MENTAL DISORDER Mentally ill patient detained in hospital after end of prison sentence - mental health review tribunal ordering patient's discharge - quashing of tribunal's decision maintaining status quo not reconstituting order for detentionR (Wirral Health Authority and another) v Mental Health Review Tribunal and others: CA (Lords Justice Clarke, Mance and Dyson): 13 November 2001The patient, who had a long criminal record, was serving a prison sentence when he was discovered to be suffering from paranoid schizophrenia.

He was transferred from prison to a hospital under section 47 of the Mental Health Act 1983 and was retained there under section 37 of the Act after his sentence term.The mental health review tribunal ordered the patient to be released but the patient's new responsible medical officer directed that, on his release from detention under section 37, he be detained under section 3 of the Act on legal grounds.

The health authority and the local authority sought judicial review by way of an order quashing the tribunal's order and the medical officer's direction.

Mr Justice Scott Baker granted the application and the patient continued to be detained in hospital.

The patient appealed on the ground that the effect of quashing the tribunal's order had been to reconstitute the order for his detention under section 37.Simon P Vaughan (instructed by Darwen Law Chambers, Darwen) for the patient.

Fenella Morris (instructed by Hill Dickinson, Liverpool) for the health authority and the local authority.

Richard Clayton (instructed by Morgan Cole, Cardiff) for Ashworth Hospital Authority; the tribunal and the medical officer did not appear and were not represented.

Held, dismissing the appeal, that where the High Court exercised its jurisdiction to declare invalid a decision which was found to be obviously unlawful the consequence was that the decision concerned was treated as if it had never been made; and that, accordingly, nothing had happened to change the status of the patient and therefore, the court's order did not 'reconstitute' an order under section 37.