Category

Upper Tribunal decisions

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Page and summaryDate added to siteCategories
R (M) v FTT and CICA [2017] UKUT 95 (AAC), [2017] MHLO 12 — "Mr M sought permission to bring judicial review proceedings in respect of three decisions of the First-tier Tribunal (the Tribunal takes a neutral stance in these proceedings). The Upper Tribunal granted Mr M permission to bring judicial review proceedings in respect of two of these decision. In both, the Tribunal had struck out Mr M’s appeals against decisions of the Criminal Injuries Compensation Authority (CICA) not to extend time for applying for review of a decision to refuse to award him compensation. ... In both decisions, the First-tier Tribunal erred in law by failing to consider how to apply the overriding objective of its procedural rules in the light of Mr M’s mental health condition. ... The overriding objective, set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, is to deal with cases fairly and justly. This includes ensuring “so far as practicable, that the parties are able to participate fully in the ..→2017-04-292017 cases, No summary, Transcript, Upper Tribunal decisions
LB v BMH [2017] MHLO 10 (UT) — "The First-tier Tribunal decided that the patient should not be discharged from liability to be detained and to make no recommendation pursuant to section 72(3) and (3A) of the 1983 Act. Paragraph 19 of its written decision recorded the following: 'The solicitor representing the patient sought an adjournment as she had concerns about the quality of the evidence regarding the patient's clinical treatment in the past. We have some sympathy with the view that the patient's treatment history is incomplete. A summary of the previous treatments should be available to the panel wherever possible. However, the recent treatment history during the in-patient admission at [this hospital] was available to the panel. There was ample evidence before the panel that the patient is floridly psychotic and in our view the evidence satisfied the criteria for detention. We refused the request for an adjournment.' ... The grounds of appeal argue that the reports before the First-tier Tribunal gave very ..→2017-03-172017 cases, No summary, Transcript, Upper Tribunal decisions
PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity." 2017-02-232017 cases, No summary, Transcript, Upper Tribunal decisions
JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC), [2016] MHLO 46 — "The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. ... The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015. ... What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf. On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue: 'to what extent should the ..→2016-11-122016 cases, No summary, Transcript, Upper Tribunal decisions
GW v Gloucestershire County Council [2016] UKUT 499 (AAC), [2016] MHLO 45 — "This appeal is brought with the permission of the First-tier Tribunal against the decision of that tribunal refusing to discharge the patient from guardianship. She was first received into guardianship on 8 January 2013 and the Court of Protection first made a Standard Authorisation on 14 February 2015. The essence of the case before both the First-tier Tribunal and the Upper Tribunal is that the former was no longer necessary in view of the latter." 2016-11-122016 cases, Deprivation of liberty, No summary, Transcript, Upper Tribunal decisions
RP v Dudley and Walsall Mental Health Partnership NHS Trust [2016] UKUT 204 (AAC), [2016] MHLO 15 — Unsuccessful Article 8 challenge to conditions of discharge. 2016-05-092016 cases, Brief summary, Transcript, Upper Tribunal decisions
MM v WL Clinic [2016] UKUT 37 (AAC), [2016] MHLO 3 — Charles J refused permission to appeal his earlier decision (the main point of which was that, 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). The Secretary of State can seek permission from the Court of Appeal. 2016-01-282016 cases, No summary, Transcript, Upper Tribunal decisions
WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132 — The tribunal, having decided that the appropriate treatment test in s72(1)(b)(iia) was met, refused to discharge a patient who had a diagnosis of dissocial personality disorder. (1) The Upper Tribunal allowed the appeal on the following grounds: (a) The appropriate treatment test relates only to the treatment that a patient is receiving at the detaining hospital, so the tribunal erred in law by considering the test met because treatment was available elsewhere. (b) The tribunal also erred in law by providing inadequate reasons: (i) the reasons were not set out by reference to the relevant criteria; (ii) the tribunal failed to address any of the solicitor's submissions about appropriate treatment; (iii) it was unclear what evidence was accepted or rejected, and why; (iv) the tribunal made findings which were wholly unsupported by the evidence. (2) The Upper Tribunal also stated that: (a) The tribunal is required to evaluate the evidence and reach its own conclusions, so was not ..→2016-01-032015 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
AM v Partnerships in Care Ltd [2015] UKUT 659 (AAC), [2015] MHLO 106 — The First-tier Tribunal, on the basis of their finding that the patient had committed two rapes, refused to discharge because sexual understanding and treatment work had not been undertaken. The Upper Tribunal held: (1) The tribunal had made a mistake of fact which undermined its conclusion as to the rapes, which was a fundamental error in the light of which the tribunal’s decision not to discharge could not stand. (2) The tribunal’s decision was made in error of law because of its failure to take into account relevant considerations. It had not scrutinised the evidence carefully or addressed features of the evidence which may cast doubt on the allegations; rather, the reasons gave the impression that, having found that AM lacked credibility generally, the tribunal simply and illogically accepted that the rape allegations were true because they were viewed as credible at the time. (3) A decision as to risk must involve findings of fact, not merely suspicion that an act was done ..→2015-12-172015 cases, Brief summary, MHLR summary, Missing from Bailii, 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. 2015-11-262015 cases, Brief summary, Deprivation of liberty, MHLR summary, Powers, Transcript, Upper Tribunal decisions
R (MM and DM) v SSWP (Costs) [2015] UKUT 566 (AAC), [2015] MHLO 73 — Tribunals Judiciary website summary: "When a case is transferred to the Upper Tribunal by the High Court in the exercise of its discretion, the Upper Tribunal will apply the approach to costs taken under CPR." 2015-10-302015 cases, Brief summary, Transcript, Upper Tribunal decisions
PJ v A Local Health Board [2015] UKUT 480 (AAC), [2015] MHLO 63 — The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then the tribunal (whether by the statutory criteria or under its discretion) ..→2015-09-102015 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC), [2015] MHLO 60 — The patient was living outside hospital on s17 leave but was required to attend hospital for fortnightly psychology sessions and a monthly ward round. He challenged the tribunal's decision that it remained appropriate for him to be liable to be detained in hospital under s3 for medical treatment. This was unsuccessful as the tribunal had applied the correct legal test and had applied it properly. The UT judge added that medical treatment includes rehabilitation under medical supervision, which meant that the s17 leave and the rehabilitation provided outside hospital, both of which operated under medical supervision, were themselves part of the treatment plan. 2015-08-072015 cases, Brief summary, Transcript, Upper Tribunal decisions
Case HM/0339/2015 [2015] MHLO 57 (UT) — After the case had been adjourned part-heard, the patient's withdrawal was agreed by a tribunal clerk. The panel judge spoke with a salaried tribunal judge, who then set aside the decision to consent to withdrawal, and the tribunal reconvened without discharging the patient. The salaried tribunal judge's decision was unlawful and the tribunal therefore had no jurisdiction to continue with the hearing. (Under the subsequent Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 [2015] MHLO 36 the original decision would not have been made by a clerk.) 2015-07-262015 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
SSJ v KC [2015] UKUT 376 (AAC), [2015] MHLO 49 — (1) A conditional discharge may include conditions which will, on an objective assessment, give rise to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA. (2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no Article 5 deprivation of liberty. 2015-07-152015 cases, Brief summary, Deprivation of liberty, Transcript, Upper Tribunal decisions
AF v Nottinghamshire NHS Trust [2015] UKUT 216 (AAC), [2015] MHLO 43 — "There is nothing in the law that requires the social circumstances report to have been written by a social worker or CPN and not a nurse, or requiring that the nursing report and social circumstances reports must have different authors, and the tribunal therefore did not err in law in having those two reports before it. Nor was there any legal requirement on the report’s author to attend the hearing and so the tribunal did not err in law in allowing another nurse to attend and speak to that report. Further, the question of whether any deficits in the report (assuming there were such) led the tribunal to err in law must be judged on the facts of the individual case. In a case where the tribunal decided that the appellant had not got to the point of being able to be discharged and needed to remain under section, the relevance of any after-care package in place simply falls away. And the tribunal adequately explained why it was not adjourning." 2015-06-082015 cases, No summary, Transcript, Upper Tribunal decisions
KD v A Borough Council [2015] UKUT 251 (AAC), [2015] MHLO 42 — "Permission to bring this appeal was granted by the First-tier Tribunal (the FTT) because in the view of the judge it raises points upon which guidance is needed. Those points concern the relationship between the functions and powers of the FTT under the Mental Health Act 1983 (the MHA) and those of the Court of Protection, managing authorities and supervisory bodies under the Mental Capacity Act 2005 (the MCA) and its Deprivation of Liberty Safeguards (DOLS). The most relevant provisions of the MHA in this case are those relating to guardianship." This judgment includes guidance under the headings "The approach to be taken by the parties and the FTT on an application to discharge a guardianship under s. 72 of the MHA on the basis that an alternative has the consequence that the guardianship is no longer necessary as it is not the least restrictive way of achieving what is in the patient’s best interests" and "A check list for FTT’s when an issue involving an argument that an ..→2015-06-082015 cases, 39 Essex Chambers summary, Deprivation of liberty, Transcript, Upper Tribunal decisions
NM v Kent County Council [2015] UKUT 125 (AAC), [2015] MHLO 34 — NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS ..→2015-04-102015 cases, Brief summary, Deprivation of liberty, Transcript, Upper Tribunal decisions
YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18 — This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed ..→2015-02-122015 cases, Detailed summary, Other capacity cases, Transcript, Upper Tribunal decisions
AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC), [2015] MHLO 17 — A personal welfare deputy cannot appoint himself (or anyone else) as a representative unless the order appointing him expressly provides for this. This case related to the withdrawal of a tribunal application, and was followed up by Tribunal Policy: Withdrawals (23 Feb 2015) [2015] MHLO 19. 2015-02-122015 cases, No summary, Transcript, Upper Tribunal decisions
NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107 — The 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 ..→2014-11-042014 cases, Deprivation of liberty, Detailed summary, Powers, Transcript, Upper Tribunal decisions
HK v Llanarth Court Hospital [2014] UKUT 410 (AAC), [2014] MHLO 95 — (1) Guidance for tribunals on writing reasons. (2) First-tier Tribunal decision set aside for inadequate reasons. 2014-09-252014 cases, No summary, Transcript, Upper Tribunal decisions
Re MM [2013] MHLO 150 (UT) — (1) The tribunal did not misdirect itself by applying the s2 criteria to a s3 case. (2) However, the tribunal's reasoning was inadequate. The tribunal stated that all the evidence was to the effect that MM's mental disorder 'warrants his treatment in hospital' (this is language from the s2 criteria), but it was only (part of) the medical evidence in which there was any confusion as to the criteria. The findings of fact (that the condition was chronic and relapsing etc) did not show that the mental disorder warranted detention (or made it appropriate). The only finding that could support the tribunal's decision was the medical evidence, which was affected by reference to the wrong legal test. In those circumstances the tribunal should have (a) shown that they had applied the correct criteria and not made the same mistake as the doctor, and (b) shown by precise findings of fact that the s3 criteria were satisfied. A blanket reference to a possibly-contaminated report did not ..→2014-08-172013 cases, Brief summary, Transcript, Upper Tribunal decisions
Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101 — A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded. 2013-11-272013 cases, Bias, Brief summary, Transcript, Upper Tribunal decisions
DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93 — This 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. 2013-10-232013 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80 — It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.] 2013-08-242013 cases, Deprivation of liberty, Detailed summary, Transcript, Upper Tribunal decisions
SSJ v SB [2013] UKUT 320 (AAC), [2013] MHLO 56 — Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty. 2013-08-012013 cases, Brief summary, Discharge conditions, MHLR summary, Transcript, Upper Tribunal decisions
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.] 2013-07-042013 cases, Detailed summary, MHLR summary, Powers, Transcript, Upper Tribunal decisions
RC v NHS Islington [2013] UKUT 167 (AAC), [2013] MHLO 34 — "This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. ... The grounds of appeal argue that the ... policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted. ... The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences. Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal. Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been ..→2013-04-222013 cases, No summary, Transcript, Upper Tribunal decisions
MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32 — The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical ..→2013-04-052013 cases, Brief summary, Transcript, Upper Tribunal decisions
JP v South London and Maudsley NHS Foundation Trust [2012] UKUT 486 (AAC), [2012] MHLO 172 — "The grounds of appeal related to the Tribunal’s finding that he suffered from a mental disorder; the insufficiency of the Tribunal’s reasons for their decision that the appellant was to continue to be detained under section 2, and to his view that there had been a breach of his right to a fair hearing under Article 6 of the European Convention on Human Rights. He made seven specific submissions on this which I shall address hereafter. At the hearing the appellant also raised a breach of Article 9 of the Convention – his right to freedom of thought, and submitted that the Mental Health Act 1983 was flawed." [Summary required.] 2013-03-272012 cases, No summary, Transcript, Upper Tribunal decisions
MA v SSH [2012] UKUT 474 (AAC), [2012] MHLO 171 — The inability of a nearest relative of a patient detained under s2 (in contrast to s3) to apply to the tribunal following the RC's barring of his order for the patient's discharge did not breach Article 5, 6, 8 or 12. 2013-03-272012 cases, Brief summary, Transcript, Upper Tribunal decisions
Bernard v SW London and St George's MH NHS Trust [2013] UKUT 58 (AAC), [2013] MHLO 26 — The medical member, questioning the RC, had stated 'I have no issues with the nature; it is chronic, relapsing, etcetera' but he had not formed a preconceived and concluded view (actual bias) or expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias). 2013-03-272013 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC), [2013] MHLO 25 — The patient had been visited by an independent doctor but did not rely on a report from him. The hospital argued that the tribunal should infer that the doctor had been instructed to prepare a tribunal report, that this report was not favourable to the patient, and that it concurred with the clinical team's opinion. The patient appealed, arguing that (in light of the hospital's argument) the panel should have recused themselves for there to be a fair hearing. (1) In relation to the hospital's argument: (a) as a matter of practical reasoning, it could never succeed (invalid inferences); (b) as a matter of law, it may not be permissible (requiring inferences to be drawn from other inferences); and (c) it failed to take into account the context: 'The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine ..→2013-03-272013 cases, Brief summary, Transcript, Upper Tribunal decisions
MS v North East London Foundation Trust [2013] UKUT 92 (AAC), [2013] MHLO 24 — In this case it was argued that the tribunal had addressed the s3 criteria for a patient who was detained under s2. (1) The Upper Tribunal decided that the First-tier Tribunal had not misdirected itself in this way. (2) However, the judge considered the criteria: he set out why he considered them different (primarily the different purpose of each section) but did not define how they were different. He concluded: 'This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.' (3) The tribunal decision was set aside because, faced with a medical report which had wrong language and a confused focus, the tribunal had failed to analyse the evidence to ..→2013-03-272013 cases, Brief summary, 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.] 2013-03-252013 cases, No summary, Reasons, Transcript, Upper Tribunal decisions
R (S) v Mental Health Tribunal [2012] MHLO 164 (UT) — S unsuccessfully challenged by judicial review (a) the decision of the FTT setting aside its own decision that she be discharged and (b) her continued detention by the hospital. [Summary required.] 2013-02-082012 cases, No summary, Transcript, Upper Tribunal decisions
AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163 — AC 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 ..→2013-01-232012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC), [2012] MHLO 143 — The appellant was subject to a CTO. When he attended for his depot injection, he said that he did not consent to it but nonetheless he submitted to receive it without resistance. He argued that his lack of consent meant that the 'appropriate medical treatment is available for him' test was not met, but the tribunal did not discharge. The UT held that the issue of consent is outside the jurisdiction of the tribunal: (a) the tribunal can only consider the statutory criteria (consent does not arise until the decision to treat has been made, whereas appropriateness and availability are issues that arise prior to that decision); (b) it is the courts which provide judicial oversight of treatment under the Act. 2012-12-202012 cases, Brief summary, Transcript, Upper Tribunal decisions
LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC) — "This is an interlocutory appeal against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber), whereby the First-tier Tribunal declined to exclude evidence. ... the issue for the First-tier Tribunal is not whether evidence is admissible, i.e., whether it can be admitted, but is whether it should be admitted. Relevance is a key consideration. Irrelevant evidence should not be admitted. However, relevance is not the only consideration. The First-tier Tribunal is also entitled to consider the weight of evidence when deciding whether to admit it. ... It is wholly inconsistent for the primary care trust to say that it is confining its case to ten specific incidents and for it then to adduce evidence of complaints or other allegations relating to other incidents in order to show that those ten specific incidents are not isolated. ... In my judgment, the First-tier Tribunal erred in not considering whether any specific evidence should be excluded or redacted at ..→2012-12-192012 cases, No summary, Transcript, Upper Tribunal decisions
AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139 — The 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'. 2012-12-192012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
CNWL NHS Foundation Trust v HJ-H [2012] UKUT 210 (AAC), [2012] MHLO 88 — The 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 ..→2012-09-242012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
MP v West London Mental Health NHS Trust [2012] UKUT 231 (AAC), [2012] MHLO 81 — In 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 ..→2012-08-212012 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. 2012-07-242012 cases, Brief summary, Reasons, 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. 2012-05-202012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
DP v Hywel DDA Health Board [2011] UKUT 381 (AAC) — WP's order for his son DP's discharge was barred by the Responsible Clinician; WP was then advised by the responsible authority that he was not the nearest relative, and that therefore his order and the barring report were of no effect; on this basis the Tribunal rejected WP's subsequent application. DP appealed. (1) The judge treated the barring report as having been withdrawn (rather than never having been valid): because there was no report, the Tribunal had no jurisdiction, so it had been correct to reject the application. (2) If the barring report had not been withdrawn, the question would have been whether a nearest-relative application made by a non-nearest-relative can be rejected: this was left undecided (despite the clear wording of s66). 2012-01-032011 cases, Brief summary, Other NR cases, 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. 2011-09-272011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
MB v BEH MH NHS Trust [2011] UKUT 328 (AAC) — Following the RC's evidence, without hearing other witnesses or submissions on the law and evidence, the Tribunal judge stated that the patient could not obtain a conditional discharge and invited the patient to withdraw his application; the patient withdrew and appealed against the Tribunal's consent to the withdrawal. (1) Consent to withdrawal is a judicial act and is appealable. (2) The judge's expression of a preconceived concluded opinion (as opposed to a provisional view) amounted to a breach of the rules of natural justice and fair procedure in that the appellant was effectively denied a proper opportunity to put his case. (3) The UT's concerns about remedy (that there had been no application to reinstate the case and no re-application by the patient during the relevant eligibility period) were outweighed by the practical benefit of a fresh hearing and the patient, if unsuccessful, retaining his right to apply during the current eligibility period; therefore, the matter was ..→2011-08-232011 cases, Brief summary, Transcript, Upper Tribunal decisions
DB v SSWP [2010] UKUT 144 (AAC) — Tribunal reasons and conflict of experts (industrial accidents case). [Summary required.] 2011-08-092010 cases, No summary, Transcript, Upper Tribunal decisions
JP v Birmingham and Solihull MH NHS Trust (2010) Upper Tribunal 30/7/10 (HM/535/2010) — Unsuccessful appeal in which it was argued that the Tribunal's reasons for preferring the RC's and responsible authority's evidence to the evidence of independent experts were inadequate. 2011-07-252010 cases, No summary, Transcript, Upper Tribunal decisions
KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC) — Treatment in hospital and 'long leash' s17 leave. [Summary required.] 2011-07-202011 cases, No summary, 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 ..→2011-05-042011 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. 2011-04-302011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
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. 2011-04-302011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
TR v Ludlow Street Healthcare Ltd [2011] UKUT 152 (AAC) — (1) The appeal against an interlocutory decision not to order disclosure of medical records was unsuccessful. (2) The judgment also contains guidance on appealing case management decisions, in particular from the MHRT for Wales. 2011-04-302011 cases, Brief summary, Transcript, Upper Tribunal decisions
PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC) — The Tribunal's policy is that a reference made under s68(7) (triggered by the revocation of a CTO) will be treated as having lapsed if the patient subsequently is placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (as amended)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy is unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy is inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the ..→2011-04-162011 cases, Brief summary, 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 ..→2011-03-302011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
LS v LB Lambeth (HB) [2010] UKUT 461 (AAC) — Tribunals Service's notes: 'Scope of right of appeal to Upper Tribunal. Required contents of notification of a decision applying a non- dependent deduction.' [Summary required.] 2011-03-182010 cases, No summary, 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) ..→2011-03-072011 cases, Brief summary, 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. 2011-03-072011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
AH v West London MH NHS Trust [2011] UKUT 74 (AAC) — (1) Once the threshold tests for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state. (2) The threshold tests are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (3) How the right to a public hearing can be ..→2011-03-072011 cases, Brief summary, Publicity, Transcript, Upper Tribunal decisions
CB v Sussex County Council [2010] UKUT 413 (AAC) — (1) Under s25 TCEA 2007 the Upper Tribunal issued a fine of £500, payable within 28 days, for failure to comply with a witness summons issued by the HESC chamber (education jurisdiction). (2) Under s16(3) Contempt of Court Act 1981 the Upper Tribunal specified a term of imprisonment of 7 days if payment was not made within the specified period. 2011-01-222010 cases, Brief summary, 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. 2011-01-132010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
SSJ v RB [2010] UKUT 454 (AAC) — (1) The Tribunal may conditionally discharge with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. [Caution.] (2) The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the UT may feel less inhibited than the High Court in revisiting the issues. 2011-01-132010 cases, Deprivation of liberty, Detailed summary, Discharge conditions, Transcript, Upper Tribunal decisions
SSWP v SS (DLA) [2010] UKUT 384 (AAC) — The decision under challenge was stated to have been made unanimously when in fact it was made by majority. (1) There is no obligation on the First-tier Tribunal (Social Entitlement Chamber) to state whether a decision is made by a majority or is unanimous; however, any statement given must be accurate. (2) If the decision notice accurately records that the decision was by a majority then any statement of reasons must contain at least a brief statement of the reasons for the dissent of the minority member. (3) An inaccurate statement that a decision is unanimous amounts to an error of law. (4) The decision was therefore set aside and remitted to a freshly constituted Tribunal for reconsideration. 2010-12-022010 cases, Brief summary, 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 ..→2010-11-132010 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 ..→2010-09-232010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
AH v West London MH NHS Trust [2010] UKUT 264 (AAC) — (1) The normal practice that Tribunal hearings are held in private is justified; and the relevant factors in deciding whether to direct a hearing in public are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (2) The First-tier Tribunal decision not to grant a public hearing was set aside. (3) The question will be determined by the Upper Tribunal following a further hearing (at which the Department of Health is invited to appear) for the purpose of considering further evidence as to: (a) the practicalities and potential cost of providing a public hearing ..→2010-08-162010 cases, Brief summary, Publicity, Transcript, Upper Tribunal decisions
KF v Birmingham and Solihull Mental Health NHS Foundation Trust [2010] UKUT 185 (AAC) — Various issues including (1) what should happen where an appeal from a First-tier Tribunal's substantive decision on a s2 application is overtaken by events and (2) whether a s3 reference to the First-tier Tribunal lapse once a CTO is made. [Summary required.] 2010-06-182010 cases, Change of status after application made, No summary, Transcript, Upper Tribunal decisions
R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC) — RB was conditionally discharged with a condition that he should not leave a care home without an escort; the MoJ sought a review on the basis that the condition constituted a deprivation of liberty and there was therefore no lawful discharge; the Regional Tribunal Judge set aside the conditional discharge, remitted the case to the First-tier Tribunal, and refused permission to appeal to the Upper Tribunal. (1) It is only appropriate for the First-tier Tribunal to exercise its set-aside powers where there has been a clear error of law; where the legal points are contentious the case should be allowed to proceed to the Upper Tribunal. (2) The RTJ's decisions were quashed/set aside, and permission was given to the MoJ to appeal against the conditional discharge. 2010-06-092010 cases, Detailed summary, Discharge conditions, 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. 2010-05-062010 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. 2010-05-062010 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) ..→2010-03-152010 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 ..→2010-02-182010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) — An application made while a patient is detained under section 2 or 3 does not lapse when the patient is made subject to a CTO, as s72(1) (powers of tribunals) should be given a literal construction. Preliminary points: (1) Discussion on Law Society guidance and cases where client lacks full capacity. The Upper Tribunal has no power to appoint a litigation friend or equivalent, and the OS's powers and duties apply to court proceedings not tribunals; in any event, justice did not require a litigation friend as the potential "best interests" argument was argued by other parties. (2) It was not unlawful for a First-tier Tribunal judge to consider an application for permission to appeal from, or a review of, his own decision. 2009-10-132009 cases, Brief summary, Change of status after application made, Transcript, Upper Tribunal decisions
Bristol City Council v AW [2009] UKUT 109 (AAC) — Housing and council tax benefits. [Summary required.] 2009-10-082009 cases, Community care, No summary, Transcript, Upper Tribunal decisions
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. 2009-09-042009 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
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. 2009-01-152009 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions

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