SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC)

Adjournment for aftercare evidence 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.

Thanks

Thanks to Ben Conroy (Conroys Solicitors) for providing the judgment.

Note

The Ashworth case was decided when the tribunal had to discharge when satisfied of the discharge criteria rather than, as now, not satisfied of the detention criteria, but it makes no material difference here. See R (H) v MHRT North and East London Region [2001] EWCA Civ 415.

Judicial summary

Judicial Summary

This appeal is about when a tribunal must adjourn to seek information on aftercare that would be available to a patient should the tribunal exercise its power of discharge.

The same issue was considered by the Upper Tribunal in AM v West London Mental Health NHS Trust and Secretary of State for Justice [2012] UKUT 382 (AAC)^M. However, unlike in AM v West London, in this case there was compelling and uncontradicted evidence that discharge into the community was a realistic alternative to detention in hospital provided that suitable aftercare was available.

See also

• UT case summary. Roger Pezzani and Alex Schymyck, 'Upper Tribunal provides important guidance on proceeding without aftercare evidence' (Garden Court Chambers, 17/11/23) — Extract from this summary of SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC): "(1) The Tribunal should adjourn to obtain aftercare evidence where it is capable of affecting the the outcome of the hearing. AM was a relatively unusual case where aftercare evidence was not capable of affecting the outcome. (2) It is procedurally unfair to refuse an adjournment request from a patient where the detaining authority has failed to provide relevant evidence such as that addressing aftercare. (3) The Tribunal must not 'kick the can down the road' and leave matters to be resolved by a future Tribunal. Procedural fairness applies at each stage of the process and an unfair Tribunal hearing cannot be cured by the possibility of a future hearing."
  

External links

• Gov.uk website

CASES DATABASE

Full judgment: BAILII
Download here

Subject(s):

• Powers🔍
• Upper Tribunal decisions🔍

Date: 22/10/23🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍

Cites:

• AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73
• R (Ashworth) v MHRT; R (H) v Ashworth [2001] EWHC Admin 901

Judge(s):

• Thomas Church🔍

Parties:

• SS🔍
• Cornwall Partnership NHS Foundation Trust🔍

Citation number(s):

• [2023] UKUT 258 (AAC)^B

What links here:

• Roger Pezzani and Alex Schymyck, 'Upper Tribunal provides important guidance on proceeding without aftercare evidence' (Garden Court Chambers, 17/11/23)

Published: 15/11/23 23:33

Cached: 2024-11-21 13:15:42