19.96R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, (2002) 5 CCLR 390
It had been irrational for the tribunal to direct discharge without ensuring that adequate after-care arrangements would be in place and it had been unlawful not to give reasons why some evidence was preferred to other evidence; however, the authorities should have applied for judicial review and a stay; their further application for H’s detention was unlawful given that it was for the same reasons that the tribunal had rejected
Facts: the MHRT directed H’s discharge, although no after-care arrangements were in place. A few days later H was re-detained. The hospital applied for a judicial review of the MHRT’s decision. H applied for a judicial review of the hospital’s and social worker’s decision to re-detain him.
Judgment: the Court of Appeal (Simon Brown, Mummery and Dyson LJJ) held that the MHRT decision had indeed been Wednesbury irrational and, also, that it was unlawful because of the MHRT’s failure to record adequate reasons for explaining why it preferred some rather than other evidence. However, it also been unlawful to re-detain H in circumstances where, on analysis, the reasons for that were the same as those considered and rejected by the MHRT. In such a case, the appropriate course was to apply for a judicial review of the MHRT’s decision. In an appropriate (strong) case, the Administrative Court could grant a stay of an order discharging the patient, including (Simon Brown dissenting on this point) after the patient had left the hospital:
48. To summarise, I consider that there is jurisdiction to grant a stay even after the decision of the tribunal has been fully implemented. But the jurisdiction should be exercised sparingly, and where it is exercised, the court should decide the judicial review application, if at all possible, within days of the order of stay.
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59. It seems to me that, when considering whether to resection a patient who has only very recently been discharged by a tribunal, the question that the professionals must ask themselves is whether the sole or principal ground on which they rely is one which in substance has been rejected by the Tribunal. If it is, then in my view, they should not resection. In deciding whether the grounds on which they rely are ones which have been very recently rejected by the tribunal, they should not be too zealous in seeking to find new circumstances. As in the present case, the tribunal will have made an assessment of the degree of the patient’s insight into his mental problems, his willingness to comply with the treatment regime in the community, his willingness to engage with doctors, nurses, social workers and so on. If experience of what happens when he is released shows that the tribunal seriously misjudged the patient, then that might well be sufficient evidence of new circumstances: a straightforward application of the ‘proof of the pudding’ principle. But if the professionals form the view that the tribunal’s assessment was wrong not on the basis of what happens upon release, but simply on the basis of their assessment at interview before the patient has actually left the hospital, then it may well be difficult for them reasonably to justify a resection on the basis of circumstances of which the tribunal was unaware.
60. Nothing that I have said affects the ability of the professionals to resection a patient if he does or threatens to do something which imperils or might imperil his health or safety, or that of members of the public.
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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 they prefer the evidence of A and B to that of C and D. They must give reasons. As the Handbook states, these may be brief, but in some cases something more elaborate is required. They must at least indicate the reasoning process by which they have decided to accept some and reject other evidence. What this court said in Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377, 381G–382D is as apt in relation to the decisions of tribunals as it is to lower courts generally. …
82. My second reason is that I do not accept Mr Walker’s submission that the Tribunal were 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, they gave no reasons for doing so. Ms Ariola’s report was sufficient to put them 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.