SLL v Priory Healthcare Limited [2019] UKUT 323 (AAC)

Inadequate reasons for not absolutely discharging The patient challenged the tribunal's decision to grant a conditional, rather than absolute, discharge. (1) Ground 1: Failure properly to apply the two-stage process required by s73(1) and (2). The MHRT had decided (under s73(1)) that the s72(1)(b)(i) (appropriateness) test was not met, and had moved straight to s73(2) (absolute or conditional discharge) without considering s72(1)(b)(ii) (necessity) or s72(1)(b)(iia) (appropriate treatment). The UT decided that the statute permitted the tribunal to stop once it had decided that it was not satisfied of the first s72 test. However, s73(2) required the tribunal to make findings on substantially similar matters, albeit on a forward-looking basis, and to make a decision on the type of discharge on the basis of those findings. Without express findings (in particular in relation to potential medical treatment for any psychotic condition the patient may suffer from) and an explanation of how the relevant factors were weighed (including the two factors discussed below) it was not possible to be sure how the tribunal reached its decision. The UT gave guidance in paras 33-35 on the findings likely to be required when considering s73(2), and in para 47 on the appropriateness of treatment with no realistic prospect of therapeutic benefit. (2) Ground 2: Failure to give adequate reasons. The Appellant had presented credible expert evidence that risk could be managed by future Part 2 detention rather than the recall power, so it was incumbent on the Tribunal to explain why it was not persuaded by that evidence: instead, it had merely quoted another doctor's evidence (which stated that recall would be available but did not grapple with the Part 2 issue) and said that this evidence was "more apt". The Appellant had also argued that the setting of a psychiatric hospital was positively harmful, and the tribunal had failed to explain its rejection of this argument. Taken as a whole it was not adequately clear why the tribunal was not satisfied that it was inappropriate for the Appellant to continue to be liable to recall to hospital for further treatment.

Extracts from judgment

Assessing the appropriateness of the Appellant remaining liable to recall

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33. What the Tribunal had to decide is something different: it had to assess the likelihood of the Secretary of State requiring to exercise his power of recall in respect of the Appellant in the future, or the effect which knowledge of the Secretary of State having the power of recall would have on the Appellant. Without such an assessment it would be in no position to assess the appropriateness of the Appellant’s liberty being fettered by remaining subject to it.

34. Given that the power of recall in respect of a conditionally discharged patient can only be exercised for the purpose of the patient receiving further treatment, and given that the patient may be recalled to hospital only (and nowhere else) it is difficult to see how the question of the appropriateness of a patient continuing to be subject to the power of recall could properly be determined without the tribunal making findings about:

a. whether the patient now suffers from a mental disorder which may be expected to endure or has, now or in the past, suffered from a mental disorder which may be expected to recur;

b. if the answer to the question posed in paragraph a. is “yes”, how likely it is that the patient might experience symptoms of such mental disorder in the future;

c. what kind of treatment might be available in hospital to treat such mental disorder;

d. what can reasonably be expected to change in consequence of the patient receiving such treatment in hospital (in other words, what purpose is to be served by the recall?); and

e. (given the “least restrictive” [principle] that informs the MHA regime) whether any alternative strategies are available which might manage the risks associated with future deteriorations in the patient’s mental health effectively but which place less restriction on the patient’s liberty than the patient continuing to be subject to the power of recall.

35. Such findings would, no doubt, be based on evidence of the patient’s past experience (of the chronicity of his mental disorder, its symptoms, its response to treatment, the prognosis and the attendant risks), but the findings themselves must be forward-looking in nature.

Medical treatment

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47. The Mental Health Act 2007 replaced the “treatability test” with the “appropriate treatment test”, and the MHA definition of “medical treatment” hinges on the purpose for which it is administered rather than its effect. In written submissions to the Tribunal the Secretary of State opposed discharge on the basis that while the clinical opinion was that the appellant’s mental disorder was untreatable the proper test did not require an assessment of the efficacy of the treatment available or of the appellant’s willingness to participate in it. However, it is difficult to see how a form of medical treatment which is not believed to have any realistic prospect of achieving any therapeutic benefit to a patient whatsoever could properly be considered “appropriate” for him even if it fell within the MHA definition of “medical treatment”.

Heavy workload of MHTs

101. I cannot accept that what is required of a judge’s reasons varies according to the particular circumstances of the judge, a particular part of the justice system, or indeed of the justice system as a whole. The reasons must be looked at objectively to assess whether a reader would be able to understand how and why the material points were decided as they were. If the reasons would have been inadequate if produced by a well-resourced judge with sufficient time to write the judgment they must also be inadequate if produced by a judge with a frenetically busy list and failing IT. The circumstances of the judge might explain why inadequate reasons were produced and they might make us more sympathetic to the writer of them, but they can’t render inadequate reasons adequate.

Note

There is a minor error in para 99, as on conditional discharge there is no "continued requirement for the responsible clinician to obtain the permission of the Secretary of State to matters such as leave and transfer" (though this would apply again on recall).

Case title

The case is on Bailii as: SLL v (1) Priory Health Care and (2) Secretary of State for Justice (Mental health).