EC v Birmingham and Solihull Mental Health NHS Trust  EWCA Civ 701,  MHLO 47
The 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.]
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: MHLR 2014. 2014 23
Whether there was a legitimate expectation that a Tribunal would make an extra-statutory recommendation as to transfer or leave in the case of a restricted patient; whether leave or transfer had to be considered as part of the appropriate treatment test - C and F v Birmingham and Solihull Mental Health NHS Trust –  MHLR 23
Points Arising: (1) The practice of the Secretary of State considering Tribunal recommendations as to leave or transfer in the case of restricted patients did not create a legitimate expectation that the Tribunal would exercise that non-statutory power, but was limited to a legitimate expectation as to how they would be considered if made. (2) However, a submission that leave or transfer is part of treatment has to be considered by a Tribunal; discharge must follow if appropriate treatment is not available.
Facts and Outcome: The Court of Appeal upheld decisions of the Upper Tribunal ( MHLR 292) that the failure of a Tribunal to consider making recommendations in the case of restricted patients could not be judicially reviewed because, in contrast to the position in relation to non-restricted patients, there was no power to make them and an analaogue could not be created through judicial review. An argument that leave and transfer were part of treatment and so had to be considered had not been raised before the Tribunal, did not have to be considered by the Tribunal on its own motion, and so could not be raised on appeal: however, it was noted that a submission to the Tribunal that leave or transfer is a part of treatment of the patient had to be considered as part of the application of ss72 and 73. It was also noted by Beatson LJ that If appropriate treatment is not available, discharge must follow.
Hearing: 8/5/13 (extempore judgment)
Before: Laws, Rimer and Beatson LJJ
Roger Pezzani (instructed by Guile Nicholas) for the claimants
Martin Chamberlain QC (instructed by the Treasury Solicitor) for the Secretary of State
C v Birminham & Solihul Mental Health NHS Trust and another; F v St Andrews Health Care and another
 All ER (D) 95 (May), LTL 9/5/2013 EXTEMPORE