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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

R (on the application of Dale Lee-Hirons) v Secretary of State for Justice and Partnerships in Care Ltd [2013] EWHC 1784 (Admin); (2013) PLLR 107

Mental health - lawfulness of detention - recall to hospital - duty to give reasons - requirement to give written reasons - Mental Health Act 1983, section 42(3).

Where a restricted patient is recalled to hospital, there is a duty to give reasons, but there is no requirement that those reasons should be provided in writing. 

28 June 2013

Administrative Court

Dingemans J

(1)        The Claimant (C) had a history of offending, and informal hospital admissions in connection with potential mental health issues. C was convicted of further offences in 2006, and hospital and restriction orders were imposed pursuant to sections 37 and 41 of the Mental Health Act 1983 (MHA). Following a successful appeal against a decision of the First Tier Tribunal that C could not be discharged, the Tribunal reconsidered C's case, and granted his application for conditional discharge. D recalled C, in exercise of D's power to recall a person in respect of whom a restriction order remains in force from a conditional discharge (s 42(3) MHA).

(2)        C sought a declaration that D's decision to recall him pursuant to section 42(3) MHA, and his subsequent detention was unlawful, on the basis that (a) D had failed to provide written reasons which C submitted were a condition precedent to the lawfulness of detention (this was amended in the course of argument to a submission that the provision of written reasons is a condition precedent to the lawfulness of the decision to recall); (b) D's decision was inconsistent with the Tribunal's decision; (c) D's decision was irrational as it took into account irrelevant considerations; (d) a psychiatric report had to be completed before the decision to recall could be made; and (e) D had failed to give reasons for the decision to recall C. C sought damages for false imprisonment or pursuant to the Human Rights Act 1998.

(3)        Dingemans J held that: notwithstanding that the issue of C's continued detention had been transferred to the First Tier Tribunal, it was appropriate for the claim for a declaration and damages to be concluded in the Administrative Court.

(4)        The decision to recall a person on conditional discharge affected their personal liberty, and so reasons must be provided in the interests of fairness and to comply with Article 5 ECHR. A failure to provide reasons would render the decision to recall, and the subsequent detention, unlawful.

(5)        Whilst the provision of written reasons will often be desirable, there are several reasons why written reasons are not a condition precedent to a lawful recall decision. The key is for a person to know of the reasons for recall, and that can be achieved by the provision of oral reasons. There may be practical reasons why the provision of written reasons is difficult. The types of mental disorder vary widely, and written reasons may not be the most effective means of communication with the person concerned. Written reasons are not required before a lawful police arrest.

(6)        The test that must be satisfied in order for the SoS to exercise his power to recall under section 42(3) is whether there has been a material change of circumstances since the decision to grant conditional discharge by a Tribunal, such that the SoS can reasonably form the view that the detention criteria are now satisfied (R(M) v Secretary of State for the Home Department [2008] EWHC 3638 (Admin)).The deterioration in C's mental health and increased risk to public meant that D was entitled to find that there had been such a change of circumstances.

(7)        The decision was not inconsistent with the Tribunal's decision, in the light of the evidence that C's mental health was deteriorating.

(8)        D did not take account of irrelevant considerations; and

(9)        A psychiatric report was not required in advance of the decision to recall.

(10)     On the evidence available to the Court, oral reasons for the decision to recall were provided to C.

(11)     The decision and detention were not unlawful, and there had been no infringement of Article 5 ECHR. 

Claim for declaration and damages dismissed.

Key Paragraphs

[1] - [2] - Introduction

[3] - [7] - Procedural matters

[8] - [11] - Background

[12] - [14] - Provisions in the Mental Health Act 1983

[15] - [24] - Decisions of the Tribunals and conditional release of the claimant

[25] - [28] - Legal principles governing the decision to recall

[29] - [36] - Duty to give reasons for recall

[37] - [54] - A lawful decision to recall

[55] - [65] - Adequate reasons provided to the Claimant

[66] - Conclusion

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