SC, R (On the Application Of) v The Mental Health Review Tribunal & Anor

A Mental Health Review Tribunal exercising its discretion under section 75(3) of the Mental Health Act 1983 may consider mental disorders other than the disorder previously specified by the Crown Court or Tribunal. No necessary link exists between the classified disorder and the grounds for retaining a conditionally discharged restricted patient’s liability to recall.

A broad statutory discretion is not incompatible with Convention requirements merely because the statute does not list exhaustive criteria. Foreseeability may arise from the statutory scheme, its purposes, judicial procedures, proportionality requirements and effective judicial review.

The claimant was convicted of causing grievous bodily harm with intent and made subject to a hospital order under section 37 of the Mental Health Act 1983, together with a restriction order under section 41. He was later conditionally discharged under section 73 and applied under section 75(2) for the restriction order to cease.

The Tribunal refused absolute discharge but varied his conditions. The claimant challenged the decision, alleging that the Tribunal had relied unlawfully on an unclassified personality disorder. He also argued that section 75(3) was incompatible with Articles 6 and 8 of the Convention because it supplied no sufficiently foreseeable criteria for the Tribunal’s discretion.

1. The claim for judicial review was dismissed. The Tribunal had not erred in law by considering evidence of psychopathic personality and other disorders in deciding whether the claimant should remain liable to recall.

2. Section 75(3) does not prescribe an exhaustive list of considerations. Applying the general public-law approach in R (Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315, the Tribunal must identify relevant considerations in light of the policy and objects of the statutory scheme. Where Convention rights are engaged, its decision must also reflect necessity and proportionality.

3. The reasoning in R (B) v Ashworth Hospital Authority [2003] EWCA Civ 547; [2003] 1 WLR 1886 concerned compulsory treatment under section 63. It did not establish that every exercise of powers concerning a restricted patient must be tied to the disorder specified in the original hospital order. Sections 73 and 75 contemplate continued liability to recall even where the patient is not currently suffering from the classified disorder, or from any mental disorder requiring detention.

4. In exercising section 75(3), the Tribunal may consider the offence, the nature and history of the patient’s mental disorder, risks of reoffending and recurrence, public safety, the need for future recall, and the conditions of discharge. A central question is whether it is appropriate for the patient to remain liable to recall for further treatment. Section 73 does not apply directly to section 75 applications, but its structure informs the discretion.

5. Section 75(3) was compatible with Articles 6 and 8. The statutory context gave adequate indications of the relevant factors and the nature of the discretion. Additional safeguards included an adversarial hearing before a judicial tribunal, Convention-compliant decision-making, judicial review, the Secretary of State’s duty to rely on up-to-date medical evidence on recall, and prompt referral to a Tribunal under section 75(1)(a). These safeguards protected against arbitrariness and made the law sufficiently foreseeable.

6. The claim was dismissed with no order for costs, subject to assessment of the publicly funded claimant’s costs.