This case was concerned with a patient conditionally discharged under the Mental Health Act 1983 who was recalled to hospital as a result of taking illicit drugs despite their consumption not having resulted into a florid mental illness. The patient (MM) claimed judicial review of two separate recalls that followed two separate conditional discharges.
MM was convicted of an unlawful wounding having attacked a man with a hammer whom he suspected of having an affair with his girlfriend. The Crown Court imposed a hospital order with discharge restrictions and MM became a restricted patient under the Act. His diagnosed mental illness was paranoid schizophrenia. As a restricted patient could be discharged from detention in the future but would be liable to recall to hospital by the Mental Health Unit (MHU) of the Home Office. MM was conditionally discharged twice before the occurrence of the events that gave rise to this case. Following both discharged he had been recalled to hospital. According to his psychiatrist, at the root of both recalls had been his illicit use of drugs. He failed to take his prescribed medication whilst using illicit drugs and quickly relapsed thereafter. In relapse he was thought to pose a danger to himself and others, particularly members of his family. By contrast, when he was taking his medication he was generally accepted to be completely free of psychosis and in a stable mental state.
The court examined the evidential basis necessary for a conditionally discharged patient recall to hospital to be lawful. One of the key issues was the information available to the MHU before each recall. The Mental Health Review Tribunal that imposed the conditions of MM’s discharge noted that previous conditional discharges had failed because MM had relapsed once he had started to use illicit drugs and stop taking his medication. In light of this the Tribunal imposed a condition which required MM to submit to random drug testing. MM informed his social worker that he had been using cannabis and his father suspected that he was also using cocaine. The social worker and MM’s psychiatrist contacted the MHU and made representations about the danger he posed to himself and others if he were to relapse based on past experience. The MHU issued a warrant for his recall to hospital.
Later the same year MM was again conditionally discharged by a Tribunal under the same conditions as before. It was noted by the Tribunal that he was taking his medication free of psychosis and mentally stable. Following a drugs test, MM tested positive for cocaine and cannabis. Nevertheless his psychiatrist was of the opinion that he remained free of psychosis. MM was sent a warning letter explaining that he would be liable to recall should he test positive again for illicit drugs. MM tested positive for amphetamines a week later. MM’s social worker and RMO agreed with the MHU that he should be recalled to hospital which is what happened.
MM claimed judicial review of both recalls. At first instance in the High Court, his claim was rejected; MM appealed to the Court of Appeal. Breaches of the conditions of a conditional discharge do not in themselves permit a patient to be recalled. The recall power operates by reference to the statutory detention criteria contained in s72 of the Act. The patient can only be recalled if he is suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to detained in a hospital for treatment and his treatment under conditions of detention is necessary for his health and safety or for the protection of the public. Only if the Home Secretary concludes that both of these requirements are satisfied is he entitled to recall a patient to hospital. The Home Secretary may not use his power to recall a patient for the purpose of nullifying a tribunal discharge with which he disagrees. The necessary evidence to support the Home Secretary’s conclusion will include up to date medical evidence.
In order to comply with Article 5 ECHR a mental disorder must be established before a competent authority on the basis of objective medical expertise and must be of a kind or degree warranting confinement. This will be relevant to the decision to recall a patient. Continued confinement will depend on the persistence of such a disorder. This will be relevant to the decision following recall.
The Court of Appeal found that there was a satisfactory evidential basis for the Home Secretary’s conclusion in both recalls, that MM was suffering from a mental disorder of a nature or degree that made it appropriate for him to be detained in hospital for treatment. The “nature or degree” requirement was essentially a matter of clinical judgment which did not require the medical practitioner to be certain that psychotic symptoms would result and the patient could be recalled. The court also held that there was sufficient evidence for the Home Secretary’s conclusion that treatment under conditions of detention was necessary for the protection of the public. Whilst the Home Secretary must act on the basis of up-to-date medical evidence that does not require a full medical report to be completed before recall may be ordered. It was sufficient for a patient’s RMO to confirm that he was still likely to relapse as a result of taking illicit drugs.