LW v Cornwall Partnership NHS Trust
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Ward |
| Judgment Date | 29 November 2018 |
| Neutral Citation | [2018] UKUT 408 (AAC) |
| Docket Number | HM/1472/2018 (LW), HM/1969/2018 (SE); HM/2188/2018 (TS) |
| Date | 29 November 2018 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Neutral Citation: [2018] UKUT 408 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Ward
HM/1472/2018 (LW), HM/1969/2018 (SE); HM/2188/2018 (TS)
Appearance: R Pezzani for LW (instructed by Conroys), SE (appearing pro bono) and TS (instructed by Donovan Newton).
Facts: A patient made liable to detention for treatment under s3 Mental Health Act 1983 may be placed on a Community Treatment Order under ss17A-E of the 1983 Act; this makes them subject to various conditions, including the taking of medication, designed to reduce the risk to the patient or others, and liable to be recalled to hospital for treatment. Patients may apply to a Tribunal to be discharged from liability to detention or from being subject to a CTO.
LW had an established diagnosis of paranoid schizophrenia; regular relapses led to conduct which put her at risk of retaliation and admissions to hospital for treatment with anti-psychotic medication, which was successful in part; she did not accept that medication assisted. She was made subject to a CTO in October 2017 and explained that she would seek to reduce her medication if not subject to it.
SE also had a long history of admissions for paranoid schizophrenia, which sometimes caused aggressive behaviour to others and which had resulted in arrests. He had been subject to CTOs in the past, and had also spent time in the community without a CTO, most recently for a period of 16 months. He was detained in March 2015, and placed on a CTO in July 2015, which had been renewed. SE had recently accepted that he had been ill and had been referred to psychology services; he indicated that in the absence of a CTO, he would wish to switch from depot to oral medication.
TS was detained for the first time in 2015, during which time he committed a serious assault on a healthcare assistant, including the use of a knife he had smuggled into the unit; this led to a suspended sentence of imprisonment plus probation for wounding with intent. He was diagnosed to have a psychotic disorder, possibly triggered by drug abuse. He was placed on a CTO in July 2016. He indicated that he would not take medication in the absence of the CTO.
Tribunals upheld the CTO in each case, and these decisions were challenged before the Upper Tribunal; the cases were joined to consider the proper test to apply.
Save for the cover sheet, this decision may be made public (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the appellants by name.
All 3 appeals are dismissed. The decisions of the following tribunals did not involve the making of an error of law:
HM/1472/2018: The tribunal sitting at Bodmin Hospital on 23 March 2018 under reference MP/2018/01483
HM/1969/2018: The tribunal sitting at Haytor Unit, Torbay Hospital on 11 June 2018 under reference MP/2018/10479
HM/2188/2018: The tribunal sitting at Reaside Clinic, Birmingham on 19 July 2018 under reference MP/2018/16093
1. Put shortly, these cases concern what is to be expected of the First-tier Tribunal (“FtT”) when it is deciding whether or not to uphold the making (or continuation) of a Community Treatment Order (“CTO”). The issues raised are substantially similar and the cases were heard together so as to provide a range of scenarios against which the issues could be considered. What in particular they examine is the correct approach to the likelihood of relapse if a patient, once free of the CTO, does not take his or her medication and the possible consequences if such a relapse were to occur.
2. In each case, the respondent NHS Trust indicated that it intended to play no active part in proceedings and remained neutral.
3. The Secretary of State for Justice was offered the opportunity to apply to be joined, which he failed to take up. That was regrettable, as, coupled with the lack of participation by the respondents, it means that the Upper Tribunal only received submissions on behalf of the appellants and none on behalf of the State.
4. That said, Mr Pezzani sought to present the issues fairly and responsibly and I am grateful to him for his submissions before and at the hearing and for his follow-up note.
5. The appellant in HM/1472/2018 is LW. She has paranoid schizophrenia. It is a long-standing condition, with a relapsing and remitting course that responds at least partially to anti-psychotic medication. She has a substantial history of admissions. In October 2017 she was placed on a CTO. Her application for discharge was refused by the FtT on 23 March 2018. Permission to appeal was refused by a judge of the FtT but given by UTJ Levenson. On 25 September 2018 LW was discharged from her CTO.
6. The appellant in HM/1969/2018 is SE. He has paranoid schizophrenia. He has a substantial history of admissions. His most recent admission under s2 commenced on 31 March 2015 and was followed by detention under s3, prior to being placed on a CTO on 23 July 2015. It was renewed for 12 months on 11 July 2017. His application for discharge was refused by the FtT on 11 June 2018. Permission to appeal was given by a judge of the FtT, who was aware of the pending appeal in LW's case.
7. The appellant in HM/2188/2018 is TS. The FtT found that he has an underlying psychotic disorder, such as schizophrenia, one that may have been triggered by drug abuse. He was admitted (for the first time) on 13 March 2015 under s2, continued under s3 and on 7 July 2016 was placed on a CTO. His application for discharge was refused by the FtT on 19 July 2018. Permission to appeal was given by a judge of the FtT.
8. There is no issue regarding the capacity of any of the appellants, though the insight of each is imperfect. Both SE and TS (but not LW), when unwell, were involved in acts of aggression and violence. In TS's case the incidents were particularly serious. There is more to be said about all 3 cases and I return to the detail below.
9. The cases were transferred to me with a view to holding the combined oral hearing.
10. I had originally understood the grounds to be arguing that there was, as a matter of law, a degree of imminence of relapse required before a person could lawfully be retained as a community patient on a CTO. In the course of argument, the position appeared to evolve into what was required of a tribunal in terms of giving reasons in such a case. I consider both.
11. I gratefully adopt parts of the description of the CTO regime set out in the Court of Appeal's decision in Secretary of State for Justice v MM; Welsh Ministers v PJ[2017] MHLR 282. Whilst I am aware that an appeal to the Supreme Court has been heard in those cases and that (in PJ) judgment is awaited, it does not detract from the utility of the Court of Appeal's summary, from which I have removed matters specific to the point at issue in PJ, which does not arise in any of the present cases.
“47. The CTO scheme is set out in ss17A to 17E, inclusive, of the MHA. The powers of tribunals in respect of patients under the scheme are set out in s72. … . It is necessary to appreciate the roles and responsibilities of those involved in the CTO scheme in the context of the overall statutory framework in order to interpret that framework in a way that is consistent with the fundamental features of the legislation.
48. … [T]he authority for the detention of a patient who is subject to a CTO (‘a community patient’) is suspended during the CTO by reason of s7D(2)(a). A community patient is not liable to be detained in hospital although he may be recalled for treatment under s17E. The exercise of the power of recall, which rests solely with the responsible clinician, is not dependent upon any compliance with or alleged breach of the CTO conditions. … .
49. Sections 17A and 17B MHA provide the lawful authority for a responsible clinician to make a CTO. Section 17B(2) is the source of the power for the responsible clinician to make conditions that are necessary and appropriate for one or more of 3 defined purposes: (a) ensuring that the patient receives medical treatment, (b) preventing risk of harm to the patient's health or safety, and (c) protecting other persons. Those purposes have to be read in conjunction with the power granted to the responsible clinician to make a CTO. That power is constrained so that a CTO may not be made unless the relevant criteria are met. The criteria are set out in s17A(5). They include the continuing necessity for medical treatment for the patient's health and safety or the protection of other persons, the necessity of the retention of the power of recall to hospital and that appropriate medical treatment is available and can be provided for the patient without his continuing detention in a hospital.
50. The terms of the power are wide. It is clear from the nature and extent of the CTO scheme that the object of the power is to provide a balance between the protection of the patient and the public and the receipt by him of medical treatment without his continuing detention in hospital, where that is appropriate. …
…
The safeguards
54. The CTO scheme is provided for in a statutory framework that is a procedure prescribed by law. The criteria for the imposition of conditions that may deprive a patient of his liberty are specified in ss17A(4) to (5) and 17B(2) MHA. They are limited to the purposes of the legislation, for example, for medical treatment. They are time limited by s17C and they are subject to regular rights of review by ss20A and 66 which are equivalent to the rights enjoyed by a patient detained in hospital so that there is no incoherence or lack of equivalence in the safeguards...
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LW v Cornwall Partnership NHS Trust and Associated Cases
...Partnership NHS Trust and associated cases [2019] AACR 16 [2019] AACR 16 (LW v Cornwall Partnership NHS Trust and associated cases [2018] UKUT 408(AAC)) HM/1472/2018 HM/1969/2018 HM/2188/2018 Judge 29 November 2018 Mental Health Act 1983 – Community Treatment Orders – whether defined degree......