R (RD) v Mental Health Tribunal and Secretary of State for the Home Department [2007] EWHC 781 (Admin)

This was a renewed application for permission to apply for judicial review to challenge a decision of a Mental Health Review Tribunal.  RD was a restricted patient having been convicted of manslaughter on the grounds of diminished responsibility.  A hospital order without limit of time was made and RD was detained having been diagnosed as suffering from paranoid schizophrenia.  The tribunal decided that RD should not be discharged as it was satisfied that he was suffering from mental illness of a nature or degree which made it appropriate for him to be liable to be detained in hospital for medical treatment and that it was necessary for his health or safety or for the protection of other persons that RD should receive such treatment.

Rule 11 of the Mental Health Tribunal Rules 1983 states that the medical member of the tribunal should examine the patient in order to form an opinion of the patient’s mental condition.  In order for this rule to be compliant with the ECHR there had to be “due impartiality” exercised on the part of the medical member.  This meant that he or she should not prejudge the decision of the tribunal and keep an open mind until the conclusion of the hearing as to the necessity for continued detention.  The opinion would be acceptable only if it was one that was provisional and not one that was firm or concluded. R(S) v MHRT applied.  In this case, the medical member of the tribunal examined RD and was of the opinion that he was ready for transfer to a medium security hospital but was not ready for community living.  RD claimed that this went beyond the requirement of impartiality require by the ECHR and breached RD’s rights under article 5.4 in that it prevented his right to an impartial and independent judicial determination of the lawfulness of his detention.  The Secretary of State submitted that the formation and expression of a preliminary view did not breach this right and there was nothing in rule 11 or elsewhere that prevented the forming of such a view on any of the issues in the case as long as it was made clear that this was only a preliminary view subject to the evidence and submissions not yet made.

The court agreed and held that the view of the medical member did not breach RD’s Article 5 rights and that RD sought to read too much into rule 11.  There was nothing in rule 11 to prevent the medical member discussing all aspects of the case with other members of the tribunal before the hearing and to express to them a preliminary view either on the case as a whole or any particular aspect of the case.  On this ground of the application the claimant failed.

RD also submitted that in disagreeing with the evidence of Dr V and Dr L who gave evidence recommending discharge, the tribunal had not give sufficient reasons for doing so and had merely recited the statutory criteria.  He argued that because the doctors had suggested a conditional discharge, continued detention was a disproportionate response to the legitimate aim of maintaining his mental stability. The Secretary of State argued that the tribunal had given clear reasons for its decision and for departing from the views of Drs V and L.  RD’s illness had only been under control for eighteeen months and during drug free trials at his hospital he had become suspicious and irritable, suggesting deterioration in his mental state.  RD could pose an unacceptable risk to himself or others if he was to relapse and the tribunal had explained intelligibly and adequately why it considered he should continue to be detained in hospital.

The court agreed with the Secretary of State and decided that the renewed application should fail.

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