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Case and summary Date added Categories
DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93This is the latest in a series of cases considering personality disorder, refusal to engage in treatment, and the question of whether the 'appropriate medical treatment is available' test in s72 is met. (1) Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration - although a patient may well continue to satisfy the conditions for detention despite refusing to engage. (2) In this case, the tribunal did not seem to have asked itself whether the deterioration after recall might not have been a response to detention rather than a manifestation of his mental disorder: this was relevant to the questions of 'nature/degree' and of whether the available treatment was appropriate, so the decision was set aside. 2013‑10‑23 2013 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

SSJ v MP [2013] UKUT 25 (AAC), [2013] MHLO 8 — "The Secretary of State had two grounds of appeal. One related to the tribunal’s finding on diagnosis; the other related to the decision not impose any conditions. ... I can only decide that, despite the errors of law, the tribunal’s decision should not be set aside. The result is that this decision provides in effect a declaration of the errors made in the tribunal’s decision." [Summary required.] 2013‑03‑25 2013 cases, No summary, Reasons, Transcript, Upper Tribunal decisions

MP v West London Mental Health NHS Trust [2012] UKUT 231 (AAC), [2012] MHLO 81In the final days of his determinate prison sentence, MP was transferred to Broadmoor under s47 in order to prolong his detention. The tribunal recommended transfer to an MSU, which proved impossible; when it reconvened it granted discharge, delayed for 10 weeks for appropriate after care arrangements to be made. A salaried tribunal judge accepted the trust's argument that there had been inadequate reasons for discharge: she reviewed and set aside the decision, and refused the patient's application for her decision to be set aside. As these were excluded (unappealable) decisions, the patient sought judicial review. (1) The review decision, although made without receiving representations from the patient, was not made unfairly. (2) Taking account of the two relevant principles - that (a) the review power should only be exercised in clear cases, and (b) the Upper Tribunal should seldom interfere with review decisions when judicial review proceedings are brought, because the review assessment involves a substantial element of judgment or discretion - the STJ was entirely justified in her decision on the inadequacy of reasons. (3) There may well be adversarial aspects in the mental health jurisdiction, but ultimately, given the wider public interest at stake, it is an inquisitorial jurisdiction. (4) The delayed discharge decision itself may have been made in error of law (adjournment being the correct option), a consideration which would have been relevant in relation to permission had the grounds been arguable. 2012‑08‑21 2012 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

EC v Birmingham and Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC), [2012] MHLO 70(1) Appeals against tribunals' refusals to hear arguments in relation to extra-statutory recommendations were dismissed as (a) there is no legal right to advance these arguments (this is a sufficient reason for not making an extra-statutory recommendation which can be implied if not stated), (b) refusal to consider a extra-statutory recommendation is neutral rather than disadvantageous to the patient, and (c) a flawed extra-statutory should have no effect because of its legal status. (2) The judge made further comments about (a) potential guidance to hospital managers about UT procedure, (b) secondary challenges by the appellants, and (c) tribunal procedure generally in relation to extra-statutory recommendations. 2012‑07‑24 2012 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC)It was argued before the FTT that DN should be discharged, deferred until arrangements under the MCA DOLS could be put in place in relation to residence and control of his alcohol consumption. (1) When the MHA applies, it has primacy over the MCA; however, if the MCA were applied in anticipation of discharge from detention then DN would NOT then be 'within the scope' of the MHA and therefore not ineligible for MCA DOLS. (2) The FTT erred in law by failing, when deciding not to discharge, to address the possibility of supervision under the MCA. (3) The Trust had not participated in the appeal so the UT erred on the side of caution by setting aside and directing a rehearing. 2011‑09‑27 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

RN v Curo Care [2011] UKUT 263 (AAC)(1) If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a CTO recommendation, then reaching that firm conclusion (as opposed to an provisional opinion), and preventing the patient from arguing to the contrary, was a breach of natural justice and the ECHR right to a fair hearing. (2) In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. (3) There would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future: the Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. (4) The decision was set aside and remitted to a differently-constituted panel for reconsideration. 2011‑05‑04 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC)(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests. 2011‑04‑30 2011 cases, Brief summary, Cases, Reasons, Transcript, Upper Tribunal decisions

RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC)(1) The Tribunal's reasons for not reconvening following non-implementation of its statutory recommendation were inadequate. (2) A decision had clearly been made not to transfer so there would be no point in requiring the Tribunal to reconvene or reconsider whether or not to do so; the decision was therefore not set aside. 2011‑03‑07 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

JLG v Managers of Llanarth Court [2011] UKUT 62 (AAC)(1) An appeal to the Upper Tribunal can only succeed if 'the making of the decision concerned involved the making of an error on a point of law'. The issue is whether the Tribunal did its job properly: whether (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; (iii) it answered the legal questions appropriately given its findings of fact; (iv) it gave the parties a fair hearing; and (v) it provided adequate reasons. (2) The UT is entitled to assume that the members of the Tribunal understand the basic legal concepts which they must apply, particuarly with a specialist tribunal applying the same limited range of criteria repeatedly; the claimant's argument was essentially that the Tribunal failed to mention these matters, but there was nothing in the reasons to show that they did not understand them. (3) The reasons, albeit discursively, had soundly and rationally addressed the statutory criteria. (4) There is no separate issue of proportionality: this is amply covered by the terms of legislation and the allocation of the burden of proof. 2011‑03‑07 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

DL v South London and Maudsley NHS Foundation Trust [2010] UKUT 455 (AAC)The Tribunal failed to explain why it rejected medical and social reports which recommended absolute discharge. Their decision was set aside and the case remitted to the First-tier Tribunal for a rehearing. 2011‑01‑13 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273(1) The SC case stated that one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is - as section 73(1)(b) puts it - 'satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment'. The putting of the burden of proof on the patient is not in breach of the ECHR: Article 5 does not apply; conditions imposed may engage Article 8, but it is justified to require a patient made subject to a restriction order following a criminal trial/conviction to satisfy the FTT that the order should cease to have effect. (2) The FTT's reasons were undoubtedly adequate. (3) The FTT had not said that RH's restriction order 'should remain in place essentially for life' (it had said that in some cases this would be the case) so this ground of appeal failed. (4) The FTT's comparison between conditional discharge and life licence was not an equation but merely to explain why the gravity of the index offences was a relevant consideration. (5) The FTT were entitled to order that its decision be placed before any future FTT because, although not binding, earlier decisions are material considerations. (6) Except possibly in relation to the burden-of-proof ground (as an important point of principle), the UT should not have granted permission to appeal. (7) Particular care should be exercised before granting permission to appeal on a ground that was not raised below: had the SSJ been notified of the new grounds (including the burden-of-proof ground) it is likely that the response would have led to permission not being granted. 2010‑11‑13 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

LC v DHIH [2010] UKUT 319 (AAC)(1) The MHRT for Wales's decision not to discharge the patient, following a deferred conditional discharge, was inadequately reasoned because: (a) it took into account matters to which it had not referred in its original decision; (b) in relation to the newly-identified risk factors, either they must have been risk factors at the time of the original decision, or something unidentified must have happened to make them risk factors; (c) the tribunal could have deferred its decision for a report from the RC at the proposed accommodation, given that all staff agreed with the transfer; (d) the transfer was recommended despite the above; (e) given the liability to recall inherent in a conditional discharge, no reason was given as to why it was necessary to retain the "support of the MHA for the time being" during the accommodation move. (2) The second decision was set aside, so the original deferred conditional discharge decision remained effective, and the matter was referred to the First-tier Tribunal President for directions to arrange a further hearing. 2010‑09‑23 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

RM v St Andrew's Healthcare [2010] UKUT 119 (AAC)(1) When considering the "interests of justice" limb of rule 14(2), the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to his detention. (2) On the facts, without knowing that he was being covertly medicated the patient would be unable effectively to challenge his detention; the non-disclosure decision was set aside and re-made. (3) Non-disclosure orders should not only be drafted in terms of documents, but also should deal, in a precise, clear and exhaustive way, with the information which should not be disclosed. 2010‑05‑06 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC)(1) The Tribunal gave inadequate reasons for its decision not to discharge the patient; this decision was set aside and a re-hearing directed. (2) In principle, and in this case, it would not be fair and just to restrict the scope of an appeal to the grounds in the application. (3) Discussion of the meaning of mental disorder and its classification for the purposes of the Mental Health Act. (4) Detention is authorised by reference to the twin requirements of treatment and protection, moderated by the word “necessary”; that demanding test provides ample protection without the need for any additional consideration of proportionality. (5) Discussion of "appropriate treatment available" test in context of personality disorder and refusal of treatment. 2010‑05‑06 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC)The Tribunal decided that appropriate treatment was available at Rampton, or alternatively that MD was benefiting from the ward milieu; their reasons were adequate. (1) The detention was not mere containment: (a) treatment could be appropriate even without the possibility of risk reduction; (b) although if there was no prospect of the patient progressing beyond milieu therapy (to engage in psychotherapeutic work) there might come a point at which treatment was no longer appropriate, MD was not at that stage. (2) There was no practical distinction in this case between s72(1)(b)(i) and (iia) so if the tribunal dealt properly with head (iia), its reasoning covered head (ii). (3) The Tribunal was entitled to rely on the evidence, and make the findings of fact, which it did. (4) Although treatment is not defined by reference to its likely effect, as a practical matter, that will have been taken into account in deciding whether the treatment could be given for a permitted purpose. (5) In relation to experts: (a) the duty on parties to co-operate in rule 2(4) must include making their experts available to comply with any directions that are given by the tribunal; (b) the medical examination and expert panel reduce the need for parties to have their own expert evidence. 2010‑03‑15 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC)(1) The Tribunal's reasons for refusing to grant the absolute discharge of a conditionally-discharged patient, against the unanimous evidence of the treating team and an independent psychiatrist, were adequate. (2) The Tribunal disagreed not with the witness's assessments but with their conclusions as to whether the restriction order should cease to have effect: that was the kind of judgment for which it is difficult to give reasons beyond those required to show that the tribunal has directed itself correctly as to the law and to show to what matters the tribunal has had regard. (3) The extensive references to the SC case were enough to show that the Tribunal had the correct legal test in mind. (4) The restrictions can continue in the absence of any mental disorder, and risk from possible future disorder is relevant, so the criteria here are very different from those for discharge of a CTO: in the latter a focus on the short-term position might be appropriate, whereas the Tribunal here had also to consider what might happen in the long term. Manslaughter can be punished by a life sentence with release being on life licence: this is a powerful indication that Parliament intended a long-term view of risks to be taken; it is unsurprising that restrictions should in some cases remain in force for life. (5) The mere existence of current, or possible future, mental disorder is not enough to justify the continuation of a restriction order: regard must also be had to the seriousness of any risk of harm to others. (6) As under the new appeal system the First-tier Tribunal is not a party to proceedings, it is unsatisfactory for public authority respondents (the responsible authority and, in restricted cases, the Secretary of State) to make no submissions at all; submissions would assist even if drafted by non-legally-qualified caseworkers; for instance, the respondent might concede that the Tribunal erred in law but ask the Upper Tribunal to substitute its own decision rather than remit the case. 2010‑02‑18 2010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

R (Nottingham Healthcare NHS Trust) v MHRT (Northern Region), Re GK [2008] EWHC 2445 (Admin)The Tribunal's decision that GK did not suffer from any mental illness and should be discharged from Rampton, which was contrary to all the medical evidence including the independent psychiatrist's, was inadequately reasoned. 2009‑11‑03 2008 cases, Brief summary, Reasons, Transcript

R (SSHD) v MHRT, re PG [2002] EWHC 2043 (Admin) — Inadequate reasons. [Summary required.] 2009‑11‑01 2002 cases, No summary, Reasons, Transcript

R (LH) v MHRT [2002] EWHC 1522 (Admin)(1) There is no need for reasons for not making a recommendation where, as here, there is no contention (or any evidence in support of a contention) justifying a recommendation or the consideration of it. (2) In any event, an extra-statutory recommendation, outside the scope of s72(3), has no legal effect and is not susceptible to judicial review. (3) That s72 does not allow consideration of a hospital's suitability in terms of security or family proximity does not disclose a Convention incompatibility: a lacuna in an Act or a failure to provide an effective remedy for a Convention violation does not mean that the Act is incompatible. 2009‑10‑31 2002 cases, Brief summary, Reasons, Transcript

R (LH) v MHRT [2002] EWHC 170 (Admin) — Permission to appeal against Tribunal decision refused. [Summary required.] 2009‑10‑31 2002 cases, No summary, Reasons, Transcript

BB v South London and Maudsley NHS Foundation Trust [2009] UKUT 157 (AAC)(1) The Tribunal panel failed to state with clarity how and why it disagreed with the reasoning of the independent psychiatrist who had recommended conditional discharge; therefore, the making of the decision involved the making of an error on a point of law. (2) The decision was not set aside: to do so would provide no practical benefit as the patient had recently re-applied to the Tribunal. 2009‑09‑04 2009 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions

KM v MHTS (2009) case B186/09 — (1) In granting a Community Treatment Order, the Mental Health Tribunal for Scotland misdirected itself in law, so its decision was set aside: in considering Regulation 5 (permitted conflicts of interest between the two recommending doctors) the Tribunal applied a subjective test of what was in the RMO's mind, rather than objectively considering whether "failure to carry out the [independent second] medical examination would result in delay which would involve serious risk to the health, safety or welfare of the patient or to the safety of other persons" (Reg 5(1)(b)). (2) No facts were found by the Tribunal which could have justified a CTO so, rather than remitting the case to the Tribunal, the application for a CTO was refused. 2009‑08‑31 2009 cases, Brief summary, Reasons, Scottish cases, Transcript

Scottish Ministers v MHTS, re JK [2009] CSIH 9The Mental Health Tribunal for Scotland, in terminating a restiction order of a detained patient, had erred in law: (1) The threshold requirements in section 193(2) (that the patient has a mental disorder and that it is necessary for the patient to be detained in order to protect any other person from serious harm) must be considered and found wanting before considering the rest of the section including, under s193(5), whether to terminate the restriction order; (2) the criteria in s193(5)(b) (that the serious harm test is satisfied and that the restriction order is a continuing necessity) are disjunctive and must be separately considered. Obiter, there was a failure to deal with large parts of the evidence, in particular the RMO's evidence that the serious risk test was met. 2009‑02‑20 2009 cases, Brief summary, Reasons, Scottish cases, Transcript

R (B) v South Region MHRT [2008] EWHC 2356 (Admin) — Unsuccessful challenge to Tribunal's decision not to discharge from Broadmoor hospital. 2008‑10‑23 2008 cases, Bias, No summary, Reasons, Transcript

R (SSJ) v MHRT, re Rafiq [2008] EWHC 598 (Admin) — Tribunal reasons. 2008‑09‑13 2008 cases, No summary, Reasons, Transcript

R (Manns) v London North and East MHRT [1999] EWHC 497 (Admin)A Tribunal had been entitled to find that there was an enduring mental illness based on symptoms before transfer to hospital and that it was asymptomatic because of a response to medication; this entitled it to reject an opinion in favour of discharge which was based on the view that there was no enduring illness. [MHLR.] 2008‑09‑12 1999 cases, Brief summary, MHLR summary, Reasons, Transcript

R (Booth) v MHRT Merseyside [1997] EWHC Admin 816 — Unsuccessful reasons challenge. 2008‑09‑12 1997 cases, No summary, Reasons, Transcript

R (Demetri) v South West Thames MHRT [1997] EWHC Admin 622 — Reasons. 2008‑09‑12 1997 cases, No summary, Reasons, Transcript

R (SSHD) v MHRT, re JC [2007] EWHC 2224 (Admin)Deferred conditional discharge decision was unlawful: (1) the decision on the statutory criteria was irrational; (2) the conditions were unlawful - by requiring satisfactory trial leave and consent from third parties they were pre-conditions to discharge rather than conditions of discharge. 2007‑10‑30 2007 cases, Detailed summary, Reasons, Transcript

R (SSHD) v MHRT, re CH [2005] EWHC 746 (Admin)No discernible reasons given for preferring patient's evidence to RMO's; material reason given in subsequent witness statement which had not originally been recorded. 2007‑02‑06 2005 cases, Brief summary, Reasons, Transcript

R (KW) v Avon and Wiltshire MH Partnership NHS Trust [2003] EWHC 919 (Admin)No reasons given for rejecting RMO's evidence; Tribunal gave no indication during hearing of Tribunal doctor's provisional opinion. Decision quashed. 2007‑02‑06 2003 cases, Brief summary, Reasons, Transcript

R (Smith) v MHRT South Thames Region [1998] EWHC Admin 832Tribunal need only be satisfied of either nature or degree (i.e. not necessarily both) for detention to continue 2007‑02‑06 1998 cases, Brief summary, Reasons, Transcript

R (SSHD) v MHRT, re DH [2003] EWHC 2864 (Admin)Tribunal satisfied disorder of a nature although not degree; did not separately consider necessity test. Misdirection re nature/degree so decision to discharge quashed 2007‑02‑06 2003 cases, Brief summary, Reasons, Transcript

R (Warren) v MHRT London North and East Region [2002] EWHC Admin 811In the circumstances, the brief reasons were sufficient, and the error of law (that the patient was under s47/49 rather than notional s37) did not affect the outcome 2007‑02‑06 2002 cases, Brief summary, Reasons, Transcript

R (Mersey Care NHS Trust) v MHRT, re D [2003] EWHC 1182 (Admin)Unsuccessful reasons challenge; RMO can represent Trust, as well as appear as witness, if he notifies MHRT at outset. (rough summary) 2007‑02‑06 2003 cases, Brief summary, Other Tribunal cases, Reasons, Transcript

R (East London and the City MH NHS Trust) v MHRT, re IH [2005] EWHC 2329 (Admin)The Tribunal failed properly to deal with s72(2)(a) when directing discretionary discharge; should have adjourned for information to satisfy itself that appropriate aftercare would be in place; and failed to consider their s72(2) power to recommend transfer. 2006‑12‑23 2005 cases, Detailed summary, Reasons, Transcript

R (LI) v MHRT [2004] EWHC 51 (Admin) — Successful reasons challenge. 2006‑04‑16 2004 cases, No summary, Reasons, Transcript

R (SC) v MHRT [2005] EWHC 17 (Admin)(1) In deciding not to discharge, Tribunal can consider disorders other than the those from which the patient is classified as suffering. (2) Section 75 is compatible with ECHR even though it includes no express criteria for consideration. 2006‑04‑13 2005 cases, Brief summary, Other classification cases, Reasons, Transcript

Article titles

The following 38 pages are in this category.