Case No: C1/2005/2793

Neutral Citation Number: [2005] EWCA Civ 1616
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE BEAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21 December 2005
Before :

LORD JUSTICE WARD
LORD JUSTICE LAWS
and
LORD JUSTICE SEDLEY
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Between :

	R (HOME SECRETARY)	Applicant/
Respondent	
	- and -		
	BR (interested party)
and
MENTAL HEALTH REVIEW TRIBUNAL	Appellant

Defendant	

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(Transcript of the Handed Down Judgment of
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Kris Gledhill (instructed by Scott Moncrieff, Harbour and Sinclair) for the Appellant
Marie Demetriou (instructed by The Treasury Solicitor) for the Respondent

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Judgment

Lord Justice Sedley : 
1.	This is the judgment of the court.
2.	This appeal, brought by permission of Moses LJ, has been expedited because it concerns the liberty of an individual, BR, who has been subject to detention as a restricted patient.  On 12 April 2005 a Mental Health Review Tribunal chaired by a judge ordered his absolute discharge. On 10 November 2005 Bean J, on judicial review, quashed the Tribunal’s order and directed reconsideration by (if possible) the same panel. This had the consequence that BR could once more be detained. The judge expressed the hope that this would not happen unless there had been some change in BR’s condition to warrant it, and deferred the sealing of his order to 1 December so that suitable arrangements could be made for BR’s release. But, notwithstanding a further report from BR’s treating psychiatrist to the effect that he had not deteriorated, his solicitors’ request that he be granted leave of absence pending the reconvened MHRT hearing was refused by the Home Secretary, who directed that arrangements be made for his detention. An urgent application for permission to seek judicial review of this decision of the Home Secretary, on the ground that there was no proper or sufficient evidence to support it, is now pending.
3.	The appeal concerns not the quashing of the MHRT’s order but its consequences. The appellant’s notice seeks “interim relief and stay of the order (which will have the effect that BR returns to the status of a discharged patient)”. The interim to which this refers is the period between now and 12 January 2006, when the MHRT has made arrangements to sit again.
4.	In the interests of brevity, and because Bean J has set out the history and issues so clearly, we shall take his judgment at [2005] EWHC 2468 (Admin) as read (with the proviso that the word “psychotic” in s.72(1)(b), cited in §9 of his judgment, should be “psychopathic”). The essential facts are that BR, who is now 39, was convicted in 1988 of the manslaughter of his father on grounds of diminished responsibility and ordered to be detained under the Mental Health Act 1983. Having been conditionally discharged by direction of a MHRT in November 2002, he applied in May 2004 for the discharge to be made absolute. By the time of the hearing in April 2005 he had been recalled because of concern about the effect of cocaine use on his mental state. But the Tribunal ordered his unconditional release because it considered that, in the light of uncontested medical evidence that he no longer suffered from any mental illness and its own finding that he was not suffering from a psychopathic disorder, it had no power to do otherwise. Bean J quashed its decision because the Tribunal had failed to consider, as s.73 required it to do, whether it was appropriate that BR should, despite discharge, remain liable to recall.
5.	The logical consequence of the quashing order was that there was now no extant order for unconditional discharge, leaving BR with the status of a restricted patient who had been recalled under the terms of his initial conditional discharge and was hence dependent once again on the Home Secretary for release. But Mr Kris Gledhill, on his behalf, contends that this is neither an inevitable nor a proper outcome. He starts from the proposition that it is contrary not only to the common law but to art.5 of the European Convention on Human Rights to detain someone in the absence of any evidence to justify his detention. The only issue before the MHRT had been whether discharge should be absolute or conditional, not whether he was entitled to be discharged at all: yet the judge’s order allowed him to be detained again, as he has been. The proper form of order to prevent this happening would have been, in Mr Gledhill’s submission, either a deferral of the quashing until the MHRT had reconvened and made a fresh decision or a quashing limited to the absolute character of the discharge.
6.	The effect of a restriction order is that the patient is detained without need of renewal unless and until either (a) the Home Secretary grants him leave of absence, lifts the restriction order or grants him an absolute or conditional discharge, or (b) a MHRT grants him a conditional or absolute discharge. Art. 5(1)(e) of the ECHR, however, allows only “the lawful  detention … of persons of unsound mind”, and detention is not lawful unless it is based on evidence: Winterwerp v Netherlands (1979) 2 EHRR 387. The problem which has arisen here is that, according to public law orthodoxy, the quashing (on whatever grounds) of a MHRT decision that a patient must be released for want of evidence justifying his continued detention returns him to whatever status he had before that decision was made, even if there is no longer any evidence capable of supporting it. This court so held in R (Wirral HA) v MHRT [2001] EWCA Civ 1901. 
7.	In an oral submission which was somewhat more ambitious than his skeleton argument, Mr Gledhill first argued that the right course was to place BR unconditionally at liberty, leaving any relapse to the operation of s.3 of the Act as if he were an ordinary patient. This is plainly not proper, because BR was not at any material time an ordinary patient. As a restricted patient he had to be dealt with on criteria capable of going beyond those relevant to s.3.
8.	Failing this, Mr Gledhill accepts that the judge was entitled not to limit himself to declaratory relief and instead to make an order, as he did, which required the MHRT to retake its decision. He accepts that this was not a case for the substitution of the High Court’s own judgment for that of the MHRT. But in reliance on s.6 of the Human Rights Act he argues that it was the judge’s obligation to find a means, unless primary legislation made it impossible to do so, by which BR would not be detained pending redetermination of his case in the absence of medical evidence that he was deteriorating. This could have been achieved by quashing only as much of the MHRT’s decision as went to the character of the discharge. If for some reason this could not be done, the judge could and should have deferred the effective date of his order until the date of the hearing before the reconvened MHRT.
9.	The decision of this court in the Wirral case was that if the High Court quashed a decision (in that case the decision of the responsible medical officer) to release a patient detained under compulsory powers, that decision became a nullity, with the result that his continued detention became lawful. This reasoning is unproblematical, albeit it reverses the conventional (though possibly illogical) wisdom that a decision falls to be quashed only if it is a nullity. But it is predicated upon the making of a quashing order, and the question before us is whether – precisely because it has such consequences – such an order ought to have been made in the present case. That was not the question at either first or second instance in the Wirral case.
10.	The remedies afforded on judicial review are, as they should be, as flexible as justice requires. There is an illuminating discussion in Wade and Forsyth Administrative Law (9th ed.) p. 288-291 of the ways in which courts tailor relief to the needs of the case, and a helpful summary in Fordham Judicial Review Handbook (4th ed.) §43.1 passim, esp. §43.1.6; see also his remarks on nullity at §44.1. Despite occasional rigidities, ‘one size fits all’ has never been a doctrine of relief in public law. We have no difficulty therefore with Mr Gledhill’s primary argument that the need for a fresh MHRT decision did not automatically require a quashing order which sent BR back to square one as a restricted patient and (subject solely to the Home Secretary’s judgment) deprived him once again of his liberty.
11.	More difficult is the question what order could and should have been made. It is inescapable that, absent a legally valid direction for absolute discharge, BR had to stand at risk of recall – in other words that his liberty had to remain for the time being conditional. The difference in principle was between reverting to a status in which, as a recalled patient, he had no continuing right to liberty except in the exercise of the Home Secretary’s judgment, and reverting to a status in which he was entitled to be free unless evidence showed him to require recall to hospital for treatment. The difference in practice was that even though, at least in his and his advisers’ view, there was and still is no such evidence, the Home Secretary did not propose to exercise his powers to release him – a situation which was described by the judge as “anomalous and unjust” in relation to the MHRT’s findings of fact, but which was justifiable if the Home Secretary’s reading of the medical evidence, to which we now come, is upheld.
12.	What is said by Ms Marie Demetriou on the Home Secretary’s behalf is that a partial quashing order of the kind Mr Gledhill seeks would hamstring the MHRT at the rehearing because it would prevent it from ordering BR’s continued detention even if the evidence by then called for it. As to this, Ms Demetriou submits that the Home Secretary by 1 December had evidence of deterioration which justified him in declining to release BR following Bean J’s decision. BR’s responsible medical officer had reported on 28 November that in July (i.e. three months or so after the MHRT hearing which resulted in his release) the clinical team had been concerned to note signs of delusional thinking indicative of a deterioration in his mental state, and that in October it had emerged that BR was drinking heavily, was not taking his medication and had refused a urine test. It is axiomatic, Ms Demetriou submits, that an MHRT must take its decision on the basis of the evidence as it stands on the day of the hearing: see R (von Brandenburg) v East London and City MHT  [2004] 2 AC 280, §9. Such a decision may include revocation of a lawfully made order for conditional discharge where the conditions have not been met and the patient has meanwhile deteriorated: see R (IH) v Home Secretary [2004] 2 AC 253. But the psychiatric report on which the Home Secretary is relying concludes with an account of a meeting in mid-November on the basis of which the doctor expressed the view that “There was no evidence of a deterioration in his mental state.” It is this which is the foundation of the intended challenge in the Administrative Court.
13.	It is also Ms Demetriou’s submission that the elements of a discharge order are not separable into the decision to discharge and the character of the discharge.  The MHRT must take one of three discrete courses: to discharge absolutely, to discharge conditionally or to refuse discharge.
14.	We entirely accept that the MHRT on 12 January next must take its decision in the light of the evidence as it then stands. We do not accept that it will be prevented from doing this if meanwhile BR has been set at conditional liberty.  We accept that there is an apparent difficulty in treating the Tribunal’s powers as still limited to the choice between an absolute and a conditional discharge. The evidence could, at least theoretically, include evidence that BR has deteriorated to a point at which discharge is for the time being ruled out by a negative answer to s. 72(1)(b), since such an answer precludes both an absolute discharge under s. 73(1) and a conditional discharge under s. 73(2). But the judge made it explicit that, on the material before him, the sole purpose of the quashing and remission was for the Tribunal “to decide whether or not it is appropriate for the patient to remain liable to be recalled to hospital for further treatment”: in other words, whether the case fell under s. 73(1) or 73(2). If, in this situation, it were to emerge on the remitted hearing that BR was now in a state in which he did not qualify for discharge, the Tribunal would be empowered (and probably obliged) to give effect to such a finding by directing conditional discharge in the knowledge that the Home Secretary would be instantly recalling him. 
15.	Thus there is no real space in the present context between Ms Demetriou’s second and third classes of decision: conditional discharge and refusal of discharge come to the same thing in the situation she posits. The same, it seems to us, is true of the interim situation: if BR is treated, pending the rehearing, as having been conditionally discharged, he remains liable by virtue of s. 73(4)(a) to recall on the Home Secretary’s warrant under s. 42(3), provided always that there is evidence on which the Home Secretary can lawfully act. Ms Demetriou on his behalf readily accepts that he must act to the same standard within art. 5 whether he is considering the release or the recall of a restricted patient, so that no measure of control is lost by conditional discharge. But although the tests are the same, BR is in our judgment entitled to have any consideration of his case start, not from a position where he is detained and dependent for release on a favourable Home Office decision, but from a position where he is at liberty and liable to be recalled only if the Home Secretary, on grounds which pass muster in public law, decides to issue a warrant for his recall. 
16.	We consider that it was open to Bean J to make an order to this effect. Simply to defer the effective date of quashing until the MHRT sat again would have left BR’s status and the Home Secretary’s function of protecting the public in limbo. But in our view it was open to the judge to quash as much of the MHRT’s decision as granted BR an absolute discharge, and to declare that pending a rehearing he was entitled to be treated as having been conditionally discharged. Modern public law is quite adaptable enough to do this if necessary, and here it was called for by the requirements both of the common law and of the ECHR that nobody is to be deprived of his liberty except according to law. It is worth recalling that the Mental Health Act 1983 was the first statute to be amended by a remedial order under the Human Rights Act, so as to place on the Home Secretary the burden of showing that the admission criteria continue to apply, rather than requiring the patient to show that they do not. 
17.	One has to begin by considering the legal effect of what the Tribunal did in April 2005. It is clear that they arrived at a lawful determination of the issue arising under s. 73(1)(a), namely whether they were satisfied that BR was then mentally disordered or in need of treatment within s. 72(1)(b)(i) or (ii). They were not. This had three consequences. First, the appellant was at lowest entitled to be conditionally discharged. Secondly, if the Tribunal had gone on to find that they were also satisfied as to s. 73(1)(b), i.e. that it was not appropriate for BR to be liable to recall for treatment, he would have been entitled to an absolute discharge. If they were not so satisfied, or if, as happened here, they arrived at no adjudication on the s. 73(1)(b) issue, he would still be entitled to a conditional discharge. Thirdly, however, it was  their (unfulfilled) duty to decide the s.73(1)(b) question: without doing so they could not, for example, reach any satisfactory conclusion as to what conditions might be properly imposed on BR’s discharge.
18.	The effect of what the Tribunal did was therefore twofold. On the one hand the appellant became entitled to be conditionally discharged on 12 April 2005; on the other the task of deciding the s. 73(1)(b) question remained unfulfilled. In our judgment relief can and ought to be given which reflects this dual effect by making the following orders:

1.	An order quashing the Tribunal’s decision insofar as it directed an absolute discharge.
2.	A declaration that the appellant BR is to be treated as having been conditionally discharged by the Tribunal’s order.
3.	A mandatory order that the Mental Health Review Tribunal proceed when it reconvenes on 12 January 2006 to determine whether for the purposes of s.73(1) and (2) of the Mental Health Act 1983 as amended they are satisfied that it is not appropriate for the appellant to remain liable to be recalled to hospital for further treatment.