EC v Birmingham and Solihull Mental Health NHS Trust: UTAA 8 May 2013

Two patients were each subject to hospital orders and restriction orders under the Mental Health Act 1983. On a reference to the First-tier Tribunal, the first patient did not seek a discharge but instead sought an extra-statutory recommendation that he be granted leave outside the hospital. Before hearing any evidence, the First-tier Tribunal announced that it had decided that it would not consider making such a recommendation and it did not do so. On an application to the First-tier Tribunal by the second patient, the patient did not seek a discharge but sought an extra-statutory recommendation that he be transferred to less restrictive conditions of detention. At the beginning of the hearing, the First-tier Tribunal judge stated that he was very reluctant to give extra-statutory recommendations and expressed the view that they had value only if there were unreasonable obstructions by the Ministry of Justice. No extra-statutory recommendation was made and the request was not mentioned in the statement of reasons. The patients appealed against, and applied in the alternative for judicial review of, the decisions of the First-tier Tribunal. The principal arguments in both cases were that the patients had a legitimate expectation that requests for extra-statutory recommendations would be considered due to a written Parliamentary answer explaining what would happen if such a recommendation were made and that they were entitled to have their requests for such recommendations considered as a matter of procedural fairness. The Upper Tribunal dismissed the appeals and refused permission to apply for judicial review, holding that, if a refusal to make an extra-statutory recommendation might be challenged at all, it was by way of an appeal rather than by way of judicial review but that the written Parliamentary answer could not rationally be thought to create any expectation that the making of a recommendation would be considered by the First-tier Tribunal in all cases or in any particular case and that there could be no right to an opportunity to invite a tribunal to act beyond its powers. The patients appealed to the Court of Appeal, arguing at the hearing that leave of absence or transfer are, or may be, functions of a patient’s treatment that must be considered in the light of section 72(1)(b)(iia) of the 1983 Act (which, taken with section 73(1)(a), requires a patient to be discharged if appropriate medical treatment is not available to him or her) so that, it was argued, a reasoned decision would have the same material effect as a recommendation.
Held, dismissing the appeals, that:
1. there was no legitimate expectation that the First-tier Tribunal would entertain submissions as to whether an extra-statutory recommendation should be made and take such submissions into account in deciding what to do;
2. while leave of absence or transfer are, or may be, functions of a patient’s treatment, to suggest here that the First-tier Tribunal had not properly considered what might constitute treatment was to raise a new factual case that the First-tier Tribunal had not been obliged to consider for itself and (per Beatson LJ) the First-tier Tribunal had in any event found that appropriate treatment was available and being provided to each of the patients and those findings had not been challenged before the Upper Tribunal.
See Also [2013] EWCA Civ 701


Laws, Rimer, Beatson LJJ


[2012] UKUT 178 (AAC)




England and Wales


Updated: 12 May 2022; Ref: scu.656594