DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Permission to appeal was granted by the Upper Tribunal.  An oral hearing of the appeal took place at Harp House in London on 28 April 2010 before Mr Justice Walker (President of the Administrative Appeals Chamber), HH Judge Sycamore (President of the Health, Education and Social Care Chamber) and Upper Tribunal Judge Wikeley.

Save for the frontsheet (which identifies the parties by name), this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).

DECISION

dated 2 June 2010

In KF’s case the decision of the First-tier Tribunal dated 16 March 2009 involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007.  However, the Upper Tribunal exercises its discretion so as not to set aside the decision of the First-tier Tribunal (section 12(2)(a) of the 2007 Act).

In MO’s case the decision of the First-tier Tribunal on 17 December 2009  also involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007.  The Upper Tribunal again exercises its discretion so as not to set aside the decision of the First-tier Tribunal (section 12(2)(a) of the 2007 Act).

In FF’s case the First-tier Tribunal’s decision of 21 May 2009, ruling that the referral made while FF was subject to section 3 of the Mental Health Act 1983 ceased to have effect when FF was placed under a community treatment order, involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007.  The Upper Tribunal again exercises its discretion not to set that decision aside (section 12(2)(a) of the 2007 Act).

REASONS

Introduction

The parties and their representatives

1.	The three appellants, KF, MO and FF have all been admitted for treatment under the Mental Health Act 1983; KF and MO have both since been discharged, but FF remains detained in hospital.  Each of them was under the care of the Birmingham and Solihull Mental Health NHS Trust (the First Respondents) and has been represented by the same solicitor, Mr Bellshaw, who has clearly been acting assiduously, promptly and responsibly in their best interests at all times.  Mr Bellshaw appeared for each appellant before the First-tier Tribunal.

2.	The three appellants were all represented at the oral hearing before the Upper Tribunal by Mr Pezzani of Counsel.  The First Respondents have taken no active part in the proceedings before the Upper Tribunal.  However, the Secretary of State for Health (the Second Respondent) has helpfully made submissions, and was represented at the oral hearing before the Upper Tribunal by Mr Hooper of Counsel.  We are indebted to both Mr Pezzani and Mr Hooper for their careful and detailed submissions both before and at the hearing.

Was this a purely “academic” appeal?

3.	We acknowledge at the outset that there was a considerable measure of agreement between Mr Pezzani and Mr Hooper, approaching but not quite attaining unanimity, on most but not all of the main issues.  This was especially so in relation to the third appeal, FF.  The extent of this consensus naturally raised the question as to whether the Upper Tribunal should be hearing the appeals at all.  

4.	The general principle is that appellate courts (and tribunals) will decline to hear “academic” appeals in private law cases (Sun Life Assurance v Jervis [1944] A.C. 111 and Ainsbury v Millington [1987] 1 W.L.R. 379, in which Lord Bridge of Harwich stressed that “courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved” (at 381B-C), whilst acknowledging that different considerations might apply in “friendly actions” or test cases).  That general principle may not apply with quite the same force in public law cases, where the established view is that academic appeals should not be heard “unless there is a good reason in the public interest for doing so” (R v Secretary of State for the Home Department, ex parte Salem [1990] 1 A.C. 450, per Lord Slynn at 457A-B).  

5.	However, despite the general rule there will always be circumstances in which it is appropriate in the context of either public or private law proceedings for such an appeal to be heard (see e.g. Birmingham City Council v F [2006] EWCA Civ 1748; [2007] Fam 41 and Rolls Royce plc v Unite the Union [2009] EWCA Civ 387; [2010] 1 W.L.R. 318). Notwithstanding the considerable measure of agreement between the parties, we are entirely satisfied that the present proceedings are one such (joined) appeal.  Both parties accept that there are important issues of principle to be determined.  The appeals concern relatively narrow points of construction on which the parties have a legitimate interest in seeking clarification and guidance.  The circumstances which arose in the present appeals were in no way unusual and will arise again. The parties and their representatives, along with others in similar situations, are entitled to expect a decision on the points at issue.  We also bear in mind both that one of the functions of the Upper Tribunal is to provide authoritative guidance to the First-tier Tribunal and that these appeals concern one of the most precious of human rights, the individual’s right to liberty.  

6.	In doing so, however, we acknowledge that there are inherent dangers in a court or tribunal (especially an appellate court or tribunal) expressing views on matters which do not arise for decision on the narrow facts of the case, as the Court of Appeal observed in Office of Communications v Floe Telecom Ltd [2009] EWCA Civ 47).  We also bear in mind the cautionary words of Carnwath LJ, the Senior President of Tribunals, commenting on the role of the Upper Tribunal in interpreting the scope of the new armed forces compensation scheme, namely that "Although I understand the panel's wish to give guidance as to the operation of the scheme as a whole, there are always dangers in introducing a new legal argument without the factual findings to support it" (Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan & Anor [2009] EWCA Civ 1043, at paragraph 125).  However, the present appeals are not ones in which a successful party is seeking to appeal against the reasoning in the judgment of a lower tribunal on points not necessary for its decision (as in Floe Telecom).  In addition, in at least two of the appeals (KF and MO) the patients may have good reason for wishing to appeal against the actual orders made, even though to some extent events have moved on.  In all three appeals, even if no relief is now sought in respect of the actual order, there remains an important issue of principle which touches on the liberty of the subject. Furthermore, this is not a case in which the Upper Tribunal has introduced new legal arguments, as appeared to be the case in Duncan; rather, we are seeking to resolve actual issues which have arisen on the facts of the present appeals. In addition, these appeals raise a number of practical problems which may affect a substantial number of other cases before the First-tier Tribunal.

KF and MO

The factual background

7.	The detailed chronology of KF and MO’s cases are set out at Annexes 1 and 2 respectively.  Although there are some minor differences in the details and the sequences of events, the two cases share the following characteristics:

(i)	both KF and MO were initially admitted under section 2 of the Mental Health Act 1983;
(ii)	both applied to the First-tier Tribunal under section 66(1)(a) of the 1983 Act (their “section 2 applications”), but their applications were dismissed (“the substantive First-tier Tribunal decisions”);
(iii)	both were admitted under section 3 of the 1983 Act, a month after their section 2 admission;
(iv)	both applied to the First-tier Tribunal under section 66(1)(b) of the 1983 Act (their “section 3 applications”);
(v)	both applied for permission to appeal (or a review of) the First-tier Tribunal’s dismissal of their section 2 applications;
(vi)	both applications for permission to appeal to the Upper Tribunal were refused by the First-tier Tribunal on the basis that the challenges were “academic”, given that they had pending section 3 applications;
(vii)	by the time of the hearing before the Upper Tribunal, both KF and MO had been discharged (in KF’s case before the First-tier Tribunal had heard her section 3 application, in MO’s case after the First-tier Tribunal had heard and refused her section 3 application).

8.	On 4 November 2009, when giving Directions on the appeals to the Upper Tribunal, Judge Rowland suggested that the following approach might have been taken, assuming that the substantive decisions were found on review by the First-tier Tribunal to involve an error of law.  In that event, Judge Rowland indicated that the substantive decisions could have been set aside with a direction that they be relisted for hearing before a new First-tier Tribunal along with the patients’ further applications, but that the patients be given the opportunity to withdraw those further applications so that they could make fresh applications later during their periods of detention.

The preliminary issue: are the substantive First-tier Tribunal decisions susceptible to judicial review before, as well as to appeal to, the Upper Tribunal?

9.	The Upper Tribunal granted both KF and MO permission to appeal against the substantive decisions of the First-tier Tribunal on their section 2 applications.  At a relatively late stage in the proceedings, KF and MO applied for their appeals to the Upper Tribunal to be treated in the alternative as applications for permission to apply for judicial review.  The suggestion was that this might provide access to a wider range of potential forms of relief (in particular a declaration).  This raises the preliminary question as to whether the substantive First-tier Tribunal decisions are susceptible to judicial review before, as well as to appeal to, the Upper Tribunal.  In the event we did not need to hear full argument on the point, as it seemed to us that the matters on which declarations were sought could be adequately dealt with in our narrative judgment.  However, subject to further argument, the proper analysis appears to be as follows.

10.	Mr Hooper submitted that the short answer to the preliminary question as posed is no. The Upper Tribunal has a statutory judicial review jurisdiction conferred by section 15 of the Tribunals, Courts and Enforcement Act 2007.  The limits to this jurisdiction are set out in section 18(2) and (3), which require four conditions to be satisfied, failing in which the application must be transferred to the High Court.  In particular, section 18(6) provides as follows:

“(6) Condition 3 is that the application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.”

11.	The relevant Practice Direction issued by the Lord Chief Justice of England and Wales has been published as Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327.  The Practice Direction currently provides for only two classes of case in relation to Condition 3: (a) decisions of the First-tier Tribunal on appeals in relation to the criminal injuries compensation scheme; and (b) decisions of the First-tier Tribunal made under either the Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal (except for certain excluded decisions under section 11(5)(b), (c) or (f) of the Act).

12.	It is plain that the purported judicial review applications by KF and MO do not meet Condition 3; they do not concern the criminal injuries compensation scheme and both KF and MO have (and indeed have exercised in these proceedings) a right of appeal to the Upper Tribunal against the substantive decisions of the First-tier Tribunal. We therefore formally dismiss the applications by KF and MO for their appeals to Upper Tribunal to be treated in the alternative as applications for judicial review.  

The point of principle: what should happen where an appeal from a First-tier Tribunal’s substantive decision on a section 2 application is overtaken by events?

Introduction

13.	This takes us to the central point of principle that arises in the appeals of both KF and MO.  In short, the question is this: what should happen where an appeal from a First-tier Tribunal’s substantive decision on a section 2 application is overtaken by events?  In particular, what is the proper approach to such an appeal where, after a section 2 application is made, either (a) the individual is subsequently admitted under section 3 of the 1983 Act and makes a further application, this time under section 66(1)(b), and/or (b) is subsequently discharged?  At this juncture we simply note that the decisions of the First-tier Tribunal in relation to both KF and MO involved errors of law (see further paragraphs 42-44 below where we explain these findings).

The parties’ submissions

14.	Mr Pezzani’s submissions commenced by reference to a number of general principles which we do not think are in doubt.  Thus it is plainly the policy of the 1983 Act that patients should have a practical and effective means by which their case can be considered by the tribunal.  Such tribunal hearings should take place within a reasonable time.  What is a reasonable time depends on the circumstances, but in particular the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699; “the HESC Rules”) set tight time limits for the consideration of section 2 applications (see especially rule 37).  It is also the policy of the 1983 Act that detained patients have multiple recurring rights to hearings to determine the lawfulness of their detention for treatment, given the gravity of the interference with an individual’s fundamental rights which is authorised by the 1983 Act.  In addition, the HESC Rules introduce the overriding objective of dealing with cases fairly and justly (see rule 2) and vest the First-tier Tribunal with extensive case management powers (see rule 5), significantly beyond what was previously available to the former mental health review tribunals under the Mental Health Review Tribunal Rules 1983 (SI 1983/942). In order to deal with cases “fairly and justly”, the First-tier Tribunal needs to exercise those extended powers in a way that reflects the fact that the legislative framework attaches a high importance to speed. We did not understand Mr Hooper to dissent from any of these more general propositions.  

15.	It was also agreed between the parties that R v South Thames Mental Health Review Tribunal, ex parte M [1998] COD 38 had been correctly decided.  Thus where a patient makes a section 2 application but is admitted under section 3 before that application is heard, the First-tier Tribunal must decide the application in the light of all the circumstances then obtaining and by reference to the section 3 criteria (i.e. by reference to section 72(1)(b) rather than section 72(1)(a) of the 1983 Act).

16.	Mr Pezzani went on to stress that unless the process of tribunal hearings and any consequential reviews and appeals operates speedily in the case of section 2 applications, then a significant number of patients will not have had a proper hearing before the First-tier Tribunal before they are released.  He argued that KF had been detained for two months under two separate statutory provisions without any proper and effective hearing to determine the lawfulness of her detention.  In MO’s case, the first effective hearing to decide the legality of her continued detention took place four months after she had been detained.  Mr Pezzani argued that the procedure adopted in both cases was incompatible with the requirement of speediness under Article 5(4) of the European Convention on Human Rights (ECHR).  He also argued there was nothing unusual in these cases: official statistics produced for the Department of Health demonstrated that 50 per cent of patients stayed in hospital for less than a month and about 80 per cent for less than 3 months (NHS, Mental Health Bulletin: First report and experimental statistics from MHMDS annual returns, 2003-2007 (2008), pp.39-40).

17.	Mr Pezzani contended further that both the First-tier Tribunal and the Upper Tribunal should take every sensible effort to enable patients to exercise their right to a hearing in a practical and effective way, taking urgent action where required.  In particular, appeals against First-tier Tribunal decisions on section 2 applications should be treated with a similar degree of urgency as required under rule 37(1) of the 2008 Rules in hearing the initial applications.  It was not acceptable for patients who had been denied an effective and proper hearing on their section 2 application to have to wait for the hearing of their subsequent section 3 application, by which time they might have been discharged in any event.  

18.	Mr Pezzani also submitted that the First-tier Tribunal had been in error in refusing both KF and MO permission to appeal on the basis that their status had changed and because fresh applications to the tribunal had been made.  The result, he argued was that KF and MO had been left in a procedural quandary.  In the present cases, where one patient was released from hospital a year ago and the other more than six months ago, it was inappropriate for the Upper Tribunal to re-make the decisions in question, and it was equally futile to order remittal to a fresh tribunal.  On that basis, the Upper Tribunal had no power to set aside the First-tier Tribunal’s decisions, which accordingly remained on file, although erroneous.  Mr Pezzani argued that this posed a real risk of prejudice to both KF and MO, and to others in the same situation, as such tribunal decisions remained on file and might well be cited in subsequent tribunal proceedings arising out of a later period of detention.

19.	Mr Hooper argued that the various procedural rules vested the First-tier Tribunal and Upper Tribunal with certain discretions but imposed certain duties.  We did not understand Mr Pezzani to dissent from this analysis, although he might differ on the consequences that should then flow.  On receipt of an application for permission to appeal, the First-tier Tribunal has a discretion as to whether to undertake a review (rule 47(1) of the HESC Rules).  If there is no review, the First-tier Tribunal has a duty to consider whether to give permission to appeal but a discretion as to whether or not to grant permission (rule 47(2)).  If permission is refused and the application is renewed before the Upper Tribunal, the Upper Tribunal also has a discretion as to whether to give permission (Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698) rule 21(2)). If permission is granted and the Upper Tribunal finds an error of law, it has a discretion as to whether to set aside the First-tier Tribunal decision (section 12(2)(a) of the 2007 Act), but if that tribunal decision is set aside, then the Upper Tribunal has a duty either to re-make the decision or to remit it to the First-tier Tribunal for a re-hearing (section 12(2)(b) of the 2007 Act).  We accept that analysis.

20.	Mr Hooper made three core submissions on the central point of principle.  First, he argued that Article 5(4) of the ECHR did not require tribunals to adopt any particular approach to cases in which the outcome of the section 2 application had been overtaken by events.  Second, where a patient remains in hospital and makes a section 3 application, the First-tier Tribunal has a discretion as to whether to grant permission to appeal on an application for permission to appeal against the dismissal of a section 2 application.  In the event of a further appeal, the Upper Tribunal has a discretion as to whether or not to grant relief in the event that an error of law is identified.  Third, Mr Hooper submitted that where a patient has been discharged, but there is a pending application, tribunals should always exercise their discretion to bring the appellate proceedings to an end or, as appropriate, refuse to grant any remedy.  We deal first with Mr Hooper’s core submissions and then turn to other matters arising from Mr Pezzani’s submissions. 

Article 5(4) of the ECHR

21.	Article 5(4) of the ECHR provides that:

“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 the detention is not lawful.”

22.	The existing Strasbourg jurisprudence on the scope of Article 5(4) was recently summarised by the European Court of Human Rights in Stephens v Malta (No. 1) [2009] ECHR 663 at paragraph 102:

“102. The Court, recalls that the right guaranteed in Article 5 § 4 is only applicable to persons deprived of their liberty, and has no application for the purposes of obtaining, after release, a declaration that a previous detention or arrest was unlawful (see X v. Sweden, no. 10230/82, Commission decision of 11 May 1983, Decisions and Reports (DR) 32, p. 304, and A.K. v. Austria, no. 20832/92, Commission decision of 1 December 1993, unpublished). Consequently, Article 5 § 4 cannot be invoked by a person who is lawfully released (see mutatis mutandis, Guliyev v. Azerbaijan, (dec.) no. 35584/02, 27 May 2005)...”

23.	We therefore agree with Mr Hooper that Article 5(4) can have no direct bearing on the current appeals by KF and MO, as both have now been discharged.  We observe, however, that this may not always be the case when a section 2 application is overtaken by events.  An example may be where a section 2 patient is subsequently detained under section 3 of the 1983 Act and makes a further application to the tribunal, this time under section 66(1)(b).  

24.	Clearly Article 5(4) requires that the lawfulness of any detention must “be decided speedily by a court”.  It is also well established that there must be subsequent reviews at “reasonable intervals” in the event of continued detention (Herczegfalvy v. Austria [1992] ECHR 83 (1993) 15 EHRR 437 at paragraph 75).  Mr Hooper argues that as a matter of principle either the section 2 or the section 3 application may serve as the vehicle for the “speedy” initial review of the lawfulness of the detention as required by Article 5(4).  On this footing, Article 5(4) would not necessarily require the “speedy” remission and rehearing of an application under section 2, where the tribunal has erred in law, if the pending section 3 application can itself be listed and heard as speedily as would have been the case for the section 2 application.  As seen in R v South Thames Mental Health Review Tribunal, ex parte M, the First-tier Tribunal will have to decide the matter according to the section 3 criteria in any event.

The position where the patient remains in hospital and there is a pending appeal 

25.	Mr Hooper accepted that where a patient appeals against the dismissal of a section 2 application, and remains in hospital under section 3, but has not made a section 3 application, the mere fact that he or she has a right to make such an application is no reason to exercise any discretion under the 2007 Act or in the procedural rules against the patient in relation to the section 2 matter.  A similar conclusion was reached in R v South Thames Mental Health Review Tribunal, ex parte M, where Collins J. observed that: “There is nothing in the Act that says Parliament has taken away that right of appeal if the patient happens to be transferred to a section 3 detention after a valid application has been lodged” (at paragraph 21).

26.	Mr Hooper also conceded that the matter was less clear-cut where a detained patient with an outstanding section 2 application also makes a section 3 application.  The logic of ex parte M would suggest that there is, in principle, no reason why a patient should not be permitted to appeal an adverse section 2 decision, whilst simultaneously pursuing a section 3 application, although that precise point did not fall for decision in that case, in which there had been no section 3 application made. Mr Hooper identified arguments both ways in terms of how such cases should be handled.

27.	The main arguments identified by Mr Hooper against entertaining an appeal against a tribunal decision on a section 2 application (or granting relief on appeal) were, first, resource considerations and, secondly, the absence of any real disadvantage to the patient, given the opportunity for relief presented by the section 3 application.

28.	The first of the three arguments identified by Mr Hooper in favour of enabling the patient to have a separate hearing of the section 2 application was that of fairness, in that the 1983 Act in effect rations applications to the tribunal, and patients might otherwise miss out through no fault of their own.  Secondly, the mere fact that a First-tier Tribunal might have to determine two applications in a short space of time is no reason to deny the patient one of those determinations.  Thirdly, there is no good reason for preventing patients from pursuing their outstanding section 2 applications where they are content for the section 3 application to be stayed or withdrawn.

29.	Mr Pezzani understandably urged upon us the strength of the arguments in favour of enabling a separate hearing of the section 2 application to take place.  He reminded us that there is Court of Appeal authority for the proposition that “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” (R (on the application of) v Ashworth Hospital Authority & Ors [2002] EWCA Civ 923; [2003] 1 WLR 127 at paragraph 76).  Mr Pezzani argued that resource considerations should be approached with caution where the liberty of the individual was at stake: see further R (on the applications of KB and others) v Mental Health Review Tribunal [2002] EWHC 639 (Admin) at paragraph 112.  To hold otherwise would, Mr Pezzani submitted, in effect be to prioritise administrative convenience over the right to liberty.  

30.	So how should the first-tier Tribunal manage such cases in practice?  We agree with the Observations issued by Judge Rowland at an earlier stage in these proceedings (see paragraph 8 above).  In general, unless there is good reason why not, if the First-tier Tribunal is asked to review a tribunal decision on a section 2 application, and concludes that it involves an error of law, then the appropriate way forward is for the First-tier Tribunal to set aside the substantive decision and to re-list the case for hearing together with any existing section 3 application.  As we shall explain, the patient has the right to apply to withdraw that application (see paragraphs 36-38 below). This approach has a number of practical ramifications.  Some of the issues that may arise in this regard are as follows: (i) time limits; (ii) case management and consolidation; (iii) withdrawal and (iv) provision of reports.

(i)	Time limits

31.	Mr Hooper submitted that the very tight time limits for the hearing and disposal of a section 2 application under rules 37(1) (hearing within 7 days of application) and 41(3)(a) (decision with reasons to be sent within 3 days of hearing) do not apply to such a remittal.  There is, he argued, no hard-edged rule requiring the remitted hearing to take place within a certain timeframe.  Without deciding the point we note that under Article 5(4) it remains incumbent upon the State to ensure that proper arrangements are in place for speedy hearings of detained patients’ applications.  In addition, the overriding objective under the HESC Rules of dealing with cases fairly and justly specifically includes “avoiding delay, so far as compatible with proper consideration of the issues” (rule 2(2)(e)).

32.	In that context we have some concern that several stages in the present appeals were not handled with sufficient urgency.  To take just one example: MO made her section 2 application on 17 November 2008 but it was not heard until a month later on 17 December 2008; the tribunal’s decision was not received for another month (14 January 2009) and despite her solicitor’s prompt application for a review or permission to appeal (16 January 2009) this was not determined until 11 February 2009.

33.	We understand that both the First-tier Tribunal and the Upper Tribunal now have in place appropriate administrative procedures so that these cases are dealt with promptly, bearing in mind the overriding objective.  As an example of good practice, we note that in RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC) the patient, who was detained under section 3 of the 1983 Act, had a hearing of his application listed for 4 May 2010.  The First-tier Tribunal prohibited disclosure of two addendum reports, one by the patient’s responsible clinician and the other by a nurse.  An urgent application for permission to appeal was lodged by email with the Upper Tribunal and came before Judge Jacobs on 14 April 2010.  This was followed by an oral hearing with counsel on 22 April 2010 and the Judge’s reasoned decision, lifting the prohibition on disclosure, was issued the following day.

34.	We were initially concerned that such expedition might prove difficult where, as is usually the case, patients are reliant on public funding.  However, Mr Pezzani told us on instructions that all the stages before the First-tier Tribunal up to, and including, applying for review or permission to appeal would be covered by an approved solicitor’s contract with the Legal Services Commission (LSC). An application direct to the Upper Tribunal for permission to appeal or funding for a substantive appeal before the Upper Tribunal would require a further certificate.  We were told that the LSC has established a specialist national unit based in Liverpool to handle such requests, and that urgent applications can be dealt with within 48 hours.  In circumstances of exceptional urgency, approved solicitors can self-certify under devolved powers.

(ii)	Case management and consolidation

35.	If the First-tier Tribunal may need to entertain both a re-hearing of appeal against a tribunal decision on a section 2 application and a subsequent section 3 application, need this result in a multiplicity of proceedings?  The First-tier Tribunal has extensive case management powers under the HESC Rules.  As indicated above, these are wider than those available under the previous Mental Health Review Tribunal Rules 1983.  In particular the new rules include the power to “consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case” (HESC Rules, rule 5(3)(b)).  The use of these powers would, in appropriate cases, enable proceedings to be consolidated, heard and determined together. The First-tier Tribunal and the parties must also have regard to the overriding objective which provides, in particular, for cases to be dealt with in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and by avoiding delay, so far as compatible with proper consideration of the issues (HESC Rules, rule 2). 

(iii)	Withdrawal

36.	A patient may apply to withdraw an application (rule 17(1)), although a reference may not be withdrawn (rule 17(3)).  A patient’s withdrawal cannot take effect without the tribunal’s consent (rule 17(2)).  Collins J. considered the 1983 forerunner of the present rule in R (on the application of O) v Mental Health Review Tribunal [2006] MHLR 326, holding that a tribunal should not consent “if it takes the view that [the application for withdrawal] is merely a tactical ploy and not in the interests of the patient.” The author Richard Jones gives the practical example of an application being made after a tribunal had heard all the evidence but before it had reached a decision (Mental Health Act Manual (Jones) (13th edition, 2009, at paragraph 3-072).  

37.	In our view a First-tier Tribunal would certainly be justified in refusing consent to a withdrawal where it is no more than such a tactical ploy.  However, that should not be taken as meaning that a tribunal should only refuse its agreement in such a scenario.  There is plainly no automatic right to withdraw, and we agree with both counsel that the case for accepting a withdrawal will depend very much on the particular circumstances of the case (or cases). The 1983 rules did not contain either the overriding objective or the extensive case management powers to which we have already made reference and the First-tier Tribunal should always have regard to those provisions when considering whether or not it is appropriate to consent to a withdrawal.     

38.	Mr Pezzani submitted that a patient’s desire to make an application whenever legitimately possible within the terms of the Act can hardly amount to a “tactical ploy”.  In most cases we doubt whether it is helpful to use the terminology of “tactical ploy”.  The question is whether a patient who has both an outstanding section 2 application and a subsequent section 3 application in hand near the start of a six month period may be justified in seeking to withdraw the latter application in order to preserve the possibility of making such an application later in that period of treatment.  There may be a number of relevant factors, for example the initial section 3 application may have been taken without the benefit of legal advice, and an individual’s mental health may well change considerably over time.  The danger of an unduly broad approach to the notion of a “tactical ploy” is that a patient might be denied what would otherwise be a legitimate opportunity to question their continued detention.

(iv)	Provision of reports

39.	We recognise that the content of reports prepared for different types of hearing may vary, according to the statutory criteria which the First- tier Tribunal has to consider. Where the same clinicians and other mental health professionals continue to be involved, as will usually be the case on a change of status from section 2 to section 3, this should not present a problem. The timely use of case management powers and the issue of appropriate directions with regard to the provision and content of reports should enable proceedings to be determined appropriately and effectively. The issue is likely to be more acute when there is a change in the patient’s status from section 3 to a Community Treatment Order about which we say more later (see paragraph 60 below).

The position where the patient has been discharged but there is a pending appeal

40.	Mr Hooper’s submission was that if a patient has already been discharged, no appeal can result in any remedy being granted, given that the only relevant power enjoyed by the First-tier Tribunal on an application remitted following an appeal is the power to order discharge.  In his submission, therefore, the First-tier Tribunal and the Upper Tribunal should exercise any discretion under the 2007 Act or the procedural rules in such cases against the patient. Thus tribunals should refuse both to review and to give permission to appeal and, if permission has been granted, the Upper Tribunal should refuse to set aside the tribunal’s decision if an error of law is identified.  Mr Hooper further submitted that these discretions should be exercised against the patient “in all such cases”, as there could be no remedy of any legal or practical significance.

41.	We recognise the force of Mr Hooper’s arguments.  In many cases where the patient has since been released, there will be no individual or wider public interest in continuing proceedings, even where the decision of the First-tier Tribunal under challenge may well be suspect.  To that extent we would agree that there may well be a presumption in practice against granting either a review or permission to appeal or against setting aside on appeal in such cases.  However, we do not accept that it will never be appropriate to exercise such a procedural discretion in the patient’s favour where he or she has already been released.  We recognise that these are cases involving fundamental issues about the liberty of the subject.  There may well be circumstances in which it remains appropriate for there to be further scrutiny of the initial tribunal decision, notwithstanding the individual’s subsequent discharge.  There may be a danger that a future decision-maker may give inappropriate weight to a flawed decision.  Moreover, there may be an urgent need for the legal principles at stake to be clarified.

Disposal of KF and MO’s appeals to the Upper Tribunal

42.	We agree with the Regional Tribunal Judge who considered the application for permission to appeal in KF’s case that the original decision of the First-tier Tribunal on 16 March 2009 was “pervaded by ambiguity”.  Using the standard form decision template, the tribunal’s decision was stated to be both that “The patient SHALL BE DISCHARGED from liability to be detailed with effect from 23 March 09 at 11.00 a.m.” and also that “The patient shall not be discharged”.  We can also understand why KF’s husband was, as he put it, “baffled to understand its logic”.  The decision of the First-tier Tribunal on 16 March 2009 plainly involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007.

43.	We also take the view that the decision of the First-tier Tribunal on 17 December 2008 in MO’s case involved an error of law.  Although this began as a section 2 application, by the time of the hearing MO was detained under section 3 of the 1983 Act.  However, the tribunal mistakenly applied the section 2 criteria in section 72(1)(a) rather than the section 3 criteria in section 72(1)(b), as required by ex parte M.  The decision of the First-tier Tribunal on 17 December 2009 therefore also involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007.

44.	Both patients have since been released (KF on 24 April 2009 and MO on 11 September 2009).  As indicated above, a re-hearing before the First-tier Tribunal would be an empty gesture at this stage and the Upper Tribunal is not in a position to re-make the decisions.  The Upper Tribunal accordingly exercises its discretion so as not to set aside the decisions of the First-tier Tribunal in question.

FF

45.	We can deal with the appeal by FF rather more shortly.  This is because the issues are more straightforward than in KF and MO and there is an even greater degree of common ground between the parties.  FF’s case concerns the effect of the making of a community treatment order on an extant reference to the First-tier Tribunal.

Community treatment orders

46.	Community treatment orders (CTOs) were introduced by the Mental Health Act 2007, amending the 1983 Act.  Where a patient is detained under section 3 of the 1983 Act, his or her responsible clinician may make a CTO under section 17A, which has the effect of discharging the patient from hospital, subject to the possibility of being recalled (in accordance with section 17E).  A patient under a CTO is a “community patient” (section 17A(7)).  The application for admission for treatment “shall not cease to be effective” during the currency of the CTO (section 17D(1)); in other words, the underlying authority for detention is suspended rather than extinguished (section 17D(4)).  Furthermore, once the CTO is revoked, the underlying regime for detention revives (section 17G).

The factual background

47.	The detailed chronology of FF’s case is set out at Annex 3.  In summary, FF was originally admitted to hospital in May 2008 under section 3 of the Mental Health Act 1983.  He did not apply to the First-tier Tribunal but his case was referred to the tribunal by hospital managers under section 68(2) of the 1983 Act.  Before the reference could be heard, he was discharged from hospital under a CTO.  On 21 May 2009 the First-tier Tribunal decided (the “dismissal decision”) that the effect of the CTO was that the section 68(2) reference ceased to have effect.  FF applied for permission to appeal or a review of that decision.  On 2 June 2009 the First-tier Tribunal decided (the “review decision”) to take no action as regards the review decision and refused permission to appeal.

48.	Subsequently the CTO was revoked and the hospital managers made a further reference to the tribunal as required by section 68(7) of the 1983 Act.  On 3 August 2009 FF applied to the Upper Tribunal for permission to appeal the review decision.  The Chamber President granted permission to appeal, directing that the appeal be heard together with those of KF and MO.  In the meantime, on 16 November 2009, the First-tier Tribunal had considered the section 68(7) reference and declined to order FF’s discharge. FF did not attend that hearing and his solicitor informed the panel that FF did not intend to contest the section remaining in place. 

49.	In subsequent submissions to the Upper Tribunal, FF’s representative indicated that permission to appeal the dismissal decision was also being sought, and in the alternative judicial review, but that there was no challenge to FF’s ongoing detention.  Indeed, in the meantime there had been a further section 68(2) reference, and on 15 March 2010 a First-tier Tribunal decided not to discharge FF as the conditions for continuing detention under section 3 of the 1983 Act were amply made out.  FF’s appeal to the Upper Tribunal involves both a preliminary issue (which First-tier Tribunal decision in his case can be appealed?) and a point of principle (does a reference to the First-tier Tribunal lapse once a CTO is made?).

The preliminary issue: which First-tier Tribunal decision can be appealed?

50.	FF’s original application to the Upper Tribunal for permission to appeal was made in respect of the First-tier Tribunal’s review decision on 2 June 2009.  It is now common ground that that review decision was in fact an “excluded decision” within the meaning of section 11(5)(d) of the Tribunals, Courts and Enforcement Act 2007, and so did not carry a right of appeal under section 11(1).  However, the dismissal decision made on 21 May 2009 was not an “excluded decision” and so did carry appeal rights under section 11(1).  The Upper Tribunal accepts that the substance of FF’s application for permission to appeal was a challenge to the dismissal decision itself and so there is no jurisdictional problem.  

The point of principle: does a reference to the First-tier Tribunal lapse once a CTO is made?

51.	The point of principle in FF’s appeal against the dismissal decision is a relatively narrow one.  The question is whether a reference to the First-tier Tribunal lapses once a CTO is made and in particular whether what happened in FF’s case was consistent with the decision of the Upper Tribunal in AA v Cheshire and Wirral Partnership NHS Trust [2009] UKUT 195 (AAC).  In AA Judge Rowland held that an application to the First-tier Tribunal made while a patient is detained under section 3 of the 1983 Act does not lapse if, before that application is heard, the patient is discharged under section 17A, subject to a CTO.

52.	In their respective submissions Mr Pezzani and Mr Hooper respectfully agreed with both the reasoning of Judge Rowland and the outcome in AA.  They also both submitted that it followed from AA that, as with an application, a reference made whilst a patient is detained under section 3 will likewise not lapse if, before the reference is heard, a CTO is made.  On that basis the First-tier Tribunal erred in law in its dismissal decision, as it had taken the contrary view.  We agree with that analysis for the following reasons.  

53.	First, we are satisfied that AA was correctly decided for the reasons set out by Judge Rowland at paragraphs 43-58 of his decision and in particular that this is the natural construction of section 72(1) of the 1983 Act.  We note in passing that the First-tier Tribunal issued its dismissal decision in FF’s case before Judge Rowland’s decision in AA was available.  

54.	Second, we agree that there is no reason to hold that references to the First-tier Tribunal should be treated any differently to applications in this regard, and indeed every reason why they should be treated in the same way.  Most notably, section 72(6) of the 1983 Act expressly provides that section 72(1)-(4) applies equally to managers’ references (under section 68) as to patients’ applications (under section 66).  In addition, if the intention was that references (but not applications) were to lapse upon a change of status, such as being discharged subject to a CTO, then one would have expected that express statutory provision would have been made to require a fresh reference by hospital managers whenever an existing reference lapsed.  The absence of any such express provision in the 1983 Act indicates that references to tribunals were not meant to lapse on a change in status.  This construction is supported by section 68(4) of the 1983 Act, which specifically requires hospital managers to make a reference to the tribunal if a patient withdraws his or her application to a tribunal more than six months after the applicable day.

55.	This analysis is consistent with the approach taken by Collins J. in R v South Thames Mental Health Review Tribunal ex parte M, namely that the patient’s right to make an application to a tribunal is founded on the fact of admission, rather than the detention.  It followed in that case that the change in a patient’s status from section 2 to section 3 did not deprive him of a tribunal hearing if that change took place after a valid application had been made but before it had been heard (although, as seen above, the criteria to be applied did change).  Moreover, the tribunal’s decision to dismiss the section 2 application could not prevent the patient from making a subsequent section 3 application during the first six months of detention.

56.	We see nothing in the judgments of Stanley Burnton J. (as he then was) in R (on the application of SR) v Mental Health Review Tribunal [2005] EWHC 2923 (Admin); [2006] MHLR 121 or Plender J. in R (on the application of MN) v Mental Health Review Tribunal [2008] EWHC 3383 (Admin) which is inconsistent with this analysis.  There are two reasons for that conclusion.  First, although in both cases the Administrative Court ruled that in the specific circumstances of those proceedings a fresh application was required, the Court was concerned with different regimes under the 1983 Act (those governing the now-repealed provisions for after-care under supervision (“ACUS”) and those relating to restricted patients respectively).  Second, both Stanley Burnton J. and Plender J. expressly endorsed the judgment of Collins J. in R v South Thames Mental Health Review Tribunal ex parte M.  

57.	We therefore agree with Mr Hooper’s specific submissions that: (1) in the context of references, the words “in respect of a patient who is liable to be detained under this Act or is a community patient” in section 72(1) refer to the patient’s status both at the date the reference is made and at the subsequent hearing of that reference; (2) a patient may therefore fall within section 72(1) by being liable to be detained under the Act when the reference is made and by being a community patient at the time of the hearing (as was the case for FF); and (3) sub-paragraphs (a) to (c) in section 72(1) refer only to the patient’s status as at the time of the hearing (not the date of the reference), and set out the legal tests to be applied depending on the patient’s particular status at that time (see AA v Cheshire and Wirral Partnership NHS Trust [2009] UKUT 195 (AAC) at paragraph 45).

58.	We also agree with Mr Pezzani that this construction is consistent with the guidance contained at paragraphs 32.14 and 32.15 of the Code of Practice: Mental Health Act 1983 (Department of Health, 1999). That guidance, which contemplates that updated reports might be needed if a patient’s status changes, necessarily assumes that a fresh application or reference will not be needed if a CTO is made.

The practical consequences of this approach

59.	The consequence of the analysis above is that any movement from section 2 to section 3 or to community patient status does not affect the continuing validity of an extant and undetermined application or reference to the First-tier Tribunal.  The application or reference still falls to be determined by the tribunal in accordance with the patient’s status at the time of the actual hearing and subject to the relevant criteria under section 72(1)(a)-(c).

60.	There may, of course, and depending upon the circumstances, be a number of 
outstanding applications and/or references before the First-tier Tribunal.  This raises similar issues to those identified in KF and MO (see paragraph 35 above). The effective use of the First-tier Tribunal’s case management powers should enable outstanding proceedings to be consolidated, heard and determined together. As we have already observed (see paragraph 39 above) the position may be more complicated where there is a change in the patient’s status from section 3 to a CTO. Different clinicians and other mental health professionals may become involved in the patient’s care and reports provided by the professionals who were involved in the patient’s care whilst he or she was an in-patient may not address the criteria which the First-tier Tribunal will have to consider at the hearing in accordance with the patient’s status at that time. This is an important factor which judges dealing with case management will need to keep firmly in mind when using case management powers, to ensure that cases are dealt with in a timely fashion and that, when appropriate and possible, hearing dates already fixed are retained for the hearing of the new application or reference. Appropriate and imaginative use of the case management powers should be encouraged to ensure that the relevant professionals are able to provide the required reports in time, notwithstanding the presence of a sometimes rapidly changing landscape in respect of the patient’s status. 

Disposal of FF’s appeal to the Upper Tribunal

61.	The substance of FF’s application for permission to appeal to the Upper Tribunal was a challenge to the First-tier Tribunal’s dismissal decision of 21 May 2009.  That dismissal decision involved an error of law as the reference to the First-tier Tribunal under section 68(2) of the 1983 Act had not lapsed on the making of the CTO.  However, the dismissal decision, made by a tribunal judge sitting alone on the jurisdictional issue, did not involve a substantive consideration of the continuing legality of FF’s detention.  Accordingly FF has no continuing interest in having that decision set aside and does not apply for any specific order or relief.  

62.	In those circumstances we take the view that the appropriate order is to rule that the First-tier Tribunal’s decision of 21 May 2009 involved an error of law but we exercise our discretion not to set it aside, as that would serve no useful purpose on the particular facts of this case.

(Signed on the Original)	

						Mr Justice Walker CP

						HH Judge Sycamore CP

						Upper Tribunal Judge Wikeley  

		(Dated)			2 June 2010

ANNEXES

Annex 1: Chronology in KF’s case

24 February 2009	KF admitted to hospital under s.2 MHA 1983
	
8 March 2009	KF makes section 2 application to First-tier Tribunal (F-tT)
	
16 March 2009	F-tT dismisses KF’s section 2 application
	
23 March 2009	KF admitted under s.3 MHA 1983
	
24 March 2009	KF makes section 3 application to F-tT
	
27 March 2009	KF applies to F-tT for permission to appeal 16 03 2009 decision
	
2 April 2009	F-tT reviews 16 03 2009 decision but takes no action and refuses permission to appeal to the Upper Tribunal 
	
24 April 2009	KF discharged from hospital
	
28 April 2009	KF applies to Upper Tribunal for permission to appeal 16 03 2009 decision
	
18 May 2009	Upper Tribunal refuses KF’s application for permission to appeal on papers
	
9 June 2009	KF applies for reconsideration of refusal of permission to appeal
	
6 August 2009	Upper Tribunal grants KF permission to appeal following oral hearing
	
7 September 2009	KF (and MO) file and serve grounds of appeal
	
8 January 2010	KF (and MO) apply for appeal to be treated as judicial review applications
	
28 April 2010	Oral hearing before Upper Tribunal of appeal before three-judge panel	

Annex 2: Chronology in MO’s case

7 November 2008	MO admitted to hospital under s.2 of the MHA 1983
	
17 November 2008	MO makes section 2 application to F-tT
	
28 November 2008	MO admitted under s.3 of the MHA 1983
	
9 December 2008	MO makes section 3 application to F-tT
	
17 December 2008	F-tT dismisses MO’s section 2 application
	
12 January 2009	F-tT written decision dismissing MO’s section 2 application sent to her solicitor
	
16 January 2009	MO applies to F-tT for permission to appeal 17 12 2008 decision
	
11 February 2009	F-tT refuses to review 17 12 2008 decision and refuses permission to appeal to the Upper Tribunal 
	
3 March 2009	F-tT dismisses MO’s section 3 application
	
12 May 2009	MO applies to Upper Tribunal for permission to appeal 17 12 2008 decision
	
6 August 2009
	Upper Tribunal grants MO permission to appeal following oral hearing
	
7 September 2009	MO (and KF) file and serve grounds of appeal
	
11 September 2009
	MO discharged from hospital	
8 January 2010	KF (and MO) apply for appeal to be treated as judicial review applications
	
28 April 2010	Oral hearing before Upper Tribunal of appeal before three-judge panel

Annex 3: Chronology in FF’s case

15 May 2008	FF admitted to hospital under s.3 of the MHA 1983
	
23 February 2009	Hospital managers refer FF’s case to F-tT under s.68(2) of the MHA 1983
	
7 May 2009	FF discharged from hospital under CTO
	
21 May 2009	F-tT decides that reference to tribunal lapses as a result of the CTO
	
22 May 2009	FF applies for permission to appeal against 21 05 2009 decision
	
2 June 2009	F-tT declines to review 21 05 2009 decision and refuses permission to appeal
	
11 June 2009	CTO is revoked; hospital managers make further reference to F-tT under s.68(7) of the MHA 1983
	
3 August 2009	FF applies to Upper Tribunal for permission to appeal against 02 06 2009 decision
	
16 November 2009	F-tT considers s.68(7) reference but declines to order discharge from hospital
	
15 December 2009	Hospital managers make second reference to F-tT under s.68(2) of the MHA 1983
	
22 December 2009	Upper Tribunal gives FF permission to appeal against 02 06 2009 decision
	
15 March 2010	F-tT considers second s.68(2) reference but declines to order discharge from hospital
	
19 April 2010	FF indicates wish to appeal 21 05 2009 decision and or seek judicial review of 02 06 2009 decision
	
28 April 2010	Oral hearing before Upper Tribunal of appeal before three-judge panel