Refusal of tribunal to adjourn for aftercare evidence was “kicking the can down the road”, Upper Tribunal finds

The Upper Tribunal has allowed an appeal on all three grounds against a decision by the First Tier Tribunal to refuse an application for an adjournment to obtain evidence regarding aftercare.

In SS v Cornwall Partnership NHS Foundation Trust (Mental Health) [2023] UKUT 258 Upper Tribunal Judge Church was satisfied the First-tier Tribunal “erred in law in a way which was material”, and that its decision not to adjourn was “procedurally unfair” because it deprived the appellant of the opportunity to mount an effective challenge to his detention.

The appeal concerned when a tribunal must adjourn to seek information on aftercare that would be available to a patient should the tribunal exercise its power of discharge.

Outlining the background to the case, the judge noted that SS is a patient with a diagnosis of paranoid schizophrenia with a mood component. On 7 June 2022 he was detained under section 3 of the Mental Health Act 1983.

SS was at the time of the decision under appeal, detained on a Psychiatric Intensive Care Unit (a “PICU”) at a hospital.

On 13 October 2022, SS made an application under the MHA for his section to be reviewed by the First-tier Tribunal.

On 10 January 2023, the First-tier Tribunal convened at the hospital (the “January Hearing”). The panel heard oral evidence about whether an adjournment was needed. The panel noted: “On the written evidence of the professionals, the patient has been well enough for discharge from hospital for some time if a discharge pathway and accommodation could be agreed.”

The Upper Tribunal judge noted: “Aftercare was, therefore, the key factor. It was not in dispute that SS, as a section 3 patient, was entitled to aftercare, or that aftercare was required as a necessary precondition to discharge. Without it, detention was necessary.

“With it, it was strongly arguable that detention was not required, and the responsible clinician himself argued that it would not be.”

The panel also heard from SS’s care co-ordinator who, “despite making considerable efforts”, had not yet identified any appropriate accommodation to which SS could be discharged, said the judge.

The panel decided that it was necessary to adjourn for more information as to the type of accommodation, its whereabouts and the resources available at any possible discharge accommodation.

A further hearing of the application took place in February 2023, before a different panel of the First-tier Tribunal.

Judge Church said: “Since the January Hearing there had been some significant progress in terms of discharge planning: a potentially suitable placement had been identified, which SS had visited, and the operator of the placement had indicated that they were willing to assess SS’s suitability for a placement.

“However, no assessment had yet taken place, so there remained some uncertainty as to what would be available to SS should he be discharged from hospital”.

The panel refused the application for an adjournment, and it determined the application, finding that the statutory criteria to continued liability to detention were met and declining to exercise its discretion in favour of discharge.

The FtT Decision was the subject of the present appeal.

Upper Tribunal Judge Church gave permission to appeal on the following grounds:

1. Given that the availability of suitable aftercare was centrally relevant to the First-tier Tribunal’s performance of its statutory duty (and not “incapable of affecting the outcome” c.f. AM v West London), the First-tier Tribunal erred in law by determining the application instead of adjourning to seek further information about the aftercare that would be available to SS;
2. The First-tier Tribunal’s refusal to adjourn unfairly and unjustly deprived the patient of evidence he needed to support his application for discharge; and
3. The First-tier Tribunal erred by deferring assessment of the issues surrounding aftercare to the determination of a theoretical future application rather than dealing with them itself.

He said: “I was persuaded by Mr Pezzani’s submissions on SS’s behalf that it was arguable with a realistic prospect of success that the First-tier Tribunal had erred materially in law”.

A remote video hearing of the appeal was held on 12 October 2023.

Since the FtT decision was made, the judge noted that SS was back on the same PICU ward after being transferred between various hospital wards and no “firm discharge plan” had yet been made.

Turning to ground 1, the judge noted that the “leading authority” on whether it is appropriate to adjourn a mental health case due to a lack of information about available aftercare is the decision of the Upper Tribunal in AM v West London.

In that case, Judge Jacobs decided that the tribunal had not been wrong to proceed to determine the application rather than to adjourn, because in the circumstances of that case the information about discharge was not relevant to the decision the tribunal had to make.

Upper Tribunal Judge Church said: “If it can be said that information about aftercare is not required because it wouldn’t make any difference to the decision the tribunal is charged with making, then it can also be said that an adjournment to seek such information would be inappropriate.

“In other words, it is not in the interests of justice to delay proceedings for the purpose of obtaining irrelevant evidence.”

However, given the evidence before the tribunal at the February hearing, he said: “this was clearly not such a case”.

He added: “Since it was accepted that SS was fit to be discharged if an appropriately robust package of care was available to him, what aftercare was actually available to him was centrally relevant, and eminently capable of affecting the outcome”.

The judge noted that by the date of the February Hearing, the matter had already been adjourned twice. “While the first adjournment was due to SS’s representative not being able to attend, the second adjournment was for the very same reasons that SS’s representative was arguing it should be adjourned again”, he added.

Concluding on ground 1, Judge Church said: “The fact that the proceedings had been adjourned before, and a further adjournment would introduce further delay, does not necessarily mean that it would not be in the interests of justice to adjourn again.

“Although in one sense little had changed since the January Hearing in that SS was still detained under section 3 on the PICU ward and no aftercare provision had been agreed, the previous adjournment had not been wholly unsuccessful in that a potential placement willing to assess SS had been identified. There was a reasonable prospect that a further adjournment might result in the information that would allow the tribunal to decide whether continued detention in hospital was necessary.”

On ground 2, the judge noted that when the detaining authority’s position is that the patient is ready to be discharged subject to provision of an appropriate package of care, the detained patient is placed in an “invidious position”, because the failure by the authority liable to provide him with that care to progress his discharge planning and to provide information about what is available, “prevents him from presenting his case for achieving his liberty effectively”.

He added: “Without such information, his application was bound to fail”.

Concluding on ground 2, Judge Church said: “Given the finding that SS required a robust package of aftercare, without the information on the aftercare that was available, which was something that only the State entity could provide, the tribunal could not (and did not) order his discharge.

“For these reasons I am satisfied that the decision not to adjourn was procedurally unfair because it deprived SS of the opportunity to mount an effective challenge to his detention.”

Turning to ground 3, that the FtT “erred by deferring assessment of the issues surrounding aftercare to the determination of a theoretical future application rather than dealing with them itself”, the judge noted that although there are periodic rights to apply to the tribunal, this does not mean that procedural unfairness in relation to one set of proceedings can be “remedied” by the possibility of initiating further proceedings in the future.

He said: “In any event, it cannot be known whether SS would exercise his right to make a further application to the tribunal, especially given that he now viewed the PICU ward as his home and the staff and patients his family.

“If he didn’t exercise such rights his detention would not be reviewed by a tribunal until such time as a section 68(6) Mental Health Act (MHA) reference would be made, which would be over three years away”.

Judge Church concluded on ground 3, “The tribunal’s determining of the application without information on aftercare amounted in practical terms to an abdication of its role, because without that evidence it couldn’t know whether ongoing detention represented the least restrictive option for SS’s care and so it couldn’t properly answer the questions posed by section 72 MHA.

“In refusing to adjourn it wasn’t avoiding further delay. Rather, it was kicking the can down the road for the next tribunal to deal with.”

The judge noted that it was accepted that SS didn’t need to be in hospital if an appropriate package of care were available to him in the community, and that “this had been the case for some time”.

He added: “The only reasons not to adjourn for aftercare information would be either because it is not relevant because the patient had not reached the stage at which discharge was a realistic prospect, or because there was no realistic prospect of such aftercare information being produced.

“Clearly neither of those situations was applicable in SS’s case.”

Judge Church concluded: “I am persuaded that, in the unusual circumstances of this case, information about aftercare was so central to the issue the tribunal had to decide that it was bound to exercise its discretion in favour of granting the adjournment sought, and its failure to do so amounted to a material error of law because it deprived SS of the information he needed to mount an effective challenge to his detention, and because without it the tribunal couldn’t properly answer the questions posed by section 72 MHA.”

He allowed the appeal on all three grounds.

Finally, he added: “Even if I am wrong on all of that, the tribunal failed adequately to explain why it was not in the interests of justice to adjourn again, which was itself a material error of law.”

Judge Church ordered for the First tier Tribunal decision to be set aside, and remitted the matter to the First-tier Tribunal for re-hearing before a different panel.

Lottie Winson