Title: MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC) (15/03/2011) ~Mental health~All~~
Author: dspearl
Last saved by: joe.ury
Company: Ministry of Justice

MP v Mersey Care NHS Trust
		[2011] UKUT 107 (AAC)

IN THE UPPER TRIBUNAL			Case Nos.	JR/2381/2010
ADMINISTRATIVE APPEALS CHAMBER			HM/2336/2010

Before His Honour Judge David Pearl
sitting as a Judge of the Upper Tribunal

Attendances:	

For the Appellant:	Mr R Pezzani of Counsel

For the Respondent:  Ms C. Rowbotham, Solicitor of Hempsons, Solicitor

Decision:  The procedural decisions dated 6^th August 2010 and 6^th September 2010 be quashed as they were unlawful, and there be a declaration that the decision of the Tribunal dated 19^th February 2010 be reinstated as it is a lawful decision.  

REASONS FOR DECISION

Introductory matters.

1.	By Order dated 5^th October 2010, I decided that the applications for permission to appeal the procedural decisions of the First-tier Tribunal Judge dated 6^th August 2010 and 6^th September 2010 and the substantive decision dated 19^th February 2010 be treated as applications for permission to seek judicial review of those decisions.
2.	I granted permission to seek judicial review by the Order dated 5^th October 2010, as the Decision taken by the Tribunal on 19^th February 2010, and the procedural decisions taken by the First-tier Tribunal Judge on 6^th August 2010 and 6^th September 2010 all raise arguable errors of law.
3.	My reasons for dealing with the application as a judicial review application were as follows. 
4.	The Decisions under challenge in this case are the review decisions of the First-tier Tribunal dated 6^th August 2010 that set aside a Decision of the Tribunal dated 19^th February 2010 (in which decision Mr P had been granted a deferred discharge), and that dated 6^th September 2010 which set aside in part the 6^th August 2010 decision and remitted the matter for a rehearing.
5.	The initial Decision of the Tribunal dated 19^th February 2010 is also challenged, by way of the appeal brought by the Respondent.
6.	The Upper Tribunal has no jurisdiction to consider applications for permission to appeal in any of these Decisions under challenge, by virtue of s 11(5) of the TCEA 2007.
7.	Under the TCEA 2007, an appeal lies against all decisions of the First-tier Tribunal except for excluded decisions. All three Decisions are excluded decisions for the following reason. 
8.	The initial Decision dated 19^th February 2010 was set aside by the Decision of 6^th August 2010. The Decision of 6^th August 2010 is an “excluded decision” by virtue of s 11(5)(d)(iii), and the initial decision dated 19^th February 2010 is excluded by s 11(5)(e). The Decision of 6^th September 2010 is also excluded by virtue both of s 11(5)(d)(i) and s 11(5)(d)(iii).
9.	In accordance with Article 7(b) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008, I have considered whether this is a case where relief can be granted under section 15(1) of the TCEA 2007, namely the Upper Tribunal’s review jurisdiction.
10.	I have decided, following the approach adopted in R(RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC),  especially para 11, that this is such a case. The Lord Chief Justice has made a Practice Direction [Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327] which directs that the Upper Tribunal has judicial review jurisdiction with regard to “any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paras (b),(c), or (f) of section 11(5) of the 2007 Act.” These three Decisions are not excluded decisions within any of these paragraphs.
11.	Given that relief can be granted by way of judicial review, I considered in my Order dated 5^th October 2010 whether permission should be granted to deal with the judicial review applications.
12.	I directed that permission be granted for there to be judicial review of the Decisions dated 19^th February 2010, 6^th August 2010 and 6^th September 2010.
13.	At the hearing before me, both Mr Pezzani on behalf of the Applicant (Mr P) and Ms Rowbotham, on behalf of the First Respondent, stated that they agreed with the approach that I had taken in this matter. For the avoidance of doubt, the appeal number HM/2336/2010 is struck out in accordance with Rule 8(2)(A) of the Tribunal Rules as the Upper Tribunal does not have jurisdiction in relation to those proceedings.
14.	The underlying difficulty in this case arises out of the position in law that if a tribunal discharges a patient, but defers the discharge to a future date, that decision brings to an end any Community Treatment Order on the date that the patient is discharged from liability to be detained. (s.17C). Both Mr Pezzani and Ms Rowbotham agree that this represents the correct position in law. 

The legislation.

 15. The applicable provisions of the Mental Health Act 1983 as amended are as follows. Sections 17A-E state:

17A  Community treatment orders 
(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". 
(4) The responsible clinician may not make a community treatment order unless– 
(a) in his opinion, the relevant criteria are met; and 
(b) an approved mental health professional states in writing– 
(i) that he agrees with that opinion; and 
(ii) that it is appropriate to make the order. 
(5) The relevant criteria are– 
(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; 
(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; 
(c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital; 
(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and 
(e) appropriate medical treatment is available for him. 
(6) In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient´s history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient´s condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder). 
(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 Conditions 
(1) A community treatment order shall specify conditions to which the patient is to be subject while the order remains in force. 
(2) But, subject to subsection (3) below, the order may specify conditions only if the responsible clinician, with the agreement of the approved mental health professional mentioned in section 17A(4)(b) above, thinks them necessary or appropriate for one or more of the following purposes– 
(a) ensuring that the patient receives medical treatment; 
(b) preventing risk of harm to the patient´s health or safety; 
(c) protecting other persons. 
(3) The order shall specify– 
(a) a condition that the patient make himself available for examination under section 20A below; and 
(b) a condition that, if it is proposed to give a certificate under Part 4A of this Act in his case, he make himself available for examination so as to enable the certificate to be given. 
(4) The responsible clinician may from time to time by order in writing vary the conditions specified in a community treatment order. 
(5) He may also suspend any conditions specified in a community treatment order. 
(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 of 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 Duration of community treatment order 
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 Effect of community treatment order 
(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 Power to recall to hospital 
(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. 
(3) The hospital to which a patient is recalled need not be the responsible hospital. 
(4) Nothing in this section prevents a patient from being recalled to a hospital even though he is already in the hospital at the time when the power of recall is exercised; references to recalling him shall be construed accordingly. 
(5) The power of recall under subsections (1) and (2) above shall be exercisable by notice in writing to the patient. 
(6) A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act. 

     16. Section 72 states:
Discharge of patients
Powers of tribunals.
(1)Where 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 the patient be discharged, and—
(a)the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it isnot satisfied—
(i)that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
(ii)that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
(b)the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i)that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii)that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
 	(iia)that appropriate medical treatment is available for him; or
(iii)in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.
 (c)the tribunal shall direct the discharge of a community patient if it is not satisfied—
(i)that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or
(ii)that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or
(iii)that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or
(iv)that appropriate medical treatment is available for him; or
(v)in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.
(1A)In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder). 
(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—
(a)with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b)further consider his case in the event of any such recommendation not being complied with.
(3A)Subsection (1) above does not require a tribunal to direct the discharge of a patient just because it thinks 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.
(4)Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—
(a)that he is not then suffering from mental disorder ; or
(b)that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.
(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)Subsections (1) to (4) above apply in relation to references to the appropriate tribunal as they apply in relation to applications made to the appropriate tribunal by or in respect of a patient.
(7)Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.

The three First-tier Tribunal decisions

17.	The background facts in this case are not in dispute. 
18.	In March 2008, Mr P was sentenced to five months’ imprisonment for various offences including shoplifting, breach of the peace, and being drunk and disorderly in a public place. Whilst serving this sentence, he was sentenced to nine months’ imprisonment in relation to a charge of assault occasioning actual bodily harm. This related to an incident that took place in August 2007. I am told that his sentence expired on 24^th October 2008.
19.	On 21^st October 2008, the Secretary of State directed by warrant issued under s 47 MHA 1983, that Mr P be transferred to a psychiatric hospital. On 22^nd October 2008, he was transferred to the Scott Clinic. Mersey Care NHS Trust is responsible for the Scott Clinic. It is common ground that the transfer direction has the same effect as a hospital order under s 47(3) and s 40(4) of the MHA 1983, operated to maintain Mr P’s detention beyond the expiry of his sentence of imprisonment.
20.	Mr P applied to the First-tier Tribunal (HESC)(MH) (Ms Burton, Dr Philpot. Ms Fowler) and they heard the appeal on 19^th February 2010. The Tribunal considered the written reports of the Responsible Clinician (Dr Haeney) dated 3^rd December 2009 and 9^th February 2010, two Nursing Reports, and 3 Social Circumstances Reports. The Tribunal heard oral evidence from Mr P, Dr Haeney, Ms Kelley (the staff nurse), Ms Gore (the social worker), and Mr Murphy from the early intervention team.
21.	The Decision of the Tribunal is as follows “The patient SHALL BE DISCHARGED from liability to be detained with effect from Tuesday 6^th April 2010 at midday.”
22.	The Legal Grounds for the Tribunal’s decision is then set out in paragraph 1:
(a)	The Tribunal is not satisfied that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment.
(b)	The Tribunal is not satisfied that it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment.
(c)	The Tribunal is satisfied that appropriate medical treatment is available for the patient.
23.	Paragraph 3 deals with Recommendations, and the Tribunal specifically states that it makes no recommendation.
24.	Paragraph 8 directs that the discharge be deferred for 6 weeks to enable the structured after-care plan to be fully implemented within his supported flat.
25.	Paragraph 9 reads as follows: “The Tribunal would also invite Mr P’s care team to consider whether to implement a community treatment order which was the subject of discussion during the hearing. Mr P himself expressed the view that the structure that this could provide could be assistance to him.”
26.	 On 31^st March 2010, Mr P was made subject to a supervised community treatment order pursuant to ss 17A of the MHA 1983.
27.	On 9^th July 2010, Dr Haeney on behalf of the First Respondent applied under Rule 45 of the Tribunal Rules to the First-tier Tribunal, out of time, to set aside the decision of 19^th February 2010. 
28.	Judge Foster agreed to extend time, and decided that there was a “clear error of law in the decision” and that she should, in consequence, “review” the decision. She decided that the decision dated 19^th February 2010 be set aside. Her decision at paragraph 6 provides her reasoning as follows: “It appears clear from the comments made by the Tribunal [at paras 8 and 9] that the intention was that [Mr P] be discharged subject to a supervised community treatment order. Clearly by discharging [Mr P] from liability to be detained the Tribunal have frustrated their intention that a community treatment order be implemented.” She said that she was satisfied that it was in the interests of justice to set aside the decision “as it gives effect to the original intention expressed by the Tribunal in their written reasons.”
29.	Solicitors acting on behalf of Mr P appealed Judge Foster’s Decision dated 6^th August 2010. The primary ground for the appeal was that the decision of Judge Foster was wrong in law. The appeal application states: “The First-tier Tribunal decision of 19^th February 2010 ordered the Applicant’s deferred discharge. The Tribunal could only have made such a decision on the basis that the Applicant did not meet the criteria for continued detention under s 47 on the day of the hearing. It cannot therefore follow that it was the Tribunal’s intention that the Applicant then be made subject to a CTO, pursuant to s 17A.” 
30.	It was submitted that it was unlawful for Judge Foster to overturn the decision of 19^th February 2010, and, further, that her decision dated 6^th August 2010 was irrational in that it read into the Decision “something that is not there.”
31.	By a further Decision dated 6^th September 2010, Judge Foster decided to review her own decision of 6^th August 2010, but refused to make any alteration to her Decision of 6^th August 2010 other than to remit the original application to a freshly constituted panel. 

Deferred Discharge.

32.	It is common ground that a deferred discharge brings to an end a community treatment order made before the deferred discharge date.
33.	Thus, both parties are in agreement that, if the Decision dated 19^th February 2010 stands, the community treatment order dated 31^st March 2010 came to an end on 6^th April 2010. 

Submissions.
34.	The First Respondent submits that the decision of Judge Foster dated 6^th August 2010 to set aside the original decision was correct. It is said that the First-tier Tribunal made a clear error of law in its decision of 19^th February 2010 which was corrected by Judge Foster, and that she had no option but to set aside the original decision. Ms Rowbotham said that, read as a whole and in context, the Tribunal were concerned about Mr P’s compliance with the after care package and intended that the making of a community treatment order be actively considered by the RC.
35.	The written submissions of the First Respondent state that the Tribunal should have followed the options as set out in s 72(3A), namely to recommend that the responsible clinician by order in writing discharge Mr P under the structured framework of a community treatment order, which of course makes him liable to recall under s 17E.
36.	The Appellant’s position is that the First-tier Tribunal, in its decision dated 19^th February 2010, directed a discharge because it was not satisfied that the criteria for detention were made out. It is submitted that it is plain from the face of the First-tier Tribunal’s decision that it did not consider that the criteria in subsection 1(b)(i) and 1(b)(ii) were satisfied on the evidence. Mr Pezzani relies upon paragraph 7 of the reasons of the Tribunal, which states: “having regard to all the evidence, the Tribunal takes the view that continued liability to detention is not a proportionate response to the risks currently presented by [Mr P], given his current presentation and preparedness to accept ongoing support.” He submits further that the only discretion allowed to the Tribunal by Statute is deferral to a specified date, to enable the structured after care plan to be fully implemented.
37.	Mr Pezzani submits that as the decision dated 19^th February 2010 was lawful, in consequence, the procedural decisions of Judge Foster were both unlawful. He seeks an Order that the procedural decisions should be quashed, and a declaration that the decision of 19^th February 2010 be reinstated.

Conclusions
38.	I have no doubt whatsoever but that Mr Pezzani’s submissions relating to the interpretation of the decision and reasoning of the First-tier Tribunal dated 19^th February 2010 is correct. The decision of the First-tier Tribunal is absolutely clear. Section 72(1)(b)(i) and s 72  1(b)(ii) are expressly stated by the Tribunal not to be made out. The Tribunal directed a Discharge, and they deferred it specifically to enable after-care to be implemented. 
39.	The First Respondent’s submission is really no more than an attempt to persuade me that the First-tier Tribunal made the wrong decision on the facts presented to it. The First Respondent submits that the Tribunal should not have stated that it was not satisfied that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment (s 72(1)(b)(i)).  Likewise, the Respondent submits that the Tribunal should not have stated that it was not satisfied that it is necessary for the health of safety of the patient or for the protection of other persons that the patient should receive such treatment (s 72(1)(b)(ii)). Accordingly, he should not have been discharged. 
40.	I am not prepared to read into the Decision what is not there. If the Tribunal had intended to state that s 72(1)(b)(i) and s 72(1)(b)(ii) were satisfied, then it would have said so. This was not simply an oversight, for the Tribunal specifically stated that it was satisfied that appropriate medical treatment is available for the patient (s 72(1)(b)(iia)). 
41.	Paragraph 9 of the Tribunal’s reasons is not expressed in the form of a recommendation. It says no more than “The Tribunal would also invite Mr P’s care team to consider whether to implement a community treatment order.” The use of the word “also” would imply that paragraph 9 can in no way form the basis of its reasons for making its decision. 
42.	In so far as there is an inconsistency between the Decision and paragraph 9, it is paragraph 9 which should be given no weight. In any event, it is of course the responsible clinician rather than the care team that has statutory responsibility in this area (s 17A(1)). Thus, the  language of paragraph 9 is unfortunately both loose and legally inaccurate. 
43.	Even if, as it is suggested, a community treatment order had been “the subject of discussion during the hearing” and that “Mr P himself expressed the view that the structure that this could provide could be of assistance to him”, this in no way enables the Tribunal to recommend a community treatment order, given the findings made in relation to s 72.
44.	This conclusion is supported by the approach that I take to the meaning of s 72(3A). The subsection states that a tribunal is not required to discharge a patient because it thinks that it might be appropriate for the patient to be made subject to a community treatment order. If a tribunal is of this view, then it can recommend to the responsible clinician that consideration is given to applying for a  community  treatment order. The language of s 72(3A) is the language of discretion, and is obviously relevant in a situation where a tribunal is not under a duty to discharge, but may nevertheless exercise its discretion for whatever reason in favour of a discharge. In that situation, instead of a discharge, a tribunal can make a recommendation under s 72(3A).
45.	But, if the tribunal is not satisfied as to one or more of the three disjunctive conditions laid down in s 72, then I can see no basis for s 72(3A) being relevant. It is only a consideration in a case where the tribunal is not under a positive duty to discharge.
46.	In this case, given the findings made by the First-tier Tribunal in its decision dated 19^th February 2010, the tribunal was under a positive duty to direct a discharge, albeit deferred for a period of six weeks to enable after-care arrangements to be put in place. 
47.	It follows therefore that Judge Foster’s two decisions must be quashed. Both of those decisions are unlawful, in that they are predicated on a reading of the First-tier Tribunal’s decision which can in no way be justified.
48.	Accordingly, it follows also that there be a declaration that the decision of the First-tier Tribunal dated 19^th February 2010 be reactivated.

ORDER ACCORDINGLY.

His Honour Judge David Pearl
Sitting as a Judge of the Upper Tribunal
15^th March 2011.

JR/2381/2010 and HM/2336/2010