LW v Cornwall Partnership NHS Trust and Associated Cases
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2018] UKUT 408 (AAC),[2018] UKUT 408 (AAC),[2019] AACR 16 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Benefits for children,Mental health,Tribunal procedure,practice - statements of reasons,Ward,C |
| Date | 29 November 2018 |
| Published date | 21 December 2018 |
LW v Cornwall Partnership NHS Trust and associated cases
[2019] AACR 16
1
[2019] AACR 16
(LW v Cornwall Partnership NHS Trust and associated cases
[2018] UKUT 408(AAC))
HM/1472/2018
Judge Ward HM/1969/2018
29 November 2018 HM/2188/2018
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 relap se will occur; but that factor is not itself deter minative; 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 d uration 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 in cludes
explaining why t he 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 au tonomy.
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
HM/1472/2018
Mr Roger Pezzani, instructed by Conroys Solicitors for the Appellant
HM/1969/2018
Mr Roger Pezzani, instructed by Conroys Solicitors for the Appellant appeared pro bono
HM/2188/2018
Mr Roger Pezzani, instructed by Donovan Newton Solicitors for the Appellant
LW v Cornwall Partnership NHS Trust and associated cases
[2019] AACR 16
2
No attendance or representation for the Respondents:
Decision
Save for the cover sheet, this decision may be made public (rule 14(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 three 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
REASONS FOR DECISION
1. Put shortly, these cases concern what is to be expected of the First-tier Tribunal (“F-
tT”) 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 F-tT on 23 March
2018. Permission to appeal was refused by a judge of the F-tT but given by Upper Tribunal
Judge Levenson. On 25 September 2018 LW was discharged from her CTO.
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