Mental health law briefing 157 – The affect on a pending manager’s appeal if the patient is placed on supervised community treatment

What happens when a patient’s detention is renewed but the patient is then placed on a Community Treatment Order (CTO) before the hospital managers can hold their review hearing?

The Code of Practice states that managers must undertake a review when a patient’s detention is renewed, and this therefore appears to be a mandatory requirement.

However, it might be thought to be pointless for the managers to review the patient’s detention at a point when he is no longer detained in hospital! However, to cancel the review is probably not the correct approach. The managers should probably still undertake their review. Whilst at that point they obviously cannot consider the patient’s detention (as he is no longer detained), in those circumstances the managers should consider whether he should remain on the CTO and the hearing will be a review of that.

This approach reflects the decision in AA v Cheshire & Wirral Partnership NHS Foundation Trust. In that case, the patient’s nearest relative had applied to discharge him from detention. The patient was placed on a CTO before the tribunal hearing and the tribunal therefore refused to proceed with the application. The Upper Tribunal ruled that that was incorrect and that although the patient was no longer detained, the application to discharge should in effect be “converted” to an application to discharge the patient from the CTO to which he was now subject.

Although the Wirral case was a tribunal case, the same approach should apply to hospital managers.

One alternative which might be considered would be to issue an instruction that patients may not be placed on supervised community treatment until they have had the hospital managers’ hearing following any renewal of their detention. However, that might be said to fetter the power of discharge and as that could mean that some patients remain detained for longer than they should have been, may be unlawful.

Andrew Parsons
andrew.parsons@rlb-law.com
© RadcliffesLeBrasseur
August 2010


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.