ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
London WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE BEATSON
|BIRMINGHAM AND SOLIHULL MENTAL HEALTH NHS TRUST AND ANOTHER||Respondent|
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Mr Martin Chamberlain QC (instructed by Treasury Solicitors) appeared on behalf of the Respondents
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Lord Justice Laws:
"whether a patient detained under the Mental Health Act 1983 may challenge a decision by the First-tier Tribunal to refuse to make an extra-statutory recommendation as to his future care or treatment."
"7. In the first case before me, (C), the hospital order and restriction order were made in 2005. The patient was conditionally discharged in 2006 but recalled in 2008. He was again conditionally discharged on 1 April 2010 but was recalled on 30 April 2011. Following that recall, the Secretary of State referred the case to the First-tier Tribunal on 7 September 2011. The Appellant's statement of facts, which has not been challenged and which I accept as accurate for the purpose of this appeal, says –
'6. The appellant did not ask the tribunal to discharge him. His sole application was for a recommendation that he be granted leave outside the hospital.
'3. The Tribunal were concerned that in view of the fact that the Team was considering community leave to be imminent that it would not be appropriate for the tribunal to enter into micro management and interfere with the professional judgment of the Responsible Clinician and his Team. When Dr Maganty gave evidence he informed the Tribunal that in fact the letter to the Ministry of Justice had been drafted seeking community leave and would soon be posted. The Tribunal saw nothing in the evidence to suggest that this was not the appropriate course of action.'
'7. The Tribunal accepts the evidence of the clinical team that the patient is properly detained and that treatment is appropriate and the patient is progressing well and will shortly have properly monitored community leave.'
10. In the second case before me, (F), the hospital order and restriction order were made in 2006. On a date not revealed in the documents before me, the patient made an application to the First-tier Tribunal under section 70(b), which came before the First-tier Tribunal on 20 September 2011. The Appellant's statement of facts, which has not been challenged, says –
'6. …Before any evidence has been heard, [the patient's] solicitor told the tribunal that what was sought was an extra-statutory recommendation that he be transferred to less restrictive conditions of detention.
7. …According to the solicitor's note, the judge said
'I am very reluctant to give an extra-statutory recommendation. The only value of extra-statutory recommendations [is] if there are unreasonable obstructions to move by the MOJ. This is my personal view and you will not shift me from this view.'
8. During the course of the hearing the solicitor asked questions and made submissions in relation to the application for a recommendation.'
11. The First-tier Tribunal did not discharge the patient. Its statement of reasons did not mention the request for an extra-statutory recommendation at all."
"Any such recommendation received in the Home Office is acknowledged, and any comments are offered which can usefully be made at that stage. Correspondence with the tribunal is copied to the patient's responsible medical officer, since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on a tribunal's recommendation, full account is taken of the tribunal's views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the tribunal had made. [see Hansard, House of Commons, volume 121, columns 261 to 262 for 28 October 1987]."
"Medical treatment need not be the most appropriate medical treatment that could ideally be made available. Nor does it need to address every aspect of the person's disorder. But the treatment available at any time must be an appropriate response to the patient's condition and situation."
Lord Justice Rimer:
Lord Justice Beatson:
Order: Appeals dismissed