RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273

(1) The SC case stated that 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'. The putting of the burden of proof on the patient is not in breach of the ECHR: Article 5 does not apply; conditions imposed may engage Article 8, but it is justified to require a patient made subject to a restriction order following a criminal trial/conviction to satisfy the FTT that the order should cease to have effect. (2) The FTT's reasons were undoubtedly adequate. (3) The FTT had not said that RH's restriction order 'should remain in place essentially for life' (it had said that in some cases this would be the case) so this ground of appeal failed. (4) The FTT's comparison between conditional discharge and life licence was not an equation but merely to explain why the gravity of the index offences was a relevant consideration. (5) The FTT were entitled to order that its decision be placed before any future FTT because, although not binding, earlier decisions are material considerations. (6) Except possibly in relation to the burden-of-proof ground (as an important point of principle), the UT should not have granted permission to appeal. (7) Particular care should be exercised before granting permission to appeal on a ground that was not raised below: had the SSJ been notified of the new grounds (including the burden-of-proof ground) it is likely that the response would have led to permission not being granted.