The Upper Tribunal and Mental Health Cases Edward Jacobs Judge of the Upper Tribunal

What it used to be like There were five structures: a dedicated appeal structure – social security and employment an appeal to the Court of Appeal – some financial appeals an appeal to the High Court – special educational needs judicial review – mental health statutory review – asylum/immigration

What it is like now – there is a system The First-tier Tribunal: – essentially a fact-finding and fact-applying body – with expert members if appropriate – and with power to correct its own mistakes (review) The Upper Tribunal: – hears appeals on points of law – with permission – and with limited power of review The Court of Appeal: – hears appeals on points of law – with permission – on limited second appeal grounds The Supreme Court

Other benefits To provide consistent (but not necessarily uniform) rules of procedure: – core common rules with modifications to suit the needs of individual jurisdictions – written by the Tribunal Procedure Committee, not the Departments For administrative efficiency: – single administration and common hearing centres – assignment rather than judicial appointments within tiers To develop a coherent body of administrative law

What is appealable? Section 11 TCEA: Any party has a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. LS v London Borough of Lambeth [2010] UKUT 461 (AAC) held that any decision was appealable except an excluded decision. But what is a decision? Good question. NB The same analysis applies to section 13.

The powers of the Upper Tribunal Section 12 TCEA: (2)The Upper Tribunal— (a)may (but need not) set aside the decision of the First-tier Tribunal, and (b)if it does, must either— (i)remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii)re-make the decision.

How the Upper Tribunal works Teams of judges Supported by dedicated registrars Initial scrutiny by registrar File makeup Referred to lead judge Allocation by lead judge – to ensure consistency Oral reconsideration Three judge panel

The Caselaw Issues of Substance

Mental disorder Is it justiciable? ‘any disorder or disability of the mind’: section 1(2) MHA 1983 DL-H v Devon and SoS [2010] UKUT 102 (AAC) – ICD-10 AND DSM-IV had different criteria for same condition – did not affect outcome in that case – DSM-IV Introduction (page xxiii) says: ‘In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a “mental disorder”, “mental disability”, “mental disease” or “mental defect”.’ – what criteria should be used in borderline case?

Protection - causation Benefit from detention is not sufficient Disentangle effects of personality and life- style from mental disorder CM v Derbyshire and SoS [2011] UKUT 129 (AAC) – solution found in ‘nature’ of patient’s condition – continued detention can only be justified by risk of relapse if it would occur in the near future

Treatment Is this a meaningless condition? MHA 1983 permits detention for ‘medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more its symptoms or manifestations’: section 145(4) Code of Practice, paragraphs , provide a framework but do not dictate outcome

Treatment The patient who refuses to engage A tactic? MD v Nottinghamshire [2010] UKUT 59 (AAC): the milieu of the ward DL-H v Devon and SoS [2010] UKUT 102 (AAC): ‘The tribunal must investigate behind assertions, generalisations and standard phrases. By focusing on specific questions, it will ensure that it makes an individualised assessment for the particular patient. What precisely is the treatment that can be provided? What discernible benefit may it have on this patient? Is that benefit related to the patient’s mental disorder or to some unrelated problem? Is the patient truly resistant to treatment?’

Treatment DOLS v Detention DN v Northumberland and Wear [2011] UKUT 327(AAC) DOLS can in theory avoid the need for detention BUT is it feasible in practice?

Treatment Issues of consent SH v Cornwall [2012] UKUT 290 (AAC) – Issues of consent to treatment are outside the powers of the tribunal – Subject to control through the civil courts

Treatment Non-statutory recommendations EC v Birmingham and Solihull [2012] UKUT 178 (AAC) – No right to invite a tribunal to make a recommendation – No appeal against a refusal to hear representations or make a recommendation – Some possible limited exceptions (paragraph 27)

Discharge Deferred conditional discharge DC v Nottinghamshire and SoS [2012] UKUT 92 (AAC) Adjournments are for information gathering Deferred conditional discharge is for those who are ready for discharge if arrangements can be made

The Caselaw Issues of Procedure

Access to justice - disclosure Dorset v MH [2009] UKUT 4 (AAC) – Documents provided in confidence are not subject to disclosure Usual approach is that confidentiality is relevant at two stages: – in showing that the public interest head for non- disclosure is engaged; and – in the exercise of the discretion whether to order disclosure

Access to justice – effective participation RM v St Andrew’s [2010] UKUT 119 (AAC) – patient being covertly medicated could not instruct his representatives effectively – how could the hearing be conducted without his knowledge? Knowledge of the gist of the case to answer is fundamental – Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269; Tariq v Home Office [2010] ICR 1034 at [43]–[44]; Bank Mellat v Her Majesty’s Treasury [2010] 3WLR 1090 at [18] and [21]; R v R(L) [2011] 1 WLR 359

Open justice AH v West London and SoS [2010] UKUT 264 (AAC) and [2011] UKUT 74 (AAC) – public hearing depends on all circumstances of case – practical considerations only relevant if burden is truly disproportionate

Challenges to case management decisions TR v Ludlow [2011] UKUT 152 (AAC) – If a party applies for permission to appeal against a case management decision, the First-tier Tribunal should normally continue with its proceedings

Outstanding Issues Adjournments only to a fixed date: – Did MHRTWales have a fixed policy? – If so, was it lawful? Sections 2 and 3: – Different tests? Statutory recommendations – Did MHRTWales have a fixed policy? – If so, was it lawful?