R(A) 3/92

Mr. J. J. Skinner	CA/368/1990
29.1.91		
Supervision – schizophrenia – whether the fact that medical advisors have not arranged in-patient care implies that continual supervision is not required – whether it is relevant that supervision could not eliminate all substantial danger
The claimant suffered schizophrenia and was at risk of committing suicide. The delegated medical practitioner gave two reasons for not accepting that the claimant required continual supervision throughout the day in order to avoid substantial danger to himself. First, if the claimant’s doctors thought there was a danger of suicide the claimant would be detained as an in-patient; and secondly, no amount of supervision would prevent a determined suicide attempt.
Held that:
1.	it was not reasonable for the delegated medical practitioner to infer that the claimant was not a danger just because he had not been made an in-patient;
2.	contrary to the view of the Commissioner in CA/149/1990, the Attendance Allowance Board or the delegated medical practitioner has to find out whether continual supervision is required in order to effect a real reduction in risk of harm to the claimant, not in order to eliminate all substantial danger.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	For the reasons hereinafter appearing, the decision of the delegated medical practitioner made on behalf of the Attendance Allowance Board is erroneous in point of law and accordingly I set it aside. I directed that the appeal be reheard by the Attendance Allowance Board or by a different delegated medical practitioner appointed by the Board.
2.	I held an oral hearing of this appeal. The claimant was present and presented argument. Mr. M. R. Parke of the Solicitor’s Office in the Department of Health and Social Security appeared for the Secretary of State.
3.	This is a claimant’s appeal against the decision of the delegated medical practitioner dated 12 June 1990 and made on behalf of the Attendance Allowance Board which decided that an earlier decision was not to be revised because the claimant satisfied neither of the day nor night conditions.
4.	The claimant has the misfortune to suffer from schizophrenia in addition to certain other disorders. There was medical evidence before the delegated medical practitioner that the claimant was at risk of committing suicide and there was a history of suicide in his family. The issues in this appeal arise from a passage in the delegated medical practitioner’s decision where he discussed the claimant’s day supervision requirements. After reviewing the medical evidence, he went on to say in paragraph 3:
“I recognise that you may be subject to suicidal thoughts but I am satisfied that if your medical advisers were of the opinion that you were at serious risk from such tendencies then the necessary precautions would have been taken and you would be detained under in-patient hospital care. Furthermore, I take the view that no amount of supervision will prevent a determined suicide attempt. Accordingly I am satisfied in the light of the evidence before me that the risk of suicide or self injury in your case does not require continual supervision within the meaning of the 1975 Social Security Act.”
An analysis of that passage shows that the delegated medical practitioner gave two reasons for not accepting that the claimant required continual supervision from another person throughout the day in order to avoid substantial danger to himself. First, he was satisfied that if the claimant’s doctors thought there was a danger of suicide the claimant would have been detained as an in-patient. Second that no amount of supervision would prevent a determined suicide attempt. There were separate and distinct grounds for holding that continual supervision was not required.
5.	In so far as the first point is concerned, I note that the claimant’s doctors were not asked the reasons why he was not confined in a hospital. There was evidence from two psychiatrists, both of whom had attended him as an out-patient. The first psychiatrist, in answer to the question as to whether any dangerous situations were likely to arise if the claimant was left unattended, said he did not know of any dangerous situation which had arisen or was likely to arise when he was alone. The second psychiatrist dealt with the question of danger in the following passage:
“I think that he is a substantial danger to himself in that there is real risk of suicide in this case. Although the qualifications of such risk is notoriously difficult, I am influenced by the fact that [the claimant’s] brother, who also had psychological problems, recently died by suicide. As many as ten percent of men with schizophrenia died by suicide, and [the claimant’s] depressive symptoms and transsexual distress must place him in a high risk category. I believe that continual supervision throughout the day would reduce the risk of suicide, but as Dr. Heaney points out in his report of 19 October 1988, the risk could not be eliminated. It appears to me that [the claimant’s] claim for attendance allowance depends on whether the reduction of suicidal risk that would result from continuous supervision by day should be regarded as required. I am inclined to support his case.”
The consultant who gave that report is a lecturer in psychological medicine at St. Bartholomew’s Medical College and the honorary senior registrar, City and Hackney Health Authority. It was not reasonable for the delegated medical practitioner to infer that the claimant was not a danger to himself just because he had not been made an in-patient in hospital. In Commissioner’s decision CA/527/1989 (now reported as R(A) 2/91) I held that it was not reasonable for a delegated medical practitioner to infer that a claimant was not a danger to herself just because she had not been made an in-patient and further that it was a breach of natural justice for the claimant’s case to be decided on the basis of an inputted motive to the claimant’s psychiatrist that she was not asked about. In my judgement the same error arises in the case before me. If however the second ground upon which the delegated medical practitioner found against the claimant is correct then his decision will stand, despite the error which I have referred to in this paragraph.
6.	I now turn to the second ground upon which the delegated medical practitioner decided that the claimant did not require continual supervision throughout the day in order to avoid substantial danger to himself. In order to appreciate the point which arises it is necessary to read section 35(1)(a)(ii) of the Social Security Act 1975 which, in so far as relevant, I set out below:
“(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 to himself or others;”
Mr. Parke has invited my attention to unreported decision on Commissioner’s file CA/149/1990 where the Commissioner discussed somewhat similar words used by a delegated medical practitioner to those used by the delegated medical practitioner in the case before me. The Commissioner at paragraph 5 of that decision had this to say:
“5. I reject the first submission. For on the question of suicide the DMP said:-
“Whilst I accept that you are given the support of your husband I do not accept that this constitutes a need for continual supervision for the avoidance of substantial danger as no amount of supervision can prevent a determined suicide attempt.”
Clearly, the DMP has taken the view that, if the claimant is bent on committing suicide, no amount of supervision can prevent it. This is a reasonable approach to the matter, and adequately explains why the possibility of suicide does not invoke a need for continual supervision.”
I have given anxious consideration to the point. I have the misfortune however to disagree with the view taken by the learned Commissioner. I am consoled by the fact that his decision was given without an oral hearing being held and that the claimant in the case was unrepresented. I regret that I am not persuaded by the decision. The words of the sub-section are:
“in order to avoid substantial danger”.
To say, as did the delegated medical practitioner, that no amount of supervision will prevent a determined suicide attempt is to say that the danger can never be eliminated. But that is not the test, it goes much too far. The criteria, and this is clear from the subsection, is that the continual supervision is required so as not to allow substantial danger to happen; that is different from eliminating it altogether. If the approach to cases under section 35(1)(a)(ii) was to be the elimination of all substantial danger, then I doubt whether claimant’s, not alone in attempted suicide cases but in others, would ever be able to satisfy the requirement. In my judgement the Attendance Allowance Board or its delegate have to find whether continual supervision is required in order to effect a real reduction in the risk of harm to claimant. That is a question of fact in each case and it is for the doctors to assess it and it varies from case to case. It seems to me that the approach of the delegated medical practitioner on this aspect of the case was wrong for yet another reason. He said: 
“I take the view that no amount of supervision will prevent a determined suicide attempt.”
In my judgement his approach was objective and not subjective to the case of the claimant. He was looking to a general class of person who have suicidal tendencies and not to the claimant in the case before him. There was evidence from the consultant psychiatrist relating to risk of substantial danger which would have assisted the delegated medical practitioner on the question of the claimant’s medical condition and the degree of the risk of suicide. I accept that a delegated medical practitioner, having considered the evidence, has then to go on to make a value judgement and provided that it is reasonable, having regard to the evidence which was before him, it is not open to a Commissioner to disturb it. However in making a value judgement a delegated medical practitioner must apply the test provided for in section 35 and apply it in the light of the evidence relating to the claimant and not in some objective fashion.
7.	I now turn to the remaining ground of appeal. The claimant in his grounds of appeal contends that his case fell within the category of cases where an oral hearing should have been granted by the Attendance Allowance Board. He submits that the question of his honesty was at stake and that the conclusions of the delegated medical practitioner were very largely based on whether or not he had made honest statements. However after the claimant had listened to Mr. Parke on the other question raised in the appeal he stated that he no longer wished to pursue this ground of appeal. Without coming to any firm conclusion on the point I am inclined to the view that the claimant’s case was not one of those exceptional cases where a claimant would be entitled to an oral hearing before the Board.

Date: 29 January 1991	 (signed) Mr.  J. J. Skinner
Commissioner