R(A) 2/91

Mr. J. J. Skinner 	CA/527/1989
22.6.90

Supervision - schizophrenia - whether the fact that medical advisors have not arranged in-patient care implies that continual supervision is not required 
The claimant suffered from schizophrenia over a long period and had paranoid delusions. She claimed attendance allowance. In a report consultant psychiatrist diagnosed her condition as chronic schizophrenia and said “no danger to others but at time significantly depressed and potentially at risk to herself.”  The Delegated Medical Practitioner (DMP) in his review decision said that if her medical advisor were of the opinion she was at serious risk of an attempt at self harm she would have been detained under in-patient hospital care and decided that the risk was not a relevant risk within the meaning of Section 35 of the Act.
The Commissioner held:
1.	(disagreeing with the reasoning in para. 9(2) of CA/84/1984) conclusion that the condition was not serious cannot reasonably be drawn from the evidence that the medical advisors were aware of the condition and had not arranged in-patient care, without seeking to know why they had arranged it. The DMP exercises an inquisitorial jurisdiction and has a duty to inquire into all the relevant facts before reaching a conclusion. The attendance allowance board seeks a report from the claimant’s medical advisor. In such circumstances it is not reasonable to infer that the medical advisors have not recommended his in-patient supervision because they do not regard his condition as serious, without putting the question to them. They may be other reasons for not putting him in hospital  for example it may be desirable in the claimants interest to keep him at home and in the community (para. 8);
2.	(distinguishing CA/84/1984) the medical advisor here actually put forward facts which suggests the reason why the claimant was not confined in a hospital. He stated that he managed to enable her to live at home by keeping her dose of Modecate low and by her family coping with her occasional difficult behaviour in relation to her irrational fears. The clear inference from this evidence is that the claimant’s condition could be dealt with at home by the use of medication and supervision (para. 9);
3.	the claimant’s case was decided on the basis of an imputed motive to the consultant which he was not asked about and which the claimant was given no opportunity of rebutting, that was contrary to the rules of natural justice (para. 9).

DECISION OF THE SOCIAL SECURITY COMMISIONER
1.	My decision is that the determination of the delegated medical practitioner on behalf of the attendance allowance board is erroneous in point of law and accordingly I set it aside. I refer the case for reconsideration by the Board or a different delegated medical practitioner to be appointed by the Board.
2.	I had an oral hearing of this appeal. The claimant’s husband was present and argued her appeal. The adjudication officer was represented by Miss A. Majekodunmi of the Solicitor’s Office in the Department of Social Security.
3.	This is an appeal by the claimant to the Commissioner on a question of law from the decision on review made on behalf of the attendance allowance board by the delegated medical practitioner on 2 December 1988. The delegated medical practitioner reviewed the claimant’s claim for attendance allowance, but decided that she did not satisfy either of the day or either of the night conditions provided for by section 35(1) of the Social Security Act 1975. He was unable therefore to issue a higher or lower rate certificate.
4.	Attendance allowance is provided for by section 35 of the Social Security Act 1975. The material parts of the section are as follows:
“35(1) a person shall be entitled to an attendance allowance if he is satisfies prescribed conditions as to residence or presence in Great Britain and either: -
(a)	He is so severely disabled physically or mentally that, by day, he requires from another person either-
(ii)     continual supervision throughout the day in order to avoid substantial danger either to himself or others;” 
5.	The issue in the present appeal relates to entitlement by virtue of section 35(1)(a)(ii). The claimant is a married lady. She was born on 29 April 1935. She has suffered from schizophrenia over a long period, she has paranoid delusions. The claimant is fortunate in her husband who has spent many years looking after her and took early retirement in 1985 in order to devote more time to her care. A daughter, also, plays a part in caring for her. There was evidence before the delegated medical practitioner from a consultant psychiatrist whom the claimant attends. In a report dated 6 April 1987, he said that he has managed to enable her to live at home by keeping her doses of Modecate low and by her family coping with her occasional difficult behaviour in relation to her irrational fears that she is under surveillance from the SAS and that British Telecom have installed bugging devices in her home. He also stated that her husbands care and attention is a major feature in preventing frequent or long termed hospitalisation. In reply to the question put to him by the attendance allowance board the consultant psychiatrist stated that his diagnosis of her condition chronic schizophrenia. In answer to the query as to whether there were any dangerous tendencies either to herself or others, he replied as follows:
“no danger to others but at times significantly depressed and potentially at risk to herself”.
There were also before the delegated medical practitioners reports from examining doctors. The first of these was dated 16 May 1986 and the doctor referred to a tendency to wander, that this was normally self controlled, and that if she did wander she came back of her own volition. He also commented that over the previous months she had become more deluded but her delusions were not firmly unshakable belief, and noted that she was awaiting a psychiatric interview with the consultant. The second medical report is dated 6 August 1987. The doctor was of opinion that the claimant’s condition did not give rise to injury to herself or others, he found the claimant to be quite coherent and able to answer questions successfully. She described some paranoid delusions in a detached way which suggested that she had insight into their lack of reason. 
6.	The delegated medical practitioner had regarded to the medical report of         6 August 1987 and to the opinion of examining medical practitioner that claimant’s condition would not give rise to danger to her self or to someone else. He took note of the medical reports from the consultant psychiatrist. He was then dealing with the day supervision condition. He went on as follows:
“ I note from the consultants report of 7 December 1987 that [the claimant] is no danger to others but at times significantly depressed and potentially at risk herself. However, I am satisfied that if her medical advisors where of the opinion she was at serious risk  of an attempt of self harm then the necessary precaution would have been taken and she would have detained under in-patient hospital care. I am satisfied in the light of the evidence before me that the risk of self harm in [the claimant’s] case is not a relevant risk within the meaning of the 1975 Social Security Act.”
He referred to the opinion of the examining doctor that the claimant could be left unsupervised for three hours, at a time by day. He then went on to deal with the night conditions. His conclusion was that none of the day or night conditions were satisfied that he was unable to issue a higher or lower rate certificate, his decision on review was that the decision of 21 September 1987 was not to be revised. The passage which I have quoted contains a stock phrase in such cases by those who prepare the draft of the delegated medical practitioner’s decision. 
7.	The claimant’s grounds of appeal have been prepared by the husband and the point is taken that there was a breach of the rules of natural justice. However, it was clear from what the husband said in argument before me that he did not rely on the concept of a breach of natural justice, but merely alleged that the decision of the delegated medical practitioner was wrong because his wife was a danger to herself. But natural justice is relevant and I will come to it later.
8.	When the Commissioner directed an oral hearing of this appeal he asked for argument on the question of whether or not the risk of self harm in the claimant’s case was relevant risk within the meaning of the Social Security Act 1975. The claimant contends that the risk of self harm is a relevant risk within the meaning of the Act. Miss Majekodunmi argues that the delegated medical practitioner made a value judgement that the risk was not so serious not to fall within the Act, in that he considered that the claimant was at serious risk from self injury the necessary precautions would have already been taken by her medical advisors and she would have been detained under hospital in-patient care. She maintains that this was a reasonable inference and refers to CA/84/1984 and, in particular, to what the Commissioner said at paragraph 9(2) thereof. The relevant part of the passage is as follows: 
“Having identified from the evidence both that the claimant suffered from a psychotic condition and that this was known to her doctors, what upon a fair reading  the DMP is indicating by his reference to their “opinions” is not expressed in reference to opinions in fact expressed by them other than those identified by him at the outset of his decision, nor is an attribution to them of opinions other than those in evidence before him. What  in effect the delegated medical practitioner is here saying is that in evaluation the need for continual supervision in a case in which it is established that a claimant suffers from a psychotic condition and has regular medical advisors who are aware of that, but have not arranged in-patient care for her on that account, it may reasonably inferred that they have not considered the condition to be so severe so as warrant that course and that is to my mind, a legitimate inference and a legitimate factor to take into contemplation.”  
With respect to the Commissioner, I doubt whether such a conclusion is one which can be reasonably drawn from those primary fact without seeking to know why the claimant’s medical advisors have not arranged for his in-patient care. It is to be borne in mind that the delegated medical practitioner exercises an inquisitorial jurisdiction and has a duty to enquire into all the relevant facts before reaching a conclusion. It is also borne in mind that the attendance allowance board seeks a report from the claimant’s medical advisors in such cases. In such circumstances it does not seem to me to be a reasonable inference to infer that the medical advisors have not recommended his inpatient supervision because they do not regard his condition as serious, without putting the question to them. There may be other reasons why the claimant’s medical advisor have decided not to put him under hospital confinement, for example it may be desirable in the claimant’s interest to keep him at home and in the community. I bear in mind that this is the policy of the Department of Health to have such patients looked after within the community, wherever possible, rather than confined in mental hospitals, and that such policy is based on modern concepts of caring for those who suffer from mental illness.
9.	I have given reasons why I think that what was said in paragraph 9(2) of CA/84/1984 does not accurately set out the law. However I can distinguish that case from the case that is presently before me on the grounds that the claimant’s medical advisor here actually put forward facts which suggest the reasons why the claimant was not confined in a hospital. The consultant psychiatrist stated that he had managed to enable her to live at home by keeping her dose of Modecate low and by her family coping with her occasional difficult behaviour in relation to her irrational fears. The clear inference from this piece of evidence is that the claimant’s condition could be dealt with at home by the use of medication and supervision. Such evidence was ignored by the delegated medical practitioner in so far as this aspect of the case was concerned. On the face of it, it was perverse for him to conclude that, if her medical advisors were of the opinion that she was at serious risk of an attempt at self harm, the necessary precautions would have been taken and she would be detained under in-patient hospital care. The Board failed to make enquires of the consultant psychiatrist, as to his reasons. I have borne in mind that the conclusion as a matter for expert medical opinion are for the Board or the delegated medical practitioner to reach and not for me. I am in no way entitled to substitute my view of the evidence for theirs. I am, however, required to consider whether the delegated medical practitioner has erred in law and in my judgement he did so.  It seems to me entirely wrong to infer a reason to a medical witness for acting, without any enquiry being made of the witness, or any question being put to him as to why he acted, and indeed which ignores his evidence; and then to conclude, on the basis of such inference, that there was no substantial danger to the claimant. It is also contrary to the rules of natural justice in that the claimant’s case is being decided on the basis of an imputed motive to the consultant psychiatrist which that witness was not asked about and which the claimant was given no opportunity of rebutting.

Date: 22 June 1990	(signed) Mr. J. J. Skinner
Commissioner