MP v Mersey Care NHS Trust  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.
Before: HHJ David Pearl
For the Appellant: Mr R Pezzani of Counsel
For the Respondent: Ms C. Rowbotham, Solicitor of Hempsons, Solicitor
Case Numbers: JR/2381/2010 and HM/2336/2010