Jonathan Wilson, 'Mental health: update' (Legal Action, April 2016)
Case law update Jonathan Wilson looks at decisions on how tribunals should approach unlawfulness, conditional discharge and deprivation of liberty, representatives, withdrawal of tribunal applications, appropriate treatment, guardianship, assessment of risk, and social circumstances reports.
- 1 About the article
- 2 Approach of tribunal to unlawfulness
- 3 Conditional discharge and deprivation of liberty (patient lacking capacity to consent)
- 4 Conditional discharge and deprivation of liberty (patient with capacity to consent)
- 5 Appointment of legal representative
- 6 Welfare deputy and withdrawal of tribunal applications
- 7 Appropriate treatment test
- 8 Guardianship and deprivation of liberty
- 9 Fact-finding and assessment of risk
- 10 Authorship of social circumstances reports
About the article
This article was first published in Legal Action magazine and is reproduced by kind permission. This article and subscription details are available on their website. The next mental health article is: Jonathan Wilson, 'Mental health: update' (Legal Action, February 2017). Some cases may have been appealed since the article was written. You should check the relevant Mental Health Law Online pages, as these normally contain details of any appeals.
Jonathan Wilson looks at decisions on how tribunals should approach unlawfulness, conditional discharge and deprivation of liberty, representatives, withdrawal of tribunal applications, appropriate treatment, guardianship, assessment of risk, and social circumstances reports.
Approach of tribunal to unlawfulness
PJ v A Local Health Board
- 4 September 2015
The conditions of PJ’s community treatment order (CTO) included that he had to reside at a care home and adhere to the rules of residence there. The regime included 15-minute observations and a weekly routine of escorted and unescorted leave.
He argued that he was being unlawfully subjected to a deprivation of liberty and that the tribunal should therefore discharge the CTO. The Mental Health Review Tribunal for Wales (MHRTW) concluded that he was not deprived of his liberty and, even if he had been, the CTO framework was needed and ‘must take precedence over any human rights issue’.
Charles J allowed the appeal against both aspects of the decision. Firstly, the tribunal had erred in law in its application of P v Cheshire West and Chester Council!. The ‘acid test’ set out in that case is that the ‘objective’ element of European Convention on Human Rights (ECHR) art 5 deprivation of liberty is present if a person is under continuous supervision and control, and not free to leave. It was not necessary for Charles J to apply the test, but he agreed with counsel that it was difficult to see how the tribunal’s conclusion could be right.
Secondly, in construing and applying statutory criteria, the tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of art 5 or any other ECHR right. This means, for instance, that the availability of appropriate treatment refers to lawful treatment that is lawfully available. The same approach applies to the discretion to discharge and the power to adjourn proceedings.
He provided a checklist for tribunals when considering if an art 5 breach arises from CTO conditions that are necessary to protect the patient or the public:
148. Whether the implementation of the conditions will on an objective assessment result in a deprivation of the patient’s liberty …
149. If there is or may be such a deprivation of liberty whether the patient does or does not have capacity to consent to the relevant conditions and care regime and the deprivation of liberty it creates …
150. If the patient does have that capacity does his or her consent avoid a breach of article 5? [He later answered this in the affirmative in MM v WL Clinic!: see below.] …
151. If the patient does not have capacity can any objectively assessed deprivation of liberty be authorised by the Court of Protection [COP] or under the [deprivation of liberty safeguards (DoLS)] in the [Mental Capacity Act (MCA) 2005]? …
152. If the patient lacks capacity can s64D of the [Mental Health Act (MHA) 1983] be relied on to avoid a breach of article 5? [He described this as a matter ‘for another day’.]
153. How the conclusions on the above should be taken into account in the determination of whether there should be an adjournment and if not whether it should discharge or uphold the CTO?
In relation to the final point, Charles J indicated that:
- The tribunal should generally adjourn, with directions as to what should be addressed, if an issue remains to be decided on whether there is a breach of an ECHR right (eg whether there is a deprivation of liberty) or whether breach could be avoided (eg by a DoLS authorisation, or consent, or change of CTO conditions). An adjournment would provide an opportunity to make lawful the implementation of conditions and still allow the patient to remain out of hospital.
- It would only be in cases in which an ECHR breach could not be avoided that the tribunal would have to discharge the CTO, with the possible consequences that the patient would have to remain in or be returned to hospital, or leave hospital on a different basis.
Comment: This is a potentially farreaching decision. It runs counter to the view that the tribunal merely applies the criteria at the time of the hearing, leaving general questions of lawfulness to the courts (see, for instance, SH v Cornwall Partnership NHS Trust! and GA v Betsi Cadwaladr University Local Health Board !). The reasoning would apply similarly to other types of case (such as restricted conditionally discharged patients) and to other unlawfulness (such as art 8 breaches).
In the summary of this case issued to tribunal judges as guidance, the deputy chamber president suggests that a panel should highlight the apparent deprivation of liberty, then move on to consider the statutory criteria and ‘[i]f satisfied as to the need for a CTO in principle, it should not discharge the CTO under discretionary powers as this could place the patient and public at serious risk’. This appears to rephrase the position found to be unlawful by the Upper Tribunal (UT). The correct approach will generally involve adjournment, and possibly discharge, as noted above.
The decision is being appealed to the Court of Appeal.
Conditional discharge and deprivation of liberty (patient lacking capacity to consent)
Secretary of State for Justice v KC
- 2 July 2015
The First-tier Tribunal (FTT) decided that KC’s detention in hospital for treatment was no longer necessary, but that continued confinement in the community would be necessary to prevent further sexual offending. It granted a deferred conditional discharge, with one of the conditions being: ‘The patient (KC) will reside at [the placement] and will not leave the premises unless accompanied and supervised at all times by an appropriate member of staff.’
It was common ground that the regime was the least restrictive option consistent with the promotion of his best interests and the protection of the public and KC, but would meet the ‘objective’ element of deprivation of liberty. As he could not validly consent, the ‘subjective’ element was also present.
The FTT decision led to Court of Protection proceedings (seeking a welfare order consenting to the proposed regime), which in turn triggered the Secretary of State for Justice’s (SSJ) appeal against the FTT’s decision.
The SSJ argued that the ratio of the decision in the earlier RB case (SSJ v RB!) meant no tribunal can direct a conditional discharge of a restricted patient on conditions that, if they are put into effect, would result in a deprivation of liberty of the patient outside hospital.
Charles J decided that the ratio of RB meant merely that conditions cannot be imposed that, when implemented, would result in a deprivation of liberty in breach of ECHR art 5.
The MHA 1983 alone could not authorise the deprivation of liberty of a conditionally-discharged patient but, in relation to a patient lacking capacity to consent, this could be authorised under the MCA 2005 and therefore be compatible with art 5. Either a DoLS authorisation or a COP order can come into force on a future date or on a future event.
The SSJ also argued that the desired result could be achieved through the ‘back door’ by a conditional discharge without ‘deprivation of liberty’ conditions, on the basis that the deprivation of liberty could be separately authorised under the MCA 2005. Charles J decided that the MHA 1983 decision-maker (the tribunal or Ministry of Justice) cannot lawfully pass the statutory responsibility for deciding what the protective conditions are to be to the MCA 2005 decision-maker (the COP or the DoLS decision-makers), and that first the MHA 1983 decision-maker must decide on the necessary conditions and next the MCA 2005 decision-maker must apply the MCA 2005 tests and cannot choose a regime that does not include those conditions.
The SSJ’s appeal was therefore dismissed.
Conditional discharge and deprivation of liberty (patient with capacity to consent)
MM v WL Clinic
- 23 November 2015
MM was a patient who had capacity to consent to the proposed conditions of his discharge and therefore (in contrast with KC) there was no possibility of authorisation under the MCA 2005. The FTT decided that, following RB, it did not have jurisdiction to grant a conditional discharge with ‘deprivation of liberty’ conditions (or to circumvent that by utilising a single condition of care plan compliance) and that, in any event, a capacitous patient cannot give valid consent to ‘deprivation of liberty’ conditions.
Charles J allowed appeals in relation to both aspects of that decision. First, in relation to jurisdiction, he noted that the tribunal’s decision pre-dated and was contrary to his decision in KC (above).
Secondly, in relation to consent, he decided that a capacitous restricted patient has a real choice founded on the advantages and disadvantages of the proposed placement and can, therefore, provide valid consent. This put the patient in an equivalent position to the MCA 2005 decision-makers for patients lacking capacity. The valid consent and therefore the lack of the ‘subjective’ element means that there is no art 5 deprivation of liberty.
The appeal was therefore allowed and the case remitted to the FTT to apply the decision in KC in determining its jurisdiction, and this decision in MM in relation to consent.
As practical guidance, Charles J noted that a tribunal has to consider whether the consent is freely given, based on a real choice to agree to the conditions, and whether the situation created by that consent satisfies the test for conditional discharge. The discharge test would involve a comparison of available options and consideration of the consequences of possible withdrawal of consent. In relation to withdrawal, Charles J had expressed in KC the obiter opinion that the ability to agree to act in a certain way for a set period of time or until the expiry of a reasonable notice period arguably extended to fundamental human rights, so that the patient could undertake to abide by the conditions for at least a set future period.
Comment: Many practitioners will welcome the decisions in KC and MM, which clarify the framework for patients who are ready to move on from hospital to the community on condition that they continue to be subject to confinement in the community.
Charles J refused the SSJ permission to appeal against MM, in a stronglyworded judgment (MM v WL Clinic (No 2)!), but permission was subsequently granted by the Court of Appeal. In order to obtain finality on this point, it is hoped that the appeal is heard as soon as possible.
Appointment of legal representative
YA v Central and North West London NHS Trust
- 4 February 2015
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 SI No 2699 (TP(FTT)(HESCC) Rules) r11(7) states that:
In a mental health case, if the patient has not appointed a representative, the tribunal may appoint a legal representative for the patient where —
- (a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or
- (b) the patient lacks the capacity to appoint a representative but the tribunal believes that it is in the patient’s best interests for the patient to be represented.
A legal representative had been appointed for YA under r11(7)(b) but she was adamant that she did not want any representation. The FTT decided that the person appointed as her representative should remain at the hearing in case there was advice or guidance YA wanted from her. That person remained but took no part in proceedings. YA, disappointed with the tribunal’s refusal to discharge, subsequently appealed.
It was unclear from the reasons whether the tribunal had: (a) discharged the appointment (either on the basis of YA having capacity or it not being in her best interests to be represented) but invited the ‘representative’ to remain; or (b) continued the appointment on the basis that the only part the representative could play was if YA sought her assistance.
Charles J decided that the tribunal had failed to address, or failed to explain how it had addressed: (a) YA’s capacity to appoint a representative; (b) if she lacked that capacity, whether it was in YA’s best interests to be represented; (c) the role of that representative; and (d) whether it had any power to suggest or direct how a representative appointed under r11(7)(b) should take part in the hearing.
He held that the tribunal is not empowered to direct how the legal representative should act, so should either have continued the appointment or discharged it. Had the tribunal addressed that choice (on the basis of the guidance set out below), it was highly likely that it would have discharged the appointment and so the result would have been effectively the same. The decision involved an error of law but there was no point in setting it aside.
Guidance provided in the judgment:
(a) Assessing whether the patient has the relevant capacity
The principles and approach set out in the MCA 2005 and its Code of Practice should be applied to the determination of capacity for the purposes of r11(7).
Rule 11(7)(b) involves an assessment of a person’s capacity to appoint a representative. This involves being able to understand and weigh the advantages, disadvantages and consequences of each option. This is more than the very limited capacity required to make an application to the tribunal or have someone help to make it (see R (MH) v Secretary of State for Health!). Factors that the patient will have to be able to sufficiently understand, retain, use and weigh will be likely to include the following (para 58):
i) the detention, and so the reasons for it, can be challenged in proceedings before the tribunal who, on that challenge, will consider whether the detention in justified by the provisions of the MHA,
ii) in doing that, the tribunal will investigate and invite and consider questions and argument on the issues, the medical and other evidence and the legal issues,
iii) the tribunal can discharge the section and so bring the detention to an end,
iv) representation would be free,
v) discussion can take place with the patient and the representative before and so without the pressure of a hearing,
vi) having regard to that discussion a representative would be able to question witnesses and argue the case on the facts and the law, and thereby assist in ensuring that the tribunal took all relevant factual and legal issues into account,
vii) he or she may not be able to do this so well because of [his or her] personal involvement and the nature and complication of some of the issues (eg when they are finely balanced or depend on the likelihood of the patient’s compliance with assessment or treatment or relate to what is the least restrictive available way of best achieving the proposed assessment or treatment),
viii) having regard to the issues of fact and law his or her ability to conduct the proceedings without help, and so
ix) the impact of these factors on the choice to be made.
Charles J decided that an inability to appreciate a lack of capacity to conduct proceedings without help (as opposed to making an unwise decision to represent oneself) is effectively determinative of the question of capacity of that person to appoint a representative.
(b) Patients with capacity
A patient with capacity has the right to terminate the appointment of a representative, even if formally the tribunal has to end it. Usually, this would follow appointment under r11(7)(a) but, exceptionally, it may follow appointment under r11(7)(b) where there is a change or an initial error.
(c) Patients lacking capacity
After appointment under r11(7)(b) the relevant issue becomes capacity to give instructions on the conduct of the proceedings to the solicitor (rather than capacity to conduct proceedings unrepresented), so the focus is on whether the patient is capable of sufficiently understanding, retaining, using and weighing, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which the patient’s instructions on the case are or are likely to be necessary in the course of the proceedings (see Masterman-Lister v Brutton & Co! and Dunhill v Burgin ! at paras 16–18).
The appointment authorises the legal representative to act for and attempt to obtain instructions from the patient and to ascertain the patient’s views, wishes, feelings, beliefs and values. The best interests test in r11(7)(b) and the general requirement to act in the best interests of a person who lacks relevant capacity mean the legal representative is not only appointed in the patient’s best interests but must also seek to promote them.
The purpose and effect of r11(7)(b) is to provide, in mental health cases, an equivalent procedure to the appointment of a litigation friend by civil courts to provide that a patient has an effective role in the proceedings and his or her best interests are advanced and considered in them.
A legal representative appointed by the tribunal should not concede points if the patient objects to that or does not have the capacity to consent to a concession. Rather, the representative should inform the tribunal that only arguable points are being advanced.
The main problems are likely to arise when: (a) the legal representative and patient disagree on best interests; (b) the patient wants to advance an unarguable point; or (c) the patient does not want to be represented. In relation to these, withdrawal of representation or the advancement of unreasoned or hopeless argument may not promote the patient’s best interests or an effective review of the deprivation of liberty, and representation provided against the patient’s wishes not to be represented is not contrary to ECHR arts 5(4) or 6 if it is necessary to depart from the patient’s wishes.
There will be some cases in which the distress and harm caused to a patient will mean that it is in the patient’s best interests for there to be no appointment or the termination of the appointment of a representative. Even in these cases, the need to test the grounds for detention as effectively as is practicable and the ability often to do this by reference to the statute and evidence from report-writers strongly supports the view that the appointment should continue.
In these circumstances, the legal representative should: (a) so far as is practicable, do what a competent legal representative would do for a patient who has the relevant capacity; (b) seek to ascertain the views, wishes, feelings, beliefs and values of the patient; and (c) identify any areas of disagreement with the patient.
If there are disagreements:
- If the patient has capacity in relation to those, the representative must follow instructions or seek discharge of the appointment.
- If the patient lacks the relevant capacity and the representative does not seek discharge of the appointment, the representative should inform the patient and tribunal that (para 101):
- he will provide the tribunal with an account of the patient’s views, wishes, feelings, beliefs and values (including the fact of any wish that the legal representative should act in a different way to the way in which he proposes to act, or should be discharged),
- he will invite the tribunal to hear evidence from the patient and/or to allow the patient to address the tribunal (issues on competence to give evidence are … unlikely to arise but if they did they should be addressed before the tribunal),
- he will draw the tribunal’s attention to such matters and advance such arguments as he properly can in support of the patient’s expressed views, wishes, feelings, beliefs and values, and
- he will not advance any other arguments.
- The tribunal should not delve into the areas of disagreement or why the legal representative is of the view that he or she cannot properly draw matters to the attention of the tribunal or advance argument.
If there are no disagreements, the representative should advance all arguable points to test the bases for the detention in hospital. It may or may not be appropriate to invite the tribunal to hear directly from the patient.
When the tribunal is considering making an appointment, having found that the patient lacks capacity to appoint a legal representative, the most important guiding principles on the application of the best interests test are:
- the underlying purpose and importance of the review, and so the need to fairly and thoroughly assess the reasons for the detention;
- the vulnerability of the person who is its subject and what is at stake;
- the need for flexibility and appropriate speed; and
- whether, without representation, the patient will practically and effectively be able to conduct the case and, if not, whether the tribunal is likely to be sufficiently informed to be able to carry out an effective review (as to this, the tribunal should, when deciding the case, review this prediction).
Comment: Practically equating the test for capacity to appoint a representative with the test for capacity to conduct the case unrepresented avoided a situation where patients with the former but lacking the latter could not have a representative appointed under r11(7) against their wishes, which in some circumstances may fail, in breach of art 5(4), to ensure their best interests are represented.
Practitioners may be concerned that this test is higher than often previously adopted in practice in mental health tribunal proceedings, and may therefore lead to patients needing to have a representative appointed to act in their best interests who, in the past, would have been able to have a representative act on their instructions. For other patients, however, it may mean they at least have ‘best interests’ representation where before they may have gone without.
Welfare deputy and withdrawal of tribunal applications
AMA v Greater Manchester West Mental Health NHS Foundation Trust
- 4 February 2015
On the day of AMA’s tribunal hearing, his personal welfare deputy sought to withdraw the tribunal application, but his solicitor wished to proceed on the basis that his client had capacity and had instructed him to proceed. The FTT consented to the withdrawal, having decided that AMA lacked capacity and that the deputy had the right to seek to withdraw the application on his behalf.
Charles J held that unless the order appointing a welfare deputy expressly so provides it does not appoint the deputy to act as the patient’s representative in proceedings under the MHA 1983. In this case, the COP order did not provide for this, so the tribunal had erred in law.
In relation to capacity, Charles J repeated some of his decision in YA (above) and added (at para 41) that ‘the patient does not have to be able to fully appreciate or understand all aspects of the issues involved’ and that ‘the capacity simply to instruct a solicitor to challenge a continuation of a detention on all available grounds can be described as very low or a very limited capacity’. However, he said more complex factors are likely to arise in cases such as those concerning compliance with voluntary admission, applications to withdraw and disagreement with the representative. In all such cases, it is ‘likely that a sufficient appreciation by the patient of his impairment of, or disturbance in the functioning of, the mind or brain will be required if he is to have capacity to make the relevant decisions’ (para 42). In AMA’s case, the tribunal had not addressed all the relevant issues in relation to capacity.
Finally, he stated that the requirement for the tribunal’s consent to withdrawal is a safeguard for the patient as it is based on a conclusion that continued detention is justified, and that the tribunal must consider by whom and how the application to withdraw was made and the reasons for it, and must give reasons for its decision on whether to consent. If in doubt, it should refuse to consent.
Comment: Shortly after this decision, the FTT adopted Tribunal policy: withdrawals  MHLO 19 (23 February 2015), which applies the approach in AMA to withdrawal requests to those that are late (received less than 48 hours, not counting non-working days, before the hearing) or ‘tactical’ (eg following refusal of an adjournment or postponement, or withdrawal of a part-heard case or a case that should be heard with another). These cases will be referred to a registrar, judge or panel, and requests received after 4.30 pm on the working day before the hearing will only be considered by the panel. For late withdrawals, full reasons must be provided and the tribunal will bear in mind the importance of a periodic review and, if in doubt, will refuse to consent. The approach in other cases remains that consent will routinely be granted by secretariat staff (Practice Statement: Delegation of Functions to Staff and to Registrars On or After 27 April 2015 (27 April 2015); see also Case HM/0339/2015  MHLO 57 (UT)). Both approaches suit the financial imperatives of the Tribunals Service.
Appropriate treatment test
WH v Llanarth Court Hospital (Partnerships in Care)
- 21 December 2015
At the MHRTW hearing, the responsible clinician gave evidence that there was no appropriate treatment available at the detaining hospital or a proposed alternative hospital. The tribunal refused to discharge, concluding that appropriate treatment was available at the proposed alternative.
UTJ Knowles QC allowed WH’s appeal because a tribunal only has jurisdiction to determine the appropriate treatment test with regard to the treatment that a patient is receiving at the detaining hospital and, additionally, the tribunal’s reasons were inadequate.
Comment: The summary of this case issued to tribunal judges as guidance states that the deputy chamber president is uncomfortable with the decision that the appropriate treatment test refers to the detaining hospital, and states that where this situation arises panels, instead of discharging, ‘should point out that the treatment that is now most appropriate for the patient is available in a hospital, but not in the currently detaining hospital’ and could make a recommendation for transfer. This would appear to ignore the ratio of the UT decision.
The lawful answer for reluctant panels in difficult cases may lie in the wide definition of ‘treatment’. For instance, in the WH case, UTJ Knowles QC disagreed with the submission that the evidence inevitably led to the conclusion that the detaining hospital was not providing appropriate treatment.
Guardianship and deprivation of liberty
KD v A Borough Council and Department of Health
- 18 May 2015
In this case, the patient argued that guardianship was not necessary because alternative and less restrictive arrangements could be imposed under the DoLS regime, and that guardianship could not lawfully authorise his current deprivation of liberty. The FTT refused to discharge and the patient appealed.
As the focus of the case was on the position after discharge, Charles J did not decide whether KD was deprived of his liberty. He did, however, express a preliminary view that any such deprivation of liberty during guardianship should be authorised under the MCA 2005.
Charles J set out a checklist of questions for tribunals to consider when it is argued that the MCA 2005 is an alternative to guardianship. These questions relate to: (a) whether on discharge of guardianship the proposed alternative is lawful or is likely to be made lawful (eg under DoLS or a COP order); (b) identifying the relevant legal differences between regimes and making findings of fact to apply those differences to the rival alternatives and the discharge criteria; (c) considering whether the parties had provided sufficient evidence and argument; (d) identification of the relevant legal issues; and (e) considering whether to discharge immediately or adjourn for evidence to demonstrate the existence of a practically available alternative.
The tribunal had covered the key issues on whether there should have been an immediate discharge and was entitled to conclude that the continued existence of the power of return was necessary and on that basis that continuation of the guardianship was the least restrictive available option.
When considering the argument that an alternative might be available rendering guardianship unnecessary, the tribunal had erred in law by failing to consider an adjournment (in line with the checklist above). However, its conclusion on the continued need for the statutory authority to return, which could not effectively be replicated if the guardianship was discharged, would have provided strong grounds for refusing an adjournment.
The tribunal had erred in law in its decision but, rather than set it aside, the appropriate course was for a further application to be made, supported by appropriate evidence.
Comment: The senior president of tribunals’ annual report 2016 states that in failing to consider adjournment, the tribunal was ‘no doubt mindful of the jurisdiction’s strong guidance to only adjourn if absolutely necessary’ (p65) and also notes the financial and other costs of having to adjourn because of the limitations of the tribunal’s current statutory remit (p66).
In this case and NM v Kent County Council!, the existence of the MHA 1983 s18(3) ‘statutory authority to return’ in guardianship and the absence of an explicit equivalent in DoLS proved decisive. However, it must be at least arguable that: returning a patient would very rarely itself amount to deprivation of liberty and therefore restraint could be authorised by MCA 2005 ss5–6; and where it does amount to deprivation of liberty, that is implicitly authorised under DoLS (see DCC v KH (2009) COP 11729380 and Re ADE (Scope of Schedule A1) (2010) COP 11821802).
Fact-finding and assessment of risk
AM v Partnerships in Care Ltd
- 8 December 2015
The FTT refused to discharge AM from detention, having decided that two out of three rape allegations against him were true and therefore that the grave risk of sexual violence required assessment (and potentially treatment) to be undertaken in hospital.
UTJ Markus QC allowed his appeal on the following grounds:
- 1.The second allegation had been the subject of criminal proceedings with forensic evidence to support it, but the tribunal wrongly believed this also applied to the third. This was a significant error as it appeared to have been a factor in deciding that the third alleged rape took place, and may have caused the tribunal to think the fact that there were two such allegations increased the probability of each having occurred.
- 2.It did not follow from the tribunal’s decision that AM lacked credibility that the allegations were true, even if they were viewed as credible at the time. The tribunal has to be cautious about what on investigation may amount merely to ‘institutional folk-lore’ (R (AN) v Mental Health Review Tribunal ! at para 129) but in this case it had failed to scrutinise the evidence carefully or take into account various difficulties in relation to the evidence.
UTJ Markus QC rejected the responsible authority’s argument that a tribunal can find risk (in relation to the discharge criteria) on the basis of unproven allegations and therefore that no findings of fact were required. Although the discharge criteria involve mixed questions of fact and judgement or evaluation, the judgement or evaluation of what is likely to occur must be based on fact. The decision was set aside and remitted to a different panel. UTJ Markus QC noted that even if the tribunal is not satisfied that the rapes occurred, there may be other relevant facts that could satisfy it of the risk of sexual violence.
AF v Nottinghamshire NHS Trust
- 27 April 2015
The social circumstances reports in AF’s case had been written by the same nurse who wrote the nursing reports and who did not attend the hearing. The FTT refused AF’s request to adjourn for further social circumstances evidence and proceeded to refuse to discharge or make a CTO recommendation. AF’s appeal against the adjournment decision was rejected as it had no material bearing on the tribunal’s substantive decision.
UTJ Wright stated, as guidance, that there is no requirement in the MHA 1983, its Code of Practice, the Practice Direction (First-tier Tribunal Health Education and Social Care Chamber: Statements and Reports in Mental Health Cases) or the TP(FTT)(HESCC) Rules that: (a) the social circumstances report be prepared by a social worker or community psychiatric nurse, or that that report writer be a different person from the person who prepares the nursing report; (b) the report writer attend the tribunal to speak to the report (see Mental Health Act 1983: Code of Practice, para 32.15); or (c) the social circumstances report include details about MHA 1983 s117 after-care in every case – as in this case, the patient may not have progressed to the point where the issue would arise (see AM v West London Mental Health NHS Trust and SSJ!).
Comment: As UTJ Wright noted, the remedy in individual cases is for the tribunal to make directions to remedy defects in reports and any challenge to a policy rendering a responsible authority unable to meet its obligations to provide adequate reports should be brought by way of judicial review.