JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC)

Deferred discharge beyond current authority for detention 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.

Judicial summary

The following is from the website (see external link below):

Mental Health – detention under Mental Health Act – section 72(3) – whether tribunal had power to defer the discharge of a detained patient beyond the date of the order authorising detention

The appellant, a prisoner, was transferred to hospital for treatment after he became psychotic and paranoid. His condition eventually improved after he was transferred to a hospital closer to his home and had received anti-psychotic medication. On 9 December 2016, he applied to the First-tier Tribunal (F-tT) for discharge from detention. The appellant recognised that immediate discharge would be inappropriate and the tribunal was invited to defer discharge to allow the care team sufficient time in which to arrange for appropriate accommodation. The F-tT refused the application having found that such deferment would be for a short period as the appellant’s section was due to expire in early February 2017. The appellant appealed to the Upper Tribunal (UT) on the basis that the F-tT had erred in its belief that, pursuant to section 72(3) Mental Health Act 1983, it could not defer the discharge of a detained patient beyond the date of the order authorising detention and had failed to give adequate reasons for its decision overall.

Held, allowing the appeal, that:

  1. a tribunal when exercising its power pursuant to section 72(3) to direct a discharge on a future specified date, cannot specify a future date for discharge after that on which the authority for the patient’s detention expires (paragraph 32);
  2. once the tribunal had made a direction pursuant to section 72(3) liability to be detained, either pursuant to sections 2 or 3 or indeed to a Community Treatment Order, came to an end on the date specified for discharge. A date set beyond the date of the order authorising detention would be as invalid as the continuation of the Community Treatment Order in MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC)M since the necessary underpinning of the order authorising detention would be lacking (paragraph 34);
  3. there was no basis to intervene with the F-tT’s decision as it had carried out its fact-finding role rationally and its written reasons accorded with the UT’s guidance in MS v North East London Foundation Trust [2013] UKUT 92 (AAC)M - the F-tT had (a) stated what facts it had found; (b) explained how and why it made them; and (c) showed how it applied the law to those facts (paragraphs 41 to 46).


This case was summarised in Mind, 'Legal Newsletter' (March 2018) under the heading "JMcG v Devon Partnership NHS (2017) UKUT 348".

External links


Full judgment: BAILII


  • Powers🔍
  • Upper Tribunal decisions🔍

Date: 23/4/17🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍


  • Gwynneth Knowles🔍


Citation number(s):

What links here:

Published: 8/9/17 13:12

Cached: 2024-07-13 17:32:12