A recent Upper Tribunal decision in EC v Birmingham and Solihull Mental Health NHS Trust dealt with two appeals which raised the question whether a patient detained under the Mental Health Act 1983 can challenge a decision by a First Tier Tribunal to refuse to make an extra statutory recommendation as to future care or treatment.

The Upper Tribunal here would not express any view as to the circumstances in which the First Tier Tribunal should or should not make extra statutory recommendations in mental health cases save that, if some panels are routinely spending a great deal of time considering issues not necessary for the exercise of their statutory functions for no better reason than that a party has asked them to do so then they would deprecate that practice.

The Upper Tribunal observed that courts and tribunals of all types and at all levels make comments or suggestions that are not necessary for their decisions but that it is a matter of judgment when to do so. Among the matters taken into consideration are likely to be whether the court or tribunal considers itself sufficiently well informed to make a useful comment or suggestion, and whether doing so is likely to be seen as inappropriate interference with another body's decision making.

They commented that if extra statutory recommendations are regarded as a useful contribution to decision making in a significant number of cases it may be that consideration should be given to either formalising such recommendations (through a Practice Direction) or legislating.

Finally, they also highlighted that the responsible clinician had not needed to attend. They suggested that the Upper Tribunal needed to publish guidance for hospital managers as to what is expected of them when they are respondents to appeals but do not wish to take an active role.