Secretary of State for the Home Dept v The Mental Health Tribunal & Anor

Before directing the absolute discharge of a restricted patient, a mental health review tribunal must address two separate questions under Mental Health Act 1983: first, whether the statutory detention and treatment criteria are met; and second, whether it is nevertheless appropriate for the patient to remain liable to recall to hospital. A finding that the patient no longer has a specified mental disorder does not answer the second question. A tribunal’s specialist conclusion need not contain a detailed exposition where its reasoning is sufficiently clear. If an absolute-discharge decision is quashed, the case should be remitted for lawful reconsideration. The court may, where the evidence discloses no apparent deterioration, defer sealing the quashing order briefly to avoid detention on a technicality while an expedited hearing or other lawful arrangement is pursued.

The claimant challenged the decision of a Mental Health Review Tribunal which had absolutely discharged BR, a restricted patient previously detained under the Mental Health Act 1983. Both medical experts agreed that BR no longer suffered from mental illness. They disagreed about whether he had psychopathic disorder, and the tribunal accepted the evidence against reclassification.

The tribunal concluded that no detainable condition was established and directed absolute discharge. It did not separately determine whether BR should remain liable to recall to hospital. The central issues were whether the tribunal had adequately explained its refusal to reclassify BR, whether it had applied the statutory absolute-discharge test, and what order should follow if its decision was unlawful.

1. The claim succeeded in part. The tribunal was entitled, on the specialist evidence, to conclude that BR did not have psychopathic disorder. It was not required to give a detailed exposition explaining why the symptoms relied upon did not satisfy that category. The reasons were adequate, applying the approach in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and English v Emery Reimbold [2002] 1 WLR 2409.
2. Under section 73(1) of the Mental Health Act 1983, the tribunal had to address two distinct questions. It first had to consider the matters identified in section 72(1)(b)(i) and (ii). If those matters were not established, it then had to decide whether it was appropriate for BR to remain liable to recall to hospital for further treatment. That second question had to be answered expressly. The approach in R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 1029 (Admin) and R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2001] EWHC 849 (Admin) was followed.
3. The tribunal’s alteration of the printed form showed that it had not separately considered the appropriateness of continued liability to recall. Its absolute-discharge decision was therefore quashed and the matter remitted for reconsideration, preferably by the same panel if practicable without delaying the hearing.
4. The court recognised that sealing the order would ordinarily restore BR’s pre-existing detained status, following R (on the application of Wirral Health Authority) v Mental Health Review Tribunal and DE [2001] EWCA Civ 1901. However, there was no evidence of deterioration since the tribunal hearing, and both parties had proceeded on the basis that some form of discharge was appropriate. The court therefore directed that the quashing order should not be sealed for 21 days, while the tribunal arranged the earliest possible hearing and current medical evidence was obtained. The court noted possible statutory alternatives, including conditional discharge under section 42 and leave under section 17, but did not direct the Secretary of State or the responsible medical officer to use them.
5. Reid v Secretary of State for Scotland [1999] 2 AC 512 was distinguished. It concerned a patient with a psychopathic disorder found to be untreatable. There was no equivalent finding in BR’s case.

This was a first-instance judicial review in the Administrative Court of the Mental Health Review Tribunal’s decision dated 12 April 2005. The tribunal’s direction for absolute discharge was quashed and the matter was remitted for an expedited reconsideration.