H v Ashworth Hospital Authority [2002] EWCA Civ 923

Mental Health – discharge – tribunal

H had been granted an order for discharge by the MHRT. However, the order was stayed by the court pending the outcome of an application by Ashworth Hospital Authority (AHA) for judicial review of the MHRT’s decision.

H appealed against the court’s decision to stay the discharge, claiming that it was unlawful to grant a stay of the order once the time stipulated by the MHRT for discharge had been reached. H further contended that AHA’s decision to readmit and detain him under s3 MHA 1983 (and s13 in the interim period) was unlawful; that the Tribunal’s decision to discharge was not Wednesbury unreasonable, and that the Tribunal had given adequate reasons for its decision.

Allowing the patient’s appeal in part, the Court of Appeal held that the court had jurisdiction to grant a stay of a tribunal decision that was subject to a judicial review challenge, even where that decision had already been fully implemented, provided that there was a strong case that the decision was unlawful; that there was cogent evidence of risk and dangerousness, and that the validity of the Tribunal’s decision was to be determined with the greatest possible speed.

Further, although the Tribunal gave reasons for their being satisfied that the discharge criteria were met, the Tribunal’s written reasons gave no indication as to whether they had considered H’s after-care arrangements. That failure to consider the actual availability of suitable after-care and accommodation when deciding to order H’s immediate discharge was unreasonable and unlawful. Where a Tribunal had doubts as to whether such services would be available on discharge, it should adjourn so as to obtain the necessary information. The Court also found that the Tribunal had failed to give cogent reasons for rejecting powerful expert evidence against discharge, as they were bound to do. The Tribunal’s decision fell to be quashed not only for its unreasonableness, but also for the Tribunal’s failure to give adequate written reasons.

However, the judge at first instance had erred in finding that the decision to readmit H was lawful. AHA were not entitled to overrule a discharge order, except where they were conscientiously able on the evidence to suppose that, had the Tribunal been aware of fresh circumstances, it would have reached a different conclusion and not ordered the discharge. Although AHA had been advised and believed that the Tribunal’s decision was unlawful, no new circumstances had arisen which justified AHA’s decision to re-section H, and AHA had therefore acted unlawfully. No substantive relief was ordered, however, as a subsequent application for discharge had been refused by the MHRT and it was accepted that H was now lawfully detained pursuant to that Tribunal decision.

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