Secretary of State for the Home Department, R (on the application of) v Mental Health Review Tribunal & Anor

Under Mental Health Act 1983, “nature or degree” is disjunctive. A tribunal must separately assess whether detention is appropriate and whether treatment in hospital is necessary. It must assess the risks arising from the patient’s illness, including risks likely to arise after discharge through relapse or substance misuse, before considering recall powers or discharge conditions. Conditions and recall cannot substitute for that assessment unless the tribunal’s reasons show how they address the risks. A tribunal’s reasons may be brief, but they must reveal the basis of its findings and the reasoning process where disputed evidence is accepted or rejected.

The Secretary of State sought judicial review of the Mental Health Review Tribunal’s decision to defer and then order DH’s conditional discharge under section 73(7) of the Mental Health Act 1983. DH was detained under sections 37 and 41 following a serious assault and had a history of relapse associated with alcohol and drug misuse.

The Tribunal found that DH’s illness was of a nature justifying detention but not presently of a degree justifying it. It ordered conditional discharge subject to a package of community conditions and continued liability to recall. The central issues were whether the Tribunal had misdirected itself on “nature or degree”, failed properly to assess future risk, acted irrationally, or gave inadequate reasons.

1. Claim allowed. The Tribunal’s decision was quashed and remitted to a differently constituted Tribunal.
2. Section 72(1)(b) required separate consideration of the appropriateness and necessity tests. The statutory expression “nature or degree” was disjunctive. The Tribunal’s statement that DH’s illness was of a nature justifying detention but not of a degree doing so treated the expression conjunctively and amounted to a misdirection.
3. The misdirection was not cured by the Tribunal’s separate conclusion on necessity. The reasons did not demonstrate that the statutory questions had been considered independently. The assessment of risk had to precede consideration of recall. Recall powers could properly be considered after risk had been assessed, but could not be used to avoid the statutory scheme.
4. The Tribunal’s general reference to the discharge conditions did not show how those conditions addressed the relevant risks. The present case was distinguishable from Campbell v Home Secretary, where the conditions formed an express part of the reasoning. The conditions could not simply be read back into the Tribunal’s reasons.
5. The rationality challenge failed. Although the conclusion that risk could escalate quickly sat uneasily with dealing with risk solely through recall, the high threshold for irrationality was not met because there was evidence supporting absolute discharge and conditional discharge.
6. The reasons were not inadequate as such. They disclosed the basis of the decision, despite the misdirection. A specialised tribunal need not provide elaborate reasons, but its reasons must disclose its basis and, where disputed expert evidence is rejected, indicate the reasoning process.

Permission to bring the judicial review was granted by His Honour Judge Wilkie QC on 14 August 2003. The High Court allowed the claim and remitted the matter to a differently constituted Tribunal. Permission to appeal was refused, with the claimant directed to apply to the Court of Appeal.