RH v South London & Maudsley NHS Foundation Trust & Ors

In an application by a conditionally discharged restricted patient for a restriction order to cease, the tribunal may require the applicant to show that continued liability to recall is no longer appropriate. That approach is neither unfair nor disproportionate where the order was made by a criminal court after conviction. Article 5 is engaged on recall, not merely by continuing liability to recall. Article 8 may nevertheless be engaged by discharge conditions. The tribunal must assess the risk of harm, including its seriousness, in light of the index offence, prior recall, continuing mental disorder and vulnerabilities. Current mental disorder alone is insufficient. A tribunal may reject professional opinion if it gives cogent reasons. Earlier tribunal decisions are not binding, but are material considerations for a later tribunal.

The appellant had been convicted of two counts of manslaughter and made subject to a hospital order and restriction order. He was conditionally discharged in 1998 and later applied under section 75(2) of the Mental Health Act 1983 for a direction under section 75(3)(b) that the restriction order cease to have effect. The First-tier Tribunal rejected the application, finding continuing mental disorder, vulnerabilities and a real risk to the public. The Upper Tribunal dismissed an appeal concerning the adequacy of the First-tier Tribunal’s reasons. The appellant appealed to the Court of Appeal, raising issues concerning the burden of proof, Articles 5 and 8, expert evidence, the possible duration of the restriction order and the use of earlier tribunal decisions. The central issue was whether the First-tier Tribunal had lawfully concluded that continued liability to recall remained appropriate.

1. Disposition. Lord Justice Sullivan dismissed the appeal. Lord Justice Moses agreed, and Lord Justice Sedley agreed with the entirety of Sullivan LJ’s judgment.
2. Convention rights and the statutory approach. The reasoning in ex parte H (2002) QB 1 concerned Article 5 and the compatibility of the then statutory test for detained patients. Article 5 would be engaged if the appellant were recalled, but was not engaged merely because he remained liable to recall. A patient applying under section 75(3) of the Mental Health Act 1983 had been made subject to the restriction order by a competent criminal court after trial. It was therefore neither unfair nor disproportionate, for Article 8 purposes, to require him to satisfy the tribunal that continued liability to recall was no longer appropriate.
3. Decision-making under section 75(3). The formulation in SC [2005] EWHC 17 (Admin) was treated as the appropriate framework. The tribunal should consider the nature and gravity of the offence, the nature and gravity of the mental disorder, the likelihood of reoffending, the seriousness of potential harm, the risk of recurrence or deterioration, the likelihood of recall, and the nature and desirability of continuing or varying conditions. The process involves judgment, evaluation and assessment rather than exact factual demonstration, consistently with R (N) [2005] EWCA Civ.1605.
4. Adequacy of reasons and risk. The First-tier Tribunal was entitled to reject the professional witnesses’ conclusion that the appellant could be managed as an ordinary psychiatric patient. Its reasons were cogent and intelligible. The gravity of the two deliberate killings, the circumstances of the 1997 recall, continuing mental disorder and continuing vulnerabilities supported its conclusion that there remained a real risk to the public and an attendant risk of recall. Continuing mental disorder alone would not justify the order; the seriousness of the risk of harm also had to be assessed.
5. Other grounds. The Upper Tribunal had not imposed a rule that restriction orders should remain in force for life. Its comparison with life sentences explained the relevance of the gravity of the index offences. Earlier First-tier Tribunal decisions were not binding, but were material considerations for any later tribunal, which had to assess the facts as they then existed and determine the weight to give the earlier decision.
6. Second appeals. The Court emphasised that permission for a second appeal should ordinarily be limited to grounds raising an important point of principle or practice, or involving another compelling reason. Particular care was required where a ground had not been raised below.

• Court of Appeal (Civil Division): dismissed the appeal. [2010] EWCA Civ 1273.
• Upper Tribunal (Administrative Appeals Chamber): Judge Rowland dismissed the appeal against the First-tier Tribunal’s decision dated 18 February 2008, corrected on 15 March 2010.
• First-tier Tribunal (Health, Education and Social Care Chamber): rejected the appellant’s application for a direction under section 75(3)(b) of the Mental Health Act 1983 that the restriction order cease to have effect.