Gisagara, R (On the Application Of) v The Upper Tribunal (Administrative Appeals Chamber)

For patients detained under section 3 of the Mental Health Act 1983, the criteria governing discharge by a tribunal mirror the criteria for admission. A patient may remain liable to detention while on section 17 leave where, at the time of the tribunal’s decision, a community treatment order is not yet in force and detention remains necessary to secure treatment. The responsible clinician’s intention to discharge the patient once a community treatment order is available does not itself establish that the detention criteria are no longer satisfied. A judicial review challenge to an Upper Tribunal refusal of permission must satisfy the stringent requirements of CPR 5.7A(7), including an arguable error of law by both tribunals and an important point of principle or other compelling reason.

The claimant, detained under section 3 of the Mental Health Act 1983, challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision concerning the revocation of community treatment orders. At the relevant hearing he was on section 17 leave, but his responsible clinician considered that a community treatment order was an essential precondition to discharge because he would otherwise refuse medication. The First-tier Tribunal concluded that he remained liable to detention until the order was made. The Upper Tribunal refused permission to appeal. The judicial review claim concerned whether the tribunals had misunderstood the relationship between the admission and discharge criteria, and whether section 17 leave altered the analysis.

1. Permission refused. The claim did not satisfy CPR 5.7A(7). There was no arguable case that either the Upper Tribunal’s refusal of permission or the First-tier Tribunal’s decision was wrong in law, and the proposed important point of principle had ceased to arise.
2. The Court of Appeal has repeatedly held that the criteria for discharge under sections 72 and 73 of the Mental Health Act 1983 mirror the criteria for admission under section 3. The approach in R (H) v North & East London Mental Health Review Tribunal [2002] QB 1, R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2002] QB 235 and B v Secretary of State for Justice [2012] 1 WLR 2043 established that the approach in Reid v Secretary of State for Scotland [1999] 2 AC 512 applies to the English legislation. The submission that tribunals remained bound by R (Canons Park Mental Health Review Tribunal ex p A [1995] QB 60 was therefore untenable.
3. The relevant question had to be assessed by reference to the actual circumstances when the First-tier Tribunal made its decision. Although the claimant was on section 17 leave, no community treatment order was then in force. The evidence showed that he would not accept medication without the legal framework of such an order, and that the order was necessary before discharge. He therefore still needed to be liable to detention, even though he did not need to remain physically detained in hospital while on leave.
4. The proposed argument based on R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 did not establish an arguable error. The responsible clinician’s intention to discharge the claimant once a community treatment order was available did not mean that the section 3 criteria were already unsatisfied. That interpretation would prevent a community treatment order from being made and produce an unworkable result inconsistent with section 72(3A).
5. Any error in the First-tier Tribunal’s formulation at paragraph 18 was immaterial. The Upper Tribunal was entitled to conclude that it made no difference to the outcome.

• High Court (Administrative Court): Permission for judicial review of the Upper Tribunal’s refusal of permission was refused.
• Upper Tribunal (Administrative Appeals Chamber): On 4 February 2020, permission to appeal from the First-tier Tribunal was refused.
• First-tier Tribunal: On 25 July 2019, the tribunal concluded that the claimant remained liable to detention pending the making of a community treatment order.