Li, R (on the application of) v Mental Health Review Tribunal

A restricted patient may be conditionally discharged where the tribunal is not satisfied that either the statutory detention criteria is met. Continued detention must remain linked to the patient’s mental disorder and must be a necessary and proportionate response to the risks arising on discharge. A tribunal’s reasons must explain how each relevant risk bears on those criteria. Detention cannot lawfully continue merely to provide further rehabilitative or sex-offender treatment unless that treatment is connected to an identified risk justifying detention. Where the reasons do not disclose how an apparently non-medical factor was used, the decision is unlawful for inadequacy of reasons.

The claimant, detained under sections 37 and 41 of the Mental Health Act 1983, challenged the Mental Health Review Tribunal’s refusal to conditionally discharge him. He suffered from paranoid schizophrenia and had responded well to medication. The Tribunal nevertheless considered that immediate discharge presented a small but unacceptable risk of re-offending and referred to his attitude towards women, the pressures of community life and access to illicit drugs.

The claimant argued that the Tribunal had relied on an irrelevant matter unrelated to mental illness and had failed to give adequate reasons addressing sections 72 and 73 of the Act. The central issue was whether the reasons showed a lawful and proportionate basis for continued detention.

1. Judicial review granted. The Tribunal’s decision was quashed and the claimant’s application was remitted for rehearing before a differently constituted tribunal. Costs were awarded, and permission to appeal was refused.

2. Sections 72 and 73 of the Mental Health Act 1983 require conditional discharge where the tribunal is not satisfied that the patient is suffering from mental disorder of a nature or degree making detention appropriate, or that detention is necessary for the patient’s health or safety or for the protection of others. The Tribunal was entitled to proceed on the basis that the first criterion was satisfied.

3. The relevant issue was the second criterion. Continued detention had to be linked to the claimant’s mental disorder and had to be a proportionate response to the risks involved in discharge. The approach in R (H) v MHRT North & East London Region [2001] 3 WLR 512 applied: the patient’s interests had to be weighed against those of the public in light of the particular facts.

4. The Tribunal was entitled to consider the risk that community pressures and illicit drugs might lead the claimant to stop taking medication and relapse. It could also consider whether his attitude towards women would increase the danger if he became disinhibited through relapse. However, the Tribunal’s reference to having reflected on that attitude did not explain whether it was relevant to failure to take medication, to the seriousness of any re-offending, or merely to the desirability of further treatment.

5. Further sex-offender treatment could not itself justify continued detention. It was lawful only if connected to an identified risk of re-offending arising from the claimant’s mental disorder. The Tribunal’s later evidence could not safely cure the original reasons because it was unclear and internally inconsistent with the contemporaneous notes.

First-instance judicial review in the Administrative Court. The Tribunal’s decision of 6 May 2003 was quashed, and the application dated 16 November 2002 was remitted for rehearing.