R (SC) v MHRT [2005] EWHC 17 (Admin)
(1) In deciding not to discharge, Tribunal can consider disorders other than the those from which the patient is classified as suffering. (2) Section 75 is compatible with ECHR even though it includes no express criteria for consideration. The judge gave guidance on matters which the tribunal will need to consider.
Notes
Patient not discharged. Consideration given to previous psychopathic disorder although only classified as mental illness. Challenge to compatibility of s75 with ECHR because there are no criteria.
Extracts from judgment
57. Accordingly the Tribunal when exercising these powers will need to consider such matters as the nature, gravity and circumstances of the patient's offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient re-offending, the degree of harm to which the public may be exposed if he re-offends, the risk and likelihood of a recurrence or exacerbation of any mental disorder, and the risk and likelihood of his needing to be recalled in the future for further treatment in hospital. The Tribunal will also need to consider the nature of any conditions previously imposed, whether by the Tribunal or by the Secretary of State, under sections 42(2), 73(4)(b) or 73(5), the reasons why they were imposed and the extent to which it is desirable to continue, vary or add to them.
59. The consequence of an order under section 75(3)(b) is that the restriction order ceases to have effect; in other words, that what was previously only a conditional discharge becomes in effect an absolute discharge. But, as section 73 demonstrates, the difference between the two is the difference between the patient who is, and the patient who is no longer, liable to be recalled to hospital for further treatment. So, in effect, one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is – as section 73(1)(b) puts it – "satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment." If the Tribunal is not so satisfied, then it is difficult to see that it could be appropriate for it to make an order under section 75(3)(b).
Update
A change made by the Mental Health Act 2007 is relevant to this case. See Mental disorder no longer split into separate classifications 3/11/08