AM v Partnerships in Care Ltd  UKUT 659 (AAC),  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 which would be indicative of risk. 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 next tribunal may consider that there are relevant facts other than the alleged rapes.
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 2016 are available here: MHLR 2016.
The role of factual findings in relation to risk assessment; whether a Tribunal had made a factual error in reaching conclusions of fact; the adequacy of reasons relating to findings of fact - AM v Partnerships in Care Ltd and Secretary of State for Justice –  MHLR 214
Points Arising: Acts taken into account in a risk assessment must be proved on a balance of probabilities.
Facts and Outcome: In upholding detention rather than granting a conditional discharge, a Tribunal found that AM had been responsible for 2 of 3 rapes alleged against him (which had not led to charges or convictions) and so presented a risk of sexual violence that required assessment and treatment. This was quashed and remitted by the Upper Tribunal on the basis of errors of fact as to the forensic evidence in support of the allegations and the lack of reasoning.
OSSCSC - transcript