I recently represented a client who is detained under S37/41.
At the tribunal we requested a deferred conditional discharge as no accommodation available at present, this was supported by the detaining authority.
The clinical team were not relying on either nature or degree. This is his 2nd admission and the first was for a drug induced psychosis which needed no treatment. The clinical team advised that they do not know the nature as per CM V Derbyshire and the practising directions about chronicity etc.
Client has been symptom free for over 5 years so degree not made out. Tribunal was satisfied with this.
The RC was different from the one during the last tribunal. I did not represent at that time.
The panel used the last tribunals decision to state that on the balance of probabilities they find nature is made out.
I cannot find any relevant case law in regards to this so hoping someone is able to point me in the right direction before I request permission to appeal.
I’ll give you my personal view but it might well be wrong.
If the previous MHT decision was before the Tribunal, I do not think there is necessarily any procedural or legal difficulty in the panel taking it into account. The Tribunal exercises an inquisitorial jurisdiction, so it is perfectly entitled to reach a conclusion different from that advanced by the current MDT, especially where it is relying on earlier findings of fact made by a specialist Mental Health Tribunal.
On the facts as you’ve set out, I don’t immediately see a clear error of law. The more promising ground might be in the adequacy of reasons, specifically the Tribunal’s explanation for rejecting the current MDT’s evidence.
If the decision effectively states “the previous MHT found X, therefore we find X”, that risks fettering the Tribunal’s own decision-making and may be amenable to challenge. The Tribunal is not bound by previous findings and must make its own assessment of the statutory criteria on the evidence before it.
However, if the panel undertook a weighing exercise, considering the earlier Tribunal’s findings alongside the current MDT’s evidence, and explaining why it preferred the former, that would likely amount to adequate reasoning and would be difficult to appeal.
This is quite a timely post as today I received a previous tribunal decision from the MHT where the tribunal took place in a previous period of detention. I don’t think it is appropriate for the tribunal to be given a decision where the client has not been continuously subject to detention. Any views?