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MP v West London Mental Health NHS Trust [2012] UKUT 231 (AAC), [2012] MHLO 81

In the final days of his determinate prison sentence, MP was transferred to Broadmoor under s47 in order to prolong his detention. The tribunal recommended transfer to an MSU, which proved impossible; when it reconvened it granted discharge, delayed for 10 weeks for appropriate after care arrangements to be made. A salaried tribunal judge accepted the trust's argument that there had been inadequate reasons for discharge: she reviewed and set aside the decision, and refused the patient's application for her decision to be set aside. As these were excluded (unappealable) decisions, the patient sought judicial review. (1) The review decision, although made without receiving representations from the patient, was not made unfairly. (2) Taking account of the two relevant principles - that (a) the review power should only be exercised in clear cases, and (b) the Upper Tribunal should seldom interfere with review decisions when judicial review proceedings are brought, because the review assessment involves a substantial element of judgment or discretion - the STJ was entirely justified in her decision on the inadequacy of reasons. (3) There may well be adversarial aspects in the mental health jurisdiction, but ultimately, given the wider public interest at stake, it is an inquisitorial jurisdiction. (4) The delayed discharge decision itself may have been made in error of law (adjournment being the correct option), a consideration which would have been relevant in relation to permission had the grounds been arguable.

Other

Dated: 22/5/12

Corrected: 28/6/12

Before: Nicholas Wikeley

For the Applicant: Mr Stephen Simblet, instructed by Swain & Co.

For the Respondent: No attendance.

For the Interested Party: Mr Stephen Cragg, instructed by Capsticks.

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