CM v Derbyshire Healthcare NHS Foundation Trust  UKUT 129 (AAC)
(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests.
Extract from judgment
“Nature or Degree”
9. The words “nature” and “degree” in section 72(1)(b)(i) are to be read separately so that, for example, even if the degree of mental disorder does not make it appropriate for the patient to be liable to be detained for treatment, the nature of the disorder might make such detention appropriate (R v MHRT ex parte Smith  EWHC 832 Admin).
10. The Code of Practice (2008) suggests (in paragraph 4.3):
- “4.3 The criteria require consideration of both the nature and degree of a patient’s mental disorder. Nature refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for the disorder. Degree refers to the current manifestations of the patient’s disorder”.
11. This does not quite reflect what I understand these ordinary words of the English language to mean but I accept this as the basis on which the parties, the expert witnesses and the First-tier Tribunal have dealt with the matter.
12. If the nature of a patient’s illness is such that it will relapse in the absence of medication, then whether the nature is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment depends on an assessment of the probability that he will relapse in the near future if he were free in the community and on whether the evidence is that without being detained in hospital he will not take the medication (Smirek v Williams (200) 1 MHLR 38 – CA; R v MHRT ex parte Moyle  Lloyd’s LR 143 – High Court).