Re B  MHLO 18 (FTT)
Direction for postponement of CTO hearing set aside The initial decision indefinitely to postpone a CTO patient's hearing (in accordance with Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20)) was set aside by the First-tier Tribunal.
This is only a First-tier decision and is not in any way binding; however, it is an interesting illustration of the tribunal's approach to such a case. All information about the patient's case has been removed from the following extract from the decision, which was kindly provided for publication by the patient's legal representative (Ben Conroy of Conroys Solicitors) with the patient's consent.
It is not clear why the decision is on a form relating to Rule 45.
Legal representative's comment
Given the wording of the order and directions of 26/3/20, there is scope to consider the individual facts of each CTO case to determine whether the hearing should proceed, yet currently the tribunal service are just postponing all CTO cases without any review of the facts. Patients and legal representatives should consider requesting a review of any postponement decision if they consider there to be grounds for the hearing to proceed.
- 22/4/20: An unnamed tribunal judge postponed the hearing and directed by email:
- "The case has to be listed in accordance with her current status (which is plainly not s2) – so if she is still subject to CTO that is how it should be listed, which means at the moment that it will not be for the foreseeable future. If she is represented then they should be asked if the person still wishes to pursue the application given her status now."
- 22/4/20: The patient remained subject to a CTO.
- 23/4/20: The patient's legal representative submitted a form P10 challenging the decision.
- 28/4/20: The tribunal directed (on form STJ3) that the hearing on 29/4/20 was to proceed.
- 29/4/20: The tribunal provided further reasons and directions (on form STJ11) including that the hearing would take place between 15/5/20 and 5/6/20.
- 29/4/20: The STJ11 arrived as the hearing was about to commence. The hearing proceeded but was adjourned part-heard, because it ran out of time due to technology, to be relisted in two weeks.
Form STJ3 (Directions before hearing)
Upon reading the CMR 1 which sets out the history of the patient's detention under the Mental Health Act 1983 and enquiries made by the TSMH on behalf of Judge Chahal, the response of the MHAA was as follows:
- The MHAA didn't think it's likely at the minute that the patient would be picked up and taken to the hospital for the hearing due to restrictions in place. The hearing loop is based at the hospital and was intended to be used for face to face hearings.
1. The hearing is to proceed on 29th April 2020 subject to para 2 below;
2. The representative and the MHAA are to confirm by 4.00pm today that the patient will be attending and can make her own arrangements for travel and that hearing loop will be connected and available for the patient to enable her to participate and communicate with the process.
Judge: Miss K Chahal
Form STJ11 (Rule 45)
Application to Set Aside
Within 28 days after the date on which the tribunal sent notice of the decision to the parties, and in accordance with Rule 45 , the patient’s representative has applied for an order setting aside a decision, or part of a decision, dated 22/04/2020, in respect of the above named patient, which disposed of proceedings before the tribunal.
Particulars of Decision Disposing of Proceedings
Decision to indefinitely postpone the hearing
Decision in relation to the Application to Set Aside
The tribunal directs that the decision shall be set aside and the matter will be listed before a Judge to remake a decision disposing of the proceedings.
This direction supersedes any other direction made in these proceedings:
1. The matter is set down for hearing within a listing window of 18th May to 5th June 2020
2. The Responsible Authority are directed to file medical and social circumstances report in accordance with the practice guidance by 11th May 2020 addressing the CTO criteria.
3. The parties to file a joint HQ1 by 4pm on 6h May 2020.
4. The representative and the MHAA are to confirm by 4.00pm on 6th May 2020 that the patient will be attending and can make her own arrangements for travel and that hearing loop will be connected and available for the patient to enable her to participate and communicate with the process.
5. The hearing will be listed as a telephone hearing with parties sitting remotely due to covid 19 restrictions.
The Tribunal considered:
Legal Grounds for the Tribunal’s Decision
1. The tribunal is satisfied that it is in the interests of justice to set aside the whole or party of the decision and
2. The tribunal is satisfied, that there has been some other procedural irregularity in the proceedings
Reasons for the Tribunal’s Decision, including Brief History and Analysis of Key Material
3. There is a long history to this application which is set out fully in the P10. The patient has been waiting for a hearing since January 2020.
4. I had made various directions in this matter and conducted enquiries about whether the hospital could accommodate the hearing. The patient is now subject to a CTO. Given the exceptional circumstances and having consulted Judge Johnston about the practice direction suspending CTO hearings due to Covid 19 and TSMH dealing with urgent applications only, it was agreed that the hearing could be listed. However due to admin error this was not communicated to the representative.
Judge: Miss K. Chahal
Patient's form P10
- 1. The patient was detained under S.2 MHA on 24 January 2020 and she applied to the FTT for her discharge on the same day.
- 2. Her application came before the tribunal on 5 February 2020 (5 days outside of the listing window) when the tribunal did not discharge her.
- 3. An application for permission to appeal the decision of 5 February 2020 was lodged on 11 February 2020. The appeal was upheld and the FTT decision quashed on 14 February 2020.
- 4. On 19 February 2020 the patient was regraded to S.3 MHA.
- 5. The application came back before the FTT on 25 February 2020 when the hearing adjourned part heard due to the Applicant’s hearing impediment requiring the need for a Loop System or such other suitable equipment to permit her to engage in the process. The Responsible Authority (RA) did not have any such equipment but agreed to procure it as soon as possible.
- 6. The application came back before the FTT on 10 March 2020 however the hearing loop system was still not available, and the hearing was adjourned until 27 March 2020.
- 7. On 24 March 2020 the patient was discharged onto a CTO.
- 8. On 24 March 2020 the RA confirmed that they had procured a hearing loop system.
- 9. The hearing set for 27 March 2020 was postponed due to new reports needing to be prepared to address the CTO discharge criteria and in particular the necessity for the RC to be able to recall the patient.
- 10. On 3 April 2020 the matter was set down for hearing on 29 April 2020.
- 11. On 22 April 2020 the application was postponed.
- 12. By way of a direction of the Tribunal dated 26 March 2020 all CTO applications were postponed until the revocation of the practice direction.
- 13. S.66 MHA permits the patient to challenge her detention under S.2 MHA.
- 14. Detention changed from S.2 to S.3: KF v Birmingham and Solihull Mental Health Foundation Trust  UKUT 185 (ACC)
- 15. Detention under S.3 to CTO: AA v Cheshire and Wirral Partnership NHS Foundation Trust  UKUT 195 (ACC)
- 16. Art 5 ECHR requires there to be a speedy determination of [B's] detention under the MHA.
Grounds of Application
- 17. This application originates from patient’s detention on 24 January 2020, against her detention under S.2 MHA and since that application, 4 months ago, she has not had a fair and lawful hearing of her detention under the MHA
- 18. The patient disputed her detention under the MHA from the outset, making the application on the day she was admitted.
- 19. The patient requires a hearing loop system to properly attend and engage in the hearing and that loop system is now available.
- 20. Procedures had and indeed, remain in place, for the patient to attend a Hospital with her legal representative where a room is available with access to the loop system so as to attend and engage in the hearing.
- 21. The patient has consistently stated that she does not consider that she suffers from any mental disorder and that is was and remains wrong to subject her to conditions under the MHA. She has pursued her application despite having been transferred from S.2 to S.3 and then onto a CTO.
- 22. HMCTS/MOJ failed to hear the patient’s application to the FTT, made 24 January 2020, in accordance with the time limits set at that time (7 days).
- 23. HMCTS/MOJ failed to provide adequate equipment to the FTT to permit them to properly conduct a hearing and left it to one of the parties to provide a hearing loop system. (no other court would expect a party to provide a loop system for a judicial hearing).
- 24. HMCTS/MOJ have failed to provide the patient with a speedy determination under MHA despite the patient having been detained consistently since 24 January 2020.
- 25. There are no reasonable grounds in law even with the current COVID 19 Pandemic regulations in place, to prevent the hearing from proceeding by telephone or indeed video conference.