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LW v Cornwall Partnership NHS Foundation Trust [2018] UKUT 408 (AAC)

Meaning of "nature" in discharge criteria (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.

AACR summary

Mental Health Act 1983 - Community Treatment Orders - whether defined degree of imminence of likely relapse required in order to justify not discharging a patient from a Community Treatment Order - what is to be expected of the First-tier Tribunal's reasons in such a case

The case concerned three unconnected appellants: LW, SE and TS. LW has paranoid schizophrenia, was placed on a Community Treatment Order (CTO) in October 2017. She applied for a discharge, which was refused by the First-tier Tribunal (F-tT). SE has paranoid schizophrenia. He was placed on a CTO in July 2015. He applied for discharge, which was refused by the F-tT. TS has an underlying psychotic disorder which may have been triggered by drug abuse. He was placed on a CTO in July 2016. He applied for discharge, which was refused by the F-tT. All three appellants appealed to the Upper Tribunal (UT). The grounds for appeal argued that there was, as a matter of law, a degree of imminence of relapse required before, under section 72 of the Mental Health Act 1983, a person could be lawfully retained as a community patient on a CTO; and what was required of a tribunal in terms of giving reasons in such cases. Held, dismissing the appeals, that:

  1. where there is a risk of relapse which might necessitate recall, it will be a relevant consideration when it is thought likely such a relapse will occur; but that factor is not itself determinative; other factors, including risk to the patient and/or others if a relapse were to occur may also be relevant (paragraph 49(a) to (b));
  2. the authorities do not establish as a matter of law that likely relapse must be "soon", "in the near future" or within the permitted duration of a CTO for discharge to be lawfully refused. The case for discharge may be stronger if the anticipated timescale for relapse is protracted, but all relevant circumstances must be taken into account in deciding "appropriate" for the purposes of section 72(1)(c); and
  3. a tribunal must comply with established legal principles in relation to giving reasons, which includes explaining why the case for discharge has not succeeded. The UT should be slow to infer that the F-tT has overlooked basic features of a CTO, such as that, if used to secure against the patient's wishes that medication is taken in the community, it may trespass upon the patient's personal autonomy.

Judicial summary

From Gov.uk website (link below):

Is a defined degree of imminence of likely relapse required in order to justify not discharging a patient from a CTO? What is to be expected of the FtT’s reasons in such a case?

Note

The judgment lists the respondent as "Cornwall Partnership NHS Trust".

External links

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Upper Tribunal decisions🔍

Date: 29/11/18🔍

Court: Upper Tribunal🔍

Judge(s):

Parties:

  • LW🔍
  • Cornwall Partnership NHS Foundation Trust🔍
  • SE🔍
  • Devon Partnership NHS Trust🔍
  • TS🔍
  • Birmingham and Solihull Mental Health NHS Trust🔍

Cites:

Citation number(s):

What links here:

Published: 11/1/19 14:05

Cached: 2020-12-04 17:21:49