R, R (on the application of) v Shetty (Responsible Medical Officer) & Anor

Under section 50(1) of the Mental Health Act 1983, the responsible medical officer decides only the clinical question whether the patient no longer requires treatment in hospital for mental disorder. The Secretary of State decides whether, where and how the patient is to be dealt with.

Article 5(1)(e) requires detention in a suitable therapeutic environment only where objective medical expertise shows that the mental condition continues to warrant compulsory confinement in such an environment. Article 5(4) does not govern a proposed future move from presently lawful hospital detention. In a domestic setting, a Convention breach must be established as more likely than not; a possible relapse is insufficient for Article 3.

The claimant was serving a life sentence for manslaughter and had twice been transferred from prison to hospital under sections 47 and 49(1) of the Mental Health Act 1983. After the responsible medical officer notified the Secretary of State under section 50(1) that hospital treatment was no longer required, the Secretary of State decided to remit him to prison.

The claimant sought judicial review and relief under section 7 of the Human Rights Act 1998. He argued that the decisions breached Articles 3 and 5, that Article 5(4) required a court to decide whether he remained of unsound mind, and that the responsible medical officer had to consider prison facilities and future Convention consequences.

1. Claim against the responsible medical officer. Permission to apply for judicial review was refused. Section 50(1) gives the responsible medical officer a narrow clinical function: to notify the Secretary of State if, in the officer’s professional opinion, the patient no longer requires hospital treatment for mental disorder. The officer must make proper inquiries, reach a fair and rational clinical judgment, give reasons and identify any special assumptions. The officer need not investigate prison facilities or decide whether returning the patient will breach Articles 3 or 5.
2. Role of the Secretary of State and the court. The Secretary of State alone decides whether to act on the notification and whether to remit the patient to prison, another institution, release him on licence or discharge him under supervision. The court’s role is supervisory. It must subject the decision to the most anxious scrutiny and rigorously examine the evidence, but must not substitute its own judgment for that of the statutory decision-maker.
3. Articles 5 and 5(4). The obligation to detain a person of unsound mind in a hospital, clinic or other appropriate institution applies only where objective medical expertise establishes a continuing condition warranting compulsory confinement in a suitable therapeutic environment. A prison may in some circumstances be an appropriate institution. Article 5(4) was not engaged because the claimant challenged a threatened future move from presently lawful hospital detention. Section 50(1) was compatible with the Convention.
4. Article 3 and future harm. The relevant domestic test was whether it was clear that a Convention violation would occur, meaning that a violation was more likely than not. The claimant retained the burden of establishing the underlying violation. A probable relapse, without clear evidence that the resulting treatment and suffering would amount to inhuman or degrading treatment, did not satisfy that test.
5. Outcome. The Secretary of State was entitled to prefer the unanimous clinical view of the treating team to the contrary opinion. The claim against him was dismissed. Further disclosure, an adjournment and cross-examination were unnecessary.