Oldcorn, R (on the application of) v West London Mental Health NHS Trust

Where a decision maintains a person’s detention, fairness may require reasons as of right. The reasons must address the statutory criterion that is legally decisive, and must be given when the decision is made, both orally and in writing where that is the decision-maker’s procedure. Later evidence may elucidate or correct an obvious expression error, but it cannot ordinarily cure a failure to address a key issue or fundamentally supplement inadequate reasons. Hospital managers reviewing a nearest relative’s discharge request under Mental Health Act 1983 section 25 therefore had to address specifically whether discharge would be likely to result in dangerous conduct. A decision that failed to do so was unlawful and was not saved by subsequent explanations.

The claimant was detained under section 3 of the Mental Health Act 1983. His mother assigned her nearest-relative rights to his father, who requested his discharge under section 23. The responsible medical officer barred discharge under section 25, and a hospital managers’ review panel upheld the detention.

The panel’s written reasons addressed the claimant’s illness, medication and treatment, but did not address whether he would be likely to act dangerously if discharged. The claimant sought judicial review, arguing that later statements by the panel chairman could not retrospectively cure the defective reasons. The central issue was whether the decision was lawful despite those later explanations.

1. The claim succeeded. The court declared the panel’s decision unlawful. Formal quashing was unnecessary because the decision was spent. The claimant was awarded costs in the usual legally aided form.

2. Section 25 of the Mental Health Act 1983 imposed an additional requirement beyond the criteria for detention under section 3. The panel had specifically to consider whether, if discharged, the claimant would be likely to act dangerously towards himself or others. That issue was central to the decision.

3. Following R (Wooder) v Feggetter and Mental Health Act Commission [2002] EWCA Civ 554, personal liberty was an interest of such importance that fairness required reasons as of right. The Code of Practice required the reasons for the managers’ decision to be recorded and communicated at the time. The duty therefore required reasons both orally and in writing.

4. The original reasons did not deal with dangerousness. The form also left unticked the relevant dangerousness and risk-history questions. Although evidence before the panel could have supported a finding of likely danger, the panel’s reasoning appeared to accept that the claimant had insight and focused instead on the insufficient duration of his medication. It did not explain why that circumstance established the statutory likelihood of danger.

5. The approach in R v Westminster Council, ex parte Ermakov [1996] 2 All ER 302 required caution in admitting later evidence. Later material might elucidate or correct an obvious error, but could not effect a fundamental alteration or wholesale supplementation of the stated reasons. The later statements did more than elucidate the original reasons and could not cure the omission.

6. The reasoning was consistent with R v Riverside Mental Health Trust ex parte Huzzey (29th April 1998), where failure to consider dangerousness under section 25 rendered the decision unlawful. The later evidence was therefore rejected as insufficient to validate the decision.

First-instance judicial review in the Administrative Court. The court declared the hospital managers’ decision unlawful and made no formal quashing order.