Can a FTT(MH) discharge a patient from a high secure hospital to a medium secure unit for treatment? I’d understood they could only determine if treatment in hospital was still necessary.
I’ve been told there’s case law on this but haven’t been able to find it yet.
Any pointers?
Hi Julian,
Wouldn’t this be a recommendation for transfer under s. 72(3)?
That must be it
Although if as it appears may be the case your client is under part 3, then it’s a non stat recommendation, which are nowadays quite difficult to get…
I would suggest having a look at
EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701
That deals with extra-stat recommendations
Generally, where a patient doesn’t require high security any more, the FTT can recommend informally that the patient should be transferred to lower levels of security (normally MSU)
There is some more information about recommendations on the Recommendations page.
I’m not going to pretend to have read all the documents, but the recent White Paper on MHA reform, SSHSC, LC and SSJ, ‘Reforming the Mental Health Act’ (CP 355, 2021, consultation from 13/1/21 to 21/4/21), said this:
Giving the tribunal more power to grant leave, transfers and community services
Where the continuation of a patient’s detention is justified, we want to give the tribunal the power to determine if the current setting represents the least restrictive option or if other options are available that better support the recovery of the patient and their path to discharge.
We will extend the role of the tribunal, when considering applications for discharge, to give it the power to grant leave, transfer patients, for example to a less secure hospital, and to direct services in the community.
Under section 72 of the act, the tribunal can already make recommendations relating to a patient’s leave or transfer, but such recommendations are not binding. We intend to legislate so that the tribunal is able to grant leave and transfer, and direct services in the community. We propose that there should be an obligation in legislation on health and local authorities to take all reasonable steps to follow the tribunal’s decision. If the authority is not able to give effect to the tribunals’ decision, it must provide an explanation to the tribunal, setting out the steps it took and why it was not possible to follow the decision. This approach will align the tribunal with that of the Special Educational Needs and Disability Tribunal (the SEND tribunal).
These powers would only apply for patients who are not subject to restriction orders (unrestricted patients) and would only be considered as part of an appeal for discharge. Patients will not be able to appeal directly to the tribunal to be granted leave or transfer.
We acknowledge that there are practical implications to implementing this recommendation. For example, if the tribunal grants the transfer of a patient to a hospital in a different location or with a lower level of security, bed availability may mean it is not possible to give effect to the transfer immediately. We therefore propose that healthcare bodies and local authorities should be given a period of five weeks to take reasonable steps to deliver the tribunal’s direction and to respond to the tribunal if they are unable to give effect to the direction.
The government’s response, SSHSC, LC and SSJ, ‘Reforming the Mental Health Act: Government response to consultation’ (CP 501, July 2021), has a chapter on “Giving the Tribunal powers to make directions”, which includes summaries of “points raised from those who commented” under the headings “Proposed timeframes”, “Enforcement and accountability of directions”, “Concerns about patient safety” and “Consideration of available community services, resources, funding and training”. Under the heading “Next steps”, the conclusion is:
The balance of responses was in favour of the proposal. However, contributions highlighted a number of issues which we will need to work through. These include reviewing our position on the proposed time requirement for health and local authorities to deliver on directions made by the MHT, considering further the relationship between a Tribunal direction and independent clinical decision making, and how obligations and duties should be discharged and monitored. We will continue to consider matters with stakeholders. The most important aspect of these considerations must be that all agencies, including the Tribunal, work together to ensure that patients get plans for care and discharge which work for them.