More Positive Duties for the Mental Health Tribunal?

Mr Justice Charles sitting as the Chamber President of the Upper Tribunal, Administrative Appeals Chamber, has delivered an important decision that may have significant implications for mental health tribunals (either as the First Tier Tribunal in England, or the Mental Health Review Tribunal for Wales (MHRT) as in this case). The appellant patient claimed that the conditions of his community treatment order (CTO) amounted to a deprivation of his liberty, engaging and breaching his Article 5 rights. He argued that the MHRT ought to take action, and should discharge him from his CTO. The MHRT decided he was not deprived of his liberty and upheld his CTO. On appeal, the Upper Tribunal has decided that the MHRT made an error in law. In particular, the tribunal has a positive obligation to consider possible breaches of human rights, particularly under Articles 5 or 8 and possibly others, and must take action to ensure that the breaches are rectified. The scope of the tribunal’s role therefore appears to be widened from the simple determination of whether the criteria under s 72 Mental Health Act 1983 are satisfied. This runs contrary to recent Upper Tribunal decisions. His Lordship granted permission to the Respondents to appeal.

Simon Burrows acted for the Local Health Board, instructed by NHS Wales.

PJ v (1) A Local Health Board, (2) The Welsh Ministers and (3) The Department of Health [2015] UKUT 0480 (AAC)

A blog will follow shortly on a number of recent decisions, including this one, that are shaping mental health law and the tribunal jurisdiction

Appeal decision:  pj_v_a_lhb.pdf