WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132

The tribunal, having decided that the appropriate treatment test in s72(1)(b)(iia) was met, refused to discharge a patient who had a diagnosis of dissocial personality disorder. (1) The Upper Tribunal allowed the appeal on the following grounds: (a) The appropriate treatment test relates only to the treatment that a patient is receiving at the detaining hospital, so the tribunal erred in law by considering the test met because treatment was available elsewhere. (b) The tribunal also erred in law by providing inadequate reasons: (i) the reasons were not set out by reference to the relevant criteria; (ii) the tribunal failed to address any of the solicitor's submissions about appropriate treatment; (iii) it was unclear what evidence was accepted or rejected, and why; (iv) the tribunal made findings which were wholly unsupported by the evidence. (2) The Upper Tribunal also stated that: (a) The tribunal is required to evaluate the evidence and reach its own conclusions, so was not obliged to accept the RC's opinion that no appropriate treatment was available; (b) Looking at the evidence as a whole, it was not necessarily the case that there was no evidence of appropriate treatment being provided to the patient; (c) It would be desirable for the MHRT for Wales to adopt the English Practice Direction on Reports, as the Welsh Rules provided little useful guidance, and full reports would have assisted in this difficult case; (d) The patient was currently detained in England so the Welsh tribunal was invited to transfer the case to England.

"UT cases" summary document

This document (see link below) is issued to tribunal judges as guidance and states:

WH v Llanarth Court Hospital (Partnerships in Care) [2015] UKUT 0695 (AAC)Not on Bailii! The tribunal is not obliged to accept the evidence of any witness, however important that witness might be. Instead the tribunal is required to evaluate the evidence and reach its own conclusions. See note opposite regarding the availability of medical treatment in hospital.

The tribunal is not obliged to accept the evidence of any witness, however important that witness might be. Instead the tribunal is required to evaluate the evidence on its merits, and reach its own conclusions. Note, the U.T. also said that a tribunal only has jurisdiction to determine the appropriate treatment test with regard to the treatment that a patient is receiving at the detaining hospital. The DCP is uncomfortable with the bluntness of this view. Obviously, at one extreme, the ‘available appropriate medical treatment’ test is not satisfied by medical treatment theoretically available elsewhere but which the patient has no realistic chance of receiving within a reasonable time. On the other hand, a patient may be temporarily in the wrong hospital, or a new diagnosis or new treatment need may have emerged, or the patient may be ready and waiting for transfer in order to receive medical treatment (for example, by way of rehabilitation) that is not available in the current hospital. Serious consideration may have already been given to transfer and arrangements may be in the pipeline. Alternatively, the tribunal may be able to help to move the case on. But if this U.T. decision were correct, panels would have to discharge patients who may present a danger to themselves or to others. Moreover, the relevant statutory criteria do not state that the treatment must be available in the detaining hospital. It is respectfully submitted that, where this situation arises, panels should point out that the treatment that is now most appropriate for the patient is available in a hospital, but not in the currently detaining hospital. In non-restricted cases, this may lead to a statutory recommendation, with a view to discharge on a future date, that the patient be transferred in order to receive (more) appropriate treatment in a named hospital where the evidence shows that it is available, and to which the patient could be transferred without delay. The tribunal could consider reconvening if the transfer does not take place within a reasonable time. In a restricted case, the panel could make a non-statutory recommendation for consideration by the SoS.

This appears to contradict the ratio of the Upper Tribunal decision.

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: MHLR 2016.

Whether a Tribunal decision should be quashed on the basis that the appropriate treatment test was not met; which hospital had to be considered for the purposes of that test; the adequacy of the Tribunal’s reasons - WH v Llanarth Court Hospital (Partnerships in Care) – [2016] MHLR 245

Points Arising: The appropriate treatment test involved assessing what was available at the detaining hospital rather than what might be available elsewhere.

The named nurse of the patient should provide the nursing report to the Tribunal and, if possible, attend the hearing. Reports from the detaining authority should address the criteria for detention.

Facts and Outcome: A Tribunal decision to uphold detention on the basis that appropriate treatment was available at a different rehabilitation hospital was set aside by the Upper Tribunal on the basis that considering that was an error of law, and also that there were inadequate reasons. (It was also commented that the conclusion that there was no appropriate treatment at the detaining hospital was questionable.)

Thanks

Thanks to Richard Jones (Blake Morgan LLP) for providing the judgment.

External links

• BAILII
  

• Transcript - provided by Richard Jones of Blake Morgan Solicitors

• OSSCSC website

• Upper Tribunal case summary document (January 2016) — This is a document issued to tribunal judges as guidance. The summary of PJ v A Local Health Board [2015] UKUT 480 (AAC) (in relation to the tribunal's role when faced with an ECHR breach) effectively rephrases as correct the position found to be unlawful by the Upper Tribunal (whose decision has since been overturned on appeal). The summary of WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132 (in relation to the appropriate medical treatment test applying to the detaining hospital only) appears to contradict the ratio of the Upper Tribunal decision. See the case law pages for further details.