RP V Dudley & Walsall Mental Health Partnership NHS Trust & Anor

A tribunal must act compatibly with Article 8, but it need not address Article 8 separately in every conditional-discharge case. Ordinarily, a proper application of the statutory discharge criteria will determine whether an interference is lawful and necessary under Article 8(2).

The tribunal may rely on a represented patient to identify any distinct Article 8 issue. It must nevertheless address an obvious issue, particularly where the patient is unrepresented. The tribunal is responsible for restrictions inherent in its decision, but not for speculative oppressive implementation of conditions. Conditions should be reasonable in principle; Article 8 protects the patient when they are applied.

The patient, who had paranoid schizophrenia, had been made subject to hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983. He was conditionally discharged in 2011.

On 19 February 2015, the First-tier Tribunal continued his conditional discharge and confirmed conditions concerning residence, treatment, supervision, alcohol and drugs, and random testing. The patient appealed, alleging breaches of Article 8, failure to use the least restrictive option, and inadequate reasons. Permission was limited to Article 8.

The Upper Tribunal determined whether the First-tier Tribunal’s decision and conditions violated the patient’s Article 8 right to respect for private and family life.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law and did not violate Article 8.

2. By section 6 of the Human Rights Act 1998, a tribunal must not act incompatibly with a Convention right. That duty does not require a separate Article 8 analysis in every case. Consideration of the statutory discharge criteria will ordinarily subsume the Article 8 issues, although Article 8 remains an additional safeguard in an individual case.

3. The tribunal may expect a represented patient to identify a particular Article 8 issue. That expectation does not remove the tribunal’s duty to address an obvious issue, and its responsibility is greater where the patient lacks legal representation.

4. The Article 8(2) inquiry asked whether the interference was in accordance with law and necessary for the specified legitimate interests. In this context, those questions reflected satisfaction of the statutory criteria under the Mental Health Act 1983. Article 8 questions must be determined by its terms and applicable legal principles, not by factual comparison with RH v South London and Maudsley NHS Foundation Trust [2010] MHLR 341.

5. A tribunal is accountable for Article 8 consequences necessarily arising from its decision, rather than for the possible unreasonable operation of conditions. Conditions on a conditional discharge may be imposed where reasonable in principle. Their operation must remain reasonable and proportionate at the time, with Article 8 protecting the patient at that stage. The alcohol condition was inherently vague, but a measure of control over consumption was reasonable and precise definition could create further difficulty.

6. The First-tier Tribunal adequately explained why absolute discharge was premature. The uncertainty about the partner’s and family’s capacity to monitor relapse, together with only one year without medication, entitled it to be concerned about relapse and to retain liability to recall.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal’s decision did not involve an error of law.

• First-tier Tribunal: on 19 February 2015, it continued the patient’s conditional discharge and confirmed the existing conditions.