Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HM/2479/2010

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Rowland

The Appellant appeared in person.

The Respondent was represented by Ms Susanna Rickard of counsel, instructed by Bevan Brittan LLP

Decision:  The patient’s appeal is dismissed.

It is directed that, save for the frontsheet (which identifies the Appellant by name), this decision may be made public.

REASONS FOR DECISION

1. On either 5 or 7 January 2010, the Appellant was detained in hospital for treatment under section 3 of the Mental Health Act 1983, having been detained for assessment on 29 December 2009 and been diagnosed as suffering from paranoid schizophrenia.  It is unnecessary to set out the history of previous admissions.  While detained, the Appellant was treated by Clopixol depot injections.  From March 2010, he was granted extended leave under section 17 on condition that he complied with medication requirements and attended outpatient reviews.  He lived at home with his wife and daughter and attended his local community mental health treatment base fortnightly for medication and to see his key worker.  On a date that is not revealed in the papers before me, he made an application to the First-tier Tribunal for discharge. 

2. The case came before the First-tier Tribunal on 17 June 2010.  Despite the Appellant’s contentions to the contrary, the First-tier Tribunal was satisfied that he was suffering from mental disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment and the Appellant was not discharged.  However, the First-tier Tribunal gave the following directions –

“1. The Responsible Clinician is to inform the tribunal office by 4pm 19^th July 2010 whether a community treatment order has been made and the reasons for any such decision.

  2. If a CTO has not been made, the tribunal judge should be so informed and the tribunal will consider whether to reconvene.”

3. Under the heading “Recommendations”, the First-tier Tribunal said –

“With a view to facilitating discharge on a future date, the Tribunal recommends that: -

The responsible clinician consider whether to make a community treatment order in respect of the patient.

In the event of any such recommendation not being complied with by 19^th July 2010, the Tribunal will decide whether to reconvene.  In coming to its decision, the Tribunal will take into account any representations made by the parties on or before that date.”

4. A community treatment order was made on 2 July 2010 and the patient has remained subject to that order ever since, applications to the First-tier Tribunal heard on 29 November 2010 and 30 March 2011 having been unsuccessful.

5. However, on 19 July 2010, the Appellant sought permission to appeal against the decision of 17 June 2010 and, on 4 August 2010, a judge of the First-tier Tribunal, who had not been the judge sitting on 17 June 2010, granted permission to appeal.

6. The Appellant’s contention at the hearing before me was that he had been misdiagnosed and was not suffering from any mental disorder whatever.  He criticised the particular medical treatment he had been given and other aspects of the way he had been treated.  However, an appeal to the Upper Tribunal lies only on a point of law.  The First-tier Tribunal was the final judge of matters of fact and medical judgment and, in the absence of an error of law, I am unable to interfere with the First-tier Tribunal’s decision in relation to such matters.  The First-tier Tribunal found that the Appellant was suffering from “a chronic delusional disorder with exacerbations when he ceases medication” and it gave reasons for its finding, clearly based on the reports before it.  Moreover, having heard the Appellant give evidence, it found that, due to “the persisting lack of insight in to his condition as well as the currently held paranoid beliefs and presentation”, the Appellant’s disorder “was of both a nature and degree to make it appropriate for him to be liable to be detained in a hospital for medical treatment”.  The First-tier Tribunal’s conclusion on this issue was one it was entitled to reach and for which adequate reasons have been given.  I therefore cannot interfere with it.

7. The ground upon which the Appellant was granted permission to appeal was a more technical one.  It had been advanced by the solicitor who represented the Appellant before the First-tier Tribunal and who drafted the application for permission to appeal and the appeal.  The key part of the application for permission states –

“It is submitted that … there must be an element of hospital treatment in the patient’s on-going care plan for the liability to be detained to be justified.

It is submitted that, on the facts of this particular case, there was insufficient evidence placed before the tribunal that the patient was receiving any form of hospital treatment and so it cannot be said that an ongoing liability to detention was justified.”

8. The Respondent concedes that the first of those submissions is correct but does not agree with the second submission and asserts that the Appellant was receiving a form of hospital treatment while on extended leave.

9. It is important to note that section 145 of the 1983 Act defines “hospital” so that it includes “any health service hospital within the meaning of the National Health Service Act 2006”, which in turn includes “any institution for the reception and treatment of persons suffering from illness” and any “clinics, dispensaries and out-patient departments maintained in connection with any such … institution”.  I do not know precisely what evidence was before the First-tier Tribunal but it is clear from paragraph 14 of its decision that it found that, although the Appellant attended what was described as a “local Community Mental Health Treatment Base”, that was for the purpose not only of medication but also “outpatient reviews”.  It was also aware that the Appellant’s responsible clinician remained the responsible clinician based at the hospital where he had previously been actually detained.  The First-tier Tribunal did not err in making those findings.  The written response on this appeal asserts that the place where the Appellant received his medication and met with his key worker was “an adult community mental health centre providing assessment and treatment through individual, group and family therapy intervention, which is maintained by the Trust in connection with its inpatient units, one of which is … where the Appellant was admitted as an inpatient”.  That is not contradicted.  Moreover, as Miss Rickard put it at the hearing before me, the key worker or community mental health nurse whom the Appellant saw each fortnight was not acting “in isolation” but in conjunction with the responsible clinician.  It was therefore accurate to regard the Appellant as receiving “outpatient” treatment, and therefore hospital treatment, as the First-tier Tribunal clearly did.  Although it might have dealt with the submission made to it more clearly, it did not err in law.  The place that the Appellant attended could clearly be regarded as an outpatient department falling within the definition of “hospital” and the material before the First-tier Tribunal justified the finding that the Appellant was attending “outpatient reviews”.  I accept the Respondent’s submission that R(DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin) shows that reviews may be part of a patient’s “medical treatment” and I do not regard the factual differences between the present case and either DR or R(CS) v Mental Health Review Tribunal [2004] EWHC 2958 (Admin) to be significant in that regard.  Accordingly, I am satisfied that the First-tier Tribunal did in fact find that the Appellant was receiving hospital treatment and was entitled to do so. 

10. That makes it unnecessary to consider whether the Respondent’s concession that there had to be a continuing degree of hospital treatment while the Appellant was on extended section 17 leave was a necessary concession.  It is supported by the reasoning in CS, which was decided under section 72 of the 1983 Act, but I observe that the earlier decisions to which reference was made in that case were made in respect of other provisions of the Act, the wording of which was, in each case, slightly different.  Read literally, the reference to “medical treatment” in section 72(1)(b)(i) appears to refer to the treatment that would be received if the patient were actually detained and the references to medical treatment in section 72(1)(b)(ii) and (iia) do not necessarily refer to treatment in a hospital.  If treatment received while a person is on extended leave and merely “liable” to be detained must include treatment in a “hospital”, that must arise from the relationship that section 72 has with sections 3, 20 and 23, rather than from the literal words of the legislation.  As this point has not been the subject of full argument before me, I say no more about it.

11. What is clear is that section 72(3A) contemplates there being an overlap between the circumstances in which a person may remain liable to be detained and the circumstances in which a person may be placed on a community treatment order and so be liable to be recalled.  The case law to which I was referred all pre-dates the introduction of community treatment orders but it continues to have effect.  On the other hand, one might now expect community treatment orders to be made in many of the circumstances in which reliance was previously placed on extended leave.  The implication of section 72(3A)(b) appears to be that, if the First-tier Tribunal considers a community treatment order to be appropriate and makes a recommendation to that effect, it may discharge the patient if the recommendation is not followed and the responsible clinician does not give a persuasive reason for not following it.  However, in this case, the recommendation was followed and so no issue arose.  (The Tribunal erred in using the phrase “with a view to facilitating discharge on a future date”, which appears in section 72(3)(a) rather than section 72(3A)(a) under which the recommendation was obviously made, but nothing turns on that error.)

12. For the reasons I have given in paragraphs 6 and 9 above, this appeal must be dismissed.

Mark Rowland

10 June 2011