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

The Secretary of State may refuse consent to community leave for a restricted patient where, after an informed assessment, there is a significant risk of absconding and serious harm if the patient absconds. Immigration status, fear of removal, possible reprisals, offending history and clinical evidence may all be relevant. The Secretary of State must balance the patient’s liberty against public safety, give proper weight to the Mental Health Review Tribunal’s decision, and act without unreasonable delay. The Tribunal’s recommendation is important but does not determine the Secretary of State’s decision. Judicial review examines the legality and rationality of the assessment. Reasons should be read fairly and sensibly, rather than pedantically.

The claimant was detained in hospital under a hospital order and restriction order under the Mental Health Act 1983. The Mental Health Review Tribunal directed his conditional discharge, subject to arrangements including testing by unescorted community leave. Under the Act, that leave required the Secretary of State’s consent.

The Secretary of State refused consent because the claimant’s immigration position, including a deportation order and his fear of return to Turkey, created a risk of absconding. The claimant challenged the refusal on grounds including factual error, failure to consider the Tribunal’s decision, defective risk assessment, failure to balance liberty and public safety, failure to consider conditions, inconsistent reasoning and procedural unfairness.

1. Application dismissed. The March decision refusing consent to unescorted community leave was lawful.
2. The Secretary of State had to make an informed judgment balancing the claimant’s liberty against the interests of others in being protected from risks arising from release. The Mental Health Review Tribunal’s decision and recommendations required prompt and conscientious consideration, but they did not bind the Secretary of State. The Secretary of State could consider matters outside the Tribunal’s expertise, including immigration status and the risk that the claimant would not return.
3. The assessment of absconding risk was lawful. The Secretary of State was entitled to consider the claimant’s liability to deportation, his stated fear of persecution and reprisals in Turkey, his offending history, previous breaches of leave boundaries, and the difference between short ground leave and longer unescorted community leave.
4. The assessment also properly considered the consequences of absconding. Although the claimant was mentally stable and unmedicated, the evidence supported the view that deterioration could increase the risk of serious interpersonal violence.
5. The Secretary of State had considered the Tribunal’s decisions and the material favourable to the claimant. The absence of express reference to every relevant consideration did not establish a failure to take it into account. Reasons should be read with common sense rather than in a pedantic or nit-picking manner.
6. There was no public-law error in declining shadow leave. Evidence that the practice was regarded as unethical and might itself aggravate a patient’s condition provided a rational basis for discontinuing it. The United Kingdom risks associated with unescorted leave were not inconsistent with the different risks arising from return to the claimant’s family home in Turkey.
7. There was no procedural unfairness. The claimant had long known that absconding risk, linked to his immigration position, was relied upon and had an opportunity to address the material. The Secretary of State’s agreement to reconsider after determination of the deportation appeal did not invalidate the March decision. The claim was dismissed with no order as to costs, subject to community legal services taxation.