R (B) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 13 February 2003 |
| Neutral Citation | [2003] EWHC 815 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 February 2003 |
| Docket Number | CO/612/2003 |
[2003] EWHC 815 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Stanley Burnton
CO/612/2003
MR S SIMBLETT AND RH CAMPBELL TAYLOR appeared on behalf of the CLAIMANT
MISS F MORRIS appeared on behalf of the OFFICIAL SOLICITOR
MR J HYAM appeared on behalf of the First Interested Party
MR M MULLINS appeared on behalf of the Second Interested Party
This is application for permission to appeal on behalf of the mother of a patient presently detained at the Huntley Centre in London, under the Mental Health Act 1983. There is an application for an order relating to the anonymity of the patient. I make an order that her name shall not be disclosed. Any report of my decision will be under the initial "B" alone. In view of the identity of her surname with that of her mother, the claimant, and her sister, who also appears in the papers, I extend that order to apply to their names as well. It seems to me that the order conferring anonymity on the patient would be ineffective if the order were not so extended. I am reminded by Miss Morris that the name of the daughter of the patient also appears in the papers. For the same reason, the order of anonymity will be extended to her, though in her case there may be independent grounds for making such an order in any event.
The claim relates to a decision of a Mental Health Review Tribunal which met on 23rd January of this year, on the application of the claimant, as the nearest relative of the patient, being her mother. The decision of the Tribunal was that the patient should be discharged from liability to be detained not immediately but with effect from 27th February, that is to say in two weeks time.
The reason given for the delay of discharge, as set out in the decision of the Tribunal was as follows:
"We have delayed the discharge by 5 weeks to enable [the claimant] together with [the patient's] clinical team and social services to work together to arrange an appropriate aftercare package to enable [the patient's] return to the community."
It is contended that that deferral of discharge was unlawful as being an improper and unlawful use of the power contained in section 72(3) of the 1983 Act.
The 1983 Act, as I have remarked in the course of argument, somewhat curiously applies different tests to the discharge of a patient at the instance of a nearest relative, as against applications for discharge at the instance of the patient himself or herself.
Where a nearest relative seeks the discharge of a patient detained under section 3, that is to say a patient in respect of whom there is no restriction order or the like, the patient must be discharged unless that discharge is barred by the Responsible Medical Officer (RMO). The grounds of discharge are danger to the patient or to members of the public as a result of the release of the patient.
The nearest relative is entitled to challenge the RMO's decision by application to a Tribunal, as happened in the present case. Section 72(1) of the Act sets out the now familiar grounds for an application for discharge, effectively requiring positive proof that the patient is suffering from a mental disorder et cetera, as described in section 72(1)(a), and that his or her detention is justified in the interest of his or her own health or safety, or with the view to the protection of other persons, as stipulated in section 72(2)(a)(ii). Section 72(1)(b) continues:
"The Tribunal shall direct the discharge of a patient liable to be detained, otherwise than under section 2 above, if they are not satisfied…
(3) In the case of an application, by virtue of paragraph (g) of section 66(1) above, for the patient to be released would be likely to act in a manner dangerous to other persons or to himself."
The application by a nearest relative for the discharge of a patient detained under section 3 is an application by virtue of paragraph (g) of section 66(1) of the Act. Therefore, it is necessary, if the patient is not to be discharged, in such a case for the Tribunal to be satisfied that the patient would, if released, be likely to act in a manner dangerous to other persons or to himself or herself.
Subsection (3) of section 72 is as follows:
"A tribunal may under subsection (1) above direct the discharge of a patient from a future date specified in the direction, and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may-
(a) with a view to facilitating his discharge on a future date recommend that he be granted leave of absence, or transferred to another hospital, into guardianship, and
(b) further consider his case in the event of such recommendation not being complied with."
The principal submission made on behalf of the claimant in the present case is that the power to defer under section 72(3) may not be used in the case of an application made by a nearest relative in relation to a patient detained under section 3 for the purpose of ensuring that there is aftercare available at the date of the release. In my judgment, it is quite clear that section 72(1)(iii) and section 72(3) must be read together. The phrase "if released" in section 72(1)(b)(iii) does not necessarily refer to immediate release. It would also take into account a future release, that is to say a release on a future date as envisaged by section 72(3). If a Tribunal, on the evidence before it, comes to the conclusion that a patient, if released immediately, would be likely to act in a manner dangerous to other persons, or to himself or herself, but that if proper aftercare arrangements are put in place that will not be the position, in my judgment, it is clear that the Tribunal may make an order for a deferred discharge under section 72(3) deferring discharge to a date when it is reasonably...
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