Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

DECISION

The decision of the Mental Health Review Tribunal for Wales made on 22 March 2011 did not involve the making of an error on a point of law.

DIRECTION

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

 

Reasons for Decision

A.          the issues

1.           This case raises two issues. First: what decisions have been taken and on what basis? Second: does the tribunal have jurisdiction to decide whether a person who purports to be a patient’s nearest relative is ordinarily resident in the United Kingdom?

B.          the parties

2.           The appellant is DP, who is a mental patient detained under section 3 of the Mental Health Act 1983. (All references are to that Act.) The respondent is the detaining authority. His father is WP, who claims to be his nearest relative.

C.          history

3.           It has been difficult to understand precisely what has happened in this case. I am grateful for the submission provided on behalf of the detaining authority by Richard Jones, a Consultant with the authority’s solicitors, Morgan Bruce LLP. DP’s solicitors, RMNJ, have not replied to that submission.

4.           DP has been detained under section 3 since 17 December 2010. The statutory form under which he was detained said that he did not have a nearest relative. On 5 March 2011, WP made an order under section 23(2)(a) for his son’s discharge. The responsible clinician acted on the assumption that WP was DP’s nearest relative. As the application appeared to come from DP’s nearest relative, the clinician had to decide whether ‘the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself’ (section 25(1)). The clinician formed the opinion that he would and accordingly he barred the discharge on 6 March 2011.

5.           Meanwhile on 9 March 2011, Mr Jones was consulted by the authority. He advised that WP was not DP’s nearest relative as he was not ordinarily resident in the United Kingdom, as required by section 26(5)(a) of the Act. On that basis, he advised that both the application for discharge and the responsible clinician’s barring were of no force or effect. WP was told of this on 16 March 2011.

6.           On 17 March 2011, an application to the tribunal under section 66(1)(g) was signed and sent to the tribunal. The tribunal replied on 22 March 2011 that as WP had not been accepted at D’s nearest relative, he was not entitled to apply to the tribunal. The President of the tribunal wrote personally to RMNJ on 28 March 2011 to explain this ruling in more detail. On 11 April 2011, she gave permission to appeal to the Upper Tribunal. RMNJ confirmed to me that DP is the appellant and their client.

D.          analysis

7.           Section 77 of the Act limits the applications that the tribunal may consider:

77 General provisions concerning tribunal applications.

(1) No application shall be made to the appropriate tribunal by or in respect of a patient under this Act except in such cases and at such times as are expressly provided by this Act.

The right to apply to the tribunal under section 66(1)(g) arises if:

(g) a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment or a community patient; …

That provision in turn assumes an order for discharge under section 23, which in this case was based on WP’s status as DP’s nearest relative.

8.           The effect of those provisions in the circumstances of this case is that the tribunal only had jurisdiction if the application was made at a time when there was a report under section 25. However, that report had been withdrawn before the application was sent to or received by the tribunal. Accordingly, the tribunal had no jurisdiction to deal with the application and was right to rule that it was outside its jurisdiction.

9.           I do not have to decide whether the tribunal would have had jurisdiction if the application had been made at a time the report was still in existence. The issue would then be whether the tribunal’s jurisdiction included the precedent fact of WP’s status as a nearest relative. The tribunal’s powers on an application under section 66(1)(g) are provided by section 72:

72 Powers of tribunals.

(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient , the tribunal may in any case direct that the patient be discharged, and-

…

(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-

…

(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.

That might suggest that the tribunal only has power to decide the issue of dangerousness and that other issues have to be decided elsewhere. There is some authority that the tribunal has no jurisdiction to decide other issues. In Ex parte Waldron [1986] QB 824 at 846, Ackner LJ said:

as the opening words of section 72 make clear, the jurisdiction given to the tribunal is limited to entertaining applications made by a person who is liable to be detained under the Act. The tribunal’s powers are thus confined to granting or refusing relief to persons liable to be detained. It has no power to consider the validity of the admission which gave rise to the liability to be detained.

That reasoning was approved by the House of Lords in R (von Brandenburg) v East London and The City Mental Health NHS Trust [2004] 2 AC 280 at [9(3)]. But, as Lord Bingham pointed out, the issue for the tribunal under section 72(1)(a)(i) and (b)(i) is whether the patient is ‘then suffering’ from a mental disorder. That focuses attention on the present, not the past. The same is true of section 72(b)(iii). However, those cases do not deal with issues going to the validity of the application to the tribunal, as opposed to the validity of the patient’s original detention. That issue must await a case in which it arises.

E.           disposal

10.        I dismiss the appeal.

 

Signed on original on 21 September 2011

Edward Jacobs Upper Tribunal Judge