R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 2194 (Admin)

Conditional discharge – conditions – deprivation of liberty – judicial review


This case followed soon after R(G) v MHRT and concerned similar issues concerning the deferment of a conditional discharge in circumstances that would amount to a deprivation of liberty.  The Claimant had a history of sexually assaulting young boys and had paedophilic sadistic fantasies.   The Claimant was convicted of manslaughter, for the strangulation of an 11 year-old boy in 1976.  He was committed to hospital subject to a restriction order without limitation of time.


Where a Mental Health Tribunal is not satisfied that a restricted patient is suffering a mental disorder for which he needs treatment or that it is necessary for his health and safety or for the protection of others, then his continued detention must end and an order be made for his discharge.  Such was the finding by the Tribunal in this case.


If it is satisfied that it is appropriate for the patient to be liable to be recalled to hospital for further treatment it must order a conditional discharge.  Such a discharge may be deferred until the Tribunal is satisfied that the conditions are in place.


A provisional decision can be revoked if there is a material change in circumstances: (R(H) v Sec State for Home Department 2003).  A ‘material change’ might be the unavailability of suitable accommodation.


As stated in R(G), the difference between restrictions and deprivation of liberty is a question of fact and degree, and the purpose for which the restrictions were imposed is relevant.  If they were to benefit and assist the patient, rather than for the protection of others, it is more likely that they are restrictions rather than deprivation of liberty.


This will be all the more important once the provisions of the Mental Capacity Act come into force; s5 provides legal re-assurance in relation to restrictions of liberty, but not detention. A new regime, called ‘Protective Care’, has been suggested in the Bournewood consultation so as to fill the gap and allow for judicial scrutiny of the detention, albeit necessary detention, of incapacitated but compliant persons.


Professionals involved with the Claimant believed the danger posed to young boys was still high and he should never be unescorted in the community.  There were differing opinions about his suitability for a community placement, but it was argued by the Claimant’s social worker that the same standard of treatment offered in hospital, could be offered in a community setting, with the appropriate safeguards in place.  The Tribunal agreed that the Claimant met the threshold for a conditional discharge if stringent conditions were attached to the order.  The conditions were that he continued to take specific medication, reside at accommodation with suitably qualified experienced staff 24-hours a day and have constant supervision whenever he left the premises.


The court held that such conditions were not merely restrictions and constituted a deprivation of liberty since they were primarily for the protection of others.  The finding of the court followed the judgment in the case of G and the Claimant’s application for judicial review of the legality of the order was successful.

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