Automated Summary
Key Facts
The case involves DA, a patient with paranoid schizophrenia in remission, who was conditionally discharged in 2016 with specific conditions. The First-tier Tribunal (FtT) removed all conditions but retained liability to recall, citing the severity of his 2011 violent offense and potential risk to public safety if he relapses. The Upper Tribunal found this decision legally flawed due to inadequate reasoning on the likelihood of relapse and proportionality of retaining recall liability, remitting the case for rehearing.
Issues
- The First-tier Tribunal (FtT) retained the appellant's liability to recall while removing all conditions of his conditional discharge. The Upper Tribunal considered whether this approach was irrational, balancing the 'safety net' purpose of recall against the absence of enforceable conditions.
- The appeal challenged the FtT's failure to provide clear reasons for its conclusion regarding the likelihood of the appellant becoming mentally unwell again and the impact of transferring his care to the CMHT. The Upper Tribunal found the reasons inadequate for determining the appropriateness of continued recall.
- The FtT applied a proportionality test, weighing the extreme public risk if the appellant relapsed against the minimal restriction on his liberty from remaining liable to recall. The Upper Tribunal reviewed whether this balancing act was legally appropriate under section 75(3) of the Mental Health Act 1983.
Holdings
- Ground a (irrationality) was dismissed as the First-tier Tribunal's reasoning for retaining liability to recall while removing conditions was deemed rational under the legal framework.
- Ground c (inadequacy of reasons) succeeded because the First-tier Tribunal failed to address key factors: the likelihood of the appellant's mental health relapse and the psychological impact of liability to recall, despite evidence from professionals and the appellant.
- The Upper Tribunal allowed the appeal, finding the First-tier Tribunal's decision was made in error of law due to inadequate reasons for retaining the liability to recall. The decision was remitted for reconsideration by a new panel.
- Ground b (proportionality) was not found to contain an error of law, as balancing the 'slight burden' of recall against the severity of the index offence was permissible under the legislation.
Remedies
The Upper Tribunal allowed the appeal, set aside the First-tier Tribunal's decision made on 27 October 2020 under number MP/2020/10725 due to an error of law, and remitted the case to be reconsidered by a wholly differently constituted panel at an oral hearing.
Legal Principles
The tribunal's decision to retain liability to recall was subject to a proportionality assessment, balancing the 'slight restriction' on the appellant against the 'extreme risk to the public' if he relapsed. This aligns with principles of judicial review under the Mental Health Act 1983, particularly sections 73 and 75, where proportionality is a key consideration in evaluating the appropriateness of continued statutory supervision.
Precedent Name
- HK v Llanarth Court Hospital
- R(SH) v Mental Health Review Tribunal
- R v Merseyside Mental Health Review Tribunal ex p K
- SLL v Primary Healthcare and Secretary of State
- English v Emery Reimbold & Strick Ltd
- R (Secretary of State for the Home Department) v Mental Health Review Tribunal
- R(SC) v Mental Health Review Tribunal
Cited Statute
- Tribunals, Courts And Enforcement Act 2007
- Mental Health Act 1983
Judge Name
Ward
Passage Text
- 30. ...the approach of assessing the proportionality of the 'slight burden' as against the severity of the index offence, it is respectfully submitted, is erroneous.
- 33. ...the only area identified by the FtT as potentially leading to difficulty was the transfer from the Focus team to the CMHT, something which the FtT regarded as 'an untested change which creates the possibility of some uncertainty'. Even if it did create a 'possibility of some uncertainty', it is unclear how the FtT considered that might be linked to the appellant becoming ill once again...
- 24. The FtT's stated reason for retaining liability to recall was as a 'safety net', given the severity of the index offence, because of the extreme risk to the public in the event of the appellant becoming mentally unwell again.