B, R (on the application of) v The Mental Health Tribunal & Anor

Where a Mental Health Review Tribunal considers an application by a nearest relative for discharge under the Mental Health Act 1983, it may defer discharge under section 72(3) to a future date. The date may be selected to allow appropriate aftercare arrangements to be made, where the evidence supports the conclusion that immediate release would create a danger to the patient or others but that the danger may be avoided by proper aftercare.

The court did not decide whether non-dangerous best interests may be considered, or the precise meanings of “dangerous” and “likely” in section 72(1)(b)(iii). Permission was refused because the proposed claim would, in practical terms, be academic before the deferral period expired.

The claimant, the nearest relative of a patient detained under section 3 of the Mental Health Act 1983, challenged a Mental Health Review Tribunal decision. The Tribunal had directed that the patient be discharged, but deferred discharge for five weeks to enable an appropriate aftercare package to be arranged.

The claimant argued that section 72(3) did not permit deferral for that purpose in a nearest-relative application. The central issue was whether the statutory power to specify a future discharge date could take account of arrangements necessary to prevent danger on release.

1. Statutory power. Section 72(1)(b)(iii) and section 72(3) had to be read together. The reference to a patient being dangerous “if released” was not confined to immediate release. It could encompass release on a future date under section 72(3).

2. Accordingly, where the evidence showed that immediate release would be likely to result in danger to the patient or others, but that proper aftercare would prevent that danger, the Tribunal could defer discharge until it was reasonably assured that appropriate aftercare arrangements would be in place. The contrary submission was not reasonably arguable. The approach was supported by R v On the Application of Ashworth Hospital Authority v Mental Health Review Tribunal [2001] EWHC Admin 901, although that case did not concern a nearest-relative application.

3. For the purposes of the permission application, the court assumed that only considerations relating to danger could be taken into account. It did not decide whether best interests falling short of danger were relevant, nor whether “dangerous” required serious injury or whether “likely” required probability rather than a significant or substantial possibility.

4. The Tribunal’s reasons were insufficiently clear, but the evidence, including the patient’s previous refusal to eat or drink because she believed food and drink were poisoned, could have supported a finding that immediate release might endanger her health or life.

5. Permission was refused. By the time an effective claim could be heard, the five-week deferral period would probably have expired, making the claim academic. The judgment was directed to be reportable because it addressed the proper interpretation of section 72 in this context. The Official Solicitor was invited to act for the patient, and public funding certificates were to be filed within 14 days.

The judgment concerns an application for permission to bring judicial review proceedings against a Mental Health Review Tribunal decision. No prior appellate decision is stated in the judgment.