Dale Lee-Hirons, R (on the application of) v Secretary of State for Justice & Anor

Fairness requires a person recalled to detention under section 42(3) of the Mental Health Act 1983 to be told orally why the recall has occurred. Giving reasons is a condition precedent to lawful recall. Written reasons are not required as a condition precedent, although they will often be desirable.

Recall is lawful where the Secretary of State reasonably considers that a material change of circumstances or significant new information justifies detention. The Secretary of State cannot recall merely because he disagrees with a tribunal’s decision. On the facts, deterioration in mental health, increased unpredictability and increased risk justified recall, and adequate oral reasons were given.

The claimant had been made subject to a hospital order and restriction order under the Mental Health Act 1983. Following conditional discharge, the Secretary of State recalled him to hospital under section 42(3), relying on evidence of deteriorating mental health, unpredictable behaviour and increased risk.

The claimant sought a declaration and damages for false imprisonment and breach of article 5 of the ECHR. He argued that the recall was inconsistent with the First-tier Tribunal’s decision, that written reasons were required, that the decision took account of irrelevant matters, and that a psychiatric report was necessary.

1. The claim was dismissed. The claimant’s recall and subsequent detention were lawful, and the claims for damages, a declaration and breach of article 5 of the ECHR failed.

2. The Secretary of State may recall a conditionally discharged restricted patient only where there has been a material change or significant new information sufficient reasonably to justify recall. The power cannot be used simply to disagree with the decision of a legally constituted tribunal. The relevant question was whether circumstances had changed so that the detention criteria could reasonably be regarded as satisfied.

3. Fairness required oral reasons to be given because recall removed the claimant’s conditional liberty. The giving of reasons was a condition precedent to lawful recall. Article 5(2) of the ECHR supported the same general approach.

4. Written reasons were not a condition precedent. Oral reasons could communicate the basis of recall, written reasons could be impractical in emergencies or where the patient’s location was unknown, and oral explanation could be adapted to the patient’s condition. Written reasons would nevertheless often be desirable.

5. The evidence established a deterioration in mental health, a more unpredictable and guarded presentation, bizarre and aggressive behaviour, references to absconding and alcohol, and increased public risk. These matters provided sufficient grounds for recall. The recall did not contradict the tribunal’s decision, which had recognised the possibility of recall. No psychiatric report was legally required, and no irrelevant consideration had been taken into account.

6. The claimant was told orally that his mental health had deteriorated and that this was the reason for recall. The delay in providing written material did not affect the legality of the original detention.