[2023] UKUT 237 (AAC)

The Appellant’s case focused on the First-tier Tribunal’s decision that the criteria in section 72(1)(b)(ii) were satisfied, which it explained in para. 21 of its decision notice (italics added for emphasis):

“21.

The Panel equally has no doubt at this time it is necessary for the Patient’s health and safety and for the protection of other persons that he should continue to receive medical treatment in hospital. The Panel is satisfied if the Patient were discharged from a hospital environment with its comprehensive support and supervision the Patient would very quickly cease to accept his medication. The Panel notes that the only environment where his medication regime can be enforced is in hospital. The Panel also notes that while in prison the Patient refused his medication. The Panel is satisfied that without psychotropic medication the Patient’s positive symptoms of degree will return. The Panel is satisfied that if the Patient were so discharged his mental and physical health would deteriorate as his non-compliance would involve his physical health medication as even at the moment he requires prompting for basic hygiene. The Panel is satisfied in these circumstances the safety of the Patient would be at risk as he is at present vulnerable and has suffered bullying and teasing from other patients. The Panel is satisfied that Patient remains a risk of causing harm to other persons in light of the Index Offence. The Panel has no doubt that the Index Offence has serious sexual implications, notwithstanding the absence of a sexual offence charge. The Panel is surprised that Dr Chin contends the opposite in light of the known details. The Panel notes that the Patient was observed in 2021-22 staring at females in the manner described by Dr Singh.”

Mr Pezzani had placed at the centre of his case for the appropriateness of a conditional discharge that the Appellant lacked capacity to make decisions in relation to his care plan, including whether to take his prescribed medication, and that an authorisation under the 2005 Act, coupled with appropriate conditions of discharge, provided an alternative legal framework for securing his compliance with medication. The statement that “the only environment where his medication regime can be enforced is in hospital” fails to grapple with this central plank of the Appellant’s appeal.

Indeed, despite several witnesses having raised the issue of capacity to make decisions relevant to his care plan in their evidence, the FtT Decision makes a finding only on the Appellant’s litigation capacity (see para. 23 of the FtT Decision at p. 259 of the appeal bundle). It says nothing about the Appellant’s capacity to make decisions about his treatment, care or where he should live, and nothing about the legal implications of a lack of capacity in these domains.

While the First-tier Tribunal acknowledged Mr Pezzani’s submission, it did not say what it made of it:

“Mr Pezzani also contends that the Patient lacks capacity to make decisions about many of his post discharge needs and that a DoLs care plan would be available” (see para. 16 of the FtT Decision at p. 258 of the appeal bundle).

It appears from this short acknowledgement, and its “noting” in para. 21 that “the only environment where his medication regime can be enforced is in hospital” that, rather than rejecting Mr Pezzani’s argument, the First-tier Tribunal simply ignored it.

The Second Respondent opposed the appeal. The position that Mr Cisneros took was a rather technical one: he pointed to section 72(1)(b)(ii) being made up of two parts, either of which is capable of satisfying that limb of the statutory criteria. The first relates to the necessity of the patient receiving medical treatment for his own health and safety, and the second relates to the necessity of his receiving it for the protection of other persons. Mr Cisneros submitted that the FtT Decision had upheld continued detention on both bases, while the Appellant’s grounds of appeal challenged only the first basis, but not the second. Therefore, he argued, even if Mr Pezzani was correct that the First-tier Tribunal had erred, the outcome would not have been materially different because it would still have found the detention criteria to have been satisfied on the second basis.

It is adequately clear to me from the FtT Decision, when read as a whole, that the First-tier Tribunal’s decision turned on its concern that the Appellant might not comply with his psychotropic medication, and that if he did not comply with it his positive symptoms of degree would be liable to return, and these symptoms would present risks that would not be manageable in the community. This concern applied just as much to the risks contemplated by the second limb of section 72(1)(b)(ii) as to the first: if the Appellant did not relapse this would contain the risk not only to his own health and safety but also risks that would otherwise necessitate detention for treatment in the interests of the protection of other persons.

If the Appellant’s compliance could be secured and authorised under the 2005 Act, together with appropriate conditions of discharge, then the risk of relapse would be contained, and contained lawfully.

Mr Cisneros’s submissions refer in shorthand to the first of the two parts of section 72(1)(b)(ii) as being about “whether ML’s detention is necessary for his own health and safety”, and the second being about whether “his detention is necessary for the protection of other person” (see paras. 11, 27 and 28 of the Second Respondent’s response to the grounds of appeal at pp. 267 and 271 of the appeal bundle). While I appreciate that this was just shorthand, it mischaracterises the criteria in a very important respect: these criteria are not simply about the necessity of detention. Rather, they are about the necessity of the patient receiving medical treatment. Indeed, each of the criteria in section 72(1)(b) hinges on medical treatment: (i) requires there to be mental disorder that makes liability to detention for medical treatment appropriate, (ii) is about the necessity of receiving that treatment, and (iia) is about the availability of the treatment that is necessary. The First-tier Tribunal said that it was:

“satisfied that the Patient remains a risk of causing harm to other persons in light of the Index Offence. The Panel has no doubt that the Index Offence has serious sexual implications, notwithstanding the absence of a sexual offence charge…” (see para. 21 of the FtT Decision),

but the 1983 Act does not permit patients to be detained simply to protect them or other persons, no matter how grave the risks may be. The need for detention must relate to the therapeutic endeavour.

Therefore, the First-tier Tribunal’s findings in relation to the risk that the patient might cause harm to others must flow from its decision that liability to detention in hospital was necessary to secure medication compliance: if discharged the Appellant would not take medication; and if he stopped his medication his positive symptoms would return; and if the symptoms returned there would be risks to himself and others). The grounds of appeal for which I granted permission to appeal do, therefore, extend to both limbs of section 72(1)(b)(ii), and if the First-tier Tribunal erred in finding that “the only environment where his medication regime can be enforced is in hospital” that error would be material in the sense that such error would undermine its conclusion with respect both to the risk to the Appellant’s own health and safety and to the need to protect others.

Mr Cisneros agreed with the Appellant’s case that, were he discharged from hospital, the 2005 Act could be used to authorise a medication regime to the extent that he lacks capacity to make decisions relevant to that, but he maintained that the First-tier Tribunal was correct to say that the only setting where he could currently receive medication was in hospital, because there was no DOLS authorisation in place, and no guarantee that one could be obtained.

For the reasons Judge Jacobs gave in MC v Cygnet, there being uncertainty about whether the machinery of the 2005 Act will be available to authorise a deprivation of liberty does not obviate the need for a tribunal to consider alternatives to detention when determining whether the statutory criteria in section 72(1)(b) of the 1983 Act are satisfied.

In MC v Cygnet Judge Jacobs undertook a helpful review of the authorities that consider the point of transition of a mentally incapacitous patient from the 1983 Act regime to the 2005 Act regime, concluding that nothing in the Supreme Court’s decision in M v Secretary of State for Justice [2017] 1 WLR 4681 and [2019] AC 712 (“M v SSJ”) undermined what Lieven J had decided in Birmingham City Council v SR and Lancashire County Council v JTA [2019] EWCOP 28 (“SR and JTA”):

“26.

SR and JTA was a case under the 2005 Act and Lieven J sits as a judge of the Court of Protection. It was not her role to decide whether the 1983 Act had been applied correctly, but she was aware of how the issues she had to decide related to the 1983 Act. She had to decide how the 2005 Act could be operated in a way that co-ordinated with the decisions taken under the 1983 Act. She confirmed that it would be possible to give an authorisation in advance or while a conditional discharge was deferred. Her reasoning is clear, cogent and persuasive.”

I agree.

Judge Jacobs reiterated the point that he had made in DN v Northumberland, Tyne & Wear NHS Foundation Trust [2011] UKUT 327 (AAC), [2012] AACR 19 (at para. 10), that the “least restriction” principle was inherent both in the conditions to continued detention under the 1983 Act and a patient’s rights to liberty and respect for his private and family life under Articles 5 and 8 of the Convention. He went on to explain at para. 28 of MC v Cygnet:

“28.

Those factors combine to provide the imperative for the First-tier Tribunal to apply the 1983 Act in a way that allows a patient to be discharged if there are means by which the patient’s case can appropriately be dealt with under other legislation. The 2005 Act is such legislation. If a patient’s case is to be dealt with correctly under the 1983 Act and fairly and justly under the tribunal’s rules of procedure, the tribunal is under a duty to find a way that allows both Acts to be applied in a co-ordinated manner.”

Judge Jacobs explained that if an advance authorisation of a prospective deprivation of liberty had already been given then the tribunal may be able to proceed to a conditional discharge “without more ado”, but if there was no advance authorisation there were still at least two possible methods of achieving a successful, lawful and safe transition from the 1983 Act to the 2005 Act regime:

“The different hats approach

30.

If appropriate, the same judge could sit in the Court of Protection and in the First-tier Tribunal to ensure that all decisions could be made that would allow the patient to be conditionally discharged on appropriate conditions and with the benefit of a deprivation of liberty authorisation. This was the suggestion of the Court of Appeal in M. The Supreme Court did not deal with this possibility, but nor did it come within the possibilities that the Court expressly said it would not deal with. It was simply silent on the point.

31.

The First-tier Tribunal and Upper Tribunal have been flexible in the way that they exercise their jurisdictions. The two tribunals sat together with the same panel to hear an appeal to the First-tier Tribunal and judicial review proceedings in the Upper Tribunal in Reed Employment plc v the Commissioners for Her Majesty’s Revenue and Customs [2010] UKFFT 596 (TC). And the same panel of the Upper Tribunal heard an appeal together with a judicial review transferred from the High Court in Fish Legal and Emily Shirley v Information Commissioner, United Utilities plc, Yorkshire Water Services Ltd, Southern Water Services Ltd and the Secretary of State for the Environment, Food and Rural Affairs [2015] UKUT 52 (AAC), [2015] AACR 53 at [12]-[13]. The Lands Chamber of the Upper Tribunal has also approved in principle the practice of the same judge sitting in the county court at the same time as presiding as a member of a panel of the Property Chamber of the First-tier Tribunal in Avon Ground Rents Ltd v Child [2018] UKUT 204 (LC) at [84]. All of these cases are consistent with the suggestion by the Court of Appeal in M that the same judge could sit at the same time in the First-tier Tribunal and the Court of Protection in order to exercise both jurisdictions concurrently or separately.

The ducks in a row approach

32.

If it is not possible or appropriate for some reason to follow the same hat [sic] approach, it would be a proper use of the tribunal’s powers to adjourn, to make a provisional decision or to defer discharge in order to allow the necessary authorisation to be arranged. I discussed these possibilities in DC v Nottinghamshire Healthcare Trust and the Secretary of State for Justice [2012] UKUT 92 (AAC). The choice may come to little more than a matter of preference for the tribunal. It may, though, depend on how sure the tribunal is that the mental capacity decision will be put in place and how confident it is of the terms of any such decision (the terms of the care package, for example).”

I have considerable sympathy for the First-tier Tribunal having to grapple with what was a very complex matrix of considerations, but Mr Pezzani had made a clear case, supported by evidence, that conditional discharge with a full care package to 24-hour staffed specialist accommodation represented an alternative means of containing the risks that a failure by the Appellant to comply with his prescribed medication might eventuate. It was incumbent on the First-tier Tribunal to address that case and to explain how it came to conclude that the section 72(1)(b) criteria were nonetheless satisfied, and that continued detention represented the least restrictive option for the management of the concerns arising from the Appellant’s mental disorder.

It appears that the First-tier Tribunal was under the misapprehension that there was no way for it to co-ordinate the 1983 Act proceedings with a 2005 Act 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.

If I am wrong on that, and the First-tier Tribunal considered the possibility but dismissed it, that still leaves the issue as to the adequacy of its reasons (the second ground of appeal).

In Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors [2019] EWCA Civ 1413 at para. 46 Males LJ provided a compelling analysis of what amounts to “adequacy” in judicial reasons. He said:

“46.

Without attempting to be comprehensive or prescriptive, not least because it has been said many times that what is required will depend on the nature of the case and that no universal template is possible, I would make four points which appear from the authorities and which are particularly relevant in this case. First, succinctness is as desirable in a judgment as it is in counsel’s submissions, but short judgments must be careful judgments. Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment. Third, the best way to demonstrate the exercise of the necessary care is to make use of “the building blocks of the reasoned judicial process” by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable. Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.

47.

I would not go so far as to say that a judgment that fails to follow these requirements will necessarily be inadequately reasoned, but if these requirements are not followed the reasoning of the judgment will need to be particularly cogent if it is to satisfy the demands of justice. Otherwise there will be a risk that an appellate court will conclude that the judge has “plainly failed to take the evidence into account.”

Given the importance and centrality of Mr Pezzani’s argument that there was a less restrictive alternative to hospital detention, I am satisfied that the FtT Decision’s failure to deal expressly with it renders the reasons inadequate. This itself amounts to a material error of law.

For these reasons I am satisfied that the FtT Decision involved the making of an error of law which was material.