C & Anor v Birmingham and Solihull Mental Health NHS Trust & Anor

A First-tier Tribunal is a creature of statute and has only the powers conferred by the Mental Health Act 1983. For restricted patients, the Act contains no power analogous to section 72(3)(a), permitting recommendations about leave or transfer. A ministerial answer or occasional tribunal practice cannot create jurisdiction or a procedural legitimate expectation requiring the Tribunal to hear submissions for an extra-statutory recommendation. The statutory duty to consider appropriate medical treatment is different. Where a patient contends, with supporting evidence, that leave or transfer is a necessary, desirable or available part of treatment, the Tribunal must consider that issue. It need not raise the issue itself where the case presented is solely for an extra-statutory recommendation. The appeals were dismissed.

Both appellants were restricted patients detained under hospital and restriction orders. Each sought, rather than discharge, an extra-statutory recommendation for community leave or less restrictive detention. The First-tier Tribunal did not entertain the requests in the manner sought and found appropriate treatment available. The Upper Tribunal, on 29 May 2012, dismissed their appeals and alternative judicial-review applications. The linked appeals concerned whether a detained patient could challenge the First-tier Tribunal’s refusal to make such a recommendation, and whether the statutory duty concerning the availability of appropriate medical treatment required the Tribunal to address the issue.

1. Disposition. Laws LJ gave the leading judgment. Rimer LJ agreed, and Beatson LJ also agreed while adding further comments. Both appeals were dismissed.

2. The First-tier Tribunal had only the powers conferred by the Mental Health Act 1983. Section 72(3)(a) provided a recommendation power for unrestricted patients, but there was no equivalent provision for restricted patients. That distinction was deliberate. The court would not create an analogue by judicial decision. The ministerial answer of 1987 and occasional tribunal practice could not confer jurisdiction.

3. There was no legitimate expectation of a procedural right to make submissions seeking an extra-statutory recommendation. There was no evidence of a promise or established practice conferring such a right. Authorities concerning judicial review of substantive decisions or statutory public-law functions, including ex parte Lain [1967] 2 QB 864, ex parte Datafin [1987] QB 815, CCSU [1984] AC 374, and Gillick [1986] AC 112, concerned materially different situations. The court also referred to authority supporting the view that failure to make a non-statutory recommendation was not subject to appeal or review, including Khatib-Shahidi [2001] IAR 124.

4. The argument based on section 72(1)(b)(iia) failed. If the Tribunal is presented with a contention, supported by evidence, that leave or transfer is a necessary, desirable or available part of medical treatment, it must consider that issue in performing its duties under sections 72 and 73. But the appellants had advanced only a case for an extra-statutory recommendation. The treatment issue was a new factual case, and the Tribunal was not obliged to formulate it for itself.

5. In C’s case, the Tribunal found that treatment was appropriate and that community leave was being pursued by the responsible clinician. In F’s case, it expressly found that appropriate treatment was available and being provided. Those findings were not challenged. There was therefore no error in the Tribunal’s reluctance to make an extra-statutory recommendation or, in the reformulated argument, to rule on appropriate treatment.

6. Beatson LJ added that, if appropriate medical treatment were unavailable as a result of the amendments introduced by the Mental Health Act 2007, the Tribunal would have to direct discharge. That hypothetical situation did not arise in these appeals. The Mental Health Act Code of Practice did not alter the statutory position.

• Court of Appeal (Civil Division): dismissed both linked appeals on 8 May 2013.
• Upper Tribunal (Administrative Appeals Chamber): Judge Rowland dismissed both appeals and the alternative judicial-review applications on 29 May 2012.
• First-tier Tribunal: determined the appellants’ cases, declining to make the requested extra-statutory recommendations and finding that appropriate medical treatment was available.