SS v Cornwall Partnership NHS Foundation Trust (Mental Health)

A tribunal considering discharge under the Mental Health Act 1983 should adjourn to obtain aftercare information where discharge is a realistic prospect and the availability of suitable aftercare is centrally relevant to the statutory decision. The fact that earlier hearings have been adjourned, or that a patient may make a further application, does not justify proceeding without information necessary for a fair and properly informed decision. Avoiding delay must remain compatible with proper consideration of the issues. A failure to obtain such information may amount to procedural unfairness, depriving a detained patient of an effective challenge to detention.

SS was detained under section 3 of the Mental Health Act 1983. At the First-tier Tribunal hearing in January 2023, evidence indicated that he could be safely discharged if suitable accommodation and a robust package of care were available. The tribunal adjourned for further information about possible aftercare.

At the February 2023 hearing, a possible placement had been identified, but no assessment or firm discharge plan was available. The First-tier Tribunal refused a further adjournment, found the statutory criteria for detention satisfied and declined discharge. SS appealed, arguing that the tribunal should have obtained further aftercare information, that the refusal was procedurally unfair, and that the tribunal should not have deferred the issue to a future application.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material error of law and the case was remitted for rehearing by a differently constituted panel.
2. The central question was whether aftercare information was relevant to the tribunal’s decision. AM v West London Mental Health NHS Trust and Secretary of State for Justice [2012] UKUT 382 (AAC) established that an adjournment may be unnecessary where the patient is not ready for discharge and aftercare information cannot affect the outcome. That qualification did not apply here.
3. On the accepted evidence, SS was ready for discharge if a suitable package of care was available, and continued detention on the psychiatric intensive care unit was counter-therapeutic. The available aftercare was therefore centrally relevant and capable of affecting the application. There was also a reasonable prospect that a further adjournment would produce information enabling the tribunal to decide whether continued detention was necessary.
4. The approach in R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 supported adjournment where discharge depended on aftercare and there was uncertainty about putting the necessary arrangements in place. The overriding objective under the FtT Rules required avoidance of delay only so far as compatible with proper consideration of the issues, and required regard to the importance of the case and the parties’ resources.
5. The refusal was also procedurally unfair. SS depended on State authorities for information about the aftercare they were statutorily responsible for providing. Without that information he could not mount an effective challenge to his detention, contrary to the requirements of a fair hearing under Article 6(1) and effective review under Article 5(4) of the Convention. A possible future application could not cure unfairness in the present proceedings.
6. Even if the substantive conclusions were wrong, the First-tier Tribunal had failed adequately to explain why a further adjournment was not in the interests of justice. Further evidence and findings of fact were required, making remittal appropriate under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision and remitted the case for rehearing by a differently constituted panel.
• First-tier Tribunal (Health, Education and Social Care Chamber): on 28 February 2023 refused a further adjournment, found the statutory criteria for continued detention satisfied and declined discharge.