Mental Health - April 2010
Perfect recall?
In some cases, conditional discharge may be brought to
an end without up-to-date medical evidence.
The High Court recently considered the process
for recalling a conditionally discharged patient to hospital, and
whether it requires the Home Secretary to consult with the relevant
clinician (R (Munday) v Home Secretary [2009] EWHC
(Admin) 3638).
The case concerned a restricted patient, Mr
Munday, who was conditionally discharged from Rampton Hospital in
2005. His behaviour subsequently deteriorated, and in 2008, he was
recalled to hospital. He claimed that the Home Secretary had failed
to seek medical advice, had acted contrary to such medical advice
as there was and had issued his recall warrant without sufficient
reason. (The events of this case pre-date the amending of the
Mental Health Act, and references to the patient’s ‘Responsible
Medical Officer’ should therefore now be read as being to the
‘Responsible Clinician’).
The Home Secretary had been notified that Mr
Munday had been arrested for (though not charged with) arson. He
had spoken to the Responsible Medical Officer (RMO) by telephone,
but neither had kept a contemporaneous note of the conversation and
each had a different understanding of what was said.
The court accepted, however, that although the
RMO was initially reluctant, the Home Secretary did not understand
him to object to recall. Subsequently, the matter was referred to
the Mental Health Review Tribunal and the RMO wrote a report,
indicating that he did not consider the arson allegations
sufficient to justify recall. The tribunal decided to re-instate Mr
Munday’s conditional discharge.
Although the Mental Health Act does not say
how the Home Secretary should go about exercising the power of
recall, there are several cases on the point. In K v United
Kingdom (1998), it was suggested that up-to-date medical
evidence always be sought, while in R (MM) v Home
Secretary (2007), the Court of Appeal said it was hard to
imagine that the Secretary of State would not seek advice from a
patient’s RMO.
Here, it was agreed that the decision to
recall Mr Munday could only be challenged if it was
‘Wednesbury-unreasonable’ (in other words, if no
reasonable Home Secretary could have made it). Adopting the
approach taken in MM, the High Court said:
- The Home Secretary should consider the last
tribunal decision and ask whether there has subsequently been such
a material change of circumstances that the detention criteria are
now satisfied. If not, it will be hard to justify recall.
- It is appropriate to seek up-to-date medical
evidence before recalling a patient to hospital. Here, however, the
RMO did not question recall on medical grounds, but because he did
not believe the allegation of arson provided sufficient
justification.
- On that basis, the Home Secretary’s decision
had not been unreasonable.
Where recall is in prospect, therefore, it
seems clear that although up-to-date medical evidence will often be
appropriate, decisions as to risk won’t always demand it.
Sallie Harrington,
Associate
Weightmans LLP