[2024] UKUT 190 (AAC)

On the day before the hearing, at the beginning of the hearing and at its conclusion Mr Nicholas on behalf of his client requested an adjournment. This was on the basis that there had been late disclosure of evidence, as a result of which the clinical team were now arguing in favour of continued detention, rather than a conditional discharge. He argued that in those circumstances on the basis of the fresh evidence there was in reality little alternative for the tribunal but to continue the detention. Mr Nicholas argued in the alternative that if we did not adjourn we could nevertheless grant a deferred conditional discharge. We could rely upon his client’s commitments to comply and engage, and the testing and leave suggested will not be preconditions to discharge but merely part of the transitional process to ensure that it was successful and the degree and nature of support required in the community was clarified.

The argument as to unfairness rested on the assumption that until the recent change in evidence his client would have been entitled to a deferred conditional discharge. He suggested that an adjourned hearing should not take place until after the Crown Court proceedings, and perhaps the instruction of an independent expert, but he could give no indication when that adjourned hearing would take place and suggested we did not seek to fix a date.

In our judgement, although the clinical team were suggesting a conditional discharge until recently, in reality the written evidence clearly suggested that at the least a full risk assessment was required before the discharge could take place. The second condition set out in paragraph 19 of Dr Padayatchi’s 9/9/22 [sic] made it plain “discharge is also dependent on the sexual violence risk assessment and the mitigation required based on this assessment”. However phrased there was the real possibility that that risk assessment would suggest that there were no community arrangements which could safely manage the risk. Further [OO] had received no unescorted community leave. Trial leave to proposed accommodation was required. In our judgement a discharge on the basis of previous evidence was by no means certain. We adjourned because we were not satisfied that the Clinical team had really thought through their argument and there were many uncertainties.

The view of the current care team was expressed by Dr Nyein, a general adult psychiatrist. He has known [OO] as a patient since June 2022 and took over as RC in September. Dr Padayatchi is the medical director. His report of 18/11/22 did not express a view. He noted Dr Brown’s concerns but did not appear to depart from Dr Padayatchi’s opinion in supporting a discharge. But it was the exchange of emails with Dr Brown and Dr Baruad and the receipt of Dr Brown’s full report that caused him to change his mind, as now expressed in his report of 25/11/22. There has been no change in [OO]’s presentation and no significant incident. It is clear he relies very heavily on those documents and discussions he has had. It is now his case that there must be a full sexual violence risk assessment before discharge can be considered.

We have considerable sympathy for [OO] who had hoped that he would receive a discharge. The reality appears to us that he is poorly placed on a general adult psychiatric ward. This appears to have arisen because his initial admission was under section 2. The difficulty for [OO] is that the report of Dr Kottalgi dated 12/5/22 (based upon a video meeting with interpreter) did not support transfer to a forensic psychiatric unit, although he did make other suggestions.

There has been considerable delay in this matter. Mr Nicholas suggests an open ended adjournment with perhaps the instruction of an independent expert for [OO]. Mr Nicholas does not represent [OO] in the Crown Court. Dr Brown was instructed by Reeds solicitors who are so acting. It is in our judgement unlikely that an adjournment would benefit anyone, least of all [OO]. The Crown Court judge, on the basis of Dr Brown’s report may well feel it desirable to adjourned [sic] sentence until the tribunal (with access to greater information and expertise than is before him) has decided what to do. Or he may just impose another Hospital order. With the current detention in place there is little he can do. In our judgement the sooner the treating team grasp the issues the sooner his assessment and entitlement to discharge or not will be established.”