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

A person detained after a finding of not guilty by reason of insanity is not treated as having a legally classified form of mental disorder merely because hospital doctors reach a diagnosis. The classification requirement applicable to an ordinary hospital order does not apply to a section 5 order under the Criminal Procedure (Insanity) Act 1964. The statutory “as if” treatment preserves tribunal safeguards and recall powers, but does not create an unstated classification. The Secretary of State’s recall power for a conditionally discharged restricted patient is expressed broadly and is not confined to recurrence of a previously classified disorder. That wider conclusion was reached alternatively. Prompt referral to a Mental Health Review Tribunal is a significant safeguard.

The appellant had been found not guilty by reason of insanity and ordered into hospital under section 5(1)(a) of the Criminal Procedure (Insanity) Act 1964. He was later conditionally discharged and recalled by the Secretary of State under section 42(3) of the Mental Health Act 1983 after concerns about his conduct and risk to others. His responsible medical officer reported psychopathic disorder but no mental illness.

Collins J dismissed the judicial review claim: [2004] EWHC 1025 (Admin). The appeal concerned whether recall and continued detention were lawful where the current disorder differed from, or had not been formally classified as, the disorder said to underpin the original detention. The court also considered the wider scope of the recall power.

Disposition and reasoning

The Court of Appeal unanimously dismissed the appeal. The emergency recall itself was not challenged. The issue was whether continued detention became unlawful when the responsible medical officer reported no mental illness but psychopathic disorder.

1. The court held that a person admitted following a section 5(1)(a) order under the Criminal Procedure (Insanity) Act 1964 was not subject to a statutory classification of a particular form of mental disorder. The insanity verdict and resulting order were silent on classification. Unlike an ordinary section 37 hospital order under the Mental Health Act 1983, section 37(7) did not apply. The Act gave hospital doctors no power to create a legally operative classification by diagnosis alone. (paras [16]–[21])
2. The words “as if” in Schedule 1 paragraph 2(1) of the 1964 Act applied the Mental Health Review Tribunal safeguards and recall powers to section 5 detainees. They did not imply a classification which the statutory scheme had not made. The decision in R (on the application of B) v Ashworth Hospital Authority [2003] EWCA Civ 547 concerned compulsory treatment under section 63 while a patient was detained. Its reasoning was tied to the classification required in an ordinary section 37 case and did not require classification in every Part III case. (paras [18]–[21], [26])
3. Alternatively, and not strictly necessary to the decision, section 42(3) conferred a broad recall power. It was not confined to recurrence of the particular disorder previously classified, and recall need not await formal classification by an MHRT. The one-month referral requirement under section 75(1)(a) was a significant safeguard. Civil admission powers under Part II did not restrict the Secretary of State’s recall power; they operated under a different regime, as illustrated by Dlodlo v MHRT for South Thames Region [1996] 36 BMLR 145. (paras [22]–[26])
4. The appellant accepted that the Article 5(1)(e) criteria for detention of a person of unsound mind were satisfied. The appeal therefore turned on domestic law.

The appeal was dismissed, with the agreed costs order. The application to appeal was directed to be dealt with in writing.

• Court of Appeal (Civil Division): Appeal dismissed. The court rejected the judicial review challenge to recall and continued detention and gave an alternative wider interpretation of section 42(3).
• Administrative Court: Collins J dismissed the judicial review claim: [2004] EWHC 1025 (Admin).