R (Von Brandenburg) v East London and The City Mental Health NHS Trust

A Mental Health Review Tribunal’s discharge decision does not create a statutory condition that a patient may be readmitted only after a demonstrable change of circumstances. The professionals must apply the statutory admission criteria independently, objectively, in good faith and with proper regard to the earlier decision. A recent discharge is always a relevant fact and, where circumstances have not appreciably changed, must receive very great weight. Ignoring it, or seeking admission without a convincing reason in the face of it, may be irrational and unlawful. The Tribunal’s decision cannot therefore be effectively overridden by the admission process. The appeal failed on the proposed statutory-construction ground, while the court left open whether the particular readmission was irrational.

The appellant had been detained under section 2 after an emergency admission under the Mental Health Act 1983. A Mental Health Review Tribunal ordered his discharge, deferred for seven days to allow arrangements to be made. Six days after that decision, and before discharge took effect, the approved social worker and doctors supported fresh detention under section 3.

Burton J rejected the argument that readmission was unlawful unless a relevant change of circumstances could be shown, following R v South Western Hospital Managers ex parte M [1993] QB 683. The appeal concerned whether the Act imposed that requirement and how the Tribunal’s discharge decision affected subsequent statutory decisions.

1. Appeal dismissed. The court rejected the proposed implication into the Mental Health Act 1983 of a general statutory requirement that readmission after a Tribunal discharge must be preceded by a relevant change of circumstances. The statutory criteria are assessed at the later time, and the professionals must exercise their independent judgment.
2. The position differs where readmission follows within days of discharge, especially where discharge has been deferred and the patient has remained under the hospital regime. A Tribunal discharge necessarily indicates that the admission criteria were then absent. Where there is a conflict between the Tribunal and the treating professionals, the Tribunal’s opinion is to prevail under the statutory scheme.
3. An approved social worker cannot properly be satisfied that an application ought to be made under section 13 without being aware of circumstances unknown to the Tribunal which invalidate its decision. In their absence, the application may be unlawful for irrationality. The court did not decide whether this particular readmission was irrational, because the issue had not been explored below.
4. Lord Justice Sedley agreed with the result but stated that the appellant had successfully challenged the broad proposition in Ex parte M that those making a section 3 application were never bound at any stage by an earlier Tribunal decision. A recent Tribunal discharge is always a relevant fact, must not be ignored, and may require a convincing reason for readmission. The second decision must be taken with an open mind, but not on a clean slate.
5. The court held that the statutory scheme does not leave professionals free effectively to overrule a Tribunal discharge, and found no incompatibility between compulsory admission and Articles 5(1) and 5(4) of the Convention. The application for remission to the High Court and leave to appeal were refused. Costs were awarded to both respondents under section 11 of the Access to Justice Act 1999.

• Court of Appeal: Appeal from Burton J in the Queen’s Bench Division (Administrative Court). The appeal was dismissed.
• High Court of Justice, Queen’s Bench Division (Administrative Court): Burton J rejected the proposed change-of-circumstances requirement and followed R v South Western Hospital Managers ex parte M [1993] QB 683.
• House of Lords: Leave to appeal was refused.