von Brandenburg, R (on the application of) v. East London and the City Mental Health NHS Trust & Anor

The House of Lords held that an approved social worker (ASW) may not lawfully apply for the involuntary admission of a patient recently discharged by a mental health review tribunal unless the ASW has formed a reasonable and bona fide opinion that he possesses information not known to the tribunal which puts a significantly different complexion on the case. The decision interprets the interplay between sections 2 and 3 of the Mental Health Act 1983 and the ASW's statutory duties in section 13.

The court rejected a rigid, general 'change of circumstances' test but required that a recent tribunal decision be given very great weight and must be taken into account; an application to readmit made in ignorance of a tribunal decision will not necessarily be unlawful if the ASW has performed his statutory duties reasonably. The court also recognised the authority of mental health tribunals and the need to respect their decisions in accordance with the rule of law and article 5 of the European Convention on Human Rights.

Background and parties: The appellant challenged the lawfulness of his readmission to hospital shortly after a mental health review tribunal had directed his discharge. The respondents were the hospital manager and an approved social worker who applied for admission under section 3 of the Mental Health Act 1983. The matter reached the House of Lords on appeal from the Court of Appeal.

Nature of the application: The appellant sought judicial review of the decision to admit him on 6 April 2000, contending that readmission after a tribunal discharge is unlawful unless there has been a relevant change of circumstances since the tribunal decision.

Issues framed:

• Whether an application for admission under section 2 or section 3 of the Mental Health Act 1983 can lawfully be made where a tribunal has recently directed discharge and there has been no relevant change of circumstances;
• What duty, if any, rests on an ASW to investigate or give reasons when seeking readmission inconsistent with a tribunal's discharge order;
• How to reconcile the ASW's statutory duties (section 13) with the need to respect tribunal decisions and article 5 rights.

Court's reasoning and conclusion: The House rejected a categorical requirement of a demonstrated change of circumstances as the sole test. Instead, consistent with the rule of law and the status of tribunals, an ASW who is aware of a tribunal discharge may only apply for admission if he reasonably and bona fide believes he has information not known to the tribunal that materially alters the assessment. The ASW must normally perform the enquiries required by section 13(2) (interviewing the patient and satisfying himself that hospital detention is appropriate) and may, in limited form, be required to inform the patient why an earlier tribunal decision is thought not to govern the case. The court declined to remit the factual question in this case because the material facts before the court showed a bona fide and reasonable judgment by the ASW and clinicians that the patient had deteriorated after the tribunal, notably by refusing medication.

Appeal dismissed. The House held that while a rigid 'change of circumstances' test is not required, an ASW aware of a tribunal discharge may only seek readmission if he reasonably and bona fide believes he has information not known to the tribunal which puts a significantly different complexion on the case. The House found that on the material before it the ASW and doctors had acted bona fide and reasonably because the patient had declined medication and deteriorated, and therefore dismissal was appropriate.

The case came to the House of Lords on appeal from the Court of Appeal ([2001] EWCA Civ 239). At first instance the application for judicial review was heard by Burton J in the High Court, and the House considered earlier authority including R v Managers of South Western Hospital, Ex parte M [1993] QB 683 in its reasoning.