GA v Betsi Cadwaladr University Local Health Board  UKUT 280 (AAC),  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.]
It was a condition of the CTO that the patient 'will take depot injections as prescribed'. At the tribunal the patient argued that he should be discharged as he was not giving true consent - he was only consenting in order to remain out of hospital.
The tribunal concluded that GA did consent. It continued: 'Should the Patient refuse that injection, as is his right, the Tribunal feels that he is aware of the consequences that may follow. The Tribunal unanimously agree this is not undue or unfair pressure but the reality of the situation.'
On appeal, he argued that the tribunal were wrong to find that he consented, that the condition was unlawful which meant the CTO was unlawful, and therefore the tribunal should have discharged under its discretionary power.
The Upper Tribunal judge did not address the tribunal's decision on consent. He considered the case 'for the sake of argument only' on the assumption that GA did not consent and that the tribunal's finding was perverse.
He then considered the scope of the discretionary power. The issue of consent could not be excluded from this (as it was excluded from mandatory discharge in SH v Cornwall Partnership NHS Trust  UKUT 290 (AAC),  MHLO 143). However, tribunal exercising its discretionary power must act consistently with the logic of its reasoning.
The judgment at this point is hard to follow but appears to say this. 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 discharging the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for. Otherwise the decision would be self-contradictory and perverse. The tribunal could only discharge on the basis that the tribunal was satisfied that (a) the patient would again be placed under the MHA, or (b) the patient lacked capacity and would be treated under the MCA. The discretionary power can therefore be used 'in exceptional circumstances only' such as 'a tribunal using its power to allow a patient to join his parents in the USA, where he could receive treatment'.
This judgment at first glance may appear unduly to narrow the scope of the discretionary discharge power. However, might it not instead be that that the continued existence of the this power is simply a drafting oversight and logically ought to have been removed when the 'burden of proof' was amended in 2001? Postscript: See PJ v A Local Health Board  UKUT 480 (AAC).
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: MHLR 2014.
The relevance of a refusal to consent to treatment under a CTO to the discretionary power of discharge under s72 Mental Health Act 1983 - GA v Betsi Caowaladr University LHB –  MHLR 27
Points Arising: (1) An oral hearing before the Upper Tribunal is not necessary if the issues are clear and explored adequately in the papers. (2) The residual discretion to discharge even though the criteria for detention are made out can only be exercised if the relevant needs for treatment and protection were met, which would require exceptional circumstances. (3) Issues of consent to treatment are outside the jurisdiction of the Tribunal, which considers whether the criteria for detention are made out (and so have to be challenged in court proceedings); however, they are relevant to the exercise of the discretion to dischage
Facts and Outcome: GA, who had been released from detention under s3 Mental Health Act 1983 and placed on a Community Treatment Order under 17Aff with a condition to take depot injections. He argued that his lack of consent to the treatment should lead to the discharge of the CTO. The Tribunal determined that there was consent to treatment, albeit just to remain out of hospital. The central point on appeal was that there could be no condition to accept treatment and so the discretionary power of discharge should be exercised. The Upper Tribunal, which determined the case without an oral hearing as the issues were clear and explored adequately in the papers, dismissed the appeal on the basis that the criteria for a discretionary discharge were not made out: it noted that any such discharge would be perverse if the needs for treatment and protection (present because the criteria for detention would be made out) were met, which would only be in exceptional cases; it also added that consent to treatment, whilst not relevant to whether the criteria for detention were made out, could be relevant to the exercise of the discretion to discharge.
Spelt as GA v Betsi Cadwaladrv University LHB on transcript and on Bailii