Mental health review tribunal conditionally discharging restricted patient - discharge deferred during health authority's unsuccessful attempts to secure conditions - tribunal entitled to reconsider discharge and continue detention

R (H) v Secretary of State for the Home Department and another: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hobhouse of Woodborough, Lord Scott of Foscote, and Lord Rodger of Earlsferry): 13 November 2003

A mental health review tribunal directed the conditional discharge of the claimant, a restricted patient, under section 73 of the Mental Health Act 1983.

Discharge was deferred while the health authority sought, but failed, to implement the conditions.

After 21 months, the claimant challenged his continued detention by way of judicial review as contrary to article 5(1)(e)(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms as set out in part I of schedule 1 to the Human Rights Act 1998.

The judge dismissed his claim.

The Court of Appeal [2002] EWCA Civ 646; [2002] Gazette, 20 June; [2003] QB 320 dismissed his appeal.

The claimant appealed.

Tim Owen QC and Aswini Weereratne (instructed by David Mylan Solicitors, Saxmundham) for the claimant; Philip Havers QC and Nathalie Lievan (instructed by Treasury Solicitor) for the Secretaries of State for the Home Department and for Health; Lisa Giovannetti (instructed by Treasury Solicitor) for East Midland and North East Region Mental Health Review Tribunal, intervening; Kristina Stern (instructed by Hempsons, Manchester) for Nottinghamshire Healthcare NHS Trust, intervening; Fenella Morris (instructed by Payne Hicks Beach) for the Royal College of Psychiatrists, intervening.

Held, dismissing the appeal, that where a tribunal considered it appropriate to discharge a patient conditionally it could defer release to enable the conditions to be met and, if it were not possible to meet them, reconsider its decision provided that the patient was not, as here, left in limbo for an unreasonable period; that, since the effect of the tribunal's decision was that the claimant could be treated in the community if the conditions were met, but that otherwise detention should continue, there was no breach of article 5(1)(e); and that, although the 21-month delay constituted a breach of article 5(4), it did not in the circumstances require compensation.