LW v Cornwall Partnership NHS Trust and Associated Cases:[2018] UKUT 408 (AAC) ; [2019] AACR 16

Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 29 November 2018

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
21 December 2018
Last updated
20 November 2020 — See all updates
Categories:
Mental health
Sub-categories:
Tribunal procedure and practice - statements of reasons
Judges:
Ward, C
Decision date:
29 November 2018

Read the full decision in [2019] AACR 16ws

Judicial Summary

Reported as [2019] AACR 16

Mental Health Act 1983 – Community Treatment Orders – whether defined degree of imminence of likely relapse required in order to justify not discharging a patient from a Community Treatment Order – what is to be expected of the First-tier Tribunal’s reasons in such a case

The case concerned three unconnected appellants: LW, SE and TS. LW has paranoid schizophrenia, was placed on a Community Treatment Order (CTO) in October 2017. She applied for a discharge, which was refused by the First-tier Tribunal (F-tT). SE has paranoid schizophrenia. He was placed on a CTO in July 2015. He applied for discharge, which was refused by the F-tT. TS has an underlying psychotic disorder which may have been triggered by drug abuse. He was placed on a CTO in July 2016. He applied for discharge, which was refused by the F-tT. All three appellants appealed to the Upper Tribunal (UT). The grounds for appeal argued that there was, as a matter of law, a degree of imminence of relapse required before, under section 72 of the Mental Health Act 1983, a person could be lawfully retained as a community patient on a CTO; and what was required of a tribunal in terms of giving reasons in such cases. Held, dismissing the appeals, that:

  1. where there is a risk of relapse which might necessitate recall, it will be a relevant consideration when it is thought likely such a relapse will occur; but that factor is not itself determinative; other factors, including risk to the patient and/or others if a relapse were to occur may also be relevant (paragraph 49(a) to (b));

  2. the authorities do not establish as a matter of law that likely relapse must be “soon”, “in the near future” or within the permitted duration of a CTO for discharge to be lawfully refused. The case for discharge may be stronger if the anticipated timescale for relapse is protracted, but all relevant circumstances must be taken into account in deciding “appropriate” for the purposes of section 72(1)(c); and

  3. a tribunal must comply with established legal principles in relation to giving reasons, which includes explaining why the case for discharge has not succeeded. The UT should be slow to infer that the F-tT has overlooked basic features of a CTO, such as that, if used to secure against the patient’s wishes that medication is taken in the community, it may trespass upon the patient’s personal autonomy.

Published 21 December 2018
Last updated 20 November 2020 + show all updates

  1. Decision selected for reporting as [2019] AACR 16

  2. First published.