Decision of the Upper Tribunal
(Administrative Appeals Chamber)
Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2010/18711, dated 7 March 2012, did not involve the making of an error on a point of law. 
Reasons for Decision
A.	The issue
1.	This case raises one issue: is the nature of the risk posed by a patient detained under the Mental Health Act 1983 relevant to the appropriateness of treatment under section 72(1)(b)(iia) of that Act?
B.	History and background
2.	Mr D was convicted of cruelty to a child under 16 in 2003 and sentenced to five years imprisonment. In 2007, the Secretary of State directed his transfer to Rampton hospital under sections 47 and 49 of the 1983 Act. The restriction direction under section 49 ceased to apply when his sentence expired, but he remains detained under section 47. He was transferred to Ashworth hospital, from where he applied to the First-tier Tribunal on 27 August 2010. The tribunal heard his application over two days on 6 and 7 February 2012. It decided not to discharge Mr D. Its detailed analysis and reasons are dated 7 March 2012 and run to 178 paragraphs over 31 pages. 
3.	The First-tier Tribunal gave Mr D permission to appeal to the Upper Tribunal. The Chamber President, Charles J, refused an application for the case to be heard by a three-judge panel. It came before me for oral hearing on 5 March 2013. The representatives were the same as before the First-tier Tribunal. Mr Roger Pezzani of counsel represented Mr D. Ms Gillian Irving QC represented the detaining authority. I am grateful to them both for their written and oral arguments. 
C.	The legislation
4.	Section 72(1)(b) provides:
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 of 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; …
5.	Some of the definitions in section 145 are also relevant:
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.
D.	How the issue arises
6.	Mr D denied that he had a mental disorder and, therefore, professed to reject the need for treatment. The tribunal found that he did have a mental disorder, specifically dissocial or antisocial personality disorder. On the risk that he posed as a result of that disorder, the tribunal said:
137.	It is also our view that, although the statutory criteria are disjunctive and require separate consideration, there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria. In our judgement both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case. 
It applied that reasoning to section 72(1)(b)(i) and (ii) and went on:
140.	In relation to whether appropriate medical treatment is available for the patient, the link with risk is clearly more tenuous. But where, as here, part of the argument is that treatment that would otherwise be appropriate is rendered inappropriate simply because of the patient’s resistance to engagement (even if the resistance is entirely or partly a consequence of the patient’s mental disorder) then difficult questions can arise as to the depth or the stability of that resistance, and the likelihood of a gradual weakening or lowering of the barriers over time – albeit, possibly, a substantial period of time.
141.	In our view, when assessing how long it is reasonable or appropriate to wait for a patient to engage with treatment, or to what extent relatively small indications of progress along the road to eventual motivation or engagement are sufficient to overcome the argument that continued detention amounts to mere containment, the likelihood of harm occurring and the potential severity of the harm, especially when taken together, will be highly relevant factors to consider, along with the patient’s ability to weigh up their options and the likely outcomes for themselves and for others, and their potential ability to choose to engage at some point in the future. 
E.	The tribunal was entitled to take risk into account under section 72(1)(b)(iia)
7.	Mr Pezzani based his argument on some well-established principles that Ms Irving did not contest. 
•	The criteria in section 72(1)(b) must all be satisfied for the patient’s detention to be lawful. 
•	They must each be considered separately. one of the criteria have primacy over the others. 
•	The therapeutic role of detention and the containment of risk were separate. 
I accept all that. He went on to argue that the tribunal had given primacy to the containment for risk by allowing it to trespass into the realm of therapy. I do not accept that. 
8.	The criteria in section 72(1)(b) may be separate, but they are also related in the sense that evidence may be relevant to more than one. Similarly, the conclusion in respect of one criterion may be relevant to another. As Latham J recognised in R v London South and South West Region Mental Health Review Tribunal, ex parte Moyle [1999] MHLR 195, the legal tests may be different but the facts found in relation to one test may determine the application of another:
40.	Further, and in any event, the Tribunal failed to deal adequately with the question of whether or not it was necessary for the health or safety of the patient or for the protection of other persons that he should receive hospital treatment. The Tribunal was obliged to consider this as a discrete question. The test of ‘necessity’ is different from the test of ‘appropriateness’. It may well be that the facts found by the Tribunal to support the conclusion that the patient does not satisfy the criteria relating to ‘appropriateness’ may determine the question of whether or not he or she has satisfied the criteria in relation to ‘necessity’. But that will not inevitably be the case. However, it is fair to say, that if the test that I have formulated as the test in relation to ‘appropriateness’ cannot be met by a patient whose mental illness is of a nature which, untreated, may result in danger to himself or others, that is likely to be sufficient to justify the conclusion that he cannot meet the ‘necessity’ test; nonetheless, the statute requires that both issues be resolved.
9.	It is beyond argument that risk is relevant to both paragraph (i) and (ii). It is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be. This is consistent with the basic principles that Mr Pezzani set out. I accept Ms Irving’s argument to this effect. I put to Mr Pezzani that a patient with a life-threatening condition may be prescribed treatment that would not be appropriate for a patient with a less serious condition. He said that that was not a perfect analogy. I accept that, but the point is one of general application. The treatment that is appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition. Risk is as relevant to treatment as any other feature of the disorder.
10.	Mr Pezzani criticised the tribunal for not setting out the criteria that would determine whether or not risk was relevant to treatment. I reject that. A First-tier Tribunal is not required to set out principles in that way. It is entitled to limit itself to the legal principles that apply to the particular case. In any event, I doubt whether it is possible to set out the sort of criteria that Mr Pezzani wanted. The relevance of risk to treatment must depend on the individual case. 
11.	Mr Pezzani criticised the tribunal’s statement of the law as adventurous. I do not agree. I prefer to describe the tribunal’s analysis as measured and careful. The tribunal set the relevance of risk in the context of whether it was appropriate to persist with treatment despite a patient’s reluctance to engage. That recognises the need to distinguish a suitable case for treatment from an unsuitable case for detention. 
12.	Mr Pezzani criticised the tribunal for saying that risk could be relevant to treatment even if the lack of engagement was entirely a feature of the patient’s disorder. I see nothing wrong with what the tribunal said. The fact that a lack of engagement is a feature of a disorder does not mean that it is not susceptible to treatment, just like any other features. There is nothing illogical in the tribunal’s reasoning. 
13.	Finally, Mr Pezzani argued that the tribunal’s use of the word ‘pervade’ in paragraph 137 showed that it had given primacy to risk over treatment. I do not accept that. The word simply means that risk can be relevant to all the statutory criteria.
F.	The tribunal’s analysis of section 72(1)(b)(iia) does not appear to have affected the outcome
14.	Despite having said that risk was relevant to the availability of appropriate treatment, the tribunal’s findings were sufficient to show that Mr D satisfied this condition for detention anyway. Mr Pezzani had argued that Mr D’s condition was ‘a complete and permanent barrier to any engagement’. The tribunal found that Mr D’s disorder was potentially responsive to treatment, at least to the extent of preventing it worsening. It noted that there were instances of Mr D engaging, despite himself. These findings were sufficient to satisfy section 72(1)(b)(iia), given the wide definitions in section 145. The findings were also consistent with the transfer of Mr D to a medium secure unit. That transfer took place after the hearing, but it was in contemplation at the time of the hearing and the tribunal referred to the unit in its reasons. 
15.	I accept that the tribunal went on after making those findings to refer again to risk in relation to appropriateness. But looking only at its findings, the tribunal could not properly have come to any other decision than it did. 
16.	Mr Pezzani argued that, having dealt with risk and appropriateness as it did, the tribunal’s actual findings could not be separated from them. Why bother with paragraphs 137, 140 and 141 unless they were relevant? That is a good question. The answer is a simple one: coherence can be a casualty in lengthy reasons. Length does not necessarily make reasons clearer. 
G.	Conclusion 
17.	I accept Mr Pezzani’s argument that the therapeutic role of detention must not be subsumed to the extent that it becomes merely a veil for containment. As Brenda Hale wrote in Mental Health Law (5th edition) at page 71:
‘it still has to be shown that there is treatment available which will do some good.’
The tribunal in this case has explained clearly that there was treatment available to Mr D that was not only capable of doing him some good, but was actually achieving some good. 

Signed on original
on 6 March 2013	Edward Jacobs
Upper Tribunal Judge