Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 190 (AAC)

Fecha: 29-Ene-2024

The relevant law and procedure rules

The relevant law and procedure rules

32.

MHA 1983 provides, so far as is relevant for the purposes of this appeal:

“Powers of tribunals

72.- (1) Where application is made to [the appropriate tribunal] by or in respect of a patient who is liable to be detained under this Act …, the tribunal may in any case direct that the patient be discharged, and-

…

(b)

the tribunal shall discharge the discharge of a patient liable to be detained otherwise than under section 2 above if [it is] not satisfied-

(i)

that he is then suffering from [mental disorder or from mental disorder] of a nature and degree which makes it appropriate for him to receive medical treatment; or

(ii)

that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or

(iia) that appropriate medical treatment is available for him;

…

(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient’s history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient’s condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

…

(3)

A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction…”

“Power to discharge restricted patients

73.- (1) Where an application to [the appropriate tribunal] is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to [the appropriate tribunal], the tribunal shall direct the absolute discharge of the patient if-

(a)

[the tribunal is] not satisfied as to the matters mentioned in paragraph (b)(i) [,(ii) or (iia)] of section 72(1) above; and

(b)

[the tribunal is] satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2)

Where in the case of any such patient as is mentioned in subsection (1) above-

(a)

paragraph (a) of that subsection applies; but

(b)

paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient.]

(3)

Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4)

Where a patient is conditionally discharged under this section-

(a)

he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and

(b)

the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal or at any subsequent time by the Secretary of State.

…

(7)

A Tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the Tribunal to be necessary for that purpose have been made to [its satisfaction]; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes before the Tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.

(8)

This section is without prejudice to section 42 above”

“Applications and references concerning conditionally discharged restricted patients

75.- (1) Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above and is subsequently recalled to hospital-

(a)

the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to [the appropriate tribunal]; and

(b)

section 70 above shall apply to the patient as if the relevant hospital order [, hospital direction] or transfer direction had been made on that day.

…”

“Visiting and examination of patients

76.- (1) For the purpose of advising whether an application to the appropriate tribunal should be made by or in respect of a patient who is liable to be detained or subject to guardianship under Part II of this Act or a community patient, or of furnishing information as to the condition of a patient for the purposes of such an application, any registered medical practitioner or approved clinician authorised by or on behalf of the patient or other person who is entitled to make or has made the application –

(a)

may at any reasonable time visit the patient and examine him in private and

(b)

may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or to any after-care services provided for the patient under section 117 below.”

“Obstruction

129.- (1) Any person who without reasonable cause-

…

(b)

refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act [or to give access to any person to a person so authorised]; or

…

(d)

otherwise obstructs any such person in the exercise of his functions, shall be guilty of an offence.

…

(3)

Any person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale or to both.”

33.

Proceedings in the First-tier Tribunal are governed by the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the “FtT Rules”), made pursuant to the Tribunals, Courts and Enforcement Act 2007 (the “TCEA 2007”). The FtT Rules provide, in so far as relevant to the issues in this appeal:

“Overriding objective and parties’ obligation to co-operate with the Tribunal

– (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2)

Dealing with a case fairly and justly includes-

(a)

dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b)

avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)

ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)

using any special expertise of the Tribunal effectively; and

(e)

avoiding delay, so far as compatible with proper consideration of the issues.

(3)

The Tribunal must seek to give effect to the overriding objective when it-

(a)

exercises any power under these Rules; or

(b)

interprets any rule or practice direction.

(4)

Parties must-

(a)

help the Tribunal to further the overriding objective; and

(b)

co-operate with the Tribunal generally.”

“Case management powers

5.— (1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(2)

The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3)

In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may-

(b)

consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;”

…

(h)

adjourn or postpone a hearing;

…”

“Withdrawal

17.- (1) Subject to paragraphs (2) and (3), a party may give notice of the withdrawal of its case, or any part of it …

(3)

a party which started a mental health case by making a reference to the Tribunal under section 68, 71(2) or 75(1) of the Mental Health Act 1983 may not withdraw its case.”