What should the tribunal take into account when considering the "appropriate treatment" test?

The Upper Tier Tribunal (UTT) recently considered an appeal made on behalf of the patient following a hearing before a Welsh panel. The UTT found that the original panel had made an error in law when coming to their decision. The decision was set aside and remitted back for a fresh panel to consider the case.

Case summary

The original tribunal had found that the "appropriate treatment"’ test had been made out by the Responsible Authority (RA), in respect of a patient who had been an in-patient since December 2007. This followed evidence from the Responsible Clinician (RC) that the patient “had not benefited from psychiatric treatment … various treatments had been tried but the patient had not improved. The RC stated that the patient did not wish to have further treatment and that the hospital had no treatment to offer him. The RC recommended transfer to another hospital as soon as possible …”

The clinical team were clear that the patient could not be managed within the community. However, they felt that he should move to another placement, as no appropriate treatment was available for him and the ward environment was now unsuitable. The patient sought a move to another placement or ideally discharge from detention. However, following the evidence, the tribunal refused to discharge the patient, stating that the criteria had been met and, specifically, that the "appropriate treatment" test was satisfied, on the basis that treatment was available to the patient at another unit.

The matter was appealed on the basis that the tribunal had erred in law in three areas:

  • concluding that appropriate treatment was available at another unit
  • making findings not supported by evidence
  • providing inadequate reasons for their decision

The UTT found that the tribunal had “erred in law by finding that the appropriate treatment test was satisfied by treatment at a hospital other than the one in which the patient was detained".

Practice directions

Although the Practice Directions (PDs) issued by the Senior President of Tribunals on 28 October 2013 do not apply to the Welsh tribunal, the judge highlighted the use of such directions to enable the tribunal to have reports before them, in particular a nursing report, so that they can fully consider the matter. They commented that, in addition, adherence to the directions, will ensure that other reports address clear areas, in particular the statutory criteria. The judge noted that the directions “contains valuable instruction on the content of reports”.

What to take away

This case highlights the importance to comply with the PDs and focus your mind on the criteria in relation to the current placement as well as future planning, and why as the RA you believe the patient should still remain subject to the Mental Health Act 1983 and substantiate this with reasons and evidence. While a transfer maybe being considered, the tribunal’s role is to consider (1) how the patient presents to them on the day and (2) what treatment is available at the current hospital that necessitates continued detention. 

If you would like advice or training on the completion of tribunal reports, please do not hesitate to contact us.

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