Case:

Our client, ML, was detained under s47/49 Mental Health Act 1983. He was transferred to hospital from prison with additional restrictions.

He had been detained for over 35 years with 15 years in secure psychiatric hospitals. His tariff expired over 30 years ago and he sought to secure a conditional discharge by the Secretary of State.

We sought notification from the First-tier Tribunal that he would, if subject to a restriction order, be entitled to a conditional discharge, and that he should remain in hospital (rather than be remitted to prison) to allow an application to be made to the Parole Board from hospital.

The Tribunal heard evidence that ML lacked capacity to make decisions about various aspects of his life, including whether to take psychotropic medication. Our case was supported by expert evidence from an independent consultant psychiatrist and an independent social worker. Our experts and our client’s primary nurse supported his application and indicated he could be managed effectively in the community with 24-hour support in the context of a conditional discharge, with any necessary deprivation of liberty being authorised by the Mental Capacity Act 2005. Our case was supported by the decision in MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice (Mental Health) [2020] UKUT 230 (AAC).

It was argued before the First-tier Tribunal that, in light of this evidence:

1. continued detention in hospital was not necessary;
2. s72(1)(b)(ii) of the 1983 Act was not satisfied; and
3. s73 of the 1983 Act required that ML be discharged from detention.

The First Tier Tribunal decided that:

1. each of the statutory criteria for detention were satisfied; and
2. had ML been subject to a restriction order under s.41 MHA 1983, he would not have been entitled to be discharged from liability to be detained in hospital for medical treatment.

With the continued support of Roger Pezzani of Garden Court Chambers, we appealed the decision of the First-tier Tribunal.

Our case was that the First-tier Tribunal erred in law either:

1. by deciding whether the criteria in section 72(1)(b) were met without reference to the evidence and submissions on the availability of an alternative regime for achieving his compliance with medication; or
2. by failing adequately to explain what it made of such evidence and submissions.

On appeal, UTJ Church endorsed the approach taken by UTJ Jacobs in the Cygnet case.

UTJ Church allowed the appeal and remitted the case back to the First-tier Tribunal for the following reasons:

1. it appeared that the First-tier Tribunal were under a misapprehension that there was no way for it to coordinate the Mental Health Act 1983 proceedings and the Mental Capacity Act 2005 authorisation, and it made its decision on the section 72(1)(b) criteria without reference to the possibility that an alternative framework for managing the Appellant was available. That amounted to a material error of law.
2. If he was wrong on that, and they did consider the possibility and dismissed it, it still leaves the issue as to the adequacy of its reasons. Given the centrality of this argument that there was a less restrictive alternative to hospital detention, he was satisfied that the First Tier Tribunal Decision’s failure to deal expressly with it renders the reasons inadequate. This itself is a material error of law.

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