HM/2915/2010

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPEAL

Decision and Hearing 

1. This appeal by the appellant succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 14h October 2010 (under reference MM 2010 13753) to the effect that the appellant was not to be discharged. 

2. I refer the matter to the President of the Health, Education and Social Care Chamber of the First-tier Tribunal for directions to arrange an expedited hearing as soon as possible by a completely differently constituted panel in that chamber, which is to make a fresh hearing and decision based on its own assessment of the evidence and in accordance with the legal guidance given below.

3. I held an oral hearing of this appeal on 17th March 2011. The appellant, a hospital patient, was represented by Ms Aswini Weereratne of counsel and Peter Carlin, solicitor, instructed by Scott-Moncrieff, Harbour and Sinclair, Solicitors. The first respondent, a Healthcare NHS Foundation Trust (formerly referred to in these proceedings under the name of the relevant hospital) had indicated by letter of 21st February 2011 from its solicitors, Beachcroft LLP, that it would not attend or be represented at the hearing. It made no comment on the appeal, although it had received copies of all the relevant papers. The Secretary of State for Justice was not represented and on 22nd December 2010 his Department indicated that it had no opinion to offer. It is particularly unfortunate that the Secretary of State took no interest in this case which raised issues of law of general application to be decided. 

Background and Procedure

4. The appellant is a man who was born on 22nd April 1967. He is referred to in this decision as “the appellant” or “the patient”. He accumulated a history of illicit drug use and a lengthy criminal record, mainly for offences of violence. On 15th December 1995 he was admitted to hospital under the provisions of section 2 of the Mental Health Act 1983, suffering from hallucinations and thought disorder. While in hospital following that admission he was dealt with in court for a series of offences of violence committed during 1995 and the court imposed orders under the provisions of sections 37 and 41 of the Mental Health Act 1983. Thus he became a restricted patient. There is no dispute that he suffers from paranoid schizophrenia and from mental disorder for the purposes of the relevant legislation. His principal treatment is a monthly depot injection.

5. The appellant was conditionally discharged from hospital in 2000. While in residential community rehabilitation he was convicted of indecent assault and over the next few years there were several manifestations of what has been referred to as a chaotic lifestyle, often arising from his drug taking and association with other drug takers. These included being stabbed (necessitating surgery) and police action in respect of his house because it was being used for drugtaking. He was repeatedly recalled to hospital for breaching the terms of his conditional discharge and was detained from September 2005 to February 2006 and January to April 2008 before the recall on 22nd June 2010 which is the subject of this appeal. This came after he missed three appointments. He has not taken illicit drugs since that admission. On the date of admission the Secretary of State referred the matter to the First-tier Tribunal, and a few days later his solicitors also applied to the tribunal on his behalf. He is seeking conditional but not absolute release.

6. The First-tier Tribunal considered the matter on 14th October 2010 and decided that the appellant should not be discharged from hospital. On 23rd November 2010 a different judge of the First-tier Tribunal gave the appellant permission to appeal to the Upper Tribunal against that decision of the First-tier Tribunal. On 15th December 2010 I issued case management directions and on 7th January 2011 I directed that there be an oral hearing of the appeal on the earliest possible date after the end of January. It is unfortunate that it has taken so long to have the hearing. 

The Relevant Law

7. The main statutory provisions that are relevant to this appeal are to be found in the Mental Health Act 1983 and, in so far as is relevant are set out below.

s.1(2) In this Act “mental disorder” means any disorder or disability of the mind; and “mentally disordered” shall be construed accordingly …

…

s.1(3) Dependence on alcohol or drugs is not considered to be a disorder or disability of the of the mind for the purposes of subsection (2) above.

…

s. 72(1)(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied – 

(i) that he is then suffering then from mental disorder or 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

(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; or

		(iia) that appropriate medical treatment is available for him …

s. 73(1) Where an application to the appropriate 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 the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if – 

(a)	the tribunal is not satisfied as to the matters mentioned in … (b)(i), (ii) or (iia) of section 72(1) above; and
(b)	the tribunal is satisfied that it is not appropriate for the patient to be liable to be recalled to hospital for further treatment.

s. 73(2) Where in the case of any such patient as is mentioned in subsection (1) above – 
	(a) paragraph (a) of the subsection applies; but
	(b) paragraph (b) of the subsection does not apply

The tribunal shall direct the conditional discharge of the patient.

…

s. 73(4) Where a patient is conditionally discharged under this section – 
	
(a)	he may be recalled by the Secretary of State …; 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.

s. 73(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.

8. The Code of Practice (2008) states (in paragraph 1.3):

“1.3 People taking action without a patient’s consent must attempt to keep to a minimum the restrictions they impose on a patient’s liberty, having regard to the purpose for which the restrictions are imposed”.

This is referred to as the “least restriction principle” and is obviously correct and reflects the jurisdiction of the European Court of Human Rights (eg Witold Litwa v Poland Application 26629/95, 4th April 2000).

“Nature or Degree”

9. The words “nature” and “degree” in section 72(1)(b)(i) are to be read separately so that, for example, even if the degree of mental disorder does not make it appropriate for the patient to be liable to be detained for treatment, the nature of the disorder might make such detention appropriate (R v MHRT ex parte Smith [1998] EWHC 832 Admin).

10. The Code of Practice (2008) suggests (in paragraph 4.3):

“4.3 The criteria require consideration of both the nature and degree of a patient’s mental disorder. Nature refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for the disorder. Degree refers to the current manifestations of the patient’s disorder”.

11. This does not quite reflect what I understand these ordinary words of the English language to mean but I accept this as the basis on which the parties, the expert witnesses and the First-tier Tribunal have dealt with the matter.

12. If the nature of a patient’s illness is such that it will relapse in the absence of medication, then whether the nature is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment depends on an assessment of the probability that he will relapse in the near future if he were free in the community and on whether the evidence is that without being detained in hospital he will not take the medication (Smirek v Williams (200) 1 MHLR 38 – CA; R v MHRT ex parte Moyle [2000] Lloyd’s LR 143 – High Court).

The Expert Evidence

13. The First-tier Tribunal had written and oral evidence from two consultant forensic psychiatrists, Dr E who was the responsible clinician, and Dr N who was an independent expert instructed by the appellant’s solicitors. 

14. As noted by the tribunal there was a large measure of agreement between them. Ms Ms Weereratne has helpfully summarised this in her written submissions of 14th March 2011: the appellant had been free from overt psychotics symptoms of mental illness for over ten years; his depot medication had been administered regularly and his mental state had been stable over that period; the September 2005 recall was because of concern following the patient’s disengagement from services but not because of non-compliance with medication; he had been conditionally discharged after a few months because there had been no resulting relapse in his mental state; the January 2008 recall had been partly due to drug use and partly due to further disengagement, but again there had been no resulting relapse in his mental state and he had been discharged after a few months; he had not suffered a relapse in his mental disorder since his last discharge; his behaviour may have deteriorated but this was not connected to his psychotic illness. 

15. The First-tier Tribunal recorded in paragraph 7 of its decision:

“In cross-examination by Mr Carlin on behalf of the patient both Dr [E] and [the claimant’s local authority social supervisor agreed that what principally concerned the care team was [the appellant’s] chaotic lifestyle and anti-social behaviour. Both agreed that since his last conditional discharge [he] had not suffered a relapse in his mental disorder, and though his behaviour may have deteriorated, that was not connected to his psychotic illness, There can be no denying therefore on the available evidence that [his] breaches of condition and his consumption of illicit drugs were neither caused by his mental illness nor causative of any deterioration in his mental well being. There is nothing in his past history upon which the Tribunal could make a finding that his paranoid schizophrenia was drug induced, and given that he has had no signs of relapse over many years of drug taking, and no apparent deterioration in his mental health, there is no material on which the Tribunal could find that if he continued to consume illicit drugs he would be likely to suffer a relapse, provided he continues to take his depot medication.”

16. In these circumstances the First-tier Tribunal recorded that both Dr E and Dr N agreed that the degree of the appellant’s disorder did not warrant detention in hospital. The issue was whether the nature of his schizophrenia made further detention appropriate in light of his persistent drug taking and chaotic lifestyle (paragraph 8).

17. On the evidence, the tribunal found (paragraph 12) that the appellant had been a model patient. He was polite and friendly, interacted well with staff and other service users, was co-operative and engaged with the therapies, complied with medication, exhibited no symptoms of psychosis and posed no management problem.

18. Nevertheless, according to the tribunal, Dr E’s view was that it remained very likely indeed if the appellant went back into the community he would maintain his commitment to lead a structured way of life for only a short time and within six months or so “it is almost inevitable that he will revert to his dysfunctional and chaotic lifestyle” (paragraph 12). 

19. Ms Weereratne argues that there is no such evidence recorded in the tribunal’s decision or in the written reports from Dr E, but in my view the tribunal was entitled to record its understanding of Dr E’s evidence in the way that it did and I am prepared to assume that that is an accurate reflection of Dr E’s opinion.

20. Dr N’s opinion was more optimistic. The appellant had demonstrated an ability to comply with medication despite drug taking and a chaotic lifestyle for ten years and it was very unlikely that that he would in fact become non-compliant in the future and relapse. It was disproportionate to detain him in hospital any longer. His disorder could be treated with medication in the community with relevant supervision.

The First-tier Tribunal 

21. In light of the above, the First-tier Tribunal identified the issue as being “whether the nature of his schizophrenia did make a further period of detention in hospital appropriate in light of his persistent drug taking and lifestyle” (paragraph 8). The tribunal acknowledged that it would not be lawful to detain the appellant simply because he behaved in an anti-social and chaotic way, or in order to “reform” him, or because he had breached the conditions of his discharge and was very likely to do so in the future (paragraph 9) .

22. The tribunal was influenced particularly by Dr E’s experience (as the responsible clinician) of the patient’s inability to maintain a commitment to lead an ordered life and “we conclude therefore that that there is still a very significant chance that within the year, were [the patient] now to be discharged, all the professionals would be facing the same situation then as now and having to decide whether to recall him for the fourth time” (paragraph 13). It referred to “the risk that [the patient’s] chaotic lifestyle, continued consumption of drugs, and failure to keep appointments with his supervisors will eventually lead to non-compliance with his medication” (paragraph 16 – my emphasis). It then referred to Dr E’s “evidence that in such an event there was a risk of relapse after a couple of months of non-compliance”.

23. If this is correct, and I cannot find that specific evidence from Dr E, the tribunal was nevertheless envisaging a scenario of release, followed by six months before the appellant had resumed a chaotic lifestyle (which risk would not by itself justify continued detention), eventually leading to non-compliance with medication, with a risk of relapse in his mental state after at least two months of non-compliance. This would be a lengthy period in view of the meaning of “nature” discussed above.

24. In paragraph 21 of its decision the First-tier Tribunal stated:

“21. In the view of the Tribunal there is still useful and necessary and potentially beneficial work to be done with [the appellant] in hospital. Although he has completed substance misuse sessions and has made helpful contributions to group discussion, his insight into the risks associated with drug taking in the context of relapse prevention is still weak, He is still not committed to drug counselling in the community. And again, although he can organise his life in hospital and engage in activities, he is far from being able to accept responsibility for doing the same when he is on his own without the structure of the hospital to support him. Long term rehabilitation with graduated escorted and unescorted leaves into the community, where his ability to avoid risky behaviours can be monitored, has yet to be tested and [Dr E] said that a further period in hospital will be a real challenge to his commitment to show that he can provide a structure for himself”.

Argument and Conclusions

25. There was in fact no evidence of past non-compliance with medication while released from hospital (although there was evidence of forgetting appointments) and in the context of what the First-tier Tribunal said in the paragraph just quoted, it is hard to resist Ms Weereratne’s argument that the tribunal was continuing the appellant’s detention for the purposes of addressing his drug taking and chaotic life style and that especially in view of the provisions of section 1(3) of the Mental Health Act 1983 (in relation to dependence on drugs) this was not a permitted purpose.        

26. I also observe that paragraph 21 of the First-tier Tribunal’s decision is something of a non-sequitur. If the risk is of what might happen eventually, it is hard to see how this is tested by the periods of leave referred to in that paragraph. Also, that line of reasoning relates to the nature of the appellant’s likely lifestyle on release, in particular drug taking and chaos, and not to the risk of non-compliance with medication and relapse in his mental state.

27. I conclude that the decision of the First-tier Tribunal was made in error of law and must be set aside because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, because it did not establish that in these circumstances it had complied with the “least restriction principle”, because of the irrationality in paragraph 21 of its decision, and because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. In these circumstances the First-tier Tribunal could not have been properly satisfied that the conditions in sections 72(1)(b) and 73(1)(a) of the Mental Heath Act 1983 had been met.

H. Levenson
Judge of the Upper Tribunal 

23rd March 2011