Wirral Health Authority & Anor, R (on the application of) v Mental Health Review Tribunal & Ors

Where an inferior public-law tribunal acts unlawfully, the High Court ordinarily has power to quash its decision and order reconsideration. A quashing order retrospectively invalidates the unlawful decision, so it is treated as never having had legal effect. That principle applies even where the decision concerns detention under a hospital order with a criminal-law background. The limited exception concerning an acquittal after trial should not be extended to an unlawful discharge decision. Article 7(1) of the European Convention on Human Rights is not engaged where the relevant statutory provisions were already in force when the offence was committed.

A Mental Health Review Tribunal ordered the discharge of a patient detained under a notional hospital order arising from a transfer direction under the Mental Health Act 1983. The Tribunal later conceded that its decision was inadequately reasoned. The responsible medical officer also discharged the patient under section 37 so that fresh detention under section 3 could be arranged, and conceded that this decision was unlawful.

Scott Baker J quashed both decisions. The patient appealed, arguing that discharge of a section 37 order could not be undone because the order formed part of a criminal sentence, and that Article 7(1) prevented the resulting detention. The central issue was the legal effect of quashing the Tribunal’s discharge decision.

1. Appeal dismissed. The judge was right to quash the Tribunal’s inadequately reasoned discharge decision and the responsible medical officer’s unlawful discharge decision.
2. Where an inferior tribunal acts unlawfully, the High Court may declare the act unlawful, quash it and order reconsideration. Relief remains discretionary and may be withheld where, for example, there has been delay or relief would be futile. In the absence of such considerations, an unlawful public-law decision will usually be quashed.
3. The ordinary effect of quashing is retrospective. The impugned decision is treated as never having had legal effect. The court applied the principles stated in Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295 and Boddington v British Transport Police [1999] 2 AC 143.
4. The criminal context of a section 37 hospital order did not alter that result. The exceptional rule concerning an acquittal after trial, discussed in R v Hendon Justices ex parte DPP [1994] QB 167, did not apply and should not be extended. Quashing the Tribunal’s decision restored the patient’s status as detained under section 37.
5. Article 7(1) was not engaged. Even assuming that a section 37 order could be regarded as a penalty, sections 37 and 47 were already law when the offence was committed, so the provision did not impose a heavier penalty retrospectively.
6. Lord Justice Mance agreed with Lord Justice Dyson and added that the present case was not analogous to R v Simpson [1914] 1 QB 66. Lord Justice Clarke agreed with both judgments. The order was: appeal dismissed with costs, with assessment of the appellant’s costs.

• Court of Appeal (Civil Division): Appeal dismissed. Lord Justice Dyson gave the principal judgment, with Lord Justice Mance agreeing and Lord Justice Clarke agreeing with both judgments.
• Administrative Court, Queen’s Bench Division: Scott Baker J quashed the Tribunal’s decision and the responsible medical officer’s discharge decision after finding both unlawful.