R (IT) v SSJ (2008) EWHC 1707
Recall of patient unlawful where no new relevant information available to MoJ after discharge by MHRT; the element of the discharge plan requiring leave to be escorted was a temporary measure and so did not amount to continuing deprivation of liberty.
The claimant was conditionally discharged by the MHRT. He was subsequently recalled because the Ministry of Justice believed that the fact he was only taking escorted leave meant he was still deprived of his liberty and the discharge was not lawful.
R (MM) v SSHD  EWCA Civ 687 had to be read in light of R (von Brandenburg) v East London and City MH NHS Trust  UKHL 58: the decision maker must "believe on reasonable grounds that something has happened since the decision of the MHRT, or information has emerged which was not available to the MHRT, of sufficient significance to justify recalling the patient. The Tribunal had known of the plan initially to grant escorted leave from the hostel, so the recall was unlawful on this ground alone. If the Secretary of State disagreed with the decision of the MHRT the proper course was to seek judicial review.
The condition of escorted leave was not a condition imposed by the Tribunal, although if they were part of the discharge plan presented to the Tribunal then perhaps it ought to be considered in the same way. The duration of a measure is relevant in deciding on whether it amounts to a deprivation or mere restriction on liberty. In this case, the escorted leave condition was envisaged as a temporary measure, R (SSHD) v MHRT, re PH  EWCA Civ 1868 distinguished.