The Mental Health Practice - PRINCIPAL - Tammy Groves, Solicitor

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The Mental Health Law Blog

Do Tribunals love CTOs as much as Psychiatrists do? Part 2

A recent case before the Upper Tier Tribunal suggests that perhaps not all Tribunals do love CTOs (community treatment orders).
In the case of RN v CC (2011) UKUT x (AAC), the solicitor of a patient detained on s.3 was instructed by her client not to apply for discharge of the section, but rather to ask the Tribunal to use their powers under s.72 (3A) (a) of the Mental Health Act 1983 to recommend that the Responsible Clinician consider whether to make a CTO.  Sounds straight forward enough, but when the Solicitor proceeded to present her case to the Panel at the start of the Tribunal, the Judge stopped her in her tracks and told her that the Tribunal would NOT be making such a recommendation and invited her to consider what other position she might adopt.  This was before the Tribunal had properly started, and prior to any oral evidence being presented to the Tribunal, and effectively prevented the Solicitor from acting on her client’s instructions and arguing the case that her client wanted her to present! It was an outrageously foolish error for the Tribunal to make; the Judge would have been a Solicitor or Barrister who would have undergone special training for this position and, one would hope, would have known their way around the Mental Health Act 1983, and so to act in this matter beggars belief. It is also a cautionary tale for Solicitors representing clients before such Tribunals; do not assume that the Judge sitting in front of you knows the law.
The case was, unsurprisingly, appealed to the Upper Tier Tribunal, and this was considered on the 11th April 2011. Edward Jacobs, the Upper Tribunal Judge,  really had no choice but to find that it;
 “is not permissible [for the Tribunal] to reach firm conclusions and prevent the parties from arguing to the contrary...not only is it unwise, it is a breach of natural justice and the Convention right to a fair hearing.”
He also noted a further error of law in this case, as not only did the Tribunal rule out such a recommendation from the outset, it made no mention of why it did so in the written reasons the Panel must prepare to explain why they came to the decision they did.
Accordingly, the original decision of the Tribunal was set aside and the case was remitted to a differently-constituted panel for reconsideration.
Judge Jacobs went on to make some, perhaps useful, general comments about the making of such a recommendation under s.72 (3A) (a).  He said;
”the Tribunal does not have to decide that a patient does satisfy the conditions for release on a community treatment order.  It is only necessary to recommend that the Responsible Clinician should consider whether to make one. The Tribunal has no power to make an order, but it is able to use its power to recommend when it considers that the conditions are satisfied at the time of the hearing, perhaps because the Tribunal is aware of local facilities that the Responsible Clinician is not.  But the power is not so limited. It can also be used to trigger consideration of the steps that could be taken to move the patient towards eventual release on an order.”
This could be useful to argue in similar cases where the patient sees release on a CTO as a better option than continued decision under s.3 in hospital, but the Responsible Clinician is not entertaining the idea of discharge at all at this stage.
My last blog about CTOs involved a Tribunal trying to ensure that a patient was placed on a CTO against the wishes of the patient when it had no power to do so, and this blog concerns a Tribunal who would not even listen to a patient’s request to be placed on a CTO. Accordingly one might, quite reasonably, get the impression that patients are just not listened to by Tribunals who have their own agenda and will just do what they want to do whether it is lawful or  not! In order, perhaps, to redress the balance, my next blog will tell a much happier tale about Tribunals and CTOs...

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