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

A conditional-discharge condition requiring compliance with prescribed medication does not, properly construed, remove a capacitous adult’s absolute right to accept or refuse treatment on each occasion. The condition operates subject to the common law requirement that consent must be real and independent.

Non-compliance with such a condition is not, by itself, a lawful basis for recall. Recall requires up-to-date medical evidence satisfying the statutory detention criteria. A condition must be relevant, imposed for a proper statutory purpose, and supported by a proper basis for anticipating that the patient will consent to the treatment. Any interference with Article 8 rights must also be justified and proportionate.

SH was convicted of manslaughter and made subject to hospital and restriction orders under the Mental Health Act 1983. He was conditionally discharged under section 73, subject to conditions including compliance with prescribed depot medication.

On a later application for absolute discharge, the Mental Health Review Tribunal refused absolute discharge and retained the medication condition, with a minor textual variation. SH sought judicial review, arguing that the words requiring him to comply with medication unlawfully compelled treatment and infringed his common law and Article 8 rights.

The central issue was whether a tribunal could lawfully impose such a condition under section 73(4)(b), and consequently under section 75(3).

1. The claim was dismissed. The tribunal’s decisions in 2003 and 2006 were not unlawful, irrational, or incompatible with Article 8(1).
2. Section 73(4)(b) contains no express limitation on the conditions that may be imposed, but conditions must not be capricious. They must be relevant and serve a proper purpose within the statute. The principle of legality also limits the apparent scope of the power.
3. An adult of full capacity has an absolute right to choose whether to consent to medical treatment. Under In re T (Adult: Refusal of Treatment) [1993] Fam 95, the consent must be real and independent. Freeman v Home Office (No 2) [1984] 1 QB 524 confirms that whether consent is real is ultimately a question of fact.
4. The words requiring the patient to comply with medication mean that he must comply with the condition, but the condition must be read as subject to the patient’s right to give or withhold consent on each occasion. The treating doctor or nurse must ensure that apparent consent is genuine and has not been overborne.
5. Recall is not an automatic sanction for breach of a condition. It requires up-to-date medical evidence showing that the statutory criteria for detention are met, as explained in Kay v United Kingdom 40 BMLR 20 and confirmed in B v Mental Health Review Tribunal and Secretary of State for the Home Department [2002] EWHC 1553 (Admin).
6. On the facts, SH wished to continue taking the medication and had not challenged the condition while seeking absolute discharge. There was therefore a proper basis for retaining it. Even if the condition interfered with Article 8(1), the interference would have been justified and proportionate under Article 8(2).
7. The judge observed that tribunals should preferably state expressly that such a condition remains subject to the patient’s right to give or withhold consent on any occasion.