CS, R (on the application of) v Mental Health Review Tribunal & Anor

Detention under section 3 of the Mental Health Act 1983 does not require continuous in-patient residence. The relevant question is whether the treatment plan, viewed as a whole, includes a significant and justified component of medical treatment in hospital. That component may consist of ward reviews, psychological treatment, medication management, leave planning and a phased transition to community care.

A tribunal may lawfully retain detention where the statutory criteria remain satisfied and the evidence shows that informal treatment would create a real risk of rapid deterioration. Article 5 does not impose a free-standing proportionality test beyond the requirement that detention permitted by domestic law must not be arbitrary.

CS was detained under section 3 of the Mental Health Act 1983 after recurrent psychotic episodes, relapse following non-compliance with medication and disengagement from community services. Following a tribunal hearing, the Mental Health Review Tribunal refused to discharge her, relying on the continuing need for depot medication, Assertive Outreach Team support and a phased transfer to community care.

By the time of the judicial review, CS had been discharged. She therefore sought a declaration that her detention had been unlawful and damages under the Human Rights Act 1998. The issues were whether the tribunal had rationally applied the statutory detention criteria and whether continued liability to recall breached Article 5 ECHR.

1. The claim was dismissed. The tribunal had acted lawfully and rationally on the evidence available to it.
2. Sections 72(1) and 72(2) of the Mental Health Act 1983 require discharge where the statutory criteria for detention are no longer satisfied. The relevant criteria substantially mirror those for admission under section 3.
3. Detention under section 3 does not necessarily involve continuous residence in hospital. Applying the approach in R v Barking Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 106, the question is whether the treatment plan includes medical treatment in hospital as a significant and justified component. Treatment must be considered as a whole.
4. The hospital component may include periodic ward reviews, discussion and adjustment of medication, psychological work, motivational and insight work, planning and authorisation of leave, and the managed transfer from hospital-based to community-based care. Overnight stays are not essential. The continued existence of the hospital as a refuge, without more, is not itself treatment in hospital.
5. The court adopted the analysis of Wilson J in R v (DR) v Mersey Care NHS Trust [2002] EWHC 1810. The restrictive interpretation associated with R v Hallstrom, Ex parte W [1986] QB 1090, namely that section 3 required an in-patient treatment plan, was treated as obiter and its distinction between treatment at hospital and treatment in hospital was rejected as too subtle.
6. The evidence demonstrated a carefully managed treatment programme aimed at preventing relapse and achieving safe discharge. The tribunal was entitled to find that CS’s limited insight, history of stopping medication and disengaging from services, and rapid deterioration on previous occasions made informal compliance uncertain.
7. There was no evidential basis requiring consideration of supervision under section 25A or guardianship under section 8. Neither alternative could require medication, and the tribunal was entitled to conclude that changing the established regime would disrupt the treatment plan.
8. Article 5 does not add a separate proportionality requirement to the statutory criteria in this context. The relevant Convention question was whether domestic law permitted arbitrary detention. It did not. In any event, the interference with CS’s freedom was minimal in relation to the objective of achieving a safe return to community care.

First-instance judicial review in the Administrative Court. The judgment under challenge was the Mental Health Review Tribunal’s decision of 2 February 2004 refusing discharge. The court dismissed the claim and declined to grant the declaration or damages sought.