SR, R (on the application of) v Mental Health Review Tribunal

An application to a Mental Health Review Tribunal is governed by the patient’s statutory status when the application is made. A patient detained under section 3 who later becomes subject to after-care under supervision cannot continue that application as an application to terminate supervised discharge. The Tribunal’s jurisdiction under section 72(1) concerns patients liable to be detained, whereas section 72(4A) creates a separate jurisdiction for patients subject to after-care under supervision. A fresh application is therefore required following the change of status.

The claimant was detained under section 3 of the Mental Health Act 1983 and applied to the Tribunal to review his detention. Before the hearing, a supervision application under section 25A was accepted and he was discharged from detention under section 23, becoming subject to after-care under supervision.

The Tribunal cancelled the listed hearing and required a fresh application under section 66(1)(ga). The claimant sought judicial review, arguing that his existing application remained effective and could be used to challenge his supervised discharge. The central issue was whether the Tribunal retained jurisdiction to determine the original application after the claimant’s statutory status had changed.

1. Claim dismissed. The Tribunal was entitled to cancel the hearing. A fresh application was required in respect of the claimant’s status as a patient subject to after-care under supervision.
2. Section 66 concerns the process by which proceedings are begun. Section 72 defines the Tribunal’s powers by reference to the patient’s status. The natural meaning of section 72(4A) is that the patient is subject to after-care under supervision when the application is made.
3. An application made under section 66(1)(b) by a patient detained under section 3 is not equivalent to an application under section 66(1)(ga) by a patient subject to after-care under supervision. The two applications have different statutory periods, destinations, parties, notification requirements and evidential requirements.
4. Sections 77(1) and 77(2) support that conclusion. The statutory restriction is on making more than one application of the same authorised kind within the specified period. It does not prevent a further application of a different kind following a change in statutory status.
5. The provisions of section 72(1) treat applications by patients detained under sections 2 and 3 as one category. Accordingly, the decision in R (M) v South Thames Mental Health Review Tribunal [1998] C.O.D. 38 was accepted so far as it concerned a change from section 2 detention to section 3 detention. That reasoning did not extend to a change from detention to supervised discharge, for which section 72(4A) made separate provision.
6. The Tribunal Rules were consistent with this construction, although caution was required before using delegated legislation to interpret the parent Act. Practical difficulties also supported the conclusion, since the evidence and parties relevant to a supervised-discharge application differed from those relevant to an application concerning section 3 detention.