The MHRT's decision to discharge from s2 was not flawed; the subsequent decision to re-detain under s3 was unjustified and unlawful.
AL was made subject to s2 on 13/10/06. The MHRT on 30/11/06 granted a discharge, deferred until 3/11/07 to allow aftercare to be put in place.
On 2/11/07 a JR application was made by Care Principles Ltd without notice and heard out-of-hours; an interim order was granted by Lloyd Jones J that the MHRT decision would be halted and the discharge would not take place.
The social worker felt that the Tribunal had not been given all relevant information, that therefore the "new information" test in R (von Brandenburg) v East London and City MH NHS Trust  UKHL 58 was met and an application for detention under s3 was justified. The hospital decided to accept this application and detain AL under s3 when the s2 expired.
After the 28 days of the s2 expired Sullivan J directed that a rolled-up hearing would take place, and recommended that AL challenge the decision to detain him under s3.
The judge restated the relevant legal principles: the MHRT decide on the detention criteria at the time of the hearing, not at the time of admission; the burden of proof is on the hospital; the standard required is the balance of probabilities; the Administrative Court can only intervene if there is an error of law.
The MHRT had carefully considered the evidence and were entitled to come to the conclusion that the necessary link between AL's conduct and mental disorder was not present. Additionally, it was not irrational to defer the discharge as there was no evidence that it would not be possible to arrange the aftercare in the deferment period.
Normally it would be wrong to grant a stay of a decision to discharge from detention unless the claim against the MHRT is a very strong one and there is cogent evidence that, if the patient is released, he will be a danger to himself or the public, R (Ashworth) v MHRT; R (H) v Ashworth  EWCA Civ 923 applied. Unless in very exceptional circumstances, notice should be given both to the patient's representatives and the MHRT of the pending request for a stay.
The hospital managers were aware of the MHRT decision so a critical consideration was required of the justification for the detention which was contrary to the decision of the MHRT. In fact they simply said that they were satisfied that the SW, although she had not explained it in the application, had considered and discussed it. There was no proper basis for deciding that, notwithstanding the MHRT decision, s3 detention was appropriate; it was therefore unlawful.
Care Principle's claim was granted permission but dismissed; AL's claim was allowed. As a result, the s3 detention was quashed and AL had to be discharged in accordance with the MHRT decision (without prejudice to any subsequent developments).
Mr Justice Collins
Mr B Collins instructed by Capsticks for Care Principles Ltd
Mr J Hyam instructed by the Treasury Solicitor for the MHRT
Mr R Pezzani instructed by Francina Whelan & Co for AL
Miss C Budden instructed by Middlesborough Council for Julie Bartlett, ASW (second defendant in AL's claim)