19.104R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin), (2007) 10 CCLR 306
Discharge on condition that the patient took specified medication did not amount to compulsory treatment, merely a condition which, if broken, would justify recall
Facts: SH was detained under a hospital order, with a restriction. He was granted a conditional discharge, on condition that he comply with prescribed medication. SH sought judicial review of that condition.
Judgment: Holman J held that the condition was lawful. It was not irrational or unlawful. It did not remove SH’s absolute right to refuse medical treatment on each occasion he attended for his fortnightly medication. (If he did refuse, then the Secretary of State would consider his power of recall). Holman J said this:
17. The general effect of section 73 is, accordingly, that the tribunal must direct the absolute discharge of a patient if they (a) are not satisfied, in paraphrase, that he is still ill and his detention for assessment or treatment is warranted or justified; and (b) are satisfied that it is not appropriate for him to remain liable to be recalled. But, if only the first but not the second limb applies, then the tribunal must direct conditional discharge. The critical difference between absolute and conditional discharge is that if the patient is only conditionally discharged, he may be recalled by the Secretary of State. The tribunal themselves do not necessarily have to impose any actual condition (see words ‘(if any)’ in subsection(4)b)) but may do so. The Secretary of State has a wide power himself to impose conditions at any subsequent time, and from time to time vary any condition whether imposed by the tribunal or by himself.
18. The references to conditions are entirely general and open ended and there are no express words in sections 73, 75 or elsewhere limiting the scope or effect of any condition which may be attached. Clearly, however, the law imports or requires some limitations. A condition could not lawfully be capricious and must be relevant and for a proper purpose within the scope of the statute. It is not suggested that condition 1 is not relevant and for a proper purpose.
19. Mr Hugh Southey, on behalf of the claimant, submits that section 73(4)(b) is subject also to the principle of legality as described by Lord Hoffmann in R v Secretary of State for the Home Department ex p Simms [2004] 2 AC 115 at 131E to G, where he said:
‘… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’
20. I fully accept that that principle applies to this case and operates as a limitation to the scope of a condition which may lawfully be imposed. The question in issue, however, is whether condition 1, properly understood and applied, does override any fundamental right of SH.