The lawfulness of a patient’s recall

Monday 1 August 2016

Lee-Hirons v Secretary of State for Justice [2016] UKSC 46, 27 July 2016. The appellant, initially subject to detention under ss37 and 41 of the Mental Health Act 1983 had been conditionally discharged and therefore subject to recall.

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Lee-Hirons v Secretary of State for Justice [2016] UKSC 46, 27 July 2016

In dismissing the appellant’s appeal against the Secretary of State’s decision that the appellant’s recall was lawful, the Court dealt with three main issues:

(1) whether the appellant received sufficient explanation at the time of his recall;

(2) whether the absence of a full written explanation within 72 hours, as required, rendered his recall unlawful;

(3) whether the breaches of the appellant’s rights ought to be subject to a formal declaration and attract damages.

The appellant, initially subject to detention under ss37 and 41 of the Mental Health Act 1983 had been conditionally discharged and therefore subject to recall. Concerns were raised about his mental health and a warrant for his recall was issued on behalf of the Secretary of State. The warrant contained no reasons.

The appellant was told by his social supervisor that the reason for his recall was because his mental health had deteriorated. He was taken to hospital and 15 days later a fuller, oral explanation was given. No written reasons were provided to him for his recall.

The Court held that the oral explanation given to the patient at the time of the recall had been legally sufficient under common law and the provisions of article 5(2) did not demand more.

The Secretary of State conceded that the failure to provide the appellant with an adequate written explanation for the recall within 3 days breached his right to be informed promptly of the reason for his recall under article 5(2). Lord Wilson stated,

"In my opinion there is no link, let alone a direct link, between, on the one hand, the Minister’s wrongful failure for 12 days to provide to the appellant an adequate explanation for his recall and, on the other, the lawfulness of his detention".

The Court went on to observe that the 12-day delay had not interfered with the statutory reference of the appellant’s case by the Secretary of State to the First-tier Tribunal which provided an independent check on whether the appellant’s continuing detention was justified.

In the absence of a direct link between the conceded breaches and the detention, the Court found that the detention was not unlawful.

Further, a formal declaration would not add anything to the Secretary of State’s concessions and damages were not payable for the breaches as the appellant’s distress was due to the recall itself rather than to the delay of 12 days before which the appellant received the fuller explanation.

See the full judgment.

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