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Mental health law briefing 164 – Discharge or CTO?

The recent case of MP v Mersey Care NHS Trust [1] held that, where a Tribunal panel finds that a patient does not meet the statutory criteria for detention, there is a positive duty to discharge the patient. It is not appropriate to place the patient on a Community Treatment Order (CTO) or recommend a CTO in such circumstances.

The facts

The patient, MP, was transferred from prison to a psychiatric hospital under s.47 of the Mental Health Act 1983 (MHA). MP applied for discharge and the Firsttier Tribunal heard his appeal on 19 February 2010. After considering various written reports, the Tribunal decided that, “The patient shall be discharged from liability to be detained”. The reasons for this were that:

  1. The Tribunal was not satisfied that the patient was suffering from a mental disorder of a nature or degree which made it appropriate for the patient to be liable to be detained in hospital for medical treatment, and
  2. The Tribunal was not satisfied that it was necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment.

The patient’s continued detention in hospital was not therefore justified and the Tribunal directed the patient’s discharge. It directed that the patient’s discharge should be deferred until 6 April 2010, as a period of 6 weeks was required in order to implement a suitable after care plan.

However, the Tribunal then went on to invite MP’s care team to consider whether to implement a CTO for the patient. In response to this, the patient was made subject to a supervised community treatment order on 31 March 2010, 6 days before his planned discharge date.

What was unusual about this course of action?

Section 17C(c) of the MHA states that a CTO shall remain in force until the application for admission for treatment in respect of the patient ceases to have effect. Therefore, if a patient is discharged, a CTO ceases to have effect. Accordingly, it was odd for the Tribunal to suggest that a CTO should be made in respect of the patient because they had at the same time ordered his discharge to take effect 6 weeks later. Any CTO would therefore have expired on the day of the patient’s discharge.

Was the decision reviewed?

The detaining hospital made an application to have the Tribunal’s decision set aside (i.e. the decision to order the patient’s deferred discharge). Initially, it was decided that there had been a “clear error of law”. By discharging the patient from liability to be detained, the Tribunal frustrated their intention that a CTO be implemented. Therefore, the decision dated 19 February 2010 was set aside.

However, the patient went on to appeal this decision. In his appeal application, MP argued that, as he did not meet the statutory criteria for continued detention, it could not have been the Tribunal’s intention to make him the subject of a CTO.

However, the detaining hospital argued that the Tribunal had made a clear error of law in its decision to discharge the patient. The Tribunal was obviously concerned about MP’s compliance with his aftercare package and intended that a CTO should be actively considered.

The Upper Tribunal considered the appeal and found in favour of the patient. The Upper Tribunal held that Section 72(1)(b) of the Mental Health Act sets out the circumstances in which a Tribunal should direct a patient’s discharge. Section 72(1)(b) reads as follows:

(b) The Tribunal shall direct the discharge of a patient liable to be detained…if it is not satisfied –

  1. that he is suffering from a mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment; or
  2. that it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment…

On 19 February 2010, the Tribunal expressly stated that section 72(1)(b)(i) and section 72(1)(b)(ii) were not made out. Accordingly, the Tribunal was under a positive duty to direct the patient’s discharge, which they did, albeit deferred for a period of 6 weeks to enable after care arrangements to be put in place. The Tribunal’s decision to discharge the patient was therefore clear.

Although a Tribunal is given an express power under s.72 (3A) to recommend that a responsible clinician consider making a CTO, such a recommendation would only be relevant in a situation where a tribunal is not under a positive duty to discharge the patient. In this case, given the findings of the Tribunal in its decision dated 19 February 2010, the Tribunal was under a positive duty to direct the patient’s discharge and accordingly s.72(3A) was not relevant.

[1] (2001) UKUT 107 (ACC)


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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