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PQR v Derbyshire Healthcare NHS Foundation Trust [2023] UKUT 195 (AAC)

Tribunal and validity 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.

Judicial summary from Gov.uk

The First-tier Tribunal has no jurisdiction to rule of the validity of a community treatment order or the extension of the period for which the order is in force.


ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

Upper Tribunal

PQR v Derbyshire Healthcare NHS Foundation Trust

[2023] UKUT 195 (AAC)B

2023 Aug 7; 11

Upper Tribunal Judge Jacobs

Tribunal— First-tier Tribunal— Jurisdiction— Patient seeking declaration as to invalidity of community treatment order invalid— Whether First-tier Tribunal having jurisdiction to determine validity of community treatment order— Mental Health Act 1983 (c 20), ss 17A, 20A, 72

The patient was subject to a community treatment order under section 17A of the Mental Health Act 1983 which was due to expire in 2020. The order was extended in 2020 by the patient’s responsible clinician following an examination of the patient which was conducted by telephone due to the pandemic, and was further extended in 2021 and 2022 following an examination carried out in the presence of the patient. Subsequently, the patient applied to the First-tier Tribunal for a declaration that the extension of the order in 2020 was invalid because it was based on a telephone examination, which did not comply with the requirements of the 1983 Act including section 20A(4)(a). The tribunal decided that it did not have jurisdiction to determine the validity of the order but considered that, in any case, the telephone examination was compliant with the 1983 Act.

On appeal by the patient—

Held, appeal dismissed. Applying a pragmatic view, and on the assumption that the examination in 2020 did not comply with section 20A(4)(a) of the Mental Health Act 1983, the legal effect of the extension of the patient’s community treatment order in 2020 was that the order had been extended on that occasion even if it was based on an examination that was not properly conducted, and that the order had been further extended in 2021 and 2022. On the proper construction of the 1983 Act, and taking the same approach as was applied in respect of section 3 of the 1983 Act concerning the powers of the First-tier Tribunal in relation to applications for detention for hospital treatment, the statutory provisions which allowed applications to be made to, and conferred powers, on the First-tier Tribunal in relation to community treatment orders did not provide for the First-tier Tribunal to deal with issues of validity. In particular, section 72(1) of the 1983 Act, which conferred a discretion on the tribunal to “direct that the patient be discharged”, did not permit the tribunal to make a ruling on the validity of the order. It followed that the tribunal had been right to decide that it had no jurisdiction to rule on the validity of the order. The patient ought instead to pursue any remedies through the courts rather than the tribunal system (paras 2, 18, 22, 24, 29).


Dicta of Ackner LJ in Ex p Waldron [1986] QB 824Not on Bailii!, 846, CA and dicta of Lord Bingham of Cornhill in R (Von Brandenburg) v East London and the City Mental Health NHS Trust [2004] 2 AC 280B, para 9(3), HL(E) applied.

Stephen Simblet KC and Ollie Persey (acting pro bono) (instructed by Cartwright King, Derby) for the patient.

Fenella Morris KC (instructed by Browne Jacobson LLP, Manchester) for the NHS trust.

Karl Laird (instructed by Treasury Solicitor) for the Secretary of State, by written submissions only.

Jeen Ann Young, Barrister

Referenced Legislation

Mental Health Act 1983 (c 20), ss 17A, 20A, 72


External links

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Powers🔍
  • Upper Tribunal decisions🔍

Date: 11/8/23🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍

Judicial history:

Judge(s):

Parties:

  • PQR🔍
  • Derbyshire Healthcare NHS Foundation Trust🔍
  • Secretary of State for Health and Social Care🔍

Citation number(s):

What links here:

Published: 21/10/24 10:12

Cached: 2024-11-23 08:20:53

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