ML v Priory Healthcare Limited & Anor

When deciding whether the detention criteria are met, a tribunal must assess credible, less restrictive alternatives to hospital detention. This includes whether a care plan and lawful deprivation of liberty under the Mental Capacity Act 2005 could secure treatment and manage risk after discharge, even if the necessary authorisation has not yet been obtained.

Under section 72(1)(b)(ii) of the Mental Health Act 1983, the issue is the necessity of receiving medical treatment. Detention cannot be justified solely by a risk to the patient or others. Reasons are inadequate where they do not address a central, evidence-based case for a less restrictive alternative.

The appellant was a restricted patient detained in hospital under sections 47 and 49 of the Mental Health Act 1983. He applied to the First-tier Tribunal for a notification that he would be entitled to conditional discharge if he were subject to a restriction order.

Evidence before the First-tier Tribunal indicated that he lacked capacity to make material decisions about his care and medication. His case was that a 24-hour community care package, coupled with conditions of discharge and an authorisation under the Mental Capacity Act 2005, could secure medication compliance and manage risk without hospital detention.

The First-tier Tribunal found that medication could be enforced only in hospital and upheld the detention criteria. The central issue on appeal was whether it had failed to consider, or adequately explain its rejection of, the proposed alternative legal framework.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the case was remitted for a rehearing before a differently constituted tribunal.

2. The statutory question under section 72(1)(b)(ii) of the Mental Health Act 1983 is whether it is necessary for the patient to receive medical treatment for health or safety or for the protection of others. It is not a free-standing question whether detention is necessary because a patient presents risk. Any risk finding must be connected to the therapeutic need for detention and treatment.

3. The First-tier Tribunal’s conclusion that medication could be enforced only in hospital did not engage with the appellant’s central case. That case, supported by evidence, was that lack of capacity could permit a lawful care plan under the Mental Capacity Act 2005, with conditions of discharge, to secure medication and contain the risk of relapse.

4. Following MC v Cygnet Behavioural Health Ltd and Secretary of State for Justice (Mental Health) [2020] UKUT 230 (AAC), uncertainty about whether a prospective deprivation-of-liberty authorisation will be obtained does not remove the tribunal’s duty to consider that alternative. The two statutory regimes must, where appropriate, be coordinated. A tribunal may use an advance authorisation, concurrent exercise of jurisdictions, adjournment, a provisional decision, or deferred discharge to enable a lawful transition.

5. The proposed alternative was directly relevant to both parts of section 72(1)(b)(ii), because medication compliance was the foundation for the First-tier Tribunal’s conclusions about risk to the appellant and to others. The tribunal had to decide whether continued hospital detention remained the least restrictive option.

6. Alternatively, if the First-tier Tribunal had considered and rejected the alternative, its reasons were inadequate. It failed to explain its response to an important and apparently compelling case and the evidence supporting it. That failure independently constituted a material error of law.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for material error of law, and remitted the case for rehearing.
• First-tier Tribunal (Health, Education and Social Care Chamber): On 25 February 2022, found the statutory detention criteria satisfied and concluded that the appellant would not have been entitled to discharge if subject to a restriction order.