A restricted patient who has been granted a conditional discharge (whether by the Ministry of Justice or, more commonly, by the Mental Health Tribunal) can by warrant be recalled by the Ministry of Justice under s42(3).

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When recall is justified

Up-to-date medical evidence is required before recall, except in an emergency (K v UK).

In R (MM) v SSHD [2007] EWCA Civ 687 the Court of Appeal decided that Home Secretary [now the Secretary of State for Justice] has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient, and must have up-to-date medical evidence, but there is no general test laid down by the court.

Therefore, a patient cannot be recalled merely for breaching his "conditions", although breach of conditions could provide evidence of likely deterioration. A patient need not have breached any conditions to be recalled.

Provision of reasons for recall

See R (Lee-Hirons) v SSJ [2016] UKSC 46, [2016] MHLO 38.

Early reference to the Tribunal

With regard to the timing of a reference to the MHT by the Ministry of Justice, the question to ask is "whether there was a failure to proceed with reasonable despatch, having regard to all the material circumstances" (R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176).

The statutory requirement is for a reference within one month, but in practice of the Ministry of Justice make the reference straight away.

Tribunal eligibility dates

The Tribunal eligibility periods run from the date of recall, and no longer from the original date of detention.

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