Secretary Of State For Home Department, R (on the application of) v Mental Health Review Tribunal & Anor

A Mental Health Review Tribunal’s failure to notify the Secretary of State of an application by a restricted patient for absolute discharge is a fundamental breach of the statutory procedural scheme and natural justice. The Secretary of State has the exclusive duty, in the case of a conditionally discharged restricted patient, to provide views on suitability for absolute discharge. The reviewing court must not speculate about what those views would have been or whether they would have affected the outcome. Although relief remains discretionary and its consequences must be considered, the appropriate remedy for this fundamental defect is to quash the decision and remit the matter to a differently constituted tribunal.

The claimant sought judicial review of the Tribunal’s decision to grant Angela Ogden an absolute discharge under section 73 of the Mental Health Act 1983. She had been detained following conviction for arson under a hospital order and restriction order, later receiving a deferred conditional discharge.

The Tribunal failed to notify the Secretary of State of the application and hearing. He therefore could not provide the statement required by the Mental Health Tribunal Rules 1983, disclose his views, submit evidence or participate in the hearing. The Tribunal accepted the error and consented to its decision being quashed. The interested party argued that there had been substantial compliance and that relief should be refused because the Secretary of State’s participation would not have changed the outcome.

1. Relief and procedural discretion. The court accepted that relief on judicial review is discretionary. In deciding whether to quash, the court must consider the concrete circumstances and continuing chain of events, including the nature of the failure, the identity of the applicant, lapse of time, and the effect on the parties and the public, as discussed in Main v Swansea City Council and Others [1985] 45 P & CR 26.
2. Statutory scheme. Under section 73 of the Mental Health Act 1983, the Tribunal was required to direct absolute discharge only if the statutory conditions were met. For a conditionally discharged restricted patient, Rule 6(3) of the Mental Health Tribunal Rules 1983 imposed on the Secretary of State the duty to provide, among other matters, his views on suitability for absolute discharge. He was the only party capable of representing the public interest in opposing discharge.
3. Fundamental defect. The failure to notify the Secretary of State meant that the Tribunal did not have the views which the statutory scheme required it to consider. The defect therefore fundamentally undermined the proceedings and constituted a breach of natural justice. The principle in R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department [1988] AC 120 supported a complete rehearing where a vitally interested party had been denied a hearing.
4. No speculative assessment. The reviewing court could not decide what the Secretary of State’s views would have been or whether his participation would have altered the result. That assessment belonged to a properly constituted Tribunal following compliance with the statutory rules.
5. Order. Despite the court’s sympathy for the interested party and the likely distress caused by a rehearing, the only proper course was to quash the Tribunal’s decision and remit the matter to a differently constituted Mental Health Review Tribunal. An order was also made for detailed assessment of the interested party’s publicly funded costs.

• High Court (Administrative Court): The claim for judicial review was allowed. The Tribunal’s decision of 15 September 2003 was quashed and the matter was remitted to a differently constituted Mental Health Review Tribunal.