Jonathan Wilson, 'Mental health: update' (Legal Action, March 2021)

Case law update This article considers mental health case law from the past year relating to coronavirus responses, change in status during proceedings, capacity to make an application, deprivation of liberty during discharge, and other matters.

About the article

This article was first published in Legal Action magazine and is reproduced by kind permission. This article and subscription details are available on their website. The previous mental health article was: Jonathan Wilson, 'Mental health: update' (Legal Action, March 2020). The next mental health article is: Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022). Some cases may have been appealed since the article was written. You should check the relevant Mental Health Law Online pages, as these normally contain details of any appeals.

Jonathan Wilson considers mental health case law from the past year relating to coronavirus responses, change in status during proceedings, capacity to make an application, deprivation of liberty during discharge, and other matters.

Pre-hearing medical examinations

Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 SI No 2699 (the TPR) r34 requires that a pre-hearing examination (PHE), to form an opinion of the patient’s mental condition, take place ‘so far as practicable’ in certain circumstances. Those circumstances are: proceedings arising from Mental Health Act (MHA) 1983 s2, unless the patient refuses; other proceedings, if the patient requests it; and when the tribunal otherwise directs. The rule is still in force.

First practice direction: no PHEs

Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (19 March 2020) stated the following:

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.

No mention was made of video or telephone conferencing, which by then was making oral hearings practicable, and which seemed an obvious answer to the question of PHE practicability.

First-tier Tribunal decides that remote PHEs are practicable

Re C
[2020] MHLO 48 (FTT),
21 August 2020

In this case, a salaried tribunal judge of the First-tier Tribunal (FtT) refused to allow a PHE, because the practice direction stated that it was not practicable. There was no mechanism stated in the practice direction for seeking a medical examination in individual cases; however, the patient in this case sought permission to appeal under TPR r46. A different salaried tribunal judge treated the application as a r6(5) challenge to directions and decided that:

(a) the practice direction is subordinate to the rules and to the overriding objective;

(b) in video-enabled hearings with a full panel, a PHE is practicable by that means; and

(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.

In this case, the salaried tribunal judge directed that a PHE would take place by video link on the morning of the hearing.

It should be noted that FtT decisions, while useful for representatives and, by extension, for patients, do not establish legal precedent.

Amended practice direction: exceptional circumstances

Shortly after that decision was published, the FtT published a new policy, Video hearing guidance for representatives in Mental Health Tribunals (11 September 2020), that PHEs would not take place except in exceptional circumstances. That policy is now implemented in Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (14 September 2020), which states at paragraph 8:

For the duration of this Pilot Practice Direction it shall be deemed not practicable under rule 34 of the 2008 Rules for any pre-hearing examinations to take place, unless the Chamber President, Deputy Chamber President or an authorised salaried judge direct 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. An ‘authorised salaried judge’ means either:

a. a salaried, or former salaried, judge of the Health, Education and Social Care Chamber; or

b. a salaried, or former salaried, judge assigned to the Chamber

who has been authorised by the Chamber President or Deputy Chamber President to exercise the functions in this paragraph.

The amended practice direction gave no guidance on what would be considered ‘exceptional circumstances’ and no reason for the assertion that PHEs in other circumstances were ‘not practicable’.

Upper Tribunal decides what ‘exceptional’ means

EB v Dorset Healthcare University NHS Foundation Trust and Lord Chancellor
[2020] UKUT 362 (AAC)^M,
16 December 2020

In this case, the patient persistently pursued a PHE. Four salaried tribunal judges of the FtT either refused a PHE or upheld an earlier refusal, but permission to appeal was eventually granted.

A three-member panel of the Upper Tribunal (UT) decided that the amended practice direction cannot override the terms of TPR r34, and has to be interpreted, if possible, consistently with the rule. The UT found that such an interpretation is possible: circumstances are ‘exceptional’ if a PHE is practicable (being an exception to the provision deeming that it is not practicable).

The UT stated that health and safety concerns, as mentioned in the amended practice direction, are relevant, and would be relevant to practicability even if there had been no pandemic. Rule 2’s 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).

In response to a resources argument, the UT stated that 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’ (para 19).

On the facts, the FtT had unlawfully misinterpreted the amended practice direction by considering reasons unrelated to practicability. The patient had since been discharged, but the UT would have set aside the FtT’s decision had she still been detained.

Comment: Before the UT’s decision, FtT salaried tribunal judges had been interpreting the words ‘exceptional circumstances of the case’ according to their plain meaning: no statistics are available, but anecdotal evidence is that PHEs became as rare as hen’s teeth. The decision that circumstances are ‘exceptional’ when a PHE is practicable should mark a return to the status quo ante, as it is a recognition that the amended practice direction adds nothing to r34 and that PHEs should happen whenever they are practicable. The only difference is procedural: instead of the medical member deciding on practicability having attempted a PHE, the salaried tribunal judges control this decision and have to decide on the papers in advance. The practice so far has been to direct that PHEs take place via the Cloud Video Platform (as with the hearing), on the same day as the hearing, and for the hearing to be listed for a whole day, although none of this is necessary.

It appears that, following the UT decision, PHEs are routinely being granted when sought (though not by default in s2 cases as is required by r34) but that some representatives are out of the habit of providing advice on this topic. It should be noted that the Legal Aid Agency (LAA) document, Improving your quality in mental health (v5, December 2020, published 4 January 2021) adds a new ‘major concern’ noted by peer reviewers:

Where there is no evidence of an informed discussion with the client about whether to seek a r34 medical examination in non s2 cases (para 7).

Postponement of community treatment order hearings

Re B
[2020] MHLO 18 (FTT),
28 April 2020

Early in the coronavirus pandemic, a decision was made in Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction (FtT (Health, Education and Social Care Chamber) Mental Health, 26 March 2020) to postpone all hearings for adult community patients whose case had not yet been listed for paper review and whose case was a result of the patient’s application or a periodic mandatory reference. The reasons given in the directions stated that it was ‘not feasible or practicable for a community patient under the government’s “stay at home” policy to attempt to participate in a hearing’ and mentioned that deprivation of liberty cases were being prioritised. The order stated that parties were at liberty to apply to vary the order and directions in exceptional cases.

In this case, the patient had made an application to the tribunal on 24 January 2020, the first day of her detention under MHA 1983 s2. The tribunal’s decision of 5 February 2020 not to discharge her was set aside on 14 February 2020. Delays occurred owing to the lack of a hearing loop system, which led to a further delay for up-to-date reports. The hearing was finally listed for 29 April 2020 but on 22 April 2020 was postponed under the coronavirus order and directions set out above. By this time, the patient had been detained under s3, then discharged onto a community treatment order (CTO). She challenged the postponement under TPR r46. A salaried tribunal judge of the FtT, in a non-binding decision, concluded that the hearing should go ahead given the exceptional circumstances.

Comment: Shortly after the publication of that decision, it was decided, in Order and directions for listing of community hearings (FtT (Health, Education and Social Care Chamber) Mental Health, 6 May 2020), to list all postponed hearings because the tribunal had by then ‘achieved a level of administrative support to be able to list cases for community patients’. That order and directions set out the duties on patients’ representatives and responsible authorities in relation to reports, consideration of paper hearings, agreed hearing dates, and remote hearing practicalities. The backlog was cleared over the summer of 2020.

Paper reviews for uncontested renewals

There is a new power in new TPR r5A allowing the tribunal to dispose of proceedings without a hearing if the tribunal considers that the following conditions are satisfied:

(a) the matter is urgent;

(b) it is not reasonably practicable for there to be a hearing (including a hearing where the proceedings would be conducted wholly or partly as video proceedings or audio proceedings); and

(c) it is in the interests of justice to do so.

This power was inserted into the rules of all FtT chambers by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 SI No 416 on 10 April 2020 and will expire on the same day as Coronavirus Act 2020 s55(b).

The power is, at the time of writing, being used to enable a judge alone to decide ‘uncontested’ reference cases on the papers without a hearing (Frequently asked questions about hearing arrangements during the coronavirus pandemic - July 2020, Courts and Tribunals Judiciary, published August 2020). The tribunal’s position is that all detention cases are urgent, that it is not reasonably practicable for there to be a hearing if the patient does not want to attend and does not want to contest detention, and that it is therefore in the interests of justice to hold a paper review.

Comment: Automatic references to the tribunal exist as a safeguard for those patients least likely to make an application for themselves. A patient can withdraw an application (with the consent of the tribunal) but cannot withdraw a reference. Allowing these patients to opt for a paper review is not far from circumventing, for the tribunal’s administrative convenience, the patient’s inability to withdraw a reference. Unlike other responses to the coronavirus pandemic, it is unlikely that there will be an appeal against this policy in the short term, but representatives should not agree to paper reviews and should consider challenging such decisions if in future they become aware of them.

Remote hearings set aside

Unlawful refusal to adjourn telephone hearing

GL v Elysium Healthcare Hospital and Secretary of State for Justice
[2020] UKUT 308 (AAC)^M,
9 November 2020

The patient in this case resided in a self-contained flat, adjacent to the ward, with another patient. On the day of the hearing, he and his flatmate were advised to self-isolate because another patient had tested positive for coronavirus. The patient’s representative sought an adjournment because of concerns that the flatmate could overhear. The tribunal refused to adjourn, proceeded in his absence and did not discharge. The patient appealed.

The UT held that it was wrong for the FtT to have proceeded with the telephone hearing because:

(a) the tribunal had, without investigation, assumed that the patient’s flatmate could not overhear;

(b) the tribunal had improperly dealt with the patient’s anxiety: either it had concluded, without investigation, that the anxiety was without foundation (when he had in fact previously been assaulted because other patients discovered his history), or it had believed the same anxiety would arise at a future hearing (when in fact it arose from the specific circumstances that day); the tribunal should have considered whether his anxiety was genuine and, if so, the impact on his ability to participate; and

(c)the tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (ie, telephone) rather than the fear of being overheard that day.

The case was remitted to be reheard by a differently constituted tribunal panel.

Unfair video tribunal hearing set aside

Re D
[2020] MHLO 51 (FTT),
15 October 2020

In this case, the patient’s microphone had been muted for much of the time after giving her evidence at the outset because she ‘would not stop talking’. The tribunal decided not to discharge her from MHA 1983 s2, and she appealed on the basis that she had not heard all the evidence.

On review, a salaried tribunal judge of the FtT decided that it was not clear whether the patient had had a reasonable opportunity to hear all the evidence that was given at the hearing, and therefore it was not possible to be sure that the patient had had a fair hearing. The judge gave the following advice:

It would have been clearer if the tribunal judge had gone back to the patient at the end of each witness and checked that she had heard and understood the evidence given, and indeed the patient’s representative could have checked with her client at the conclusion of the evidence …

The judge also decided that muting the patient’s microphone did not amount to exclusion under TPR r38. The decision was set aside and directed to be listed before a differently constituted tribunal panel. As noted above, FtT decisions can be helpful but set no precedent.

Comment: Both GL and Re D show that problems arising from the difficulties in conducting remote hearings can amount to an error of law and provide the patient with the opportunity to be heard at a further hearing.

Change in status during tribunal proceedings

From s3 to guardianship

AD’A v Cornwall Partnership NHS Foundation Trust
[2020] UKUT 110 (AAC)^M,
30 March 2020

When the patient had been transferred from MHA 1983 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 the tribunal, different tribunal powers, and different parties) affected that jurisdiction.

From s3 to s37 hospital order

GM v Dorset Healthcare University NHS Foundation Trust and Secretary of State for Justice
[2020] UKUT 152 (AAC)^M,
4 May 2020

The FtT had been right to strike out proceedings arising from a s3 reference when the patient was subsequently made subject to a s37 hospital order. It would be contrary to statutory policy (which does not allow applications to the tribunal during the first six months of a hospital order) if the tribunal were to retain jurisdiction under an application or reference that was made before the date of the hospital order.

Comment: AD’A and GM add to previous case law which established that the tribunal retains jurisdiction following any changes between s2, s3 and CTO, and following transfer from s3 to s7 (guardianship), but loses jurisdiction following a change from s47/49 (restricted transfer direction from prison) to s47 (notional s37).

Capacity to make tribunal application

SM v Livewell Southwest CIC
[2020] UKUT 191 (AAC)^M,
12 June 2020

The patient in this case made an application to the tribunal with the support of an independent mental health advocate (IMHA) and was represented at the hearing by counsel. The tribunal medical member’s PHE concluded that the patient ‘did not and has never had during her admission the ability to understand what a mental health review tribunal means’ and that ‘she did not understand that a tribunal could discharge her’ (see para 23). The patient’s instructions to the barrister on the morning of the hearing were that ‘she did not need to attend the tribunal, but just needed to leave’ (see para 24); she later decided to attend the hearing and walked by herself from the ward to the tribunal waiting room.

The UT had previously decided in VS v St Andrew’s Healthcare [2018] UKUT 250 (AAC)^M; February 2019 Legal Action 19 that the capacity required by a patient to bring proceedings before the FtT in its mental health jurisdiction is as follows:

The patient must understand that they are being detained against their wishes and that the First-tier Tribunal is a body that will be able to decide whether they should be released (para 19).

If the patient lacks that capacity at the relevant time then the FtT should strike out the proceedings under TPR r8, which states:

(1) With the exception of paragraph (3), this rule does not apply to mental health cases.
[…]
(3) The tribunal must strike out the whole or a part of the proceedings if the tribunal –

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

[…]
(5) The tribunal may not strike out the whole or a part of the proceedings under paragraph (3) or (4)(b) or (c) without first giving the applicant an opportunity to make representations in relation to the proposed striking out.

Having regard to the above, the FtT in SM’s case decided that she had lacked capacity to make the application when she had made it, and therefore the proceedings were struck out. SM appealed. The appeal was heard by a three-member panel of the UT because it entailed a direct challenge to the correctness of VS and involved an important point of principle.

The majority of the UT confirmed that the test for capacity set out in VS was correct (the minority view was that the patient must merely understand that she is in a place that she wishes to be free to leave): the first part of the VS test might be rephrased as asking whether the patient realises that she is not free to leave the hospital, and the second part requires only an understanding that the tribunal can authorise her to leave the hospital. On the facts, the FtT had not erred in striking out SM’s case.

The UT judgment contains detailed procedural guidance, including:

(a) The hospital should alert the patient and representative, before the day of the hearing, that there are concerns as to capacity to make the application. In SM’s case greater efforts might have been made to secure the attendance of the IMHA at the tribunal had concerns been raised earlier.

(b) If a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any notice requirements, proceed to hear the case there and then.

(c) Anyone can request that the secretary of state make a reference: this includes not only the hospital managers and IMHA, but also the tribunal itself. In a case in which the patient lacked capacity to apply but wishes to leave the hospital, it would be sensible for the tribunal to consider adjourning for this purpose instead of immediately striking out the case.

Comment: The procedure for seeking a reference involves sending Form T111 to the Department of Health and Social Care (DHSC). Up-to-date contact details can be found on Mental Health Law Online. The government proposes in the white paper, Reforming the Mental Health Act (DHSC, 13 January 2021; consultation closes 21 April 2021), to create a new statutory power for IMHAs to apply to the tribunal to challenge patients’ detention on their behalf (see also page 32 of this issue).

Public hearing and capacity

AR v West London NHS Trust and Secretary of State for Justice
[2020] UKUT 273 (AAC)^M,
10 September 2020

The FtT refused to hold a public hearing, mainly because it found that the patient lacked capacity to make the decision to apply for and have a public hearing. The patient appealed.

In the earlier case of AH (Albert Haines) v West London MHT [2010] UKUT 264 (AAC)^M, the UT had stated that the normal practice that tribunal hearings are held in private is justified, and stated (at para 44) that the relevant factors in deciding whether to direct a hearing in public are:

Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)?
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?
Are there any other special factors for or against a public hearing?
Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

In relation to the factors above, the FtT interpreted the first factor as requiring an informed choice and concluded that ‘[w]ithout being able to make an informed choice [the patient] cannot have a public hearing’ (see para 15 of the present decision).

The UT held that this decision involved errors of law:

(a) patients who lack capacity are entitled to have their best interests put to the tribunal in support of an application for a public hearing, and have their views taken into account; and

(b) 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.

The UT noted that the four factors set out above may have acquired a significance that is not justified and are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The matter was remitted to the FtT to decide on capacity and whether to appoint a legal representative, and whether to hold a public hearing.

Comment: Public hearings continue to be extremely rare. The only known hearings are Re Albert Haines [2011] MHLO 169 (FTT), Re Ian Brady [2013] MHLO 89 (FTT) and Re Jared Britton [2013] MHLO 146 (FTT).

Reviewing appointment of legal representative

SB v South London and Maudsley NHS Foundation Trust
[2020] UKUT 33 (AAC)^M,
30 January 2020

Following a six-month reference made under MHA 1983 s68, the tribunal appointed a legal representative under TPR r11(7)(b). Three weeks later, and a week before the hearing, the patient instructed a different solicitor, who wrote to the tribunal, enclosing forms of authority and transfer, stating that the patient had capacity to appoint him, and asking to be placed on record as acting on instructions.

The first representative objected to the transfer on the basis that the patient still lacked capacity to ‘instruct solicitors’. A tribunal caseworker relied on that objection to refuse to place the new solicitor on record. By then the hearing was three working days away so the patient continued with the first representative, but afterwards challenged the refusal to allow him his choice of solicitor.

The UT decided that the initial appointment was unlawful because the form on which it was made (Form MH6b) was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under r4. If it had, then the patient might well have acted in good time so that his attempt to have a new representative put on record would not have been made too late to be resolved before the hearing.

The refusal to rescind the initial appointment was also unlawful: there was no guarantee that the proper decision-making process was carried out; the tribunal had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction; it seemingly ignored the principle that the test of capacity to appoint a representative is lower than the capacity to conduct proceedings; and it had abdicated its decision-making responsibility by allowing the prior appointment to trump any other consideration by basing its decision purely on the appointed solicitor’s objection and assessment of capacity.

However, the decision of the tribunal panel in not discharging the patient was not flawed in any material respect, and neither of the unlawful decisions were set aside as the patient had since been discharged.

Comment: Another illustration of the need to keep capacity under review, though in relation to the tribunal panel hearing the case, is PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC)^M; February 2018 Legal Action 27.

Direction for all-female panel

Re A
[2020] MHLO 14 (FTT),
10 February 2020

In this case the patient’s Form HQ1 sought: ‘Female only panel due to complex trauma history – will not be able to participate in her hearing at all if males are present.’ The tribunal nevertheless booked a male medical member, refused a subsequent request for a female doctor because ‘the patient cannot select the members of the panel’, and a salaried tribunal judge rejected a challenge to that decision. The medical member had by then been replaced with a female (for reasons that are not given in the decision) but the patient sought permission to appeal the salaried tribunal judge’s decision under TPR r46 as the issue might arise again.

The FtT judge decided the case under r5 case management powers rather than r46, and derived guidance from a social entitlement case, CB v Secretary of State for Work and Pensions [2020] UKUT 15 (AAC)^M; September 2020 Legal Action 29, which noted (obiter, at para 23) that the issue would likely arise in two categories of case, ‘appeals involving sensitive and uniquely female medical conditions’ and ‘cases raising cultural issues about the giving of evidence’, and that the common thread is that such questions must be judged by applying the overriding objective rather than by characterising such requests as parties attempting to ‘choose their own tribunal’ (para 24). The arguments in A’s case were more clear-cut as she would not otherwise be able effectively to participate in the hearing or the PHE.

It was directed the case would be heard by an all-female panel.

Comment: Although, as noted above, of no precedential value, this is another useful FtT decision, particularly given the likelihood that most mental health lawyers and tribunal judges would otherwise have been unaware of the CB case from the Social Entitlement Chamber.

Deprivation of liberty during conditional discharge

Court of Protection’s approach

Birmingham City Council v SR; Lancashire CC v JTA
[2019] EWCOP 28^M,
17 July 2019

This case involved two patients, SR, who would be conditionally discharged if a Court of Protection (CoP) order authorising deprivation of liberty could soon be obtained, and JTA, who for almost three years had been living under a condition that he ‘shall not be permitted to leave his accommodation unless accompanied and supervised at all times’ (see para 14).

The applications for court authorisation of deprivation of liberty were made by the local authorities under the Re X streamlined procedure (Re X [2014] EWCOP 37^M) but were heard by a High Court judge at an oral hearing in light of the Supreme Court decision in Secretary of State for Justice v MM [2018] UKSC 60^M; February 2019 Legal Action 17. That decision was that the MHA 1983 does not permit either the FtT or the justice secretary to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient.

The judge referred to HM Prison and Probation Service’s Mental Health Casework Section guidance, Discharge conditions that amount to deprivation of liberty (January 2019), which was published in light of MM and provides for two approaches. For patients who lack capacity to consent to deprivation of liberty and whose risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act (MCA) 2005. For patients who lack capacity and whose risk is primarily to others, and also for all patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term MHA 1983 s17 escorted leave.

On the facts, both patients were in the former category – they supported, but lacked capacity in relation to, the proposed care plans, which involved deprivation of liberty concurrently with a conditional discharge, and those plans were in their best interests. The court therefore authorised the deprivation of liberty. The judge, obiter, stated that the guidance document’s two approaches involved a false dichotomy that did not withstand scrutiny, as it is strongly in a patient’s own best interests to be kept ‘out of mischief’ and thereby be assisted in remaining out of psychiatric hospital.

Mental Health Tribunal’s approach

MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice
[2020] UKUT 230 (AAC)^M,
16 July 2020

The clinical team in this case unanimously supported the patient’s conditional discharge from hospital, but the only way that the necessary treatment could be delivered in the community would involve a deprivation of liberty. The FtT would have granted the conditional discharge but refused to do so as it felt constrained by the Supreme Court judgment in MM. The patient appealed.

The UT decided that although, following MM, the FtT has no power to impose conditions that would amount to a deprivation of liberty, it must discharge a patient if there are means by which the patient’s case can be appropriately dealt with under other legislation, and it does have the power to coordinate its decision with the provision of an authorisation under the MCA 2005. This could either be by what the judge termed the ‘different hats approach’ (the same judge sitting simultaneously in the CoP and the FtT) or the ‘ducks in a row approach’ (adjournment or deferred conditional discharge pending authorisation under the MCA 2005). The equivalent outcome could be reached for capacitous patients by using MHA 1983 s17 leave, so there was no European Convention on Human Rights (ECHR) article 14 discrimination in favour of incapacitous restricted patients.

On the facts, the FtT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. The UT directed the conditional discharge of the patient on a future date subject to conditions of residence, supervision and compliance with all aspects of the care package, with permission (for the patient, her responsible clinician or the justice secretary) to apply to the FtT for variation in the event of a material change in circumstances.

Comment: Much of the jurisprudence around ECHR article 5 in the mental health and mental capacity context suggests that it is a square peg being used for a round hole, but SR and MC show that a pragmatic approach can still benefit patients.

The obiter statement in SR that it is in a patient’s best interests to be kept 'out of mischief’ (which, in SR’s case, included potential violence against women) is interesting as it would effectively coalesce MHA 1983 detention, which is based on risk, with MCA 2005 detention, which is based on best interests.

The conditions set by the UT in MC are surprising:

(a) the condition of compliance with ‘all aspects of the care package’ seems to offend against the principle in MM, as the care package would amount to a deprivation of liberty;

(b) a conditional discharge can be deferred under MHA 1983 s73(7) ‘until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction’ but there is no power to defer conditional discharge to a specified future date, as the UT purported to do here; and

(c) the ‘permission to apply’ provision must only have been meant to apply before the future date, as after conditional discharge the patient cannot apply until 12 months have lapsed, the responsible clinician can never apply, and the justice secretary would not need to refer as he has his own power to vary conditions.

In the white paper, Reforming the Mental Health Act (see above), the government proposes a new power of ‘supervised discharge’, which would enable a restricted patient to be discharged with conditions amounting to a deprivation of that liberty (no similar change is proposed for CTO conditions).

Condition removed from conditional discharge

Re E
[2020] MHLO 52 (FTT),
9 September 2020

The tribunal granted a conditional discharge but its written reasons contained an onerous condition – to abide by accommodation rules, sleep there every night, and not have overnight guests – that had not been discussed at the hearing. The patient appealed and, on review, a salaried judge of the FtT decided that there had been a clear error of law:

(a) the tribunal failed to provide reasons for imposing the conditions of discharge;

(b) it was required to provide a brief explanation;

(c) it was also required to announce the conditions that the patient was subject to in exact terms, which was crucial given that the patient was being conditionally discharged immediately.

The outcome was that the conditional discharge would remain in place but with the extra condition removed.

Comment: This decision is not binding, but the proposition that a patient being conditionally discharged immediately ought to be informed of the conditions upon discharge is common sense.

Other cases

Medical treatment

In JK v A Local Health Board [2019] EWHC 67 (Fam)^M, 13 November 2019, the court decided that force-feeding the patient by way of nasogastric tube was treatment within the scope of MHA 1983 s63 because the refusal to eat was a manifestation or symptom of autistic spectrum disorder.

Similarly, in A Healthcare and B NHS Trust v CC [2020] EWHC 574 (Fam)^M, 11 March 2020, the court decided that dialysis treatment, including the use of light physical restraint and chemical restraint if required, was s63 treatment as the patient’s physical condition was a manifestation of his mental disorder.

Ex turpi causa

In Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43^M, 30 October 2020, the Supreme Court held that although the trust admitted negligently failing to return the patient to hospital on the basis of her manifest psychotic state, which led to her stabbing her mother to death, the patient’s claim for damages was barred by the doctrine of ex turpi causa non oritur actio (illegality).

Parole Board representation

In R (EG) v Parole Board and Secretary of State for Justice [2020] EWHC 1457 (Admin)^M, 9 June 2020, the court decided that the power introduced in the Parole Board Rules 2019 SI No 1038 to appoint a representative ‘where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner’s best interests for the prisoner to be represented’ (r10(6)(b), which is materially the same as TPR r11(7)(b)) could not be exercised in the absence of anything similar to the accreditation system operating in the MHT (combined with the LAA’s pragmatic approach to the regulation preventing providers from making an application for legal aid).

Criminal appeals

Guidance on sentencing and mental health was provided in R v PS, Dahir and CF [2019] EWCA Crim 2286^M, 20 December 2019. The Court of Appeal substituted restricted hospital orders under MHA 1983 s37/41 instead of the existing life sentence in R v Cleland [2020] EWCA Crim 906^M, 16 July 2020, the imprisonment for public protection sentence in R v Stredwick [2020] EWCA Crim 650^M, 5 March 2020, and the MHA 1983 s45A hybrid orders in R v Westwood [2020] EWCA Crim 598^M, 6 May 2020, and R v Nelson [2020] EWCA Crim 1615^M, 2 December 2020.

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Type: Journal article🔍

Title: Mental health: update

Author: Wilson, Jonathan🔍

Organisation: Legal Action🔍

Date: March 2021🔍

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