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Grant v Mental Health Review Tribunal for the Trent Region; R v Mersey Mental Health Re-view Tribunal ex parte O'Hara

QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

MCNEILL J

CO/489/85, CO/204/86, The Times 28 April 1986, (Transcript:Marten Walsh Cherer)

23 April 1986

O Thorold for the Applicant Grant; O Thorold for the Applicant O'Hara; R Ter Harr for the Respondents

Bower Cotton & Bower, Agents for Bryan & Armstrong, Mansfield; RM Broudie & Co, Liverpool; the Treasury Solici-tor 


McNEILL J

There are two matters before the Court. By consent they have been heard together.

Grant v The Mental Health Review Tribunal for the Trent Region comes before the Court by way of case stated, pur-suant to section 78(8) of the Mental Health Act 1983. The question of law for the opinion of the Court is, whether, when a Mental Health Review Tribunal is considering an application made under section 70 of the Act by a patient detained under sections 37 and 41 of the Act, it has the power to make a statutory recommendation for transfer under section 72(3)(a) of the Act to another hospital, and by virtue of section 72(3)(b) to further consider the case in the event of any such recommendation not being complied with.

If that question is answered by the Court in the negative, it is also conclusive against the applicant in the second case, The Queen v the Mersey Mental Health Review Tribunal, ex parte O'Hara. If it is answered in the affirmative, counsel for both respondents concedes that certiorari should go and the matter should be remitted to the tribunal for determina-tion. This concession is made because it is not clear whether or not that Tribunal posed for itself the question posed by the Trent Tribunal, and whether or not it answered it adversely to the applicant. If it did, it is accepted that no reasons were given in the decision: see Ex parte Bone [1985] 3 All ER 330; Ex parte Claxworthy [1985] 3 All ER 699; R v Mental Health Tribunal Ex parte Pickering [1986] 1 All ER 99.

In the O'Hara case the decision and reasons for it as recorded are directed wholly to the question whether or not the applicant should be discharged wholly from the special hospital where he was detained. On this question the decision cannot, I think, be faulted, and from the outset the applicant's solicitor conceded before the Tribunal that he was not in a position to put forward evidence which would justify a discharge.

By his affidavit however he avers that he invited the Tribunal to make a recommendation for the transfer of the ap-plicant to a different hospital. There is some ambiguity about the matter. No evidence has been submitted on behalf of the Tribunal, although in a letter annexed to the solicitor's affidavit it is said that " . . . . it was submitted on our client's behalf that the tribunal did have power to make recommendations to the Home Office albeit that such power is not specifically referred to in the Mental Health Act 1983". In a letter in reply also annexed, the Clerk to the Tribunal wrote as follows: "Following consultation with the president of the Tribunal I should advise you that the Tribunal are not obliged to make recommendations . . . . ".

It may be that the Tribunal understood no more than they were being asked to consider informally making an informal recommendation, which in fact was what was done by the Trent Tribunal in Grant's case, but declined to do so. If this was so, I question whether "reasons" were necessary. However, as I have said, counsel concedes that if the question in Grant's case is answered in the affirmative, the O'Hara case must be remitted for determination.

By way of introduction it is necessary in the most summary form to set out the five ways in which, under the Act, a mentally disordered patient may be detained in a hospital. Section 2 permits the detention for up to 28 days of a pa-tient admitted for assessment. It is unnecessary here, and in relation to the next four, to set out the conditions upon which a patient can be admitted to and detained in a hospital: such conditions are irrelevant to the issue for the Court's determination.

Section 3 provides for admission and detention for treatment. Section 33 lays down special provisions for wards of Court.Section 37 provides for admission and detention by a Court order following a conviction (a "hospital order"). Such a patient is conveniently described as an "unrestricted patient".

Section 41 provides that in specified cases where a Court makes a hospital order, it may in addition, if certain condi-tions are satisfied, further order that the patient (described as a "restricted patient") shall be subject to special re-strictions. Such an order is called a "restriction order". There is also a class of patient who may be subject to a "re-striction direction" under section 49.

Prior to the 1983 Act the power to remove special restrictions or to discharge a restricted patient was in the Secretary of State (see section 66 of the 1959 Act). Under section 73 of the 1983 Act, a Mental Health Review Tribunal is empow-ered (subject to certain controls remaining in the Secretary of State) to direct the discharge of a restricted patient.

The provisions of the 1983 Act under the heading "Discharge of patients" are to be found in sections 72 to 75 inclusive. No argument has been advanced on section 75 and I need not consider it further. Moreover section 74, dealing with patients subject to restriction directions, need not be set out in this judgment, though reference will be made to it.

Sections 72 and 73 read as follows:

"72(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 section 2 above if they are satisfied -- (i) that he is not 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 not 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 section 2 above if they are satisfied -- (i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or any of those forms of disorder of a nature of degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) 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; or (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself.

(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in the case not falling within paragraph (b) of subsection (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 emploitation.

(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direc-tion; 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 compled with.

(4) Where application is made to a mental Health Review Tribunal by or in respect of a patient who is subject to guardship 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.

(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, the tribunal may, if satisfied that the patient is suffering form 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 sections 73 and 74 be-low.

73(1) Where any 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 satisfied -- (a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and (b) 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 subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that sub-section 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 subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that sec-tion; 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) un-der subsection (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 hosptial 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 defer-ment 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 section 42 above."

In both matters before the Court the patient was a restricted patient, whose case fell to be dealt with under section 73. Each applied, as he was entitled to, under section 70 to the Mental Health Review Tribunal, and the appropriate for-malities were complied with and inquiries made.

In the Grant case, where the patient was detained at Rampton (a special hospital), there was evidence before the Tri-bunal that the patient would be accepted on transfer at Claybury Hospital (a local hospital), which the Tribunal would have been minded to recommend. However it considered that it had not the power to do so. It would have done so if it had considered that it did have the power.

In the O'Hara case the responsible medical officer recommended transfer to "a place in an NHS hospital".

The question for the Court is succinctly posed by the case stated in the Grant case: When dealing with a restricted pa-tient, has the Tribunal power to go beyond the express provisions of section 73 (including such parts of section 73 as expressly incorporate provisions of section section 72, and to exercise the power (not expressly incorporated) in section 72(3)(a) and (b)?

Mr Ter Harr for the Tribunals has contended that sections 72, 73 and 74 were a code dealing with the powers of dis-charge of the Tribunal relating to all patients, namely, section 72 to unrestricted patients, section 73 to restricted pa-tients and section 74 to patients subject to restriction directions.

It is necessary to repeat section 72(7), which provides: "Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below."

Accordingly, said Mr Ter Harr, Parliament expressly provided for only a limited part of section 72 to be applied to re-stricted patients. What part was that? It is to be found in section 73(1). I do not need to read this subsection again. It provides for the absolute discharge of a restricted patient if the Tribunal is satisfied (a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) and (b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. For completeness I note that section 73(2) provides for a conditional discharge if the Tribunal is satisfied with (a) and not (b).

Absolute discharge under section 73(1), if the conditions are satisfied, is mandatory; so too under section 73(2). In con-trast section 72(1), in respect of an unrestricted patient, gives first a power to release ("may in any case direct"); second, an obligation to discharge in the case of section 2 patients if the conditions in section 72(1)(a)(i) or (ii) are satisfied; third, in the case of other patients (that is to say under sections 3, 36, 41 and 49), an obligation to discharge if the con-ditions set out in section 72(1)(b)(i) or (ii) or (iii) are satisfied. Sub-paragraph (iii) is excluded from section 73, being rel-evant only to section 3 and not to restricted patients.

So, said Mr Ter Harr, section 73 only incorporates such parts of section 72 as Parliament thought appropriate for re-stricted patients, and indeed section 74(1)(a) in turn incorporates provisions of section 73. Parliament and the drafts-men intended, instead of setting out the terms of section 72(1)(b)(i) and (ii) in section 73, to use the convenient method (or device as it was described perhaps critically in the argument), of incorporating it by reference in section 73: a similar method was adopted in the drafting of section 74.

Mr Thorold submitted that as under section 66(6) of the 1959 Act the Secretary of State was under a duty, when re-quested to do so in accordance with the section, to refer to a Tribunal the case of a restricted patient for their advice, it was at the least surprising that Parliament intended to deprive the Tribunals of that advisory function if such was the proper construction of section 73. But, he said, section 72(3) itself was not limited in terms: it was directed to the powers of the Tribunal under section 72(1). If therefore Section 72(1) were incorporated in section 73 by section 73, section 72(3) preserves that "advisory" role. There was, he said, no "policy" reason for not preserving it, and if the Tribunal may now discharge a patient, why may it not recommend?

The flaw in this argument, it seems to me, is that section 72(1) is not incorporated in section 73. It is only where section 72(1)(b)(i) or (ii) is relevant that there is any such incorporation. Moreover, as Mr Ter Harr pointed out, section 74(1) expressly preserves an advisory role in the case of patients subject to restriction directions, and in section 74(1)(b) ex-pressly gives a power to recommend. If such a power is given in section 72(3) and section 74(1), but not in section 73, it seems to me, as he contends, to be clear that Parliament did not intend such a power when the discharge of restricted patients was under consideration.

On the contrary, said Mr Thorold, the words of section 72(6), which do not exclude restricted patients, are sufficiently wide to include them. Again however I think it is clear that section 72(6) is dealing purely with "machinery". The word-ing of section 72(1) applied its provisions only when the application to the Tribunal was made by or in respect of a pa-tient, and the same limitation appears in section 72(4) and (5). It was accordingly necessary in section 72(6) to extend those preceding provisions to cases where the patient was referred to the Tribunal, as for example by the Secretary of State under section 67.

Mr Thorold mounted an argument based on section 72(5).This subsection, in effect, provides for the "reclassification" of the mental disorder from which the patient is suffering if there has been some change in his condition. This, he said, would be relevant both to unrestricted and to restricted patients. There is no comparable provision in section 73.

However such a provision would be unnecessary. A restriction order is "a further order" upon a hospital order (section 41(1)). A change in a patient's mental condition does not involve any variation of a restriction order (unless of course it entitles him to discharge, when the question does not arise).

On this point Mr Ter Harr was content, without prejudice to taking such points as might arise in other cases and for the purposes of this case only, to accept that the words of section 72(5) were broad enough to include restricted patients, and the matter was not further argued save to the extent that Mr Ter Harr argued, in my view correctly, that even if section 72(5) did apply to restricted patients, it did not support the contention that section 72(3) did.

Section 72(3) authorises a Tribunal to "direct the discharge of a patient on a future date". It is where they do not do that (and ex hypothesi have declined to direct that the patient be discharged), that they may "(a) with a view to facili-tating 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".

It is to be observed that, save in so far as section 72(3) itself includes a limited form of conditional discharge, there is no provision for conditional discharge under section 72 as there is expressly in section 73, where the distinction is drawn between "absolute" and "conditional" discharg. Furthermore there is no provision in section 73 echoing, or in any way similar to, section 72(3).

In my view this plainly indicates the intention of Parliament to repose wider powers on a Tribunal dealing with an unre-stricted patient and to limit the power of a Tribunal in directing the conditioned discharge of a restricted patient by en-acting specific powers in the Secretary of State to "supervise" such a patient who is conditionally discharged: see sec-tion 73(4) and (5). Moreover, in furtherance of this objective under section 73(7), the direction for conditional discharge may be deferred until satisfactory arrangements have been made: a power wholly different from that in section 72(3).

In the Grant case the Tribunal derived assistance from section 73(8), which I have already read.

Section 42 provides for various powers of the Secretary of State relating to restricted patients: for example, in respect of the discharge of patients in certain circumstances.

Mr Ter Harr accepted that section 73(8) does not in terms remove any powers of recommendation or of further con-sideration from a Tribunal, if that power exists. However equally it does not confer any such power and Mr Thorold did not suggest that it did. Moreover section 42 does not purport to continue any such duty or power as was contained in section 66(6) of the 1959 Act.

Whilst for my part I should not go so far as the Tribunal did in saying that section 73(8) "means" that a statutory power to recommend the transfer of a restricted patient is outside the jurisdiction of a Tribunal, it is certainly consistent with that view.

Nothing in the foregoing should be read as inhibiting either the Secretary of State requesting, or a Tribunal offering, in-formal advice. But there is, in my judgment, no statutory power requiring or authorising either.

Finally, what was called the "Rules" point: Mr Thorold drew attention to rule 25 of the Mental Health Review Tribunal Rules 1983 (1983 SI 942). These rules, which were laid before Parliament on 8th July 1983 and came into operation on 30th September 1983 (the day on which the Act itself came into force), were, he said, of weight in the construction of the Act itself.

I should read the whole of rules 24 and 25, which are in a section headed "Decisions, Further Consideration and Mis-cellaneous Provisions":

"24(1) The decision by which the tribunal determines an application may, at the discretion of the tribunal, be an-nounced by the president immediately after the hearing of the case and, subject to paragraph (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 ac-cordance with paragraph (1) would adversely affect the health or welfare of the patient or others, the tribunal may in-stead 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 dis-closed in accordance with rule 12(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.

25(1) Where the tribunal has made a provisional desision, 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 rule 24(4), it appears to the tribunal after making appropriate inquiries of the responsible authority that any such recom-mendation has not been complied with, the tribunal authority may reconvene the proceedings after giving 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 fixed for the hearing."

Mr Thorold argued that Parliament and the draftsman of the rules, with the wording of the Act fresh in their minds, would not have permitted such broad and apparently unlimited use of the word "recommendations", if the intention of the Act had not been to apply the provisions of section 72(3) to restricted patients. He relied particularly on rule 25(2).

As Mr Ter Harr accepted, there is an apparent inconsistency between a determination that a Tribunal cannot, in the case of a restricted patient, exercise the powers conferred by section 72(3), but like the Tribunal -- and as Mr Ter Harr contended -- I am of the view that a statutory instrument cannot confer a jurisdiction not given in the governing stat-ute. I do not think that rule 25(2) is ultra vires. I take the view that its effect is limited in the circumstances in which the statute empowers recommendation and to an extent therefore it is procedural. I do not accept however that the word-ing of the rule is a guide to the construction of the statute.

To conclude, I do not find that the statute, either expressly or by implication, empowers a Tribunal dealing with the case of a restricted patient to exercise the power given to it by section 72(3) when dealing with an unrestricted patient. The answer to the question posed in the case stated in the circumstances therefore is "No".

This conclusion also determines, for the reasons already expressed, the motion in the O'Hara case, which is dismissed.

''Applications dismissed''