R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616

MHRT granted absolute discharge without considering conditional discharge criteria; High Court quashed decision, so patient became detained restricted patient again; Home Office refused to grant s17 leave until next MHRT; Court of Appeal partially quashed MHRT decision but declared patient entitled to be conditionally discharged pending MHRT determination of appropriate discharge type.


BR was s37/41 patient. On 12 April 2005, MHRT decided no MI or PD so granted absolute discharge

On 10 November 2005, the High Court quashed the MHRT decision, as they had failed to consider the appropriateness of liability to be recalled for further treatment (i.e. whether to grant a conditional discharge rather than absolute), and directed reconsideration by (if possible) the same panel.

The judge hoped that the Home Office would allow BR to have s17 leave until the new MHRT but this did not happen. The Home Office relied upon a report which, although it concluded that "There was no evidence of a deterioration in his mental state", mentioned concerns the clinical team had had in July. (This was subject to a separate JR.)

The patient appealed.


The Court of Appeal felt that the Tribunal's decision on the discharge criteria entitled BR, at the least, to a conditional discharge. It was only the issue of the type of discharge to which they had not yet addressed their minds.

The need for a fresh MHRT decision did not require a quashing order which returned BR to the position he was before the hearing, i.e. a detained restricted patient.

It was open to the judge only to quash the "absolute discharge" part of the decision and to declare that the patient to be treated as conditionally discharged until the fresh MHRT hearing. This was called for by the requirements of the common law and of the ECHR that nobody is to be deprived of his liberty except according to law.

The Home Office would be able to recall the patient, so there would be no loss of control, but BR was entitled to have any consideration of his case start from a position of liberty.

The following orders were made:

  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 MHRT proceed when it reconvenes on 12 January 2006 to determine whether for the purposes of s73(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.


Lord Justice Sedley gave the judgment of the court

Lord Justice Laws

Lord Justice Sedley

Kris Gledhill (instructed by Scomo) for the Appellant (Interested party)

Marie Demetriou (instructed by T Sol) for the Respondent (Applicant)

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