When CTOs first came out, I was involved in a few cases where Tribunals foolishly ordered a deferred discharge of a patient who was detained on s.3 of the Mental Health Act 1983, with the express intent that this was to facilitate the patient being made subject to a CTO instead. What the Tribunal had failed to grasp that a CTO is dependent on a S.3 being in existence - the s.3 goes “dormant” when the CTO is implemented, and can spring back into existence if the CTO is revoked. Accordingly at the time that the deferred discharge becomes effective, any CTO that has been put in place by that date is automatically discharged too.
I have not have any such cases recently, and thought that as more than 2 years have passed in which the Mental Health Act 1983 (as amended by the Mental Health Act 2007) has been in operation, the Tribunals have finally grasped what is going on. Instead what seemed to be happening more often was that Tribunals were not discharging and instead recommending that the Responsible Clinician consider a CTO, even in cases where the Responsible Clinician gave direct evidence to the Tribunal that he had considered a CTO and decided that it was not appropriate!
MP v Mersey Care NHS Trust  UKUT 107 (AAC), a case which was only heard in the Upper Tribunal on the 15 March 2011, suggests that I was overly optimistic about the Tribunal having got to grips with the law.
In short, “Mr P” the patient in this case had been transferred from prison under s.47 of the Mental Health Act 1983 in October 2008, and on the 19 February 2010 a Tribunal heard his application for discharge. The decision of the Tribunal was “The patient SHALL BE DISCHARGED from liability to be detained with effect from Tuesday 6 April 2010 at midday.” In the written reasons for the Decision, the Tribunal explained that it had deferred for 6 weeks to enable structured after-care plan to be fully implemented and further commented: “The Tribunal would also invite Mr P’s care team to consider whether to implement a community treatment order which was the subject of discussion during the hearing.
On 31 March 2010, Mr P was made subject to a CTO. On 9 July 2010 the Responsible Clinician applied under Rule 45 of the Tribunal Rules to the First-tier Tribunal, out of time, to set aside the decision of 19 February 2010. Judge Foster agreed to extend time, and decided that there was a “clear error of law in the decision” and that she should, in consequence, “review” the decision. She decided that the decision dated 19 February 2010 be set aside. Her reasoning was as follows: “It appears clear from the comments made by the Tribunal that the intention was that [Mr P] be discharged subject to a supervised community treatment order. Clearly by discharging [Mr P] from liability to be detained the Tribunal have frustrated their intention that a community treatment order be implemented.” Judge Foster said that she was satisfied that it was in the interests of justice to set aside the decision “as it gives effect to the original intention expressed by the Tribunal in their written reasons.”
So, Judge Foster sided with the Responsible Authority and decided that as the Tribunal’s basic error had “frustrated their intention” that the patient should be made subject to a CTO, then their decision that the patient should be given a deferred discharge should be set aside.
Solicitors acting on behalf of Mr P appealed Judge Foster’s Decision dated 6 August 2010, stating, quite rightly, that it was wrong in law. Judge Foster refused, however, to make any alteration to her Decision of 6 August 2010 other than to remit the original application to a freshly constituted panel - presumably so that they could “get time right this time” so the Mr P could be placed on a CTO.
Thankfully, that was not the end of the matter. The case came Before His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal by way of Judicial Review. Fortunately, Judge Pearle knew his law. He found that the Hospital’s submissions were “really no more than an attempt to persuade me that the First-tier Tribunal made the wrong decision on the facts presented to it... I am not prepared to read into the Decision what is not there. If the Tribunal had intended to state that s 72(1)(b)(i) and s 72(1)(b)(ii) were satisfied, then it would have said so. This was not simply an oversight, for the Tribunal specifically stated that it was satisfied that appropriate medical treatment is available for the patient (s 72(1)(b)(iia)).”
Judge Pearle also notes that the Tribunal’s invitation to Mr P’s care team to consider whether to implement a community treatment order was not expressed in the form of a recommendation and so “can in no way form the basis of its reasons for making its decision.” He went onto say; “This conclusion is supported by the approach that I take to the meaning of s 72(3A). The subsection states that a tribunal is not required to discharge a patient because it thinks that it might be appropriate for the patient to be made subject to a community treatment order. If a tribunal is of this view, then it can recommend to the responsible clinician that consideration is given to applying for a community treatment order. The language of s 72(3A) is the language of discretion, and is obviously relevant in a situation where a tribunal is not under a duty to discharge, but may nevertheless exercise its discretion for whatever reason in favour of a discharge. In that situation, instead of a discharge, a tribunal can make a recommendation under s 72(3A).”
Judge Pearle found that both of Judge Foster’s decisions were unlawful and so made a declaration that the decision of the First-tier Tribunal dated 19 February 2010 be reactivated - i.e. that Mr P should be discharged from section.
So what does this mean? Not that there will be less CTOs made, for sure. Hopefully it will mean that in future Tribunals will get the law right on this issue, but of course there are many other issues for the Tribunals to get wrong as well. For instance, I have an appeal in at the moment where the Tribunal did not discharge the patient’s section - nothing new there - but quite unbelievably they did not discharge him from the wrong section! My client was subject to a CTO, but in the face of all the evidence before them the Tribunal decreed that he was instead on extended s.17 leave and in their written reasons explained how they had decided not to discharge him from s.3, which he was not subject to! I despair; if the Tribunal does not listen to something as fundamental as what section a patient is subject to, what else do they not listen to?