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Welsh Ministers v PJ [2018] UKSC 66(1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), but if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review. 2018‑12‑17 14:40:29 2018 cases, Brief summary, Cases, Deprivation of liberty, Powers, Transcript


SSJ v MM [2018] UKSC 60The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient. 2018‑11‑28 13:49:47 2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Powers, Transcript


Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong." 2018‑03‑28 22:58:54 2017 cases, Brief summary, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous, Powers, Transcript


JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC), [2017] MHLO 28 — "The principal issue in this appeal is whether the First-tier Tribunal (Mental Health) erred in law in its belief that, pursuant to s.72(3) of the Mental Health Act 1983, it could not defer the discharge of a detained patient beyond the date of the order authorising detention. The Appellant patient criticised the tribunal for (a) refusing to defer his discharge until a date after the authority for his detention had expired and (b) failing to give adequate reasons for its decision overall. I have concluded that the tribunal did not err in law with respect to the effect of section 72(3) since its reasons did not assert that a deferred discharge could not exceed the date of the order authorising detention. Though strictly obiter, I have concluded that a deferred discharge cannot exceed the date of the order authorising detention and explain why I have reached that view below. I also concluded that the tribunal’s reasoning in this case was adequate." 2017‑09‑08 13:12:19 2017 cases, Mind summary, No summary, Powers, Transcript, Upper Tribunal decisions


SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16(1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of Article 5 deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme. 2017‑05‑07 23:52:25 2017 cases, Brief summary, Deprivation of liberty, ICLR summary, Powers, Transcript


R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have jurisdiction", but only after "giving the applicant an opportunity to make representations in relation to the proposed striking out". (3) The solicitor accepted that the patient had lacked capacity to make the application, but argued: (a) that R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 (in which the House of Lords had decided that the MHA scheme was Convention compliant) was distinguishable, as MH related to section 2 where different timescales applied; and, therefore, (b) that s66 (Applications to tribunals), in order to be Convention compliant, should be read as applying to a patient "with the assistance of a litigation friend if needed". (4) The First-tier Tribunal judge's subsequent decision "that the matter may be closed as an invalid application", which was effectively a rule 8 strike-out decision, was the decision considered by the Upper Tribunal. (5) The challenge was made by way of judicial review, but there was a right of appeal so that route would have been more appropriate. (6) UTJ Jacobs, dismissing the JR application, decided that MH could not be distinguished (the timescales in the MH case were not significant, still less decisive) and there was no Convention breach: any apparent gap in the Tribunal rules (in the protection of a patient's right to bring his case to the Tribunal) disappeared when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. In conclusion, he stated that "[a]n application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review". (6) The Upper Tribunal decision makes no reference to the later ECHR decision in the MH case (MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94), which found that, during part of MH's detention, neither the Secretary of State referral process nor habeas corpus were adequate remedies ..→ 2017‑01‑27 23:58:57 2017 cases, Brief summary, MHT capacity cases, Powers, Transcript, Upper Tribunal decisions


MM v WL Clinic [2015] UKUT 644 (AAC), [2015] MHLO 103(1) For the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in KC at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case. (Caution: see Court of Appeal decision.) 2015‑11‑26 20:58:29 2015 cases, Brief summary, Deprivation of liberty, MHLR summary, Powers, Transcript, Upper Tribunal decisions


NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them. 2014‑11‑04 22:44:48 2014 cases, Deprivation of liberty, Detailed summary, Powers, Transcript, Upper Tribunal decisions


AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal. 2013‑08‑10 02:03:26 2013 cases, Brief summary, Missing from Bailii, Powers, Transcript


GA v Betsi Cadwaladr University Local Health Board [2013] UKUT 280 (AAC), [2013] MHLO 50(1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.] 2013‑07‑04 16:17:31 2013 cases, Detailed summary, MHLR summary, Powers, Transcript, Upper Tribunal decisions


EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701, [2013] MHLO 47The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.] 2013‑05‑12 23:24:53 2013 cases, Brief summary, MHLR summary, No transcript, Powers


AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163AC appealed against the tribunal's rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan's independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal's criticisms of Dr Kahtan's evidence on the link between the index offences and AC's mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the tribunal's statutory function is limited to considering discharge from the scope of the Act; (b) it is true that the tribunal should take into account the practical reality, as in a case where release into the community is impossible and prison is the only alternative (Abu-Rideh), but this reasoning does not apply to a case such as AC's because it is unknown whether the Parole Board will release or what conditions it might impose. 2013‑01‑23 23:41:23 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. 2012‑12‑19 21:29:38 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


CNWL NHS Foundation Trust v HJ-H [2012] UKUT 210 (AAC), [2012] MHLO 88The tribunal granted discharge from a CTO, deferred for 3 months, expressing the hope that in the meantime the RC would consider reducing the level of the patient's medication. The Trust appealed. (1) The challenge to the decision to discharge was essentially an attempt to re-argue the tribunal’s assessment of the evidence, and was therefore unsuccessful. In deciding on whether there is an error of law, the UT must respect the FTT's assessment of the evidence and fact-finding role (provided this was carried out rationally and explained): (a) the UT's statutory jurisdiction is limited to points of law; (b) the expert composition of the FTT means its fact-finding is worthy of such respect. (2) The challenge to the deferral also failed, as there was no evidence that the tribunal had misdirected itself by granting the deferral with the intention that that the patient's medication could be reduced in order to make her ready for discharge on a future date. (3) If the FTT's reasons for the deferral had not been set out adequately (ironically, the judge said the reasoning was 'not pellucid') then its decision would still not have been set aside; if anyone had cause to complain about the deferral it was the patient rather than the Trust. (4) If a CTO patient's condition deteriorates after a deferred discharge decision: (a) before the discharge date, he can be recalled under the CTO which still remains in force, and/or have his medication changed; (b) after the discharge date, he can be detained under s2 or s3, if there is information which was not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. 2012‑09‑24 21:16:59 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), [2012] MHLO 53(1) The tribunal cannot grant a deferred conditional discharge until (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge. (2) A deferred conditional discharge is not a device for gathering information on whether a conditional discharge would be possible or what conditions might be appropriate. (3) On the facts (where the tribunal had decided that 'with the exception of the availability of suitable after-care for the Patient, none of the criteria for his detention in hospital for treatment are met' but had not drafted conditions) the decision to adjourn was correct. 2012‑05‑20 21:25:54 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


R v Nottingham MHRT, ex p Secretary of State for the Home Department (Thomas) [1988] MHLO 1The Tribunal has no power to adjourn to give an opportunity for the patient's condition to improve or to see if an improvement already made is sustained. 2012‑02‑09 15:01:22 1988 cases, Brief summary, No transcript, Powers


RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC)(1) The Upper Tribunal has power to award costs only where the First-tier Tribunal could do so; (2) in a mental health case, the FTT only has power to make a wasted costs order (and not a costs order 'if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings'); (3) a wasted costs order may only be made against a legal or other representative; (4) it follows that there is no statutory authority to make an order for costs against the FTT, and the patient's solicitors' application to the UT was refused. 2011‑04‑30 16:43:22 2011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC)The Tribunal panel discharged a s47 patient, deferred for six weeks for after-care arrangements, and stated in para 9 that it 'would also invite Mr P's care team to consider whether to implement a community treatment order'; a CTO was then made; however, the panel's decision by discharging the section simultaneously discharged the CTO. On the responsible authority's application under Tribunal rule 45, a FTT judge reviewed and set aside the decision (because the panel had frustrated its intention that there be a CTO); she then reviewed her own decision, upheld it, and remitted the case to a fresh panel. (1) The patient appealed, but both review decisions are excluded from the appeal jurisdiction (and not from the JR jurisdiction) so the appeal was treated as a JR application. (2) The panel's decision that the first two statutory criteria were not met was not simply an oversight: it had specifically stated that the third criterion was met. (3) Para 9 was not expressed as a recommendation; the word 'also' showed that it did not form the basis of the reasoning. (4) In so far as there is an inconsistency, it is para 9 which should be given no weight; in any event, the reference to 'care team' rather than 'RC' was loose and legally inaccurate. (5) Where the panel find any of the statutory criteria not met, there is no power under s72(3A) to recommend a CTO: rather, there is a positive duty to discharge. (6) The review decisions were quashed and a declaration made that the panel's decision be reactivated. 2011‑03‑30 21:14:44 2011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


Grant v MHRT (1986) The Times 28/4/86The Tribunal has no power to make statutory recommendations under s72(3) in restricted cases. 2010‑10‑11 22:20:00 1986 cases, Brief summary, No transcript, Powers


R (Moyle) v London South and South West Region MHRT [1999] MHLR 195A Tribunal is not acting in an appellate or review jurisdiction, but exercising an original jurisdiction in which it forms an evaluative judgment as to whether the criteria for discharge are made out; as such, it may disagree with the evidence in front of it. When the illness is one that will relapse in the absence of medication, the appropriateness of liability to detention depends on an assessment of the probability of relapse in the near future. (At the time, the test for discharge placed the burden of proof on the patient and so the patient had to show that there was no probability of relapse to demonstrate that the nature of the illness did not justify detention; it was also held that the admission criteria had to be considered, but in the context of the burden of proof being reversed. Its conclusion that the admission criteria were not relevant meant that there was an error of law that led to the decision being quashed.) [MHLR.] 2010‑02‑26 22:27:02 1999 cases, Brief summary, MHLR summary, No transcript, Powers


Scottish Ministers v MHTS, re NG and PF [2009] CSIH 33The Mental Health Tribunal for Scotland has no power to vary the conditions of a patient who had been conditionally discharged, as the power to set conditions only arises at the time of discharge. 2009‑06‑14 12:45:13 2009 cases, Brief summary, Powers, Scottish cases, Transcript


R (Epsom and St Helier NHS Trust) v MHRT [2001] EWHC Admin 101While the matter has to be looked at in the round, including the prospect of future in-patient treatment, there will come a time when, even though it is certain that treatment will be required at some stage in the future, the timing of that treatment is so uncertain that it is no longer "appropriate" for the patient to continue to be liable to detention. The application for judicial review against the MHRT's decision to discharge from s3 failed. 2009‑04‑19 15:47:59 2001 cases, Brief summary, Powers, Transcript


R (Abu-Rideh) v MHRT [2004] EWHC 1999 (Admin)The claimant was a foreign national detained under the Immigration Act 1971 as a suspected terrorist, then transferred to hospital under s48/49 MHA 1983; the MHRT proceeded on the basis that the only realistic alternative was return to prison, where he would relapse; he argued that the MHRT ought to have considered the question of discharge by reference to discharge into the community, even though this was an impossibility; the Tribunal had been correct in their approach. 2009‑04‑12 22:45:18 2004 cases, Brief summary, Powers, Transcript


R (SSHD) v MHRT, re MW [2000] EWHC 638 (Admin)S78 allows Tribunal rules to be made to give the Tribunal such powers as are necessary for the purposes of the exercise of their statutory functions; the old MHRT rules were made under this section; the MHA does not give the Tribunal any power to make recommendations in the case of a restricted patient; therefore, the Tribunal could not lawfully adjourn for information relating solely to the making of an extra-statutory recommendation. 2009‑04‑11 23:58:13 2000 cases, Brief summary, Powers, Transcript


X v UK 7215/75 [1981] ECHR 6(1) Under Article 5(1), the recall to hospital without the usual Winterwerp guarantees was lawful as it was an emergency; the further detention followed examination by the RMO so was also lawful; (2) Habeas corpus proceedings were inadequate for Article 5(4) purposes; the other legal machinery did not remedy this breach, in particular because the MHRT could not order discharge of restricted patients. 2009‑04‑10 23:00:44 1981 cases, Brief summary, ECHR, Powers, Transcript


Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC)The responsible authority appealed against the Tribunal's interlocutory decision to direct disclosure of medical records, including third-party information, to the patient's solicitor; having agreed it had jurisdiction, the Upper Tribunal made no order on the appeal, as the patient had by that time been placed on a CTO; however, detailed guidance was given as to the proper approach where either the responsible authority resists disclosure of confidential third-party information or the solicitor wishes to disclose such information to his client. Guidance was also given on the status of a decision by a three-judge panel of the Administrative Appeals Chamber. 2009‑01‑15 00:45:28 2009 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


X, Re Judicial Review [2009] NIQB 2Based on the general legislative purpose underlying Article 77(2) Mental Health (NI) Order 1986 and the constitutional principle in favour of liberty, the MHRT in Northern Ireland does not have the power to direct the discharge of an unrestricted patient at a future date where there is a mandatory duty to discharge the patient; a deferred discharge is only lawful for a discretionary discharge 2009‑01‑11 15:16:52 2009 cases, Brief summary, Northern Irish cases, Powers, Transcript


R (X) v MHRT [2003] EWHC 1272 (Admin) — Adjournment. 2008‑09‑12 16:31:59 2003 cases, No summary, Powers, Transcript


R (MP) v Nottingham Healthcare NHS Trust [2003] EWHC 1782 (Admin) — Tribunal powers with respect to restricted patients. 2008‑09‑12 16:28:37 2003 cases, No summary, Powers, Transcript


R (B) v MHRT [2003] EWHC 815 (Admin)It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness 2007‑09‑16 11:59:57 2003 cases, Detailed summary, Powers, Transcript


R (O) v MHRT [2006] EWHC 2659 (Admin)Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing. [Caution.] 2006‑10‑25 18:42:19 2006 cases, Detailed summary, Powers, Transcript


R (Hempstock) v MHRT [1997] EWHC Admin 664Tribunal have same powers when reconvening after unfulfilled recommendations as at original hearing. 2006‑04‑16 20:47:09 1997 cases, Brief summary, Powers, Transcript


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