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Neutral Citation Number: 2013 UKUT 500 AAC
Reported Number:
File Number: HM 1240 2013
Appellant: DH-L
Respondent: Partnerships in Care and Secrerary of State for Justice
Judge/Commissioner: Judge E. Jacobs
Date Of Decision: 04/10/2013
Date Added: 18/10/2013
Main Category: Mental health
Main Subcategory: All
Secondary Category:
Secondary Subcategory:
Notes: Reported as [2014] AACR 16 Mental health – detention under the Mental Health Act – patient with personality disorder – relevance of refusal to engage in treatment The appellant had a history of criminal convictions. In 2006, following a conviction for arson and burglary, he was made the subject of hospital and restriction orders under the Mental Health Act 1983. In 2012 he was conditionally discharged but recalled after five weeks by the Secretary of State. On 20 July 2012 the appellant’s case was referred to the First-tier Tribunal (F-tT) pursuant to section 75(1)(a) of the Mental Health Act. During the hearing in November 2012 the appellant opposed the responsible clinician’s proposal that he be conditionally discharged on the grounds, among others, that he would not submit to treatment. The F-tT adjourned the hearing to obtain more information about the proposed aftercare. By the time the hearing resumed in January 2013 the appellant was exhibiting almost daily outbursts of anger and hostility towards both staff and fellow patients. The F-tT accepted that the appellant was suffering from Dissocial Personality Disorder and decided that its nature and degree justified the appellant’s detention for treatment to protect both him and others. The issue before the Upper Tribunal (UT) was the relevance in law of a patient’s refusal to engage with therapy, especially for a patient with a personality disorder. Held, allowing the appeal, that: 1. section 72(1)(b)(iia) of the Mental Health Act 2007 provides for a patient’s detention as long as the following three requirements are met: there must be (i) medical treatment that is both (ii) available and (iii) appropriate. Appropriateness must be determined by an individual assessment of the patient, taking account of all the circumstances of their case. Refusal by the patient to engage with the treatment was not decisive but was one of the circumstances which a tribunal must take into account, although a patient may still satisfy the conditions for detention despite refusing to engage (paragraphs 22 to 26); 2. the guidance contained in DL-H v Devonshire Partnership NHS Trust and the Secretary of State for Justice [2010] UKUT 102 (AAC) on how tribunals should approach the question of whether treatment was “available” and “appropriate” and the boundary between containment and treatment was considered and endorsed (paragraphs 36 to 43); 3. the F-tT’s reasons for detaining the appellant were inadequate because it had failed to ask itself whether the deterioration in his condition following his recall had been a response to his detention not a manifestation of his mental disorder. That was relevant in two ways: (1) to the question of whether the nature or degree of his disorder made detention for treatment appropriate under section 72(1)(b)(i) and (2) whether the available treatment was appropriate under section 72(1)(b)(iia). The tribunal’s decision was wrong in law for not showing in its reasons how it dealt with those possibilities (paragraphs 45 to 46). The decision was set aside and the case remitted to the First-tier Tribunal for rehearing by a differently constituted panel.
Decision(s) to Download: [2014] AACR 16bv.doc [2014] AACR 16bv.doc