[2023] UKUT 237 (AAC)

By his application to the First-tier Tribunal the Appellant sought:

It was accepted by Mr Pezzani that the Appellant suffers from mental disorder (namely a diagnosis of paranoid schizophrenia, as well probably having a personality disorder and traits of autism spectrum disorder). It was also accepted that he required medical treatment to manage the risks associated with his mental disorder.

While the Appellant’s responsible clinician and all but one of the other witnesses for the detaining authority supported the Appellant’s continued detention in hospital, expert evidence from an independent forensic consultant psychiatrist instructed by the Appellant (Dr Chin) and an independent social worker and approved mental health professional instructed by the Appellant (Mr Spencer-Humphrey), as well as the evidence of the Appellant’s primary nurse at Kneesworth House, indicated that 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 under the 2005 Act.

The issue of the Appellant’s capacity to make decisions in his best interests was raised in each of the reports before the First-tier Tribunal, and Mr Pezzani made a clear submission about capacity in his position statement:

“7.

There is therefore a wealth of evidence to suggest that ML lacks capacity to make decisions about many of his post-discharge needs. That in turn indicates a reasonable likelihood that an MCA authorisation of a DoL care plan would be available. And that means that consideration of whether ML is entitled to conditional discharge should include an evaluation of how a DoL care plan would affect the question of whether the criteria in s.71(1)(b) are satisfied.

8.

Active symptoms of mental disorder, whether positive or negative, do not on their own mean that detention in hospital or treatment is either appropriate or necessary. Otherwise, every person with a mental disorder would be liable to detention for treatment. The question is whether the symptoms mean that treatment and management of the risks can only be achieved by detention in a hospital. If the answer to that question is “no” because treatment and risk management can also be achieved outside hospital, then detention for treatment is neither appropriate nor necessary.

9.

The issue is therefore whether the treatment and risk management that can be provided outside hospital is likely to represent a viable alternative to what is provided in hospital, i.e. is an alternative means of achieving the same ends. Dr Chin and Mr Spencer-Humphrey say that it is. What they recommend is in practice closely analogous to the current regime: it is proposed that ML will continue to have 24-hour support; will continue to receive medication, and care, and supervision. It follows from that that with suitable aftercare ML will be no more likely to relapse and/or present an unmanageable risk to himself or the public outside hospital than he does in hospital” (see p. 242 of the appeal bundle).

The First-tier Tribunal heard evidence that, while the Appellant would choose not to take medication if given a free choice, he would take medication if he were required to do so by a “rule”.