Secretary of State for the Home Department, R (on the application of) v Mental Health Review Tribunal & Ors

A Mental Health Review Tribunal considering the discharge of a restricted patient must address both limbs of Mental Health Act 1983, section 73(1). It must determine whether the statutory grounds against discharge are made out and whether it is appropriate for the patient to remain liable to recall to hospital for further treatment. The recall question requires an express conclusion and adequate reasoning, even where the Tribunal is not satisfied that the patient currently has a qualifying mental disorder. Treatability is construed broadly: it includes treatment which alleviates or prevents deterioration in symptoms, and is not confined to conventional psychological or psychotherapeutic intervention. An absolute discharge cannot be deferred to allow the Secretary of State to reconsider the position. Failure to address the recall requirement vitiates the decision.

The Secretary of State challenged a written decision of the Mental Health Review Tribunal dated 19 November 2003 concerning Victor Wilson, a restricted patient detained under the statutory mental health regime. The Tribunal concluded that it was not satisfied that he was suffering from psychopathic disorder within section 72(1)(b)(i) of the Mental Health Act 1983, and directed an absolute discharge, deferred for 12 weeks.

The Tribunal accepted that continued detention might prevent deterioration but treated the patient as not treatable in the ordinary medical sense. It also failed to make an express finding under section 73(1)(b) concerning liability to recall for further treatment. The central issues were whether those errors invalidated the decision and what remedy should follow.

1. The decision was quashed and the matter remitted to a fresh Tribunal. The Tribunal’s failure to address section 73(1)(b) of the Mental Health Act 1983 was a material error of law.
2. Section 73(1) establishes cumulative conditions for the absolute discharge of a restricted patient. The Tribunal must be unsatisfied as to the matters identified in section 72(1)(b)(i) or (ii), and must also be satisfied that it is not appropriate for the patient to remain liable to recall to hospital for further treatment. The latter issue cannot be treated as subsumed in the diagnosis question.
3. The recall issue requires express consideration and reasoning. In a borderline case, the Tribunal must consider that symptoms may manifest differently in hospital and in the community, particularly after prolonged detention. The absence of presently established disorder does not remove the statutory requirement to consider whether recall remains appropriate.
4. The Tribunal’s approach to treatability was legally wrong. Following Reid v Secretary of State for Scotland [1999] 2 AC 512, treatment may include measures which alleviate or prevent deterioration in symptoms, rather than treatment directed at curing the underlying disorder. The Tribunal had accepted that continued custody could prevent deterioration. Nevertheless, that error did not itself vitiate the decision because, having reached its conclusion under section 72(1)(b)(i), it was unnecessary to decide treatability unless that conclusion was revisited.
5. A Tribunal may reject medical evidence, including uncontradicted evidence, but must give at least brief reasons explaining why it does so. The Tribunal’s unexplained rejection of the sole medical evidence was a serious concern, although it was not the pleaded ground on which the decision was quashed.
6. The Tribunal had no power to defer an absolute discharge. It had to make the statutory decision, rather than postpone discharge to enable the Home Secretary to review the position. On reconsideration, the fresh Tribunal had to assess the position as at the date of its own decision and address diagnosis, treatability, absolute discharge and conditional discharge as the statutory findings required.

This was a first-instance judicial review. The judgment refers to earlier authorities concerning the statutory recall requirement, including R (Secretary of State) v Mental Health Review Tribunal [2001] EWHC Admin 849 and R (H) v Ashworth Hospital Authority and Others [2002] EWCA Civ 923.