Mental Health - January 2010
Restricted practices
A restricted patient might have to make a fresh
application to the tribunal when his restrictions fall away.
Georgina Rowley considers a wealth of recent, and not-so-recent,
cases.
There is a perennial question for mental
health layers: what happens to a patient’s discharge-application if
his status changes before it can be heard? The High Court has
recently provided another answer to that question, this time, with
regard to one-time restricted patients (R (MN) v Mental
Health Review Tribunal [2008] EWHC (Admin) 3383).
The facts
MN was
detained in secure conditions, having been transferred from
hospital under section 47 of the Mental Health Act (MHA). He
applied to the Mental Health Review Tribunal (as was) at a time
when he was subject to a Restriction Direction made under section
49 of the Act. Subsequently, however, his prison sentence expired,
the Restriction Direction fell away and he had to be treated as if
he were subject to a standard Hospital Order.
The issue
The tribunal
refused to hear the case, claiming that as MN was not now under
restrictions, his application was extinct. Hospital Order
patients have a different right to apply to the tribunal, and it
was said he should now make a fresh application in that way.
MN, though, argued that because he had been entitled to make his
application when he did so, it should remain live and still be
heard.
The judgment
The court
considered two earlier cases concerning a patient’s
change-of-status. In the first, an application made by a patient
detained under section 2 of the MHA did not come on for hearing
until after he had been detained under section 3. His changed
status was not allowed to deprive him of a hearing (R v
South Thames Mental Health Review Tribunal, ex parte M
[1998] COD 38). Here, though, the judge said that was wholly
different from what had happened to MN.
The second case concerned a tribunal
application made while a patient was detained under section 3 of
the MHA but not heard until he had been placed on Aftercare under
Supervision, under section 25A (which has now, of course, been
abolished). There, the court said that if the application
were kept alive, the patient would have two tribunal challenges,
conceivably within short under: the first to his detention under
section 3, and the second, to his supervised discharge. This would
be so, even if there were no change in his circumstances between
the first and the second challenge (R (SR) v Mental Health
Review Tribunal, CO/1738/2005). Here, the judge noted that
although this might also fit the facts of MN’s case, it was “a
result that Parliament is unlikely to have intended”, which in
itself demonstrated the falsity of MN’s argument.
The judge also noted that MN would not need
the fresh application right he enjoyed as a mere Hospital Order
patient if, as he claimed, his original right lived on. The
judge therefore found against MN. He also refused to grant him
permission to appeal to the Court of Appeal and ordered him to pay
the costs of the case. (It is highly unlikely that those costs will
be enforced.)
Discussion
The courts
had already made a clear distinction between cases in which a
patient’s tribunal application will survive a change-of-status and
those in which it will not. The key question seems to be
whether the change is between similar or quite different forms of
compulsion.
This decision places the
restricted/unrestricted change in the latter category. In fact,
when the decision is combined with those on the section 2/section 3
change, and on the section 3/supervised discharge change, it might
seem that we have almost a full set - almost: the 2007 Mental
Health Act has created an array of fresh possibilities, and it
remains to be seen what will happen if a tribunal application made
while a patient is detained under section 3 of the MHA has not been
heard by the time he is put on a Community Treatment Order. The
instant case would seem to suggest that the application must
fall.
Georgina Rowley,
Associate
Weightmans LLP