Speaker Dr Khurram Masood

Dr Masood who is a locum consultant in mental health at Doncaster and Bassetlaw Hospitals Trust told us about the problems that common law had created in the provision of services to patients with learning disabilities who might need to be kept on a locked ward. In 2009 the government created 9 Tribunals of which one (The Mental Health Tribunal) deals with health and education. This tribunal is a first-tier body whose main purpose is to review the case of a patient detained under the Mental Health Act and to direct the discharge of any patient for whom the statutory criteria for discharge have been satisfied. However, appeals can be made from there to the High Court or even onward to the Supreme Court.

This has created problems where decisions have been made at these higher courts that then become binding on future decisions at the tribunal. One example given was the "Cheshire West" case which This clarified the test and definition for Deprivation of Liberty for adults who lack capacity to make decisions about whether to be accommodated in care. It means that a much greater number of patients are now be subject to a deprivation of liberty. But it also stated that there must be an acid test of the need for this which led to the need for 1,000's of new assessments to be made putting a great strain on the system.

Another case the Secretary of State v MM also had unintended consequences. In this case it was ruled that the Mental Health Act does not permit either the First tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. This has meant that two categories of patient have been created; those who have capacity to make decisions who can't be readmitted to hospital if granted conditional discharge as they are deemed to have ability to make their own decisions; and those who lack capacity and are therefore detained or released as ordered by the Court of Protection. This means that patients with capacity are being kept in hospital unnecessarily as once released they cannot be readmitted. Dr Masood had a case like this where he thought the patient lacked capacity, but a social worker thought the patient did. This resulted in the case having to be taken to court for a decision when previously the patient would have been released on conditional discharge.