WM v Bradford District Care NHS Foundation Trust

Under section 72(3) of the Mental Health Act 1983, a tribunal may recommend a particular form of leave to facilitate a patient’s future discharge even where the responsible clinician has already authorised another form of leave under section 17.

The statutory discretion is not limited to granting leave for the first time. Different forms of leave may serve different purposes, including testing readiness for discharge. A contrary interpretation would restrict the statutory purpose and produce an impracticable result.

The appellant was detained under the Mental Health Act 1983 and applied to the First-tier Tribunal for a statutory recommendation of unescorted leave under section 72(3). He already had some escorted leave authorised by the responsible clinician under section 17.

The First-tier Tribunal concluded that it had no power or jurisdiction to recommend leave because leave had already been authorised. Permission to appeal was granted. The Upper Tribunal considered whether that interpretation of section 72(3) was correct and, if an error of law was found, whether any practical remedy remained after the patient’s detention under the relevant section had ended.

1. Admission of the appeal. The notice of appeal was five months and five days late. Applying rule 5(3)(a) and the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, it was fair and just to extend time. The delay resulted from difficulties obtaining legal aid information, a Legal Aid Agency data breach and the availability of specialist counsel. The appeal was admitted.
2. Construction of section 72(3). The section gives the tribunal a discretion, exercisable with a view to facilitating discharge on a future date, to recommend leave of absence or another specified step. The purpose of the discretion is to identify the best way forward for the patient. It may be used as a trigger for future action.
3. The existence of section 17 leave does not remove that power. Escorted and unescorted leave are materially different. Unescorted leave may test whether a patient can manage without restrictions and thereby facilitate discharge. Section 72(3) contains no words limiting the discretion where some leave has already been authorised. Such a limitation would imply words absent from the provision and would make it impracticable to recommend different forms of leave at different stages of treatment.
4. The First-tier Tribunal therefore erred in law by concluding that it had no power or jurisdiction to make the recommendation. It had not decided whether the discretion should be exercised on the evidence.
5. Under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal could set aside and remit or remake the decision. It did neither because the patient was no longer detained under the relevant section and there was no practical purpose in further proceedings.

• Upper Tribunal (Administrative Appeals Chamber) [2025] UKUT 396 (AAC): appeal admitted; error of law found in the First-tier Tribunal’s interpretation of section 72(3), but its decision was neither set aside nor remitted.
• First-tier Tribunal (HESC) (Mental Health), decision dated 31 August 2024: refused to make a statutory recommendation for leave under section 72(3), holding that it lacked power to recommend leave because section 17 leave had already been authorised.