ML v Priory Healthcare Ltd & SSJ
Summary
The interface between the MHA 1983 and the MCA 2005 has recently been considered at the point of entry. In ML v Priory Healthcare Ltd & SSJ [2023] UKUT 237 (AAC), UTJ Church considered the question from the point of view of exit from detention under the MHA 1983.
The appeal concerned a 63 year old man, ML, who was a restricted patient detained under ss.47/49 MHA 1983. He had been detained for over 35 years, the last 15 years of which had been spent in secure psychiatric hospitals. His tariff (i.e. the criminal aspect of his detention) expired more than 30 years ago. In practical terms, ML 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 s.74(1)(a) MHA 1983.
The First-tier Tribunal heard evidence that ML lacked capacity to make decisions in relation to various matters, including whether he should take prescribed psychotropic medication. While the ML’s responsible clinician and all but one of the other witnesses for the detaining authority supported ML’s continued detention in hospital, expert evidence from an independent forensic consultant psychiatrist instructed by ML and an independent social worker and approved mental health professional instructed by ML, as well as the evidence of ML’s primary nurse at the hospital, 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 MCA 2005, in accordance with the principles set down in MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice (Mental Health) [2020] UKUT 230 (AAC).
It was argued before the First-tier Tribunal that, in light of this evidence: (a) continued detention in hospital was not necessary; (b) s.72(1)(b)(ii) MHA 1983 was not satisfied; and (c) s.73 MHA 1983 required that ML be discharged from detention.
The First-Tier Tribunal decided, however, that (a) each of the statutory criteria for detention were satisfied; and (b) had ML been subject to a restriction order under s.41 MHA 1983, he would not have been entitled to be discharged from liability to be detained in hospital for medical treatment. UTJ Church noted that:
25. While the First-tier Tribunal acknowledged Mr Pezzani’s submission, it did not say what it made of it: “Mr Pezzani also contends that the Patient lacks capacity to make decisions about many of his post discharge needs and that a DoLs care plan would be available” (see para. 16 of the FtT Decision at p. 258 of the appeal bundle).
26. It appears from this short acknowledgement, and its “noting” in para. 21 that “the only environment where his medication regime can be enforced is in hospital” that, rather than rejecting Mr Pezzani’s argument, the First-tier Tribunal simply ignored it.
On appeal, UTJ Church endorsed the approach taken by UTJ Jacobs in the Cygnet case. He had:
38. […] considerable sympathy for the First-tier Tribunal having to grapple with what was a very complex matrix of considerations, but Mr Pezzani had made a clear case, supported by evidence, that conditional discharge with a full care package to 24-hour staffed specialist accommodation represented an alternative means of containing the risks that a failure by the Appellant to comply with his prescribed medication might eventuate. It was incumbent on the First-tier Tribunal to address that case and to explain how it came to conclude that the section 72(1)(b) criteria were nonetheless satisfied, and that continued detention represented the least restrictive option for the management of the concerns arising from the Appellant’s mental disorder.
39. It appears that the First-tier Tribunal was under the misapprehension that there was no way for it to co-ordinate the 1983 Act proceedings with a 2005 Act authorisation, and it made its decision on the section 72(1)(b) criteria without reference to the possibility that an alternative framework for managing the Appellant was available. That amounted to a material error of law.
If, contrary to UTJ Church’s understanding of the position, the First-tier Tribunal considered the possibility but dismissed it, he found that the Tribunal’s failure to deal with it expressly rendered the reasons inadequate which, itself, amounted to a material error of law.
The decision therefore fell to be remitted to the First-Tier Tribunal to be reconsidered on the correct legal basis.
Comment
The decision provides a helpful reiteration of the need for coordination between those concerned with the MHA 1983 and those concerned with the MCA 2005 on exit from detention under the MHA 1983. It might be thought that the presence of alternative frameworks in the community to manage the concerns arising from mental disorder should be considered equally relevant to the question of whether a person should be detained under the MHA 1983 in the first place
