66. The judge concluded that the tribunal’s decision was unreasonable in the Wednesbury sense because no reasonable tribunal could have made an order that H should be discharged immediately into the community without at the very least being satisfied that suitable after-care arrangements were in place. The evidence before the tribunal could not have given it confidence that such arrangements had been or would be made. The judge referred to the evidence of Ms Ariola which I have mentioned at paragraph 15 above, and to the fact that the tribunal had little or no information from the section 117 authorities. The question of after-care was fundamental to the issues before the tribunal. In these circumstances, the tribunal should not simply have ordered immediate discharge. It should have either deferred discharge to a future date under section 72(3) or adjourned and called for information from the section 117 authorities. The course that it took was an unjustified ‘step in the dark’.

67. In my view the judge was right. This was a case in which, if the criteria for discharge were to be met, it was obvious that suitable after-care should be available. H was a man who had been detained in Ashworth for about six years. He had a history of serious violence, and previous attempts to release him into the community had been unsuccessful. The tribunal accepted that H was still suffering from schizophrenia. The issue was whether it was of a ‘nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment’: section 72(1)(b)(i) of the Act. The tribunal was also required to have regard to ‘the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard against serious exploitation’: section 72(2). The answer to the question whether H’s mental illness was of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment was (to put it no higher) very likely to be heavily influenced by the after-care arrangements that were to be provided following his discharge. I refer to the observations of Lord Bridge of Harwich in R v Oxford Regional Mental Health Review Tribunal ex p Secretary of State for the Home Department [1988] AC 120, 127D, about the power under section 73(2) to order the conditional discharge of restricted patients. As Miss Morris points out, the tribunal cannot assume that any, still less any suitable, after-care services will be provided, since section 117 does not impose an absolute duty on the health and social services authorities to provide the services. The duty is no more than to use reasonable endeavours to provide after-care services: see R (K) v Camden and Islington Health Authority [2002] QB 198.

68. In agreement with the judge, I would therefore hold that H was a patient in respect of whom it was essential that the tribunal considered the availability of suitable after-care services when deciding whether to order his immediate discharge from hospital. If the tribunal had any doubt as to whether such services would be available, it should have adjourned to obtain any necessary information. I regard the alternative of a deferral under section 72(2) as less satisfactory. Section 72(3) authorises a tribunal to ‘direct the discharge of a patient on a future date specified in the direction’. Under this subsection, therefore, the tribunal must specify a particular date for discharge. But if the tribunal is in doubt as to whether suitable after-care arrangements will be made available, it is difficult to see how it can specify a particular date for discharge. In cases of doubt, the safer course is to adjourn. On the facts of the present case, the tribunal could not reasonably have assumed that the services would be provided as soon as H was discharged into the community. For that reason alone, in my opinion the tribunal’s decision was one which no reasonable tribunal could properly have made.

69. I would endorse the general observation of the judge:

‘In general, in a case in which after-care is essential, and satisfaction of the discharge criteria depends on the availability of suitable after-care and accommodation, as in H’s case, a tribunal should not direct immediate discharge at a time when no after-care arrangements are in place and there is no time for them to be put in place. The tribunal should consider whether to exercise its power under section 72(3A) to recommend that the RMO should make a supervision application. If it considers that to be inappropriate (and it should be borne in mind that the previous unwillingness of an RMO to make an application may not persist in the face of the tribunal’s views) or unnecessary, and there is uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends, the tribunal should adjourn pursuant to rule 16 to enable them to be put in place, indicating their views and giving appropriate directions: cf Ex p Hall [2000] 1 WLR 1323, per Kennedy LJ at 1352D ’

…

75. Mr Walker submits that the judge was wrong to hold that the reasons of the tribunal were inadequate. He says that the judge adopted too strict an approach. It is by no means unusual to find a tribunal decision containing reasons as brief as those in this case. The judge failed to take sufficient account of the fact that this decision was published to an informed audience who were aware of the issues and the details of the case. He also failed to pay sufficient regard to the practical realities of the workload imposed on tribunals and the limited resources that are available to them. The reality is that tribunal hearings are held at hospitals, members are part-time, and they do not have a wealth of administrative back-up to assist them. The judge found (correctly) that the tribunal gave adequate reasons for being satisfied that the discharge criteria were met, but he was wrong to hold that they were required to give any reasons for not deferring discharge until after-care arrangements were in place. This was a ‘subsidiary’ question, and not part of the decision ‘by which the tribunal determines an application’: see rule 23(2).

76. I cannot accept Mr Walker’s submissions. I am in no doubt that the reasons given by the tribunal in this case were inadequate. But before I explain why, I want to make two preliminary general comments. The first concerns Mr Walker’s reference to the problems of excessive workload and inadequate resources. If tribunals do not have the time and back-up resources that they need to discharge their statutory obligation to provide adequate reasons, then the time and resources must be found. I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not, and the sufficiency of resources is irrelevant to that question. The adequacy of reasons must be judged by reference to what is demanded by the issues which call for decision. What is at stake in these cases is the liberty of detained patients on the one hand, and their safety as well as that of other members of the public on the other hand. Both the detained persons and members of the public are entitled to adequate reasons.

77. I note in passing that the Rules require reasons to be given within seven days of a decision. That is not an unreasonable period within which to produce adequate reasons. I note further that the handbook issued to tribunal members in September 2000 contains the following advice about reasons:

‘Tribunals must give detailed reasons, based on the evidence and the logical application of sound judicial principles, for their decisions (this has been given substance by decisions in the High Court). The reasons need not be elaborate but they must deal with the substantive points, which have been raised and must show the parties the basis on which the tribunal has acted. It is not sufficient merely to repeat the statutory grounds. It is not usually necessary to review the evidence at length. It is important to say which evidence has been accepted and often which has been rejected. It is not usually necessary to give lengthy reasons for acceptance or rejection of evidence. The reasons for the decision will be agreed by the tribunal members at the conclusion of the hearing, put in writing and signed by the president.’

78. This correctly states that reasons should be given dealing with the ‘substantive’ points. It does not expressly state, but it does imply, that reasons must be given for the acceptance or rejection of disputed evidence, although it is not usually necessary for these to be lengthy. In my opinion this advice is both useful and consistent with the law.

79. My second general preliminary comment concerns the significance of the so-called ‘informed audience’ point. This was not identified in English as being relevant to the adequacy of reasons given by a judge of a lower court. And yet, in ordinary civil litigation, a judgment will usually be given to an audience that is at least as informed as the audience at a tribunal hearing. (I leave out of account those few cases where a judgment may be reported on the grounds that it is of public interest.) Although it is true that, in some cases, the interests of others who are not parties to civil litigation may be affected by a court decision, it is at least arguable that the ‘informed audience’ point has less force in relation to a mental health review tribunal decision than to a decision by a lower court in the civil justice system. First, the ASW considering whether to make an application for readmission pursuant to section 3 may well not have any prior knowledge of the case, let alone the reports on the patient and the oral evidence and argument that was deployed before the tribunal. In the light of von Brandenburg it is essential that an ASW who is contemplating making such an application should know the facts and circumstances which a tribunal took into account when deciding to discharge a patient, and the reasons for its decision. Secondly, it is highly questionable whether a patient will always be able to supplement exiguous tribunal reasons with an accurate recollection of the evidence and arguments before the tribunal when he later considers a decision. Accordingly, I do not accept that the ‘informed audience’ point can properly be relied on to justify as adequate a standard of reasoning in tribunals which would not be regarded as adequate in a judgment by a judge. It does not follow that tribunals are obliged to produce decisions which are as long as judgments by a judge often tend to be. Far from it. A brief judgment is no less likely to be adequately reasoned than a lengthy one.

80. Against the background of these two general comments, I shall now identify the two principal reasons why I consider that the tribunal’s reasons were inadequate in this case. First, as often happens, the tribunal was required to resolve a difference of opinion between experts as to whether the patient should be discharged. In such cases, it is important that the tribunal should state which expert evidence (if any) it accepts and which it rejects, giving reasons. This is as important in a case where the tribunal rejects evidence in favour of discharge as it is in a case where the tribunal rejects evidence which advocates continued detention. It is not enough for the tribunal simply to state that it prefers the evidence of A and B to that of C and D. It must give reasons. As the handbook states, these may be brief, but in some cases something more elaborate is required. It must at least indicate the reasoning process by which it has decided to accept some and reject other evidence. What this court said in Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [2000] 1 WLR 377, 381–382 is as apt in relation to the decisions of tribunals as it is to lower courts generally. In giving the judgment of the court, Henry LJ said, at p 382, that the reach of what is required to fulfil the duty to give reasons depends on the subject matter:

‘Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.’

81. In my view this passage applies with even greater force where the tribunal decides to reject most of the expert evidence and adopt the minority view. The present case is a graphic illustration. Here, there were ranged against Dr Williams several other highly qualified doctors who had written apparently well-reasoned reports. All of these other doctors said that H should not be discharged, although they expressed differing views as to whether he should remain at Ashworth or be transferred to an MSU. Even Dr Williams advised in his report that H should be made subject to a supervision application under section 25A, saying that ‘supervised discharge is the most appropriate step forward for his own health and safety and for the protection of others’. Such an application can only be made in respect of a patient who is liable to be detained in a hospital for treatment. It was only at the hearing, when he realised that the RMO would not make a supervision application, that he stated unequivocally that H should be discharged from liability to detention. There was, therefore, powerful, if not overwhelming, expert evidence against discharge. If the tribunal decided to reject all of that evidence it was obliged to give cogent reasons for doing so. It is to be supposed that, before deciding to reject the evidence of the experts who opposed discharge, it carefully considered each report as well as the oral evidence given by Dr Croy. In his first witness statement, Mr Simms says that the tribunal did not find Dr Croy to be an ‘impressive witness’. As regards the reports of the other doctors, he says that it carefully considered the report of Dr Heads, but he makes no reference to its consideration of the reports of the other doctors, and, as has already been seen, there is no reference in the written reasons to any of the doctors (apart from Dr Williams). The reasons given for deciding to accept the evidence of Dr Williams in preference to that of the other experts were wholly inadequate. The other doctors were aware of the four points that seem to have impressed the tribunal (see paragraph 19 above), and yet advised as they did. In view of (a) the number of doctors who disagreed with Dr Williams, including the two independent doctors instructed on behalf of H, (b) the fact that previous attempts to discharge H into the community had failed, and (c) the fact that he had not experienced life in the community for a number of years, the tribunal was required to explain carefully why it felt able to reject the opinions of the other doctors.

82. My second reason is that I do not accept Mr Walker’s submission that the tribunal was not required to give any reasons for not adjourning in order to see whether suitable after-care arrangements, or not making an order for discharge at a deferred date. As I explained at paragraph 67, the question of what after-care services will be available in the community is relevant to the issue of whether the statutory criteria are met. That was certainly the case here. Mr Walker does not suggest otherwise. In my view the judge was right to say that the tribunal took a step in the dark. And yet, it gave no reasons for doing so. Ms Ariola’s report was sufficient to put it on notice that the local authority might be unable or unwilling to provide after-care services to H. In my view the judge was right to hold that the reasons given by the tribunal were inadequate.