Category:Powers

|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=2023/03/22 |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=2021-11-09 |NCN=[2021] EWHC 2990 (Fam)^M |Court=High Court (Family Division) |Judges=Lieven |Parties=Cumbria Northumberland Tyne and Wear NHS Trust, Secretary of State for Justice, EG |Sentence=DOL during conditional discharge |Summary=This decision demonstrates the Heath Robinson nature of today's mental health law. (1) The Supreme Court decision in MM meant that the patient could no longer remain conditionally discharged because he was being deprived of his liberty within the meaning of Article 5, so he was made subject to a "technical recall" and remained in the community on s17 leave under the same conditions. (2) The MHT then conditionally discharged him again, having correctly applied other domestic case law, because he was receiving no treatment in hospital so could not remain on s17 leave. (3) The SSJ would recall him to hospital if DOL in the community could not be authorised. (4) The court held that this outcome would violate the patient's Article 5(1) rights because being in hospital, even as an out-patient, was counter-therapeutic. (5) In order to avoid this violation, s72 should be read and given effect under s3 Human Rights Act 1998 so that "suffering from mental disorder ... which makes it appropriate for him to be liable to be detained in a hospital for medical treatment" includes liability to be "detained for treatment", even where that treatment is being provided in the community, so long as it could lawfully be provided in hospital. (6) Obiter, the inherent jurisdiction does not extend to depriving a person with capacity of his liberty, so could not have been used in this case. |Detail===Illustration==

Source: W Heath Robinson, Inventions (Duckworth 1973). Click image to enlarge.

|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=2020/08/21 |Other citations=[2020] MHLO 48 (FTT) |Court=First-tier Tribunal |Judges=Birrell |Parties=C |Sentence=Remote pre-hearing examinations are practicable |Summary=(1) A salaried tribunal judge initially refused to allow a pre-hearing examination (PHE) because the coronavirus Pilot Practice Direction states: "During the Covid-19 pandemic it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place, due to the health risk such examinations present." (2) Having treated the rule 46 application for permission to appeal as a rule 6 challenge, a different salaried tribunal judge decided that: (a) the practice direction is subordinate to the rules and overriding objective; (b) in video-enabled hearings with a full panel a PHE is practicable by that means; (c) hearings and PHEs should be conducted remotely as, even if the hospital would allow access, the tribunal will not put its members at risk of contracting or spreading coronavirus; (d) in this case, the PHE would take place by video link on the morning of the hearing. [First-tier Tribunal decisions are not binding.] |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors) for providing the decision.

|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=2019/05/30 |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=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):