KF v Birmingham & Solihull Mental Health NHS Foundation Trust (MEN)

Factual and Procedural Background

This opinion concerns three appellants, referred to as Plaintiff KF, Plaintiff MO, and Plaintiff FF, who were all admitted for treatment under the Mental Health Act 1983. KF and MO have since been discharged, while FF remains detained in hospital. Each was under the care of Company A (Birmingham and Solihull Mental Health NHS Trust) and represented by the same solicitor before the First-tier Tribunal. Appeals were heard by the Upper Tribunal following decisions by the First-tier Tribunal dismissing applications made under sections 2 and 3 of the Mental Health Act 1983, as well as a dismissal related to a reference under section 68(2) concerning a community treatment order (CTO).

The procedural history includes the First-tier Tribunal dismissing section 2 applications by KF and MO, both of whom were subsequently admitted under section 3 and made further section 3 applications. Applications for permission to appeal to the Upper Tribunal were initially refused by the First-tier Tribunal on grounds of academic status due to pending section 3 applications. Both KF and MO were eventually granted permission to appeal by the Upper Tribunal after oral hearings. FF’s case involved a First-tier Tribunal decision that a reference ceased to have effect upon the making of a CTO, which was challenged on appeal.

Legal Issues Presented

1. Whether the substantive First-tier Tribunal decisions on section 2 applications are susceptible to judicial review before, as well as appeal to, the Upper Tribunal.
2. What is the proper approach when an appeal from a First-tier Tribunal's substantive decision on a section 2 application is overtaken by subsequent events, such as admission under section 3 or discharge.
3. Whether a reference to the First-tier Tribunal lapses upon the making of a community treatment order.
4. The exercise of discretion by the Upper Tribunal in setting aside First-tier Tribunal decisions involving errors of law when no effective remedy or ongoing interest remains.

Arguments of the Parties

Appellants' Arguments

• The appellants argued that patients detained under the Mental Health Act should have practical and effective access to tribunal hearings within reasonable timeframes, consistent with the overriding objective of fairness and speed.
• They contended that delays in hearing section 2 applications resulted in patients being detained without proper and effective tribunal hearings, violating Article 5(4) of the European Convention on Human Rights (ECHR).
• They submitted that the First-tier Tribunal erred in refusing permission to appeal on the basis that the challenges were academic due to changed patient status or pending section 3 applications.
• The appellants highlighted the risk of prejudice from erroneous First-tier Tribunal decisions remaining on file and potentially influencing future proceedings.
• They emphasized the importance of tribunals exercising discretion to enable hearings of outstanding section 2 applications, even where subsequent applications exist.

Respondents' Arguments

• The Secretary of State for Health, represented by counsel, argued that the Upper Tribunal has statutory judicial review jurisdiction subject to strict conditions, which were not met by the appellants’ applications.
• It was submitted that Article 5(4) ECHR does not require any particular approach to appeals overtaken by events, especially where the patient has been discharged.
• The respondents contended that where a patient remains detained and has a pending section 3 application, the tribunal has discretion to refuse permission to appeal or to set aside decisions on appeal.
• Where the patient has been discharged, the respondents argued tribunals should exercise discretion against the patient in continuing appeals, as no effective remedy is available.
• Resource considerations and the absence of real disadvantage to the patient from refusing appeals where section 3 applications provide relief were cited as reasons to limit multiple proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the general principle that appellate courts avoid hearing academic appeals, but recognized that public law cases may warrant exceptions in the public interest. Despite considerable agreement between parties, the court found that important issues of principle justified hearing the appeals.

Regarding the preliminary issue of judicial review jurisdiction, the court held that the appellants’ applications did not meet statutory conditions for judicial review before the Upper Tribunal, which has a limited judicial review jurisdiction. Thus, the applications to treat appeals as judicial review were dismissed.

The court analyzed the central point of principle concerning appeals overtaken by events: when a section 2 application is made but the patient is subsequently admitted under section 3 or discharged, how should appeals be handled? It was agreed that the First-tier Tribunal must apply the criteria relevant to the patient's status at the time of hearing, as established in ex parte M.

The appellants argued that delays in tribunal hearings deprived patients of effective and timely hearings, infringing Article 5(4) ECHR. The court noted that Article 5(4) applies only to persons currently detained and does not require remitting section 2 applications for rehearing if a section 3 application is pending and can be heard promptly. However, the court expressed concern about delays in the cases before it and emphasized the overriding objective of fairness and avoiding delay.

The court accepted that the First-tier Tribunal has broad case management powers to consolidate proceedings and manage multiple applications efficiently. Withdrawal of applications requires tribunal consent and should not be refused solely on the basis of a tactical ploy; the tribunal must consider the patient's interests and the overriding objective.

Regarding appeals where the patient has been discharged, the court recognized a presumption against granting relief due to lack of practical remedy but held that it may still be appropriate to scrutinize flawed decisions to clarify legal principles and avoid prejudice in future proceedings.

In KF and MO’s cases, the court found that the First-tier Tribunal decisions involved errors of law: KF’s decision was internally contradictory, and MO’s decision incorrectly applied section 2 criteria after section 3 admission. However, since both patients had been discharged, the Upper Tribunal exercised its discretion not to set aside the decisions, as re-hearing would be futile.

In FF’s case, the court considered whether a reference to the First-tier Tribunal lapses on making a CTO. The court agreed with prior authority that such references do not lapse but continue to be valid and must be decided according to the patient’s status at the hearing. The First-tier Tribunal’s dismissal of the reference as lapsed was an error of law. Nonetheless, since FF did not seek relief and the dismissal decision did not affect the legality of ongoing detention, the Upper Tribunal exercised discretion not to set aside the decision.

Holding and Implications

The Upper Tribunal made the following holdings:

• In Plaintiff KF’s case: The First-tier Tribunal decision dated 16 March 2009 involved an error of law but the Upper Tribunal exercised its discretion not to set aside the decision.
• In Plaintiff MO’s case: The First-tier Tribunal decision dated 17 December 2009 involved an error of law but the Upper Tribunal again exercised its discretion not to set aside the decision.
• In Plaintiff FF’s case: The First-tier Tribunal decision dated 21 May 2009 involved an error of law regarding the effect of a community treatment order on a tribunal reference, but the Upper Tribunal exercised its discretion not to set aside the decision.

The direct effect is that the erroneous First-tier Tribunal decisions remain on file but are not disturbed by the Upper Tribunal. No new precedent was established beyond clarifying the application of statutory provisions in the context of mental health detention appeals and the effect of community treatment orders on tribunal references. The decision emphasizes the importance of timely tribunal hearings, proper case management, and the careful exercise of discretion in appeals overtaken by events, particularly where liberty interests are at stake.