Secretary of State for the Home Department, ex p C [2002] EWCA Civ 647

A Tribunal order for a conditional discharge of a restricted patient is provisional, not final, and the Sec of State cannot lawfully make a fresh referral to the Tribunal under s71(1) of the MHA just because something was left out of account at the first hearing.

Instead, the Tribunal must re-convene to reconsider its decision or the conditions in light of material which should have been put before it on the earlier occasion.

A fresh referral risks breaching the human rights of the patient, so the onus on the Sec of State in so doing is high, to prove that he had good grounds for belief that the Tribunal may have been misled. The Secretary of State had to satisfy himself that his action was not inappropriate and was justified – in that a more onerous condition than the one applied, or that no conditional discharge would have been granted, would have been the likely outcome of the Tribunal’s having had the omitted material.

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