A, R (on the application of) v Secretary of State for the Home Department & Anor

A deferred conditional discharge remains under review until the related proceedings are finally disposed of. Rule 17(1) of the Mental Health Review Tribunal Rules 1983 therefore generally supports continuity in the tribunal’s constitution, but creates only a defeasible right. The chairman may arrange a hearing before different members where continuation is impracticable or impossible without undue delay. A transfer between tribunal areas does not, by itself, eliminate the rule’s application. In deciding whether a stay is justified, the court should assess the practical importance of continuity, the time since the earlier hearing, the availability of the original members, any credibility findings, the evidence likely to be considered, and the need for a speedy hearing under article 5(4) of the European Convention on Human Rights.

The claimant was subject to a restriction order and had previously obtained a deferred conditional discharge from a Mental Health Review Tribunal. She was later transferred from a hospital in Hampshire to one in Berkshire, moving between tribunal jurisdictions. The Secretary of State referred her case back under section 71(1) of the Mental Health Act 1983, but withdrew that referral shortly before the hearing.

The tribunal was instead due to monitor implementation of the deferred conditional discharge. The claimant challenged the proposed constitution of the tribunal because it would not consist of the same members as the tribunal that had heard her application in 2001. The issues were whether she had an arguable right to continuity of membership, what qualifications applied to that right, and whether a stay should be granted.

1. Application refused. Permission for judicial review and a stay of the forthcoming tribunal hearing were refused.
2. The Court of Appeal decisions in R(C) v Secretary for State for the Home Department [2002] EWCA Civ 647 and R(IH) v Secretary of State for the Home Department and another [2002] 3 WLR 967 established that monitoring and continuing consideration of a deferred conditional discharge constituted proceedings in relation to the patient which had not been finally disposed of.
3. Accordingly, rule 17(1) of the Mental Health Review Tribunal Rules 1983 applied. Rule 8(1) did not apply because the matter was one continuing set of proceedings, rather than a class or group of proceedings. Rule 17(1) gave a defeasible right to continuity of tribunal membership, reflecting practical efficiency and the patient’s perception of fairness.
4. The transfer to another tribunal jurisdiction did not prevent rule 17(1) from applying. Rule 17(2) provided for transfer of pending proceedings and recognised the practical consequences of territorial jurisdiction. Any defect in notice of transfer was formal and did not justify a stay.
5. Rule 17(1) did not require an entirely new tribunal merely because one member was unavailable. The relevant question was whether completion by the original members was impracticable or impossible without undue delay. The chairman’s assessment that the original members were unavailable without undue delay was not shown to be perverse.
6. Continuity was less important where 15 months had passed, no adverse credibility findings had been made, the earlier decision and evidence were recorded in writing, and new medical evidence would be available. The risk of unfairness was remote, while article 5(4) required a speedy hearing. The tribunal could proceed fairly on the proposed date.