R (SSHD) v MHRT, re JC  EWHC 2224 (Admin)
Deferred conditional discharge decision was unlawful: (1) the decision on the statutory criteria was irrational; (2) the conditions were unlawful - by requiring satisfactory trial leave and consent from third parties they were pre-conditions to discharge rather than conditions of discharge.
On 4 December 2006 the MHRT granted a deferred conditional discharge with the following conditions:
- that the patient do reside for the foreseeable future at the Langley House Trust establishment, Longcroft, Lancaster, and abide by its rules, in particular not to leave the establishment unescorted and not to take any alcohol, provided
- (i) trial leave or leaves have been undertaken satisfactorily;
- (ii) the Home Office agrees to the move;
- (iii) MAPPA agrees to the move;
- (iv) the proposed RMO reports on having met the patient and agrees to accept him
The patient was at the time detained in a medium secure unit; the Lancaster placement mentioned by the Tribunal was a low secure unit.
The Home Secretary challenged this decision on the following grounds: (1) the "escort" condition amounted to deprivation of liberty and so was unlawful; (2) irrationality; (3) conditions (i) to (iii) could not lawfully have been imposed. The Tribunal then signed a consent order agreeing that the "escort" condition was unlawful, and that the criteria for discharge were not satisfied.
Grounds of challenge
The Tribunal had sat on 12 June 2006 and decided that the criteria for detention were met; however, somehow they adjourned the hearing to September 2006. They felt that JC should move to a low secure hospital and wanted further information. In September 2006 the hearing was further adjourned to 4 December 2006.
There was nothing which could have altered their position on the detention criteria between 12 June 2006 and 4 December 2006. The treating team's views remained that detention was necessary. They had fresh evidence from a Dr Turner, but in reality this was recommending a transfer to lower security, and could not amount to a recommendation for discharge.
The deferred conditional discharge decision appeared irrational because of the June 2006 acceptance that the statutory criteria were not met, and the reasoning then that the patient required transfer rather than discharge; this impression was fortified by the "escort" condition and the other four conditions.
It was accepted that conditions (i) to (iii) were unlawful: they were not conditions of discharge, but pre-conditions to discharge. The Tribunal could not lawfully impose a condition which made conditional discharge subject to the agreement of some other body. The Claimant argued for a "blue pencil test" to be adopted: the offending conditions to be deleted and the matter remitted to the Tribunal to decide whether discharge could take place without them. However, it was impossible to isolate out the conditions in that way. The conditions, for example the requirement for satisfactory leaves, demonstrated that the Tribunal was not satisfied that the statutory criteria (to allow discharge) were met.
Deprivation of liberty
It was not necessary to decide whether or not the condition that JC not be permitted to leave without an escort amounted to a deprivation of liberty and was thus unlawful, since the other two grounds of challenge succeeded.
The decision to grant a deferred conditional discharge was quashed. The case was remitted back to the Tribunal, who had the discretion to arrange for the same panel to rehear the case.
The judge talked of the statutory criteria needing to be met in order to permit discharge, and the summary above reflects that. However, it should be remembered that the onus of proof is now on the detaining authority. The statutory criteria therefore must be met to permit continued detention.
It is unusual that the Tribunal adjourned in June 2006 after determining that the criteria for detention were met.
Mr Justice Sullivan
Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Claimant (SSHD)
Mr P Bowen (instructed by S Rees, Darwen Law Chambers, Darwen) appeared on behalf of the First Interested Party (JC)