C, R (on the application of) v Secretary of State for the Home Department

A reference under section 71(1) of the Mental Health Act 1983 cannot properly be used to remove a case from a Mental Health Review Tribunal where the Tribunal’s deferred conditional-discharge decision remains open to reconsideration. A Tribunal which defers conditional discharge under section 73(7) remains seised of the case. Its decision is provisional until the discharge is directed, and it may reconsider the matter if circumstances change or additional material emerges. Where material was omitted from the original hearing, the proper course is to invite the Tribunal to reconsider its decision. A fresh reference which terminates the Tribunal’s jurisdiction is unjustified in those circumstances.

C was detained in Broadmoor under a hospital order and restriction order. A Mental Health Review Tribunal found that the statutory criteria for detention were no longer satisfied, but deferred conditional discharge until satisfactory arrangements were made. It imposed a condition requiring access to psychiatric treatment, rather than supervision by a psychiatrist.

The Secretary of State later received material showing that a social worker considered psychiatric supervision necessary. He referred C’s case back to the Tribunal under section 71(1). Collins J quashed the reference, holding that the Secretary of State had to consider whether the omitted material would probably have altered the result. The central issue on appeal was whether the reference was lawful and whether the Tribunal could reconsider its deferred decision.

1. Appeal dismissed. The Secretary of State’s reference under section 71(1) was unlawful and the quashing order made by Collins J was upheld, although for different reasons.
2. The Court held, in R(IH) v Nottinghamshire Healthcare NHS Trust and Others [2001] EWHC Admin 1037, that Campbell v Secretary of State for the Home Department [1988] 1 AC 120 could not stand with Article 5(4) of the Convention. The Court departed from Campbell to give sections 72 and 73 of the Mental Health Act 1983 a Convention-compatible interpretation.
3. Where a Tribunal decides to direct conditional discharge but defers the direction under section 73(7), it remains fully seised of the case. The decision is provisional. Before the discharge is directed, the Tribunal may reconsider its decision if circumstances change or additional material is brought to its attention.
4. On the facts, the Secretary of State should have invited the Tribunal to reconsider its decision in light of the omitted evidence concerning psychiatric supervision. A fresh reference under section 71(1), which set aside the earlier decision and deprived the Tribunal of jurisdiction, was unjustified.
5. The Secretary of State’s argument that he had to act on the basis that Campbell remained good law was rejected. The issue was the lawfulness of his decision, not whether his conduct should be criticised. The appeal was dismissed with costs.

• Administrative Court, Queen’s Bench Division: Collins J quashed the Secretary of State’s reference under section 71(1) of the Mental Health Act 1983.
• Court of Appeal (Civil Division): The appeal was dismissed with costs. The quashing order was upheld on the basis that the Tribunal remained entitled to reconsider its provisional deferred-discharge decision.