R (East London and the City MH NHS Trust) v MHRT, re IH  EWHC 2329 (Admin)
The Tribunal failed properly to deal with s72(2)(a) when directing discretionary discharge; should have adjourned for information to satisfy itself that appropriate aftercare would be in place; and failed to consider their s72(2) power to recommend transfer.
IH suffered from schizophrenia, believing himself to be the Messiah, and had a history of admissions and offending, including serious violent behaviour and threats to kill. His current admission under section 3 began in June 2004 after assaults at his hostel.
He had more recently been described as a model patient within low security, although maintaining the delusions, but in June 2005, for no clear reason, he was transferred to an MSU. The care plan included anger management and a gradual path to discharge via lower security.
The Tribunal sat on 19 July 2005. The treating team supported continued detention; an independent psychiatrist and social worker argued that the detention criteria in s72(1)(b) were no longer made out; the hostel had indicated that there was a place for him and he would be welcome back.
The panel accepted that the detention criteria were met but felt that detention in conditions of medium security was disproportionate; they directed a discretionary discharge under s72(1), deferred under s72(3) until 9 August 2005 for an aftercare package to be put in place.
The claimant Trust attacked the decision on the basis that there was a lack of proper reasons (failure to have regard to s72(2)(a) which related to discretionary discharge; the decision that there should be an discharge straight from medium security rather than a gradual discharge) and irrationality (failing to ensure that there was a care package in place before directing discharge).
1. The Tribunal failed properly to deal with s72(2)(a) which states “in determining whether to direct [a discretionary] discharge... the Tribunal shall have regard to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition”. As the Tribunal were satisfied that it was necessary for the protection of others that IH should receive treatment (the second mandatory ground), they had also to be satisfied that it was likely that there would be available medical treatment to achieve that result: there had to be some degree of medical supervision. The reasons did not indicate that the Tribunal had applied its mind to what was needed in relation to medical treatment.
2. The Tribunal had taken the wrong approach in deferring discharge without sufficient information to assure itself that there was going to be an appropriate care plan in place before discharge: it ought to have adjourned to enable it to receive the necessary information. The principle in R (Ashworth) v MHRT; R (H) v Ashworth  EWCA Civ 923 (that no reasonable Tribunal could have made an order for the discharge of that patient without being satisfied that suitable aftercare arrangements for him were in place) was applied.
3. The Claimant argued that the reasons were also inadequate in that they did not give reasons for rejecting the experts' evidence. Reasons should show that the Tribunal have grappled with the matters seriously in issue, but short reasons are capable of being as satisfactory as long reasons. In the circumstances it was clear why the Tribunal acted as it did (in accepting the RMO's evidence about detainability but deciding the risk was acceptable).
4. However, the Tribunal failed to explain why it rejected the plan for gradual discharge via a low secure hospital. They failed to consider the exercise of their powers under s72(2) to recommend transfer to another hospital and to reconsider the case if the recommendation was not met. It was not a question that, because medium secure conditions were disproportionate, automatically there should be a discharge.
The decision was one which the Tribunal were entitled to reach on the evidence, but its surprising nature made it the more necessary to give adequate reasons, which it had not done. The matter was remitted to another, differently constituted, Tribunal. No order for costs was made against IH as the prospects of enforcement were slim and the order might well have adverse consequences on him. No leave to appeal.
Mr V Sachdeva (instructed by Bevan Brittan) for the Claimant (Trust)
Mr K Gledhill (instructed by Kaim Todner) for the Interested Party (IH)
The Defendant (Tribunal) felt it a waste of time and money to defend the claim
Possible Bailii link (not there when checked last night, but might have appeared since)