Recall
A restricted patient who has been granted a conditional discharge (whether by the Ministry of Justice or, more commonly, by the Mental Health Review Tribunal) can by warrant be recalled by the Ministry of Justice under s42(3).
When recall is justified
Up-to-date medical evidence is required before recall, except in an emergency (K v UK).
See also:
- R (MM) v SSHD [2006] EWHC 3056 (Admin) - If, on the basis of medical evidence and other information which the Secretary of State has, he reasonably reaches the opinion that deterioration in the mental condition of the patient is likely to occur in the near future unless he is recalled to hospital, and that such deterioration would put the health and safety of the patient or others at risk, he is entitled to order recall.
- R (MM) v SSHD [2007] EWCA Civ 687 - Home Secretary has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient, and must have up-to-date medical evidence, but there is no general test laid down by the court.
Therefore, a patient cannot be recalled merely for breaching his "conditions", although breach of conditions could provide evidence of likely deterioration. A patient need not have breached any conditions to be recalled.
Early reference to the Tribunal
With regard to the timing of a reference to the MHRT by the Ministry of Justice, the question to ask is "whether there was a failure to proceed with reasonable despatch, having regard to all the material circumstances" (R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176).
Tribunal eligibility dates
The Tribunal eligibility periods run from the date of recall, and no longer from the date of the original grounds for detention.