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Cite as: [2011] AACR 37, [2009] UKUT 195 (AAC)

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AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) (01 October 2009)

IN THE UPPER TRIBUNAL Appeal No. M/827/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision: I refuse the Second Respondent's application for a hearing.

I allow this appeal against the decision of the First-tier Tribunal (Health Education and Social Care Chamber) dated 29 December 2009. I set aside that decision and remit the case for reconsideration. I direct that the First-tier Tribunal shall find that the application before it has not lapsed by virtue to the Second Respondent having been made subject to a community treatment order and shall accordingly decide whether or not he should be discharged.

I direct that, save for the frontsheet (which identifies the Appellant and the Second Respondent by their full names), this decision may be made public.

REASONS FOR DECISION

Introduction

The Appellant is the mother and displaced nearest relative of the Second Respondent patient, who was detained in a hospital managed by the First Respondent NHS foundation trust. The Third Respondent is the Secretary of State for Health who has been invited to join these proceedings so as to be able to express a view on the important question of law that arises.

That question is whether an application to the First-tier Tribunal made while the patient is detained under section 3 of the Mental Health Act 1983 ("the 1983 Act") lapses if the patient is made subject to a community treatment order under section 17A of that Act before the application is heard. Although, in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4, a three-judge panel of the Upper Tribunal (of which I was a member) agreed with counsel appearing before it that an application did lapse in those circumstances, the point was not the subject of argument and made no difference to the Upper Tribunal's decision and I am therefore free to consider the issue afresh.

I have been greatly assisted by written submissions made by all parties. The Appellant has been represented by Ms Laura Davidson of counsel, instructed by Terry Jones Solicitors of Shrewsbury. The First Respondent, which opposes the appeal, has been represented by Ms Fenella Morris of Counsel, instructed by Hill Dickinson LLP of Manchester. The Second Respondent, who does not seek to be discharged, has been represented by Ms Kate Markus of counsel, instructed by Peter Edwards Law Ltd of Hoylake. The Third Respondent, who supports the appeal, has been represented by Mr Tim Buley of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions. I have also received a helpful submission from the Office of the Official Solicitor in respect of a preliminary point advanced by the solicitors for the Second Respondent.

Only the Second Respondent has asked for a hearing, the other parties either being content or desiring that the appeal should be determined on the papers. Moreover, the Second Respondent seeks a hearing initially in respect of the preliminary point. I am quite satisfied that the substantive issue in this case has been fully argued in writing and that I can properly determine it without a hearing. My decision on the substantive issue deprives the preliminary point of any practical significance in this particular case. I therefore refuse the application for a hearing.

The facts

On 24 November 2005, the Appellant was displaced as the Second Respondent's nearest relative by an order of Chester county court made under section 29 of the 1983 Act, apparently on the ground that she had exercised her power to discharge the Second Respondent without due regard to his welfare or the interests of the public. The Second Respondent was then detained in hospital under section 3 on 30 November 2005 and remained detained for successive periods thereafter without making any application for a direction that he be discharged.

On, a date in the summer of 2008 that is not recorded in the documents before me, the Appellant applied to a mental health review tribunal for a direction that the Second Respondent be discharged. Two hearings were ineffective: one on 12 August 2008 because the tribunal had read a report that the Responsible Medical Officer preferred to withdraw rather than disclose to all the parties and one on 25 September 2008 because the medically qualified member of the tribunal had previously had some professional involvement with the patient.

On 3 November 2008, the functions of the mental health review tribunals in England were transferred to the First-tier Tribunal established under section 3 of the Tribunals, Courts and Enforcement Act 2007. On the same day, various provisions of the Mental Health Act 2007 came into force, introducing community treatment orders through amendments to the 1983 Act.

Five weeks later, on 8 December 2008, the Second Respondent was made subject to a community treatment order under the new section 17A of the 1983 Act.

On 29 December 2008, a Regional Tribunal Judge of the First-tier Tribunal decided that, because the Second Respondent had been made subject to a community treatment order, the application before the Tribunal had lapsed and therefore a hearing listed for 6 January 2009 should not take place. The applicant sought permission to appeal, contending that the Regional Tribunal Judge had erred in holding that the application had lapsed. On 2 March 2009, the Regional Tribunal Judge refused to review his decision and refused permission to appeal. On 1 April 2009, the Appellant applied to the Upper Tribunal for permission to appeal and I granted permission on 9 April 2009.

The first preliminary point - patients' representatives

The Second Respondent's solicitors have been appointed by me to act on his behalf under rule 11(7)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (S.I. 2008/2698) ("the Upper Tribunal Rules"), which is in virtually identical terms to rule 11(7) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008/2699) ("the First-tier Tribunal Rules"). Rule 11(7) of the Upper Tribunal Rules provides –

"(7) In a mental health case if the patient has not appointed a representative the Upper Tribunal may appoint a legal representative for the patient where –

(a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or

(b) the patient lacks the capacity to appoint a representative but the Upper Tribunal believes that it is in the patient's best interests for the patient to be represented."

By rule 1(3), a "legal representative" is an authorised advocate or authorised litigator as defined by section 119(1) of the Courts and Legal Services Act 1990

The Second Respondent's solicitors had requested that I make such an appointment as an alternative to their preference that the Official Solicitor be appointed as the Second Respondent's litigation friend. I had declined to appoint a litigation friend, having obtained submissions on the issue including one from the Office of the Official Solicitor, in which it was pointed out that there was no provision for appointing a litigation friend, that "traditionally" the Official Solicitor had not acted in tribunals and that guidance was provided by Law Society to solicitors appearing before tribunals in mental health cases. I have now received further submissions from the Second Respondent's solicitors and Ms Markus, supported by observations by Ms Davidson, to the effect that it might still be necessary, in order to ensure a fair hearing, for the Official Solicitor or some other person to be appointed as a litigation friend in these proceedings with a view to instructions being given to the Second Respondent's solicitors to advance arguments in support of the appeal.

The two short answers to those submissions are, first, that the Upper Tribunal is a creature of statute and has no statutory power to appoint a person to represent a patient's interests other than the power contained in rule 11(7) and, secondly, that the powers and duties conferred on the Official Solicitor through legislation and through directions made by the Lord Chancellor are expressed in terms of proceedings in the courts rather than in tribunals. An answer that requires more explanation is that, at least in this case, justice does not require anyone to be appointed in a role equivalent to that of a litigation friend.

Ms Markus' submission is, in a nutshell, that a representative appointed under rule 11(7) is bound to act in accordance with the patient's instructions, whether or not those instructions are in the patient's best interests, whereas a litigation friend may instruct a solicitor to act in the patient's best interests. She submits that, in this case, the Second Respondent's instructions and the Law Society's guidance are such that her instructing solicitors, and therefore she, are inhibited from advancing a case that a litigation friend might decide should be advanced in his best interests.

Paragraphs 3.4 to 3.5.1 of the Law Society's practice note, Representation before Mental Health Tribunals (13 August 2009), contain the following guidance –

"3.4 Taking instructions

The MHA 1983 does not provide for a person to be appointed to represent the client's best interests in tribunal proceedings.

The client can choose to:

authorise a representative to act for them in the proceedings

reject advice provided

conduct their own case, putting their own views and representations to the tribunal

You must act in accordance with your client's instructions, where these can be ascertained even when these instructions are inconsistent, unhelpful to the case or vary during the preparation of the case, or during the hearing itself.

Where you believe your client's instructions are unrealistic, you should discuss with the client an alternative and more realistic line of challenge if the initial approach chosen by the client does not appear to be succeeding. You may only pursue this alternative line if the client agrees.

3.5 Acting without instructions

You act without instructions when:

the tribunal appoints a representative

the tribunal application was not made by the patient

When asked to represent the client in such cases, you are not instructed by the tribunal or the relevant persons who made the application. In such cases, you should:

seek to take clear instructions from the patient as best you can and act in accordance with those instructions, however simply they may be expressed

advocate the client's views and wishes, even if those may be considered bizarre or contrary to the client's best interests

ensure that the tribunal receives all relevant material so that it can determine whether the criteria for continued detention are satisfied

remember the patient's right to treatment in the least restrictive setting and alert the tribunal to possible alternatives to detention under the MHA 1983 such as CTOs and Guardianship.

You should not automatically argue for discharge if you are unable to ascertain the patient's wishes.

The threshold for providing instructions is not high, and people severely disabled by a mental disorder may still be able to provide instructions if you explain matters simply and clearly.

It is for the tribunal to decide whether the criteria in the MHA 1983 are met, on the basis of the evidence before it from the client, and from all the professionals purporting to act in the client's best interests."

3.5.1 Tribunal powers to appoint a representative

You act without instructions where the tribunal appoints a representative. The tribunal has the power to do this:

in England under Rule 11(7) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

in Wales under Rule 13(5) of the Mental Health Review Tribunal for Wales Rules 2008

The tribunal may exercise this power when a patient either:

states they want to be represented or does not want to conduct their own case

lacks the capacity to appoint a representative but the tribunal believes that being represented is in the patient's best interests

Some observations may be made. First, this guidance appears geared to proceedings before the First-tier Tribunal and, indeed, the Upper Tribunal's power to appoint a representative is not mentioned in paragraph 3.5.1. Secondly, the first two bullet points in paragraph 3.5 and the first sentence in paragraph 3.5.1 appear to put a gloss on the legislation. There is nothing in rule 11(7) that specifically says that a solicitor necessarily acts without instructions if appointed by the tribunal, particularly if the appointment is under rule 11(7)(a), or that the power of a tribunal to appoint a representative is confined to cases where the application to the tribunal was made by someone other than the patient. Thirdly, I respectfully suggest that, while it is sensible to remind solicitors that patients may be capable of giving instructions, it is illogical to include under the heading "acting without instructions", the guidance that the solicitor should act in accordance with instructions. This may be a source of confusion because the effect seems to me to be that the guidance does not draw a clear distinction between, on one hand, valid instructions and, on the other hand, mere wishes expressed by a person who lacks the capacity to give valid instructions. Nonetheless, the import of the guidance is clear. A patient may be capable of giving valid instructions and, where valid instructions are given, a solicitor must act in accordance with them.

The distinction between valid instructions and the mere expression of a wish is important. As Ms Morris succinctly puts it: "An incapable patient … can very frequently express a wish, even if he cannot express a capable opinion." Where a patient lacks the capacity to give valid instructions, wishes that are expressed cannot bind the solicitor in the same way as instructions.

Rule.11(7)(b), unlike rule 11(7)(a), is necessarily concerned with an appointment in respect of a patient who lacks the capacity to appoint his or her own representative. However, it is implicit in Ms Marcus' submissions that such a patient may, in some cases, still be able to give valid instructions in respect of aspects of his or her case. That may be correct in the light of section 3 of the Mental Capacity Act 2005 and I will accept for the purposes of this decision that it is.

Nonetheless, rule 11(7)(b) plainly contemplates the possibility of a solicitor being appointed to represent a patient who does not have the capacity to give any instructions at all. In such a case, the rule must, as the Law Society's guidance plainly expects, anticipate that the solicitor will ascertain any relevant wishes that the patient may be able to express, will inform the tribunal of such wishes, make such points in support of them as can properly be made and generally ensure that the tribunal has all the relevant material before it and does not overlook any statutory provision. However, in the absence of the patient's capacity to give valid instructions, the rule must, in my view, also anticipate that the solicitor will exercise his or her judgment and advance any argument that he or she considers to be in the patient's "best interests", which, as the Law Society's guidance recognises, will not necessarily involve arguing for the patient's discharge. In those circumstances, it seems to me that the solicitor has the same freedom of action as a litigation friend in the courts.

What, then, is the position if the patient does have the capacity to give instructions on some matters but not others? The Law Society's guidance is unequivocal: a solicitor is bound to act in accordance with the instructions that have been given. Therefore, the more a patient has the capacity to give detailed instructions, the less the solicitor has complete freedom of action.

However, even where a patient has full capacity, a solicitor may be entitled, and in some circumstances may be under a duty, to draw a tribunal's attention to significant matters – particularly points of law – that appear to be in the patient's best interests despite his or her instructions and which it appears the tribunal might otherwise overlook. A solicitor has a duty not just to his or her client but also to the tribunal or, perhaps more accurately, to the administration of justice. A distinction is to be drawn between merely drawing a matter to a tribunal's attention and fully arguing it.

This is precisely the approach taken by Ms Markus and her instructing solicitors. They have made it plain that their client does not wish to be discharged and that they have valid instructions to that effect, but they have also made it plain that, although it would not be in furtherance of their client's wish to support the appellant's appeal, it might be in his best interests to do so. So far, so good. However, what they also submit is that their client's best interests require a litigation friend to be appointed to consider instructing them fully to argue the point in issue. I do not agree, for two reasons.

First, there seems to me to be a clear conflict of interest involved in a solicitor who feels constrained by valid instructions from a client not to argue a point then seeking instructions from another client to argue the very same point. I have some difficulty in seeing why it makes any difference that the second client has the role of litigation friend of the first client. Ms Davidson and Ms Markus refer me to R.(SR) v Huntercombe Maidenhead Hospital [2005] EWHC 2361 (Admin) in which a 15 year old girl was discharged from hospital but, although the girl wished to be discharged, the Official Solicitor, as her litigation friend and upon whose behalf Ms Davidson appeared, challenged the discharge successfully on the ground that it had been unlawful. I am told that the girl's solicitors had been concerned as to her capacity and had then been instructed by the Official Solicitor. The consequence of that procedure was, of course, that the girl's wishes were made known to the Administrative Court but no-one argued in favour of them in her name despite the fact that there were tenable arguments in favour of the discharge. The only reason that was not unfair is that the managers of the hospital and her father as her nearest relative both opposed the Official Solicitor and so the arguments were properly aired. If the girl had been an adult capable of giving valid instructions, it seems to me doubtful that her solicitors could properly have been instructed by the Official Solicitor to advance the opposite case from hers. It is one thing for a solicitor to seek instructions from the Official Solicitor if his or her client is not capable of giving valid instructions: it is entirely another if the client is capable of giving valid instructions. In the latter case, it seems to me that, while it can be appropriate for solicitors to draw a matter to the attention of the Official Solicitor even though it conflicts with their instructions, it might be necessary for the Official Solicitor to instruct other solicitors to argue the point.

Secondly and in any event, argument from lawyers instructed by a litigation friend is not the only way of ensuring that a patient's best interests are protected in proceedings before tribunals. Tribunals are different from courts in that they take a less adversarial approach to litigation and the First-tier Tribunal, which must consider issues of fact and medical judgment, has an appropriately expert membership. Once a point is drawn to a tribunal's attention, it is the tribunal's responsibility to ensure that it is adequately considered. In many cases, the tribunal will take the view that, the point having been drawn to its attention, it can develop it for itself without the need for further argument from solicitors or counsel, even where the point is one of law. In the First-tier Tribunal, that consideration is likely to be conclusive, which may well provide an explanation for the Official Solicitor's approach of not acting in tribunals. The Upper Tribunal, to whom an appeal lies only on a point of law, may equally well decide that it can develop for itself any point of law drawn to its attention. If legal argument is required before the Upper Tribunal, the best interests of the patient may nonetheless be adequately protected if the argument is being advanced by another party, particularly where that other party's interests are aligned with the presumed best interests of the patient. There is no virtue in yet more lawyers being invited to advance the same argument in the name of the patient when they are not to be responsive to any instructions from the patient. Alternatively, it may be open to the Upper Tribunal to invite another party to intervene in the proceedings to make the argument. As a last resort, if legal argument is necessary in the interests of justice and there is no other way of obtaining it, it is open to the Upper Tribunal to ask the Attorney General to instruct an advocate to the tribunal to argue the point and, if necessary, to argue it from a particular perspective. In the light of all those possibilities, I find it difficult to conceive of a case in which the legitimate interests of a patient cannot adequately be safeguarded notwithstanding the lack of a power to appoint a litigation friend.

That is not to say that there might not be some purpose in extending the Official Solicitor's role to tribunals so that the Official Solicitor, rather than the Attorney General, might be invited to instruct an advocate to the tribunal. Perhaps more importantly, if it is correct that a person incapable of instructing solicitors can nonetheless give valid instructions that limit the freedom to act in the patient's best interests that a solicitor appointed by a tribunal would otherwise have, it may be desirable – now that judicial review has been replaced by a statutory appeal to the Upper Tribunal – for the Official Solicitor to be empowered to bring an appeal in the interests of a patient when the patient declines to do so. Those, however, are not matters that arise in the present case.

Here, it is simply not necessary for either Ms Markus or a lawyer not already involved in this case to advance in the best interests of the Second Respondent the argument identified by Ms Markus and her instructing solicitors, because that argument is already being advanced by experienced and competent counsel on behalf of the Appellant and the Third Respondent. The Third Respondent is disinterested so far as the particular case was concerned but the Appellant's interests are directly aligned to what have been suggested might be the best interests of the Second Respondent. Therefore, even if I had the power to appoint a litigation friend, I would not do so in this case.

The second preliminary point – reviews by the First-tier Tribunal

Among the grounds of appeal is one submitting that it is unlawful for a judge of the First-tier Tribunal to consider an application for permission to appeal from, or a review of, his or her own decision. Ms Morris submits that any unfairness in this caase has been cured because permission to appeal has been granted by the Upper Tribunal but Ms Davidson submits that it is important that a ruling be given on the issue for guidance in other cases.

This ground of appeal is completely misconceived. Insofar as it relates to applications for permission to appeal, the submission would come as a surprise to the Court of Appeal, given the way applications for permission to appeal from their decisions are considered. There cannot be anything unfair in an initial application being made to the judge who made the decision being challenged when there is an automatic right to renew the application to a superior court or tribunal. Fairness does not demand that the First-tier Tribunal be able to consider the issue at all. The advantage to a superior court or tribunal of having this kind of procedure is that it gives the judge whose decision is being challenged, who will have the relevant issues in mind, an opportunity to comment on the grounds of appeal and indicate whether he or she thinks there is anything in them. Insofar as reviews are concerned, there is no general rule that it is unfair for a review of a decision to be carried out by the person who made the original decision. Whether or not that is appropriate depends on the context and the nature of the review. In some contexts, it will be positively desirable that the review is carried out by the person who made the original decision. In other contexts, it will be desirable that the review be carried out by a different, and perhaps more senior, person. Here, the power of review conferred by section 9 of the Tribunals, Courts and Enforcement Act 2007 is, with an immaterial exception, limited by rules 47 and 49 of the First-tier Tribunal Rules (made under section 9(3) of the Act) to cases where there has been an application for permission to appeal and the First-tier Tribunal is satisfied that there was an error of law in the decision being made. As an appeal under section 11 lies only on a point of law, a review must be seen as an alternative to granting permission to appeal and enables the First-tier Tribunal to provide a swifter remedy in obvious cases than can be provided by the Upper Tribunal. There are bound to be occasions when a judge reading grounds of appeal realises he or she has made a mistake or overlooked something and in such cases the parties should not be put through an appeal. It is not unfair for this limited power to consider reviewing a decision to be exercised by the judge who gave that decision for the same reason that it is not inappropriate for him or her to deal with the application for permission to appeal. Considering whether to review a decision is merely part of the process for dealing with an application for permission to appeal against the substantive decision in which it is always open to the applicant to take the case to the Upper Tribunal.

The legislation relevant to the substantive point arising on this appeal

Section 2(1) of the 1983 Act provides –

"(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as 'an application for admission for assessment') made in accordance with subsections (2) and (3) below."

Section 3(1) provides –

"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section."

Section 6(2), authorising the detention of a patient following an application for admission, provides –

"(2) Where a patient is admitted within the said period [i.e., the period within which, under subsection (1), a person may be conveyed to hospital following an application for admission] to the hospital specified in such an application as in mentioned in subsection (1) above, or, being within that hospital, is treated by virtue of section 5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act."

Sections 17A to 17G, making provision for community treatment orders, provide, so far as is relevant –

"17A.–(1) The responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E below.

(2) A detained patient is a patient who is liable to be detained in a hospital in pursuance of an application for admission for treatment.

(3) An order under subsection (1) above is referred to in this Act as a 'community treatment order'.

…

(7) In this Act –

'community patient' means a patient in respect of whom a community treatment order is in force;

'the community treatment order', in relation to such a patient, means the community treatment order in force in respect of him; and

'the responsible hospital', in relation to such a patient, means the hospital in which he was liable to be detained immediately before the community treatment order was made, subject to section 19A below.

17B.–(1) A community treatment order shall specify conditions to which the patient is to be subject while the order remains in force.

…

(6) If a community patient fails to comply with a condition specified in the community treatment order by virtue of subsection (2) above, that fact may be taken into account for the purposes of exercising the power to recall under section 17E(1) below.

(7) But nothing in this section restricts the exercise of that power to cases where there is such a failure.

17C. A community treatment order shall remain in force until—

(a) the period mentioned in section 20A(1) below (as extended under any provision of this Act) expires, but this is subject to sections 21 and 22 below;

(b) the patient is discharged in pursuance of an order under section 23 below or a direction under section 72 below;

(c) the application for admission for treatment in respect of the patient otherwise ceases to have effect; or

(d) the order is revoked under section 17F below,

whichever occurs first.

17D.–(1) The application for admission for treatment in respect of a patient shall not cease to have effect by virtue of his becoming a community patient.

(2) But while he remains a community patient –

(a) the authority of the managers to detain him under section 6(2) above in pursuance of that application shall be suspended; and

(b) reference (however expressed) in this or any other Act, or in any subordinate legislation (within the meaning of the Interpretation Act 1978), to patients liable to be detained, or detained, under this Act shall not include him.

(3) And section 20 below shall not apply to him while he remains a community patient.

(4) Accordingly, authority for his detention shall not expire during any period in which that authority is suspended by virtue of subsection (2)(a) above.

17E.–(1) The responsible clinician may recall a community patient to hospital if in his opinion –

(a) the patient requires medical treatment in hospital for his mental disorder; and

(b) there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.

(2) The responsible clinician may also recall a community patient to hospital if the patient fails to comply with a condition specified under section 17B(3) above.

…

17F.–(1) This section applies to a community patient who is detained in a hospital by virtue of a notice recalling him there under section 17E above.

…

(4) The responsible clinician may by order in writing revoke the community treatment order if –

(a) in his opinion, the conditions mentioned in section 3(2) above are satisfied in respect of the patient; and

(b) an approved mental health professional states in writing –

(i) that he agrees with that opinion; and

(ii) that it is appropriate to revoke the order.

(5) The responsible clinician may at any time release the patient under this section, but not after the community treatment order has been revoked.

(6) If the patient has not been released, nor the community treatment order revoked, by the end of the period of 72 hours, he shall then be released.

(7) But a patient who is released under this section remains subject to the community treatment order.

(8) In this section –

(a) …; and

(b) references to being released shall be construed as references to being released from that detention (and accordingly from being recalled to hospital).

17G.–(1) This section applies if a community treatment order is revoked under section 17F above in respect of a patient.

(2) Section 6(2) shall have effect as if the patient had never been discharged from hospital by virtue of the community treatment order.

(3) The provisions of this or any other Act relating to patients liable to be detained (or detained) in pursuance of an application for admission for treatment shall apply to the patient as they did before the community treatment order was made, unless otherwise provided.

…

(5) But, in any case, section 20 below shall have effect as if the patient had been admitted to hospital in pursuance of the application for admission for treatment on the day on which the order is revoked."

Section 20, making provision for the periods for which a patient may be detained provides, –

"20.–(1) Subject to the following provisions of this Part of this Act, a patient admitted to hospital in pursuance of an application for admission for treatment … may be detained in a hospital … for a period not exceeding six months beginning with the day on which he was so admitted … but shall not be detained … for any longer period unless the authority for his detention … is renewed under this section.

(2) Authority for the detention … of a patient may, unless the patient has previously been discharged under section 23 below, be renewed –

(a) from the expiration of the period referred to in subsection (1) above, for a further period of six months;

(b) from the expiration of any period of renewal under paragraph (a) above, for a further period of one year,

and so on for periods of one year at a time.

(3) Within the period of two months ending on the day on which a patient who is liable to be detained in pursuance of an application for admission for treatment would cease under this section to be so liable in default of the renewal of the authority for his detention, it shall be the duty of the responsible clinician—

(a) to examine the patient; and

(b) if it appears to him that the conditions set out in subsection (4) below are satisfied, to furnish to the managers of the hospital where the patient is detained a report to that effect in the prescribed form;

and where such a report is furnished in respect of a patient, the managers shall, unless they discharge the patient under section 23 below, cause him to be informed.

…

(8) Where a report is duly furnished under subsection (3) or (6) above, the authority for the detention shall be thereby renewed for the period prescribed in that case by subsection (2) above.

Sections 20A and 20B make similar provision in respect of patients subject to community treatment orders –

"20A.–(1) Subject to the provisions of this Part of this Act, a community treatment order shall cease to be in force on expiry of the period of six months beginning with the day on which it was made.

(2) That period is referred to in this Act as "the community treatment period".

(3) The community treatment period may, unless the order has previously ceased to be in force, be extended—

(a) from its expiration for a period of six months;

(b) from the expiration of any period of extension under paragraph (a) above for a further period of one year,

and so on for periods of one year at a time.

(4) Within the period of two months ending on the day on which the order would cease to be in force in default of an extension under this section, it shall be the duty of the responsible clinician—

(a) to examine the patient; and

(b) if it appears to him that the conditions set out in subsection (6) below are satisfied and if a statement under subsection (8) below is made, to furnish to the managers of the responsible hospital a report to that effect in the prescribed form.

(5) Where such a report is furnished in respect of the patient, the managers shall, unless they discharge him under section 23 below, cause him to be informed.

…

(10) Where a report is duly furnished under subsection (4) above, the community treatment period shall be thereby extended for the period prescribed in that case by subsection (3) above.

20B.–(1) A community patient shall be deemed to be discharged absolutely from liability to recall under this Part of this Act, and the application for admission for treatment cease to have effect, on expiry of the community treatment order, if the order has not previously ceased to be in force.

(2) For the purposes of subsection (1) above, a community treatment order expires on expiry of the community treatment period as extended under this Part of this Act, but this is subject to sections 21 and 22 below."

Section 23 makes provision for the discharge of patients who are detained. Subsections (1) to (1B) provide –

"23. –(1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained … under this Part of this Act shall cease to be so liable … if an order in writing discharging him absolutely from detention … is made in accordance with this section.

(1A) Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section.

(1B) An order under subsection (1) or (1A) above shall be referred to in this Act as 'an order for discharge'."

Section 66, making provision for applications to the First-tier Tribunal, provides, so far as is relevant –

"66.–(1) Where –

(a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or

(b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; or

(c) …

(ca) a community treatment order is made in respect of a patient; or

(cb) a community treatment order is revoked under section 17F above in respect of a patient; or

…

(f) a report is furnished under section 20 above in respect of a patient and the patient is not discharged; or

(fza)a report is furnished under section 20A above in respect of a patient and the patient is not discharged; or

…

(g) a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment or a community patient; or

(h) an order under section 29 above on the ground specified in paragraph (c) or (d) of subsection (3) of that section in respect of a patient who is, or subsequently becomes liable to be detained … under Part II of this Act or who is a community patient,

an application may be made to the appropriate tribunal within the relevant period –

(i) by the patient (except in the cases mentioned in paragraphs (g) and (h) above and

(ii) in the cases mentioned in paragraphs (g) and (h) above, by his nearest relative.

(2) In subsection (1) above "the relevant period" means –

(a) in the case mentioned in subparagraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned;

(b) in the case mentioned in subparagraph (b) of that subsection, six months beginning with the day on which the patient is admitted as so mentioned;

(c) …

(ca) in the case mentioned in subparagraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made;

(cb) in the case mentioned in subparagraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked;

(d) in the case mentioned in paragraph (g) of that subsection, 28 days beginning with the day on which the applicant is informed that the report has been furnished;

…

(f) in the case mentioned in paragraph (f) … of that subsection, the period or periods for which authority for the patient's detention … is renewed by virtue of the report; or

(fza) in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report; or

(g) in the case mentioned in paragraph (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force.

(2A) Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above.

…

(4) In this Act "the appropriate tribunal" means the First-tier Tribunal or the Mental Health Review Tribunal for Wales.

(5) For provision determining to which of those tribunals applications by or in respect of a patient under this Act shall be made, see section 77(3) and (4) below."

Section 72, making provision for the powers of tribunals, provides, so far as is relevant –

"72.–(1) Where an application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that he be discharged, and –

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied –

(i) …; or

(ii) …;

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise under section 2 above if it is not satisfied –

(i) …; or

(ii) …; or

(iia) …; or

(iii) …;

(c) the tribunal shall direct the discharge of a community patient if it is not satisfied –

(i) …; or

(ii) …; or

(iii) …; or

(iv) …; or

(v) …

…

(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because they think it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal –

(a) may recommend that the responsible clinician consider whether to make a community treatment order; and

(b) may but need not further consider the patient's case if the responsible clinician does not make an order.

…"

Section 77, making general provision concerning tribunal applications, provides –

"77.–(1) No application shall be made to the appropriate tribunal by or in respect of a patient under this Act except in such cases and at such times as are expressly provided by this Act.

(2) Where under this Act any person is authorised to make an application to the appropriate tribunal within a specified period, not more than one such application shall be made by that person within that period but for that purpose there shall be disregarded any application which is withdrawn in accordance with rules made under section 78 below.

(3) Subject to subsection (4) below an application to a tribunal authorised to be made by or in respect of a patient under this Act shall be made by notice in writing addressed –

(a) in the case of a patient liable to be detained in a hospital, to the First-tier Tribunal where that hospital is in England and to the Mental Health Review Tribunal for Wales where that hospital is in Wales;

(b) in the case of a community patient, to the tribunal for the area in which the responsible hospital is situated" substitute "to the First-tier Tribunal where the responsible hospital is in England and to the Mental Health Review Tribunal for Wales where that hospital is in Wales;

(c) …

(4) …"

Finally, in this review of the legislation, it is necessary to consider the position of a displaced nearest relative, although here it is not necessary to set the legislation out in full as there is no dispute about its effect. A nearest relative may himself or herself discharge the patient from detention or from liability to recall as a community patient (see section 23(1) and (1A)) and so it is not always necessary for a nearest relative to make an application to a tribunal to secure the discharge of a patient. However, a discharge by a nearest relative may be rendered ineffective by the responsible clinician providing a report under section 25 certifying that, "in the opinion of that clinician, the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself" and in those circumstances the nearest relative may apply to a tribunal under section 66(1)(g). However, section 29 enables a court to direct that the functions of a nearest relative should be exercised by another person or by a local authority. Where, as in this case, that is done because the nearest relative has unreasonably objected to the making of an application for admission for treatment or has exercised, or is likely to exercise, without due regard to the welfare of the patient or the interests of the public his or her power to discharge the patient (see section 29(3)(c) and (d)), the displaced nearest relative loses the rights and powers of a nearest relative under the Act but instead may make an application to a tribunal every 12 months under section 66(1)(h) (see sections 29(6) and 66(2)(g)).

The decision under appeal

The decision of 29 December 2008 was to the effect that, upon the Second Respondent being made subject to a community treatment order, the First-tier Tribunal ceased to have jurisdiction to deal with the application to the tribunal that he had made while still detained in hospital.

The core of the Regional Tribunal Judge's reasoning was expressed as follows –

"5. Section 66(1) does not suggest that there are different kinds of application to the Tribunal. However, the differing time limits in s.66(2) mean that applications by, or relating to, patients with different statuses are to be treated differently: this is reinforced by s.77 of the Act which provides that applications may only be made as expressly provided for in the Act.

6. Further s.72 qualifies the powers of the Tribunal by reference to the status of the patient. In its statutory context, the natural meaning of the words 'where an application is made to a … Tribunal by or in respect of a patient who is liable to be detained' in s. 72(1) is that he or she is so subject when the application is made and at the time of the hearing. The same applies to the words 'the tribunal shall direct the discharge of a community patient if [it is] not satisfied …' in s.72(1)(c) in that the patient must be so subject when the application is made and at the time of the hearing."

The Regional Tribunal Judge acknowledged that, in R. v South Thames Mental Health Review Tribunal, ex parte M (unreported, September 3, 1997), Collins J held that a patient who applied to a Tribunal while detained under section 2 and became detained under section 3 before the appeal was determined was entitled to have his detention under section 3 considered by the tribunal, but the Regional Tribunal Judge held that that was a deliberate exception to a general rule that "a tribunal's jurisdiction to deal with an application by or relating to a patient ceases if the patient ceases to be subject to the authority to which the right of application attaches".

When refusing to review his decision on 2 March 2009, the Regional Tribunal Judge expressly relied on R.(SR) v Mental Health Review Tribunal [2005] EWHC 2923 (Admin), which he had plainly had in mind when giving his original decision. In SR, Stanley Burnton J held that an application to a tribunal made while a patient was detained under section 3 lapsed when the patient was discharged and made subject to "after-care under supervision" under provisions inserted into the 1983 Act by the Mental Health (Patients in the Community) Act 1995 and repealed by the Mental Health Act 2007 when they were replaced by the provisions relating to community treatment orders. At that time there was no paragraph (c) in section 72(1) but section 72(4A) provided –

"(4A) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the tribunal may in any case direct that the patient shall cease to be so subject (or not become so subject), and shall so direct if they are satisfied–

(a) in a case where a patient has not yet left hospital, that the condition set out in section 25A(4) above are not complied with; or

(b) in any other case, that the conditions set out in section 25G(4) above are not complied with."

The Regional Tribunal Judge said –

"14. … Mr Justice Stanley Burnton (as he then was) had to consider circumstances not unlike the present and in that case, as in the present, had to consider how – as he put it – patients with different status are treated. At paragraph 22 of his judgment he said:-

"… section 72 qualifies the powers of the Tribunal by reference to the status of the patient. Given the meaning of "application to the Tribunal" in section 66 and other provisions of Part II to the Act, the more natural interpretation of the words "Where application is made to a … Tribunal by or in respect of a patient who is subject to after-care under supervision" in section 72(4A) is that he is so subject when the application is made."

15. As I read them, those words support the decision under challenge as to the separate treatment of those who are admitted to the Tribunal under various categories and fail to support the proposition advanced on behalf of [the Appellant] that there is fluidity or movement between the patients in the various categories. I find that section 72 qualifies the powers of the tribunal by reference to the status of the patient. In its statutory context, the natural meaning of the words 'where an application is made to a Tribunal by or in respect of a patient who is liable to be detained' in section 72(1) is that he or she is so subject when the application is made and at the time of the hearing. The same applies to the words in section 72(1)(c) that 'the tribunal shall direct the discharge of a community patient if they are not satisfied …', in that the patient must be so subject when the application is made and at the time of the hearing."

The natural construction of section 72(1)

Ms Morris, for the First Respondent, supports the Regional Tribunal Judge's reasoning. However, Ms Davidson and Mr Buley argue in favour of section 72(1) being given a literal interpretation. In particular, Mr Buley, for the Secretary of State, argues that the Regional Tribunal judge's reasoning pays insufficient attention to the grounds upon which Stanley Burnton J distinguished ex parte M and to the different way in which community treatment orders are dealt with in section 72 by comparison with the way after-care under supervision was dealt with. He relies upon paragraphs [37] and [38] of SR, where Stanley Burnton J said –

"37. However, in M the judge did consider section 72. He said;

'If one goes to section 72 one sees that there is nothing in that which suggests that the change of circumstances (that is to say the change in the nature of the detention from section 2 to section 3) affects the validity of the application, nor is there any reason why it should. The powers of the tribunal under section 72 are, it is common ground, to be exercised on consideration of the state of affairs before the tribunal. … Accordingly when the matter comes before the tribunal, if there has been the change from section 2 to section 3, then the tribunal must exercise its powers in relation to a patient who is liable to be detained otherwise than under section 2 above and therefore must consider what are loosely described as the section 3 criteria in determining the case before them. Since the Act makes clear that the basis for an application lies in the admission, whether under (section) 2 or 3, then the determination of the tribunal on the section 2 application cannot prevent the applicant from making a subsequent section 3 application if the section 2 application is unsuccessful. Accordingly, in my view, the guidance note was absolutely correct in the guidance that it gave in this regard.'

38. Section 72 treats an application made by a patient detained under section 2 and an application made by a patient detained under section 3 as being one kind of application. The words in subsection (1):

'Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, …'

do not distinguish between liability to be detained for assessment and for treatment. It follows that the powers under paragraphs (a) and (b) are available to the Tribunal on such an application; which it may exercise depends on the status of the patient at the date of the hearing. I entirely agree with Andrew Collins J on this point. However, separate provision is made in section 72(4A) in respect of an application to the Tribunal by a patient subject to an accepted application for supervised discharge. Such an application is not identified with, and differs from, an application under subsection (1)."

The point made by Mr Buley is that subsection (1) has been expanded to take in patients subject to community treatment orders.

This seems to me to be the key point in this case and one that appears to have been overlooked by the Regional Tribunal Judge when he quoted the opening words of subsection (1) in both paragraph 6 of his original decision and paragraph 15 of his refusal to review that decision and omitted the words "or is a community patient". Moreover, on a literal reading of the subsection, the Regional Tribunal Judge was wrong to say that both the opening words of the subsection that he quoted and the opening words of each paragraph within the subsection refer both to the status of the patient at the time of the application and to his or her status at the time of the hearing before the tribunal.

Stanley Burnton J's judgment supports a literal reading of subsection (1). The words "Where an application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient" refer to the patient's status at the time the application was made. However, those words qualify the words "the tribunal may in any case direct that he be discharged" and so they are also concerned with the status of the patient at the time of the hearing when the power to discharge the patient may be exercised. Each of paragraphs (a), (b) and, now, (c) is concerned only with the patient's status at the date of the hearing when the duty to direct the discharge may fall to be exercised. Thus, if the patient was either detained or a community patient at the time of the application, there will be a power to direct his or her discharge at the date of the hearing and a duty to direct a discharge if, at the date of the hearing, whichever of paragraphs (a), (b) or (c) is then relevant is satisfied.

The reason that Stanley Burnton J reached the conclusion he did, despite agreeing with Collins J as to the construction of subsection (1), was that subsection (1) said nothing about patients subject to after-care under supervision. The only relevant power was conferred on the tribunal by subsection (4A), to which he gave a similarly literal construction. Subsection (4A) contained no reference to applications made by detained patients. Against that background, it seems to me to be likely that, if it had been intended that an application made by a detained patient should lapse if he or she is made subject to a community treatment order so that a further application would be required if discharge of the patient were still sought, the power and duty to discharge a community patient would have been placed in a different subsection, as had been the case with patients subject to after-care under supervision, instead of being included within subsection (1).

One reason for taking a different approach may have been the important difference that exists between a person subject to after-care under supervision and a person subject to a community treatment order in that in the former case the admission for treatment came to an end when the patient was discharged into after-care under supervision whereas it continues in effect while a community treatment order is in force. Where a community treatment order is made, the admission for treatment remains effective by virtue of section 17D(1) and so, by virtue of section 17D(4), does the underlying authority for detention. The authority to detain the patient is merely suspended under section 17D(2)(a) and the admission for treatment only ceases to have effect when the community treatment order does (see section 20B(1)).

Other arguments

Are there nonetheless any grounds for giving a strained construction to section 72(1) so that a community patient may be discharged only on an application made after he or she became a community patient?

The Regional Tribunal Judge's view that "applications by, or relating to, patients with different statuses are to be treated differently" is, I suspect, derived from paragraph [22] of Stanley Burnton J's judgment in SR. In any event, Stanley Burnton J dealt at some length with the general structure of the legislation governing applications to tribunals as it impinged on the case before him and, in particular, the relationship between sections 66 and 77. In paragraph [26], he said –

"26. Section 77 fortifies section 66(2). It confirms that the statutory restriction is not on more than one application to a Tribunal in any specified period: more than one application can be made in any period, if it is of a different kind from that made in that period. For example, if in January a patient made an application for discharge from liability for detention under section 3, and in February his RMO made an application for supervised discharge that was accepted in the same month, the patient would be entitled to make an immediate application under section 66(1)(ga), for two reasons. The first is that he is permitted to make that application by section 66(2)(fa); the second is that section 77 does not restrict his right to apply, because he has not made a previous application of that kind within the period specified by section 66(2)(fa). The words "such application", indicating that there are different kinds of application, seem to me to give some support for the Defendant's interpretation."

(I think the references to section 66(2)(fa) should have been references to section 66(2)(c), which, as then in force, provided for an application made under section 66(1)(ga) (i.e., following an application for supervision) to be made within six months of the application for supervision being accepted.)

Stanley Burnton J then went on to consider three reasons why an application made by a person subject to after-care under supervision was a different kind of application from an application made by a person detained under section 3. First, he observed that the Tribunal to whom a notice of application had to be addressed under section 77(3) as then in force might be different, as might the parties upon whom proceedings had to served under the (now revoked) Mental Health Review Tribunal Rules 1983 (S.I. 1983/942). That is also true under the new regime but, as Mr Buley has pointed out, a person may well be transferred from one hospital to another while still detained under section 3. Thus, allowing an application brought while a patient was detained to continue after a community treatment order has been made does not introduce any unique difficulties. In any event, the difficulties are hardly insuperable. Although the 1983 Act is silent as to whether, if responsibility for a patient is transferred from a hospital in England to one in Wales, the First-tier Tribunal retains jurisdiction or whether a case may, or must, be transferred from the First-tier Tribunal to the Mental Health Review Tribunal for Wales, procedure rules for the two tribunals permit transfers from one to the other (see rule 7(3)(k) of the First-tier Tribunal Rules and rule 23(2) of the Mental Health Review Tribunal for Wales Rules 2008 (S.I. 2008/2705) and, anyway, the practical problems of one of the tribunals being obliged to retain jurisdiction could be overcome, particularly when regard is had to the overlapping membership of the two tribunals. As to the parties, where the responsible hospital for a patient made subject to a community treatment order is not the same as the hospital where the patient was formerly detained, all that is required is to substitute the managers of the responsible hospital as a party in place of the managers of the other hospital (see rule 9 of the First-tier Tribunal Rules and rule 12 of the Mental Health Review Tribunal for Wales Rules 2008).

Stanley Burnton J then raised an issue upon which Ms Morris has placed particular emphasis and which is again concerned with the relationship between sections 66 and 77. He said –

"32. The second consideration arises from the restrictions on the making of applications to the Tribunal. If the Claimant's contentions were correct, a patient who makes an application to the Tribunal while subject to section 3 and before an application for supervised discharge is accepted who, before his application is heard, is the subject of an accepted application under section 25A, has the right to challenge his supervised discharge before the Tribunal on the hearing of that application, and if he fails is entitled immediately to make a further application under section 66((1)(ga) without any change in circumstances having occurred. In my judgment, that is a result that Parliament is unlikely to have intended, given its decision to restrict the applications that may be made by a patient within specified periods of time: see section 66(2)(c) and section 77, and especially section 77(2). If, as was held in M, a patient detained under section 2 who makes an application to a Tribunal that is not heard until after he has become detained under section 3 may make a further application under section 3 within 6 months of his first application, that it is because different provisions apply to applications by parties liable to be detained under those sections as against applications by parties subject to supervised discharge.

Ms Morris referred me to R.(MN) v Mental Health Review Tribunal [2008] EWHC 3383 (Admin), in which Plender J derived some assistance from paragraph 32 of SR when considering the rather different provisions in sections 69 and 70. However, I regret that I do not agree that it was inherently unlikely that Parliament should have intended to create a situation in which the appropriateness of after-care under supervision could be considered in a application originally made while the person concerned was still detained and that there should then have been the possibility of an immediate application under section 66(1)(ga) as then in force.

There seem to me to have been arguments both ways. The making of a fresh application where there has been no change of circumstances is not prevented in other contexts. For instance, the legislation allows an application under section 66(1)(f) in respect of one period of detention to be brought immediately after the determination of an earlier application also brought under section 66(1)(f), where that earlier application was brought towards the end of the previous period of detention but was not determined until after the period had ended, even though, in making the determination, the tribunal will have been able to take into account the report made under section 20(3) justifying the later period of detention. Moreover, although the effect of discharging a patient to after-care under supervision, like the effect of making a community treatment order, was to terminate early the period of detention, it seems to me that the fairness of preventing a person from making both an application within that period of detention and another application within the first six months of the after-care under supervision rather depended upon the extent to which the period of detention was truncated. Having only one effective application to a tribunal over a total period of seven months would have been one thing; having only one effective application over a total period of seventeen months would have been another.

I accept that Parliament did in fact intend to prevent a tribunal from considering whether a person should cease to be subject to after-care under supervision on an application originally made when he or she was a detained patient when, in 1995, it inserted section 72(4A) into the 1983 Act and did not amend section 72(1). However, a different approach has been taken in the amendments made by the Mental Health Act 2007, which suggests that a different, and in my judgment not unlikely, result was intended.

Stanley Burnton J's third consideration arose from the relationship between subsections (3A) and (4A) of section 72 and so does not arise in the present case because subsection (3A) has been substituted and subsection (4A) has been repealed. (The current version of subsection (3A) does not appear to be satisfactory, although its meaning is clear enough. Presumably "a patient" should be read as referring only to "a patient who is liable to be detained under this Act" because the subsection makes no sense if "a patient" refers also to a community patient. However, this difficulty with subsection (3A) throws no light on the construction of subsection (1), because subsection (3A) is equally unsatisfactory on either of the suggested constructions.)

Therefore, none of the three considerations that led Stanley Burnton J to conclude that an application to a Tribunal made by a person subject to after-care under supervision was inherently different from an application made by a person detained under section 3 causes me to impose a strained construction on subsection (1) as it is now in force.

There is, on the other hand, one consideration that powerfully supports the literal construction of section 72(1) and that is the one at the forefront of the submissions made by Ms Davidson on behalf of the Appellant. The Appellant, being a displaced nearest relative, could make applications to a Tribunal only under section 66(1)(h) and therefore only once a year, by virtue of sections 66(2)(g) and 77(2). Whereas a patient may make a new application upon a change in his or her status as well as once in every subsequent relevant period, a change in the status of the patient does not generate a new right in a displaced nearest relative to make an application. This may not have mattered under the regime of after-care subject to supervision because the right of a displaced nearest relative to make an application to a Tribunal arises from a nearest relative's power to discharge a patient and a person subject to after-care under supervision did not require to be discharged. However, it does matter under the new regime and Parliament cannot have intended that a displaced nearest relative should be deprived of one of his or her annual opportunities to have a tribunal consider whether to discharge the patient merely because the patient is made subject to a community treatment order before an application to the Tribunal has been determined.

Other practical considerations seem to me, as they did to Stanley Burnton J (see paragraph [34] of his judgment), to cut both ways. There will be some cases where a patient will be content with a community treatment order, having merely been seeking a recommendation under section 72(3A)(a). It might be more convenient if an application made before the community treatment order was made were to lapse in such a case, but requiring a positive withdrawal is not unreasonable. In other cases, one or more parties may require further time to address the new issues arising out of the change of status. In such a case it might again be convenient if an application were to lapse and a new application addressing the new status were to be required but, if the application does not lapse, the same effect may be achieved through a postponement. In yet other cases, the parties may be able and willing to deal with the new issues on the date originally fixed. It might be more convenient in such a case if an appeal were not to lapse, but, if it were to lapse, the date could still be utilised if a basic application were made and otherwise everything done in respect of the original application were to be treated as having been done in the new one. Taken together, I do not consider that the practical consequences of construing section 72(1) literally are such as to suggest it should be given a strained construction.

Conclusion

In my judgment, there are no reasons for giving section 72(1) of the 1983 Act anything other than a literal construction. A tribunal has the power – or, if the conditions of section 72(1)(c) are satisfied, a duty – to direct that a person subject to a community treatment order be discharged notwithstanding that that person made the application to the tribunal while liable to be detained under section 2 or 3. Therefore, an application to the First-tier Tribunal made by or on behalf of a person detained under section 2 or 3 of the 1983 Act does not lapse if a community treatment order is made in respect of that person before the application is determined.

Accordingly, in this case, the decision of the First-tier Tribunal dated 29 December 2008 is erroneous in point of law. That decision must be set aside and the case remitted for consideration of the question whether the Second Respondent should be discharged.

This decision will plainly have implications for other cases but, just as would have been necessary if I had reached the opposite conclusion, parties need to co-operate sensibly with each other and the First-tier Tribunal if a patient is made the subject of a community treatment order while an application to the tribunal is pending. In particular, it will clearly be incumbent on any representative of the applicant to inform the tribunal as soon as possible whether or not the application is being withdrawn and it is also clearly incumbent on all parties to inform the tribunal whether or not a postponement of any hearing that has already been fixed will be required in the light of the change of circumstances.

MARK ROWLAND

1 October 2009