The Upper Tribunal | UT Case Number: UA-2025-001033-HM |
Summary: Mental health (80)
Reasons for not discharging patient inadequate.
Before
UPPER TRIBUNAL JUDGE JACOBS
Between
MK | Appellant |
v | |
Nottinghamshire Healthcare NHS Foundation Trust | First Respondent |
Secretary of State for Justice | Second Respondent |
Rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) provides: ‘Unless the Upper Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.’ By way of exception, the UPPER TRIBUNAL DIRECTS that this decision and the reasons for it may be made public. |
Decided on 29 October 2025 without a hearing.
Representatives
MK: Deborah Robinson of Donovan Newton Solicitors.
Respondents: Did not take part.
Decision of Upper Tribunal
On appeal from the First-tier Tribunal (Health, Education and Social Care Chamber)
Reference: MM/2025/00815
Decision date: 7 April 2025
Hearing: Highbury Hospital
As the decision of the First-tier Tribunal involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.
Reasons for Decision
Procedural history
MK was detained under section 37 of the Mental Health Act 1983 and was subject to a restriction order under section 47. He had been conditionally discharged on 2 September 2024, but was recalled by warrant under section 42(3) on 3 January 2025. His case was referred to the First-tier Tribunal on 8 January 2025 under section 75(1)(a). It came on for hearing on 7 April 2025, when the tribunal decided not to discharge him. I gave MK permission to appeal to the Upper Tribunal on 31 July 2025.
I allowed both the Trust and the Secretary of State a chance to make submissions on the appeal. Neither did so. In the circumstances, I do not need to hear further from MK’s representative. She has said she does not want an oral hearing.
The grant of permission to appeal
The circumstances of the case appear what I said when giving permission:
The position of the clinical team was that MK was not receiving any medical treatment beyond the ‘standard inpatient nursing care which was available as the default position for all patients.’ The tribunal did not accept that. It found that the standard nursing care amounted to medical treatment under section 145 of the Mental Health Act 1983. The difficulty I have with that is this. MK was benefiting from the care he was receiving. However, the view of the clinical team was that MK had capacity to make unwise decisions about how he spent his life. He might benefit from support to understand the wisdom of behaving differently and coping with the consequences of not doing so, but that was not the same as requiring treatment for his mental disorder. I consider that the tribunal did not explain adequately how it dealt with the evidence and opinion.
The tribunal was entitled to differ from the evidence and opinions of the clinical team, but it had to explain why. The tribunal knew the correct issue, because it set it out at the start of paragraph 10 of its written reasons. My concern is that either it lost sight of that or its reasoning drifted away from it. As my only knowledge of the tribunal’s approach is in its written reasons, I prefer to state my grant of permission in terms of the tribunal’s reasons being inadequate to justify its decision.
Conclusion
It may help the First-tier Tribunal to understand the mistake it made and what to avoid at the rehearing if I spell out in a little more detail what I said in my grant of permission. The tribunal found that MK was benefiting from the care provided by the clinical team on the ward. But he was only receiving that care because he was detained. The view of the clinical team was that he did not need to be detained in order to receive it. He might experience some deterioration in his health if discharged, but he had the capacity to make unwise decision about how he lived his life. That was not a feature of his mental disorder.
I set aside the tribunal’s decision for the reasons I gave when giving permission, supplemented by what I have just said. There will now be a rehearing of the referral to the First-tier Tribunal, which it will decide on the evidence and in the circumstances obtaining at the date of the hearing.
Authorised for issue | Edward Jacobs |