ML v Priory Healthcare Limited [2023] UKUT 237 (AAC)

Discharge to MCA detention A s47/49 post-tariff lifer sought a notification that if he were a s37/41 patient he would be entitled to conditional discharge (with 24-hour support and medication being governed by the MCA) and a recommendation that he remain in hospital pending release. The MHT refused, believing that "the only environment where his medication regime can be enforced is in hospital". This refusal was based on errors of law: (1) the tribunal was under the misapprehension that there was no way for it to coordinate the MHA proceedings with an MCA authorisation, and it made its decision on the s72(1)(b) detention criteria without reference to the possibility that an alternative framework for managing the patient was available; (2) its reasons were inadequate as it had ignored the central argument that there was a less restrictive alternative to hospital detention.

Judicial summary from

Conditions to continued detention - Mental Health Act 1983 s72(1)(b) – conditional discharge of restricted patient - where in issue, it is incumbent on the First-tier Tribunal to deal with the potential availability of a less restrictive alternative to continued detention under Mental Health Act even in context of uncertainty as to the availability of a Mental Capacity Act authorisation. MC v Cygnet followed. Emphasises that criteria in section 72(1)(b) all relate to the purpose of medical treatment for mental disorder. To satisfy the section 72(1) Mental Health Act criteria, the necessity of detention must relate to the therapeutic endeavour, no matter how grave the risks may be.


Essex newsletter 135B.pdf

This case has been summarised on page 14 of 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023).

External links


Full judgment: BAILII
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  • Reasons🔍
  • Upper Tribunal decisions🔍

Date: 20/9/23🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍



  • ML🔍
  • Priory Healthcare Limited🔍
  • Secretary of State for Justice🔍

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Published: 10/10/23 10:42

Cached: 2024-07-13 16:27:08