Error in law (wrong criteria)?

During a recent 37/41 hearing I had the nagging feeling that the Judge was not clear on the law with regard to deferring a conditional discharge.
The written decision not to grant a DCD is comprehensive, thorough and I thought watertight until right at the end when he says that they have decided not to use their discretionary powers to discharge and had also decided not to defer discharge.
This indicates to me that he had probably read s72 but not s73. Of course it is an error of law as they do not have discretionary powers in s37/41 but it has not materially affected the decision. I do feel however that he probably thought a deferred C/D would need to be to a fixed date but he doesn’t say that. Do you think I should appeal?

If you think the tribunal probably got the law wrong then definitely appeal, especially if the evidence suggests the decision might have gone the other way had the law been properly understood. Here’s a case where the Upper Tribunal found an error of law in similar circumstances: M v An NHS Trust [2017] MHLO 39 (UT). Reading the case it looks like the patient there had a flimsier case than yours.

Thank you Jonathan-excellent case suggestion which I may well refer to. I will appeal and will let you know how it goes.

Not aware you can defer a CD to a fixed date ?

No you can’t but I think that the Judge thought that he could.

I’ve just noticed that in MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC) Edward Jacobs decided on 16 July 2020 that

the patient (MC) is to be conditionally discharge at 14.00 on 10 August 2020.

I was trying to make sense of the fourth condition:

MC, her Responsible Clinician and the Secretary of State have permission to apply to the First-tier Tribunal for a variation of conditions 1-3 above in the event of a material change in circumstances.

Originally it seemed odd because the patient has to wait 12 months, the RC can never apply, and the SSJ doesn’t need to refer given his own power to vary conditions. But then I noticed the future date, which makes some sense of that fourth condition.

Anyway, it does lend credence to the idea that a judge could believe what you suspect yours might have believed!

So FTT have refused appeal saying that although MHT did make an error in law it has not materially affected the decision. I am thinking about appealing to the UT on the basis that the statutory criteria are fundamental and therefore it is not possible to know whether the error affected the decision. If the Judge had been aware that he could defer discharge until aftercare was in place (rather than to a fixed date) he might have approached the case differently.
It doesn’t give anyone confidence in the decision if the Judge fundamentally doesn’t understand the law -so I still think they should quash it.
Any views?

Was the patient arguing for conditional discharge and for it to be deferred?

If so, then the tribunal should have indicated in its reasons why it rejected those arguments - maybe the proposed conditions would not adequately address the risk, or it seemed impossible that the proposed arrangements could be made, or whatever. Instead, it sounds like the tribunal maybe gave reasons in relation to the s72 detention criteria (ignoring the potential post-discharge situation) and tacked on boilerplate “no deferral” and “no discretion” sentences to the end. So there are at least two errors (lack of reasons in relation to deferred conditional discharge, and the reference to discretionary discharge) both of which point to the tribunal having misdirected itself.

If there was any prospect at all of the patient being granted a deferred conditional discharge then definitely go to the Upper Tribunal.

The tribunal gave comprehensive reasons why discharge was not appropriate but never mentioned the words ‘conditional discharge’. As a decision rejecting an appeal against s3 it would be completely watertight so I suppose it is difficult to argue that they might have discharged had they been fully conversant with the criteria for restricted patients. I did mention that the patient would be subject to conditions on discharge but none were discussed. I probably should have raised the possibility that specific conditions would address remaining risks so that MHT would specifically address this.

Yes, if it looks like the tribunal would have continued detention no matter what its powers then you’re on a sticky wicket. Though, as you mentioned earlier, the tribunal might have approached the case differently.

If tribunal judges are informed of these review decisions then maybe you’ve done a service for others in future.