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Neutral Citation Number:	2009 UKUT 195 AAC
Reported Number:
File Number:	M 827 2009
Appellant:	AA
Respondent:	Cheshire and Wirral Partnership NHS Foundation Trust
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	01/10/2009
Date Added:	13/10/2009
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Mental health
Secondary Subcategory:	All
Notes:	Reported as [2011] AACR 37 Tribunal procedure and practice – tribunal jurisdiction in mental health cases – whether application lapses when community treatment order made Tribunal procedure and practice – fair hearing – role of representative appointed by tribunal – review by tribunal judge of his/her own decision The appellant was the mother of the second respondent patient, who was detained in a hospital managed by the first respondent NHS foundation trust. The appellant was displaced as the second respondent’s nearest relative by an order of the county court made under section 29 of the Mental Health Act 1983. The second respondent was then detained in hospital under section 3 of the Act in 2005 and remained detained for successive periods thereafter without making any application for a direction that he be discharged. In 2008 the appellant applied to a mental health review tribunal for a direction that the second respondent be discharged. While the application was pending the second respondent was made the subject of a community treatment order. A Regional Tribunal Judge of the First-tier Tribunal decided that the application before the tribunal had lapsed when the community treatment order was made and he subsequently refused to review his decision and refused permission to appeal, relying on R (SR) v Mental Health Review Tribunal [2005] EWHC 2923 (Admin). The appellant was granted permission to appeal by the Upper Tribunal. The Upper Tribunal declined to appoint the Official Solicitor as a litigation friend to act on behalf of the second respondent but instead appointed solicitors under rule 11(7)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The appeal was supported by the Secretary of State for Health, who was joined as the third respondent. The second respondent’s solicitors submitted that it might still be necessary, in order to ensure a fair hearing, for the Official Solicitor or some other person to be appointed as a litigation friend in the proceedings with a view to instructions being given to them to advance arguments in support of the appeal, although the second respondent himself did not seek to be discharged. They requested a hearing at which to argue the point. The other parties did not seek a hearing. The appellant further submitted that it was unlawful for a judge of the First-tier Tribunal to consider an application for permission to appeal from, or a review of, his or her own decision. Held, refusing the second respondent’s request for a hearing and allowing the appeal, that: 1. the Upper Tribunal had no statutory power to appoint a person to represent a patient’s interests other than the power contained in rule 11(7) and the powers and duties conferred on the Official Solicitor through legislation and through directions made by the Lord Chancellor were expressed in terms of proceedings in the courts rather than in tribunals; moreover, at least in this case, justice did not require anyone to be appointed in a role equivalent to that of a litigation friend (paragraph 12); 2. there was a clear conflict of interest involved in a solicitor who felt constrained by valid instructions from a client not to argue a point then seeking instructions from another client to argue the same point, whether or not the second client had the role of litigation friend of the first client (paragraph 22); 3. in any event, argument from lawyers instructed by a litigation friend was not the only way of ensuring that a patient’s best interests were protected and in this case the argument identified by the lawyers for the second respondent was already being advanced by experienced and competent counsel for the appellant and the third respondent (paragraphs 23 and 25); 4. there could not be anything unfair in an initial application for permission to appeal being made to the judge who made the decision being challenged when there was an automatic right to renew the application to a superior court or tribunal and it was not unfair for a review of a decision to be carried out by the person who made the original decision when that review was merely part of the process for dealing with an application for permission to appeal (paragraph 27); 5. section 72(1) of the Mental Health Act 1983 was to be read literally and, distinguishing R (SR) v Mental Health Review Tribunal, a tribunal had the power, or, if the conditions of section 72(1)(c) were satisfied, a duty, to direct that a person subject to a community treatment order be discharged notwithstanding that that person had made the application to the tribunal while liable to be detained under section 2 or 3 of the 1983 Act and, therefore, an application to the First-tier Tribunal made by or on behalf of a person detained under section 2 or 3 did not lapse when a community treatment order was made and accordingly the decision of the First-tier Tribunal was erroneous in point of law (paragraphs 43 to 61). The Upper Tribunal set aside the decision of the First-tier Tribunal and remitted the case for consideration of the question whether the second respondent should be discharged. Editor’s note: In KF v Birmingham and Solihull Mental Health Foundation Trust [2010] UKUT 185 (AAC); [2011] AACR 3, a three-judge panel of the Upper Tribunal has held that this decision was correctly decided on the question of the construction of section 72(1) of the Mental Health Act 1983.
Decision(s) to Download:	[2011] AACR 37.doc