Lee-Hirons, R (On the Application Of) v The Secretary of State for Justice

On a recall under section 42(3) of Mental Health Act 1983, Article 5.1 does not require reasons to be given at the moment of detention, still less in writing. Article 5.2 requires prompt and adequate information about the factual and legal basis for detention, but the explanation need not be complete immediately. A brief explanation at execution may be followed by fuller written reasons within 72 hours. A bare statement that the patient’s mental health has deteriorated is inadequate if it is the only explanation. Breach of the 72-hour duty does not invalidate an otherwise lawful detention unless the breach is material to the decision to detain.

The appellant had been made subject to hospital and restriction orders under the Mental Health Act 1983 and was later conditionally discharged. The Secretary of State recalled him by warrant under section 42(3) after receiving reports of deterioration in his mental health. The warrant gave no reasons, and only a brief oral explanation was given at execution. Fuller reasons were provided more than two weeks later.

Dingemans J dismissed the appellant’s judicial review claim, holding that the recall and detention were lawful: [2013] EWHC 1784 (Admin). The appeal concerned whether reasons had to be given in writing or immediately, whether the explanation given was inadequate or not the Secretary of State’s true reason, and whether the delay made the detention unlawful.

The Court of Appeal dismissed the appeal. Sir Stanley Burnton gave the leading judgment, with which Lord Justice Jackson and Lord Justice Patten agreed.

1. Timing and form of reasons. Article 5.1 does not require the reasons for a patient’s detention to be given at the time of detention, and therefore does not require written reasons at that time. Article 5.2 requires the patient to be promptly and adequately informed of the factual and legal basis for detention, but the information need not be given in full immediately. This approach was supported by X v UK, Van der Leer v The Netherlands and Fox, Campbell and Hartley v UK.
2. Wooder. R (Wooder) v Feggetter and another concerned whether reasons were required for a SOAD’s decision, not whether recall reasons had to be written. Its context also differed: the patient was already detained and there was less urgency. The Court therefore distinguished it and treated Sedley LJ’s observations about written reasons as obiter.
3. Adequacy of the explanation. A bare statement that mental health had deteriorated would have been inadequate if it were the only information supplied. The Secretary of State’s policy required an explanation, together with written reasons, as soon as possible and within 72 hours. That procedure satisfied Article 5.2 in principle. The common law required no fuller explanation at the moment of execution where the detailed explanation was to follow.
4. Effect of the breach. The failure to provide full reasons within 72 hours breached the policy and Article 5.2. Under R (Lumba) v Secretary of State for the Home Department and R (Kambadzi) v Secretary of State for the Home Department, however, a public-law breach invalidates detention only if it is material to, and capable of affecting, the decision to detain. The delay did not affect the originally lawful recall or detention.
5. The argument that the explanation was not the Secretary of State’s true reason failed. It was intended as a brief explanation pending fuller reasons. The appeal was dismissed. The later practice of including a brief reason in the warrant was noted as good practice.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 553: dismissed the appeal.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Dingemans J, [2013] EWHC 1784 (Admin): dismissed the judicial review claim and held that the recall and detention were lawful.