JMcG v Devon Partnership NHS Trust  UKUT 348 (AAC),  MHLO 28
Deferred discharge beyond current authority for detention "The principal issue in this appeal is whether the First-tier Tribunal (Mental Health) erred in law in its belief that, pursuant to s.72(3) of the Mental Health Act 1983, it could not defer the discharge of a detained patient beyond the date of the order authorising detention. The Appellant patient criticised the tribunal for (a) refusing to defer his discharge until a date after the authority for his detention had expired and (b) failing to give adequate reasons for its decision overall. I have concluded that the tribunal did not err in law with respect to the effect of section 72(3) since its reasons did not assert that a deferred discharge could not exceed the date of the order authorising detention. Though strictly obiter, I have concluded that a deferred discharge cannot exceed the date of the order authorising detention and explain why I have reached that view below. I also concluded that the tribunal’s reasoning in this case was adequate."
The decision in relation to deferred discharge was obiter (not binding) and I think wrongly decided.
The following is from the Gov.uk website (see external link below):
Mental Health – detention under Mental Health Act – section 72(3) – whether tribunal had power to defer the discharge of a detained patient beyond the date of the order authorising detention
The appellant, a prisoner, was transferred to hospital for treatment after he became psychotic and paranoid. His condition eventually improved after he was transferred to a hospital closer to his home and had received anti-psychotic medication. On 9 December 2016, he applied to the First-tier Tribunal (F-tT) for discharge from detention. The appellant recognised that immediate discharge would be inappropriate and the tribunal was invited to defer discharge to allow the care team sufficient time in which to arrange for appropriate accommodation. The F-tT refused the application having found that such deferment would be for a short period as the appellant’s section was due to expire in early February 2017. The appellant appealed to the Upper Tribunal (UT) on the basis that the F-tT had erred in its belief that, pursuant to section 72(3) Mental Health Act 1983, it could not defer the discharge of a detained patient beyond the date of the order authorising detention and had failed to give adequate reasons for its decision overall.
Held, allowing the appeal, that:
- a tribunal when exercising its power pursuant to section 72(3) to direct a discharge on a future specified date, cannot specify a future date for discharge after that on which the authority for the patient’s detention expires (paragraph 32);
- once the tribunal had made a direction pursuant to section 72(3) liability to be detained, either pursuant to sections 2 or 3 or indeed to a Community Treatment Order, came to an end on the date specified for discharge. A date set beyond the date of the order authorising detention would be as invalid as the continuation of the Community Treatment Order in MP v Mersey Care NHS Trust ! since the necessary underpinning of the order authorising detention would be lacking (paragraph 34);
- there was no basis to intervene with the F-tT’s decision as it had carried out its fact-finding role rationally and its written reasons accorded with the UT’s guidance in MS v North East London Foundation Trust ! - the F-tT had (a) stated what facts it had found; (b) explained how and why it made them; and (c) showed how it applied the law to those facts (paragraphs 41 to 46).
The summary below is reproduced from Mind, 'Legal Newsletter' (March 2018).
The mental health tribunal cannot defer a patient’s discharge to a date after their renewal.
JMcG was transferred from prison to hospital under section 47 of the Mental Health Act 1983 (MHA). After the expiry of his sentence he applied to the tribunal for discharge. He requested that his discharge be deferred under section 72(3) to allow an appropriate aftercare package to be put in place, including the suitable accommodation.
JMcG’s application was refused, the tribunal finding that the statutory criteria for detention were met. The tribunal noted in the decision that JMcG’s detention period was due to expire 3 weeks after the hearing (absent being renewed by his Responsible Clinician) and that that period ‘would not be long enough to wean him from Diazepam and nor would it be enough time to give the best opportunity of finding appropriate discharge accommodation nor to reintroduce him to the community by way of controlled leave’.
JMcG appealed to the Upper Tribunal on the grounds that:
The tribunal had misinterpreted the law by holding itself as being unable to defer a patient’s discharge at a date beyond the date of renewal The tribunal had failed to give adequate reasons for why the statutory criteria for detention were met. The Upper Tribunal held that the tribunal did not in fact assert that discharge could not be deferred beyond the date of expiration, but that, though obiter, it could not. To order discharge at a later date would effectively extend the period of authorisation: a power which the Act does not provide the tribunal.
Judge Knowles QC noted that the power to defer a discharge is usually used where the tribunal considers that the patient ought to be discharged but that adequate aftercare arrangements have not been made. In such cases an application for an adjournment could be made instead. The Upper Tribunal cited the following passage from R (Ashworth Hospital) v MHRT!:
"If the tribunal had any doubt as to whether such services would be available, they should have adjourned to obtain any necessary information. I regard the alternative of a deferral…as less satisfactory … if the tribunal is in doubt as to whether suitable after-care arrangements will be available, it is difficult to see how they can specify a particular date for discharge. In cases of doubt, the safer course is to adjourn…"
Patients whose hearings are scheduled relatively close before their renewal date will need to consider whether they are in a position to argue for their immediate discharge or whether they will need to apply for their hearing to be adjourned beyond that date. Applications should be made in advance of the hearing where possible and specify directions sought in relation to aftercare arrangements.