Upper Tribunal decisions

These cases are also categorised according to their subject matter.
The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Change in status - s47/49 to s37/41 CS v Elysium Healthcare [2021] UKUT 186 (AAC)The patient applied to the MHRT for Wales while subject to a s47/49 restricted transfer direction; then the Court of Appeal quashed the underlying Imprisonment for Public Protection sentence, replacing it with a s37/41 restricted hospital order; then the MHRT decided that following the change in status it lacked jurisdiction to consider the application. The Upper Tribunal set aside the MHRT's decision, on the basis that the patient had remained a restricted patient throughout, and remade it accordingly. Elysium Healthcare was criticised for its "lamentable" failure to comply with case management directions, which delayed proceedings (as did the Upper Tribunal's own inefficient administration). 2021‑08‑24 22:18:07 Judgment available on Bailii

* Removing all conditions of discharge DA v Central and North West London NHS Foundation Trust [2021] UKUT 101 (AAC)Judicial summary: "On an application under s.75 by a conditionally discharged restricted patient who has to date been subject to conditions there is nothing intrinsically irrational in removing the conditions while maintaining the liability to recall: R (SH) v MHRT [2007] EWHC 884 (Admin)M and R (SC) v MHRT [2005] EWHC 17 (Admin)M applied. Nor was there anything irrational in the particular circumstances of this case where the First-tier Tribunal retained liability to recall as a safety net and (though the point was not fully argued) dispensed with the conditions with a view to the patient strengthening his case before a subsequent tribunal. However, the First-tier Tribunal’s reasons failed to meet the legal standard of adequacy, lacking findings as to the likelihood of the appellant becoming unwell and failing to explain why a less restrictive option supported by evidence in some detail from the treating professionals was rejected." 2021‑05‑17 22:29:52

* PHEs: "exceptional" merely refers to an exception to the deeming provision EB v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 362 (AAC)The Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) (APPD) deems that PHEs are not "practicable" within the meaning of rule 34, unless an authorised judge directs that "in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". EB appealed against a refusal to allow a PHE. The Upper Tribunal held that: (1) the APPD cannot override the terms of the rule, and has to be interpreted, if possible, so as to be valid; (2) circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable [in other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34]; (3) health and safety concerns would be relevant to practicability even if there had been no pandemic; (4) the overriding objective is also relevant, although it does not allow the tribunal to refuse a PHE for any reason unrelated to practicability (in particular, the amended practice direction can make no change to the existence of the r34 duty, the cases to which it applies, or the purpose of the examination; and the patient’s ability to participate in the hearing is not relevant); (5) the availability of the requisite technology for PHEs is relevant to the overriding objective and "[w]here that exists, a PHE need not necessarily have (and may well not have) any material impact on the tribunal’s resources" [the decision does not state that the current practice of holding PHEs via CVP and on the hearing day is necessary]; (6) on the facts, the FTT had unlawfully misinterpreted the APPD by considering reasons unrelated to practicability; were EB still detained the decision would have been set aside. 2020‑12‑30 02:19:41

* Unlawful refusal to adjourn telephone hearing GL v Elysium Healthcare [2020] UKUT 308 (AAC)It was wrong for the tribunal to have proceeded with the telephone hearing because: (1) the tribunal had, without investigation, assumed that the patient's flatmate (with whom he was self-isolating to avoid coronavirus) could not overhear; (2) the tribunal had improperly dealt with the patient's anxiety: either it had concluded, without investigation, that the anxiety was without foundation (when he had in fact previously been assaulted because other patients discovered his history), or it had believed the same anxiety would arise at a future hearing (when in fact it arose from the specific circumstances that day); the tribunal should have considered whether his anxiety was genuine and, if so, the impact on his ability to participate; (3) the tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (i.e. telephone) rather than the fear of being overheard that day. 2020‑12‑03 11:19:12

* Public hearing and capacity AR v West London NHS Trust [2020] UKUT 273 (AAC)(1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points. 2020‑09‑29 22:47:26

* Conditional discharge and DOL MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC)(1) Although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by "the different hats approach" (the same judge sitting in the COP and the FTT) or "the ducks in a row approach" (adjournment or deferred conditional discharge). (2) This involves no Article 14 discrimination in favour of incapacitous restricted patients as, under SSJ guidance, the equivalent outcome can be reached for capacitous patients by using s17 leave. (3) The FTT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. (4) The UT discharged the patient subject to conditions of residence, supervision and compliance with "all aspects of the care package" (surprisingly, as the care package would amount to a deprivation of liberty), to take effect on a specified future date (which s73 does not permit), and with permission to apply to the FTT for variation on a material change in circumstances (presumably only before conditional discharge). 2020‑07‑24 21:31:01

* Capacity to make tribunal application SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including: (a) if a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any procedural obligations, proceed to hear the case; (b) anyone can request that the Secretary of State make a reference, including when a patient lacks capacity and wishes to leave hospital: this includes not only the hospital managers and IMHA, but also the tribunal itself, which could adjourn for this purpose instead of immediately striking out the case. 2020‑07‑10 23:49:01

* Change in status - s3 to guardianship AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC)When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction. 2020‑04‑12 21:40:41

* Lawfulness and availability of treatment PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot. 2020‑04‑01 21:30:03

* Reviewing appointment of legal representative SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so. 2020‑02‑06 23:08:39 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Mind summary, Powers, Transcript, Upper Tribunal decisions

* Inadequate reasons for not absolutely discharging SLL v Priory Healthcare Limited [2019] UKUT 323 (AAC)The patient challenged the tribunal's decision to grant a conditional, rather than absolute, discharge. (1) Ground 1: Failure properly to apply the two-stage process required by s73(1) and (2). The MHRT had decided (under s73(1)) that the s72(1)(b)(i) (appropriateness) test was not met, and had moved straight to s73(2) (absolute or conditional discharge) without considering s72(1)(b)(ii) (necessity) or s72(1)(b)(iia) (appropriate treatment). The UT decided that the statute permitted the tribunal to stop once it had decided that it was not satisfied of the first s72 test. However, s73(2) required the tribunal to make findings on substantially similar matters, albeit on a forward-looking basis, and to make a decision on the type of discharge on the basis of those findings. Without express findings (in particular in relation to potential medical treatment for any psychotic condition the patient may suffer from) and an explanation of how the relevant factors were weighed (including the two factors discussed below) it was not possible to be sure how the tribunal reached its decision. The UT gave guidance in paras 33-35 on the findings likely to be required when considering s73(2), and in para 47 on the appropriateness of treatment with no realistic prospect of therapeutic benefit. (2) Ground 2: Failure to give adequate reasons. The Appellant had presented credible expert evidence that risk could be managed by future Part 2 detention rather than the recall power, so it was incumbent on the Tribunal to explain why it was not persuaded by that evidence: instead, it had merely quoted another doctor's evidence (which stated that recall would be available but did not grapple with the Part 2 issue) and said that this evidence was "more apt". The Appellant had also argued that the setting of a psychiatric hospital was positively harmful, and the tribunal had failed to explain its rejection of this argument. Taken as a whole it was not adequately clear why the tribunal was not satisfied that it was inappropriate for the Appellant to continue to be liable to recall to hospital for further treatment. 2019‑12‑09 22:33:17

* Proceeding in absence of solicitor and patient DA v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 348 (AAC)The tribunal refused to adjourn the case of a CTO patient who had not attended the hearing, then the solicitor left the hearing because she felt unable to represent the patient in those circumstances. (1) The tribunal's initial decision to proceed in the patient's absence referred to rule 39(1) (whether the party had been notified of the hearing or reasonable steps had been taken to notify the party of the hearing, and whether it was in the interests of justice to proceed with the hearing) and rule 39(2)(a) (whether the patient had decided not to attend the hearing or was unable to attend the hearing for reasons of ill health) but not rule 39(2)(b) (whether a rule 34 medical examination of the patient been carried out or was impractical or unnecessary). However, given the assumption that, as an expert tribunal, it will have got the law right, it was more likely than not that the tribunal decided it was impractical to carry out an examination. (2) The tribunal had not considered making an appointment under rule 11(7), but this was unnecessary as there was no indication that the patient had withdrawn her instructions or lacked capacity. (3) When the solicitor departed, it was incumbent upon the tribunal to make a fresh assessment under rule 39(1) as to whether it was in the interests of justice to proceed with the hearing. Its reasons did not mention the departure and it was unlikely that the tribunal had carried out such an assessment; even if it had done so, the lack of any explanation would have rendered the reasons inadequate. (4) The matter was remitted to the First-tier Tribunal for a re-hearing by a differently-constituted panel. 2019‑11‑18 14:48:18 2019 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Powers, Transcript, Upper Tribunal decisions

* Oral tribunal decision PAA v SSHD [2019] UKUT 13 (IAC)The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above. 2019‑07‑26 21:46:00

* Reinstatement JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC)(1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties." 2019‑07‑17 10:54:45

* ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2018] MHLO 76 (SC)On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons. 2019‑05‑15 13:10:40 2018 cases, Cases, Judgment available on MHLO, MHLR summary, Neutral citation unknown or not applicable, Powers, Transcript, Upper Tribunal decisions

* Meaning of "nature" in discharge criteria LW v Cornwall Partnership NHS Foundation Trust [2018] UKUT 408 (AAC)(1) Having considered the statutory framework of CTOs and the legislative purposes behind them the UT concluded, primarily on that basis, that in cases where there is a risk of a relapse which might necessitate recall, how soon that such a relapse is likely to occur is a relevant consideration. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be "soon", "in the near future" or within the permitted duration of a CTO. (2) Addressing the claimants' arguments on the analogy between detention and CTO cases, the judge stated that while there are some parallels between the s3 regime and CTOs they are not such that the same principles necessarily apply to both, and (to the extent necessary to reach a view on the detention cases) neither of the previous judgments cited in CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) provided an authoritative basis for the view that imminence of relapse is the only factor or need be in the near future. 2019‑01‑11 14:05:05

* Capacity to make tribunal application VS v St Andrew's Healthcare [2018] UKUT 250 (AAC)(1) The capacity that a patient must have in order to make a valid MHT application is that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released. This is a lower threshold than the capacity to conduct proceedings. (2) (Obiter) a solicitor appointed under rule 11(7)(b) can request to withdraw an application in the best interests of the patient, but on the facts the tribunal had been entitled to give effect to the patient's own desire to come before a tribunal. (3) When a tribunal lacks jurisdiction it should strike out the proceedings but (obiter) if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law. 2018‑08‑25 22:22:47

* Covert medication and MHT M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC)The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision. 2018‑04‑20 20:33:54

* Tribunal reasons M v An NHS Trust [2017] MHLO 39 (UT)"[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made." 2018‑01‑27 22:25:39 2017 cases, CTO cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript, Upper Tribunal decisions

* Religious beliefs and tribunal expertise DL-H v West London MH NHS Trust [2017] UKUT 387 (AAC)Judicial summary from website: (1) "In deciding whether a patient is manifesting religious beliefs or mental disorder, a tribunal is entitled to take account of evidence from both religious and medical experts." (2) "A tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision." 2017‑10‑13 22:09:08 2017 cases, Cases, Judgment available on Bailii, Mind summary, Reasons, Upper Tribunal decisions

* Deferred discharge beyond current authority for detention JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC)The Upper Tribunal stated (probably wrongly) that the date of a deferred discharge cannot exceed the date of the order authorising detention. This was only obiter and seems to have been based on the false premise that a deferred discharge beyond the date on which the authority for the patient’s detention expires would have the effect of extending the period of detention. 2017‑09‑08 13:12:19

* ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436"[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention." 2017‑07‑02 23:01:01 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Powers, Upper Tribunal decisions

* CICA R (M) v FTT and CICA [2017] UKUT 95 (AAC)"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 proceedings”. ... Accordingly, the overriding objective extends to taking such steps as are practicable to enable a party to present his case. This does not mean the First-tier Tribunal has to construct a case for an applicant. But it does call for a Tribunal to consider whether an applicant’s circumstances mean that he faces obstacles in presenting his case that the Tribunal should seek to remove or mitigate to ensure a case is dealt with fairly and justly. The appropriate step or steps to take will be informed by the circumstances of the case but could include: ensuring that an applicant’s liability to detention in a mental health institution does not prevent him attending a hearing; inviting an applicant to consent to the Tribunal obtaining medical records rather than insisting that the applicant supplies them; acting more inquisitorially than it would in the case of a represented applicant or one without a mental health condition. ... Section 5(7) '"`UNIQ--nowiki-000001A6-QINU`"'Rehabilitation of Offenders Act 1974'"`UNIQ--nowiki-000001A7-QINU`"' provided that, where a hospital order under Part III of the Mental Health Act 1983 was imposed on conviction, the rehabilitation period for the conviction (at the end of which it was ‘spent’) was the longer of the following dates: (a) the period of five years from the date of conviction; or (b) the period beginning with the date of conviction and ending two years after the date on which the order ceases to have effect. ... I note that section 5 of the 1974 Act was amended, from 10 March 2014, by section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As amended, section 5 refers to a range of “relevant orders” which include a hospital order under Part III of the Mental Health Act 1983. The rehabilitation period for the conviction that led to a relevant order is “the day provided for by or under the order as the last day on which the order is to have effect”. I suspect the new version of section 5 of the 1974 Act will apply if the First-tier Tribunal considers it necessary to determine whether Mr M’s conviction, for which he was made subject to a hospital order, was spent when he made his original application for compensation. That is because section 141 of the 1974 Act generally gives retrospective effect to the amendments made to section 5 by the 1974 Act (see G v First-tier Tribunal (interested party: CICA) [2016] UKUT 196 (AAC)B)." 2017‑04‑29 21:42:30 2017 cases, Cases, Judgment available on Bailii, Upper Tribunal decisions

* Refusal to adjourn set aside 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 little information about the patient' s previous placement, nor about the reasons for the transfer, nor about any previous trials with clozapine. The application for an adjournment was made with a view to persuading the First-tier Tribunal to recommend a transfer under section 72(3), which was not possible without further information. This was especially important because the First-tier Tribunal proceedings were by way of reference and the patient was unlikely to appeal himself 'and may remain inappropriately placed for a further three years'. I agree with these grounds and also note that the application to adjourn was not made by or on the instructions of the patient but by an experienced specialist solicitor who had herself been appointed by the tribunal and felt that there was inadequate evidence before the tribunal (which, to an extent, the tribunal itself acknowledged). ... [T]he refusal to adjourn amounted to a breach of the rules of natural justice and fair procedure and for these reasons this appeal is allowed." 2017‑03‑17 21:59:36 2017 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript, Upper Tribunal decisions

* Fluctuating capacity to appoint/instruct representative PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC)"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." The Tribunal panel must keep the patient’s capacity in relation to Tribunal rule 11 under review during the hearing, and an appointment may be made for a patient with fluctuating capacity who had previously appointed his own representative. 2017‑02‑23 21:49:05 2017 cases, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions

* Strike out - no capacity to make application R (OK) v FTT [2017] UKUT 22 (AAC)The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. Detailed summary available on case page. 2017‑01‑27 23:58:57

* ECHR and tribunal criteria JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC)"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 circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'" 2016‑11‑12 00:09:27 2016 cases, Cases, Judgment available on Bailii, Powers, Upper Tribunal decisions

* Guardianship GW v Gloucestershire County Council [2016] UKUT 499 (AAC)"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." 2016‑11‑12 00:00:27 Cases

* Conditions of discharge RP v Dudley and Walsall Mental Health Partnership NHS Trust [2016] UKUT 204 (AAC)Unsuccessful Article 8 challenge to conditions of discharge. 2016‑05‑09 22:44:39 Cases, Discharge conditions cases

WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132The 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 obliged to accept the RC's opinion that no appropriate treatment was available; (b) Looking at the evidence as a whole, it was not necessarily the case that there was no evidence of appropriate treatment being provided to the patient; (c) It would be desirable for the MHRT for Wales to adopt the English Practice Direction on Reports, as the Welsh Rules provided little useful guidance, and full reports would have assisted in this difficult case; (d) The patient was currently detained in England so the Welsh tribunal was invited to transfer the case to England. 2016‑01‑03 23:08:27 2015 cases, Brief summary, Judgment available on Bailii, MHLR summary, Transcript, Upper Tribunal decisions

AM v Partnerships in Care Ltd [2015] UKUT 659 (AAC), [2015] MHLO 106The 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. 2015‑12‑17 23:08:13 2015 cases, Brief summary, Judgment available on Bailii, MHLR summary, Transcript, Upper Tribunal decisions

* Conditional discharge and DOL MM v WL Clinic [2015] UKUT 644 (AAC)(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. (Caution: see Court of Appeal decision.) 2015‑11‑26 20:58:29

R (MM and DM) v SSWP (Costs) [2015] UKUT 566 (AAC), [2015] MHLO 73Tribunals 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." 2015‑10‑30 22:30:40 2015 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

* CTO DOL condition PJ v A Local Health Board [2015] UKUT 480 (AAC)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) should discharge the CTO. (3) Guidance to tribunals was given under the following (paraphrased) headings: (a) whether implementation of the conditions will objectively amount to a deprivation of liberty; (b) whether the patient has capacity to consent; (c) if the patient has capacity, whether consent avoids a breach of Article 5; (d) if the patient lacks capacity, whether the objective deprivation of liberty can be authorised under the MCA; (e) if the patient lacks capacity, whether s64D can be relied upon to avoid an Article 5 breach; (f) how the conclusions on the above should help decide whether to adjourn, or discharge or uphold the CTO. (Caution: see Court of Appeal decision.) 2015‑09‑10 00:18:19

SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC)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. 2015‑08‑07 22:27:01 2015 cases, Brief summary, Judgment available on Bailii, 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 (27/4/15) the original decision would not have been made by a clerk.) 2015‑07‑26 23:29:14 2015 cases, Brief summary, Judgment available on MHLO, MHLR summary, Neutral citation unknown or not applicable, Transcript, Upper Tribunal decisions

* Conditional discharge and DOL SSJ v KC [2015] UKUT 376 (AAC)(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. 2015‑07‑15 22:54:29

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." 2015‑06‑08 23:16:19 2015 cases, Judgment available on Bailii, 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 alternative involving the application of the MCA is said to be the basis for a discharge of guardianship". 2015‑06‑08 21:43:37 2015 cases, 39 Essex Chambers summary, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Transcript, Upper Tribunal decisions

NM v Kent County Council [2015] UKUT 125 (AAC), [2015] MHLO 34NM 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 cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. He also said that a limitation inherent in the DOLS regime was that, while it could prevent NM from leaving, it could not deal with the possibility that he may abscond. (3) In some (other) cases guardianship may not be necessary for the purposes of s72(4)(b) as DOLS may provide sufficiently for the person’s welfare and the protection of others. (4) The First-tier Tribunal's reasons on the statutory criteria (the key being that NM would not remain at the home without guardianship) and the relationship with DOLS (concerning return following absconsion) were in substance adequate to explain and justify its decision. 2015‑04‑10 20:09:05 2015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript, Upper Tribunal decisions

YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18This 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 (and generally) if the representative forms the view that the patient does have capacity, he should inform the Tribunal and take instructions as normal, and act on those instructions. 2015‑02‑12 23:49:18 2015 cases, Detailed summary, Judgment available on Bailii, MHT capacity cases, Transcript, Upper Tribunal decisions

* Deputyship and MHT AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC)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 (23/2/15). 2015‑02‑12 23:42:15 Cases, Judgment available on MHLO

NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107The 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 necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them. 2014‑11‑04 22:44:48 2014 cases, Deprivation of liberty, Detailed summary, Judgment available on Bailii, Judgment available on MHLO, 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. 2014‑09‑25 01:03:32 2014 cases, Judgment available on Bailii, 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 suffice, and the tribunal made things worse by expressing its legal conclusions in the same confused terms as the medical report. 2014‑08‑17 19:00:23 2013 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript, Upper Tribunal decisions

Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101A 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. 2013‑11‑27 22:42:05 2013 cases, Bias cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93This 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. 2013‑10‑23 23:25:05 2013 cases, Brief summary, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions

AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80It 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.] 2013‑08‑24 14:36:52 2013 cases, Deprivation of liberty, Detailed summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

SSJ v SB [2013] UKUT 320 (AAC), [2013] MHLO 56Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty. 2013‑08‑01 21:29:11 2013 cases, Brief summary, Discharge conditions, Judgment available on Bailii, 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.] 2013‑07‑04 16:17:31 2013 cases, CTO cases, Detailed summary, Judgment available on Bailii, MHLR summary, 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 the case. However, since any practical benefit of this appeal has now been overtaken by events, I ... simply declare the tribunal’s refusal of a postponement to have been in error of law." 2013‑04‑22 10:25:35 2013 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions

MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32The 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 condition and the risk a patient presents is a consequence or feature of that condition; risk is as relevant to treatment as any other feature of the disorder. 2013‑04‑05 20:44:36 2013 cases, Brief summary, Judgment available on Bailii, 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." 2013‑03‑27 23:31:48 2012 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions

MA v SSH [2012] UKUT 474 (AAC), [2012] MHLO 171The 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. 2013‑03‑27 23:19:58 2012 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC), [2013] MHLO 25The 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 any realistic circumstances in which a tribunal, having such evidence, could properly rely on the failure by a patient to produce a report as a basis for drawing inferences that would affect the outcome. The tribunal’s duty, and the only proper course, would be to decide on the evidence available rather than speculate on possible explanations of why the report was not produced.' (2) The arguments for recusal were rejected so the appeal was dismissed. 2013‑03‑27 22:56:07 2013 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

MS v North East London Foundation Trust [2013] UKUT 92 (AAC), [2013] MHLO 24In 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 ensure that the doctor’s opinions could properly be related to the relevant criteria. (4) The tribunal had been asked to make a recommendation so its failure to explain its refusal was an error of law, albeit not of a kind to justify setting aside a decision (rather, a tribunal could amend its decision by adding the explanation). 2013‑03‑27 22:49:25 2013 cases, Brief summary, Judgment available on Bailii, 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." 2013‑03‑25 23:17:43 2013 cases, Judgment available on Bailii, 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. 2013‑02‑08 17:45:42 2012 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Transcript, Upper Tribunal decisions

AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163AC 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 tribunal's statutory function is limited to considering discharge from the scope of the Act; (b) it is true that the tribunal should take into account the practical reality, as in a case where release into the community is impossible and prison is the only alternative (Abu-Rideh), but this reasoning does not apply to a case such as AC's because it is unknown whether the Parole Board will release or what conditions it might impose. 2013‑01‑23 23:41:23 2012 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions

SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC), [2012] MHLO 143The 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. 2012‑12‑20 01:24:24 2012 cases, Brief summary, Judgment available on Bailii, 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 the beginning of the hearing or whether there needed to be a clearer ruling as to the potential relevance of the evidence. It erred in law because it failed to rule that there was an inconsistency in the way the Respondent presented its case and it failed to require the Respondent to give the Appellant adequate notice of the inference it wished the First-tier Tribunal to draw from evidence of uninvestigated complaints and allegations that was not being admitted to prove the contents of the complaints and allegations." [Not an MHT case. Summary required.] 2012‑12‑19 21:48:22 2012 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions

AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139The 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'. 2012‑12‑19 21:29:38 2012 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions

CNWL NHS Foundation Trust v HJ-H [2012] UKUT 210 (AAC), [2012] MHLO 88The 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 the deferral had not been set out adequately (ironically, the judge said the reasoning was 'not pellucid') then its decision would still not have been set aside; if anyone had cause to complain about the deferral it was the patient rather than the Trust. (4) If a CTO patient's condition deteriorates after a deferred discharge decision: (a) before the discharge date, he can be recalled under the CTO which still remains in force, and/or have his medication changed; (b) after the discharge date, he can be detained under s2 or s3, if there is information which was not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. 2012‑09‑24 21:16:59 2012 cases, Brief summary, CTO cases, Judgment available on Bailii, Transcript, Upper Tribunal decisions

MP v West London Mental Health NHS Trust [2012] UKUT 231 (AAC), [2012] MHLO 81In 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 assessment involves a substantial element of judgment or discretion - the STJ was entirely justified in her decision on the inadequacy of reasons. (3) There may well be adversarial aspects in the mental health jurisdiction, but ultimately, given the wider public interest at stake, it is an inquisitorial jurisdiction. (4) The delayed discharge decision itself may have been made in error of law (adjournment being the correct option), a consideration which would have been relevant in relation to permission had the grounds been arguable. 2012‑08‑21 00:43:55 2012 cases, Brief summary, Judgment available on Bailii, 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. 2012‑07‑24 17:23:07 2012 cases, Brief summary, Judgment available on Bailii, 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. 2012‑05‑20 21:25:54 2012 cases, Brief summary, Judgment available on Bailii, 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). 2012‑01‑03 22:45:55 2011 cases, Brief summary, Judgment available on Bailii, 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. 2011‑09‑27 19:25:06 2011 cases, Brief summary, Judgment available on Bailii, 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 set aside and referred to the Chamber President for directions to arrange a hearing by a completely differently constituted panel in order that a fresh decision be made. 2011‑08‑23 11:32:30 2011 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

DB v SSWP [2010] UKUT 144 (AAC) — Tribunal reasons and conflict of experts (industrial accidents case). 2011‑08‑09 20:09:46 2010 cases, Judgment available on Bailii, 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. 2011‑07‑25 22:20:54 2010 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Transcript, Upper Tribunal decisions

* Long s17 leave KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC)Treatment in hospital and "long leash" s17 leave. "Hospital" is defined so widely that this encompasses out-patient reviews at a local Community Mental Health Treatment Base. 2011‑07‑20 19:58:28 2011 cases, Cases, Judgment available on Bailii, Section 17 leave cases, 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 for reconsideration. 2011‑05‑04 22:08:21 2011 cases, Bias cases, Brief summary, CTO cases, Judgment available on Bailii, Transcript, Upper Tribunal decisions

* Nature and degree 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. 2011‑04‑30 16:59:49

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. 2011‑04‑30 16:43:22 2011 cases, Brief summary, Judgment available on Bailii, 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. 2011‑04‑30 16:33:16 2011 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

* CTO reference hearings PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC)The Tribunal's policy was that a reference made under s68(7) (triggered by the revocation of a CTO) would be treated as having lapsed if the patient subsequently was placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (updated 22/9/10)). 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 was 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 was inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the revocation reference lapses. (2) The power to treat a letter as a Tribunal application is only appropriately exercised for the applicant's advantage, not potential detriment; it is not permissible to override an unequivocal indication by the solicitor to the opposite effect, especially if to do so would deprive the patient of the chance to make an application later should discharge not be obtained on the reference. (3) If the hospital managers had been represented, the judge would have wanted to know why it took 12 days to complete the simple referral form. (4) The Tribunal Procedure Committee will be consulting on rule changes to make it easier to handle CTO revocation cases in which the patient does not 'co-operate': in the meantime, the judge suggested that proceedings could be stayed, or hearings conducted in patients' absence. 2011‑04‑16 13:06:11

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 recommendation; the word 'also' showed that it did not form the basis of the reasoning. (4) In so far as there is an inconsistency, it is para 9 which should be given no weight; in any event, the reference to 'care team' rather than 'RC' was loose and legally inaccurate. (5) Where the panel find any of the statutory criteria not met, there is no power under s72(3A) to recommend a CTO: rather, there is a positive duty to discharge. (6) The review decisions were quashed and a declaration made that the panel's decision be reactivated. 2011‑03‑30 21:14:44 2011 cases, Brief summary, CTO cases, Judgment available on Bailii, 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.' 2011‑03‑18 19:34:12 2010 cases, Judgment available on Bailii, 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) There is no separate issue of proportionality: this is amply covered by the terms of legislation and the allocation of the burden of proof. 2011‑03‑07 22:32:59 2011 cases, Brief summary, Judgment available on Bailii, 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. 2011‑03‑07 22:13:57 2011 cases, Brief summary, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions

* Public hearing 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 practically and proportionately be achieved will depend on the facts of each individual case, including the hospital's facilities. (4) The Tribunal directed that AH was to have a public hearing, not within Broadmoor hospital, with the press, public, AH and his representatives enabled to attend in person in the same hearing room. (5) It was likely that in future cases, if detailed evidence of how video-link and public-notification arrangements would work in practice is provided, that a video-link to off-site premises would suffice. 2011‑03‑07 20:41:21

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. 2011‑01‑22 23:59:49 2010 cases, Brief summary, Judgment available on Bailii, 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. 2011‑01‑13 23:58:39 2010 cases, Brief summary, Judgment available on Bailii, 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. 2011‑01‑13 23:51:30 2010 cases, Deprivation of liberty, Detailed summary, Discharge conditions cases, Judgment available on Bailii, 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. 2010‑12‑02 22:26:35 2010 cases, Brief summary, Judgment available on Bailii, 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 explain why the gravity of the index offences was a relevant consideration. (5) The FTT were entitled to order that its decision be placed before any future FTT because, although not binding, earlier decisions are material considerations. (6) Except possibly in relation to the burden-of-proof ground (as an important point of principle), the UT should not have granted permission to appeal. (7) Particular care should be exercised before granting permission to appeal on a ground that was not raised below: had the SSJ been notified of the new grounds (including the burden-of-proof ground) it is likely that the response would have led to permission not being granted. 2010‑11‑13 23:52:31 2010 cases, Brief summary, Judgment available on Bailii, 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 First-tier Tribunal President for directions to arrange a further hearing. 2010‑09‑23 19:17:14 2010 cases, Brief summary, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions

* Factors relevant to holding public hearing 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 (including by use of video facilities); (b) how often public hearings have been applied for in the last five years, the number of occasions on which they have been granted and in practice been held, and how they have been managed; (c) (so far as readily available) practices elsewhere in the United Kingdom, in Europe, and in other common law countries. 2010‑08‑16 22:00:40

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. 2010‑06‑18 23:19:22 2010 cases, Change of status cases, Judgment available on Bailii, 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. 2010‑06‑09 23:29:56 2010 cases, Detailed summary, Discharge conditions cases, Judgment available on Bailii, 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. 2010‑05‑06 18:43:37 2010 cases, Brief summary, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions

* Non-disclosure of covert medication 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. 2010‑05‑06 18:39:53

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) In relation to experts: (a) the duty on parties to co-operate in rule 2(4) must include making their experts available to comply with any directions that are given by the tribunal; (b) the medical examination and expert panel reduce the need for parties to have their own expert evidence. 2010‑03‑15 22:16:45 2010 cases, Brief summary, Judgment available on Bailii, 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 here had also to consider what might happen in the long term. Manslaughter can be punished by a life sentence with release being on life licence: this is a powerful indication that Parliament intended a long-term view of risks to be taken; it is unsurprising that restrictions should in some cases remain in force for life. (5) The mere existence of current, or possible future, mental disorder is not enough to justify the continuation of a restriction order: regard must also be had to the seriousness of any risk of harm to others. (6) As under the new appeal system the First-tier Tribunal is not a party to proceedings, it is unsatisfactory for public authority respondents (the responsible authority and, in restricted cases, the Secretary of State) to make no submissions at all; submissions would assist even if drafted by non-legally-qualified caseworkers; for instance, the respondent might concede that the Tribunal erred in law but ask the Upper Tribunal to substitute its own decision rather than remit the case. 2010‑02‑18 21:39:39 2010 cases, Brief summary, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions

* Long s17 leave R (DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin)Renewal of section while on long-term s17 leave. 2009‑10‑31 18:04:06 2002 cases, Cases, Judgment available on Bailii, Section 17 leave cases, 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. 2009‑10‑13 18:13:45 2009 cases, Brief summary, Change of status cases, Judgment available on Bailii, Transcript, Upper Tribunal decisions

Bristol City Council v AW [2009] UKUT 109 (AAC) — Housing and council tax benefits. 2009‑10‑08 18:43:23 2009 cases, Community care, Judgment available on Bailii, 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. 2009‑09‑04 21:05:23 2009 cases, Brief summary, Judgment available on Bailii, 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. 2009‑01‑15 00:45:28 2009 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions

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