Regina v. East London and the City Mental Health NHS Trust and another (Respondents) ex parte von Brandenburg (aka Hanley) (FC) (Appellant)

An approved social worker who knows that a mental health review tribunal has ordered a patient's discharge may apply for the patient's readmission only upon forming a reasonable and bona fide opinion that information unknown to the tribunal puts a significantly different complexion on the case.

The information may concern previously unknown facts, refusal of medication or a significant deterioration in mental condition. The applicant cannot act merely because the professionals disagree with the tribunal. An approved social worker who performs the statutory assessment reasonably has no additional duty to discover an unknown tribunal decision. Where readmission is inconsistent in effect with a known decision, the patient must receive reasons, subject to protection against harmful disclosure.

The appellant was detained for assessment under section 2 of the Mental Health Act 1983. A mental health review tribunal ordered his discharge after a seven-day deferral. Before that discharge took effect, an approved social worker applied successfully for his detention for treatment under section 3.

The appellant sought judicial review, contending that readmission was unlawful without a relevant change of circumstances. Burton J rejected that contention and dismissed the application. The Court of Appeal dismissed the appeal in [2001] EWCA Civ 239, [2002] QB 235, while holding that a recent tribunal decision was highly material to a lawful readmission decision.

The central issue was whether a patient whose discharge has been ordered by a tribunal may lawfully be readmitted under section 2 or section 3 when no relevant change of circumstances has been demonstrated.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading speech. Lord Steyn, Lord Hobhouse, Lord Scott and Lord Rodger agreed with it and with the proposed order.

2. Per Lord Bingham, the common law protects personal liberty, while article 5(1)(e) permits detention for mental disorder when the strict statutory conditions are satisfied. Article 5(4) requires access to a court capable of determining the lawfulness of detention and ordering release. A mental health review tribunal exercises such judicial functions, and the rule of law requires its decisions to be given loyal effect.

3. Accordingly, an approved social worker who knows that a tribunal has ordered discharge cannot lawfully apply for admission merely because the social worker or doctors disagree with that decision. The applicant must form a reasonable and bona fide opinion that information unknown to the tribunal puts a significantly different complexion on the case. Such information may include an unknown suicide attempt, a refusal to continue medication on which discharge depended, or a significant deterioration after the hearing.

4. The tribunal determines the patient's condition at the time of its review. Mental illness and associated risks may fluctuate, so its decision does not determine the patient's condition indefinitely. A doctor whose opinion was rejected remains obliged to give an honest professional assessment, but it is the approved social worker who makes the statutory application and must satisfy the governing test.

5. An approved social worker must interview the patient and assess whether hospital detention is the most appropriate means of care and treatment under section 13(2) of the Mental Health Act 1983. Those duties will ordinarily involve enquiries into the patient's background and medical history. If a reasonably performed assessment does not reveal an earlier tribunal decision, the statute imposes no wider duty to search for one.

6. Where a known tribunal decision is displaced in effect by a new application, the patient must be told why it is not regarded as governing the case. Reasons may be expressed generally, and information potentially harmful to the patient or others need not be disclosed.

7. On the untested material, the appellant had refused medication and his condition had significantly deteriorated. The approved social worker's bona fides were unchallenged and his decision was reasonably supportable. The matter was not remitted to the High Court.

1. House of Lords: The House unanimously dismissed the appeal in [2003] UKHL 58. It reformulated the legal control governing readmission following a tribunal discharge and declined to remit the factual issue.
2. Court of Appeal: The court dismissed the appeal in [2001] EWCA Civ 239, [2002] QB 235. It rejected a strict change-of-circumstances condition but held that a recent discharge decision must receive substantial weight.
3. High Court: Burton J followed R v Managers of South Western Hospital, Ex p M [1993] QB 683, rejected the proposed legal condition and dismissed the judicial review application without determining whether the circumstances had changed.