Facts: TF had served a custodial sentence for robbery but on the day of his release was served with a hospital transfer order purporting to be made under section 47 of the MHA 1983. TF sought a judicial review. At first instance, Cox J held that the transfer order had been unlawful, in that neither of the doctors’ recommendations gave reasons in support of their view that hospital treatment would alleviate mental illness or prevent deterioration. However, in the light of subsequent medical evidence garnered by the Secretary of State, she declined in the exercise of her discretion to quash the transfer order, order TF’s release and require the Secretary of State to pay damages. TF appealed.

Judgment: the Court of Appeal (Waller, Thomas and Aikens LJ), having reviewed the position and confirmed that the transfer order was unlawful, allowed TF’s appeal: the Secretary of State had not had the power to make a transfer order, so the detention was unlawful, and the Court could not make it lawful by exercising a discretion.