A-R, R (on the application of) v Secretary of State for the Home Department

For a restricted patient transferred to hospital under sections 48 and 49 of the Mental Health Act 1983, the Tribunal may assess discharge by reference to the practical alternative that would actually follow. Discharge under section 74(1)(a) means discharge from hospital and does not exclude return to prison. Where treatment or release into the community is impossible because of the patient’s underlying detention, the impossibility is materially equivalent to conditions of discharge being incapable of fulfilment. Continued detention may therefore remain lawful if the statutory detention criteria are satisfied. The Tribunal need not speculate about remote or contingent powers of release that have not been invoked. A separate recommendation to remain in hospital under section 74(1)(b) is not necessarily otiose. The claim was dismissed, and the court refused permission to appeal.

The claimant was a foreign national detained under the Immigration Act 1971 and certified under section 21 of the Anti-Terrorism, Crime and Security Act 2001. He was transferred from prison to Broadmoor Hospital under sections 48 and 49 of the Mental Health Act 1983.

The Mental Health Review Tribunal declined to recommend discharge under section 74(1)(a), and also declined to recommend continued hospital detention under section 74(1)(b). It considered that discharge would result in the claimant’s return to prison, where his condition would deteriorate. The judicial review challenged the Tribunal’s construction and application of section 74. The central issues were whether the Tribunal should have considered discharge into the community, and whether any misdirection had practical consequences.

1. The claim was dismissed. The Tribunal had not misdirected itself. Permission to appeal was refused, with liberty to seek permission from the Court of Appeal.
2. The statutory scheme must be read as a whole. The reference in section 74(1)(a) to a patient being entitled to discharge if subject to a restriction order is a statutory device referring back to the criteria in section 73. The word “discharge” means discharge from hospital. It does not require the Tribunal to assume discharge into the community or exclude consideration of return to prison.
3. Section 74(1)(b) is not thereby rendered otiose. Section 74 applies to different categories of patient, including those considered under section 74(2), and circumstances may exist in which discharge to prison is possible but continued hospital detention should nevertheless be recommended.
4. Section 53 provides a free-standing power by which the Secretary of State may, in appropriate circumstances, remit a person transferred under section 48 to a place where he could have been detained before the transfer. It does not support the claimant’s proposed construction of section 74. The Tribunal was not required to speculate about a possible future exercise of powers under section 42, particularly where no bail application had yet been made.
5. R(H) v Secretary of State for the Home Department [2003] 3 WLR 1278 provided a good guide. The distinction between conditions of discharge being impossible to fulfil and release itself being impossible was not material. Since the claimant could not in practice be treated in the community, continued detention for treatment was compatible with Article 5(1)(e) of the Convention. The section 21 certification was covered by the Human Rights Act 1998 (Designated Derogation) Order 2001.
6. Even if there had been a misdirection, it would not have altered the claimant’s position. The Tribunal had stated that it would have recommended continued hospital detention under section 74(1)(b), and the claimant could apply to SIAC for bail. The application for judicial review was therefore dismissed, with no order as to costs.

First-instance judicial review. The court refused permission to appeal and directed that any application for permission should be made to the Court of Appeal.