lengthy reasons for acceptance or rejection of evidence. The reasons for the decision will be agreed by the Tribunal members at the conclusion of the hearing, put in writing and signed by the President.”

78. This correctly states that reasons should be given dealing with the “substantive” points. It does not expressly state, but it does imply, that reasons must be given for the acceptance or rejection of disputed evidence, although it is not usually necessary for these to be lengthy. In my opinion, this advice is both useful and consistent with the law. 79. My second general preliminary comment concerns the significance of the so-called “informed audience” point. This was not identified in English as being relevant to the adequacy of reasons given by a judge of a lower court. And yet, in ordinary civil litigation, a judgment will usually be given to an audience that is at least as informed as the audience at a tribunal hearing. (I leave out of account those few cases where a judgment may be reported on the grounds that it is of public interest.) Although it is true that, in some cases, the interests of others who

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are not parties to civil litigation may be affected by a court decision, it is at least arguable that the “informed audience” point has less force in relation to a MHRT decision than to a decision by a lower court in the civil justice system. First, the ASW considering whether to make an application for readmission pursuant to s3 may well not have any prior knowledge of the case, let alone the reports on the patient and the oral evidence and argument that was deployed before the tribunal. In the light of Von Brandenburg1, it is essential that an ASW who is contemplating making such an application should know the facts and circumstances which a tribunal took into account when deciding to discharge a patient, and the reasons for its decision. Secondly, it is highly questionable whether a patient will always be able to supplement exiguous tribunal reasons with an accurate recollection of the evidence and arguments before the tribunal when he later considers a decision. Accordingly, I do not accept that the “informed audience” point can properly be relied on to justify as adequate a standard of reasoning in tribunals which would not be regarded as adequate in a judgment by a judge. It does not follow that tribunals are obliged to produce decisions which are as long as judgments by a judge often tend to be. Far from it. A brief judgment is no less likely to be adequately reasoned than a lengthy one. 80. Against the background of these 2 general comments, I shall now identify the 2 principal reasons why I consider that the Tribunal’s reasons were inadequate in this case. First, as often happens, the Tribunal was required to resolve a difference of opinion between experts as to whether the patient should be discharged. In such cases, it is important that the tribunal should state which expert evidence (if any) it accepts and which it rejects, giving reasons. This is as important in a case where the tribunal rejects evidence in favour of discharge as it is in a case where the tribunal rejects evidence which advocates continued detention. It is not enough for the tribunal simply to state that they prefer the evidence of A and B to that of C and D. They must give reasons. As the Handbook states, these may be brief, but in some cases something more elaborate is required. They must at least indicate the reasoning process by which they have decided to accept some and reject other evidence. What this court said in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381G-382D is as apt in relation to the decisions of tribunals as it is to lower courts generally. In giving the judgment of the court, Henry LJ said that the reach of what is required to fulfil the duty to give reasons depends on the subject matter:

“Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X

1 See ch 6 (vii)

rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.”

81. In my view, this passage applies with even greater force where the tribunal decides to reject most of the expert evidence, and adopt the minority view. The present case is a graphic illustration. … There was, therefore, powerful if not overwhelming expert evidence against discharge. If the Tribunal decided to reject all of that evidence they were obliged to give cogent reasons for doing so. … In view of (a) the number of doctors who disagreed with Dr Williams, including the 2 independent doctors instructed on behalf of H, (b) the fact that previous attempts to discharge H into the community had failed, and (c) the fact that he had not experienced life in the community for a number of years, the Tribunal were required to explain carefully why they felt able to reject the opinions of the other doctors. 82. My second reason is that I do not accept Mr Walker’s submission that the Tribunal were not required to give any reasons for not adjourning in order to see whether suitable after-care arrangements, or not making an order for discharge at a deferred date. As I explained at para 67, the question of what after-care services will be available in the community is relevant to the issue of whether the statutory criteria are met. That was certainly the case here. Mr Walker does not suggest otherwise. In my view, the judge was right to say that the Tribunal took a step in the dark. And yet, they gave no reasons for doing so. Ms Ariola’s report was sufficient to put them on notice that the local authority might be unable or unwilling to provide after-care services to H. In my view, the judge was right to hold that the reasons given by the Tribunal were inadequate. 2. R (LI) v MHRT [2004] MHLR 150 – see ch 12(ii) A tribunal decision was inadequate because it said that the tribunal had “reflected upon” the patient’s attitude towards women without explaining how it took that into account (ie how it was relevant to the issues in front of it). 3. R (KW) v Avon and Wiltshire Mental Health Partnership NHS Trust and Bristol City Council [2003] MHLR 315 – see ch 9(iii) A tribunal decision to discharge a s2 detention on the basis that it was not satisfied that it had been shown that there was a mental disorder, which meant that it rejected the evidence of the RMO that there was a disorder, was quashed: it gave no reasons for its conclusion that there was no mental disorder and had

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acted unfairly by not giving advance notice that it doubted the existence of a mental disorder (which must have been based on the view of the medical member to that effect). [Note: this case demonstrates that even though the requirements of Art 5 ECHR mean that the detaining hospital must prove the elements of mental disorder such as to warrant detention, if there is evidence put forward which at first sight meets that test, the duty to provide reasons means that an explanation must be proffered by the tribunal for rejecting that evidence. Naturally, the tribunal must be careful not to assume the existence of disorder or in any way place the burden of persuasion on the patient to demonstrate that there is no disorder: see ch 19(ii).] 4. R (N) v MHRT [2002] MHLR 70 – see ch 6(viii) In relation to reasons, a failure of the tribunal to express its conclusions in the statutory language was held not to invalidate the decision as the language used gave a plain indication as to its findings; a decision described as terse was nevertheless acceptable. Gibbs J ... 56. ... First, the Tribunal says in terms that it is satisfied that the patient suffered psychopathic disorder of a nature or degree that requires treatment for his welfare and for the safety of others. Whilst the wording is not precisely the same as that set out in the statutory definition, it is clear that there is an express finding which encompasses, in substance, all the requirements of the statutory test. ... 57. ... It may be that the Tribunal so expressed it because that is the conclusion to which it was naturally led by the evidence of Dr Gravett. ... 58. I accept that at that point it might well have been better for the Tribunal to go on to say: ‘“It is because Dr Gravett said that we reached the conclusion on the evidence which we have already given’. 59. In my judgment, it is quite obvious that that is what the Tribunal meant. It could not have meant, in the context, anything else and that would be clear to anybody reading the Tribunal's decision. ...” [The judge then commented that describing the patient’s explanations of events as contradictory without specifying what the contradictions did not render the reasons inadequate although “it would ideally have been better if the contradictions were identified in the reasons” (para 60). And of the words in the tribunal decision ‘We are satisfied, having heard and observed the patient, that a great deal of work remains to be done for and with him, and we are unable to offer any recommendation’, the judge commented: “61. Whilst again those words are not expressed in the precise

statutory terms relating to treatment of the patient, it is in ordinary language a very plain indication of the Tribunal's view that treatment was necessary for the health and safety of the patient and protection of the public. Quite clearly that was in the context of the issues before the Tribunal.”]

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Chapter 14 Reclassification Civil patients and those under guardianship may be reclassified by their RMO (s16, which triggers a right of application to a tribunal under s66) or a tribunal (s72(5)); the same applies to those given a hospital order or placed under guardianship by the criminal courts (by virtue of Part I of Sched 1 to the Act). However, s16 does not apply to restricted patients (as it is not mentioned in Part II of Sched 1). The propositions arising from the case law are:

(i) a patient may not be reclassified under s16 to counter a tribunal decision under s72(5); (ii) s72(5) applies also to restricted patients; (iii) there is no obligation under s72(5) to reclassify so as to delete reference to a form of disorder used as the basis for detention but now in remission.

(i) The RMO may not use s16 to overturn a tribunal decision under s72(5) - R v Pathfinder NHS Trust ex p W [1999] MHLR 142 Admin Ct Facts and outcome: W was detained under s3 on the basis of mental illness, but reclassified as suffering from mental illness and psychopathic disorder. He applied to a tribunal seeking release or reclassification to mental illness only. The tribunal did not discharge W, but reclassified him as suffering from mental illness only. The RMO, noting that there was no current treatment needed for mental illness, and so if he was not suffering from psychopathic disorder his detention was not proper, reclassified him again to mental illness and psychopathic disorder. This was quashed in judicial review proceedings on the basis that the tribunal decision had to stand unless there was a significant change in circumstances or further evidence which would enable a tribunal to take a different view if the matter was referred to it again. Kay J … 12. It seems to me that it is abundantly clear that Parliament intended that where there was a dispute between patient and Doctor or hospital management about the proper classification, there should be a remedy open to the patient for him to be able to apply to a Mental Health Review Tribunal … so that the Tribunal may consider the application and rule one way or the other. 13. If the effect of the Act is that, immediately afterwards and with no material change of circumstances, the Doctor can re-exercise his powers under s16, then the protection given for the patient is totally toothless and in no way affords any protection at all. … 15. … It has not been suggested in the course of argument that the differing views taken in this case

were not views that could properly be taken by responsible Doctors. The issue in this case is whether, once the Tribunal has determined the dispute between Doctors on the application of an applicant, the Doctor who disagrees with it can simply reclassify the patient. I am entirely satisfied he cannot. He can only do so if there is some change in circumstance of a significant kind which would enable a Tribunal to take a different view if the matter was referred to them again. That may be because of further evidence that has emerged about the patient, and it may be because of further information that is available to the Doctor who has the responsibility of the patient which was not available to him before he gave evidence to the Tribunal, and of which therefore the Tribunal were deprived. … [The judge noted that in the absence of such a situation, the remedy available to the doctor or trust was judicial review.] (ii) Section 72(5) applies to restricted patients also - R v SW Thames MHRT ex p Demetri 12 June 1996 CA The issue arose in the context of an application for permission to judicially review a tribunal for exercising the power: it was submitted that the power did not exist and so the tribunal had made an error of law, but the Court of Appeal refused permission to commence proceedings on this ground. Aldous LJ (Phillips and Potter LJJ agreeing) The first submission made by Mr Fitzgerald QC, on behalf of the applicant, was that the Tribunal had no power to reclassify pursuant to the powers given in s72 of the Act. He submitted that although s72 was in wide terms, it was in fact restricted because of the way the Act was laid out. He said that the powers to deal with restricted patients was to be found in s73. The judge considered this at the opening of his judgment. He said: ‘"The application for leave to move is refused for the following reasons: first, as far as the submission that is made, namely the exercise of jurisdiction by the tribunal under s72(5) was ultra vires, I find that that is an unarguable proposition. It seems to me having regard to the total terms in which that section is couched and having regard to the remainder of the relevant property provisions of the statute, s72(5) is the appropriate vehicle for dealing with the reclassification of patients detained in a mental hospital, whether under compulsory detention by way of order of the Court or otherwise’. In my view he came to the right conclusion, particularly when one takes into account s72(7). [See also Hagan below, para 7 of the judgment. Further, in R (B) v Ashworth Hospital Authority (see ch 18(ii)), Baroness Hale stated at para 19 that s72(5) “is the only power to reclassify a restricted patient. The tribunal can only do this after it has heard and determined an application or reference to it.”] (iii) Reclassification - whether power has to be used to delete reference to form of disorder in

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remission – R v Anglia and Oxfordshire MHRT ex p Hagan [1999] MHLR 204 CA Facts and outcome: H was detained in 1995 under ss37/41 MHA 1983, classified as suffering from mental illness and psychopathic disorder. He challenged by judicial review a decision of a tribunal not to reclassify him as suffering only from psychopathic disorder in light of its conclusion that the mental illness was in remission and would not justify his detention if it stood alone. Collins J quashed the decision (2 December 1998, [1999] COD 151), holding that as the purpose of classification was to show the basis for detention and the form of disorder in relation to which compulsory powers could be used, the current medical situation should be reflected. However, the Court of Appeal allowed the tribunal’s appeal, holding that (i) the civil provisions (in s16 of the Act) do not require action if the patient still suffers from a form of disorder in remission, (ii) s72(5) should be construed so that it does not impose a different regime on those detained under the criminal provisions of the Act. (iii) Further, since conditions could not be imposed on a conditionally discharged patient in relation to a form of disorder which had been removed under s72(5), the section ought to be construed as giving the tribunal a discretion not to delete a mental disorder from which a patient still suffers where deletion might frustrate their powers in relation to conditional discharge in the future. Accordingly, reclassification relates to whether the patient suffers from a particular mental disorder; not to whether he is detainable for that mental disorder if it stood alone. Hence, the appeal was allowed. Waller LJ (Chadwick LJ and Lord Woolf MR agreeing) … 7. The power to re-classify is provided for under s72(5) which is in the following terms:-

“Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject), the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.”

We have been asked to make the assumption that s72(5) applies in the case of a restricted patient even though it appears in a section which seems to apply to patients other than restricted patients. The breadth of the language at the commencement of the subsection is what is relied on and there is clearly force in the submission that it should apply. …

12. The first point to make is that the power to re-classify under s72(5) only arises at a moment when the Tribunal has decided not to discharge. Furthermore, what is contemplated by s72(5) is a substitution. What is thus certainly contemplated (and the question will be whether something further is also contemplated), is that if the Tribunal has formed the view that the patient is suffering from a form of mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained, but that it is not the form of mental disorder that is specified in the original order of the court, that the Tribunal has the power to substitute, and amend the order thus continuing the patient’s detention on the basis of an order which specifies the appropriate form of mental disorder. The questions which arise are (a) does the section give the Tribunal the power to amend the order other than by substitution; for example does it give a power simply to delete, and (b) to what extent is the power a discretionary one? It may be for example that in a particular case, rather like Mr Hagan’s case, the original court order specified 2 different forms of mental disorder, but the Tribunal while refusing to discharge on the basis of one specified form, concludes that the patient does not suffer at all from the other specified form. It may be that the argument for concluding that substitution should include the power of deletion in such a circumstance is even more powerful than in the instant case where the specified mental disorder is simply in remission. But still the question might arise as to whether the Tribunal would in such a case be bound to re-classify. In considering all these questions I think it is important to have regard to the implications of concluding one way or the other in the case of Mr Hagan. … Summary of Conclusions 25. First, the primary purpose of s72(5) is to enable a Tribunal who has concluded that the form of mental disorder which requires the patient to continue to be detained is different from the form of mental disorder specified in an order (or an application or direction), to substitute that mental disorder so as to in effect correct the order to accord with the position as it is now known to be. 26. Second, reclassification in the civil context under s16, would not have taken place if the conclusion of the medical officer was that Mr Hagan still suffered from mental illness albeit it was in remission, and in the result in the civil context (a) the application would still have specified mental illness, and (b) whatever s63 means, treatment for mental illness could continue to be compulsorily administered. Section 72(5) ought to be construed as providing the Mental Health Tribunal with a discretion so that they are not obliged to reclassify Mr Hagan in a way different from that which he would have been classified as a civil patient. 27. In addition, in the context of s37 and s41, s72(5) ought to be construed as giving the Mental Health

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Tribunal a discretion not to delete a mental disorder from which a patient still suffers where deletion might frustrate their powers in relation to conditional discharge in the future. 28. Reclassification relates to whether the patient suffers from a particular mental disorder; not to whether he is detainable for that mental disorder if it stood alone. 29. It is possible that if the conclusion was that a patient no longer suffered from a form of mental disorder previously specified in the order at all, that deletion in circumstances where substitution was not required would be permissible, but that is not this case. 30. … I do not dissent from the view that at least part of the purpose of classification in the original form of application, and the court order under s37 is to show the basis for the detention and at least part of the purpose is to identify the mental disorder for which compulsory treatment is needed … It also seems to me that the reason why under s16 a report may generate some other form of mental disorder being specified in the application has to do with the lawfulness or otherwise of continued detention pursuant to an application, and the purpose of substitution under s72(5) has to do with ensuring that the order correctly reflects a basis for detention. But it does not follow in either case that the purpose of reclassification is to ensure that there is not described in the application or order a form of mental disorder from which the patient suffers and may need treatment if he continues to be detained on the basis of another form mental disorder. Indeed the ordinary application of s16 leads to that conclusion, and there is no reason why the Tribunal, under s72(5), should be obliged to reach a different conclusion. 31. Thus the judge was wrong to accept the submission that the purpose of reclassification wherever it appeared in the Mental Health Act was to ensure that there was not described in the application or the order a mental disorder from which the patient suffered but which would not, on its own justify detention. In particular it seems to me the judge was wrong to accept the submission that the purpose of reclassification under s72(5) was to describe accurately the basis on which the patient was lawfully detained. The patient was lawfully detained under an order of the court, and there was nothing inaccurate in describing him as being lawfully detained on the bases specified in the order. Furthermore, there is no warrant in my view for reading into the section that it is “incumbent upon [the Tribunal] to reclassify if it decides that one of the current forms of mental disorders, from which the patient is suffering which is contained in the order or application or direction which has led to his detention, is no longer appropriate … because the relevant mental illness is not of a nature or degree which makes it appropriate for him to receive medical treatment” where the conclusion of the Tribunal is that for another reason

the patient is to be detained. Of course if the conclusion relating to the mental illness related to the only basis for detention, reclassification would not be appropriate but discharge either absolutely or conditionally would follow. 32. I would finally add that there is in my judgment possibly a short answer to this case even accepting much of Mr Gordon’s submissions. The conclusion of the Tribunal was that the mental illness alone would not render him liable to be detained. That conclusion emphasises that Mr Hagan still suffers from mental illness, and that it may recur unless treatment was available. The conclusion I suggest can be fairly read as being that the mental illness, when taken together with the psychopathic disorder which can be alleviated by treatment in hospital, makes it appropriate for him to be detained in hospital for medical treatment in relation to both types of mental disorder. Clearly there could be no criticism of the Tribunal’s refusal to reclassify so as to delete the mental illness if that was their view. 33. For the reasons I have endeavoured to give I would allow the appeal. [Following R (B) v Ashworth Hospital Authority (see ch 18(ii)), the patient may be treated for all forms of disorder from which he suffers, not just that or those which justify detention1. Nevertheless, at para 33, Baroness Hale (with whom the other Lords agreed) did indicate that the power of reclassification should be used: she stated “Although s16(1) (and s72(5)) are framed in permissive terms, in my view the RMO (or the MHRT) should reclassify if they are satisfied that the recorded form (or forms – the singular includes the plural) of disorder should be changed.” Hagan was cited in argument in B but is not referred to in the judgment. At para 25 in B, Baroness Hale states that “classification and reclassification relate to the criteria for admission and continued liability to detention ...” This undermines the comments in para 31 in Hagan that the judge had been wrong to accept that the purpose of s72(5) was to ensure that the basis for detention was accurately recorded, and the comment in para 28 that reclassification relates to whether a patient suffers from a form of disorder rather than whether he is detainable under that form of disorder alone.]

1 See also R (AL) v (1) Home Secretary (2) Secretary of State for Health [2005] MHLR 12 CA - conditionally-discharged restricted patient may be recalled on the basis of a form of disorder other than the one from which they were categorised at the time of their discharge; and R (SC) v MHRT [2005] MHLR 31 Admin Ct - different form of disorder can be taken into account in deciding whether a conditionally discharged patient should remain liable to recall and so not be granted an absolute discharge.

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Chapter 15 Transfer and Recommendations for Transfer Under s19 MHA, the managers may transfer a patient between different hospitals; if the patient is restricted, this requires the consent of the Secretary of State (under s41). The Secretary of State also has the power under s123 to transfer patients from high secure hospitals to those of lesser security (though it is believed that this power is rarely, if ever, used). A tribunal has a statutory power to recommend the transfer of a non-restricted patient “with a view to facilitating his discharge on a future date”1 (s72(3)), and may reconvene if the recommendation is not put into practice; other recommendations may also be made, including leave, transfer to guardianship or supervised discharge. There is no such power in relation to a restricted patient, but there is an established practice that it may make such recommendations and the actual decision-makers – in practice the RMO and the Secretary of State – will take the recommendation into account2. The propositions arising from the case law are:

(i) a non-restricted tribunal which reconvenes when a recommendation is not put into practice may consider whether to discharge the patient; (ii) the lack of a power to secure transfer does not breach Art 5 ECHR; (iii) failures to move patients to less secure hospitals have been held not to breach Arts 3 or 8 ECHR; (iv) nor does the failure to accept a tribunal recommendation as to transfer breach Art 8.

(i) Non-restricted tribunal – powers on reconvening when recommendation as to transfer not carried out - R v MHRT ex p Hempstock 10 July 1997, (1998) 39 BMLR 123 Admin Ct Facts and outcome: A tribunal on 9 July 1996 recommended that H, a s3 patient, be transferred to another hospital; it noted that a recent improvement in his mental state did not require release but might have done had it been of longer duration. It reconvened on 5 September 1996 as the recommendation had not been followed. The tribunal concluded that it could only examine the reasons for non-compliance but could not revisit the question of discharge: the Court held that this was an error and that the tribunal was able to reconsider the entire case, including the question of discharge. Kay J … On the face of it, the use of "his case" in s72(3)(b) would seem to suggest that the tribunal can consider

1 So it may not be used for any other purpose – see R (H) v MHRT at (iii) below, para 20 2 A restricted tribunal cannot adjourn to obtain information relevant only to this power: see ch 2(iii).

the whole matter again. "His case" must, in my judgment, mean his application for discharge. That is the case that has been considered and therefore the case that is to be further considered. If it had been the intention of Parliament to restrict the further consideration to the recommendations made by the tribunal, the subsection could very readily have been worded "further consider such recommendation". … … the Tribunal [has] all the powers at the time of further consideration that it had originally. It can, if it considers appropriate, order immediate discharge or future discharge. … [Note: see also r17(1) MHRT Rules, which provides that where proceedings “have not been disposed of” new members can be appointed if “it is not practicable or not possible without undue delay” for the matter to be completed by the original panel. In R (A) v MHRT [2005] MHLR 144, Stanley Burnton J noted that the aim of this is to ensure continuation of consideration by the same members of the tribunal, which applies also if the patient has moved to a different area.] (ii) Restricted tribunal – lack of power to secure transfer does not breach Art 5 - MP v Nottinghamshire Healthcare NHS Trust [2003] MHLR 381 Admin Ct Facts and outcome: MP was a restricted patient who had been detained in high secure conditions since 1992; his clinical team had supported for some time his transfer to a less secure hospital, and tribunals since 2000 had recommended such a transfer. However, no such move was in prospect. The tribunal submitted a special case stated to seek the opinion of the court as to its powers in relation to transfer and whether there was compliance with Art 5: it was held that Art 5(1)(e) was not concerned with suitable treatment or conditions, as long as the place and conditions of detention were suitable in light of the ground of detention (which was met as MP was detained in a hospital and was in receipt of therapeutic intervention); that Art 5(4) does not guarantee a right to judicial control of all aspects of detention; that a tribunal is statutorily empowered to make recommendations as to transfer only in relation to non-restricted patients, but can make non-statutory recommendations in restricted cases; that it could not use a deferred conditional discharge with a condition of transfer to secure transfer because a conditional discharge can only be given if the patient is suitable for such. Silber J … A – The Convention Issue … [The judge referred to Ashingdane v UK (1985) 7 EHRR 528, in which the ECtHR held that Art 5(1)(e) did not relate to the conditions of detention but merely required an institution dealing with psychiatric patients (the context being a failure to

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place A in more clinically appropriate less secure conditions), and that Art 5(4) does not require judicial control of all aspects or details of detention; he also referred to Aerts v Belgium (1999) 29 EHRR 50, where the detention of a patient in the psychiatric wing of a prison was found to be a violation of Art 5(1) because it was contrary to domestic law and not in a hospital, clinic or other appropriate institution (in contrast to MP’s position); he also noted that Ashingdane had been consistently and recently applied both in Strasbourg and by the domestic courts in relation to transfers between mental hospitals and in the context of transfers between different categorisations in prisons.] 22. Mr Owen ... accepted that I am bound by the Ashingdane decision, ... with the result that Art 5(1) and (4) are not concerned with the location in which a restricted patient is detained. Thus, the claimant cannot derive any assistance from Art 5 and I need not consider it further when analysing the remaining issues. Issue B – The Statutory Provisions Issue ... 24. It is significant that whereas in the case of non-restricted patients, s72(3) confers a power given to Tribunals to recommend transfer between hospitals, no similar provision exists in the following section for restricted patients, such as the claimant MP. This suggests clearly that in the case of restricted patients, the Tribunal does not have the power to transfer between hospitals. 25. In Grant v MHRT of Trent, Times, 26 April 1986, McNeill J held that in the case of a restricted patient, the Tribunal had no power to recommend the grant of leave of absence or of transfer. More recently, the Court of Appeal considered Grant in R v Oxford MHRT and Another ex p Smith, 25 January 1995, in which Sir Ralph Gibson giving the only reasoned judgment of the court said “I have no doubt that s72(3) does not give a statutory power to a Tribunal to make a recommendation in the case of a restricted patient under s73”. ... Thus, there is no power under the Act for the Tribunal to order or recommend that the claimant as a restricted patient be moved to less secure conditions. … C – The Conditional Discharge Issue 27. Mr Owen contends that the Tribunal is empowered to grant the claimant a deferred conditional discharge under s73 of the Act, which would then enable the Tribunal thereafter to retain a supervisory role over the claimant in an attempt to secure his progress towards release with, if necessary, a period in a less secure hospital so long as those conditions do not amount to a continuance of his detention. ... … 29. … In the present case, it is not suggested in the Case Stated that the claimant is suitable for release ... Thus, the option of conditional discharge is not an

available remedy for the claimant, while he does not remain suitable for release ... [The judge discussed R (IH) v Nottinghamshire Healthcare NHS Trust (see ch 5(iv)), in which it was held that a conditional discharge was a provisional decision; and R (Home Secretary v MHRT (PH as interested party) (see ch 5(ii)), in which it was held that a condition not to leave a hostel without an escort imposed for the protection of a patient did not amount to detention.] 31. ... nothing in either of those cases gives the Tribunal the power to make a deferred conditional discharge order in respect of the claimant MP so as to permit him to be moved to a medium secure hospital, while the Tribunal still continues to consider that the detention criteria are met. 32. Indeed, there are powerful factors which indicate that the Tribunal should not have that power. There is no power to order discharge of any kind if the Tribunal is satisfied that the detention criteria are met. Section 72 of the Act imposes on the Tribunal a duty to direct discharge unless satisfied in respect of the patient (i) that he is then suffering from a mental illness, psychopathic disorder, severe mental impairment or mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (ii) that it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment. The words that I have emphasised in italics make it clear that the Tribunal is “looking to the present tense in the sense that it is dealing with the patient’s condition as it appears to be then” per Collins J in R (Home Secretary) v MHRT [2000] MHLR 209 ([22]). It is important to stress that if the Tribunal is satisfied of both these matters, in relation to a restricted patient, it may not direct a discharge of any kind. ... To accede to Mr Owen’s submissions would mean that the detention criteria were circumvented. 33. It is also suggested in the claimant’s written skeleton argument that the Tribunal could use its powers under r13 of the MHRT Rules (“the Rules”) to direct that the claimant be transferred to a suitable hospital. Rule 13 enables a Tribunal “to give such directions it thinks fit to ensure the speedy and just determination of the application”. I do not agree with the claimant’s submission that this Rule can be used to justify transferring the claimant to a less secure hospital for 3 main reasons. First, r13 is dealing with procedural matters and not with substantive issues such as discharge. Second, that provision does not empower the Tribunal to effect transfer of restricted patients between hospitals, which is a function specifically reserved to the Secretary of State. … Third, the statutory tests in the Act lay down the criterion for determining if a patient, such as MP, can be discharged and r13 cannot override them.

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34. Similar reasoning defeats the next point of Mr Owen which is that rr14 and 15 of the Rules enables the Tribunal to obtain evidence and information but this cannot be used for the purpose of securing a transfer as if that were to be done, it would be using the Rules for an inappropriate and impermissible process as the detention criterion would be avoided (see R (Home Secretary) v MHRT [82-83]). … Answers to the questions raised by the Tribunal 41. In essence, I agree with Mr Chamberlain that the answers to the questions stated should be as follows:-

(i) What are our powers when dealing with a patient such as MP: (a) who is a restricted patient; (b) who is detained in high security conditions; (c) who has been found by previous tribunals not to require high security conditions; (d) whose discharge from hospital may be less likely unless he has progressed from high security conditions for further treatment and/or assessment as to the nature or degree of his detention and the other elements of the test for detention; The answer is that the tribunal is required: (1) to consider whether the detention criteria set out in s72(1)(b) (as applied by s73(1)) are both satisfied; (2) if so, to refuse to discharge the patient (whether absolutely or conditionally and whether immediately or on a deferred basis), in which case they may make a non-binding recommendation for transfer to another hospital or category of hospital; (3) if not, to consider whether they are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment; (4) if so, to discharge the patient conditionally, in which case they may not impose conditions which require the patient’s continued detention (for any period) at a medium secure or other hospital. (ii) How should we apply the provisions of ss3 and 6 of the Human Rights Act 1998 in approaching the question of our powers under s73 of the MHA 1983, including the power to defer a direction for discharge under s73(7) of the Act, as interpreted in R (IH) v Nottinghamshire NHS Healthcare Trust? Answer – See above. (iii) Does the absence of a power to ensure implementation of our findings that a patient should be transferred to a lower level of security means that s73 of the Act is incompatible with the European Convention on Human Rights? Answer – No. (iv) Does the absence of a power to ensure the implementation of any recommendation in relation to a patient detained under the MHA mean that the present powers of the MHRT under

ss72 and 73 are incompatible with the European Convention on Human Rights? Answer – No.

(iii) Articles 3 and/or 5 and/or 8 - failure to make recommendation 1. R (LH) v (1) MHRT (2) Secretary of State for Health [2002] MHLR 130 Admin Ct Facts and outcome: H, the mother of a patient detained under the MHA 19831 in conditions of high security, challenged the decision of a tribunal not to recommend transfer to less secure conditions; although the RMO felt that he needed a small medium secure setting which specialised in dealing with patients with autism, there was no such unit available; one had refused to admit him as he was felt too dangerous. H’s solicitor asked the Secretary of State for Health to intervene, and challenged the failure to take action. The judge dismissed both claims, holding that the tribunal decision was adequately reasoned in light of the evidence (and in any event was a failure to make a non-statutory recommendation for transfer and so not amenable to judicial review); the action against the Health Secretary was dismissed as there was no arguable breach of the duty to provide a comprehensive health service under s3 National Health Service Act 1977, and in any event the action should have been against the health authorities responsible for service provision. The circumstances did not pass the threshold of severity required for Art 3; Art 5 was not concerned with the conditions of detention; and there was no breach of Art 8. Maurice Kay J … 13. ... The statutory duty of the Secretary of State under the National Health Service Act 1977 is provided by s3(1) in terms which impose a duty “... to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements - (a) hospital accommodation.” ... 16. In my judgment, it is simply not arguable that the Secretary of State is in breach of his statutory duty under s3 by not providing a hospital that would specifically be preferable for this patient as against his circumstances in Rampton. Whilst there may no doubt be cases where a Secretary of State might be shown arguably to be in breach of that duty, that would require a level of evidence of unmet need which simply does not exist in this case when matched against the words of the statute. ... 17. Moreover, so far as the Secretary of State is concerned, ... it is not he who is primarily responsible for day-to-day matters in relation to the placing of the patient. Under the Act that is the responsibility of the health authority in question. There is no challenge to

1 The report does not say whether the patient was a restricted patient.

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any decision or lack of decision on the part of that health authority and therefore there is nothing of that nature which calls for my decision. ... [The judge referred to Kartibshaheedi v IAT 20 July 2000, in which the Court of Appeal held that a failure to make a non-statutory recommendation was held not be amenable to judicial review; he held that this principle applied in the current context. He held that Art 5 did not apply, for reasons similar to those in MP above.] 24. So far as Art 3 is concerned, this is not a case in which the evidence points to specifically inhuman or degrading treatment. For Art 3 to be engaged there must be evidence that crosses the minimum threshold of severity that that demanding provision stipulates. I am satisfied that it is not arguable that that border has been crossed in the present case. 25. Likewise in relation to Art 8, I am satisfied that the evidence is not such that can support an arguable challenge. 26. [The judge then found the reasons of the tribunal to be adequate.] It is true that the reasoning in relation to the Human Rights Act is laconic, the tribunal simply recording that it finds no breach of the provisions of the Human Rights Act. However, by reference to the issues that were before it, and having regard to the law applicable to those parts of the Human Rights Act which fell for consideration, it seems to me that nothing flows from the brevity or succinctness of that finding of no breach. ... 2. R (H) v (1) MHRT (2) Secretary of State for Health [2002] MHLR 362 Admin Ct Facts and outcome: H was detained under s3 MHA 1983 in a high security hospital distant from his mother’s home: so family contact was limited. A tribunal upheld his detention and declined to make any recommendation as to transfer. H challenged the reasons of the tribunal and in the course of this argued that the absence of a power to order transfer meant that Art 8 was breached. The application was dismissed. The reasons were held to be adequate; in relation to the issue of transfer, the statutory power to recommend transfer under s72 was applicable only to facilitate discharge in the future not to facilitate family contact: H’s complaint was as to a gap in the statutory scheme, but that could not amount to a breach of the Human Rights Act. Stanley Burnton J … 15. ... There was a proper review of the legality of his detention. That review was contained in the decision of the tribunal and there was by reason of the review by the tribunal and its decision compliance with Art 5 and, insofar as relevant, Art 6. 16. So far as Art 8 is concerned, ... given the medical evidence before the tribunal, the decision that H

should continue to be detained was inevitable. Indeed, on the material before the tribunal and before the court, it was an inevitable decision that the rights of H himself to a personal life would best be respected and safeguarded by his continued detention. ... a release from detention would produce a risk of injury, if not to the life, of H himself, and would place other persons at risk. 17. In those circumstances I am unable to see to what point there would have been in any discussion by the tribunal of the Art 8 rights of the patient. Equally, insofar as the decision was being made that he should continue to be detained, there would have been no point in any discussion of any Art 8 rights of the claimant. Those rights, which are not unqualified, could not conceivably have led to any different decision so far as the detention of the patient was concerned. ... … 19. I turn therefore to the other aspect of the complaint as to the decision. That is the failure to make a recommendation and the failure to give reasons for the refusal to make a recommendation. The power to make a recommendation is statutory. Section 72(3) of the Act provides as follows:

“A tribunal may under subs(1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may - (a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and (b) further consider his case in the event of any such recommendation not being complied with.”

20. The power to make a recommendation is expressly qualified by the words “with a view to facilitating his discharge on a future date”. There is no power under subs(3) of s72 to make a recommendation with a view to doing something other than facilitating the discharge of the patient on a future date. For example, there is no power under s72 to make a recommendation for the transfer of a patient to another hospital more convenient for him or his family. … 21. There was no evidence before the tribunal to justify making a recommendation of such a kind with a view to facilitating discharge at a future date. All that is now said, and I assume was then said to the tribunal, was that a recommendation could and should have been made for transfer to another hospital with a view to facilitating access to the patient by his mother, that is to say with a view to facilitating their family life. That is not a purpose within the scope of s72. … 24. It does not follow, however, that a failure by a MHRT to give reasons for a failure to make a recommendation within the scope of s72(3) would not be susceptible to judicial review in circumstances

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where the contentions and material before the tribunal justified its consideration of such a recommendation. That is a matter which may be decided on another occasion. I express no view on it. … 26. ... A declaration of incompatibility is sought on the basis that s72 does not authorise a tribunal to consider and to determine questions such as whether a hospital is a particularly suitable hospital in terms of the degree of security or in terms of geographical proximity to the family of a patient. So far as the latter point is concerned, it means that s72 does not empower a tribunal to consider or to determine the rights of the patient or the members of his family under Art 8. On this basis, it is said, the Act, and in particular s72, is incompatible with the Convention. 27. So far as this point is concerned, the claimant faces to my mind the insuperable difficulty posed by the decision of the House of Lords in In Re S [2002] 2 AC 291. On analysis the only complaint that can be made as to the powers of a tribunal under s72 is that they are insufficient, that there is therefore a lacuna in the Act, or alternatively there is a lack of an effective remedy in the Act for breach or an arguable breach of Art 8 rights. … However, in In re S the only speech was given by Lord Nichols … He stated in terms that a lacuna in an Act (he was there dealing with the Children Act), or a failure to provide an effective remedy for a violation of a Convention right, does not lead to the conclusion that the Act is incompatible with that Convention right or the provisions of the Convention in question. … (iv) Art 8 – whether duty to follow tribunal recommendation - R (P) v (1) Mersey Care NHS Trust (2) Dr Mulligan (3) Home Secretary [2004] MHLR 107 Admin Ct Facts and outcome: P, a restricted patient, had been in high secure hospitals since 1972, aside from an unsuccessful trial move to medium security in 1996. In 2002, a tribunal recommended further trial leave in medium security, which was supported by P’s RMO. However, a new RMO opposed it and the Home Secretary did not approve it: in judicial review proceedings, the issue was whether Art 8 ECHR was breached and whether, as a fundamental right was engaged, it was necessary to abide by the decision of the tribunal. The judge, noting that if the risk posed by P supported high secure conditions, there would be a justifiable interference with his Art 8 rights, held that Parliament had given the decision as to transfer to the RMO and hospital managers, subject to the consent of the Home Secretary in restricted cases. The views of the tribunal had to be taken into account, but were not determinative; the decision was amenable to judicial review, in which the High Court would determine whether all relevant material had been taken into account, as they had on the facts. Richards J …

7. In summary, the legal framework is as follows. There is a power exercisable by the RMO under s17 of the 1983 Act to grant a patient leave of absence from the hospital where he is detained. There is a power under s19 as to the transfer of patients. In the case of a restricted patient the exercise of powers under ss17 and 19 requires the consent of the Secretary of State. The Secretary of State also has a separate power under s123 to direct the transfer or removal of patients in special hospitals. It has been held that the Tribunal has no statutory function in relation to the making of recommendations as to transfer where the patient is a restricted patient: see R (Home Secretary) v MHRT [2000] MHLR 209 at paras 23 and 241. That reflects the fact that the relevant power has been vested by Parliament in the Secretary of State…. … 25. In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Art 8 rights. 26. Who is to decide that question of risk? … In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision-maker. 27. … the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court's role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence. … 29. The view I take does not render the Tribunal's recommendation pointless. It is an important input,

1 In this case it was held that a tribunal in a restricted case could not adjourn solely to obtain information relating to making a transfer recommendation: see ch 2(iii).

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but it is not determinative. It remains the position that those upon whom the statutory functions have been placed have to reach their own judgment of the matter. … I think it plain that the Secretary of State and those responsible for exercising the other relevant statutory powers have to reach their own judgment in the matter and are not bound by the Tribunal's recommendation. Nor is the role of the court to go through the same process and reach a judgment of its own.

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Chapter 16 Transfer Direction (s47 MHA 1983) and Restriction Direction (s49) Under ss47ff MHA, serving and remand prisoners (and also civil prisoners and Immigration Act detainees) may be transferred to hospital and are treated as if detained under a hospital order; in addition, a restriction direction may be made, which has the effect of a s41 restriction order. There is also s45A, which allows a court to impose a sentence and achieve the equivalent of a transfer direction at the same time. Section 69(2) provides that a prisoner treated as if subject to a hospital order by virtue of a transfer direction has a right to apply to a tribunal within 6 months of transfer (a right which a person subject to a hospital order does not have). A transferred serving prisoner will remain in hospital after he would have been released from his sentence; but the restriction direction comes to an end and the patient will be a “notional s37” patient: s72 MHA will then apply to his release (and under s23 the RMO or hospital managers may order release; detention will have to be renewed under s20). So long as the restriction direction remains1, the powers of the tribunal are set out in s74: this allows the tribunal to indicate that it would have discharged under s73 had it been applicable; the Home Office then has 90 days to determine whether or not to follow this recommendation and allow discharge: s74(2). If the Secretary of State does not permit discharge, the hospital managers return the patient to prison: s74(3). Remand prisoners, civil prisoners and Immigration Act detainees, who are transferred to hospital under s48 may only be transferred back to detention: s74(4). However, if the tribunal also recommends that the patient remain in hospital if not discharged, this prevents the operation of the automatic return to detention provisions of s74(3) and (4), although it would not seem to preclude the Secretary of State transferring the patient back under ss50 or 51. It is also worth noting that ss50 and 51 refer to the Secretary of State being notified by a doctor or tribunal “that the person no longer requires treatment in hospital or that no effective treatment for his disorder can be given in the hospital to which he has been removed”: this triggers the power of remittal to prison. The first part of this incorporates the test set out in s74 (in that a patient “no longer requires treatment in hospital” if the test for detention is not made out), but the “effective treatment” test is not in s74 (and it is not the same as the treatability test applicable to those classified as suffering from psychopathic disorder or mental impairment): ss50 and 51 give the tribunal an additional power to consider this question2.

1 in practice, all transferees unless they have merely days to serve before release, when the restriction direction ends 2 just as s86 gives the tribunal a power to consider whether to approve the removal of alien patients to hospitals in their

Under s74(5A), a prisoner whose discharge from hospital has been recommended along with a recommendation that he or she remain in hospital if the recommended discharge is not accepted may apply to the Parole Board for release under its powers in relation to the release of prisoners: this provision was introduced to deal with findings that the previous regime breached Art 5 because release and access to the Board depended on the discretion of the Executive: see Benjamin and Wilson v UK [2003] MHLR 124; R (D) v Home Secretary [2003] MHLR 193. The Administrative Court has also determined that there is no need for the tribunal and Parole Board to hold a combined hearing in relation to life sentence prisoners transferred to hospital: R (P) v Home Secretary [2004] MHLR 64. There is also a category of transferred prisoner called a “technical lifer”, a life sentence prisoner treated as if a hospital order had been made. This is pursuant to a Home Office policy that this status be given to transferred lifers whose prison sentence had been imposed because of lack of a bed, lack of proper clinical information at the time of sentence (or medical opinions which required to be revised with hindsight), or where a mandatory life sentence for murder had been imposed because a defendant had refused to allow a defence of diminished responsibility to be raised. The decision to grant this status was taken by the Home Secretary after consultation with the Lord Chief Justice and the trial judge, if available. The effect of granting such a status was that the prisoner would be released on the recommendation of the tribunal rather than the case being passed to the Parole Board, which otherwise deals with the release of lifers (and, as a result of developing Convention jurisprudence now has exclusive jurisdiction to deal with the release of all lifers). In R (IR) v Dr Shetty (No 2) [2004] MHLR 130, Munby J held that the grant of technical lifer status was a matter akin to compassionate release and so not a sentencing exercise which had to be left to a court for the purposes of Art 6. However, in a written statement to Parliament on 24 January 2005, a Home Office minister announced that applications for technical lifer status would not be considered after 2 April 2005, and that all such prisoners would have their release controlled by the Parole Board in order to avoid breaching the requirement of Art 5(4) that release be a matter for a court. The propositions arising from the case law are:

(i) transfer to hospital without a restriction direction does not bring a prison sentence to an end; (ii) in deciding whether or not to recommend release, the tribunal should assess the realistic alternative, which may be return to prison rather than release to the community.

own countries; in short, not all the powers of the tribunal are to be found in ss72-75.

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(i) A prison sentence and so licence supervision continues to run - R (Miah) v Home Secretary [2004] MHLR 302 Admin Ct. This case involved a transfer without a restriction direction because it occurred days before he was due to be released. The Court held that as a matter of statutory construction, the period of supervision on licence under the Criminal Justice Act 1991 continued, as did the prospect of recall to prison. This may impact the issue of what is available to provide supervision if a patient is released by a tribunal. (ii) R (Abu-Rideh) v MHRT [2004] MHLR 308 Admin Ct This case involved an alleged terrorism-linked detainee transferred to hospital, who, if released from hospital was unlikely to be released into the community but would be returned to prison. The Court held that in deciding whether or not to recommend release, which turns on whether the criteria for detention under the MHA are made out, the tribunal should assess the realistic alternative available, ie whether the patient will be returned to prison rather than being released into the community.

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Chapter 17 Treatability In relation to those classified under psychopathic disorder or mental impairment, detention is only permissible if medical treatment in hospital is “likely to alleviate or prevent a deterioration in his condition”1. However, this test is not mentioned in the criteria for discharge in s72 MHA. The propositions arising from the case law are:

(i) the treatability test must be applied by the tribunal, since detention will not be appropriate if it is not met; (ii) the lack of treatability of a restricted patient should lead to an absolute discharge; (iii) however, treatability is widely defined and covers the symptoms of the disorder even if the disorder itself is not treated.

These propositions emerge from the following cases: 1. Reid v Secretary of State for Scotland [1999] 2 AC 512 HL Facts and outcome: see also ch 6(i) and 18. In relation to what amounts to treatability, it was held that it was met by treatment (itself widely defined) which alleviates or prevents a deterioration in the symptoms of the disorder rather than the disorder. Lord Hope ... (531B) The expression "medical treatment" is ... given a wide meaning ... The width of the expression is not diminished where it requires to be examined in the context of the “treatability” test. Medication or other psychiatric treatment which is designed to alleviate or prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them. ... there was evidence that the petitioner's anger management improves when he is in the structured setting of the State Hospital in a supervised environment. The environment is one which is set up and supervised by the medical officers of the hospital. While the question is one of fact for the sheriff to decide on the facts of each case, I consider that it will be open to him in such circumstances to find that the "treatability" test is satisfied.

1 See R (Home Secretary) v MHRT (VW as Interested Party) [2004] MHLR 184 Admin Ct for an instance of a tribunal mistakenly equating “treatability as a doctor would understand it” with the legal test, failing to take account of the fact that a deterioration was prevented.

[Lord Clyde also noted at 542D the wide definition of medical treatment and upheld the sheriff’s view that the treatability test was met by the fact that "in the structured setting of the State Hospital in a supervised environment ... the petitioner's anger management improves, resulting in his being less physically aggressive."] Lord Hutton ... (551E) I am in agreement with the opinion of the Inner House that treatment which alleviates the symptoms and manifestations of the underlying medical disorder of a psychopath is "treatment" within the meaning of s17(1)(a)(i) even if the treatment does not cure the disorder itself. 2. R v Canons Park Tribunal ex p A [1995] QB 60 CA This decision was not followed in relation to whether treatability was part of the test for the tribunal: however, the judges also discussed what was meant by treatability, which comments remain valid. Roch LJ (81E) I would suggest the following principles. First, if a tribunal were to be satisfied that the patient's detention in hospital was simply an attempt to coerce the patient into participating in group therapy, then the tribunal would be under a duty to direct discharge. Second, 'treatment in hospital' will satisfy the 'treatability test' although it is unlikely to alleviate the patient's condition, provided that it is likely to prevent a deterioration. Third, 'treatment in hospital' will satisfy the 'treatability test' although it will not immediately alleviate or prevent deterioration in the patient's condition, provided that alleviation or stabilisation is likely in due course. Fourth, the 'treatability test' can still be met although initially there may be some deterioration in the patient's condition, due for example to the patient's initial anger at being detained. Fifth, it must be remembered that medical treatment in hospital covers 'nursing and also includes care, habilitation and rehabilitation under medical supervision'. Sixth, the 'treatability test' is satisfied if nursing care etc are likely to lead to an alleviation of the patient's condition in that the patient is likely to gain an insight into his problem or cease to be unco-operative in his attitude towards treatment which would potentially have a lasting benefit. Kennedy LJ (84E) As I have already noted, nursing and care under medical supervision are also "medical treatment," and there was evidence before the tribunal from which the tribunal was entitled to conclude that over a prolonged period treatment, consisting at first of no more than nursing, care and gradual persuasion to accept group therapy, followed by group therapy itself was likely to alleviate or prevent deterioration

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of her condition, even if at first some deterioration could not be avoided. [At 85B he indicated that the question for the tribunal was “Was the spectrum of treatment envisaged likely eventually to alleviate or prevent a deterioration of the patient's condition?”] 3. R (Wheldon) v Rampton Hospital Authority [2001] MHLR 19 Admin Ct Facts and outcome: W had been transferred to hospital days before the end of a prison sentence; he was detained as if a hospital order (s37 MHA 1983) had been made; he was diagnosed as suffering from psychopathic disorder. He was convicted of 2 assaults in hospital and given a 3-month prison sentence, his treating psychiatrist indicating that there was little evidence that he had benefited from treatment or that it had prevented a deterioration; she indicated that “He needs to accept responsibility for his actions (and be held accountable by the Criminal Justice System) before he could become amenable to treatment.” At the end of his sentence, he was readmitted to hospital: though his psychiatrist indicated that his clinical position was unaltered, she certified that he met the criteria for detention. He was referred to a new Personality Disorder Service and also assessed as suitable for transfer to another hospital. A challenge to the decision to readmit W to hospital – on the basis that the treating psychiatrist had misunderstood treatability – failed on the basis that there was sufficient evidence that further and different treatment might alleviate the condition or prevent a deterioration of it. Elias J … 14. It is plain … that the concept [of treatability] is a very wide one, and that the responsible medical officer making the assessment can look to the future and consider whether the treatment is likely, in the future, to achieve beneficial results. … [The judge considered the evidence and concluded that there was sufficient to show that the treating psychiatrist could properly have reached the view that the treatability criteria had been made out despite the limited benefits.] 34. I should add that, in any event, it seems to me that whatever the benefit of the treatment meted out in the past, and which it is reasonable to assume, will achieve similar benefits in the future, there is evidence that further and different treatment might alleviate the condition or prevent a deterioration of it. [He referred to the proposals for treatment at another hospital and within the Personality Disorder Service.] 35. I recognise that it may be said that those treatments have been proposed in hope rather than out of experience, and that it is possible that the various medical officers and social workers recommending such treatment do not necessarily believe that it is

likely to achieve any benefits for Mr Wheldon. But there are passages in the documents before me which make it plain that there is a belief that they will bring about an improvement … 4. Noel Ruddle v Secretary of State for Scotland [1999] MHLR 159 This is a first instance decision in Scotland in which a sheriff made a finding that a personality disorder was not treatable because improvement had occurred as a result of age and the denial of illegal drugs and alcohol arising from the security of the hospital, which was mere containment and a reduced opportunity to abuse substances, not medical treatment and a reduction of the propensity to abuse such substances. R was absolutely discharged. Sheriff JD Allan … 10.1 While anti-social personality disorder is not an untreatable condition, the literature and experience shows mixed and conflicting outcomes. There appears to be no literature which would support the proposition that the structured environment of the State Hospital would, alone, be likely to alleviate or prevent deterioration of the condition of the applicant. 10.2 Age and the passage of time in the State Hospital (rather than any treatment) may have led to some improvement in the condition of the applicant. 10.3 During his period in the State Hospital, the applicant has, for the most part, been denied access to drugs or alcohol and he has benefited from this. However, this has been as a result of the physical security of the State Hospital and not as a result of the nursing and medical care available in the structured environment. Physically denying the applicant drugs and alcohol is an aspect of containment, and not medical treatment; and the containment element of the State Hospital environment is not medical treatment as such. 10.4 Although … the structured environment of the State Hospital is capable of amounting to medical treatment and capable of benefiting some patients, there was no evidence of the applicant's condition being alleviated or prevented from deterioration as a consequence of anything that could be described as medical treatment, and the symptoms of his personality disorder have continued. Thus, keeping in mind the distinction between reducing the propensity to abuse drugs and alcohol and mere reduction of the opportunity to do so, it is likely that the detention of the applicant has led to the latter but not to the former. In this regard, his present detention seems no different in its effect from that which would result were the applicant in prison. 10.5 In the absence of any primary, focused therapeutic or other treatment, the only treatment to which the applicant has been subject in the State Hospital has been the structured environment and

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nursing care under medical supervision. While this structured environment and nursing care in the regime of the State Hospital is medical treatment in the widest sense, it is not clinical treatment; while it may sometimes alleviate or prevent deterioration of condition, it has not done so in the recent past for the applicant and is not doing so at present. 10.6 Accordingly, since the medical treatment which the applicant has received and is at present receiving has not alleviated or prevented and is not likely to alleviate or prevent a deterioration of his condition, he does not meet the "treatability test" and it is not appropriate for him to be liable to be detained in a hospital for medical treatment, nor to remain liable to be recalled to hospital for further treatment. [Note: see South West London and St George's Mental Health NHS Trust v "W" [2002] MHLR 392 Admin Ct, digested at ch 18(i), in which Crane J commented at para 80 that mere containment was not permitted.]

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Chapter 18 Treatment Treatment is defined in s145 MHA: it includes (and so is not limited to) “nursing, and also includes care, habilitation and rehabilitation under medical supervision”. The test for detention (s72 MHA) is only satisfied if there is a need for medical treatment (on which see ch 6(4). The separate question of whether the treatment should be imposed without the consent of the patient is regulated by Part IV MHA, which applies to patients liable to detention except under emergency provisions (s56(1)); as such, it applies to those who have been released from hospital on leave, but it does not cover conditionally released restricted patients. Consent is not required for medical treatment given by or under the direction of the RMO (s62), subject to the following: (i) s57 requires the patient’s capacitated consent and approval from 3 people from the Mental Health Act Commission for psychosurgery and also the surgical implementation of hormones to reduce the male sex drive (the latter having been specified by secondary legislation); (ii) s58 requires either consent or approval by a second opinion appointed doctor for medication more than 3 months after medication was first used and also for ECT at any time (the latter having been specified by secondary legislation), the test for the SOAD in relation to treatment without consent being whether it should be given “having regard to the likelihood of its alleviating or preventing a deterioration of his condition”. There are exceptions to these requirements for urgent treatment, as set out in s62. Case law under the Human Rights Act has established that the Administrative Court has a role to review whether the test for the imposition of treatment without consent is made out. The propositions arising from the case law are:

(i) treatment is widely defined; anything beyond mere containment will probably suffice; (ii) treatment can be given for all forms of disorder, not just those which justify detention; (iii) the tribunal is concerned with the propriety of detention rather than the propriety of the treatment being given.

(i) Meaning of Treatment 1. Reid v Secretary of State for Scotland [1999] 2 AC 512 (see ch 6(i) and ch 17) Lord Hope [The judge concluded that the test for the detention of a patient on the basis of psychopathic disorder required that the treatability test be met.] (529F) But there remains the question what is meant by "medical treatment" in this context. The expression is defined in s125(1) [of the Mental Health (Scotland) Act 1984], which says that it "includes nursing, and also includes care and training under

medical supervision." The definition is a wide one, which is sufficient to include all manner of treatment the purpose of which may extend from cure to containment. But in the case of those mental disorders to which the "treatability" test applies, its purpose is satisfied only if such treatment is likely to alleviate or prevent a deterioration of the person's condition. (531B) The expression “medical treatment” … includes nursing, and it also includes care and training under medical supervision. … Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those 2 purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them. [The RMO] said in his report that there was evidence that the petitioner's anger management improves when he is in the structured setting of the State Hospital in a supervised environment. The environment is one which is set up and supervised by the medical officers of the hospital. [The judge then noted that, whilst it was a question of fact for each case, the "treatability" test could be satisfied on those facts.] 2. R v Canon’s Park MHRT ex p A [1995] QB 60 (see ch 17) Roch LJ (81E) First, if a tribunal were to be satisfied that the patient's detention in hospital was simply an attempt to coerce the patient into participating in group therapy, then the tribunal would be under a duty to direct discharge. ... [See ch 17 for the full quote.] Kennedy LJ (85E) As I have already noted, nursing care and care under medical supervision are also “medical treatment”, and there was evidence before the tribunal from which the tribunal was entitled to conclude that over a prolonged period treatment, consisting at first of no more than nursing, care and gradual persuasion to accept group therapy, followed by group therapy itself was likely to alleviate or prevent deterioration of her condition, even if at first some deterioration could not be avoided. 3. South West London and St George's Mental Health NHS Trust v "W" [2002] MHLR 392 Admin Ct Facts and outcome: W was sentenced to 3½ years’ detention for wounding with intent; he was diagnosed to have an untreatable personality disorder, and this conclusion until shortly before his release date, when he was transferred to hospital under s47 MHA 1983

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on the basis that his behaviour would deteriorate if he was released into the community by virtue of the loss of a structured environment. It was felt that a staged discharge from hospital into the community would prevent this (though no staged discharge occurred: W’s behaviour led to efforts to find a different hospital). It was held that his detention was lawful: the requirement as to treatability of a psychopathic disorder in s47 was satisfied by preventing the deterioration of the manifestations of the disorder; monitoring and assessment (though not assessment alone) amounted to treatment, as did the plan of nursing and psychological care of W as part of a staged discharge into the community. Crane J … 17. On the definition of medical treatment, s145 defines medical treatment as including nursing, and also including care, habilitation and rehabilitation under medical supervision. It is to be noted, however, that a conclusion that certain treatment amounts to medical treatment does not necessarily mean that such treatment will be likely to alleviate or prevent deterioration of the patient's condition. That is a separate matter. … 24. It is clear also that treatment includes monitoring and assessment, although not assessment in isolation. That emerges clearly from the case of R (B) v Barking, Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 1061. … 63. In my judgment, transfer to hospital involving admission, nursing, medical, and here psychological supervision, and staged discharge under medical supervision, is capable of amounting to “treatment”, and if, in a particular case, it is “likely to alleviate or prevent a deterioration of the condition” then the medical conditions of s47 are fulfilled. In my judgment, on the evidence the Secretary of State had, he was entitled to conclude that the conditions were fulfilled and that the treatment was likely to have the effects required. … [The judge concluded there was not merely ongoing assessment; and that there had been a change in the management plan, with consideration being given to a transfer to a different hospital for further treatment.] 79. The location of the patient, in the sense of his location in a particular hospital, is not a matter for the court or for the MHRT2. However, his location has,

1 See ch 6(iv) 2 But see R (F) v (1) Oxfordshire Mental Healthcare NHS Trust (2) Oxfordshire NHS Health Authority [2001] MHLR 140, which related to question of the funding of a transfer to a different hospital. At para 68, Sullivan J rejected a submission that transfer to another hospital was not part of the patients medical treatment: “Treatment includes rehabilitation (see s145(1)), and I can envisage cases where transfer to a

in practice, an effect on what treatment can be carried out and what treatment is likely to be effective in the required sense. Hitherto, the plan for phased discharge has been suspended, although not abandoned, and could be revived … I do not consider that detention becomes unlawful immediately a particular form of treatment is suspended if there is a period of assessment in relation to another form of possible treatment and the process of monitoring under nursing, medical and psychological supervision continues. 80. … However, as has been clearly recognised, the detention must not become mere containment. … [See also the cases digested under ch 6(iv): the granting of leave of absence is treatment, as is motivational interviewing at ward rounds designed to build up insight and assist transition to the community: see in particular R (CS) v MHRT [2004] MHLR 355. Of course it is a separate question of whether the tests relating to the appropriateness or necessity of detention are met.] (ii) Treatment and classification - R (B) v Ashworth Hospital Authority [2005] MHLR 47 HL (overturning [2003] MHLR 250 CA and reinstating [2002] MHLR 336 Admin Ct) Facts and outcome: B, a restricted patient, was admitted to hospital on the basis of mental illness; his clinical team felt that he also suffered from psychopathic disorder, but a tribunal declined to reclassify him as being detained also on that basis. Nevertheless, he was moved to a ward within the Personality Disorder Unit, and the question arose as to whether it was lawful to seek to treat a patient for any mental disorder or only for the mental disorder the classification of which justified detention. The House of Lords held that s63 MHA 1983 authorised treatment for any mental disorder from which the patient suffered, not merely the one which justified detention, and accordingly it was not unlawful to place B on the ward treating personality disorders. Baroness Hale (Lords Bingham, Steyn, Phillips and Carswell agreeing) … The law 11. Section 63 of the 1983 Act deals with the treatment of compulsory patients in hospital:

"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within s57 or s58 above, if the treatment is given by or under the direction of the responsible medical officer."

particular institution because of the particular form of therapy available there would be a necessary step in the patient's rehabilitation …”

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Section 57 provides an exception and extra safeguards for the most controversial treatments for mental disorder, namely psychosurgery and the surgical implantation of hormones for the purpose of reducing male sex drive … Section 58 provides extra safeguards for 2 other treatments which have given rise to concern: electro-convulsive therapy ("ECT") and (put shortly) the administration of medicine by any means once 3 months has elapsed from the first time the patient was given medicine for his mental disorder … 12. Section 63 is contained in Part IV of the Act. … Part IV, including s63, applies to the full range of patients, whether civil or criminal, who are liable to be detained in hospital for more than 72 hours, unless remanded by a criminal court for reports. [The judge then noted that s2 MHA 1983 authorises detention on the basis of mental disorder (plus various other criteria) whereas s3 requires one of the four specific categories of disorder, namely mental illness, mental impairment, severe mental impairment or psychopathic disorder) and that other sections make reference to the specific categories; she also noted that admission to hospital under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 does not involve any categorisation of disorder. Other parts of the statutory scheme were mentioned, including the power of reclassification in s16 of the 1983 Act, and the fact that it does not apply to restricted patients, who may only be reclassified by a Tribunal under s72(5).] 21. All psychiatric patients, but particularly those who are detained in high security conditions for long periods of time, are in a vulnerable situation. However well meaning and professional their carers, they do risk being obliged to accept treatment which is inappropriate to their particular needs. But they are already protected by the ordinary law of medical negligence, by the special safeguards in ss57 and 58 against particularly intrusive or long term treatments, and by the remedies against any treatment decision which breaches their rights under Arts 3 or 8 of the European Convention on Human Rights, either under s7 of the Human Rights Act 1998 or in judicial review … The issue for us is whether, additionally, the only treatment which they may be given without their consent under s63 is treatment for the particular form or forms of mental disorder from which they are recorded as suffering in the application, order or direction under which they are detained. 22. There are a great many reasons for thinking that s63 is not so limited. The first is the plain meaning of the words used. The patient's consent is not required for "any medical treatment" given to him for "the mental disorder from which he is suffering". The Act's definition of "mental disorder" encompasses, not only each of the 4 specific forms of disorder which may be relevant under the Act, but the broader concepts of "arrested or incomplete development of

mind" and "any other disorder or disability of mind". Thus, the natural and ordinary meaning of the words is that the patient may be treated without consent for any mental disorder from which he is suffering, and any treatment ancillary to that … 23. Secondly, where it is important to be clear which of the 4 specific types of disorder the patient is suffering from, the Act uses the words "form of" disorder. [Examples are given: ss16(1) and 72(5) (reclassification); ss11(6), 37(7) and 47(4) (medical recommendations).] If it had been intended to limit s63 to treatment for the specific form of mental disorder under which the patient was detained, then the section would have read "for the form of mental disorder from which he is suffering". 24. Thirdly, s63 applies to large numbers of compulsory patients who are not classified as suffering from 1 of those 4 forms of disorder at all. Most compulsory patients are admitted for assessment under s2 of the Act. A small number are admitted under the Criminal Procedure (Insanity) Act 1964 or s46 of the 1983 Act. In all these cases, s63 must refer to any mental disorder from which the patient is suffering. It would be surprising if the same words had a different meaning when the patient is detained under these provisions from the meaning it has when he is detained under the others. 25. Fourthly, the statutory history of these provisions indicates that classification and reclassification relate to the criteria for admission and continued liability to detention rather than to the treatment which may be given while in hospital. [The judge considered the language of the Mental Health Act 1959, under which the form of disorder was particularly important because for those suffering from psychopathic disorder and subnormality/mental impairment, the law required admission before the age of 21 and discharge no later than the age of 25.] 26. It could not at that stage, however, have been thought that classification or reclassification had anything to do with what medical treatment might be given in hospital, because, surprising as it might seem, there was nothing in the 1959 Act dealing with what, if any, medical treatment might be given to the various kinds of patients detained under its provisions. The view taken was that everyone detained with a view to treatment could be treated, against their will if necessary, as the consultant psychiatrist responsible for their care thought appropriate … The 1983 Act … enacted the general power in s63, defined in s56 the patients to whom it applied, and provided safeguards for the most controversial treatments specified in or under ss57 and 58. It did not, as we have seen, expressly link s63 to the classified form of disorder, although it could easily have done so. 27. The classifications remained important for the authority to detain, but in a rather different way. [The judge noted that although the age limits in the 1959

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Act were repealed, the "treatability" test was introduced for psychopathic disorder and mental impairment.] 28. Fifthly, and following on from the above, the RMO has never had power to reclassify a restricted patient: s16, and its predecessor, did not apply. The obvious reason for this was that the classification was irrelevant to the continued authority to detain. This did not have to be renewed every so often, but continued until the patient was discharged, usually by the Home Secretary. The MHRT had no power to discharge or reclassify restricted patients under the 1959 Act; instead they could be referred to the tribunal for its advice … Under the 1983 Act, the tribunals' powers of discharge and reclassification were extended to restricted patients … For the first time, therefore, it became possible to reclassify the form of mental disorder from which a restricted patient was suffering. But the fact that a restricted patient can only be reclassified after an MHRT hearing reinforces the conclusion that classification has no bearing on treatment. … the jurisdiction of the tribunal is aimed at discharge, with classification an afterthought if the patient is not discharged: see s72(5). The time taken to gather the necessary reports and evidence and to arrange a hearing can be considerable. It is unlikely that Parliament intended that the patient could not be treated without his consent in the meantime, particularly as the patient may find ways of delaying the tribunal hearing. 29. For all those reasons, I conclude that the words of s63 mean what they say. They authorise a patient to be treated for any mental disorder from which he is suffering, irrespective of whether this falls within the form of disorder from which he is classified as suffering in the application, order or direction justifying his detention. Policy 30. [The judge considered that the need to protect patients from inappropriate treatment was not secured by restricting treatment to that for the different classifications of disorder, giving as examples the use of drugs for one form of mental illness when the patient suffered from another form of mental illness, or of ECT treatment appropriate for one form of mental illness but not another.] His classification of mental illness would not have protected him from the wrong kind of drugs or the inappropriate use of ECT. But s58 is expressly designed for that purpose. 31. Secondly, psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. As this case also shows, co-morbidity is very common … It is not easy to disentangle which features of the patient's presentation stem from a disease of the mind and which stem from his underlying personality traits. The psychiatrist's aim should be to treat the whole patient. In this case, the

patient's mental illness having been stabilised on medication, the aim was to address the underlying features of his personality which were getting in the way of his transfer back to a less restrictive setting. Once the state has taken away a person's liberty and detained him in a hospital with a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs. It would be absurd if a patient could be detained in hospital but had to be denied the treatment which his doctor thought he needed for an indefinite period while some largely irrelevant classification was rectified. … 33. … Although s16(1) (and s72(5)) are framed in permissive terms, in my view the RMO (or the MHRT) should reclassify if they are satisfied that the recorded form (or forms - the singular includes the plural) of disorder should be changed. (iii) Demarcation between Tribunal and Administrative Court - R (B) v (1) Dr SS (2) Dr G (3) Secretary of State for Health [2006] MHLR 131 CA Lord Phillips CJ (Thorpe and Rix LJJ agreeing) … 65. ... Part VI of the MHA provides for applications to Mental Health Review Tribunals (MHRTs) to resolve issues arising under various provisions of the Act. MHRTs are specialist tribunals well qualified to deal with medical issues. The same is not true of the Administrative Court. Whilst the jurisdiction of MHRTs extends to the propriety of detention for treatment it does not extend to issues relating to the propriety of treatment pursuant to s58. There is, however, an obvious overlap between the question of whether a patient is suffering from mental illness which justifies admission for treatment and the question of whether treatment should be administered under s58. In each case an issue can arise as to whether the proposed treatment is likely to alleviate or prevent a deterioration of the patient’s condition. Equally, there may be a seminal question as to whether the patient is suffering from a relevant mental illness at all. 66. Where the real issue is whether the patient should be detained in a mental hospital at all, that issue is one that should be referred to a Mental Health Review Tribunal in the first instance, rather than be the subject of judicial review proceedings. It seems to us that, at times at least, this was the real issue in this case. In such circumstances the appropriate course may well be on the application for permission to grant an interim injunction and adjourn the application pending a hearing before the MHRT. [Ch 18 was updated in February 2007]

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Chapter 19 Tribunal Proceedings The following issues are covered: (i) applications and references, (ii) bias, (iii) the burden and standard of proof applied, and the approach to issues, (iv) delays and listing, including the impact of the Human Rights Act 1998; (v) the nature of the tribunal’s jurisdiction; (vi) the parties to proceedings; (vii) whether the hearing should be in public; (viii) the role of the RMO in the hearing; and (ix) withdrawal of an application. Note that ch 2 deals with adjournments and ch 20 deals with the issue of “victims”. (i) Applications and references Applications may be made to the MHRT only as allowed by the statute (s77 MHA); the express powers of application are set out in ss66, 69, 70 and 75. In some situations, cases must be referred to the MHRT, including where patients do not make applications over a certain time period (ss68(1) and (2) and 71(2)) and where a conditionally discharged patient is recalled (s75(1)). In addition, the Secretary of State for Health has a general power to refer a non-restricted patient’s case to the MHRT at any time (s67) and the Secretary of State for Justice has a similar power in relation to restricted patients (s71(1)). Under rr3 and 30 MHRT Rules, a written application is required, “signed by the applicant or any person authorised by him to do so on his behalf”1. The MHRT has 3 parts: Wales and North and South England: the application should be made to the area in which the patient is detained (or liable to be detained), or subject to guardianship or supervised discharge, or, in the case of conditionally discharged patients, resides; see s77(3) and (4) MHA and r2 MHRT Rules. This is to ensure that the tribunal for the area local to the patient has jurisdiction2. If a patient is granted leave under s17 MHA to somewhere in a different tribunal area, the patient will reside where placed under s17 but the tribunal with jurisdiction will remain that covering the hospital from which leave has been granted3. However, r17 MHRT Rules allows a tribunal to be transferred to another area if the patient “moves”: the question arising is whether “moves” means that residence changes. If there is more than one pending application, they can be considered together (r18); this does not expressly refer to a pending application and a pending reference, though r29 provides that references are to

1 rr3(2) and 30(2) require various items of information “wherever possible”; if they are missing the responsible authority or Home Secretary should supply them if practicable. There is no prescribed form, but the MHRT website has a model: www.mhrt.org.uk 2 See R (A) v MHRT [2005] MHLR 144 3 See Fox v Stirk [1970] QB 463, which equated residence in election law with a degree of permanence.

be treated as if an application had been made by the patient and it is arguable that r18 applies on that basis. It is possible to postpone considering an application or reference if the MHRT has recently considered the case: but only if this is in the interests of the patient (and not in some situations, including if the patient has been reclassified or a barring order has been issued). See ch 19(ix) for withdrawal of an application. The propositions arising from the case law are:

(i) Although an application requires capacity, the test is low; (ii) an application by a s2 patient regraded to s3 status will still be heard, but the s3 test will apply; (iii) but if a s3 patient is placed on a supervised discharge (s25A), a fresh application is required.

Capacity - R (MH) v Secretary of State for Health [2005] MHLR 302 HL Facts and outcome: see ch 4 The requirement under rr3 and 30 MHRT Rules for a written application “signed by the applicant or any person authorised by him to do so on his behalf” imports a requirement of capacity to make an application: but Baroness Hale noted at para 26 “Although an application has to be made in writing, it can be signed by any person authorised by the patient to do so on her behalf: see r3(1). This could be any relative, a social worker, an advocate, or a nurse, provided of course that the patient has sufficient capacity to authorise that person to act for her. The common law presumes that every person has capacity until the contrary is shown and the threshold for capacity is not a demanding one. ...” There is a duty on the hospital holding a detained patient to pass on information to a patient and nearest relative about the rights of applying to a tribunal and ensure that it is understood: see s132 MHA. Section 2 Application – Patient Placed under s3 – R v South Thames MHRT ex p M 3 September 1997 Admin Ct Facts and outcome: see ch 6(ix)4. Collins J ... Section 66(1) does not refer to the detention, merely to the admission, as the foundation for the right of application to the tribunal. ... "admission" is something which happens at a moment in time ... it is not a continuing state of affairs. ... If one goes to s72 ... there is nothing in that which suggests that the change of circumstances (that is to say the change in the nature of the detention from s2 to s3) affects the validity of the application, nor is there any reason why it should. The powers of the tribunal under s72 are ... to be exercised on consideration of the state of affairs before the tribunal. ... Accordingly when the matter comes before the tribunal, if there has been the

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change from s2 to s3, then the tribunal must exercise its powers in relation to a patient who is liable to be detained otherwise than under s2 above and therefore must consider what are loosely described as the s3 criteria in determining the case before them. Since the Act makes clear that the basis for an application lies in the admission, whether under 2 or 3, then the determination of the tribunal on the s2 application cannot prevent the applicant from making a subsequent s3 application if the s2 application is unsuccessful. Section 3 Application – Patient Placed under s25A Supervised Discharge – R (SR) v MHRT [2006] MHLR 121 Facts and outcome: SR was detained under s3 MHA; he applied for a Tribunal, but the day before it was due to sit, the process of placing SR under a supervised discharge under s25A ff was completed. The question which arose in judicial review proceedings was whether the Tribunal office had been correct to cancel the hearing on the basis that, as he had been discharged from s3, there was nothing for the Tribunal to determine and a fresh application was required to challenge the supervised discharge, which required reports dealing with the different criteria relevant to that regime. The Court dismissed SR’s claim, holding that the differing time limits for applications made under s66 of the 1983 Act meant that applications by patients with different statuses were to be treated differently; and that the statutory language as to the power of discharge relating to a patient under a supervised discharge in s72(4A) properly required the patient to be so subject at the time of application. This conclusion was confirmed by the fact that the “responsible authority” (on whom the application to a Tribunal is served and who must provide reports and is a party to the proceedings) differs according to whether the patient is detained or subject to a supervised discharge. Stanley Burnton J 22. Section 66(1) itself does not suggest that there are different kinds of application to the Tribunal. However, it is difficult to see how subs(2) can work unless applications by patients with different statuses are to be treated differently. In addition, s72 qualifies the powers of the Tribunal by reference to the status of the patient. Given the meaning of “application to the Tribunal” in s66 and other provisions of Part II to the Act, the more natural interpretation of the words “Where application is made to a … Tribunal by or in respect of a patient who is subject to after-care under supervision” in s72(4A) is that he is so subject when the application is made. ... [The judge relied on additional features of the statutory scheme which were consistent with this conclusion.] [Ch 19(i) was updated in February 2007]

(ii) Bias English public law and both Art 6 ECHR (fair hearing) and Art 5(4) (need for a judicial process to review detention) require that the tribunal not be biased. In R (Al-Hasan) v Home Secretary [2005] 1 WLR 688, Lord Brown stated at para 30: “The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2003] ICR 856: ‘The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased’.” The propositions arising from the case law are:

(i) the fact that the medical member has seen the patient does not give rise to bias so long as nothing beyond a provisional view is formed in advance and the parties are informed of the relevant findings; (ii) the medical member can work for the Trust which operates the hospital at which the patient is detained, but not at the same hospital; (iii) there is no bias arising from the fact that the legal member of the tribunal sentenced the patient to a hospital and restriction order

For the first two propositions, see ch 9 (medical member) and the cases cited there. Legal member – also sentencer - R (M) v MHRT [2006] MHLR 46 Facts and outcome: M was, in September 2003, sentenced by HHJ Walker to a hospital order with a restriction order (ss37 and 41 MHA). The judge also chaired a Tribunal in November 2004 which considered an application for discharge (on the basis that M’s disorder had stabilised sufficiently to allow a conditional discharge). On advice, M did not apply that the judge recuse himself; however, the fact that he had sentenced M was raised, and the judge indicated that he had not remembered the case. The Tribunal decision not to discharge M was challenged on the grounds of bias. The application was refused on the basis that the fair-minded and informed observer, having considered the relevant facts, would not conclude that there was a real possibility that the tribunal was biased as, inter alia, the Tribunal was not concerned with whether the court sentence was correct, there was no basis for saying that the judge would be affected by information from the sentencing hearing, and in any event there would be no reluctance to change his mind when a rational basis for so-doing was put forward, as could be done in a Tribunal. (In any event, M had waived any right to object by not raising the matter.) Bennett J 26. ... neither the issues that the Tribunal had to consider, nor its decision, nor the reasons for its

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decision, either did in fact, or could have, cast any doubt upon the validity of the sentence passed by the judge in September 2003. ... 46. ... The decision of a sentencing judge and of a Tribunal exercising its powers under s72, but particularly under s73 of the MHA, do directly affect the liberty/detention of the subject. It is, I agree, a material consideration that any fair-minded and informed observer would have in mind; indeed very much to the forefront of his mind. 69. In my judgment the fair-minded and informed observer would take into account the following matters, which I list in no order of importance:-

(a) The hearing in September 2003 was conducted completely in public. There was nothing which the judge knew the Claimant and the public did not know. The judge made his decision under ss37 and 41 of the MHA which required him to consider the facts and the evidence as they then stood. (b) In November 2004, which I am prepared to accept in the context of the instant case is a comparatively short time after September 2003, the judge, as part of the Tribunal considering the Claimant’s case, was required to consider the matters ... identified in ss72 and 73 of the MHA. The Tribunal had no power at all to question the validity of the sentence passed in September 2003. Therefore as a matter of logic and common sense there can be no question of the judge being swayed by a conscious or sub-conscious desire (even if one existed) to uphold the sentence he passed in September 2003. ... (c) The decision the Tribunal had to make in November 2004, was not the same, or even substantially the same, as that made by the judge in September 2003. First, in November 2004 there was no issue or dispute that the Claimant was suffering from a requisite mental illness. Even if there had been a dispute on this issue it would have made no difference since the Tribunal had to consider the position as at November 2004. Second, the evidence before the Tribunal concerned how the Claimant had progressed (or not) since September 2003 and whether he could then be safely released (conditionally) into the community. ... (d) There can be no basis for saying that the judge might have had information from September 2003 ... which may have affected his mind in November 2004. (e) In any event the fair-minded and informed observer would not attribute to the judge an inability or reluctance to change his mind when faced with a rational basis for doing so. ... [The judge also noted that oral argument in front of a Tribunal has a role of promoting a change of mind in the members of the Tribunal.]

(iii) Burden and Standard of Proof Following the incorporation of Art 5 ECHR into domestic law under the Human Rights Act 1998, s72 MHA was revised to provide that the tribunal has to be positively satisfied that the criteria for detention are made out; otherwise, discharge must be ordered1. However, it remains for a restricted patient to demonstrate that any discharge should be absolute rather than conditional and a patient subject to guardianship is entitled to discharge only if he or she shows that the criteria for its imposition are not met. The propositions arising from the case law are:

(i) the civil standard of proof applies; (ii) most of the issues arising involve evaluation as to the future, which require judgment rather than the application of a standard of proof.

R (AN) v MHRT [2006] MHLR 59 Facts and outcome: In R (DJ) v MHRT; R (AN) v MHRT [2005] MHLR 56, the issue raised was whether tribunals should only be able to uphold detention if satisfied to the criminal standard or a standard of “clear and convincing evidence”. Munby J held that (i) the standard of proof in tribunal proceedings is the normal civil standard, the balance of probabilities; this applies to the question of whether a patient suffers from a mental disorder and any other factual disputes which arise; but (ii) the tribunal is mainly concerned the evaluation of evidence as to future risks (relapse, re-offending) in determining whether any mental disorder is of a nature or degree which makes liability to detention for medical treatment appropriate, whether such treatment is necessary for the health or safety of the patient or for the protection of others, and, in relation to a restricted patient, whether liability to recall is appropriate. These evaluative judgments are not susceptible to a defined standard of proof. The judge also gave guidance on the use of hearsay evidence. The Court of Appeal (i) upheld the judge’s conclusion that the standard of proof was the normal civil standard, but (ii) held that the burden and standard of proof applied also to the evaluative judgments to be made; (iii) the Court also endorsed the judge’s guidance as to the use of hearsay evidence. Richards LJ ... 60. ... it was laid down clearly by the House of Lords in In re H2 and Rehman3 that in English law the civil standard is one single standard, namely proof on the balance of probabilities (or preponderance of probability). The other standard is the criminal standard of proof beyond reasonable doubt. There is no intermediate standard, nor is the civil standard to

1 R (H) v MHRT [2001] MHLR 48 and the Mental Health Act 1983 (Remedial) Order 2001 made under the 1998 Act. 2 [1996] AC 563 3 [2003] 1 AC 153

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be broken down into sub-categories designed to produce one or more intermediate standards. (We leave out of account for the purposes of this analysis the standards applicable in certain specific statutory contexts, such as a “reasonable likelihood” of persecution in asylum cases. The present case is governed by the general rules.) ... 62. Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities. ... 72. ... We take it as axiomatic, and it is not in dispute, that cogent evidence will in practice be required in order to satisfy the tribunal, on the balance of probabilities, that the conditions for continuing detention are met. But we would not put it any higher than that. [The judge then explained the reasons why the evidential requirement should not be pitched unduly high. He said “73. ... the mental health context is very different from other situations where individual liberty is at stake. The unwarranted detention of an individual on grounds of mental disorder is a very serious matter, but the unwarranted release from detention of an individual who is suffering from mental disorder is also a very serious matter”. He went on to point out that the consequences flowing from an unnecessary release might include risks to the patient's own health and safety or a risk of harm to other members of the public. He expressed his agreement with Munby J’s proposition that too high a standard ‘would subvert the obvious purpose of the Act, which seeks both to protect the interests of the individual whose ability to act in his own best interests is impaired and at the same time enable a proportionate balance … to be struck between individual and public interests’.] ... 84. All parties accept that Munby J was right to hold that, whatever standard of proof is determined ... to be the correct standard in this context, it can and should be applied to the question whether a person is suffering from a mental disorder within s72(1)(b)(i) (including, as we understand the concessions, the nature and degree of that disorder) and to any issue of past conduct that the tribunal may have to determine. [The judge then discussed the submissions relating to whether Munby J was correct to hold that issues under ss72 and 73 as to the appropriateness and necessity of continuing detention (as well as the

alternative question under s73 as to the appropriateness of the patient remaining liable to be recalled) are not susceptible to a defined standard of proof.] 98. We agree with the judge that, in relation to those issues, the tribunal "is not … concerned so much with finding facts which are capable of exact demonstration but rather with a process of judgment, evaluation and assessment" (para 102). ... 99. We would accept that the concept of a standard of proof is "not particularly helpful" (per Lord Hoffmann in Rehman, with emphasis added) in relation to such a process. But we would not go so far as to hold that there is no room for its application at all. An opinion on the appropriateness or necessity of continuing detention may in principle be held with different degrees of certainty, and it may be important for the tribunal to know what degree of certainty is called for. Under ss72 and 73 the tribunal has to be "satisfied" as to the relevant matters. ... We see no absurdity in a tribunal having some doubt as to the appropriateness or necessity of continuing detention, yet being satisfied on the balance of probabilities that it is appropriate and necessary. Accordingly, as it seems to us, the standard of proof has a potential part to play in the decision-making process even in relation to issues that are the subject of judgment and evaluation. In practice, we would expect the tribunal generally either to form the requisite judgment or not to form it, without needing to have specific regard to any standard of proof. But the standard of proof provides a backdrop to the decision-making process and may have an important role in some cases. 100. ... Where a court has to be satisfied “on balance” in evaluative matters, it needs to be satisfied on the balance of the argument, where the argument depends in part on evidence (there is always going to be some factual substratum) and in part on evaluation. Since the evidence cannot be divorced from the argument, and since there is also argument on pure issues of fact, it is perfectly acceptable to refer to the whole process as one in which the court has to be satisfied on the balance of probabilities. In relation to the evaluative part of the process that may involve an element of shorthand, but it gives rise to no conceptual or practical difficulty. ... [Notes: (i) it was held that Munby J had made an error at paras 117-120 of his judgment where he appeared to indicate that the tribunal is obliged to discharge a patient under s72 or s73 only when the detaining authority fails to satisfy it both as to the s72(1)(b)(i) criterion and as to the s72(1)(b)(ii) criterion: “106. As all parties before us accept, that is an error. The correct position is that those 2 criteria are cumulative and the tribunal is obliged to discharge a patient if the detaining authority fails to satisfy it as to either of them ...”

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(ii) In relation to the question of the evaluation of hearsay evidence, Richards LJ said this: “77. ... we see no reason to disagree with the guidance given by Munby J at paras 121 et seq of his judgment, where he dealt in particular with the evaluation of hearsay evidence; though we should stress that the detail of the points covered in that part of the judgment has not been the subject of argument before us.” Accordingly, the following comments of Munby J remain valid guidance for Tribunals: at para 129 of his judgment, he said “If the Tribunal is relying upon hearsay evidence it must take into account the fact that it is hearsay and must have regard to the particular dangers involved in relying upon second, third or fourth hand hearsay. The Tribunal must be appropriately cautious of relying upon assertions as to past events which are not securely recorded in contemporaneous notes, particularly if the only evidence is hearsay. The Tribunal must be alert to the well-known problem that constant repetition in ‘official’ reports or statements may, in the ‘official’ mind, turn into established fact something which rigorous forensic investigation shows is in truth nothing more than ‘institutional folk-lore’ with no secure foundation in either recorded or provable fact. The Tribunal must guard against too quickly jumping to conclusions adverse to the patient in relation to past events where the only direct evidence is that of the patient himself, particularly where there is no clear account in contemporaneous notes of what is alleged to have happened. In relation to past incidents which are centrally important to the decision it has to take the Tribunal must bear in mind the need for proof to the civil standard of proof; it must bear in mind the potential difficulties of relying upon second or third hand hearsay; and, if the incident is really fundamental to its decision, it must bear in mind that fairness may require the patient to be given the opportunity to cross-examine the relevant witness(es) if their evidence is to be relied on at all.”]

(iv) Delays, cancellations and listing Detention must be reviewed speedily by a court to comply with Art 5(4) ECHR; there are set limits for s2 hearings (r31 MHRT Rules) and in relation to recalled conditionally discharged patients (s75 and r29(cc)), but not others. The propositions arising from the case law are:

(i) Art 5(4) gives rise to a duty which may give rise to damages if breached; (ii) what amounts to speedy is fact specific.

R (C) v MHRT for the London South and South West Region [2001] MHLR 110 CA Facts and outcome: The issue raised in this case was the lawfulness of the tribunal’s then practice of listing s3 cases 8 weeks after the application. The Court granted a declaration that “the defendant's practice of listing all hearings in respect of patients detained for treatment under s3 of the MHA 1983 a uniform specified period after the date of the request is unlawful”. Lord Phillips MR (Jonathan Parker LJ and Lord Mustill agreeing) ... 64. My conclusion is that the practice of fixing hearing dates 8 weeks after the date of application is bred of administrative convenience, not of administrative necessity. There is nothing inconsistent with Art 5(4) of the ECHR in having a target date of 8 weeks maximum. The circumstances of some cases may well require 8 weeks' preparation for the hearing. In such cases an 8 week period will not conflict with the requirement of Art 5(4) that the decision on the application must be obtained speedily. ... 66. I do not consider lawful a practice which makes no effort to see that the individual application is heard as soon as reasonably practicable, having regard to the relevant circumstances of the case. Such a practice will inevitably result in some applications not leading to the speedy decision required by Art 5(4). The present case is an instance of this result. [Note: in R (KB and others) v MHRT and Health Secretary [2003] MHLR 1 and R (B) v MHRT and Home Secretary [2003] MHLR 19, the Administrative Court held that delays which seemed too long had to be explained, failing which Art 5(4) would be breached; further, compensation would be required for distress and anxiety was shown or could properly be presumed: [2003] MHLR 28. See also R (X) v MHRT [2003] MHLR 299 Admin Ct (ch 2(ii) and 19(iv)) in which Collins J noted that any decisions as to adjournments to hear further evidence must balance the obligation to provide a speedy review of the lawfulness of detention under Art 5(4).]

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(v) Nature of jurisdiction The propositions arising from the case law are:

(i) the task of the tribunal is largely one of making evaluative judgments; (ii) it has an original or inquisitorial jurisdiction.

See R (AN) above as to the evaluative nature of most of the question in front of a tribunal. 1. R v London South and South West Region MHRT ex p Moyle [1999] MHLR 195 Admin Ct Facts and outcome: see ch 6(i) Latham J [The judge referred to the fact that under the MHA 1959, the tribunal had no jurisdiction to order the release of a restricted patient and that this was found to be a breach of Art 5(4) ECHR in X v UK.] 9. Section 73 of the Act was enacted in order to remedy this deficiency. It should be noted, however, that the mechanism which was adopted did not, in fact, give to the Tribunal a reviewing or appellate jurisdiction; its jurisdiction is an original jurisdiction. As the Tribunal includes a legally qualified Chairman and a psychiatrist, it was clearly Parliament’s intention that the Tribunal should come to its own conclusion as to whether or not in the case of restricted patients the criteria for discharge had been met. … 28. ... the Tribunal ... have an original jurisdiction, in which they have to exercise their own judgment, based on the evidence before them. It is open to a Tribunal, provided that they act rationally, to disagree with the views of any psychiatrists whose evidence is put before them. I will deal later in this judgment with whether or not there was sufficient evidence upon which the Tribunal could properly have come to the conclusion that they did. … 2. R (X) v MHRT [2003] MHLR 299 Admin Ct Facts and outcome: see ch 2(ii) Collins J … 17. It is clear that the Tribunal has power to adjourn of its own motion. [The judge referred to rr15 and 16 MHRT Rules.] ... 21. ... the Tribunal as a general proposition has power of its own motion to adjourn for the purpose of obtaining information, even though the parties have decided not to put that information before it. ... 23. ... Scott J in W v Egdell [1990] Ch 359, 375, ... stated that the nature of a hearing before a MHRT was inquisitorial, not adversarial, and he drew attention to the Rules, including r15 - but there are

others - which pointed in that direction; for example, one of the matters that occurs in proceedings before the Tribunal is that the medical member of the Tribunal examines the patient and takes such other steps as he considers necessary to form an opinion of the patient's mental condition and he has the right, if he thinks it necessary, to see the patient in private and to obtain medical records and investigate them. So he is, unusually perhaps, required by the Rules to form an independent view of the mental state of the patient. That is not on its face consistent with a purely adversarial process. 24. In my view, it is not particularly helpful to label the proceedings one way or the other. The reality is that there is clearly a public interest involved in the exercise. The burden is of course upon the authority to establish to the satisfaction of the Tribunal that the conditions for detention exist. 25. Nonetheless, in carrying out that function, the Tribunal will inevitably, and particularly in a case involving the release of someone who has committed a very serious offence, have regard to whether there is any danger to the public, and in undertaking its task, it must of necessity be concerned that it has before it all relevant information which will enable it to reach the correct decision in the circumstances of the individual case. 26. The Tribunal will normally rely upon the material that is put before it by the responsible bodies: on the one hand the authority and the Secretary of State, if the Secretary of State chooses to involve himself, as he can, and produce his own evidence; and on the other, such material and such reports as the patient chooses to present before the Tribunal. 27. But the Tribunal must clearly have to consider in every case whether there is a gap in the evidence which it requires to be filled in order to enable it to reach the right decision. 28. Having said that, it is equally important that there is no unnecessary delay. Detention is potentially contrary to Art 5 of the European Convention if it continues for no good reason ...

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(vi) Parties Under r2 MHRT Rules, the parties are the applicant, the patient (who is not always the applicant), the responsible authority (hospital, guardian or health authority providing after-care services under a supervised discharge), and anyone listed in r7 or r31(c). Rule 7 requires that notice be given to various bodies, including the nearest relative. In relation to restricted patients, although the Secretary of State is not made a party by any of these provisions, he or she has to be sent notice of the application under r4, the relevant documents under r6 and r12, and notice of the hearing under r20. He can become a party under r7(f). The propositions arising from the case law are:

(i) a restricted patient does not have a nearest relative for these purposes; (ii) failure to involve the Secretary of State in a restricted case is a fundamental flaw.

See R (H) v MHRT [2000] MHLR 203 (ch 11(iii)) for the first proposition. However, as r7(f) gives the tribunal a discretion to make a party “any other person who, in the opinion of the tribunal, should have an opportunity of being heard” the nearest relative of a restricted patient can be made a party, as can any other relative or person involved in the case. This discretion must be exercised in accordance with the requirements of Art 8 and the right of the patient to respect for their privacy, and so if there is any objection from the patient the tribunal must decide whether it is proportionate to allow a person to be a party. Note that making a person a party does not necessarily mean that they obtain copies of all the documents considered by the tribunal: r12 provides that documents are supplied to the patient, applicant, responsible authority and Secretary of State (in restricted cases)1 and r21 allows the tribunal to control who is allowed into the hearing; r22 gives a general discretion as to how to conduct a hearing, and r22(4) makes it plain that any party takes such a role as the tribunal “thinks proper” (subject to requirements as to allowing evidence and questioning of witnesses). See also the section below on Victims. Secretary of State not allowed comment – fundamental flaw – (a) conditional discharge – Campbell v Home Secretary [1988] AC 120 HL Facts and outcome: C was a restricted patient. He applied to a tribunal. The RMO’s medical report was supplied to the Home Secretary, who supplied comments that he agreed with the RMO that there should be no discharge. However, the Home Secretary was not notified of the hearing in advance and an independent psychiatric report in favour of

1 There is the power to withhold material from the patient and applicant if disclose would adversely affect the health or welfare of the patient or others: r12(2).

discharge did not reach him until the date of the hearing. A conditional discharge granted by the tribunal was quashed in judicial review proceedings on the basis of the procedural failings. Lord Bridge (125) … The Secretary of State, who is clearly the only party capable of representing any interest the public may have in opposing an application for discharge, notified the tribunal of his opposition. The tribunal heard and determined the application on 12 February 1985. In breach of the rules the Secretary of State was not given notice of the hearing. … (126) It has always been common ground that this decision was made in breach of the rules. What is more important is that there was here a breach of the most fundamental rule of natural justice, in that the Secretary of State, as a vitally interested party, was denied a hearing. That is not in dispute. … [Whatever the outcome of the statutory construction issue raised2] I find it difficult to see how the tribunal's decision made in February 1985 can properly stand. Such a fundamental flaw as vitiated the proceedings leading to that decision must surely call for a complete rehearing de novo. (b) absolute discharge of conditionally discharged patient - R (Home Secretary) v MHRT (AO as Interested Party) [2004] MHLR 170 Admin Ct Facts and outcome: AO was a conditionally discharged restricted patient; the grant of an absolute discharge was challenged on the basis that, in breach of rr4, 12 and 20 of the MHRT Rules 1983, the Home Secretary had not been informed of the hearing or provided with the reports and so did not provide a statement (as required under r6(3)) or have the opportunity to appear. AO argued that the Court should exercise its discretion not to quash the decision as the Home Office statement would not have affected the outcome of the tribunal, as there was no evidential basis for the retention of liability to recall. The Court held that as the Home Secretary is the only party capable of representing any interest that the public may have in opposing an application for an absolute discharge, he has a central role, given that the restriction order is in place to offer protection for the public, and so the decision was fundamentally flawed. As it was not for the Court to second-guess the impact of the Home Secretary’s views, there was no reason not to quash the decision as a matter of discretion. Owen J … 24. ... where, as in this case, the patient has been conditionally discharged, not only is there a duty on

2 Which was the issue of whether a tribunal could reconvene: the decision of the Lords on the point – that the tribunal could not reconvene – has now been overturned: see R (IH) under ch 5(v)

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the Secretary of State to give the Tribunal his views on the suitability of the patient for absolute discharge, but it is only the Secretary of State who is subject to that duty. He is the only party capable of representing any interest that the public may have in opposing an application for an absolute discharge. His role is therefore of central importance. … 25. … I am satisfied that the Tribunal's decision is fundamentally flawed, given that as a result of the failure to notify the Secretary of State of the hearing it did not have his views as to the interested party's suitability for absolute discharge. Secondly, it is not for this court to attempt to judge what the Secretary of State's views would have been, or whether they would have affected the outcome. 26. In those circumstances, and whilst I have considerable sympathy for the interested party, I am satisfied that the only proper course is to quash the decision and to remit the matter to a differently constituted MHRT.

(vii) Private or public hearing Rule 21 MHRT Rules creates a presumption that tribunal hearings will be in private, but allows public hearings where the patient makes an application and it would not be contrary to his or her interests. There are separate provisions as to the control of the amount of publicity allowed. The propositions arising from the case law are:

(i) as different contempt regimes apply to private and public hearings, any practical issues as to control of publicity must be taken into account; (ii) the impact of any security concerns and publicity on the patient’s clinical condition has to be considered; (iii) the tribunal decision as to whether a hearing should be in public involves a discretion to be exercised in accordance with public law criteria.

R (Mersey Care NHS Trust) v MHRT [2004] MHLR 284 Admin Ct Facts and outcome: B, a high-profile patient in a high secure hospital, sought a public hearing of his tribunal; the hospital argued that he might not have capacity to make the request and that the hearing should not be in public because of its likely impact on him and security issues. The tribunal concluded that B had not been shown to lack capacity to make the request, and a public hearing would not be contrary to his interests; it noted that it could exclude people from a public hearing, and that under r21(5), as backed by the contempt laws, it could control the extent to which information would be made public. In relation to the latter conclusion, it referred to s12 of the Administration of Justice Act 1960 (which makes it contempt per se to publish information relating to private hearings1). A challenge to the decision by the hospital succeeded: (i) A tribunal sitting in private is covered by s12 of the 1960 Act; a tribunal sitting in public is covered by s2 Contempt of Court Act 1981 (which provides that conduct which tends to interfere with the course of justice amounts to contempt irrespective of intent when a publication creates a substantial risk that the course of justice in particular active proceedings will be seriously impeded or prejudiced, though by s4 allows fair and accurate contemporary reports, but also allows the court to postpone reports of proceedings where necessary to avoid a substantial risk of prejudice to the administration of justice in those proceedings); in addition, there is the power of the High Court to commit for contempt arising from breaching an order by a tribunal. (ii) Whilst r21(5) of the 1983 Rules covers a public hearing and so allows orders relating to the prevention of publicity of a public hearing, the tribunal’s conclusion that a public hearing would not be contrary to B’s interests depended on its

1 Though in Pickering v Liverpool Daily Post [1991] 2 AC 370, the House of Lords held that the fact that an application has been made, the time and place of any hearing, and any direction as to discharge, may be reported.

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assessment of the powers to restrict publicity and it appeared to have assumed that a public hearing was covered by s12 of the 1960 Act, which was an error, since that covered only private hearings. (iii) As such, the tribunal had not assessed the practical difficulties caused by a public hearing and so had failed to take account of relevant considerations on a central matter. (iv) Further, although r21(1) referred to the interests of a patient rather than best interests, it was open to the tribunal to take into account wider considerations (such as national security), and so it had a discretion which had to be considered in accordance with the established public law principles of propriety of purpose and relevance. (v) In addition, the impact of security concerns on B’s safety and clinical condition had to be considered. Beatson J … [The judge referred to the rule-making power in s78 MHA 1983 – including s78(1)(e), which allows rules “for enabling a tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the names of any persons concerned in such proceedings …”, and the provisions of r21 MHRT Rules 1983, which provide “(1) The tribunal shall sit in private unless the patient requests a hearing in public and the tribunal is satisfied that a hearing in public would not be contrary to the interests of the patient. … (5) Except in so far as the tribunal may direct, information about proceedings before the tribunal and the names of any persons concerned in the proceedings shall not be made public. …” He then referred to the fact that a tribunal is a court within s19 Contempt of Court Act 1981 (so the law of contempt applies and the High Court may commit for contempt of a tribunal order); s12 Administration of Justice Act 1960 and ss2 and 4 Contempt of Court Act 1981. He also set out a number of agreed principles, including: that under common law and Art 6, court hearings should be in public for various reasons, unless justice requires a private hearing, as is presumed in r21 MHRT Rules 1983; that public order and security problems may justify an exception from the requirement in Art 6 of a public hearing where it would impose a disproportionate burden on the State; where a tribunal sits in public, s2 Contempt of Court Act 1981 applies and the High Court has jurisdiction to commit for any contempt of a tribunal order; any restrictions on the right to “impart information and ideas” gained by attendance at a public hearing held by a tribunal would prima facie require justification under Art 10(2) ECHR.] ... (A) The tribunal’s powers to control the publicity given to the proceedings 44. The tribunal considered that it could meet the Claimant’s concerns and protect Mr Brady’s interests either by excluding the public and the press from all

or part of the hearing pursuant to r21(4) or by exercising its powers under r21(5). … … 46. The tribunal’s conclusion that the holding of a public hearing would not be contrary to Mr Brady’s interests depended on its assessment of the powers it would have to prohibit or restrict press reporting or publicity should the hearing be a public hearing. Since this assessment was based on the tribunal’s assumption that Pickering v Liverpool Daily Post and Echo Newspapers plc applied to a public hearing1, it fell into error. … ... 50. ... I accept [the] submission that r21(5) covers both public and private hearings. … 52. ... [The tribunal’s] conclusion that r21(5) enabled it to control the extent to which information could be made public was stated to be “in the knowledge that it is underpinned by the contempt laws”. 53. The decision does not address the limitations of those laws … 55. In considering whether a public hearing would be contrary to the interests of a patient, it is necessary for the tribunal to consider not only the patient’s immediate and short-term interests but also those in the medium and longer term after the conclusion of the tribunal proceedings. The media interest in Mr Brady is well known. … In view of its erroneous approach to the decision in Pickering v Liverpool Daily Post and Echo Newspapers plc, and the assumption in ... the decision that r21(5) applies in the same way whether the hearing is public or private, I have concluded that it is not possible to infer that the general reference to the protection of the contempt laws encompassed an assessment by the tribunal of the real difficulties ... in enforcing any restrictions, or that the tribunal had these difficulties in mind in reaching its decision. 56. ... If the tribunal assumed that the strict liability contempt rule would give the same protection as the per se rule in s12, it fell into error. If the tribunal did not take into account the difficulties in enforcing any prohibition or restriction as to the publication of information given at a public hearing in concluding that to hold a public hearing was not contrary to Mr Brady’s interests, it failed to take account of relevant considerations on a matter which its decision shows was central to its conclusion. ... … (B) Matters to be Considered Under r21(1) of the 1983 Rules 60. It was common ground that in deciding whether holding a public hearing is contrary to the interests of a patient, a MHRT is required to take into account its powers to prohibit or restrict publication of what occurs at that hearing. To the extent that this tribunal

1 which arose from an interpretation of the tribunal’s reasons

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erred as to its powers to prevent or restrict the publication of evidence and information disclosed at a public hearing, as I have concluded it did, this error affected its assessment of whether holding such a hearing would be contrary to Mr Brady’s interests. ... 63. ... Mr Gledhill accepted that where the 2 preconditions in the 1983 rules are satisfied the tribunal is not required to grant a public hearing. He accepted that a tribunal considering, for instance, the case of a person detained under the Terrorism Act who had become a patient might, where the police or the security service raise the point, be required to take into account considerations of national security in determining whether there should be a public hearing. If the tribunal is not necessarily required to sit in public where the 2 prerequisites in r21(1) are satisfied, it follows that it has some discretion as to whether it should do so in any particular case. Any discretion it has must be exercised in accordance with the law and the well known public law principles of propriety of purpose and relevance. Moreover, once the matter has been raised by either a party or an appropriate interested person, the tribunal cannot refuse to exercise its discretion. In the exercise of its discretion it must be right to take into account such relevant matters as are brought to the tribunal’s attention. ... [The judge then rejected a submission that the tribunal should in the exercise of its discretion consider the patient’s “best interests”. This was rejected on the basis that that it would be confusing to consider “interests” and then “best interests”, particularly as they would normally coincide.] 71. The Claimant’s evidence before the tribunal also raised concerns about public order and security. ... 72. I have concluded that 2 aspects of the security concerns are relevant to the determination of whether such a hearing would be contrary to his interests, which determination the tribunal is required to make. These are the concerns about Mr Brady’s safety at such a hearing, and, although indirectly and through the clinical concerns, the impact on Mr Brady’s condition of the considerable security that it was stated would be required. These should, accordingly have been considered by the tribunal. It is possible that it did consider them and concluded that it was possible for arrangements to be put in place to meet these concerns but that is not apparent from the decision. ... Once raised by the Claimant, the tribunal should have taken these into account. ... [The judge also found that the failure to deal with the security submissions meant that inadequate reasons had been provided, although it’s brief reasons as to its conclusion that the patient had not been shown not to have capacity to make the application were sufficient, in part because limited evidence had been called on the subject and the opinion from the RMO was merely that he might lack capacity.]

(viii) Responsible medical officer – role of The RMO has the power to discharge a non-restricted patient under s23 MHA, and so a tribunal should only occur if this power is not exercised; the RMO may also suggest that the Secretary of State agree to discharge a restricted patient under ss 41 or 42. When a tribunal is sought, the responsible authority should provide an up-to-date medical report including the medical history and a full report on the mental condition of the patient (see Parts B, F and F of Sched 1 to the MHRT Rules). In relation to detained patients, reports including social circumstances and views on suitability for discharge are required “so far as reasonably practicable”: r6(1)(c). Given the RMO’s powers as to discharge, an opinion on suitability for discharge should always be practicable. Any party may be represented by anyone save another patient (r10); see also r12, which provides that where material is withheld from a patient, it shall be supplied to a representative who is a doctor. Clearly, the RMO or another doctor may also be the representative of the hospital, and not just a witness. Rule 10(2) requires a representative to inform the tribunal of “his authorisation and postal address”: since r10(4) and (5) relate to the sending of documents to the authorised, this may suggest that this notification has to be given in advance; however, since some representatives may only be assigned on short notice and the MHRT Rules on the whole are designed to avoid unnecessary formality, this may suggest that the notification under r10(2) can be given at or during the hearing to panel exercising the powers of the tribunal during the hearing. In any event, the tribunal may conduct the hearing as it thinks most suitable (r22(1)) and there is a specific right given under r22(4) to “the responsible authority” to put questions to the applicant and patient. The propositions from the case law are:

(i) the medical evidence given on behalf of the responsible authority need not come from the RMO; however, the tribunal may adjourn to hear from the RMO; (ii) the doctor attending for the hospital should clarify whether he or she is acting as the representative of the hospital.

In relation to the first proposition, see R v MHRT ex p Manns [1999] MHLR 101 at para 28, where Moses J noted that there had been criticism that the evidence was given by a senior house officer but indicated that the question should be whether the doctor’s views were up to date; see also R (X) v MHRT [2003] MHLR 299 (ch 2(ii)) about the process to be followed when the tribunal wishes to hear from the RMO. R (Mersey Care NHS Trust) v MHRT [2003] MHLR 354

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Facts and outcome: D was discharged from s3 MHA 1983 by a tribunal. Its decision was challenged by judicial review, the hospital arguing, inter alia, that the tribunal had been procedurally unfair because the RMO had been prevented from cross-examining a hospital social worker who gave evidence to the tribunal and was refused permission to sum up the hospital’s case; the application failed, as what had happened on the facts was that the RMO had been prevented from interrupting the cross-examination of the social worker by the patient’s representative to prevent “friendly-fire” questioning; and it was not clear that he had complied with r10 MHRT Rules 1983 by notifying the tribunal that he was representing the hospital; he did not seek permission to cross-examine D or sum up, which he was not entitled to do. (Challenges to the rationality of the decision and the reasons also failed.) Sullivan J … 10. … The relevant procedure is prescribed by the MHRT Rules 1983 (the Rules). Rule 22(1) provides that:

"The tribunal may conduct the hearing in such manner as it considers most suitable bearing in mind the health and interests of the patient and it shall, so far as appears to it appropriate, seek to avoid formality in its proceedings."

So far as representation is concerned, r10(1) provides:

"Any party may be represented by any person whom he has authorised for that purpose not being a person liable to be detained or subject to guardianship or after-care under supervision under the Act or a person seeking treatment for mental disorder at the same hospital or mental nursing home as the patient.

Rule 10(2):

"Any representative authorised in accordance with para (1) shall notify the tribunal of his authorisation and postal address."

11. Dr Swinton's witness statement does not make it clear whether he informed the Tribunal that he was appearing not merely as a witness, but as a representative of the hospital. In any event, he did not challenge the Tribunal's ruling in respect of Ms Linton, that is to say, that as a witness he could not ask questions of another witness. 12. The ground of challenge in the claim form, however, does not complain of the Tribunal's refusal to allow Dr Swinton to ask questions of Ms Linton. It contends that there was procedural unfairness because of "the refusal to allow Dr Swinton to question D or to make final submissions". However, the facts in support of the grounds make it clear that Dr Swinton did not ask for permission to cross-examine D, so there is no question of the Tribunal refusing to allow him to do so. He apparently took the view that having been refused permission to ask questions of Ms Linton, there was no point in his seeking permission

to ask questions of D. In any event, the complaint that the Tribunal refused to allow him to question D is unjustified because there was no request from him to question D. 13. So far as a refusal to allow him to make a final submission is concerned, which is the second alleged procedural flaw, it seems to be accepted that he did not ask for permission to make such a final submission, again apparently because he was discouraged by the fact that he had not been allowed to cross-examine Ms Linton. The RMO is not entitled under the Rules to make any final statement. There is no indication as to what the Tribunal's attitude might have been if he had merely sought to "correct" any new points that had been mentioned by Mr Kenny in his closing submissions that had not hitherto emerged in evidence. It would appear that the "new evidence" related to the possible timescale as to when a medium security facility might become available. There was no information before the Tribunal as to when it would be available. The Tribunal, using its own experience, took the view that the opening of new units is often subject to delay, but beyond that it is not clear what Dr Swinton would have wished to say in his closing submissions. 14. If there is a lesson to be learnt from this unhappy sequence of events, it is that if an RMO is indeed representing a hospital and not merely giving his or her own evidence, then that should be made clear to the Tribunal at the outset. If one stands back, it cannot sensibly be suggested that there was unfairness in "refusing" to allow Dr Swinton to make a closing submission, when he had never asked for permission to do so. Equally, it cannot possibly be suggested that there was unfairness in the Tribunal "refusing" to allow him to question D when he had never asked to question D. He had asked permission to question a fellow employee at the hospital, and it is readily understandable that for "friendly-fire" reasons the Tribunal declined that particular request, whether it was made by way of interruption or at the end of Mr Kenny's cross-examination. … [Note r22(4) – which gives the tribunal a general power to the tribunal to control the role in a tribunal of a party to the proceedings, it is stated that the tribunal “shall hear from the applicant, the patient (where he is not the applicant) and the responsible authority who may hear each other’s evidence, put questions to each other, call evidence and put questions to any witness or other person appearing before the tribunal”. Since “the responsible authority” is a corporate entity – usually the managers of the hospital – it will invariably act through the RMO or another doctor, who therefore is given implicit powers to put questions to all witnesses, even those who are also giving evidence in relation to a report which under Sched 1 to the MHRT Rules is provided by the responsible authority, such as the social work report.]

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(ix) Withdrawal The powers of application are discussed at ch 19(i). A patient may apply to withdraw an application (and this preserves the right to apply in that period: s77(2)). Rule 19 MHRT Rules requires a written request and the agreement of the tribunal (a power which may be exercised by the regional chair in advance of the hearing: r5). References cannot be withdrawn: r20 MHRT Rules excludes r19 if there is a reference. The propositions arising from the case law are:

(i) the decision as to whether to accept a withdrawal is judicial rather than administrative; (ii) the rules relating to withdrawal apply after a recommendation has been made under s72(3) MHA; (iii) the request can be refused if it is a tactical ploy not in the interests of the patient.

The case which establishes these propositions is: R (O) v MHRT [2006] MHLR 326 Facts and outcome: An application to the MHRT by O, a s3 patient, led to a recommendation for transfer to a different hospital. This was not put into effect and the tribunal decided to exercise its power to reconvene1 and further consider the case. O made a written request to withdraw, in which he indicated that his solicitor had advised him not to withdraw. The tribunal decided that there could be no withdrawal as it was considering “his case” under s72(3)(b) rather than “the application”. The decision was quashed in judicial review proceedings as the “case” was dependent on the original application, and so it could be withdrawn. The judicial task of determining whether to agree to a withdrawal requires considering the interests of the patient, including whether the withdrawal was against legal advice. The tribunal could refuse to agree if it felt that the request was merely a tactical ploy and not in the interests of the patient. Collins J … 25. … [Rule 3] … does not require an application to specify what is being applied for. [The judge noted that the Tribunal is required to discharge if the criteria for detention are not made out.] So even if he does not request such discharge, they have to consider that matter. … 26. … applications to the Tribunal are by no means always for discharge. … 33. … the wording of s72 … makes it clear that the Tribunal's powers of directing discharge, and indeed of doing anything else including a recommendation, depend upon an application being made or a

1 See ch 15(i)

reference. It is equally clear that, by para 3 of the Rules, there is no requirement that an application should seek any specific relief. That being so, when the word "application" is used in the Act, it applies to the application which was made to the Tribunal and which the Tribunal has under its consideration. … [38. The judge noted that if the Tribunal has completed its function of considering the application “[i]t has nothing within the terms of the Act that is before it”; and there might be practical problems such as the passage of time leading to a reference being required or a further application being possible.] [39-40. The judge noted that the concern that there might be tactical applications for withdrawal – as the Tribunal making a recommendation will have decided against discharge – was unrealistic as the Tribunal was able to reconsider the whole case, including whether discharge was now appropriate.] 41. Furthermore, it is open to the Tribunal to refuse to accept the withdrawal. Rule 19 says that it has to agree, and if it takes the view that it is merely a tactical ploy and is not in the interests of the patient, it can refuse to accept the withdrawal. … the agreement of the Tribunal to an application to withdraw must be a judicial act. The Tribunal has to consider whether it is indeed in the interests of the patient that the withdrawal takes place, and it is clearly a relevant consideration and would have been a relevant consideration in this case that the patient's solicitor had clearly advised him that it was not in his best interests that the application should be withdrawn. That is not of itself necessarily determinative, but it is obviously a factor which the Tribunal was entitled to and should have taken into account. 42. … The concern about tactical withdrawals can easily be met by that. 43. The suggestion that by using the words "the case" instead of "the application" in s72(3)(b) Parliament intended the result that the application should have come to an end is not one which I find acceptable and is not consistent with the scheme of the Act and the obligations of the Tribunal, and it can lead, and this case perhaps is an example, to unfortunate situations. [Ch 19(ix) was added in February 2007]

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Chapter 20 Victims The propositions arising from the case law are:

(i) a victim’s concerns can be made known via a statement without the need for him or her to be made a party to proceedings; (ii) parts of a decision relating to the protection of the victim may be released to that victim.

It should be noted that new procedures have been introduced under the Domestic Violence, Crime and Victims Act 2004 (i) Party to proceedings - R (T) v MHRT [2001] EWHC Admin 602 (noted in [2002] MHLR 275) Facts and outcome: T, the former partner of G, a restricted patient against whom she had obtained a non-molestation injunction and whom she feared would assault her, sought to be made a party to tribunal proceedings. The application was refused on the basis that she could provide written evidence and there would be practical difficulties if she were to attend the hearing since she could not be in the same room at G; permission to bring judicial review proceedings was refused. Scott Baker J … 7. … the MHRT Rules 1983 … enable the Tribunal to approach hearings with some flexibility as to their procedure, provided that they are conducted fairly and take due consideration of the interests of those concerned. 8. The Tribunal came to the firm view that the interested party could put her views before them very effectively by way of a written statement. In fact that is what has happened. A statement has been submitted under r14(2) which sets out in some detail the concerns of the interested party. Rule 14(2) provides that: “The tribunal may receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law.” 9. It seems to me to be an entirely appropriate way of the Tribunal hearing about the claimant's concerns. … (ii) Provision of details of decision – R (T) v MHRT [2002] MHLR 275 Admin Ct Facts and outcome: see above; T provided a written statement to the tribunal, but this was mislaid. A request to know the conditions imposed on G’s conditional discharge was refused on the basis that she was not a party. This decision was successfully challenged in judicial review proceedings: it was held that there was a discretion to provide information to a victim relating to matters to protect the victim, and

the matter was remitted for a decision as to whether it was appropriate on the facts. Scott Baker J … 13. … r21(5) ... provides that:

“Except in so far as the tribunal may direct, information about proceedings before the tribunal and the names of any persons concerned in the proceedings shall not be made public.”

… 26. … Ordinarily the conditions attached to a discharge will be matters that should be protected under r21(5), being matters relevant to the patient’s mental condition that ought to be protected from publication, but this will not necessarily be so. It seems to me necessary to ask what need the seeker, in this case T, has for the information being sought. T’s underlying concern is her own safety and by the same token her peace of mind. The usual conditions relate to residence, supervision and medical treatment. I cannot see that the details of any supervision or medical treatment are matters in which T can have any legitimate interest. ... Likewise, I cannot see that it will ordinarily be a matter for public knowledge where a patient is to live on his discharge from hospital. The primary concern is that the patient should be rehabilitated into the community. The issue of the protection and safety of others is a matter for the consideration of the tribunal as required by Parliament. ... 27. There is, however, one matter, which may be the subject of a condition of which a victim such as T ought to know. Sometimes a condition is imposed, for obvious reasons, that a patient is not to live within a particular locality or perhaps to communicate or attempt to communicate with a particular individual. I can see no reason why information of that nature should not be made public. No harm is done to the patient and the condition gives the victim some peace of mind. 28. I return to the question of whether the tribunal has power to make public such information. … [The judge noted that the rule-making power in s78 MHA included a specific power to allow rules to control publicity (s78(2)(e)) but also a provision to allow rules to confer “ancillary powers ... for the purposes of exercising their functions under this Act” (s78(2)(j)).] … 34. Although the powers of the tribunal are patient-oriented, in my judgment the ambit of r21(5) is sufficiently wide to enable the making public of some of the information sought by T in this case. I am not persuaded that there is power to publicise the current level of risk ... On the other hand, as to the conditions and reason for deferral I cannot conclude that there are no circumstances in which such information should be made public under r21(5). These matters fall within the description “information about the proceedings before the tribunal” and in my judgment

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the ambit of the rule is sufficiently wide to entitle supply of the information if the tribunal in the exercise of its discretion thinks it appropriate to do so. How the discretion should be exercised will depend very much on the nature of the condition. 35. In my view any condition prohibiting G’s residence in a particular locality is one about which the tribunal should give careful consideration as to disclosure. It would be of inestimable benefit to T’s peace of mind to have this information and, as far as I can see, of no detriment to G. Indeed one can envisage that it may be of benefit to G that T’s concerns should, as far as possible be allayed. Likewise, I can see no reason why T should not know, if it be the case, that there is a condition prohibiting G from contacting or attempting to contact her. … [The judge then considered whether Arts 2 and 8 ECHR applied and concluded that they did not on the facts.] (iii) Domestic Violence, Crime and Victims Act 2004 The following guidance has been issued by the MHRT Secretariat. New Procedures concerning the rights of access to MHRT hearings of victims of certain criminal offences committed by patients Part A: Tribunals covered by the Domestic Violence, Crime and Victims Act 2004 Background 1. The Domestic Violence, Crime and Victims (DVCV) Act 2004, which received Royal Assent in November 2004, contains a number of measures to extend the Government’s programme of improving services and support to victims of certain criminal offences (hereinafter described as ‘victims’), from prison to hospital for psychiatric treatment, as well as offenders subject to hospital orders with restriction orders. This note provides information about the procedures for information-sharing, and forwarding victims’ representations about discharge conditions. 2. The extended duty is not retrospective, and applies only to victims where the Crown Court sentences the offender to one of the following disposals, if it occurred, on or after 1 July 2005 [See PART B below for the position regarding disposals prior to 1 July 2005]: • Those convicted of a sexual or violent offence,

who are then made subject of a hospital order with a restriction order.

• Those found unfit to plead and to have committed the act, and been charged, or not

guilty by reason of insanity, under the Criminal Procedure (Insanity) Act 1964 as amended by the DVCV Act 2004 in respect of a sexual or violent offence, and then made subject to a hospital order with restrictions.

• Those convicted of a sexual or violent offence, who are then made subject of a hospital direction and limitation direction.

• Those sentenced to 12 months imprisonment or more, for a sexual or violent offence, and transferred from prison to hospital, under a transfer direction and restriction direction.

3. The Home Office Mental Health Unit (MHU) carries out the Home Secretary’s responsibilities under the Mental Health Act 1983, and related legislation. They direct the admission to hospital of patients transferred from prison, and consider recommendations from Responsible Medical Officers (RMOs) in hospitals for leave, transfer or discharge of restricted patients. MHU also prepare documentation for Mental Health Review Tribunals (MHRTs), and monitor patients who are conditionally discharged. Each restricted patient has a caseworker at MHU. 4. For each new case, including transferred prisoners, the Victim Liaison Officer (VLO) will contact the MHU caseworker. MHU will inform the VLO of the contact details for the care team or Responsible Medical Officer (RMO) in each case, where this is known. Mental Health Review Tribunals 5. A detained restricted patient may apply to have his/her case heard by a MHRT once each year. If the patient does not apply, their case will be referred to a Tribunal by the Home Secretary every three years. In addition, after a conditionally discharged patient has been recalled, the Home Secretary must refer the case to a Tribunal within one month of recall. The Tribunal will consider whether the individual needs to be detained in hospital for the purposes of mental health treatment. 6. When the Home Secretary refers a patient to the Tribunal, MHU will forward the details of the relevant VLO to the MHRT Office. When an application is made to the Tribunal, the Tribunal office will obtain the details of the relevant VLO from MHU. In both circumstances, the MHRT Secretariat will then inform the VLO of the Tribunal date once it has been set, as well as the date the victim’s representations must be received to be considered at the hearing. 7. VLOs should consult victims about their representations relating to discharge conditions and forward them to the Tribunal Office by the specified date.

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Disclosure of Victim’s Representations to the Offender 8. Victims should be made aware that no guarantees can be given that any representations they make will not be disclosed to the patient. 9 The expectation is that all documents are disclosed to the patient and the circumstances in which documents can be withheld are very limited. Rule 12 of the MHRT Rules 1983 allows for the Tribunal to withhold any document from the patient if they consider that disclosure would adversely affect the health or welfare of the patient or others. In such a case the Tribunal must disclose the document to the patient’s authorised representative (if the patient has one). This is done on the basis that the representative must not disclose the contents of the document to the patient, either directly or indirectly. 10. It is a decision for the Tribunal whether or not any document should be withheld under Rule 12. Where the victim wishes for this to be considered this should be clearly indicated on the victim’s representations. The Tribunal will consider whether or not to disclose the document to the patient. This may be done at the hearing or by the Regional Chairman at a preliminary hearing, under Rule 5. A victim may request to attend in person to argue that a document be withheld, but whether or not this is allowed will be a matter for the discretion of the Tribunal. 11. Any application by a victim to attend the tribunal hearing and give oral evidence must be considered under the existing MHRT Rules [see PART B, para. 16, below). The DVCV Act confers no new rights or obligations in respect of either attendance at MHRTs, or oral evidence heard by MHRTs. Decision of the Tribunal 12. The Tribunal Secretariat will inform the VLO of the outcome of the hearing, in writing, within seven days. Where a Tribunal decides to direct the conditional discharge of a patient it may defer the discharge until it is satisfied that adequate arrangements have been made for the discharge to take place. It may impose any conditions on discharge for the protection of the public or the patient him/herself, such as residence at a stated address and supervision by a social worker (social supervisor) as well as cooperation with psychiatric treatment. Conditions relevant to victims would relate to ‘no contact’ conditions or exclusion zones. 13. Transferred prisoners are eligible to be considered by a Tribunal, but they cannot be discharged in this way. However, the Tribunal may make recommendations on how they would have acted had the offender not been a transferred prisoner. Therefore, VLOs may forward the victim’s representations about conditions of discharge in these cases, as the Tribunal’s deliberations will be forwarded to the Parole Board where appropriate.

Part B: Cases not covered by the Domestic Violence, Crime and Victims Act 2004 Background 14. As outlined at Part A above, The Domestic Violence, Crime and Victims Act 2004 (‘DVCV 2004’) came into force on 1 July 2005, but it does not apply to victims of incidents that occurred prior to that date, as the Act is not retrospective. 15. The MHRT has given careful consideration to the position of victims who have been subject to sexual or violent offences committed by persons who were subsequently detained under the provisions of the MHA 1983, where such assaults occurred prior to the introduction of the DVCV 2004. The MHRT has determined that where in such circumstances a victim wishes to have access to any future tribunal proceedings concerning that patient, they shall normally be permitted such access on the following terms: • The victim must give notice to the MHRT of

their wish to be informed of any future Tribunal hearing arising in connection with the named patient.

• Such notice must be in writing, and addressed to Mr Jack Fargher, MHRT Head of Administration, 11 Belgrave Road, 5th Floor, London SW1V 1RS. The MHRT will log and acknowledge in writing all such applications.

• The victim will subsequently be informed of the date, time and place fixed for any hearing concerning that patient in advance of the hearing.

• The victim shall have the right a) to apply to the tribunal to attend the hearing in order to give evidence to the hearing, and b) to submit to the Tribunal any written evidence that he or she wishes the Tribunal to consider.

Application to Attend the Hearing 16. Mental Health Reviews Tribunal Rules 1983, r7(f), allows the tribunal to give notice of the hearing to any person who in the opinion of the Tribunal, ‘should have an opportunity of being heard'. In the interests of equity, justice and a fair hearing and in line with the developing jurisprudence of Articles 6 and 8 of the European Convention of Human Rights, the Regional Chairmen of the MHRT have determined that there should be a presumption in favour of granting the right to the victim to give evidence at the hearing in question. This presumption could in limited circumstances still be rebutted, if evidence is provided by the patient, the Home Office or the responsible authority justifying such a rebuttal, and the Tribunal agrees. 17. Mental Health Reviews Tribunal Rules 1983, r5, empowers the Regional Chairman to exercise the

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above power on behalf of the tribunal at any time up to the hearing. 18. The manner and format in which the applicant’s oral evidence is presented to the Tribunal eg whether it is in the presence or absence of the other parties to the hearing, will be determined in each instance by the tribunal or the Regional Chairman, in advance of the hearing. In particular, it should be noted that Mental Health Reviews Tribunal Rules 1983, r14(2) states that ‘the Tribunal may receive in evidence any document or information, notwithstanding that such document or information would be inadmissible in a court of law’. 19. If the applicant submits any written evidence to the hearing either in place of, or in addition to attending the hearing, Mental Health Reviews Tribunal Rules 1983, r12, applies. This Rule requires the Tribunal to copy such written evidence to the patient, unless they are satisfied that its disclosure would ‘adversely affect the health or welfare of the patient or others. The word ‘others’ can include the applicant. If the tribunal does decide not to disclose the written evidence to the patient it would still be forwarded to the patient’s legal representative, but they would not be permitted to show the written evidence to the patient [see PART A: paras 8-10).

Professor Jeremy Cooper, Southern Regional Chairman Jack Fargher, Head MHRT Administration HHJ Phillip Sycamore, MHRT Liaison Judge Mr John Wright, Northern Regional Chairman. 29 July 2005.

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Appendix 1. Mental Health Act 1983 - selected extracts 1. Application of Act: "Mental Disorder" … (2) In this Act- "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly; "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "severely mentally impaired" shall be construed accordingly; "mental impairment" means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) 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 and "mentally impaired" shall be construed accordingly "psychopathic disorder " means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned ; and other expressions shall have the meanings assigned to them in s145 below. (3) Nothing in subs(2) above shall be construed as implying that a person may be dealt with under this Act as suffering from mental disorder, or from any form of mental scribed in this section, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs. Part II – Civil Patients 2. Admission for assessment (1) A patient may be admitted to a hospital and detained there for the period allowed by subs(4) below in pursuance of an application (in this Act referred to as "an application for admission for assessment") made in accordance with subs (2) and (3) below. (2) An application for admission for assessment may be made in respect of a patient on the grounds that-

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b) 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.

(3) [Need for two medical recommendations] (4) [Lasts for up to 28 days unless extended by virtue of a displacement action under s29] 3. Admission for treatment … (2) An application for admission for treatment may be made in respect of a patient on the grounds that

(a) he 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; and (b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.

(3) [Need for two medical recommendations] [Section 4 provides for a s2 admission on the basis of one medical recommendation in case of “urgent necessity”; within 72 hours, a further medical recommendation is required, or the detention must cease] [Section 5 provides a holding power for informal patients who seek to leave to allow an application for formal admission to be made] [Section 6 provides the hospital managers with jurisdiction to detain based on a duly completed application and sets time limits for admission] 7. Application for guardianship (1) A patient who has attained the age of 16 years may be received into guardianship … (2) A guardianship application may be made in respect of a patient on the grounds that-

(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and (b) it is necessary in the interests of the welfare of the patient or for the protection of, other persons that the patient should be so received.

(3) [Need for two medical recommendations] (4) [Need to state age or belief that attained 16] (5) [Identity of guardian and need for consent] 8. Effect of guardianship application, etc (1) [An application duly made and forwarded to the local social services authority confers on the guardian] to the exclusion of any other person-

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(a) the power to require the patient to reside at a place specified by the authority or person named as guardian ; (b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; (c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.

… 16. Reclassification of patients (1) If in the case of a patient who is for the time being detained in a hospital in pursuance of an application for admission for treatment or subject to guardianship in pursuance of a guardianship application, it appears to the appropriate medical officer that the patient is suffering from a form of mental disorder other than the form or forms specified in the application, he may furnish to the managers of the hospital, or to the guardian, as the case may be, a report to that effect; and where a report is so furnished, the application shall have effect as if that other form of mental disorder were specified in it. [See s66(1)(d): this gives rise to a right to apply to a Tribunal] 17. Leave of absence from hospital (1) The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that officer considers necessary in the interests of the patient or for the protection of other persons. (2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period. that period may be extended by further leave granted in the absence of the patient. (3) Where it appears to the responsible medical officer that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital. (4) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible medical officer that it is necessary so to do in the

interests of the patient's health or safety or for the protection of other persons, that officer may, subject to subs(5) below, by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital. … 19. Regulations as to transfer of patients [Provides a regime as to transfer of patients between hospital and between detention and guardianship] 20. Duration of detention or guardianship and discharge (1) Subject to the following provisions of this Part of this Act, a patient admitted to hospital in pursuance of an application for admission for treatment, and a patient placed under guardianship in pursuance of a guardianship application, may be detained in a hospital or kept under guardianship for a period not exceeding 6 months beginning with the day on which he was so admitted, or the day on which the guardianship application was accepted, as the case may be, but shall not be so detained or kept for any longer period unless the authority for his detention or guardianship is renewed under this section. (2) Authority for the detention or guardianship of a patient may, unless the patient has previously been discharged, be renewed-

(a) from the expiration of the period referred to in subs(1) above, for a further period of 6 months; (b) from the expiration of any period of renewal under para (a) above, for a further period of one year, and so on for periods of one year at a time.

(3) [Duty of RMO to examine patient within 2 months of end of detention period and determine whether criteria for renewal are made out] (4) The conditions referred to in subs(3) above are that-

(a) the patient is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is of a nature of degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained;

but, in the case of mental illness or severe mental impairment, it shall be an alternative to the condition specified in para (b) above that the patient, if discharged, is unlikely to be able to care for himself, to obtain the care which he needs or to guard himself against serious exploitation.

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(5) [Duty on RMO to consult one or more persons who have been professionally concerned with the patient's medical treatment] (6) and (7) [Similar duty to examine patient subject to guardianship; criteria are as set out in s7.] (8) [The furnishing of the relevant report renews the detention or guardianship] (9) [Allows the form of mental disorder to be reclassified on renewal] [Sections 21, 21A, 21B and 22 contain provisions relating to patients who abscond or are sentenced to imprisonment; in effect, the duration of their detention or guardianship – if it would otherwise have ended - is extended to a week after their return to hospital to allow an assessment of whether detention should be renewed; prison detention – sentence or remand – of 6 months or more brings a s3 or s7 order to an end.] [23. Allows the RMO, hospital managers or nearest relative to discharge detention or guardianship; no test is set, which is phrased as a general power; see s25 in relation to the nearest relative] 25. Restrictions on discharge by nearest relative (l) [An order under s23 made by the nearest relative does not take effect for 72 hours]; and if, within 72 hours after such notice has been given, the responsible medical officer furnishes to the managers a report certifying that in the opinion of that officer the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself-

(a) any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect; and (b) no further order for the discharge of the patient shall be made by that relative during the period of 6 months beginning with the date of the report.

… 25A. Application for supervision (1) Where a patient-

(a) is liable to be detained in a hospital in pursuance of an application for admission for treatment; and (b) has attained the age of 16 years,

an application may be made for him to be supervised after he leaves hospital, for the period allowed by the following provisions of this Act, with a view to securing that he receives the aftercare services provided for him under s117 below. … (4) A supervision application may be made in respect of a patient only on the grounds that-

(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment; (b) there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the

after-care services to be provided for him under s117 below after he leaves hospital; and (c) his being subject to after-care under supervision is likely to help to secure that he receives the after-care services to be so provided.

… [25B and 25C. Set various procedural requirements] 25D. Requirements to secure receipt of after-care under supervision (1) Where a patient is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the responsible after-care bodies have power to impose any of the requirements specified in subs(3) below for the purpose of securing that the patient receives the after-care services provided for him for under s117 below. (2) In this Act "the responsible after-care bodies", in relation to a patient, means the bodies which have (or will have) the duty under s117 below to provide after-care services for the patient. (3) The requirements referred to in subs(1) above are-

(a) that the patient reside at a specified place; (b) that the patient attend at specified places and times for the purpose of medical treatment, occupation, education or training; and (c) that access to the patient be given, at any place where the patient is residing, to the supervisor, any registered medical practitioner or any approved social worker or to any other person authorised by the supervisor.

(4) A patient subject to after-care under supervision may be taken and conveyed by, or by any person authorised by, the supervisor to any place where the patient is required to reside or to attend for the purpose of medical treatment, occupation, education or training. … [25E. Requires a review of the provision of services and any necessary modification, and where the patient does not cooperate with provision to consider whether he should be admitted to hospital.] [25F. Allows reclassification of the form of mental disorder referred to on the application.] 25G. Duration and renewal of after-care under supervision (1) Subject to s25H and 25I below, a patient subject to after-care under supervision shall be so subject for the period -

(a) beginning when he leaves hospital; and (b) ending with the period of six months beginning with the day on which the supervision application was accepted, …

(2) [Provides for a renewal for 6 months and then for a year at a time]

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(3) [Provides for a procedure similar to s20(4) for the Community RMO to examine the patient and furnish a report that the conditions for renewal are made out] (4) The conditions referred to in subs(3) above are that

(a) the patient is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment; (b) that there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the after-care services provided for him under s117 below; (c) his being subject to after-care under supervision is likely to help secure that he receives the after-care services so provided.

[The section also imposes requirements as to consultation and allows for the reclassification of the form of disorder] 25H. Ending of after-care under supervision [Allows the community RMO to bring after-care under supervision to an end, following consultation] 26. Definition of "relative" and "nearest relative" (1) In this Part of this Act "relative" means any of the following persons: -

(a) husband or wife; (b) son or daughter; (c) father or mother; (d) brother or sister; (e) grandparent; (f) grandchild; (g) uncle or aunt; (h) nephew or niece.

(2) In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of (a) his mother, and (b) if his father has parental responsibility for him within the meaning of s3 of the Children Act 1989, his father. (3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the "nearest relative" means the person first described in subs(1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of 2 or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex. (4) Subject to the provisions of this section and to the following provisions of this Part of this Act, where the patient ordinarily resides with or is cared for by one or more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily

resided with or was cared for by one or more of his relatives) his nearest relatives shall be determined-

(a) by giving preference to that relative or those relatives over the other or others; and (b) as between 2 or more such relatives, in accordance with subs(3) above.

(5) Where the person who, under subs(3) or (4) above, would be the nearest relative of a patient-

(a) in the case of a patient ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, is not so resident; or (b) is the husband or wife of the patient, but is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period which has not come to an end; or (c) is a person other than the husband, wife, father or mother of the patient, and is for the time being under 18 years of age; (d) …

the nearest relative of the patient shall be ascertained as if that person were dead. (6) In this section "husband" and "wife" include a person who is living with the patient as the patient's husband or wife, as the case may be (or, if the patient is for the time being an in-patient in a hospital, was so living until the patient was admitted), and has been or had been so living for a period of not less than 6 months; but a person shall not be treated by virtue of this subsection as the nearest relative of a married patient unless the husband or wife of the patient is disregarded by virtue of para (b) of subs(5) above. (7) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than 5 years, shall be treated for the purposes of this Part of this Act as if he were a relative but -

(a) shall be treated for the purposes of subs(3) above as if mentioned last in subs(1) above; and (b) shall not be treated by virtue of this subsection as the nearest relative of a married patient unless the husband or wife of the patient is disregarded by virtue of para (b) of subs(5) above.

27. Children and young persons in care Where -

(a) a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989; or (b) [Scotland]

the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient's husband or wife (if any). 28. Nearest relative of minor under guardianship, etc. (1) Where-

(a) a guardian has been appointed for a person who has not attained the age of eighteen years; or

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(b) a residence order (as defined by s8 of the Children Act 1989) is in force with respect to such a person,

the guardian (or guardians, where there is more than one) or the person named in the residence order shall, to the exclusion of any other person, be deemed to be his nearest relative . (2) Subsection (5) of s26 above shall apply in relation to a person who is, or who is one of the persons, deemed to be the nearest relative of a patient by virtue of this section as it applies in relation to a person who would be the nearest relative under subs(3) of that section. (3) In this section "guardian" does not include a guardian under this Part of this Act. … [Section 29 provides for the county court to appoint an acting nearest relative in various circumstances. The displaced nearest relative has a right to apply to a Tribunal following a displacement action which leads to the patient being detained or placed under guardianship] [Section 33 allows an application to be made in relation to a ward of the court with the permission of the court] [Section 34 provides various definitions, including of Responsible Medical Officer (the doctor “in charge of the treatment of the patient”), and provides that references to hospital include “registered establishments” unless expressly provided otherwise: it covers places registered under the Care Standards Act 2000] Part III – Criminal Patients This part contains various provisions allowing the criminal courts to impose hospital and guardianship orders, and to allow prisoners to be transferred to hospital by the Secretary of State. Only those parts most relevant to questions which may arise in front of Tribunals are reproduced in full. In summary (i) s35 allows a remand to hospital for a report on an accused’s medical condition, (ii) s36 allows the Crown Court to remand a person to hospital for treatment for up to 28 days at a time and maximum of 12 weeks and (iii) s38 allows for an interim hospital order following conviction. (iv) Section 37 allows the magistrates or the Crown Court to impose a hospital order or guardianship order in respect of an imprisonable offence if

(a) the court is satisfied, on the written or oral evidence of 2 registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be

detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration for his condition; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

The magistrates may impose such an order without a conviction if satisfied the person committed the act or omission charged (s37(3); the Crown Court has a similar power under s51 in relation to a remand prisoner transferred to hospital (which is limited to those suffering from mental illness or severe mental impairment) who is unfit to appear in court. Under s40(4):

(4) A patient who is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, shall, subject to the provisions of this subsection, be treated for the purposes of the provisions of this Act mentioned in Part I of Schedule I to this Act as if he had been so admitted or placed on the date of the order in pursuance of an application for admission for treatment or a guardianship application, as the case may be, duly made under Part II of this Act, but subject to any modifications of those provisions specified in that Part of that Schedule.

The modifications are mainly technical, but include excluding the power of the nearest relative to order discharge under s23. (v) Section 41 allows the Crown Court to impose a restriction order (either following conviction by it or committal by the magistrates):

(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as "a restriction order". … (3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows-

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(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under s42, 73, 74, or 75 below; (aa) none of the provisions of Part II of this Act relating to after-care under supervision shall apply ; (b) no application shall be made to a MHRT in respect of a patient under s66 or 69(1) below; (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely-

(i) power to grant leave of absence to the patient under s17 above; (ii) power to transfer the patient in pursuance of regulations under s19 above or in pursuance of subs(3) of that section; and (iii) power to order the discharge of the patient under s23 above;

and if leave of absence is granted under the said s17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer; …

Schedule 1 (which modifies various provisions of Part II when a hospital order has been made) affects restricted patients differently: various of the modifications reflect the requirements as to the consent of the Secretary of State being required; s16 does not apply. If a restriction order ceases to have effect whilst a hospital order remains in force, then s41(5) provides that the patient is to be treated as an unrestricted patient. If the patient has been conditionally discharged at that time, he becomes absolutely discharged (s42(5)). Under s42, the Secretary of State may lift a restriction order, or grant an absolute or conditional discharge; this section also contains the power (s42(3)) to recall a conditionally discharged restricted patient. (vi) The Crown Court may also impose a hospital direction on a prison sentence in relation to a psychopathically disordered convict: this may be combined with a limitation direction. The latter operates as a restriction direction and the former as a hospital direction (see below). In other words, there is a prison sentence imposed, but there is also a court directed transfer to hospital. See ss45A and 45B. (vii) Section 46 provides that armed forces personnel detained during Her Majesty’s Pleasure may be transferred to hospital as if under a hospital order and restriction order. (viii) Section 47 allows the Secretary of State to transfer serving prisoners to hospital; there must be

two medical certificates that the person suffers from mental illness, psychopathic disorder, severe mental impairment or mental impairment “of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”; the treatability requirement applies to psychopathic disorder or mental impairment; the test for the Secretary of State is that “it is expedient” in light of the public interest and all the circumstances to transfer the prisoner. The effect of such a transfer direction is that the prisoner is treated as if a hospital order had been made: s47(3). Remand prisoners (and also civil prisoners and Immigration Act detainees) may be transferred under s48, but only if suffering from mental illness or severe mental impairment; under s51, the transfer direction ceases to have effect when the court disposes of the case (though it may at that stage impose a s37 order). Section 49 allows the Secretary of State to add a restriction direction, which means that the prisoner is treated as if a restriction order had been made: this is required in relation to a remand prisoner. A restriction direction comes to an end on the date a serving prisoner would have been released from prison (s50). However, whilst the restriction direction is in effect, the prisoner may be returned to prison (or released on licence) if they no longer need to be in hospital (including because no effective treatment can be given): s50. The notification of this can come either from the RMO or from the Tribunal. Sections 51 and 52 allow the Crown Court or magistrates court to make a similar order in relation to remand prisoners. Civil prisoners may be returned also on the basis of information from the RMO or Tribunal: s53. Part IV - This deals to the consent to treatment provisions, which are of limited direct relevance to Tribunals. Part V – Mental Health Review Tribunals - Section 65 and Sched 2 provide for Tribunals and their constitution. Applications and references concerning Part II patients 66. Applications to tribunals (1) Where-

(a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or (b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; or (c) a patient is received into guardianship in pursuance of a guardianship application; or (d) a report is furnished under s16 above in respect of a patient; or (e) a patient is transferred from guardianship to a hospital in pursuance of regulations made under s19 above; or (f) a report is furnished under s20 above in respect of a patient and the patient is not discharged; or (fa) a report is furnished under subs(2) of s21B above in respect of a patient and subs(5) of that

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section applies (or subs(5) and (6)(b) of that section apply) in the case of the report; or (fb) a report is furnished under subs(2) of s21B above in respect of a patient and subs(8) of that section applies in the case of the report; or (g) a report is furnished under s25 above in respect of a patient who is detained in pursuance of an application for admission for treatment; or (ga) as supervision application is accepted in respect of a patient; or (gb) a report is furnished under s25F above in respect of a patient; or (gc) a report is furnished under s25G above in respect of a patient; or' (h) an order is made under s29 above in respect of a patient who is or subsequently becomes liable to be detained or subject to guardianship under Part II of this Act,

an application may be made to a Mental Health Review Tribunal within the relevant period-

(i) by the patient (except in the cases mentioned in paras (g) and (h) above) or, in the cases mentioned in paras (d), (ga), gb and (gc), by his nearest relative if he has been (or was entitled to be) informed under this Act of the report or acceptance], and (ii) in the cases mentioned in paras (g) and (h) above, by his nearest relative.

(2) In subs(1) above "the relevant period" means-

(a) in the case mentioned in para (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned; (b) in the case mentioned in para (b) of that subsection, 6 months beginning with the day on which the patient is admitted as so mentioned; (c) in the cases mentioned in paras (c) and (ga) of that subsection, 6 months beginning with the day on which the application is accepted; (d) in the cases mentioned in para (d), (fb), (g) and (gb) of that subsection, 28 days beginning with the day on which the applicant is informed that the report has been furnished; (e) in the case mentioned in para (f) of that subsection, 6 months beginning with the day on which the patient is transferred; (f) in the case mentioned in para (f) or (fa) of that subsection, the period or periods for which authority for the patient's detention or guardianship is renewed by virtue of the report; (fa) in the case mentioned in para (gc) of that subsection, the further period for which the patient is made subject to after-care under supervision by virtue of the report ; (g) in the case mentioned in para (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force.

… 67. References to tribunals by Secretary of State concerning Part II patients (1) The Secretary of State may, if he thinks fit, at any time refer to a Mental Health Review Tribunal the

case of any patient who is liable to be detained or subject to guardianship or to after-care under supervision under Part II of this Act. … 68. Duty of managers of hospitals to refer cases to tribunal (1) Where a patient who is admitted to a hospital in pursuance of an application for admission for treatment or a patient who is transferred from guardianship to hospital does not exercise his right to apply to a Mental Health Review Tribunal under s66(1) above by virtue of his case falling within para (b) or, as the case may be, para (e) of that section, the managers of the hospital shall at the expiration of the period for making such an application refer the patient's case to such a tribunal unless an application or reference in respect of the patient has then been made under s66(1) above by virtue of his case falling with para (d), (g) or (h) of that section or under s67(1) above. (2) If the authority for the detection of a patient in a hospital is renewed under s20 or 21B above and a period of 3 years (of, if the patient has not attained the age of 16 years, one year) has elapsed since his case was last considered by a Mental Health Review Tribunal, whether on his own application or otherwise, the managers of the hospital shall refer his case to such a tribunal. … (5) For the purposes of subs(1) above a person who applies to a tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a person withdraws his application on a date after the expiration of the period mentioned in that subsection, the managers shall refer the patient's case as soon as possible after that date. Applications and references concerning Part III patients 69. Applications to tribunals concerning patients subject to hospital and guardianship orders (l) Without prejudice to any provision of s66(l) above as applied by s40(4) above, an application to a Mental Health Review Tribunal may also be made-

(a) in respect of a patient admitted to a hospital in pursuance of a hospital order, by the nearest relative of the patient in the period between the expiration of 6 months and the expiration of 12 months beginning with the date of the order and in any subsequent period of 12 months; and (b) in respect of a patient placed under guardianship by a guardianship order-

(i) by the patient, within the period of 6 months beginning with the date of the order; (ii) by the nearest relative of the patient, within the period of 12 months beginning with the date of the order and in any subsequent period of 12 months.

(2) Where a person detained in a hospital-

(a) is treated as subject to a hospital order or transfer directed by virtue of s41 (5) above, 82(2)

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or 85(2) below, s77(2) of the Mental Health (Scotland) Act 1984 or s5(1) of the Criminal Procedure (Insanity) Act 1964; or (b) is subject to a direction having the same effect as a hospital order by virtue of s45B(2), 46(3),47(3) or 48(3) above,

then, without prejudice to any provision of Part II of this Act as applied by s40 above, that person may make an application to a Mental Health Review Tribunal in the period of 6 months beginning with the date of the order or direction mentioned in para (a) above or, as the case may be, the date of the direction mentioned in para (b) above. 70. Applications to tribunals concerning restricted patients A patient who is a restricted patient within the meaning of s79 below and is detained in a hospital may apply to a Mental Health Review Tribunal-

(a) in the period between the expiration of 6 months and the expiration of 12 months beginning with the date of the relevant hospital order, hospital direction or transfer direction; and (b) in any subsequent period of 12 months.

71. References by Secretary of State concerning restricted patients (1) The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal. (2) The Secretary of State shall refer to a Mental Health Review Tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal whether on his own application or otherwise, within the last 3 years. (3) The Secretary of State may by order vary the length of the period mentioned in subs(2) above. (4) Any reference under subs(1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides. (5) Where a person who is treated as subject to a hospital order and a restriction order by virtue of an order under s5(l) of the Criminal Procedure (Insanity) Act 1964 does not exercise his right to apply to a Mental Health Review Tribunal, in the period of 6 months beginning with the date of that order, the Secretary of State shall at the expiration of that period refer his case to a tribunal. (6) For the purpose of subs(5) above a person who applies to a tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a patient withdraws his application on a date after the expiration of the period there mentioned the Secetary of State shall refer his case as soon as possible after that date.

Discharge of patients 72. Powers of tribunals (1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and-

(a) the tribunal shall direct the discharge of a patient liable to be detained under s2 above if they are not satisfied -

(i) that he is then suffering from mental disorder or 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; or (ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under s2 above if they are not satisfied-

(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or (iii) in the case of an application by virtue of para (g) of s66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.

(2) In determining whether to direct the discharge of patient detained otherwise than under s2 above in a case not falling within para (b) of subs(1) above, the tribunal shall have regard-

(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and (b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.

(3) A tribunal may under subs(1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may-

(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and (b) further consider his case in the event of any such recommendation not being complied with.

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(3A) Where, in the case of an application to a tribunal by or in respect of a patient who is liable to be detained in pursuance of an application for admission for treatment or by virtue of an order or direction for his admission or removal to hospital under Part III of this Act, the tribunal do not direct the discharge of the patient under subs(1) above, the tribunal may-

(a) recommend that the responsible medical officer consider whether to make a supervision application in respect of the patient; and (b) further consider his case in the event of no such application being made.

(4) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if they are satisfied-

(a) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; or (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.

(4A) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the tribunal may in any case direct that the patient shall cease to be so subject (or not become subject), and shall so direct if they are satisfied-

(a) in a case where the patient has not yet left hospital, that the conditions set out in s25A(4) above are not complied with; or (b) in any other case, that the conditions set out in s25G(4) above are not complied with.

(5) Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject), the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate. (6) Subsections (1) to (5) above apply in relation to references to a Mental Health Review Tribunal as they apply in relation to applications made to such a tribunal by or in respect of a patient. (7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in ss73 and s74 below.

73. Power to discharge restricted patients (1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if -

(a) the tribunal are not satisfied as to the matters mentioned in para (b)(i) or (ii) of s72(1) above; and (b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subs(1) above

(a) para (a) of that subsection applies; but (b) para (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient. (3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly. (4) Where a patient is conditionally discharged under this section-

(a) he may be recalled by the Secretary of State under subs(3) of s42 above as if he had been conditionally discharged under subs(2) of that section; and (b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.

(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subs(4) above. (6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order. (7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given. (8) This section is without prejudice to s42 above.

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74. Restricted Patients Subject To Restriction Directions (1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a limitation direction or a restriction direction, or where the case of such a patient is referred to such a tribunal, the Tribunal

(a) shall notify the Secretary of State whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under s73 above; and (b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.

(2) If in the case of a patient not falling within subs(4) below (a) the Tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and (b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the Tribunal that the patient may be so discharged, the Tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient. (3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subs(2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the Tribunal have made a recommendation under subs(1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed. (4) If, in the case of a patient who is subject to a transfer direction under s48 above, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under subs(1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed. (5) Where a patient is transferred or remitted under subs(3) or (4) above the relevant hospital direction and the limitation direction or, as the case may be, the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution. (5A) Where the tribunal have made a recommendation under subs(1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction-

(a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the

exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and (b) [the restriction direction or limitation direction comes to an end when he is entitled to be released by virtue of a decision of the Board]

(6) Subsections (3) to (8) of s73 above shall have effect in relation to this section as they have effect in relation to that section, taking references to the relevant hospital order and the restriction order as references to [the hospital direction and the limitation direction or, as the case may be, to] the transfer direction and the restriction direction. (7) This section is without prejudice to ss50 to 53 above in their application to patients who are not discharged under this section. 75. Applications and references concerning conditionally discharged restricted patients (1) Where a restricted patient has been conditionally discharged under s42(2), 73 or 74 above and is subsequently recalled to hospital-

(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; and (b) section 70 above shall apply to the patient as if the relevant hospital order, hospital direction or transfer direction had been made on that day.

(2) Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to a Mental Health Review Tribunal-

(a) in the period between the expiration of 12 months and the expiration of 2 years beginning with the date on which he was conditionally discharged; and (b) in any subsequent period of 2 years.

(3) Sections 73 and 74 above shall not apply to an application under subs(2) above but on any such application the tribunal may-

(a) vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or (b) direct that the restriction order or restriction direction to which he is subject shall cease to have effect;

and if the tribunal give a direction under para (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order or transfer direction. [Section 76 provides for visits to patients by those providing independent reports and access to records] 77. General provisions concerning tribunal applications (1) No application shall be made to a Mental Health Review Tribunal by or in respect of a patient except

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in such cases and at such times as are expressly provided by this Act. (2) Where under this Act any person is authorised to make an application to a Mental Health Review Tribunal within a specified period, not more than one such application shall be made by that person within that period but for that purpose there shall be disregarded any application which is withdrawn in accordance with rules made under s78 below. (3) Subject to subs(4) below an application to a Mental Health Review Tribunal authorised to be made by or in respect of a patient under this Act shall be made by notice in writing addressed to the tribunal for the area in which the hospital in which the patient is detained is situated or in which the patient is residing under guardianship or when subject to after-care under supervision (or in which he is to reside on becoming so subject after leaving hospital) as the case may be. (4) Any application under s75(2) above shall be made to the tribunal for the area in which the patient resides. 78. Procedure of Tribunals (1) [Allows the Lord Chancellor to make rules relating to Mental Health Review Tribunals.] (2) [Specifies various specific matters which may be covered in the Rules.] … (4) [Allows rules to restrict the persons able to preside at tribunals for restricted patients and for the transfer of proceedings from one tribunal to another where the patient moves.] … (6) Any functions conferred on the chairman of a Mental Health Review Tribunal by rules under this section may, if for any reason he is unable to act, be exercised by another member of that tribunal appointed by him for that purpose. (7) [Allows Tribunals to pay travel, subsistence and loss of earnings to applicants or witnesses] (8) A Mental Health Review Tribunal may, and if so required by the High Court shall, state in the form of a special case for determination by the High Court any question of law which may arise before them. … 79. Interpretation of Part V (1) In this Part of this Act "restricted patient" means a patient who is subject to a restriction order, limitation direction or restriction direction and this Part of this Act shall, subject to the provisions of this section, have effect in relation to any person who-

(a) is subject to a direction which by virtue of s46(3) above has the same effect as a hospital order and a restriction order; or (b) is treated as subject to a hospital order and a restriction order by virtue of an order under s5(1)

of the Criminal Procedure (Insanity) Act 1964 or s6 or 14(1) of the Criminal Appeal Act 1968; or (c) [those transferred from elsewhere within the UK]

as it has effect in relation to a restricted patient. … Part VI - Removal and return of Patients within United Kingdom, etc. This provides various powers for the transfer of patients to different parts of the UK. Section 86 provides for the “removal of alien patients” – ie those who are not British citizens or Commonwealth citizens with a right of abode. If they are detained under s3 or s37 (or a provision having the same effect), the Secretary of State may remove the patient to a country outside the UK “if it appears to the Secretary of State that proper arrangements have been made for the removal” of such a patient “and for his care or treatment there and that it is in the interests of the patient to remove him”: s86(2). However, “(3) The Secretary of State shall not exercise his powers under sub(2) above in the case of any patient except with the approval of a Mental Health Review Tribunal …” Miscellaneous Further Extracts: 117. After-care (l) This section applies to persons who are detained under s3 above, or admitted to a hospital in pursuance of a hospital order made under s37 above, or transferred to a hospital in pursuance of a hospital direction made under s45A above or a transfer direction made under s47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital. (2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject. (2A) It shall be the duty of the Primary Care Trust or Health Authority to secure that at all times while a patient is subject to after-care under supervision -

(a) a person who is a registered medical practitioner approved for the purposes of s12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder is in charge of the medical treatment provided for the patient as part of the after-care services provided for him under this section; and (b) a person professionally concerned with any of the aftercare services so provided is supervising

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him with a view to securing that he receives the after-care services so provided.

(2B) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act. (3) In this section "the Primary Care Trust or Health Authority" means the Primary Care Trust or Health Authority, and "the local social services authority" means the local social services authority, for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained. 118. Code of practice (1) The Secretary of State shall prepare, and from time to time review, a code of practice-

(a) for the guidance of registered medical practitioners, managers and staff of hospitals, independent hospitals and care homes and approved social workers in relation to the admission of patients to hospitals and registered establishments under this Act and to guardianship and after-care under supervision under this Act; and (b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.

(2) The code shall in particular, specify forms of medical treatment in addition to any specified by regulations made for the purposes of s57 above which in the opinion of the Secretary of State give rise to special concern and which should accordingly not be given by a registered medical practitioner unless the patient has consented to the treatment (or to a plan of treatment including that treatment) and a certificate in writing as to the matters mentioned in subs(2)(a) and (b) of that section has been given by another registered medical practitioner, being a practitioner appointed for the purposes of this section by the Secretary of State. (3) Before preparing the code or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned. [The Code has to be laid before Parliament and has to be withdrawn if either House passes a resolution within 40 days requiring its withdrawal] 123. Transfers to and from special hospitals (1) [Allows the Secretary of State to transfer patients between high secure hospitals, except for those detained under ss35, 36 or 38] (2) Without prejudice to any such provision, the Secretary of State may give directions for the transfer of any patient who is for the time being liable to be so detained into a hospital which is not a special hospital.

s131 Informal admission of patients (1) Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained. (2) In the case of a minor who has attained the age of 16 years and is capable of expressing his own wishes, any such arrangements as are mentioned in subs(1) above may be made, carried out and determined even though there are one or more persons who have parental responsibility for him (within the meaning of the Children Act 1989). s132 - Duty of managers of hospitals to give information to detained patients (1) The managers of a hospital or registered establishment in which a patient is detained under this Act shall take such steps as are practicable to ensure that the patient understands-

(a) under which of the provisions of this Act he is for the time being detained and the effect of that provision; and (b) what rights of applying to a Mental Health Review Tribunal are available to him in respect of his detention under that provision;

and those steps shall be taken as soon as practicable after the commencement of the patient's detention under the provision in question. (2) The managers of a hospital or registered establishment in which a patient is detained as aforesaid shall also take such steps as are practicable to ensure that the patient understands the effect, so far as relevant in his case, of ss23, 25, 56 to 64, 66(1)(g), 118 and 1201 above and s1342 below; and those steps shall be taken as soon as practicable after the commencement of the patient's detention in the hospital or nursing home. (3) The steps to be taken under subs(1) and (2) above shall include giving the requisite information both orally and in writing. (4) The managers of a hospital or registered establishment in which a patient is detained as aforesaid shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subs(1) and (2) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter.

1 Relates to complaints and their investigation. 2 Relates to correspondence and the circumstances in which it may be interfered with.

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145. Interpretation (1) In this Act, unless the context otherwise requires- … "medical treatment" includes nursing, and also includes care, habilitation and rehabilitation under medical supervision; 2. Mental Health Review Tribunal Rules 1983 (SI 1983/942) (as amended) Interpretation [Not all definitions are reproduced since some are obvious] 2.(1) In these Rules, unless the context otherwise requires – ... "the authority's statement" means the statement provided by the responsible authority pursuant to r6(1); "chairman" means the legal member appointed by the Lord Chancellor as chairman of the Mental Health Review Tribunal under para 3 of Sched 2 to the Act or another member of the tribunal appointed to act on his behalf in accordance with para 4 of that Schedule or s78(6) of the Act as the case may be; "decision with recommendations" means a decision with recommendations in accordance with s72(3)(a) or (3A)(a) of the Act; ... "nearest relative" means a person who has for the time being the functions under the Act of the nearest relative of a patient who is not a restricted patient; "party" means the applicant, the patient, the responsible authority, any other person to whom a notice under rule 7 or rule 31(c) is sent or who is added as a party by direction of the tribunal; ... "provisional decision" includes a deferred direction for conditional discharge in accordance with s73(7) of the Act and a notification to the Secretary of State in accordance with s74(1) of the Act; ... "responsible authority" means -

(a) in relation to a patient liable to be detained under the Act in a hospital or mental nursing home, the managers of the hospital or home as defined in s145(1) of the Act; and (b) in relation to a patient subject to guardianship, the responsible local social services authority as defined in s34(3) of the Act; [and (c) in relation to a patient subject to after-care under supervision, the Health Authority which has the duty under s117 of the Act to provide after-care services for the patient;

"tribunal" in relation to an application or a reference means the Mental Health Review Tribunal constituted under s65 of the Act which has jurisdiction in the area in which the patient, at the time the application or reference is made, is detained or is liable to be detained or is subject to guardianship or is (or is to be) subject to after-care under supervision, or the tribunal to which the proceedings are transferred in accordance with r17(2), or in the case of a

conditionally discharged patient, the tribunal for the area in which the patient resides.] ... Part II - Preliminary Matters Making An Application 3.-(1) An application shall be made to the tribunal in writing, signed by the applicant or any person authorised by him to do so on his behalf. (2) The application shall wherever possible include the following information [a list of matters is set out, including name of patient, address of hospital where detained or last detained if conditionally discharged or subject to supervised discharge, relevant section of the MHA involved, name and address of any representative etc.] (3) If any of the information specified in para (2) is not included in the application, it shall in so far as is practicable be provided by the responsible authority or, in the case of a restricted patient, the Secretary of State, at the request of the tribunal. Notice Of Application 4.(1) On receipt of an application, the tribunal shall send notice of the application to

(a) the responsible authority; (b) the patient (where he is not the applicant); and (c) if the patient is a restricted patient, the Secretary of State.

(2) Paragraph (1) shall apply whether or not the power to postpone consideration of the application under r9 is exercised. Preliminary And Incidental Matters 5. As regards matters preliminary or incidental to an application, the chairman may, at any time up to the hearing of an application by the tribunal, exercise the powers of the tribunal under rules 6, 7, 9, 10, 12, 13, 14(1), 15, 17, 19, 20, 26 and 28. Statements By The Responsible Authority And The Secretary Of State 6.(1) The responsible authority shall send a statement to the tribunal and, in the case of a restricted patient, the Secretary of State, as soon as practicable and in any case within 3 weeks of its receipt of the notice of application; and such statement shall contain -

(a) the information specified in Part A of Sched 1 to these Rules, in so far as it is within the knowledge of the responsible authority; and (b) the report specified in para 1 of Part B of that Schedule; and (c) the other reports specified in Part B of that Schedule, in so far as it is reasonably practicable to provide them.

(2) Where the patient is a restricted patient, the Secretary of State shall send to the tribunal, as soon as practicable and in any case within 3 weeks of receipt by him of the authority's statement, a

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statement of such further information relevant to the application as may be available to him. (3) Where the patient is a conditionally discharged patient, paragraphs (1) and (2) shall not apply and the Secretary of State shall send to the tribunal as soon as practicable, and in any case within 6 weeks of receipt by him of the notice of application, a statement which shall contain

(a) the information specified in Part C of Sched 1 to these Rules, in so far as it is within the knowledge of the Secretary of State; and (b) the reports specified in Part D of that Schedule, in so far as it is reasonably practicable to provide them.

(3A) Where the patient is (or is to be) subject to after-care under supervision para (1) shall not apply and the responsible authority shall send a statement to the tribunal as soon as practicable, and in any case within 3 weeks of the responsible authority's receipt of the notice of application, and this statement shall contain

(a) the information specified in Part E of Sched 1 to these Rules, in so far as it is within the knowledge of the responsible authority; (b) the reports specified in Part F of that Schedule; (c) the details of the after-care services being (or to be) provided under s117 of the Act; and (d) details of any requirements imposed (or to be imposed) on the patient under s25D of the Act;

and shall be accompanied by copies of the documents specified in para3 of Part E of that Schedule. (4) Any part of the authority's statement or the Secretary of State's statement which, in the opinion of-

(a) (in the case of the authority's statement) the responsible authority; or (b) (in the case of the Secretary of State's statement) the Secretary of State,

should be withheld from the applicant or (where he is not the applicant) the patient on the ground that its disclosure would adversely affect the health or welfare of the patient or others, shall be made in a separate document in which shall be set out the reasons for believing that its disclosure would have that effect. (5) On receipt of any statement provided in accordance with para (1), (2) or (3), the tribunal shall send a copy to the applicant and (where he is not the applicant) the patient, excluding any part of any statement which is contained in a separate document in accordance with paragraph (4) Notice to Other Persons Interested 7. On receipt of the authority’s or, in the case of a conditionally discharged patient, the Secretary of State’s statement, the tribunal shall give notice of the proceedings –

(a) where the patient is liable to be detained in a mental nursing home, to the registration authority of that home:

(b) where the patient is subject to the guardianship of a private guardian, to the guardian; (bb) where the patient is, or will upon leaving hospital be, subject to after-care under supervision, to the person who appears to be the patient's supervisor and community responsible medical officer and in the case of a patient who has not yet left hospital, the person who has prepared the medical report referred to in para 1 of Part F of Sched 1 to these Rules;] (c) where the patient's financial affairs are under the control of the Court of Protection, to the Court of Protection; (d) where any person other than the applicant is named in the authority's statement as exercising the functions of the nearest relative, to that person; (e) where a health authority, Primary Care Trust, NHS Trust or NHS Foundation Trust has a right to discharge the patient under the provisions of s23(3) of the Act, to that authority or trust; (f) to any other person who, in the opinion of the tribunal, should have an opportunity of being heard.

Appointment Of The Tribunal 8.(1) Unless the application belongs to a class or group of proceedings for which members have already been appointed, the members of the tribunal who are to hear the application shall be appointed by the chairman. (2) A person shall not be qualified to serve as a member of a tribunal for the purpose of any proceedings where-

(a) he is a member or officer of the responsible authority or of the registration authority concerned in the proceedings; or (b) he is a member or officer of a health authority, Primary Care trust, NHS Trust or NHS Foundation Trust which has the right to discharge the patient under s23(3) of the Act; or (c) he has a personal connection with the patient or has recently treated the patient in a professional medical capacity.

(3) The persons qualified to serve as president of the tribunal for the consideration of an application or reference relating to a restricted patient shall be restricted to those legal members who have been approved for that purpose by the Lord Chancellor. Powers To Postpone Consideration Of An Application 9.(1) Where an application or reference by or in respect of a patient has been considered and determined by a tribunal for the same or any other area, the tribunal may, subject to the provisions of this rule, postpone the consideration of a further application by or in respect of that patient until such date as it may direct, not being later than-

(a) the expiration of the period of 6 months from the date on which the previous application was determined; or

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(b) the expiration of the current period of detention, whichever shall be the earlier.

(2) The power of postponement shall not be exercised unless the tribunal is satisfied, after making appropriate inquiries of the applicant and (where he is not the applicant) the patient, that postponement would be in the interests of the patient. (3) The power of postponement shall not apply to-

(a) an application under s66(1)(d) or (gb) of the Act; (b) an application under s66(1)(f) of the Act in respect of a renewal of authority for detention of the patient for a period of 6 months or an application under s66(1)(gc) of the Act in respect of a report furnished under s25G(3)(c) concerning renewal of after-care under supervision], unless the previous application or reference was made to the tribunal more than 3 months after the patient's admission to hospital, reception into guardianship or becoming subject to after-care under supervision; (c) an application under s66(1)(g) of the Act; (d) any application where the previous application or reference was determined before a break or change in the authority for the patient's detention or guardianship or his being (or being about to be) subject to after-care under supervision] as defined in para (7).

(4) Where the consideration of an application is postponed, the tribunal shall state in writing the reasons for postponement and the period for which the application is postponed and shall send a copy of the statement to all the parties and, in the case of a restricted patient, the Secretary of State. (5) Where the consideration of an application is postponed, the tribunal shall send a further notice of the application in accordance with r4 not less than 7 days before the end of the period of postponement and consideration of the application shall proceed thereafter, unless before the end of the period of postponement the application has been withdrawn or is deemed to be withdrawn in accordance with the provisions of r19 or has been determined in accordance with the next following paragraph. (6) Where a new application which is not postponed under this rule or a reference is made in respect of a patient, the tribunal may direct that any postponed application in respect of the same patient shall be considered and determined at the same time as the new application or reference. (7) For the purpose of para (3)(d) a break or change in the authority for the detention or guardianship or his being (or being about to be) subject to after-care under supervision of a patient shall be deemed to have occurred only-

(a) on his admission to hospital in pursuance of an application for treatment or in pursuance of a

hospital order without an order restricting his discharge; or (b) on his reception into guardianship in pursuance of a guardianship application or a guardianship order; or (c) on the application to him of the provisions of Part II or Part III of the Act as if he had been so admitted or received following -

(i) the making of a transfer direction, or (ii) the ceasing of effect of a transfer direction or an order or direction restricting his discharge; or

(d) on his transfer from guardianship to hospital in pursuance of regulations made under s19 of the Act; or (e) on his ceasing to be subject to after-care under supervision on his reception into guardianship in accordance with s25H(5)(b).

Part III – General Provisions Representation, etc 10.(1) Any party may be represented by any person whom he has authorised for that purpose not being a person liable to be detained or subject to guardianship or after-care under supervision under the Act or a person receiving treatment for mental disorder at the same hospital or mental nursing home as the patient. (2) Any representative authorised in accordance with para (1) shall notify the tribunal of his authorisation and postal address. (3) As regards the representation of any patient who does not desire to conduct his own case and does not authorise a representative in accordance with para (1) the tribunal may appoint some person to act for him as his authorised representative. (4) Without prejudice to r12(3), the tribunal shall send to an authorised representative copies of all notices and documents which are by these Rules required or authorised to be sent to the person whom he represents and such representative may take all such steps and do all such things relating to the proceedings as the person whom he represents is by these Rules required or authorised to take or do. (5) Any document required or authorised by these Rules to be sent or given to any person shall, if sent or given to the authorised representative of that person, he deemed to have been sent or given to that person. (6) Unless the tribunal otherwise directs, a patient or any other party appearing before the tribunal may be accompanied by such other person or persons as he wishes, in addition to any representative he may have authorised. Medical Examination 11. At any time before the hearing of the application, the medical member or, where the tribunal includes more than one, at least one of them shall examine the

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patient and take such other steps as he considers necessary to form an opinion of the patient's mental condition; and for this purpose the patient may be seen in private and all his medical records may be examined by the medical member, who may take such notes and copies of them as he may require, for use in connection with the application and in the case of a patient subject to after-care under supervision this rule shall also apply to such other records relating to any after-care services provided under s117 of the Act. Disclosure of Documents 12.(1) Subject to para (2), the tribunal shall, as soon as practicable, send a copy of every document it receives which is relevant to the application to the applicant, and (where he is not the applicant) the patient, the responsible authority and, in the case of a restricted patient, the Secretary of State and any of those persons may submit comments thereon in writing to the tribunal. (2) As regards any documents which have been received by the tribunal but which have not been copied to the applicant or the patient, including documents withheld in accordance with r6, the tribunal shall consider whether disclosure of such documents would adversely affect the health or welfare of the patient or others and, if satisfied that it would, shall record in writing its decision not to disclose such documents. (3) Where the tribunal is minded not to disclose any document to which para (1) applies to an applicant or a patient who has an authorised representative it shall nevertheless disclose it as soon as practicable to that representative if he is

(a) a barrister or solicitor; (b) a registered medical practitioner; (c) in the opinion of the tribunal, a suitable person by virtue of his experience or professional qualification;

provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the applicant or (where he is not the applicant) to the patient or to any other person without the authority of the tribunal or used otherwise than in connection with the application. Directions 13. Subject to the provisions of these Rules, the tribunal may give such directions as it thinks fit to ensure the speedy and just determination of the application. Evidence 14.(1) For the purpose of obtaining information, the tribunal may take evidence on oath and subpoena any witness to appear before it or to produce documents, and the president of the tribunal shall have the powers of an arbitrator under s12(3) of the Arbitration Act 1950 and the powers of a party to a reference under an arbitration agreement under subs(4) of that section, but no person shall be compelled to give any

evidence or produce any document which he could not be compelled to give or produce on the trial of an action. (2) The tribunal may receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law. Further Information 15.(1) Before or during any hearing the tribunal may call for such further information or reports as it may think desirable, and may give directions as to the manner in which and the persons by whom such material is to be furnished. (2) Rule 12 shall apply to any further information or reports obtained by the tribunal. Adjournment 16.(1) The tribunal may at any time adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate. (2) Before adjourning any hearing, the tribunal may give such directions as it thinks fit for ensuring the prompt consideration of the application at an adjourned hearing. (3) Where the applicant or the patient (where he is not the applicant) or the responsible authority requests that a hearing adjourned in accordance with this rule be resumed, the hearing shall be resumed provided that the tribunal is satisfied that resumption would be in the interests of the patient. (4) Before the tribunal resumes any hearing which has been adjourned without a further hearing date being fixed it shall give to all parties and, in the case of a restricted patient, the Secretary of State, not less than 14 days’ notice (or such shorter notice as all parties may consent to) of the date, time and place of the resumed hearing. Transfer Of Proceedings 17.(1) Where any proceedings in relation to a patient have not been disposed of by the members of the tribunal appointed for the purpose, and the chairman is of the opinion that it is not practicable or not possible without undue delay for the consideration of those proceedings to be completed by those members, he shall make arrangements for them to be heard by other members of the tribunal. (2) Where a patient in respect of whom proceedings are pending moves within the jurisdiction of another tribunal, the proceedings shall, if the chairman of the tribunal originally having jurisdiction over those proceedings so directs, be transferred to the tribunal within the jurisdiction of which the patient has moved and notice of the transfer of proceedings shall be given to the parties and, in the case of a restricted patient, the Secretary of State.

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Two Or More Pending Applications 18.(1) The tribunal may consider more than one application in respect of a patient at the same time and may for this purpose adjourn the proceedings relating to any application. (2) Where the tribunal considers more than one application in respect of the patient at the same time, each applicant (if more than one) shall have the same rights under these Rules as he would have if he were the only applicant. Withdrawal Of Application 19.(1) An application may be withdrawn at any time at the request of the applicant provided that the request is made in writing and the tribunal agrees. (2) If a patient ceases to be liable to be detained or subject to guardianship or after-care under supervision] in England and Wales, any application relating to that patient shall be deemed to be withdrawn. (2A) Where a patient subject to after-care under supervision fails without reasonable explanation to undergo a medical examination under r11, any application relating to that patient may be deemed by the tribunal to be withdrawn. (3) Where an application is withdrawn or deemed to be withdrawn, the tribunal shall so inform the parties and, in the case of a restricted patient, the Secretary of State. Part IV – The Hearing Notice Of Hearing 20. The tribunal shall give at least 14 days' notice of the date, time and place fixed for the hearing (or such shorter notice as all parties may consent to) to all the parties and, in the case of a restricted patient, the Secretary of State. Privacy Of Proceedings 21.(1) The tribunal shall sit in private unless the patient requests a hearing in public and the tribunal is satisfied that a hearing in public would not be contrary to the interests of the patient. (2) Where the tribunal refuses a request for a public hearing or directs that a hearing which has begun in public shall continue in private the tribunal shall record its reasons in writing and shall inform the patient of those reasons. (3) When the tribunal sits in private is may admit to the hearing such persons on such terms and conditions as it considers appropriate. (4) The tribunal may exclude from any hearing or part of a hearing any person or class of persons, other than a representative of the applicant or of the patient to whom documents would be disclosed in accordance with r12(3), and in any case where the

tribunal decides to exclude the applicant or the patient or their representatives or a representative of the responsible authority, it shall inform the person excluded of its reasons and record those reasons in writing. (5) Except in so far as the tribunal may direct, information about proceedings before the tribunal and the names of any persons concerned in the proceedings shall not be made public. (6) Nothing in this rule shall prevent a member of the Council on Tribunals from attending the proceedings of a tribunal in his capacity as such provided that he takes no part in those proceedings or in the deliberations of the tribunal. Hearing Procedure 22.(1) The tribunal may conduct the hearing in such manner as it considers most suitable bearing in mind the health and interests of the patient and it shall, so far as appears to it appropriate, seek to avoid formality in its proceedings. (2) At any time before the application is determined, the tribunal or any one or more of its members may interview the patient, and shall interview him if he so requests, and the interview may, and shall if the patient so requests, take place in the absence of any other persons. (3) At the beginning of the hearing the president shall explain the manner of proceeding which the tribunal proposes to adopt. (4) Subject to r21(4), any party and, with the permission of the tribunal, any other person, may appear at the hearing and take such part in the proceedings as the tribunal thinks proper; and the tribunal shall in particular hear and take evidence from the applicant, the patient (where he is not the applicant) and the responsible authority who may hear each other's evidence, put questions to each other, call witnesses and put questions to any witness or other person appearing before the Tribunal. (5) After all the evidence has been given, the applicant and (where he is not the applicant) the patient shall be given a further opportunity to address he Tribunal. Part V – Decisions, Further Consideration and Miscellaneous Provisions Decisions 23.(1) Any decision of the majority of the members of a tribunal shall be the decision of the Tribunal and, in the event of an equality of votes, the president of the Tribunal shall have a second or casting vote. (2) The decision by which the Tribunal determines an application shall be recorded in writing; the record shall be signed by the president and shall give the reasons for the decision and, in particular, where the

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Tribunal relies upon any of the matters set out in s72(1), (4) or (4A) or s73(1) or (2) of the Act, shall state its reasons for being satisfied as to those matters. (3) Paragraphs (1) and (2) shall apply to provisional decisions and decisions with recommendations as they apply to decisions by which applications are determined. Communication Of Decisions 24.(1) The decision by which the tribunal determines an application may, at the discretion of the tribunal, be announced by the president immediately after the hearing of the case and, subject to para (2), the written decision of the tribunal, including the reasons, shall be communicated in writing within 7 days of the hearing to all the parties and, in the case of a restricted patient, the Secretary of State. (2) Where the tribunal considers that the full disclosure of the recorded reasons for its decision to the patient in accordance with para (1) would adversely affect the health or welfare of the patient or others, the tribunal may instead communicate its decision to him in such manner as it thinks appropriate and may communicate its decision to the other parties subject to any conditions it may think appropriate as to the disclosure thereof to the patient; provided that, where the applicant or the patient was represented at the hearing by a person to whom documents would be disclosed in accordance with r12(3), the tribunal shall disclose the full recorded grounds of its decision to such a person, subject to any conditions it may think appropriate as to disclosure thereof to the patient. (3) Paragraphs (1) and (2) shall apply to provisional decisions and decisions with recommendations as they apply to decisions by which applications are determined. (4) Where the tribunal makes a decision with recommendations, the decision shall specify the period at the expiration of which the tribunal will consider the case further in the event of those recommendations not being complied with. Further Consideration 25.(1) Where the tribunal has made a provisional decision, any further decision in the proceedings may be made without a further hearing. (2) Where the tribunal has made a decision with recommendations and, at the end of the period referred to in r24(4), it appears to the tribunal after making appropriate inquiries of the responsible authority that any such recommendation has not been complied with, the tribunal may reconvene the proceedings after giving 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 fixed for the hearing.

Time 26.(1) Where the time prescribed by or under these Rules for doing any act expires on a Saturday, Sunday or public holiday, the act shall be in time if done on the next working week. (2) The time appointed by these Rules for the doing of any act may, in the particular circumstances of the case, be extended or, with the exception of the periods of notice specified in r16(4), r20 and r25(2), abridged by the tribunal on such terms (if any) as it may think fit. Service Of Notices, Etc 27. Any document required or authorised by these Rules to be sent or given to any person may be sent by prepaid post or delivered- (a) in the case of a document directed to the tribunal or the chairman, to the tribunal office; (b) in any other case, to the last known address of the person to whom the document is directed. Irregularities 28. Any irregularity resulting from failure to comply with these Rules before the tribunal has determined an application shall not of itself render he is not by the terms of the Act obliged to make a reference may be withdrawn by him at any time before it is considered by the tribunal and, where a reference is so withdrawn, the tribunal shall inform the patient and the other parties that the reference has been withdrawn. Part VI – References and Applications by Patients Detained for Assessment References 29.The tribunal shall consider a reference as if there had been an application by the patient and the provisions of these Rules shall apply with the following modifications:

(a) rules 3, 4, 9 and 19 shall not apply and where a reference is made under s75(1) of the Act r20 shall also not apply; (b) the tribunal shall, on receipt of the reference, send notice thereof to the patient and the responsible application; provided that where the reference has been made by the responsible authority, instead of the notice of reference there shall be sent to the responsible authority a request for the authority's statement; (c) rules 5, 6 and 7 shall apply as if r6(1) referred to the notice of reference, or the request for the authority's statement, as the case may be, instead of the notice of application and where a reference is made under s75(1) of the Act-

(i) r6(2) shall apply as if the period of time specified therein was two weeks instead of three weeks; and (ii) on receipt of the authority's statement, the tribunal shall give notice of the date, time and place fixed for the hearing to any person whom the tribunal notifies of the proceedings under r7;

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(cc) where a reference is made under s75(1) of the Act, on receipt of the reference the tribunal shall

(i) fix a date for the hearing being not later than 8 weeks, nor earlier than 5 weeks, from the date on which the reference was received; (ii) fix the time and place for the hearing; and (iii) give notice of the date, time and place of the hearing to the patient, the responsible authority and the Secretary of State;

d) a reference made by the Secretary of State in circumstances in which he is not by the terms of the Act obliged to make a reference may be withdrawn by him at any time before it is considered by the tribunal and, where a reference is so withdrawn, the tribunal shall inform the patient and the other parties that the reference has been withdrawn.

Making An Assessment Application 30.(1) An assessment application shall be made to the tribunal in writing signed by the patient or any person authorised by him to do so on his behalf. (2) An assessment application shall indicate that it is made by or on behalf of a patient detained for assessment and shall wherever possible include the following information- (a) the name of the patient; (b) the address of the hospital or mental nursing home where the patient is detained; (c) the name and address of the patient's nearest relative and his relationship to the patient; (d) the name and address of any representative authorised by the patient in accordance with r10 or, if none has yet been authorised, whether the patient intends to authorise a representative or wishes to conduct his own case. (3) If any of the information specified in para (2) is not included in the assessment application, it shall in so far as is practicable be provided by the responsible authority at the request of the tribunal. Appointment Of A Tribunal And Hearing Date 31. On receipt of an assessment application the tribunal shall- (a) fix a date for the hearing, being not later than 7 days from the date on which the application was received, and the time and place for the hearing; (b) give notice of the date, time and place fixed for the hearing to the patient; (c) give notice of the application and of the date, time and place fixed for the hearing to the responsible authority, the nearest relative (whether practicable) and any other person who, in the opinion of the tribunal, should have an opportunity of being heard; and the chairman shall appoint the members of the tribunal to deal with the case in accordance with r8. Provision Of Admission Papers, Etc 32.(1) On receipt of the notice of an assessment application, or a request from the tribunal, whichever may be the earlier, the responsible authority shall provide for the tribunal copies of the admission

papers, together with such of the information specified in Part A of Sched 1 to these Rules as is within the knowledge of the responsible authority and can reasonably be provided in the time available and such of the reports specified in Part B of that Schedule as can reasonably be provided in the time available. (2) The responsible authority shall indicate if any part of the admission papers or other document supplied in accordance with para (1) should, in their opinion, be withheld from the patient on the ground that its disclosure would adversely affect the health or welfare of the patient or others and shall state their reasons for believing that its disclosure would have that effect. (3) The tribunal shall make available to the patient copies of the admission papers and any other documents supplied in accordance with para (1), excluding any part indicated by the responsible authority in accordance with para (2). General Procedure, Hearing Procedure And Decisions 33. Rule 5, rule 8 and Parts III, IV and V of these Rules shall apply to assessment applications as they apply to applications in so far as the circumstances of the case permit and subject to the following modifications- (a) r12 shall apply as if any reference to a document being withheld in accordance with r6 was a reference to part of the admission papers or other documents supplied in accordance with r32 being withheld; (b) r16 shall apply with the substitution for the reference to 14 days' notice, of a reference to such notice as is reasonably practicable; (c) r20 shall not apply; (d) r24 shall apply as if the period of time specified therein was 3 days instead of 7 days. [Part VII - transitional provisions and revocations] Schedule 1 – Statements by the Responsible Authority and the Secretary of State (see rr6 and 32) Part A – Information relating to Patients (other than Conditionally Discharged Patients) and Patients Subject (or to be Subject) to After-Care Under Supervision 1. The name of the patient. 2. The age of the patient. 3. The date of admission of the patient to the hospital or mental nursing home in which the patient is currently detained or liable to be detained, or of the reception of the patient into guardianship. 4. Where the patient is being treated in a mental nursing home under contractual arrangements with a health authority, the name of that authority. 5. Details of the original authority for the detention or guardianship of the patient, including the Act of Parliament and the section of that Act by reference to which detention was authorised and details of any subsequent renewal of change in the authority for detention.

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6. The form of mental disorder from which the patient is recorded as suffering in the authority for detention (including amendments, if any, under s16 or 72(5) of the Act, but excluding cases within s5 of the Criminal Procedure (Insanity) Act I964). 7. The name of the responsible medical officer and the period which the patient has spent under the care of that officer. 8. Where another registered medical practitioner is or has recently been largely concerned in the treatment of the patient, the name of that practitioner and the period which the patient has spent under his care. 9. The dates of all previous tribunal hearings in relation to the patient, the decisions reached at such hearings and the reasons given. (In restricted patient cases this requirement does not relate to decisions before September 30, 1983). 10. Details of any proceedings in the Court of Protection and of any receivership order made in respect of the patient. 11. The name and address of the patient's nearest relative or of any other person who is exercising that function. 12. The name and address of any other person who takes a close interest in the patient. 13. Details of any leave of absence granted to the patient during the previous 2 years, including the duration of such leave and particulars of the arrangements made for the patient's residence while on leave. Part B – Reports Relating to Patients (other than Conditionally Discharged Patients) and Patients Subject (or to be Subject) to After-Care Under Supervision 1. An up-to-date medical report, prepared for the tribunal, including the relevant medical history and a full report on the patient's mental condition. 2. An up-to-date social circumstances report prepared for the tribunal including reports on the following- (a) the patient's home and family circumstances, including the attitude of the patient's nearest relative or the person so acting; (b) the opportunities for employment or occupation and the housing facilities which would be available to the patient if discharged; (c) the availability of community support and relevant medical facilities; (d) the financial circumstances of the patient. 3. The views of the authority on the suitability of the patient for discharge. 4. Any other information or observations on the application which the authority wishes to make. Part C – Information Relating to Conditionally Discharged Patients 1. The full name of the patient. 2. The age of the patient. 3. The history of the patient's present liability to detention including details of offence(s), and the dates of the original order or direction and of the conditional discharge. 4. The form of mental disorder from which the patient is recorded as suffering in the authority for detention.

(Not applicable to cases within s5 of the Criminal Procedure (Insanity) Act 1964). 5. The name and address of any medical practitioner responsible for the care and supervision of the patient in the community and the period which the patient has spent under the care of that practitioner. 6. The name and address of any social worker or probation officer responsible for the care and supervision of the patient in the community and the period which the patient has spent under the care of that person. Part D – Reports Relating to Conditionally Discharged Patients 1. Where there is a medical practitioner responsible for the care and supervision of the patient in the community, an up-to-date medical report prepared for the tribunal including the relevant medical history and a full report on the patient's mental condition. 2. Where there is a social worker or probation officer responsible for the patient's care and supervision in the community, an up-to-date report prepared for the tribunal on the patient's progress in the community since discharge from hospital. 3. A report on the patient's home circumstances. 4. The views of the Secretary of State on the suitability of the patient for absolute discharge. 5. Any other observations on the application which the Secretary of State wishes to make. Part E – Information and Documents Relating to Patients Subject (or to be Subject) to After-Care Under Supervision 1. The full name, address and age of his patient. 2. The date of the acceptance of the supervision application in respect of the patient. 3. A copy of the original supervision application, details of the after-care services provided (or to be provided) under s117 of the Act, details of any requirements imposed (or to be imposed) under s25D(1) of the Act, a copy of any report furnished under s25G(3)(b) of the Act in relation to renewal of the supervision application and a copy of any record of modification of the after-care services provided. 4. Any reclassification of the form of mental disorder from which the patient is recorded as suffering in the supervision application reported in accordance with s25F(1) of the Act. 5. The name and address of the person who is (or is to be) the community responsible medical officer and the period (if any) during which he has been in charge of the patient's medical treatment. 6. The name and address of the person who is (or is to be) the patient's supervisor. 7. Where a registered medical practitioner other than the community responsible medical officer is or has recently been largely concerned in the treatment of the patient, details of the name and address of that practitioner and the period which the patient has spent under his care. 8. The name and address of any place where the patient (if he has been discharged) is receiving medical treatment.

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9. The name and address of the hospital where the patient was detained or liable to be detained when the supervision application was made. 10. The dates of any previous tribunal hearings in relation to the patient since he became subject to after-care under supervision, the decisions reached at such hearings and the reasons given. 11. Details of any proceedings in the Court of Protection and of any receivership order made in respect of the patient. 12. The name and address of the patient's nearest relative or of any other person who is exercising that function. 13. The name and address of any other person who takes a close interest in the patient. Part F – Relating to Patients Subject (or to be Subject) to After-Care Under Supervision 1. An up-to-date medical report, prepared for the tribunal by the patient's community responsible medical officer or, if he has not yet left hospital, his responsible medical officer (or, where there is none, his last responsible medical office), including the relevant medical history and a full report on the patient's mental condition. 2. Where the patient is subject to after-care under supervision an up-to-date report prepared for the tribunal by the patient's supervisor including reports on the following - (a) the patient's home and family circumstances, including the attitude of the patient's nearest relative or the person so acting and the attitude of any person who plays a substantial part in the care of the patient but is not professionally concerned with any of the after-care services provided to the patient; (b) his progress in the community whilst subject to after-care under supervision including an assessment of the effectiveness of that supervision. 3. Where the patient has not yet left hospital an up-to-date social circumstances report prepared for the tribunal by a person professionally concerned with the nature of the patient's social circumstances including reports on the following - (a) the patient's home and family circumstances, including the attitude of the patient's nearest relative or the person so acting; (b) the opportunities for employment or occupation and the housing facilities which would be available to the patient upon his discharge from hospital; (c) the availability of community support and relevant medical facilities; (d) the financial circumstances of the patient. 3. European Convention on Human Rights (extracts) Article 3 (Torture, Inhuman Treatment) No one shall be subjected or torture or to inhuman or degrading treatment or punishment. Article 5 (Liberty) (1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty

save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; … (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; …

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful. … Article 6 (Fair Trial – Civil and Criminal) (1) In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. … (3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 8 (Family and Private Life) (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as

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is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 (Non-discrimination) The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 4. Human Rights Act 1998 (extracts) 1. The Convention Rights (1) In this Act, "the Convention rights" means the rights and fundamental freedoms set out in

(a) Articles 2 to 12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention.

… 2. Interpretation of Convention rights (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any -

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention,

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. … 3. Interpretation of Legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section -

(a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

4. Declaration of incompatibility (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied -

(a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,

it may make a declaration of that incompatibility. (5) In this section "court" means [House of Lords, Privy Council, Court of Appeal, Courts-Martial Appeal Court, High Court] (6) A declaration under this section ("a declaration of incompatibility") -

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.

[Section 5 allows the Crown to intervene where a declaration of incompatibility is in issue.] 6. Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if -

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section, "public authority" includes -

(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity.

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(5) In relation to a particular act, a person is not a public authority by virtue only of subs (3)(b) if the nature of the act is private. (6) "An act" includes a failure to act but does not include a failure to -

(a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.

[Section 7 allows proceedings in relation a breach or forthcoming breach of s6 by someone who is or would be a victim; ss 8 and 9 make further provisions for such an action.] [Section 10 allows remedial action to be taken following a declaration of incompatibility.]

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