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

Where a Mental Health Review Tribunal recommends transfer or other steps to facilitate discharge and reserves power to reconsider the patient’s case, the original application remains under consideration. The word “case” in section 72(3)(b) does not terminate the application or restrict the Tribunal to reviewing compliance with its recommendation.

A request to withdraw under Rule 19 requires a judicial decision by the Tribunal. That function cannot be delegated to administrative staff under a protocol. The Tribunal must consider all relevant circumstances, including advice given to the patient and the patient’s interests.

The claimant was detained under section 3 of the Mental Health Act 1983 and applied for discharge. The Tribunal declined immediate discharge but recommended transfer to a more therapeutic setting and stated that it would reconsider the matter if the recommendation was not complied with.

The claimant later requested withdrawal of his application. A clerk initially accepted the withdrawal, but the Tribunal subsequently decided that the application had ended and that it retained jurisdiction only to reconsider the patient’s case. The claimant challenged that construction and relied alternatively on legitimate expectation.

1. Claim succeeded. The Tribunal’s decision was quashed.
2. Section 72(3) contains two related powers. Where the Tribunal does not direct discharge, it may recommend transfer or other measures with a view to facilitating future discharge, and it may further consider the patient’s case if the recommendation is not complied with. The reference to “his case” does not mean that the application has been finally determined or has ceased to exist. That construction would create anomalies where delay gives rise to a further application or statutory reference.
3. The Tribunal retains the powers necessary to reconsider the whole case, including whether discharge has become appropriate. This accords with Mental Health Review Tribunal v Hempstock, in which Kay J held that the Tribunal had all its original powers on further consideration.
4. Rule 19 requires the Tribunal itself to agree to a withdrawal. Agreement is a judicial, not administrative, function. The protocol which authorised administrative acceptance of properly documented withdrawals unlawfully delegated that decision. The Tribunal must consider the relevant circumstances, including whether withdrawal is in the patient’s interests and the fact that the patient’s solicitor advised against withdrawal.
5. The legitimate-expectation argument was unnecessary to the result and would have failed. The clerk’s letter was issued without lawful authority, was corrected within hours, and caused no relevant detriment. The principle explained in R v Secretary of State for Education and Employment, ex parte Begbie [2001] 2 WLR 1115 supported that conclusion.
6. Given the passage of time and the claimant’s move to another hospital, the matter should be started afresh. The decision of 30 November 2005 and consequential decisions were quashed. Costs were awarded to the claimant, subject to detailed assessment if not agreed.