KW, R (on the application of) v Avon and Wiltshire Mental Health Partnership NHS Trust & Anor

A Mental Health Review Tribunal must give adequate and intelligible reasons for discharging a detained patient. Its reasons must identify the issues critical to the decision and explain how the evidence, including expert evidence, was resolved. A decision unsupported by the evidence may be perverse, although the court should avoid deciding that issue without full argument. Fairness requires parties to be informed of significant findings made by the Tribunal’s medical member and given an opportunity to comment. Where an unlawful discharge decision is quashed, it has no legal effect and the patient’s previous detention regime revives. The application should ordinarily be remitted to a freshly constituted Tribunal.

KW was detained under section 2 of the Mental Health Act 1983. The Mental Health Review Tribunal directed his discharge after concluding that it was not satisfied that he had a mental disorder, but gave no reasons for rejecting the only psychiatric evidence before it.

KW challenged subsequent detention decisions under sections 5 and 3. The Trust also challenged the Tribunal’s discharge decision. KW accepted that the Tribunal’s decision should be quashed and that his challenge to the subsequent detention decisions should be withdrawn. The issues concerned the legality of the Tribunal’s reasons, the evidential basis for its conclusion, procedural fairness, the effect of quashing, remission and costs.

1. The Tribunal’s decision was quashed. The Tribunal had failed to comply with rule 23(2) of the Mental Health Review Tribunal Rules 1983 and section 72(1)(a) of the Mental Health Act 1983. It was impossible to know why it rejected the evidence of Dr O’Connor, the only psychiatric evidence before it, or what it considered to be the cause or nature of KW’s symptoms.
2. The duty to give reasons is a fundamental aspect of good public administration. Reasons must be adequate and intelligible, grapple with important issues and enable the parties and any appellate tribunal to analyse the reasoning essential to the decision. A Tribunal rejecting expert evidence must at least indicate the reasoning process by which it accepted some evidence and rejected other evidence: R (H) v Ashworth Hospital Authority [2003] 1 WLR 127, applying the approach in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409.
3. The conclusion that KW had no mental disorder was unsupported by the evidence before the Tribunal. The judge expressed the provisional view that the decision was perverse, but did not determine that ground because full argument had not been heard.
4. The Tribunal also acted unfairly by failing to disclose the medical member’s significant findings to the parties and by denying Dr O’Connor an opportunity to comment. The parties should be able to address such findings before the Tribunal reaches its decision.
5. Quashing the discharge decision meant that it had never had legal effect. KW was therefore lawfully detained under the procedures existing before the decision, and his challenge to the subsequent detention decisions fell away: R (H) v Ashworth Hospital Authority [2003] 1 WLR 127; R (Wirral Health Authority) v Finnegan [2001] EWCA Civ 1091. KW’s application for discharge was remitted to a freshly constituted Tribunal.
6. No order as to costs was made. Applying the approach in Boxall v Mayor & Burgesses of the London Borough of Waltham Forest, the claimant had not shown that it was obvious he would have succeeded in the withdrawn challenge. The legal position was uncertain in light of R (H) v Ashworth Hospital Authority and R (Von Brandenburg) v East London and National Health Service Trust [2002] QB 235, and the late concession had caused avoidable costs.

Permission for the judicial review applications was granted by Lightman J on 20 February 2003. The present court dealt at first instance with KW’s challenge to the Tribunal’s decision and the Trust’s challenge to that decision. The Tribunal’s discharge decision was quashed and KW’s application was remitted to a freshly constituted Mental Health Review Tribunal.