C v Secretary of State for the Home Department [2002] EWCA Civ 647

C, a restricted patient, had repeatedly applied to the MHRT for discharge. C’s RMO had opposed the latest application but C obtained a report from a senior social worker supporting the application. A later report from another social worker concluded that C should only be discharged subject to supervision by a consultant psychiatrist. This later report was not put before the tribunal, which ordered C’s conditional discharge, but without a requirement for psychiatric supervision. The Secretary of State, under s71 MHA, decided to refer the decision to discharge back to a fresh MHRT, on the basis that the tribunal might have been misled by not having all the documents when making its decision.

C applied for judicial review of that decision. The Court held that the decision to refer back was unlawful. An MHRT’s decision to direct a conditional discharge was provisional, not final. (See IH v Secretary of State for the Home Department). That being so, the Sec. of State, on the facts of this case, should have invited the tribunal to reconsider its decision, taking the additional report into account. There was no justification for a fresh referral.

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