Pro Bono success for Ian Harris in key mental health appeal at Upper Tribunal

July 20, 2020

Ian Harris, instructed by James McAulay of ABR Solicitors, acted successfully in a case that has clarified a particularly sensitive and complex area of mental health law – MC v Cygnet and Sec of State for Justice, [2020] UKUT 230 (AAC).

On the 16th July 2020 the Upper Tribunal allowed a patient’s appeal from a Mental Health Tribunal decision. In the case of MM [2018] UKSC 60 the Supreme Court left open the situation whether a hospital inpatient who lacked capacity to make decisions could consent to a discharge to accommodation that still deprived her of her liberty. The Court agreed with joint submissions that there was such a power.

Commenting on the case, Ian Harris said:

“James approached me because he felt so strongly that the decision made by the lower tribunal was wrong. The patient MC had been sentenced by a Crown Court to a s. 37/41 Restriction Order in 1993 which can only be discharged by a Tribunal Order. This patient had been in secure hospitals since then but had now progressed to the point where she could be discharged to a nursing home, albeit with 24-hour security. Did this breach her Article 5, 8 and 14 ECHR rights? There was no funding but when I read the papers, I was equally convinced that she should be discharged and the Upper Tribunal agreed. The decision neatly co-ordinates powers under the Mental Health Act 1983 and Mental Capacity Act 2005 thus removing a gap in the law and apparent tensions between the Acts. The Decision will provide clear guidance to practitioners, as well as comfort to often very vulnerable patients and their families.”

Said James McAulay, Partner at ABR Solicitors: “This was an extremely important case. It not only benefits our client but all those detained in similar circumstances. It has given clarification and reassurance to all professionals engaged in mental health care and proceedings. The case was undertaken on a pro bono basis. Ian Harris and Exchange Chambers showed the utmost professionalism in the assistance and guidance provided.”