L, R (on the application of) v Secretary of State for the Home Department & Anor

Where a restricted patient is recalled to hospital because of an emergency, continued detention is not necessarily unlawful merely because the disorder newly requiring treatment differs from the disorder originally recorded. The recall may lawfully continue while the statutory process for review and any reclassification is pursued, provided that the emergency is genuine, the necessary psychiatric report is obtained promptly, and the statutory tribunal safeguards are observed.

The general principle that continuing detention must rest on the correct classification remains valid. It does not require automatic discharge during the interval before a Mental Health Review Tribunal can consider reclassification, particularly where release would create an obvious danger to the public.

The claimant had been found not guilty of murder by reason of insanity and detained under a hospital order treated as subject to restrictions. He was later conditionally discharged by a Mental Health Review Tribunal, with liability to recall.

He was recalled after concerns arose about his relationship with a vulnerable girl, drug abuse, threats and conduct said to resemble the circumstances preceding the original offence. A psychiatrist reported that he was not detainable on the basis of mental illness but was suffering from psychopathic disorder requiring hospital treatment.

The claimant argued that detention became unlawful because the original classification was mental illness. The central issue was whether recall and continued detention could lawfully continue pending tribunal consideration of the different disorder.

1. The claim was dismissed. The claimant’s recall had properly been based on an emergency, and there had been compelling reasons for concern about danger to the public and to the claimant.
2. The European Convention requirements described in Kay v United Kingdom and Winterwerp v The Netherlands were satisfied. An emergency may justify recall without a prior psychiatric report, but a report fulfilling the necessary medical criteria must be obtained as soon as practicable. The report in this case provided that safeguard.
3. The claimant relied on R(B) v Ashworth Hospital Authority, where the Court of Appeal held that compulsory treatment under section 63 of the Mental Health Act 1983 was confined to the classified disorder. The general proposition that continuing detention must depend upon correct classification was accepted.
4. That decision did not govern the present circumstances. It was not concerned with initial detention or recall where an emergency may arise from a different disorder. For restricted patients, reclassification could be undertaken only by the Mental Health Review Tribunal, and the statutory provisions required the case to be considered speedily. The law did not require an automatic discharge in the interim.
5. The report showed that psychopathic disorder had worsened in the community and that hospitalisation was necessary for treatment and protection. Detention was therefore lawful pending the Tribunal’s consideration. The stay on the Tribunal hearing was removed, and permission to appeal was refused by the High Court, leaving any application to the Court of Appeal.