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

A conditionally discharged restricted patient may be recalled where the Secretary of State has reasonable grounds, based on up-to-date medical evidence, to conclude that significant new circumstances justify recall and that the statutory detention criteria are met. Breach of a discharge condition is not an independent ground, but drug-taking may provide evidence of a deterioration risk relevant to those criteria. The first criterion is principally clinical; the second is a consequential risk assessment. Detention for treatment need not await psychotic symptoms or certainty of imminent relapse. Treatment under the Mental Health Act 1983 has a broad meaning and includes avoiding or minimising risk. No rigid requirement for a formal recommendation by the responsible medical officer applies.

MM was subject to a hospital order under section 37 of the Mental Health Act 1983, with a restriction order under section 41, and had been conditionally discharged. The Home Secretary recalled him in March 2006 after evidence of illicit drug use and again in September 2006 after a positive drug test despite a warning. Mitting J dismissed MM’s judicial review claims in the Administrative Court: [2006] EWHC 3056 (Admin). The appeal concerned whether the breaches and available medical evidence enabled the Secretary of State reasonably to conclude that the statutory detention criteria were satisfied before psychotic symptoms had returned or imminent relapse was certain.

Lord Justice Toulson gave the judgment, with Lord Justice Gage and Lord Justice Keene agreeing. The appeal was unanimously dismissed.

1. A breach of a condition of discharge is not a freestanding ground for recall. It may, however, be evidence from which the Secretary of State can reasonably conclude that the statutory detention criteria are now satisfied. The Secretary of State must have reasonable grounds, including up-to-date medical evidence, for believing that something significant has happened or that significant information has emerged to justify recall.
2. The first statutory criterion is essentially a matter of clinical judgment: whether the patient’s mental illness is of a nature or degree making detention for treatment appropriate. The second criterion is a consequential risk assessment concerning the patient’s health or safety or the protection of others.
3. The threshold is not limited to cases in which psychotic symptoms have already returned, or in which relapse is certain to occur imminently. Treatment under the Mental Health Act 1983 has a broad meaning and may include avoiding or minimising risk, as explained by Reid v Secretary of State for Scotland [1999] 2 AC 512.
4. The court rejected the submission that a formal recommendation of recall, or a clinical opinion that deterioration had already occurred or was inevitable, was always required. Although the responsible medical officer’s opinion would ordinarily be sought, the court should not impose a rigid general test derived from the particular facts.
5. The March recall was not Wednesbury unreasonable in light of the warning of rapid relapse and danger, the previous Tribunal’s observations and the latest evidence of drug use. The September recall was likewise reasonable after discussions with the responsible medical officer and a further positive test despite a final warning. The appeal was dismissed.

• Court of Appeal (Civil Division): unanimously dismissed MM’s appeal.
• Administrative Court: Mitting J dismissed the judicial review claims concerning the March and September recalls, with permission to appeal granted: [2006] EWHC 3056 (Admin).