R (H) v Ashworth Special Hospital Authority (R (Ashworth Special Hospital Authority) v West Midlands and North West Region Mental Health Review Board)

A court may stay a Mental Health Review Tribunal discharge decision pending judicial review, even after it has been implemented. The power must be exercised sparingly. Permission to apply for judicial review is insufficient without a strong case of unlawfulness, cogent evidence of risk or dangerousness, and an expedited substantive hearing.

A recent tribunal discharge cannot be overridden by re-admission under the Mental Health Act 1983 merely because clinicians disagree with it or have advice that it is arguably unlawful. Re-admission requires material circumstances unknown to the tribunal. Where discharge depends on essential after-care, the tribunal must address its availability and should adjourn if it is uncertain. Reasons must explain the resolution of critical expert and after-care issues.

H had been detained for treatment at Ashworth Special Hospital. On 22 March 2001 the Mental Health Review Tribunal directed his immediate discharge. No suitable accommodation or after-care package was in place. H remained voluntarily in hospital, but was subsequently detained under section 5(2) and then re-admitted under sections 3 and 13 of the Mental Health Act 1983.

Ashworth obtained judicial review of the tribunal decision. H separately challenged his re-admission. Stanley Burnton J quashed the tribunal’s discharge decision as unreasonable and inadequately reasoned, and dismissed H’s challenge to re-admission. H appealed both rulings.

The common issues were whether the court could stay an implemented discharge decision, whether clinicians could re-section a recently discharged patient, and whether the tribunal had lawfully ordered immediate discharge.

1. Appeal allowed in part. The court allowed H’s appeal against his re-admission on 29 March 2001, but dismissed his appeal against the quashing of the tribunal’s decision of 22 March.

2. Stay jurisdiction. Dyson LJ held, with Mummery LJ agreeing, that CPR 54.10 permits a stay of a tribunal discharge decision even where discharge has been fully implemented. A successful quashing order treats the discharge decision as having had no legal effect; an interim stay may therefore suspend its effect pending the judicial review. The discretion is exceptional because a stay deprives a recently discharged patient of liberty. It requires a strong case of unlawfulness, cogent evidence of risk and a hearing with habeas-corpus-like urgency. Simon Brown LJ agreed that a stay could preserve the status quo before release, but would not ordinarily use it to secure the forcible return of an already released patient without a relevant change of circumstances.

3. Re-admission. Applying R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2001] EWCA Civ 239, the tribunal’s view prevails where clinicians merely disagree with a recent discharge decision. Advice that the decision is arguably unlawful, or the commencement or imminence of judicial review, does not justify re-sectioning. The professionals must identify material circumstances unknown to the tribunal, rather than re-characterise the same concerns as new circumstances. On the facts, the principal grounds for re-admission had already been rejected by the tribunal and there were no significant new circumstances.

4. Tribunal decision. The tribunal acted unreasonably in directing immediate discharge without considering whether essential suitable after-care would be available. Where the discharge criteria depend on after-care and its availability is uncertain, the safer course is adjournment to obtain the necessary information. The reasons were also inadequate. They did not explain the rejection of the substantial body of expert evidence against discharge, nor address the critical after-care issue. The decision was therefore properly quashed.

5. The court further stated that fairness ordinarily requires disclosure of the medical member’s significant views derived from interviewing the patient. It rejected any absolute rule requiring an adjournment whenever a tribunal prefers oral evidence to untested written medical reports.

• Court of Appeal: H’s appeal was allowed as to re-admission under section 3, but dismissed as to the tribunal decision: [2002] EWCA Civ 923.
• Queen’s Bench Division: Stanley Burnton J, on 9 November 2001, quashed the Mental Health Review Tribunal’s discharge decision and dismissed H’s challenge to his re-admission.