Category:Upper Tribunal decisions

|Date=2024-11-10 |NCN=[2024] UKUT 411 (AAC)^M |Essex issue=147 |Essex page=16 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=IN, West London NHS Trust, Law Society |Sentence=Rule 11(7)(a) and lack of express instructions |Summary=The patient had not appointed a representative but did not wish to conduct his own case, so a representative was appointed under rule 11(7)(a). The patient refused to engage or provide instructions. The solicitor sought an adjournment and said she would not remain as an observer if it were refused, but the tribunal refused to adjourn. The Upper Tribunal said that: (1) Such appointments operate as a retainer (citing a previous case which did not say that). The solicitor should have acted upon inferred instructions to test the detaining authority’s case for his continued detention, because that is the whole purpose of a hearing of a s68(2) reference and the patient preferred to be represented. It was appropriate to seek an adjournment but inappropriate to leave or threaten to leave. (2) When capacity to provide instructions is in issue, the tribunal is not precluded from relying on evidence from the RC or other witnesses, but must consider potential conflicts of interest and the witness's understanding of the relevant issues. (3) The Tribunal’s failure to explain (a) how it balanced the competing factors for and against granting an adjournment, and (b) why it was in the interests of justice to proceed with the hearing in the absence of both the patient and his representative, rendered its reasons for refusing the adjournment application inadequate. The Legal Aid implications were not mentioned. |Detail===Judicial summary==

|Date=2023/05/10 |NCN=[2023] UKUT 261 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=MB, South London and Maudsley NHS Foundation Trust |Cites=JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC) |Sentence=Reinstatement |Summary=The patient withdrew his tribunal application in order to give himself an opportunity to be tested further and to allow for plans for discharge to be developed further. The First-tier Tribunal subsequently refused to reinstate the application, mischaracterising the only "change in circumstances" as being the desire to pursue the application (and noting that there would be no detriment to the patient as he could now apply in the new eligibility period). The Upper Tribunal decided that reinstatement could only properly be understood in the context of the withdrawal reasons, that the FTT had unlawfully failed to consider whether the patient having been tested further in the intervening period was a change in circumstances that could justify reinstatement, and that in any event the reasons were inadequate for failing to address the central thrust of the application. The UT set aside and remade the decision, allowing the reinstatement. |Detail===Thanks== Thanks to Rod Campbell Taylor (Campbell Taylor Solicitors) for providing the judgment.

|Date=2023-10-22 |NCN=[2023] UKUT 258 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=SS, Cornwall Partnership NHS Foundation Trust |Cites=AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73# R (Ashworth) v MHRT; R (H) v Ashworth [2001] EWHC Admin 901 |Sentence=Adjournment for aftercare evidence |Summary=At a s3 tribunal the evidence was that the patient had been well enough for discharge for some time, if a suitable robust package of care and support could be provided, but that for bureaucratic and other reasons it had been difficult to discharge him from the PICU ward. That tribunal panel adjourned for further aftercare information but seven weeks later, in similar circumstances, despite some progress, the next panel refused to adjourn again. The patient appealed that refusal, and all three grounds of appeal were successful. (1) This was not a case where aftercare information would have been irrelevant to the decision (AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 distinguished); rather it was a case in which the tribunal should have adjourned owing to "uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends" (R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 applied). (2) The common law requires that a party should not be disadvantaged by an absence of evidence which is under the control of another party (especially where the party who controls the evidence is a State agency with duties to provide the evidence in relation to an individual whom it is detaining) and his Article 5 rights can only be protected effectively if the tribunal has the information it needs; the decision not to adjourn was procedurally unfair because it deprived SS of the opportunity to mount an effective challenge to his detention. (3) The tribunal relied on the possibility of a further application in the near future, but the periodic right to apply might not be exercised and could not in any event remedy procedural unfairness in the existing proceedings; its decision amounted to an abdication of its role, and rather than avoiding delay it was kicking the can down the road for the next tribunal to deal with. In his concluding remarks the UT judge stated: "The only reasons not to adjourn for aftercare information would be either because it is not relevant because the patient had not reached the stage at which discharge was a realistic prospect, or because there was no realistic prospect of such aftercare information being produced." The case was remitted to the FTT with directions for further evidence. |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors) for providing the judgment.

|Date=2023-08-16 |NCN=[2023] UKUT 205 (AAC)^M |ICLR=[2023] WLR(D) 438^B |ICLR ID=2023005387 |Essex issue=134 |Essex page=48 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=SF, Avon and Wiltshire Mental Health Partnership NHS Trust, RB |Sentence=Appropriate medical treatment |Summary=The First-tier Tribunal erred in law in deciding that "appropriate medical treatment" was available because its decision was based on two misunderstandings: (a) that interventions which had the purpose merely of containing risk of physical harm were capable of amounting to "medical treatment"; and (b) that medical treatment may be "appropriate" even where it is "not tailored to [the patient's] diagnosis", and where treatment that is "essential" is not available. |Detail===Thanks== Thanks to Angela Wall (Butler Solicitors, solicitor for SF) for providing the judgment.

|Date=2023/03/22 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Wikeley |Parties=AC, Cornwall Partnership NHS Foundation Trust |Sentence=Adjournment and recommendations |Summary=The tribunal panel refused the s3 patient's adjournment request (which was on the basis of a lack of aftercare planning) though it indicated that it would be revisited if aftercare information proved necessary to decide on discharge. It refused to make a statutory recommendation but made an extra-statutory recommendation about transferring hospital and appropriate accommodation. Permission to appeal having been refused by the FTT and UT, the patient now renewed her application for permission. (1) The patient argued that the adjournment refusal was procedurally unfair, but the UT decided that: (a) in high-level terms, case management rulings should only be interfered with when "plainly wrong"; and (b) specifically, the panel's decision was consistent with caselaw in the mental health jurisdiction. (2) The patient also argued that the type of recommendation made undermined the purpose of the statute, given that a statutory recommendation was possible, but the Upper Tribunal decided that the panel had concisely explained a rational basis for its decision and was entitled to take the view that it should not get involved in the onward supervision of the patient's care. (3) The UT set out the test to be applied for permission to appeal: "I must find that the proposed grounds of appeal are arguable, in the sense that there is a realistic prospect of success in showing that the First-tier Tribunal went wrong in law in some way." [The Court of Appeal has expressed this differently: "The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. ... The court can grant the application even if it is not so satisfied. ... For example ... public interest ... or ... the law requires clarifying."] (4) The UT noted the courts' approach to expert tribunals' decisions: (a) it is probable that such a tribunal got the law right, decisions should be respected unless it is quite clear the tribunal misdirected itself on the law, and courts should not rush to find misdirections just because of the tribunal's conclusions on the facts (the UT judge christened this "the Lady Hale principle"); and (b) judicial restraint should be exercised when reasons are being examined, and the court should not assume a misdirection too readily just because not every step in its reasoning is fully set out (christened "the Lord Hope principle"). |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors, patient's representative) for providing the judgment.

|Date=2023/03/02 |NCN=[2023] UKUT 64 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=PC, Cornwall Partnership NHS Foundation Trust |Sentence=Hearing in patient's absence |Summary=The tribunal panel refused an adjournment request and proceeded in the patient's absence. (1) The panel found, under rule 39(1)(a) and (b) respectively, that reasonable steps had been taken to notify the patient of the hearing and that it was in the interests of justice to proceed. However, it made no findings, under rule 39(2)(a)(i) and (ii) respectively, in relation to whether the patient had decided not to attend the hearing or was unable to attend for reasons of ill health, and it was not self-evident that either requirement was satisfied. Proceeding in the patient's absence was therefore an error of law. (2) The First-tier Tribunal judge refusing the appeal had used an out-of-date version of the rules (though this did not affect her reasoning) and had misunderstood the rules, confusing rule 39(1)(a) and rule 39(2)(a). (3) The Upper Tribunal concluded: "A tribunal must always operate within its rules of procedure and that is particularly important when liberty is at stake. This is why I have dealt not only with the tribunal’s reasoning but also with the reasoning in the refusal of permission." |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors, patient's representative) for providing the judgment.

|Date=2022/06/23 |NCN=[2022] UKUT 166 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=DD, Sussex Partnership NHS Foundation Trust, Secretary of State for Justice, Mind |Sentence=Change of status - s37/41 to conditional discharge |Summary=DD applied to the MHT while subject to a s37/41 restricted hospital order but, before the hearing, was conditionally discharged: the MHT decided that it ceased to have jurisdiction. He appealed to the UT but, before that hearing, was absolutely discharged: the UT decided that it retained jurisdiction and should decide the case despite it being academic. The UT concluded that the MHT retain jurisdiction when a s37/41 patient is conditionally discharged. |Detail===Thanks== Thanks to Adam Marley (GT Stewart Solicitors & Advocates, solicitor for the patient) for providing the judgment.

|Date=2021-06-29 |NCN=[2021] UKUT 186 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Mitchell |Parties=CS, Elysium Healthcare, Secretary of State for Justice, S |Sentence=Change in status - s47/49 to s37/41 |Summary=The patient applied to the MHRT for Wales while subject to a s47/49 restricted transfer direction; then the Court of Appeal quashed the underlying Imprisonment for Public Protection sentence, replacing it with a s37/41 restricted hospital order; then the MHRT decided that following the change in status it lacked jurisdiction to consider the application. The Upper Tribunal set aside the MHRT's decision, on the basis that the patient had remained a restricted patient throughout, and remade it accordingly. Elysium Healthcare was criticised for its "lamentable" failure to comply with case management directions, which delayed proceedings (as did the Upper Tribunal's own inefficient administration). |Detail===Dates== The judgment states that it was made on 29/6/21. It was first published on the Gov.uk website on 23/8/21. The Gov.uk website states that the decision was made on 29/7/21.

|Date=2020/12/16 |NCN=[2020] UKUT 362 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Farbey, Jacobs, Ramshaw |Parties=EB, Dorset Healthcare University NHS Foundation Trust |Sentence=PHEs: "exceptional" merely refers to an exception to the deeming provision |Summary=The Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) (APPD) deems that PHEs are not "practicable" within the meaning of rule 34, unless an authorised judge directs that "in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". EB appealed against a refusal to allow a PHE. The Upper Tribunal held that: (1) the APPD cannot override the terms of the rule, and has to be interpreted, if possible, so as to be valid; (2) circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable [in other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34]; (3) health and safety concerns would be relevant to practicability even if there had been no pandemic; (4) the overriding objective is also relevant, although it does not allow the tribunal to refuse a PHE for any reason unrelated to practicability (in particular, the amended practice direction can make no change to the existence of the r34 duty, the cases to which it applies, or the purpose of the examination; and the patient’s ability to participate in the hearing is not relevant); (5) the availability of the requisite technology for PHEs is relevant to the overriding objective and "[w]here that exists, a PHE need not necessarily have (and may well not have) any material impact on the tribunal’s resources" [the decision does not state that the current practice of holding PHEs via CVP and on the hearing day is necessary]; (6) on the facts, the FTT had unlawfully misinterpreted the APPD by considering reasons unrelated to practicability; were EB still detained the decision would have been set aside. |Detail===See also==

• Mental Health Tribunal and coronavirus#Pre-hearing medical examinations

|Date=2020/09/10 |NCN=[2020] UKUT 273 (AAC)^M |Essex issue=109 |Essex page=38 |Other citations=[2021] PTSR 405, [2020] MHLO 49 (UT) |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=AR, West London NHS Trust |Cites=AH v West London MH NHS Trust [2010] UKUT 264 (AAC)# AH v West London MH NHS Trust [2011] UKUT 74 (AAC) |Sentence=Public hearing and capacity |Summary=(1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points. |Detail===Thanks== Thanks to Kate Luscombe (Abbotstone Law) for providing the judgment.

|Date=2020/06/12 |NCN=[2020] UKUT 191 (AAC)^M |ICLR=[2020] 1 WLR 5171^B |Essex issue=107 |Essex page=9 |Other citations=[2020] 1 WLR 5171^B, [2020] AACR 20^{Not on Bailii!} |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Nicol, Christopher Ward, Sarah Johnston |Parties=SM, Livewell Southwest CIC |Cites=VS v St Andrew's Healthcare [2018] UKUT 250 (AAC) |Sentence=Capacity to make tribunal application |Summary=(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including: (a) if a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any procedural obligations, proceed to hear the case; (b) anyone can request that the Secretary of State make a reference, including when a patient lacks capacity and wishes to leave hospital: this includes not only the hospital managers and IMHA, but also the tribunal itself, which could adjourn for this purpose instead of immediately striking out the case. |Detail===Subsequent tribunal guidance== Tribunal guidance on references. Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) — The DHSC has agreed to make an urgent reference on the day of a hearing when the tribunal find that the patient lacked capacity to make the application but the hearing should go ahead.

|Date=2020/03/30 |NCN=[2020] UKUT 110 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=AD'A, Cornwall Partnership NHS Foundation Trust |Cites=R (SR) v MHRT [2005] EWHC 2923 (Admin) |Sentence=Change in status - s3 to guardianship |Summary=When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction. |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors) for providing the judgment.. Also: Thanks to Roger Pezzani (Garden Court Chambers) for providing the judgment.

|Date=2020-03-05 |NCN=[2020] UKUT 69 (AAC)^M |Essex issue=103 |Essex page=36 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=PM, Midlands Partnership NHS Foundation Trust |Sentence=Lawfulness and availability of treatment |Summary=The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot. |Detail===Judicial summary from Gov.uk website== Mental Health – s.72(1)(c)(iv) – When Appropriate Medical Treatment is Available - considers the relevance of legal impediments to administering medical treatment to the issue of whether medical treatment can be said to be “appropriate” and “available”. Gives guidance on the meaning of “appropriate”, “available” and “medical treatment”.

|Date=2020/01/30 |NCN=[2020] UKUT 33 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Wikeley |Parties=SB, South London and Maudsley NHS Foundation Trust |Sentence=Reviewing appointment of legal representative |Summary=The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so. |Detail===Case report== The following case report was kindly provided by Matthew Seligman of Campbell Taylor Solicitors (solicitor for the claimant):

Keywords: Mental Capacity Act 2005 – Rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care) Rules 2008 – appointment of a representative by the Tribunal – Form MH6b – R (oao H) v. SSH [2005] UKHL 60^M – VS v St. Andrews Healthcare [2018] UKUT 250 (ACC) – Senior President’s Practice Statement on the Delegation of Functions – presumption of capacity remains relevant after appointment

The Appellant was deemed to lack capacity and a representative appointed by the Tribunal under Rule 11(7)(b) – Subsequently he and his mother, who was his Nearest Relative, wished to change the appointed representative and contacted the Tribunal – The Tribunal did not re-consider or rescind the original appointment, giving the reason that the appointed representative objected – That was unlawful – Even after a patient is deemed to lack capacity and a representative appointed under Rule 11(7)(b), he is entitled to have his expressed wish to change the appointed representative lawfully considered – The presumption of capacity in s1(2) MCA 2005 remains relevant, even after the appointment – Further the Form MH6b communicating the appointment decision failed to advise of a right to apply within 14 days for the decision to be considered afresh, which undermined both the process and the decision.

The Appellant SB was detained under s3 of the Mental Health Act 1983 at the Respondent’s Dennis Hill Unit at The Royal Bethlem Hospital in October 2018. At the end of his initial 6 months of detention, on 1 April, 2019, the Respondent referred SB’s case to the Tribunal and stated that they considered he lacked capacity to appoint a representative. On 16 April, the Tribunal therefore issued Form MH3 for an assessment of the Appellant’s capacity and contacted a firm to see if they would be prepared to be appointed to represent SB. On receipt of the completed form, and confirmation of the firm’s availability, the Tribunal the next day appointed a representative for SB under Rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care) Rules 2008 (“the HESC Rules”) and subsequently listed the matter to be heard on 15 May, 2019.

Prior to the hearing, SB decided he would prefer his former solicitors to represent him. However, the Tribunal refused on 10 May, 2019 to rescind the appointment, on the basis that the newly appointed solicitors objected to the change. At that point, three working days before the hearing, the former solicitors withdrew to avoid further disruption. The hearing went ahead with SB represented by the appointed solicitors and he was not discharged. The former solicitors then entered an appeal on SB’s behalf.

The Appellant contended that it had been unlawful of the Tribunal to refuse to rescind the appointment simply because the appointed solicitor objected. His former solicitors, whom SB wished to appoint, had visited SB in hospital and on the basis of the lower test for capacity to instruct a representative set out in VS v St. Andrews Healthcare [2018] UKUT 250 (ACC) considered him to have the relevant capacity to do so. He had completed a ‘Change of Solicitor’ form and further his mother, who was both his nearest relative under the Mental Health Act 1983 and his carer and attorney for the purposes of s4(7) of the Mental Capacity Act 2005, had counter-signed and actioned the request. The presumption of capacity in s1(2) of the Mental Capacity Act 2005 also applied. The Tribunal’s failure to take these matters properly into account simply on the basis of an objection by the appointed solicitor was unlawful.

In granting permission to appeal, Judge Gledhill also ordered disclosure and this led to Supplementary Grounds of Appeal being entered, based on criticisms of the Form MH3 which had been completed when SB was initially deemed incapacitous.

In giving Directions in the appeal, Judge Wikeley allowed the Supplementary Grounds and held that the matters complained of did fall within the Upper Tribunal’s appellate jurisdiction, notwithstanding that they related almost entirely to pre-hearing case management decisions by the Tribunal Office. (NOTE 1: Judge Wikely’s exposition in the substantive decision (paras 13-15, 24-25) of the source of Tribunal Officers’ powers under Rule 11(7), which originated from a delegation under Rule 4 of the HESC Rules and the Senior President’s Practice Statement on the Delegation of Functions, sets this in context. Accordingly, a mistaken operation of delegated judicial powers by a Tribunal Officer could amount to a legal error capable of being appealed.) The Respondent took no part in the appeal. In deciding the appeal on the papers, and allowing it in part, Judge Wikeley held:-

1. Form MH6b, 17 April, 2019: It was not necessary for the Court to deal with the criticisms of the Form MH3 on this occasion. However, Form MH6b was defective; in failing to notify the relevant 14-day time-limit it “failed to impress on the Appellant the urgency of mounting a challenge to the Rule 11(7)(b) appointment.” That was a material omission as a result of which the decision to appoint a representative was unlawful. (NOTE 2: It would seem to follow from this that appointed solicitors should ensure that the Form MH6b notifying the appointment decision is given to the incapacitous patient and/or his Nearest Relative, so that there is effective notice of the right to apply for a reconsideration within 14 days);

2. Tribunal decision of 10 May, 2019: In the absence of oral argument, the Court would not deal with matters raised under the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities on this occasion. However, the Tribunal’s refusal to rescind the appointment was held to be unlawful because:-

• The failure properly to notify the right to a review under Rule 4(3) of the HESCR Rules was material, and indicated a lack of due process;
• There was a failure to accord sufficient weight to the presumption of capacity in s1(2) of the Mental Capacity Act 2005;
• The Tribunal’s approach appeared to fail to apply the lower test of capacity set out in the authorities – see R (oao H) v. SSH [2005] UKHL 60^M and VS v St. Andrews Healthcare [2018] UKUT 250 (ACC);
• The reason given by the Tribunal, that the appointed solicitors objected, was insufficient. “It cannot be right that a prior appointment under Rule 11(7)(b) necessarily trumps any other consideration.” Other important considerations included having regard to the patient’s wishes and feelings and those of his nearest relative under s4 of the Mental Capacity Act 2005 and the requirements of the overriding objective in Rule 2(2)(c) of the HESC Rules: “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.” Judge Wikeley held that:

“The effect of the Tribunal’s decision was to abdicate decision-making responsibility and to accept the default position based on the existing solicitors’ assessment of the Appellant’s capacity – the very issue which should have been determinative of the question as to whether the rule 11(7)(b) appointment should remain in place.”

• The cumulative effect of the above was that the Tribunal decision of 10 May, 2019 was tainted by fundamental unfairness.

3. Tribunal decision of 15 May, 2019: None of the above rendered the Tribunal’s decision at the hearing on 15 May, 2019 unlawful.

The Appellant SB had subsequently been discharged and returned to live with his mother. It was not therefore necessary as a matter of discretion to set any of the above decisions aside, events long since having overtaken them.

Finally, the Upper Tribunal has no power to award damages. Such a remedy would have to be sought elsewhere.

Case-Report: Matthew Seligman

Appellant’s Solicitors: Campbell-Taylor Solicitors, London

Incident Dates: 17 April, 10 May, 15 May, 2019

Judgment Date: 30 January, 2020

|Date=2019-10-18 |NCN=[2019] UKUT 323 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=SLL, Priory Healthcare Limited, Secretary of State for Justice, Priory |Sentence=Inadequate reasons for not absolutely discharging |Summary=The patient challenged the tribunal's decision to grant a conditional, rather than absolute, discharge. (1) Ground 1: Failure properly to apply the two-stage process required by s73(1) and (2). The MHRT had decided (under s73(1)) that the s72(1)(b)(i) (appropriateness) test was not met, and had moved straight to s73(2) (absolute or conditional discharge) without considering s72(1)(b)(ii) (necessity) or s72(1)(b)(iia) (appropriate treatment). The UT decided that the statute permitted the tribunal to stop once it had decided that it was not satisfied of the first s72 test. However, s73(2) required the tribunal to make findings on substantially similar matters, albeit on a forward-looking basis, and to make a decision on the type of discharge on the basis of those findings. Without express findings (in particular in relation to potential medical treatment for any psychotic condition the patient may suffer from) and an explanation of how the relevant factors were weighed (including the two factors discussed below) it was not possible to be sure how the tribunal reached its decision. The UT gave guidance in paras 33-35 on the findings likely to be required when considering s73(2), and in para 47 on the appropriateness of treatment with no realistic prospect of therapeutic benefit. (2) Ground 2: Failure to give adequate reasons. The Appellant had presented credible expert evidence that risk could be managed by future Part 2 detention rather than the recall power, so it was incumbent on the Tribunal to explain why it was not persuaded by that evidence: instead, it had merely quoted another doctor's evidence (which stated that recall would be available but did not grapple with the Part 2 issue) and said that this evidence was "more apt". The Appellant had also argued that the setting of a psychiatric hospital was positively harmful, and the tribunal had failed to explain its rejection of this argument. Taken as a whole it was not adequately clear why the tribunal was not satisfied that it was inappropriate for the Appellant to continue to be liable to recall to hospital for further treatment.

|Date=2019/05/30 |NCN=[2019] UKUT 172 (AAC)^M |Other citations=[2020] AACR 1^B |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=JS, South London and Maudsley NHS Foundation Trust, Secretary of State for Justice |Sentence=Reinstatement |Summary=(1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties." |Detail===Note== In paragraph 3, UTJ Jacobs stated: "The tribunal gave its consent on 20 August 2018. That decision was made by an authorised member of staff purporting to act under the authority of the Senior President’s Practice Statement on Delegation of Functions to Staff and Registrars of 10 June 2014. In fact, that Statement had been replaced by one of 27 April 2015."

In fact, that statement had been replaced by Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16).

|Date=2018/11/29 |NCN=[2018] UKUT 408 (AAC)^M |Other citations=[2019] AACR 16^B |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=LW, Cornwall Partnership NHS Foundation Trust, SE, Devon Partnership NHS Trust, TS, Birmingham and Solihull Mental Health NHS Trust |Cites=CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) |Sentence=Meaning of "nature" in discharge criteria |Summary=(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. |Detail===AACR summary==

|Date=2017/04/23 |NCN=[2017] UKUT 348 (AAC)^M |Other citations=[2018] AACR 11^{Not on Bailii!}, [2017] MHLO 28 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Gwynneth Knowles |Parties=JMcG, Devon Partnership NHS Trust |Sentence=Deferred discharge beyond current authority for detention |Summary=The Upper Tribunal stated (probably wrongly) that the date of a deferred discharge cannot exceed the date of the order authorising detention. This was only obiter and seems to have been based on the false premise that a deferred discharge beyond the date on which the authority for the patient’s detention expires would have the effect of extending the period of detention. |Detail===Judicial summary== The following is from the Gov.uk website (see external link below):

|Date=2013-08-06 |NCN=[2013] UKUT 365 (AAC)^M |Other citations=[2014] AACR 13^B, [2013] MHLO 80 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Charles |Parties=AM, South London and Maudsley NHS Foundation Trust, Secretary of State for Health |Sentence=Discharge to DOLS |Summary=It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. (Nobody knows what the judge's third point means in practice.) The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. |Detail===Detailed summary== In this case it was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally under s131 MHA 1983 and that, as she lacked capacity, assessment/treatment could be carried out under s5 MCA 2005 instead (and under DOLS if the circumstances required it).

The gist of the case is that the tribunal (and other decision makers) should ask three questions once it is established that admission to hospital (as opposed to treatment elsewhere) is warranted:

1. Does the relevant person have the capacity to consent to the arrangements referred to in s131 MHA?

If the person has capacity then only the MHA is relevant.

If the person lacks capacity then consider question 2.

2. Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the relevant person?

There are two issues here:

(a) Is P eligible for DOLS? He is ineligible if he objects.

i. If the person is a non-compliant incapacitated patient then only the MHA is relevant.

ii. If the person is a compliant incapacitated patient, then consider the next issue.

iii. [The situation where the person objects to some but not all treatment was left undecided.]

(b) Would DOLS be required? It is required 'when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty'.

If either answer is 'No' (non-compliant or DOLS not required) then only the MHA is relevant.

If the answers are 'Yes' (compliant and DOLS required) then consider question 3.

3. How should the existence of a choice between reliance on the MHA and the MCA and its DOLS be taken into account?

In considering the MHA 'necessity' test consider the following:

(a) Is the MCA regime actually available in practice?

(b) When would it be available? (Relevant to deferring discharge.)

(c) Which regime involves the least restrictive way of best achieving the proposed assessment or treatment?

i. Relevant considerations include fluctuating capacity and the likelihood of continued compliance.

ii. Ignore the GJ principle (about the MHA having primacy) here.

iii. If DOLS is less restrictive then it will 'generally but not always' be more appropriate.

On the compliance issue the tribunal had concluded: 'We are satisfied that if the order were discharged, [AM] would be taken home by her daughters although she appeared to be quite happy in the hospital environment herself.' The Upper Tribunal decided the tribunal's various findings had not properly address the question of whether AM would be compliant with informal admission. The decision was therefore unlawful and the case was remitted to a differently-constituted tribunal.

|Date=2011/03/30 |NCN=[2011] UKUT 143 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=PS, Camden and Islington NHS Foundation Trust |Sentence=CTO reference hearings |Summary=The Tribunal's policy was that a reference made under s68(7) (triggered by the revocation of a CTO) would be treated as having lapsed if the patient subsequently was placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (updated 22/9/10)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy was unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy was inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the revocation reference lapses. (2) The power to treat a letter as a Tribunal application is only appropriately exercised for the applicant's advantage, not potential detriment; it is not permissible to override an unequivocal indication by the solicitor to the opposite effect, especially if to do so would deprive the patient of the chance to make an application later should discharge not be obtained on the reference. (3) If the hospital managers had been represented, the judge would have wanted to know why it took 12 days to complete the simple referral form. (4) The Tribunal Procedure Committee will be consulting on rule changes to make it easier to handle CTO revocation cases in which the patient does not 'co-operate': in the meantime, the judge suggested that proceedings could be stayed, or hearings conducted in patients' absence. |Detail===Representation== Roger Pezzani (instructed by Blavo & Co) for the applicant

The respondent did not appear and was not represented

|Date=2011/02/17 |NCN=[2011] UKUT 74 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Carnwath, Levenson, Cooper |Parties=AH, West London Mental Health NHS Trust |Judicial history first case=AH v West London MH NHS Trust [2010] UKUT 264 (AAC) |Sentence=Public hearing |Summary=(1) Once the threshold tests for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state. (2) The threshold tests are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (3) How the right to a public hearing can be practically and proportionately be achieved will depend on the facts of each individual case, including the hospital's facilities. (4) The Tribunal directed that AH was to have a public hearing, not within Broadmoor hospital, with the press, public, AH and his representatives enabled to attend in person in the same hearing room. (5) It was likely that in future cases, if detailed evidence of how video-link and public-notification arrangements would work in practice is provided, that a video-link to off-site premises would suffice. |Detail===Notes== The CRPD is the Convention on the Rights of Persons with Disabilities.

The relevant rule is Tribunal rule 38.