Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (held at Langdon Hospital on 18 March 2009 under reference MP/2008/04460) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal sitting in the Health, Education and Social Care Chamber.
DIRECTIONS:
The tribunal must undertake a complete reconsideration of the issues that are raised by the patient’s application in the circumstances obtaining at the time of the rehearing.
Save for the frontsheet (which identifies the parties by name), this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).
Reasons for Decision
A.	Introduction
1.	This case concerns the continued detention of a patient. He was convicted of arson in 2006 and made the subject of hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983. He applied for an absolute discharge in January 2008. After a series of adjournments, the hearing took place before the First-tier Tribunal on 18 March 2009. It decided that he should not be discharged. His applications for permission to appeal to the Upper Tribunal were refused by the First-tier Tribunal and then by me, in both cases on the papers. Walker J gave permission following an oral hearing, saying that the grounds of appeal were arguable. He then transferred the case to me for hearing. That hearing took place on 6 April 2010. The patient was represented by Martin Westgate QC, instructed by CVC Solicitors. The Trust was represented by Victoria Butler-Cole, of counsel, instructed by Bond Pearce LLP. She spoke to a skeleton argument prepared by Jenni Richards, of counsel. The Secretary of State took no part in the appeal. I am grateful to the advocates for their written and oral arguments.
B.	The scope of the appeal
2.	Ms Butler-Cole objected to some of the grounds in Mr Westgate’s skeleton argument. They did not form part of the application that was before Walker J. She argued that permission was necessary to raise them. Having made her objection to those grounds, she responded to them in case I agreed to consider them. 
3.	I reject the argument that an appeal is necessarily limited to the grounds in the application on which permission was given and that further permission is required to raise other grounds. The right of appeal is conferred by section 11 of the Tribunals, Courts and Enforcement Act 2007. It is discretionary and subject to the grant of permission. Permission is governed by the rules of procedure. The rules contain three provisions for restricting the scope of an appeal: (i) limited permission; (ii) the control of the issues on which the tribunal requires submissions; and (iii) the power to strike out a party’s case. The rules confer power on the First-tier Tribunal to give permission only on limited grounds: rule 47(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). The Upper Tribunal has equivalent power in respect of an appeal to the Court of Appeal on limited grounds: rule 45(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). There is no express power for the Upper Tribunal to give limited permission to appeal to itself. However, the rules envisage this possibility: rule 22(4)(b). This is, presumably, permissible without express authority and in the exercise of the tribunal’s discretion. The rules must be interpreted and applied to give effect to the overriding objective under rule 2. As a matter of interpretation, it would not be fair and just to restrict the scope of an appeal to the grounds in the application on which permission was given. The rules apply to the whole of the work of the Upper Tribunal, not just mental health. The Secretary of State for Work and Pensions is the respondent to the vast majority of appeals before the Administrative Appeals Chamber and takes a neutral and objective approach to appeals, often identifying issues favourable to a claimant. It would not be desirable to hinder that approach, as many appellants are either not represented at all or not professionally represented. Mental health cases are different in that the patient is usually professionally represented. But it is not possible, as a matter of interpretation, to draw a distinction on that ground. That is a matter, if it is relevant at all, for the application of the rules. My interpretation does not allow a party complete freedom to raise additional grounds at will. The Upper Tribunal has ample power to control the issues that will be considered on an appeal. As well as the possibility of giving limited permission, rule 15(1)(a) authorises the tribunal to give directions as to the issues on which it requires submissions. In an extreme case, the tribunal may even strike out all or part of a party’s case under rule 8(3). Those provisions should be sufficient to ensure that additional grounds are only considered if that would be fair and just. 
4.	Turning to the application of this approach to the circumstances of this case, I consider that it is fair and just to allow the appellant to raise his additional grounds. The ultimate issue is his liberty, which requires particular scrutiny. Mr Westgate’s arguments relate directly to that issue and to the factors on which a tribunal must be satisfied in order to justify the patient’s continued detention. I can see no prejudice to the respondents in allowing all aspects of the patient’s detention to be considered. Ms Butler-Cole certainly had no difficulty in responding to the new grounds. My discussion of the issues raised may also assist in future cases. Finally, it is relevant, but not perhaps very significant, that Walker J did not limit his permission to the grounds set out in the application, as he could have done. The rules envisage that this is possible. Rule 45(5) provides that, if the Upper Tribunal gives permission to appeal to the Court of Appeal on limited grounds, it must give reasons for ‘any’ grounds on which it refused permission. That envisages that there may not be any grounds on which permission was refused. In other words, the Upper Tribunal may give permission on all the grounds in an application but limit the permission to those grounds. Rule 47(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 makes equivalent provision in respect of permission to appeal to the Upper Tribunal. 
C.	The patient 
5.	The patient was born in 1966. He has 61 convictions for a variety of offences. The majority involve theft, fraud and offences against property. Some involve the use of force or the risk to life. He has two convictions for arson, including the index offence, which was committed in October 2005. The patient burgled a charity shop, taking jewellery and the shop’s safe. He then set fire to the premises in order, he says, to destroy his finger prints. 
6.	The patient has a history of alcohol and drug abuse. He has overdosed on heroin and cocaine while detained in hospital. There are also records of a series of incidents involving threats of violence before and during his detention. 
D.	The legislation
7.	The tribunal had to decide four issues under section 72(2) of the Mental Health Act:
‘72	Powers of tribunals
(1)	Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and-
…
(b)	the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied-
(i)	that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or 
(ii)	that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia)	that appropriate medical treatment is available for him; ...’
‘Mental disorder’ is defined by section 1(2) as ‘any disorder or disability of the mind’. ‘Medical treatment’ is defined in section 145:
‘145	Interpretation
(1)	In this Act, unless the context otherwise requires-
…
“medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below); … 
…
(4)	Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.’
E.	The Code of Practice
8.	The Secretary of State has issued a Code of Practice under section 118 of the Mental Health Act. This was not raised by the parties or mentioned by the First-tier Tribunal in its decision. However, it is always relevant. Chapter 6 applies to appropriate treatment:
‘CHAPTER 6 
The appropriate medical treatment test 
6.1	This chapter gives guidance on the application of the appropriate medical treatment test in the criteria for detention and supervised community treatment (SCT) under the Act. 
Purpose of medical treatment for mental disorder 
6.2	For the purposes of the Act, medical treatment also includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care. Habilitation means equipping someone with skills and abilities they have never had, whereas rehabilitation means helping them recover skills and abilities they have lost. 
6.3	In the Act, medical treatment for mental disorder means medical treatment which is for the purpose of alleviating, or preventing a worsening of, a mental disorder or one or more of its symptoms or manifestations. 
6.4	Purpose is not the same as likelihood. Medical treatment may be for the purpose of alleviating, or preventing a worsening of, a mental disorder even though it cannot be shown in advance that any particular effect is likely to be achieved. 
6.5	Symptoms and manifestations include the way a disorder is experienced by the individual concerned and the way in which the disorder manifests itself in the person’s thoughts, emotions, communication, behaviour and actions. But it should be remembered that not every thought or emotion, or every aspect of the behaviour, of a patient suffering from a mental disorder will be a manifestation of that disorder. 
6.6	Even if particular mental disorders are likely to persist or get worse despite treatment, there may well be a range of interventions which would represent appropriate medical treatment. It should never be assumed that any disorders, or any patients, are inherently or inevitably untreatable. Nor should it be assumed that likely difficulties in achieving long-term and sustainable change in a person’s underlying disorder make medical treatment to help manage their condition and the behaviours arising from it either inappropriate or unnecessary. 
Appropriate medical treatment test 
6.7	The purpose of the appropriate medical treatment test is to ensure that no-one is detained (or remains detained) for treatment, or is an SCT patient, unless they are actually to be offered medical treatment for their mental disorder. 
6.8	This medical treatment must be appropriate, taking into account the nature and degree of the person’s mental disorder and all their particular circumstances, including cultural, ethnic and religious considerations. By definition, it must be treatment which is for the purpose of alleviating or preventing a worsening of the patient’s mental disorder or its symptoms or manifestations. 
6.9	The appropriate medical treatment test requires a judgement about whether an appropriate package of treatment for mental disorder is available for the individual in question. Where the appropriate medical treatment test forms part of the criteria for detention, the medical treatment in question is treatment for mental disorder in the hospital in which the patient is to be detained. Where it is part of the criteria for SCT it refers to the treatment for mental disorder that the person will be offered while on SCT. 
Applying the appropriate medical treatment test 
6.10	The test requires a judgement about whether, when looked at in the round, appropriate medical treatment is available to the patient, given: 
•	the nature and degree of the patient’s mental disorder; and 
•	all the other circumstances of the patient’s case. 
In other words, both the clinical appropriateness of the treatment and its appropriateness more generally must be considered. 
6.11	The other circumstances of a patient’s case might include factors such as: 
•	the patient’s physical health – how this might impact on the effectiveness of the available medical treatment for the patient’s mental disorder and the impact that the treatment might have in return; 
•	any physical disabilities the patient has; 
•	the patient’s culture and ethnicity; 
•	the patient’s age; 
•	the patient’s gender, gender identity and sexual orientation;
•	the location of the available treatment; 
•	the implications of the treatment for the patient’s family and social relationships, including their role as a parent; 
•	its implications for the patient’s education or work; and 
•	the consequences for the patient, and other people, if the patient does not receive the treatment available. (For mentally disordered offenders about to be sentenced for an offence, the consequence will sometimes be a prison sentence.) 
6.12	Medical treatment need not be the most appropriate treatment that could ideally be made available. Nor does it need to address every aspect of the person’s disorder. But the medical treatment available at any time must be an appropriate response to the patient’s condition and situation. 
6.13	Medical treatment must actually be available to the patient. It is not sufficient that appropriate treatment could theoretically be provided. 
6.14	What is appropriate will vary greatly between patients. It will depend, in part, on what might reasonably be expected to be achieved given the nature and degree of the patient’s disorder. 
6.15	Medical treatment which aims merely to prevent a disorder worsening is unlikely, in general, to be appropriate in cases where normal treatment approaches would aim (and be expected) to alleviate the patient’s condition significantly. For some patients with persistent mental disorders, however, management of the undesirable effects of their disorder may be all that can realistically be hoped for. 
6.16	Appropriate medical treatment does not have to involve medication or individual or group psychological therapy – although it very often will. There may be patients whose particular circumstances mean that treatment may be appropriate even though it consists only of nursing and specialist day-to-day care under the clinical supervision of an approved clinician, in a safe and secure therapeutic environment with a structured regime. 
6.17	Simply detaining someone – even in a hospital – does not constitute medical treatment. 
6.18	A patient’s attitude towards the proposed treatment may be relevant in determining whether the appropriate medical treatment test is met. But an indication of unwillingness to co-operate with treatment generally, or with a specific aspect of treatment, does not make such treatment inappropriate. 
6.19	In particular, psychological therapies and other forms of medical treatments which, to be effective, require the patient’s co-operation are not automatically inappropriate simply because a patient does not currently wish to engage with them. Such treatments can potentially remain appropriate and available as long as it continues to be clinically suitable to offer them and they would be provided if the patient agreed to engage. 
6.20	People called on to make a judgement about whether the appropriate medical treatment test is met do not have to be satisfied that appropriate treatment will be available for the whole course of the patient’s detention or SCT. What is appropriate may change over time, as the patient’s condition changes or clinicians obtain a greater understanding of the patient’s case. But they must satisfy themselves that appropriate medical treatment is available for the time being, given the patient’s condition and circumstances as they are currently understood.’
9.	Part of Chapter 35 applies to personality disorders:
‘CHAPTER 35
People with personality disorders 
This chapter deals with issues of particular relevance to people with a personality disorder. 
…
Appropriate medical treatment 
35.8	What constitutes appropriate medical treatment for a particular patient with a personality disorder will depend very much on their individual circumstances. First and foremost, that calls for a clinical judgement by the clinicians responsible for their assessment or treatment. 
35.9	A proposed care plan will not, of course, meet the Act’s definition of appropriate medical treatment unless it is for the purpose of alleviating or preventing a worsening of the patient’s mental disorder, its symptoms or manifestations (see chapter 6). 
35.10	Generally, treatment approaches for personality disorders need to be relatively intense and long term, structured and coherent. Sustainable long-term change is more likely to be achieved with the voluntary engagement of the patient. 
35.11	People with personality disorders may take time to engage and develop motivation for such longer-term treatment. But even patients who are not engaged in that kind of treatment may need other forms of treatment, including nurse and specialist care, to manage the continuing risks posed by their disorders, and this may constitute appropriate medical treatment. 
35.12	In the majority of cases, the primary model of intervention for personality disorders is rooted in a psycho-social model. 
35.13	Patients who have been detained may often need to continue treatment in a community setting on discharge. Where there are continuing risks that cannot otherwise be managed safely, supervised community treatment, guardianship or (for restricted patients) conditional discharge may provide a framework within which such patients can continue their treatment in the community. 
35.14	In deciding whether treatment under the Act can be delivered safely in the community, account should be taken of: 
•	where the specific model of treatment intervention can be delivered most effectively and safely; 
•	if management of personal and social relationships is a factor in the intervention, how the appropriate day-today support and monitoring of the patient’s social as well as psychological needs can be provided; 
•	to what degree the psycho-social model of intervention requires the active participation of the patient for an effective and safe outcome; 
•	the degree to which the patient has the ability to take part in a psycho-social intervention that protects their own and others’ safety; 
•	the degree to which 24-hour access to support will be required; and 
•	the need for the intervention plan to be supervised by a professional who is appropriately qualified in the model of intervention and in risk assessment and management in the community. 
35.15	In the case of personality disordered offenders who may already have received long-term treatment programmes within secure or prison settings, treatment in the community may well still be required while they resettle in the community.’ 
F.	The tribunal’s reasons
10.	The presiding judge set out the tribunal’s conclusions:
‘In view of the conflicting evidence, we are not satisfied that the patient suffers from a mental illness. We are sure however that he suffers from an antisocial personality disorder of both a nature and degree which warrants his continued detention in hospital for his own health and safety and for the safety and protection of others, and that continued detention in hospital is appropriate. We accept the opinion of Dr Parker that continued treatment in hospital provides alleviation or prevention of a deterioration in his condition. Appropriate medical treatment is available on C Ward with the hope that he will begin to engage in treatment.’
Dr Parker is the patient’s responsible clinician.
11.	Those conclusions faithfully reflect the conditions in section 72(1)(b). Each is essentially ‘a bare traverse of a circumstance in which discharge could be contemplated’ (R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699 at 703). As such they are conclusions, not reasons. The reasons that led the tribunal to those conclusions appear in the preceding paragraphs. They are structured around summaries of, and comments on, the medical and nursing evidence.
12.	On diagnosis, the presiding judge recorded that:
‘We accept the views of Dr Parker and Dr Scholey that the patient meets the diagnostic criteria for antisocial personality disorder, and continues to exhibit a number of psychopathic features including lack of remorse, little if any emotion in regard to his actions and an inability to appreciate the impact on others. He is quick to anger and has refused anger management treatment, refuting that he has such a problem.
The tribunal’s analysis of the evidence in support of this was as follows.
13.	Dr Indoe gave evidence on behalf of the patient. He is a Consultant Clinical Forensic Psychologist. In his opinion, the patient should be absolutely discharged. There are two references to this evidence in the tribunal’s reasons. First, the tribunal ‘found difficulty with’ part of the doctor’s report. He said that the patient’s records ‘do not support a definite risk associated with ... previous violence’. In oral evidence, he said: ‘I don’t consider arson to be violence. It is an indirect crime. In terms of overt violence, arson is not violence. Arson certainly can be a violent offence; different types of arson reveal different reasons. This was motivated to conceal, not to be violent. It would be violent if you set a fire with someone in the premises. I expect an arsonist to burn the evidence, as they do with cars these days. The arson was a reckless disregard, but it is not his everyday behaviour.’ Second, the reasons summarise the doctor’s view that anti-social personality is very difficult to treat and that the patient had some traits of antisocial personality, but not sufficient to justify his detention. 
14.	Both Dr Indoe and Dr Davies, a Consultant Psychiatrist, thought that the patient’s ‘delusions’ were related to his religious beliefs. 
15.	Dr Scholey gave evidence for the Trust. He is a Consultant Clinical Psychologist. In his opinion, the patient has a mental illness, being psychotic and delusional, and has an anti-social personality disorder with an underlying psychopathic disorder, which justify his continued detention. He considered that the patient was at high risk of offending and was optimistic of treatment being effective if the patient engaged with it. 
16.	Dr Parker gave evidence for the Trust. He is a Consultant Forensic Psychiatrist and the patient’s responsible clinician. In his opinion, the patient has a mental disorder, an anti-social personality disorder, a psychopathic disorder and paranoid schizophrenia. He set out incidents of violence in the patient’s past together with incidents that induced fear of violence in others. The patient lacked motivation and was resistant to treatment. 
17.	With regard to health, safety and protection, the reasons refer to an overdose of heroin and cocaine in 2007, which required treatment in intensive care. Dr Parker had listed incidents of threats or intimidation. There was evidence from two nurses to the same effect. 
18.	With regard to treatment, the presiding judge recorded that the tribunal accepted Dr Parker’s opinion. 
G.	The grounds of appeal
19.	Mr Westgate argued that: the tribunal was not entitled to refuse to discharge the patient on the evidence before it; it disregarded relevant material; and its reasons were inadequate. These arguments overlapped, as they often do.
20.	I reject the argument that the tribunal was not entitled to refuse to discharge the patient. Ms Butler-Cole easily demonstrated that there was evidence on which the tribunal was entitled to find that: the patient had an anti-social personality disorder; he presented a danger to others and possibly to himself; there was treatment that was appropriate and available. In view of the change of circumstances, to which I refer later, it would not be of any value to deal with this aspect of the appeal in more detail.
21.	I accept Mr Westgate’s argument that the tribunal’s reasons were inadequate. Standing back from the detail, they do not show how the tribunal dealt with the key arguments and evidence in favour of the patient’s discharge. Ms Butler-Cole demonstrated the process of reasoning by which the tribunal could have justified its decision. It took her well in excess of an hour. That alone indicates that the reasons were not adequate to speak for themselves. They must be read in the context of the arguments and evidence before the tribunal, but in that context they should not require lengthy explanation or justification. It is sufficient to take a couple of examples of important inadequacies. I refer later (in paragraph 34) to the treatment of the staff nurse’s evidence on the patient’s willingness to engage in treatment, which was not mentioned in the reasons. Another example is the way that the tribunal dealt with Dr Indoe’s evidence. The presiding judge wrote that the tribunal ‘found difficulty with paragraph 44 of the doctor’s report’. This referred to the HCR-20 Risk Assessment that he had carried out. He had not taken the arson conviction as evidence of previous violence. The tribunal accepted Dr Parker’s evidence, despite the fact that he had carried out the same Assessment and, like Dr Indoe, did not include the conviction as an indication of previous violence. He also quoted the definition of ‘violence’ for the purposes of the Assessment, which shows that in the circumstances the arson was not violence as defined. The tribunal’s reasoning was, therefore, inconsistent. Its only reason for rejecting Dr Indoe’s evidence was equally applicable to Dr Parker’s evidence, which the tribunal accepted. Ms Butler-Cole made a number of pertinent comments about the nature and significance of the Assessment, but the point is that the tribunal did not make them. There is nothing to show that they were part of its reasoning. 
22.	Finally on adequacy, I make this general point. This was a difficult case for the tribunal. The definition of ‘mental disorder’ changed between the evidence being written and the hearing taking place. Much of the evidence focused on psychopathy, which is no longer part of the definition. The tribunal had to apply evidence to the new definition that had been written with the earlier definition in mind. This placed an additional burden on the tribunal to explain how it had undertaken that task. Its reason do not adequately show how it did so.
H.	The meaning of mental disorder
23.	At one stage, I was troubled by the different approaches to classifying the patient’s mental disorder that were present in the evidence. Sometimes ICD-10 was used, sometimes DSM-IV. They are broadly similar, but differ in their detail. To take one example, one of the criteria for antisocial personality disorder in DSM-IV is that the patient had a conduct disorder before the age of 15. ICD-10 does not list that as a criterion for dissocial personality disorder. Ms Butler-Cole satisfied me that the different criteria had not affected the classification of the patient’s mental state on the evidence in this case. I make the following comments for any value they may have in the future.
24.	It is important to understand the purpose for which the criteria were devised. The specific criteria in ICD-10 are labelled as diagnostic criteria for research and the introduction to the published version of DSM-IV (4th edition) contains this warning:
‘When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a “mental disorder,” “mental disability,” “mental disease,” or “mental defect.”’
That leaves open the question of how a patient’s mental state is to be classified for the purposes of the Mental Health Act. The answer cannot depend on the manual that happens to be used. This is an issue that will have to be considered by the Upper Tribunal in an appropriate case. There must be an answer that provides protection for patients from vague or differing definitions while ensuring that those who present a danger are not left free to harm themselves or others for failing to meet over-prescriptive criteria. 
I.	Proportionality
25.	Mr Westgate argued that the First-tier Tribunal had to apply a test of proportionality to the patient’s detention. He cited R (H) v London North and East Region Mental Health Review Tribunal [2002] QB 1. The Court of Appeal there gave a declaration that sections 72 and 73 of the Mental Health Act were incompatible with the Convention right in article 5(1)(e) of the European Convention on Human Rights. Section 72(1)(b) was amended accordingly. Mr Westgate relied on this passage:
‘33.	The circumstances of the present case, which are similar to those considered by Latham J in Ex parte Moyle [2000] Lloyd’s Rep Med 143, are not uncommon. A patient is detained who is unquestionably suffering from schizophrenia. While in the controlled environment of the hospital he is taking medication, and as a result of the medication is in remission. So long as he continues to take the medication he will pose no danger to himself or to others. The nature of the illness is such, however, that if he ceases to take the medication he will relapse and pose a danger to himself or to others. The professionals may be uncertain whether, if he is discharged into the community, he will continue to take the medication. We do not believe that article 5 requires that the patient must always be discharged in such circumstances. The appropriate response should depend upon the result of weighing the interests of the patient against those of the public having regard to the particular facts. Continued detention can be justified if, but only if, it is a proportionate response having regard to the risks that would be involved in discharge.’
He also cited Witold Litwa v Poland (2001) 33 EHRR 53 at [78]. 
26.	Building on those authorities, he argued that proportionality was not a question of fact and the judgment should be subjected to close scrutiny by a higher court (A v Secretary of State for the Home Department [2005] 2 AC 68 at [44]), giving appropriate respect to the view of the decision-maker (R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [30] and [68] and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420 at [15], [31], [44]-[47] and [88]-[89]). 
27.	I am, of course, bound by all those decisions. However, they do not deal with the application of section 72 of the Mental Health Act. I do not consider that it is necessary either to introduce the concept of proportionality into the application of, or to extract it from the wording of, that section. Introducing it could divert attention from the wording of the legislation and bring with it connotations that are not appropriate in the mental health context. The tribunal must discharge the patient unless detention for treatment is necessary for the patient’s health or safety or for the protection of others. The legislation authorises detention by reference to the twin requirements of treatment and protection, moderated by the word ‘necessary’. That is a demanding test and provides ample protection for the patient without the need for any additional consideration of proportionality. I note that in R (CS) v Mental Health Review Tribunal [2004] EWHC 2958 (Admin), Pitchford J said at [52] that there was force in the argument that there was no additional requirement of proportionality.
28.	Applying the normal principles that apply to appeals with respect to issues of judgment:
•	The First-tier Tribunal must explain why it exercised its judgment as it did. Its reasons must be adequate. They must explain at least what points the tribunal regarded as decisive (B v B (Residence Order: Reasons for Decision) [1997] 2 FLR 602 at 606). The more surprising the result, the more demanding the Upper Tribunal will be in assessing the reasons for adequacy (Jones v Governing Body of Burdett Coutts School [1999] ICR 38 at 47). 
•	There will only be an error of law in the First-tier Tribunal’s exercise of judgment if the tribunal: (i) took the wrong approach in law; (ii) took account of an irrelevant factor; (iii) failed to take account of a relevant factor; or (iv) went wrong in what the courts have called the balancing exercise (G v G [1985] 1 WLR 647).
•	In assessing the balancing exercise, the Upper Tribunal will treat the judgment with the respect appropriate to one made by a panel with combined expertise in the law, medicine and health or social care matters. The degree of respect will depend on the circumstances (Re Grayan Building Services Ltd [1995] Ch 241 at 254). In a mental health case, it must reflect the fact that the patient’s liberty is at stake. Respect will only be appropriate in cases that are a ‘close call’ between the options available to the tribunal. That expression is deliberately vague; the issue does not allow of precise definition. This approach does not derive from a requirement for proportionality. It arises from the wording of the legislation when read in the context of basic principle and applied to the issue of continued detention. 
•	If the Upper Tribunal re-makes the decision, it must exercise the judgment afresh, taking appropriate account of the way it was exercised by the First-tier Tribunal and of the expertise available to that tribunal (Evans v Bartlam [1937] AC 473 at 478), unless that exercise was defective in some way. 
J.	Appropriate available treatment
29.	The requirement that there be appropriate treatment available for the patient presents a particular problem in the case of personality disorders. I considered this issue in MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC). What I say here is additional to that discussion.
30.	Dr Indoe wrote:
‘54.	Treatment for antisocial personality disorder is still a matter for research. There is no body of controlled research. There is no demonstrably effective treatment. The evidence is that individuals so labelled give a poor response to hospitalisation. Prognosis is improved by treatment for anxiety and depression. Individuals with the label show a poor response to drug or alcohol treatment. A positive assessment of the therapeutic alliance may be positively related to outcome. …’
31.	NICE has issued Clinical Guidance No 77 on Antisocial Personality Disorder: Treatment, Management and Prevention. As it recognises: ‘This guideline draws on the best available evidence. However, there are significant limitations to the evidence base, notably a relatively small number of randomised controlled trials (RCTs) of interventions with few outcomes in common.’ Central to the Guidance is the patient’s involvement: ‘Treatment and care should take into account people’s needs and preferences. People with antisocial personality disorder should have the opportunity to make informed decisions about their care and treatment, in partnership with their healthcare professionals.’
32.	This presents a problem when patients refuse to engage in treatment. Some may argue that there is no treatment available. Whether or not they adopt this tactic, Dr Parker told the tribunal that historically patients who are not discharged by a tribunal thereafter accept treatment. 
33.	This presents a danger for tribunals. It arises from the way that medical treatment is defined in section 145. That definition is sufficiently broad to include attempts by nursing staff to encourage the patient to engage by taking what the NICE Guidance calls ‘a positive and rewarding approach [which] is more likely to be successful than a punitive approach in engaging and retaining people in treatment.’ This is not difficult to satisfy. That produces the danger that a patient for whom no appropriate treatment is available may be contained for public safety rather than detained for treatment. The solution lies in the tribunal’s duty to ensure that the conditions for continued detention are satisfied. The tribunal must investigate behind assertions, generalisations and standard phrases. By focusing on specific questions, it will ensure that it makes an individualised assessment for the particular patient. What precisely is the treatment that can be provided? What discernible benefit may it have on this patient? Is that benefit related to the patient’s mental disorder or to some unrelated problem? Is the patient truly resistant to engagement? The tribunal’s reasons then need only reflect what it did in the inquisitorial and decision-making stages. 
34.	In this case, the tribunal merely recorded: ‘We accept the opinion of Dr Parker that continued treatment in hospital provides alleviation or prevention of a deterioration in his condition. Appropriate medical treatment is available on C Ward with the hope that he will begin to engage in treatment.’ That is too general to deal with the issue and it ignores evidence to the contrary. It begged the question of whether the patient could be persuaded to engage. It is correct that Dr Parker set out in two reports details of the treatment that was available for the patient. Their effectiveness would depend on the patient’s co-operation. On this, the patient’s staff nurse gave evidence that the patient was hostile to the nurses and that there was no nursing input unless he asked for it. The nurse doubted whether the patient was getting any benefit from being on his ward. The tribunal did not refer to that evidence. 
K.	Disposal
35.	The tribunal made an error of law. I have a discretion whether or not to set it aside (section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007). Ms Butler-Cole argued that I should not do so on two grounds. First, the patient’s circumstances had changed significantly. He had been transferred to a different hospital elsewhere in the country and was back on anti-psychotic medication. His diagnosis was now likely to be one of mental illness rather than a personality disorder. Second, the patient had a right to apply again to the First-tier Tribunal to consider his discharge. He should be left to do so, if he thought his new circumstances justified it. I have directed a rehearing. This seems preferable to making the patient initiate fresh proceedings. His decision to pursue his appeal to the Upper Tribunal despite his change of circumstances suggests that he wishes to challenge his detention. My decision does not force him to pursue the appeal. If he does not wish to do so, he may apply to the First-tier Tribunal to withdraw his case.

Signed on original
on 12 April 2010	Edward Jacobs
Upper Tribunal Judge