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This decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698))
This decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).
The decision of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal made on 25 February 2022 with case reference number MP/2021/20568 involved the making of an error in point of law. It is SET ASIDE under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing by a differently constituted panel under section 12(2)(b)(i).
REASONS FOR DECISION
What this appeal is about
This appeal is about ML, a 63 year old man who is a restricted patient detained at Kneesworth House Hospital under sections 47 and 49 of the Mental Health Act 1983 (the “1983 Act”). He has been detained for over 35 years, the last 15 years of which have been spent in secure psychiatric hospitals. His tariff expired more than 30 years ago. This appeal arises out of his application to the First-tier Tribunal to review his section. In practical terms, he wanted to secure a conditional discharge by the Secretary of State. The first step towards this was to seek a notification from the First-tier Tribunal under section 74(1)(a) of the 1983 Act (see paragraph 11 below).
Legally speaking, the appeal is about the interplay between two different statutory regimes: the 1983 Act and the Mental Capacity Act 2005 (the “2005 Act”). The 1983 Act is concerned with the provision of medical treatment of people suffering from mental disorder, and when they should be liable to be detained in hospital for treatment, while the 2005 Act is concerned with the making of decisions in the best interests of those who lack relevant mental capacity. There are inevitably areas of overlap between the two regimes, and this case raises issues about what consideration the First-tier Tribunal must give to the mechanisms available under the 2005 Act when deciding whether the statutory conditions to detention under the 1983 Act are met, and whether continued detention represents the “least restrictive option” for the patient’s care.
The main thrust of the appeal was that the First-tier Tribunal heard evidence that the Appellant lacked capacity to make decisions in relation to various matters, including whether he should take prescribed psychotropic medication, and evidence that he could be made subject to a care plan which involved a deprivation of liberty that could be authorised under the 2005 Act in accordance with the principles set down in MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice (Mental Health) (Rev 1) [2020] UKUT 230 (AAC) (“MC v Cygnet”).
It was argued before the First-tier Tribunal that, in light of this evidence:
continued detention in hospital was not necessary;
section 72(1)(b)(ii) of the 1983 Act was not satisfied; and
section 73 of the 1983 Act required that the Appellant be discharged from detention.
The First-tier Tribunal decided that:
each of the statutory criteria to detention was satisfied; and
had the Appellant been subject to a restriction order under section 41 of the 1983 Act, he would not have been entitled to be discharged from liability to be detained in hospital for medical treatment,
(the “FtT Decision”).