Home Secretary v Mental Health Review Tribunal, Re BR

Judicial review relief must be tailored to the justice of the case. Quashing a Mental Health Review Tribunal decision does not invariably require a patient to return to a status in which detention continues solely at the Home Secretary’s discretion. Where the Tribunal has lawfully found that the statutory criteria preventing discharge are not met, the patient is at least entitled to conditional discharge, even if the Tribunal has failed to decide whether liability to recall remains appropriate under the Mental Health Act 1983. Conditional discharge preserves lawful recall where supported by evidence. The court may therefore quash only the absolute-discharge element, declare conditional discharge pending rehearing, and remit the outstanding question.

BR was detained as a restricted patient after being convicted of manslaughter on the ground of diminished responsibility. A Mental Health Review Tribunal ordered his absolute discharge on 12 April 2005. On judicial review, Bean J quashed that order on 10 November 2005 and directed reconsideration by the Tribunal.

The quashing order left BR liable to detention and dependent on the Home Secretary for release. The Tribunal appealed against that consequence and sought interim relief pending its reconvened hearing. The central issue was whether the High Court should have tailored its order so that BR was conditionally at liberty, rather than detained, pending redetermination.

The appeal was allowed and the relief was recast to preserve BR’s liberty pending the Tribunal’s rehearing.

1. Lawfulness of detention. Article 5(1)(e) of the European Convention on Human Rights permits detention of a person of unsound mind only where it is lawful and supported by evidence. The same standard governs a decision by the Home Secretary to release or recall a restricted patient.
2. Flexibility of judicial review remedies. The consequence identified in R (Wirral HA) v MHRT—that a quashed release decision becomes a nullity and continued detention becomes lawful—applies once a quashing order has been made. It did not determine whether quashing was the appropriate remedy in a case where its immediate consequence would be detention without supporting evidence. Judicial review relief is sufficiently flexible to permit partial quashing, declarations and mandatory orders tailored to the case.
3. Statutory entitlement. The Tribunal had lawfully determined that BR did not satisfy the relevant criteria under sections 72(1)(b)(i) and (ii) of the Mental Health Act 1983. He was therefore at least entitled to conditional discharge. An absolute discharge required a further determination under section 73(1)(b) that it was not appropriate for him to remain liable to recall. The Tribunal’s failure to decide that question did not eliminate his entitlement to conditional discharge.
4. Rehearing and interim status. The Tribunal had to decide the matter on the evidence as it stood at the rehearing. Conditional liberty would not prevent it from addressing any deterioration occurring meanwhile. A conditionally discharged patient remained liable to recall under section 73(4)(a) on a warrant under section 42(3), provided there was lawful evidential material for the Home Secretary to act.

The court ordered: (1) the Tribunal’s decision was quashed insofar as it directed absolute discharge; (2) BR was to be treated as conditionally discharged; and (3) the Tribunal was required, on reconvening, to determine whether continued liability to recall was appropriate for the purposes of sections 73(1) and 73(2).

1. Court of Appeal (Civil Division): allowed the appeal and substituted partial quashing, a declaration of conditional discharge and a mandatory order concerning rehearing under Mental Health Act 1983 sections 73(1) and 73(2): [2005] EWCA Civ 1616.
2. High Court of Justice, Administrative Court: Bean J quashed the Tribunal’s absolute-discharge order and directed reconsideration by the Tribunal: [2005] EWHC 2468 (Admin).
3. Mental Health Review Tribunal: ordered BR’s absolute discharge on 12 April 2005.