Category:Powers

The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary	Date added	Categories
* Tribunal and validity PQR v Derbyshire Healthcare NHS Foundation Trust [2023] UKUT 195 (AAC) — The medical examination for a CTO renewal in 2020 had been conducted remotely, though renewals in 2021 and 2022 were conducted in person. The tribunal decided that it did not have jurisdiction to consider the validity of the CTO. The Upper Tribunal proceeded on the assumption (which the High Court subsequently confirmed) that the 2020 examination did not comply with the s20A requirements. It decided that: (1) the logical approach, being that the CTO had not been extended in 2020, would be self-defeating as it would remove the tribunal's power to deal with an application at all; (2) the pragmatic approach, which the judge preferred, was that the renewal had legal effect unless and until it was set aside in some lawful manner, but the tribunal still had no power to deal with issues of validity; (3) in any event, even if the tribunal had that power, (a) there would be no need to exercise the discretion to discharge, as deciding that the extension was invalid would mean that the CTO had already ended, and (b) taking into account the relevant factors (which are that such case involve the liberty of the subject, the health and safety of the patient, and the protection of others) it would have been perverse for the tribunal to have exercised its discretion to discharge the patient.	2024‑10‑21 10:12:01
* Independent evidence OO v Central and North West London NHS Foundation Trust [2024] UKUT 190 (AAC) — The clinical team supported conditional discharge so the patient did not instruct an independent expert. That opinion changed just days before a reconvened part-heard hearing, at which the RC and another witness argued for the continued detention, deferring to and relying on the opinion of two other psychiatrists, one of whom was arguing against a community placement in concurrent Crown Court proceedings. The tribunal refused to adjourn and did not discharge. Subsequently the patient was made subject to a second restricted hospital order. The Upper Tribunal decided that the tribunal's decision was unlawful: (1) it had denied the patient equality of arms by denying the opportunity to instruct an independent expert; (2) as the two witnesses who were present deferred to the opinions of two other experts, fairness required the presence of those experts for cross-examination. The judge noted that each hospital order gives a right to apply to the tribunal and made some observations about procedural matters (including that, as this case would now be remitted to the MHT, the Secretary of State had agreed to make a discretionary referral in relation to the second order, and in any event the tribunal would have a discretion to discharge the second order).	2024‑10‑21 09:17:36	Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Powers
* Reinstatement MB v South London and Maudsley NHS Foundation Trust [2023] UKUT 261 (AAC) — 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.	2023‑11‑21 11:47:45	Pages using DynamicPageList3 parser function, Cases, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2023 cases
* Adjournment for aftercare evidence SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC) — 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 (Ashworth) v MHRT; R (H) v Ashworth [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.	2023‑11‑15 23:33:15
* Adjournment and recommendations AC v Cornwall Partnership NHS Foundation Trust [2023] MHLO 1 (UT) — 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").	2023‑03‑22 22:28:38	2023 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, 2023 cases
* Failure to provide reasons to victim R (Maher) v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin) — (1) The Mental Health Tribunal in its first decision, in which it had refused to provide the mother of a victim of manslaughter the reasons for the conditional discharge decision, or a gist of them, had unlawfully fettered its discretion by applying a blanket policy or practice. (2) Around a year later, after judicial review permission on the "blanket policy" ground had been granted, the Deputy Chamber President decided to make a further decision. The tribunal had power to make this decision under its case management powers, but the decision itself was unlawful: (a) instead of directing herself that departing from the open justice principle can only be justified in exceptional circumstances when strictly necessary to secure the proper administration of justice, the DCP jumped straight to the presumption of privacy contained in the tribunal's rules; as a consequence she did not engage with the purpose of the open justice principle which is to both assist in justice being done through transparency and also to enable the public to have confidence in the system; (b) her focus on the mother's motives, which should not have been given weight in the overall balance, clouded her consideration of other, more relevant issues; (c) she did not direct herself that the extent of the derogation from the principle of open justice should be no more than is strictly necessary to achieve the desired purpose, and did not consider providing the mother with a gist or summary of the reasons; (d) she did not explain why a redacted version of the conditional discharge decision could not meet the patient's privacy rights or why redacted reasons were "not possible"; (e) she did not adequately explain her reasons; (f) she did not engage sufficiently with the reasons that the mother had put forward. The court noted: "The direction of travel in the last 30 years or so has been towards openness and a more rigorous scrutiny of exceptions to the open justice principle and creative thinking about how conflicting rights can be reconciled." (3) The refusal to provide the gist of the reasons for the conditional discharge decision, when the Parole Board would have provided a gist of its reasons in similar circumstances, was unlawful discrimination under Article 14 in relation to the mother's Article 8 rights. (4) The tribunal's decision not to allow a Victim Personal Statement, and the inability of a victim to request a reconsideration, were not unlawful discrimination given the different functions of the PB and the MHT.	2023‑01‑13 23:57:31	2023 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Judgment available on Bailii, 2023 cases
* DOL during conditional discharge Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam) — 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.	2021‑11‑16 23:08:10
* PHEs: "exceptional" merely refers to an exception to the deeming provision EB v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 362 (AAC) — 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.	2020‑12‑30 02:19:41	2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, Judgment available on Bailii, 2020 cases
* Remote pre-hearing examinations are practicable Re C [2020] MHLO 48 (FTT) — (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.]	2020‑09‑03 23:37:18	2020 cases
* Reviewing appointment of legal representative SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC) — 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.	2020‑02‑06 23:08:39	2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Mind summary, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, Judgment missing from Bailii, 2020 cases
* Proceeding in absence of solicitor and patient DA v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 348 (AAC) — The tribunal refused to adjourn the case of a CTO patient who had not attended the hearing, then the solicitor left the hearing because she felt unable to represent the patient in those circumstances. (1) The tribunal's initial decision to proceed in the patient's absence referred to rule 39(1) (whether the party had been notified of the hearing or reasonable steps had been taken to notify the party of the hearing, and whether it was in the interests of justice to proceed with the hearing) and rule 39(2)(a) (whether the patient had decided not to attend the hearing or was unable to attend the hearing for reasons of ill health) but not rule 39(2)(b) (whether a rule 34 medical examination of the patient been carried out or was impractical or unnecessary). However, given the assumption that, as an expert tribunal, it will have got the law right, it was more likely than not that the tribunal decided it was impractical to carry out an examination. (2) The tribunal had not considered making an appointment under rule 11(7), but this was unnecessary as there was no indication that the patient had withdrawn her instructions or lacked capacity. (3) When the solicitor departed, it was incumbent upon the tribunal to make a fresh assessment under rule 39(1) as to whether it was in the interests of justice to proceed with the hearing. Its reasons did not mention the departure and it was unlikely that the tribunal had carried out such an assessment; even if it had done so, the lack of any explanation would have rendered the reasons inadequate. (4) The matter was remitted to the First-tier Tribunal for a re-hearing by a differently-constituted panel.	2019‑11‑18 14:48:18	2019 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, Judgment available on Bailii, 2019 cases
* Oral tribunal decision PAA v SSHD [2019] UKUT 13 (IAC) — The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175^B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above.	2019‑07‑26 21:46:00	2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2019 cases
* Reinstatement JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC) — (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."	2019‑07‑17 10:54:45	2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2019 cases
* ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2018] MHLO 76 (SC) — On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons.	2019‑05‑15 13:10:40	2018 cases, Cases, Judgment available on MHLO, MHLR summary, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, 2018 cases
* SSJ v MM [2018] UKSC 60 — The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient.	2018‑11‑28 13:49:47	2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Transcript, Judgment available on Bailii
* Litigation friend under employment tribunal rules Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17 — Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong."	2018‑03‑28 22:58:54	2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Powers, Judgment available on Bailii, 2017 cases
* Deferred discharge beyond current authority for detention JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC) — 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.	2017‑09‑08 13:12:19	2017 cases, Cases, Judgment available on Bailii, Mind summary, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2017 cases
* ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436 — "[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention."	2017‑07‑02 23:01:01	2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, 2017 cases, Judgment available on Bailii
* Strike out - no capacity to make application R (OK) v FTT [2017] UKUT 22 (AAC) — The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. Detailed summary available on case page.	2017‑01‑27 23:58:57	2017 cases, Cases, Judgment available on Bailii, MHT capacity cases, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, 2017 cases, Judgment available on Bailii
* ECHR and tribunal criteria JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC) — "The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. ... The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015. ... What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf. On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue: 'to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'"	2016‑11‑12 00:09:27	2016 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2016 cases
* Conditional discharge and DOL MM v WL Clinic [2016] UKUT 37 (AAC) — Charles J refused permission to appeal his earlier decision (the main point of which was that, for the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty). The Secretary of State can seek permission from the Court of Appeal [and subsequently did].	2016‑01‑28 00:16:49	2016 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Judgment available on Bailii, 2016 cases
* Conditional discharge and DOL MM v WL Clinic [2015] UKUT 644 (AAC) — (1) For the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in KC at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case. (Caution: see Court of Appeal decision.)	2015‑11‑26 20:58:29	2015 cases, Cases, Deprivation of liberty, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2015 cases
NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107 — The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them.	2014‑11‑04 22:44:48	2014 cases, Deprivation of liberty, Detailed summary, Judgment available on Bailii, Judgment available on MHLO, Powers, Transcript, Upper Tribunal decisions
AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal.	2013‑08‑10 02:03:26	2013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Powers, Transcript
EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701, [2013] MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.]	2013‑05‑12 23:24:53	2013 cases, Brief summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Powers, Transcript, Judgment available on Bailii
AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163 — AC appealed against the tribunal's rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan's independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal's criticisms of Dr Kahtan's evidence on the link between the index offences and AC's mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the tribunal's statutory function is limited to considering discharge from the scope of the Act; (b) it is true that the tribunal should take into account the practical reality, as in a case where release into the community is impossible and prison is the only alternative (Abu-Rideh), but this reasoning does not apply to a case such as AC's because it is unknown whether the Parole Board will release or what conditions it might impose.	2013‑01‑23 23:41:23	2012 cases, Brief summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, Judgment available on Bailii
AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'.	2012‑12‑19 21:29:38	2012 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions
DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), [2012] MHLO 53 — (1) The tribunal cannot grant a deferred conditional discharge until (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge. (2) A deferred conditional discharge is not a device for gathering information on whether a conditional discharge would be possible or what conditions might be appropriate. (3) On the facts (where the tribunal had decided that 'with the exception of the availability of suitable after-care for the Patient, none of the criteria for his detention in hospital for treatment are met' but had not drafted conditions) the decision to adjourn was correct.	2012‑05‑20 21:25:54	2012 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions
R v Nottingham MHRT, ex p Secretary of State for the Home Department (Thomas) [1988] MHLO 1 — The Tribunal has no power to adjourn to give an opportunity for the patient's condition to improve or to see if an improvement already made is sustained.	2012‑02‑09 15:01:22	1988 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, No transcript, Powers
RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC) — (1) The Upper Tribunal has power to award costs only where the First-tier Tribunal could do so; (2) in a mental health case, the FTT only has power to make a wasted costs order (and not a costs order 'if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings'); (3) a wasted costs order may only be made against a legal or other representative; (4) it follows that there is no statutory authority to make an order for costs against the FTT, and the patient's solicitors' application to the UT was refused.	2011‑04‑30 16:43:22	2011 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions
Grant v MHRT (1986) The Times 28/4/86 — The Tribunal has no power to make statutory recommendations under s72(3) in restricted cases.	2010‑10‑11 22:20:00	1986 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, No transcript, Powers
R (Moyle) v London South and South West Region MHRT [1999] MHLR 195 — A Tribunal is not acting in an appellate or review jurisdiction, but exercising an original jurisdiction in which it forms an evaluative judgment as to whether the criteria for discharge are made out; as such, it may disagree with the evidence in front of it. When the illness is one that will relapse in the absence of medication, the appropriateness of liability to detention depends on an assessment of the probability of relapse in the near future. (At the time, the test for discharge placed the burden of proof on the patient and so the patient had to show that there was no probability of relapse to demonstrate that the nature of the illness did not justify detention; it was also held that the admission criteria had to be considered, but in the context of the burden of proof being reversed. Its conclusion that the admission criteria were not relevant meant that there was an error of law that led to the decision being quashed.) [MHLR.]	2010‑02‑26 22:27:02	1999 cases, Brief summary, Judgment available offline, Judgment missing from Bailii, MHLR summary, No transcript, Pages using DynamicPageList3 parser function, Powers
Scottish Ministers v MHTS, re NG and PF [2009] CSIH 33 — The Mental Health Tribunal for Scotland has no power to vary the conditions of a patient who had been conditionally discharged, as the power to set conditions only arises at the time of discharge.	2009‑06‑14 12:45:13	2009 cases, Brief summary, Judgment available on Bailii, Powers, Scottish cases, Transcript
R (Epsom and St Helier NHS Trust) v MHRT [2001] EWHC Admin 101 — While the matter has to be looked at in the round, including the prospect of future in-patient treatment, there will come a time when, even though it is certain that treatment will be required at some stage in the future, the timing of that treatment is so uncertain that it is no longer "appropriate" for the patient to continue to be liable to detention. The application for judicial review against the MHRT's decision to discharge from s3 failed.	2009‑04‑19 15:47:59	2001 cases, Brief summary, Judgment available on Bailii, Powers, Transcript
R (Abu-Rideh) v MHRT [2004] EWHC 1999 (Admin) — The claimant was a foreign national detained under the Immigration Act 1971 as a suspected terrorist, then transferred to hospital under s48/49 MHA 1983; the MHRT proceeded on the basis that the only realistic alternative was return to prison, where he would relapse; he argued that the MHRT ought to have considered the question of discharge by reference to discharge into the community, even though this was an impossibility; the Tribunal had been correct in their approach.	2009‑04‑12 22:45:18	2004 cases, Brief summary, Judgment available on Bailii, Powers, Transcript
R (SSHD) v MHRT, re MW [2000] EWHC 638 (Admin) — S78 allows Tribunal rules to be made to give the Tribunal such powers as are necessary for the purposes of the exercise of their statutory functions; the old MHRT rules were made under this section; the MHA does not give the Tribunal any power to make recommendations in the case of a restricted patient; therefore, the Tribunal could not lawfully adjourn for information relating solely to the making of an extra-statutory recommendation.	2009‑04‑11 23:58:13	2000 cases, Brief summary, Judgment available on Bailii, Powers, Transcript
X v UK 7215/75 [1981] ECHR 6 — (1) Under Article 5(1), the recall to hospital without the usual Winterwerp guarantees was lawful as it was an emergency; the further detention followed examination by the RMO so was also lawful; (2) Habeas corpus proceedings were inadequate for Article 5(4) purposes; the other legal machinery did not remedy this breach, in particular because the MHRT could not order discharge of restricted patients.	2009‑04‑10 23:00:44	1981 cases, Brief summary, ECHR, Judgment available on Bailii, Powers, Transcript
Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) — The responsible authority appealed against the Tribunal's interlocutory decision to direct disclosure of medical records, including third-party information, to the patient's solicitor; having agreed it had jurisdiction, the Upper Tribunal made no order on the appeal, as the patient had by that time been placed on a CTO; however, detailed guidance was given as to the proper approach where either the responsible authority resists disclosure of confidential third-party information or the solicitor wishes to disclose such information to his client. Guidance was also given on the status of a decision by a three-judge panel of the Administrative Appeals Chamber.	2009‑01‑15 00:45:28	2009 cases, Brief summary, Judgment available on Bailii, Powers, Transcript, Upper Tribunal decisions
X, Re Judicial Review [2009] NIQB 2 — Based on the general legislative purpose underlying Article 77(2) Mental Health (NI) Order 1986 and the constitutional principle in favour of liberty, the MHRT in Northern Ireland does not have the power to direct the discharge of an unrestricted patient at a future date where there is a mandatory duty to discharge the patient; a deferred discharge is only lawful for a discretionary discharge	2009‑01‑11 15:16:52	2009 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Powers, Transcript
R (X) v MHRT [2003] EWHC 1272 (Admin) — Adjournment.	2008‑09‑12 16:31:59	2003 cases, Judgment available on Bailii, No summary, Powers, Transcript
R (MP) v Nottingham Healthcare NHS Trust [2003] EWHC 1782 (Admin) — Tribunal powers with respect to restricted patients.	2008‑09‑12 16:28:37	2003 cases, Judgment available on Bailii, No summary, Powers, Transcript
R (B) v MHRT [2003] EWHC 815 (Admin) — It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness	2007‑09‑16 11:59:57	2003 cases, Detailed summary, Judgment available on Bailii, Powers, Transcript
R (O) v MHRT [2006] EWHC 2659 (Admin) — Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing. [Caution.]	2006‑10‑25 18:42:19	2006 cases, Detailed summary, Judgment available on Bailii, Powers, Transcript
R (Hempstock) v MHRT [1997] EWHC Admin 664 — Tribunal have same powers when reconvening after unfulfilled recommendations as at original hearing.	2006‑04‑16 20:47:09	1997 cases, Brief summary, Judgment available offline, Judgment missing from Bailii, Powers, Transcript