Decision of the Upper Tribunal
(Administrative Appeals Chamber)
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/2007/00007, held on 25, 26 and 27 February 2009, did not involve the making of an error on a point of law. 
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
1.	This appeal concerns the continuing detention of a patient at Rampton Hospital. The principal issue that arises is whether ‘appropriate medical treatment is available for him’ under section 72 of the Mental Health Act 1983. This is, so far as I know, the first time that this new statutory wording has been considered by the Upper Tribunal. I also comment on the procedure for expert evidence in the First-tier Tribunal.
2.	The appeal is brought, with the permission of the First-tier Tribunal, against the decision of that tribunal that the patient should not be discharged. I held an oral hearing on 19 February 2010. The patient was represented by Mr Roger Pezzani of counsel, instructed by RMNJ Mental Health Solicitors. The hospital was represented by Ms Gillian Irving QC, instructed by Mills and Reeve LLP. I am grateful to both counsel for their submissions. 
A.	History – before removal to Rampton
3.	The patient was born on 25 March 1968. He was warned for shoplifting at the age of 13 and has a record of convictions dating from 1988. They were for indecent assault, offences relating to the supply of drugs and possession of firearms, and shoplifting. Other allegations have been made, but not pursued to court. 
4.	In 2003, the patient was convicted on two counts of cruelty to children aged 3 and 5. Their injuries were extensive and inflicted over a period of time. The tribunal described the offences as ‘grotesque’. Four other counts were left to lie on the file. All six were specimen counts. He was sentenced to imprisonment for five years and had time added to his sentence for threatening to take a female hostage while in prison.
5.	The patient has not acknowledged his personal responsibility for any of his offences. 
B.	History – while detained in Rampton
6.	On 27 July 2006, he was transferred to Rampton Hospital on the direction of the Secretary of State under section 47 of the Mental Health Act 1983. He was also subject, by virtue of section 49, to the special restrictions under section 41 until 26 December 2006. The result is that he is detained in hospital at a time when he would have been released from prison. 
7.	He applied to the Mental Health Review Tribunal in October 2006, but the tribunal decided that he should not be discharged in September 2007. On 12 November 2007, the patient applied for his detention to be considered again by the Tribunal.
C.	The course of these proceedings
8.	The case was not heard until 25, 26 and 27 February 2009. By that time, the mental health jurisdiction had been transferred to the Heath, Education and Social Care Chamber of the First-tier Tribunal. The tribunal decided that he was not to be discharged. It gave its reasons on 17 March 2009. 
9.	The patient applied for permission to appeal on 22 April 2009. Permission was given by the First-tier Tribunal, but not until 5 August 2009. The Regional Tribunal Judge gave this reason for doing so:
‘The applicant has an arguable case. In addition, the application raises issues as to the interpretation of the criterion under s. 72 of the Mental Health Act 1983 that appropriate medical treatment is available for the patient and in respect of which the law requires clarifying.’
10.	A CLS Funding Certificate was issued on 8 October 2009 and the appeal was lodged with the office of the Upper Tribunal on 21 October 2009. It was referred to me and I gave directions for an oral hearing on 22 October 2009.
D.	The legislation
The tribunal’s powers
11.	Section 72(2) of the Mental Health Act 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; or
(iii)	in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.’
12.	The conditions in paragraph (b) reflect the conditions for admission, principally under section 3(2). The subsection as a whole confers both a power and a duty. The tribunal is under a duty to discharge a patient (‘the tribunal shall’) if it is not satisfied by one of the four heads in paragraph (b). It has a power to do so  in other cases under the introductory words (‘the tribunal may’). 
The definition of ‘medical treatment’
13.	This is defined by section 145(1) and (4):
‘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.’
14.	The basic definition is inclusive of what may constitute medical treatment (‘includes’), not exhaustive. But paragraph (4) provides that the test for medical treatment (whether as expressly defined in subsection (1) or not) is its purpose. That is consistent with the basic distinction between containment and treatment. Treatment must be given for the purpose of alleviating or preventing the worsening of the patient’s disorder, symptoms of manifestations. Treatment is not defined by reference to its likely effect. But, as a practical matter, that will have been taken into account by the clinical team in deciding whether the treatment could be given for a permitted purpose. There is no limit of time; the team may make that judgment in the short, medium or long term. 
15.	Those provisions only define ‘medical treatment’. They do not define the circumstances in which medical treatment is either available or appropriate. It is possible that medical treatment may be available without being appropriate, appropriate without being available, both or neither. 
E.	The Code of Practice
Content 
16.	The Secretary of State has issued a Code of Practice under section 118 of the Mental Health Act. The whole of Chapter 6 is relevant:
‘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.’
17.	Part of Chapter 35 is also relevant:
‘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.’ 
Status and nature
18.	The status of the Code was considered by the House of Lords in R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148. Lord Bingham explained:
‘21.	It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. …’
19.	Mr Pezzani did not challenge the accuracy of any of the guidance in the Code. What he did was to point out that for every ‘on the one hand’ in the guidance there was a countervailing ‘on the other hand’. That is the nature of the guidance. It is not, for the most part, directive of a particular outcome. It merely identifies matters that have to taken into account in deciding whether appropriate treatment is available for a patient. Their reconciliation can only be found in the circumstances of a particular case.  That it leaves to the clinical team and the tribunal. Put another way, it does not give an answer, only the way to reach an answer. 
F.	The tribunal’s decision
20.	Even if the tribunal’s decision were erroneous in law in all the ways Mr Pezzani suggested, it would still be an impressive piece of work. I suspect that tribunals are seldom able to produce such reasons in the time allowed. The reasons: set out the procedural history of the case; explained the nature of the changes to the legislation under the Mental Health Act 2007; analysed the nature of personality disorders and the extent to which they can be treated; rehearsed relevant passages from the Code of Practice; correctly placed the burden of proof; dealt with diagnosis, risk and treatment; and finally referred to the power to discharge the patient. Along the way, the tribunal commented on the procedures for expert evidence.
21.	The tribunal found that the patient had a psychopathic personality disorder, specifically antisocial personality disorder, linked with sadomasochism. This was in dispute before the First-tier Tribunal, but it has not been challenged on this appeal.
22.	The tribunal then found that the patient was at risk of ‘violent re-offending particularly against children.’ Given the patient’s history, it found that ‘there is worry of a pattern of MD speedily taking up with a partner who has children, and the relationship quickly breaking down, the breakdown involving allegations of assault on children, a pattern which to the extent that is was repeated in relation to Mrs M…, did lead to the very serious index offences.’ The only evidence to the contrary came from Professor Maguire. The tribunal rejected this evidence as essentially statistical. 
23.	Next the tribunal dealt with treatment. It began with some preliminary points. (i) The patient’s detention was now for practical purposes in the hands of the clinical team. (ii) It would have been preferable for the patient to have been transferred to hospital earlier in his sentence. (iii) There were psychiatric debates on whether personality disorder could be treated. On this, it said:
‘78.	The Tribunal is not the place to resolve the psychiatric debates that we have noted. We can only determine on the evidence before us whether the detention for treatment of the particular patient is appropriate and necessary and that treatment in his case is available.’
(iv) Treatment for a personality disorder was long term and might only amount to nursing or specialist day to day care. (v) Decisions about treatment could not be made on a snapshot of the patient at a particular time. 
24.	The tribunal then reviewed the evidence from the responsible clinician. It noted that he had drawn a distinction between the patient being psychologically unable to discuss his defences and having the capacity to decide not to co-operate with treatment. The tribunal concluded that this ‘merely in our view emphasises the need and appropriateness of the relevant treatment.’
25.	The tribunal concluded that, taking a long term view, ‘appropriate positive psychotherapeutic treatment is available here.’ It took account of the responsible clinician’s long experience and rejected evidence to the contrary. 
26.	Alternatively, the tribunal concluded that the patient had been engaging in and benefiting from the specialist nursing care and ‘milieu’ therapy on the ward. The latter is professional shorthand for nursing and specialist day to day care under clinical supervision of an approved clinical, in a safe and secure therapeutic environment with a structure regime. That, as the tribunal acknowledged, is the language of Code paragraph 6.16. It derived support from the fact that the patient no longer needed seclusion and from his manner at the hearing, which was very different from that exhibited before the Tribunal in 2007. This was despite lapses from time to time. 
27.	Although expressed in the alternative, those reasons are also capable of operating cumulatively. 
28.	Finally, the tribunal dealt with its power to discharge a patient even if it was not under a duty to do so. It found no grounds for discharge, given its conclusions on the availability of appropriate treatment. 
G.	Why the tribunal did not make an error of law
29.	As I am dismissing the appeal, I will concentrate on Mr Pezzani’s arguments. Ms Irving opposed the appeal. I trust that I do no disservice to her if I summarise her argument as saying that Mr Pezzani’s arguments were merely a sustained attempt to make a disagreement over matters of fact into an error of law. The evidence, she argued, overwhelming supported the tribunal’s decision.
Containment and treatment
30.	This distinction is fundamental in our law. Containment is essentially a matter for the criminal courts and prisons. (There are exceptions, such as control orders, but they do not detract from the basic distinction.) Treatment is a matter for hospitals with oversight by the First-tier Tribunal and, on appeal, the Upper Tribunal. 
31.	Mr Pezzani addressed me at length on this distinction. It was a theme throughout his argument that the treatment provisions must not be operated as a means of containment. I accept that, but it needs to be unpacked. A patient has a right to liberty and to the chance of liberty, but the right is conditional on the statutory criteria. There is no right to liberty for so long as the statutory conditions for detention are met. It is possible that they will always be met and, if they are, the patient has no right to be discharged. Mr Pezzani’s argument focused on the meaning of ‘medical treatment’. That definition is very wide, but the availability of medical treatment is not a sufficient condition for detention. The test is whether medical treatment is available and appropriate. It may be that medical treatment is still available for a patient but, because of the circumstances of a particular case, it is no longer appropriate. Appropriateness is an important additional criterion for detention; it is not surplus verbiage. There may come a point (I put it no higher) at which continuing treatment for a patient, even viewed in the long term, would no longer be appropriate.
32.	A patient also has an additional protection in the tribunal’s power to direct a discharge even if the conditions in section 72(1)(b) remain satisfied. The case would have to be exceptional. But it is a possibility that the legislation allows for and it must be considered, however briefly, in each case. 
33.	Mr Pezzani made two specific arguments. 
34.	The first argument was this: detention without the possibility of reduction of the risk posed by the patient was containment. I do not accept that. The treatment has to be appropriate, but it need not reduce the risk. Section 145(4) provides that it is sufficient if the treatment is for the purpose of preventing a worsening of the symptoms or manifestations. That envisages that the treatment required may not reduce risk. It is also sufficient if it will alleviate but one of the symptoms or manifestations, regardless of the impact on the risk posed by the patient.  
35.	The second argument was this: if there was no prospect of the patient progressing beyond milieu, his detention became mere containment. As I have said, if that were the position, there might come a point at which detention was no longer appropriate. However, the tribunal found that there was the potential for the milieu to benefit the patient in both the short and longer term. The facts found by the tribunal show that the patient has not reached the position that formed the premise of Mr Pezzani’s argument. 
36.	Mr Pezzani referred me to the recent decision of Collins J in  R (DK) v Secretary of State for the Home Department [2010] EWHC 82 (Admin). That decision concerned the previous version of the legislation, which was based on treatability. I have not found anything in that decision that is relevant to this case. As Collins J noted at [7], the legislation has now changed. 
Section 72(1)(b)(i) and (iia)
37.	Mr Pezzani argued that the patient’s discharge should have been considered under both these heads. I accept that. They are separate, both theoretically and structurally within paragraph (b). In head (i), ‘appropriate’ relates to the liability to be detained; in head (iia), I relates to the treatment. However, the issue for a tribunal is defined by the facts and circumstances of the case. In the particular case, it may be that there is no practical distinction between these heads. Such is this case. If there was appropriate treatment available to the patient then, given his diagnosis and the risk he posed, it was appropriate to detain him. If the tribunal dealt properly with head (iia), its reasoning covered head (ii). 
Capacity and ability
38.	Mr Pezzani argued that a theoretical capacity does not equate to a practical ability to benefit from treatment. 
39.	This argument reflects the language used in the evidence and the tribunal’s reasons. It led to argument on the Mental Capacity Act 2005, which I consider to be misplaced. There is no issue here of capacity in the sense used in that Act. It only appears to arise because of the language, rather than the substance, of the evidence. The evidence concerned the patient’s mental state and the possible benefit of treatment. Shorn of the language of capacity, it is clear that no issue of capacity arises. The evidence was this. The patient’s psychological defence mechanisms prevented him from engaging with therapy. He had, though, the potential to benefit from the milieu of the ward both for its short term effects and for the possibility that it would break through the defence mechanisms and allow him later to engage in therapy. That is what the tribunal found. 
Challenges to findings of fact
40.	Mr Pezzani argued that the tribunal was not entitled to accept the evidence of the patient’s ward manager. Alternatively, he argued that it had not adequately explained why it did so. He argued that that evidence was contradicted by the evidence of the responsible clinician, contrary to what he called the longitudinal nursing records, and contradicted by research evidence.
41.	I reject this argument. The tribunal was entitled to accept the evidence of the ward manager. That evidence was given by someone who had more, and more regular, contact with the patient than any other witness. He was not, of course, a psychiatrist, and did not claim to be. But he was able to speak to the patient’s progress and, based on that, his ability to progress further. That is the case, even if on this issue he disagreed with the responsible clinician. I say ‘even if’, because I was not persuaded that he did disagree. The clinician’s evidence that I was shown consisted of reports made at particular moments in time and, no doubt, reflecting the clinician’s view at that moment. The same is true of nursing records. The tribunal was entitled and required to take a longer view. Finally as to research evidence, the tribunal was right to focus on the individual patient and the effect the treatment available could have on his condition. 
Conclusion
42.	The tribunal correctly identified the relevant provisions of the Mental Health Act. It cited relevant passages from the Code of Practice. There were other paragraphs that it could have cited, but its reasons as a whole show that it properly took account of all relevant factors under the Code. It properly focused on the application of the legislation to this patient rather than on broader issues. It made findings of fact that were supported by the evidence and explained adequately why it had done so. In doing so, it took an overall view. It limited itself neither to the short nor the long term. In making its findings and exercising its judgment on what was appropriate, the tribunal no doubt relied on the expertise available on the panel. Read as a whole, its reasons explain how and why it came to the decision that there was treatment available to the patient. Given that finding, I can see no basis on which the tribunal could properly have exercised its general power to discharge the patient. That is why I have dismissed the appeal. 
H.	Disputed expert evidence
43.	The tribunal commented on the handling of expert evidence in its written reasons:
‘25.	… We would observe that in this Tribunal and in these days, there is every virtue in seeking to adopt, in case of disputed expert evidence, the management practices of civil litigation and it should be advantageous that experts should meet and discuss areas of agreement and disagreement and the reasons for disagreement, in advance of a contested application.’
‘69.	It is in our view unfortunate that want of available time of experts means that the directions of the regional chairman given in 09.08 relating to the meeting of experts and the reduction by them of issues to which they could or could not agree, could not happen. In civil litigation it is now common practice for experts for opposing parties to be directed to meet and to identify the issues on which they can and cannot agree and to report in particular on the matters which inform points of disagreement.’
44.	Before me, Ms Irving submitted that the practice in respect of experts should be the same as in the family and civil courts. That would require a party to produce the letter of instruction to the expert and the expert to identify the material available when writing the report. Mr Pezzani emphasised the difficulties that patients experience, in comparison to hospital authorities, in providing up-to-date medical evidence. He argued that the tribunal should use its powers to facilitate the production of independent evidence and to create an equality of arms. 
45.	These suggestions are matters for the First-tier Tribunal, not for me or the Upper Tribunal. I record them so that they will come to the attention of the President and relevant Deputy President of the Health, Education and Social Care Chamber of the First-tier Tribunal. I only make two points. 
46.	First, rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699) imposes a duty:
‘(4)	Parties must-
(a)	help the Tribunal to further the overriding objective; and
(b)	co-operate with the Tribunal generally.’
Those duties must include making their experts available to comply with any directions that are given by the tribunal. 
47.	Second, the tribunal, like all judicial bodies, is under a duty to comply with the Convention right to a hearing. As part of that duty, it must ensure an equality of arms as that is understood in the Strasbourg jurisprudence. It is relevant that the tribunal is not merely a body that hears evidence, finds facts and decides on arguments. It is, as I have said, a body with its own expertise. Its use of that expertise is an important contribution to ensuring an equality of arms. The psychiatrist on the panel makes an examination of the patient and the panel uses its collective knowledge, experience and expertise to assess the evidence. Both those tasks are performed independently. They reduce the need, which may exist in the court system, for the parties to have their own expert evidence. Patients are, of course, entitled to produce evidence on their own behalf. My point is simply that greater access to experts is not a necessary, or the only, way to ensure the equality of arms that the law requires. 
I.	Final comments on available and appropriate treatment
48.	I have not given a definition of either ‘available’ or ‘appropriate’. Nor have I drawn the boundary between containment and treatment. Those are matters of fact and judgment for the tribunal. It is an expert body and it has to use that expertise to make its findings and exercise its judgment. In doing so, it has to grapple with difficulty issues of evidence and principle that affect the liberty of the subject. That can only be done, as the tribunal did in this case, on the evidence before the tribunal and in the circumstances of a particular patient’s case at the time of the hearing before the First-tier Tribunal.

Signed on original
on 25 February 2010	Edward Jacobs
Upper Tribunal Judge