MM, R (on the application of) v The Secretary of State for the Home Department & Anor

Under section 42(3) of the Mental Health Act 1983, recall does not require proof that deterioration has already occurred or is inevitable. The Secretary of State may act pre-emptively where medical evidence and other information reasonably support the opinion that deterioration is likely in the near future unless the patient is recalled, and that the deterioration would put the patient or others at risk.

The medical evidence need not be freshly prepared. Earlier evidence remains sufficient unless there is good reason to doubt its continuing validity. No prior hearing is generally required to resolve disputed facts. The patient’s position can be reviewed promptly by the Mental Health Review Tribunal after recall.

The claimant had been convicted of unlawful wounding and detained under sections 37 and 41 of the Mental Health Act 1983. He was conditionally discharged but repeatedly recalled after drug use associated with deterioration in his paranoid schizophrenia and risks to himself and others.

He sought judicial review of two warrants issued under section 42(3), arguing that the statutory conditions for recall were not met and that he should have been given an opportunity to contest the factual basis for recall before the warrants were issued. The central issues were the legal threshold for recall and the extent of any prior procedural obligation.

1. Recall test. The claims for judicial review were dismissed. A recall under section 42(3) of the Mental Health Act 1983 is lawful where, on the basis of medical evidence and other information, the Secretary of State reasonably forms the opinion that deterioration in the patient’s mental condition is likely in the near future unless the patient is recalled, and that the deterioration would put the health or safety of the patient or others at risk.
2. Medical evidence. The evidence need not be a report freshly prepared on the precise conditions existing immediately before recall. Abundant earlier evidence that the patient suffered from paranoid schizophrenia and was likely to deteriorate significantly and imminently if he used illicit drugs was sufficient, absent good reason to believe that it was no longer valid. The Secretary of State could act pre-emptively to forestall deterioration.
3. Effect of the Tribunal’s discharge decision. Recall did not defy the Mental Health Review Tribunal’s decisions. The discharge decisions and conditions contemplated that drug use might recur and that the authorities would be informed. Drug use was therefore a warning sign capable of justifying recall, particularly where the Secretary of State had to consider public safety, including the safety of the patient’s family. The reasoning drew closely on von Brandenburg v East London and the City Mental Health NHS Trust [2004] 2 AC 280.
4. Procedure. There was no general requirement to hold a pre-recall assessment at which the patient could contest the facts relied on. In the circumstances, positive tests for illicit drugs were sufficient. Section 75(1) required referral to the Mental Health Review Tribunal within one month, providing a prompt mechanism for professional review after recall.
5. Both warrants were declared lawfully issued. Permission to appeal was granted on the ground that the issue was of wider importance, and detailed assessment of the claimant’s costs was ordered.

This was a first-instance judicial review decision. The court granted permission to appeal because the legal issue was of wider importance.