In early 2005, Munby J delivered his judgment in R (SC) v. The Mental Health Review Tribunal & Anor [2005] EWHC 17. There had until then been no clear guidance on how the s.75(2) MHA 1983 discretion should be exercised by tribunals. And because the subsection specifies no criteria, that absence gave rise to worries about consistency and foreseeability (i.e. different tribunal panels might decide that different matters were or weren’t relevant, and nobody knew what any particular panel might consider relevant). Munby J allayed those worries by describing the range of matters material to the exercise of the discretion, principally at paragraphs 54-57. Since then, tribunals have tended to adopt that analysis in s.75(2) cases. It’s common to see paragraph 57 quoted in tribunals’ written reasons, almost as if it’s legislation. This is broadly a good thing, because at least the parties have a clear idea about the basis upon which the tribunal will make its decision.
But that was 17 years ago. Whilst SC is still useful, does it remain the last word on how the s.75(2) discretion should be exercised? I don’t think it does.
There are two subsequent authorities which have great significance for s.75(2). The first is Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39. At paragraph 74, Lord Reed (now the President of the UKSC) dropped the best single instance of judicial analysis in the last decade. It’s so good that it’s been adopted by many other judges at all levels ever since.
But what does a case about an Iranian commercial bank have to do with whether MHA restrictions should be lifted? It delivers a perfect delineation of proportionality. And why does that matter? Because s.75(2) is all about proportionality. We know this from SC: Munby J accepted that conditions of discharge are capable of interfering with the patient’s Article 8 ECHR rights, and even absent conditions, being subject to a restriction order has an impact on how the patient lives their life. As a result, the restriction order’s interference with the patient’s liberties must be justified as proportionate, or as Lord Reed put it in Bank Mellat: “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”.
So how do you figure out whether a restriction order is proportionate? Well, you use paragraph 74 of Bank Mellat, which gives you a checklist of four questions to answer:
“[…] it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter […]”
If the answer to questions 1 or 2 is negative then the measure (in our case the restriction order) is probably disproportionate, as it is if the answer to questions 3 or 4 is affirmative. You’ll see that the first two questions are easy. In most s.75(2) cases, the answer to both will obviously be affirmative. Though it might be helpful here to identify the objective, so as not to confuse means and ends. The objective is to prevent the chain of events that is likely to imperil the patient or the public or both, i.e. relapse leading to recidivism. But that broad end may be achieved by numerous means, which need not necessarily include a restriction order – for example by the patient complying with medication or being examined by a doctor from time to time. And within those means, in turn, is where the evidence bites – for example, whether the patient has shown consistent insight into the need to take medication, or a willingness to meet supervisors, or an openness in reporting concerns about changes to their mental state, and so on.
This brings us to the crux third and fourth questions. If you’re (understandably) struggling with all the subphrases in question 4, Lord Reed gives us a precis: “In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure” (he then succinctly restated the principle in Pham [2015] UKSC 19: “where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality”).
Taken together, the four Bank Mellat questions give us what Lord Reed called an attractive heuristic tool. My favourite definition of ‘heuristic’ is ‘the art of discovery in logic’. Paragraph 74 is a beautiful and succinct set of logical steps to work through to discover an answer. You just need to add evidence and argument to each one. And that evidence and argument will largely comprise the issues outlined by Munby in paragraph 57 of SC. It’s just that by inserting those issues into Lord Reed’s heuristic framework, you get a more focussed analysis. After all, the question for the Tribunal is not so much whether there is a risk of relapse in future, or whether there is a consequent risk of recidivism (because it will never be possible to say there’s zero risk of either), but rather whether, given the existence of those risks, the restriction order is the least intrusive means of sufficiently and effectively guarding against them. You will see that that question introduces all the matters that you’d normally cite in argument for or against the need for a continuing restriction order, for example the patient’s insight or lack of it, the fact that aftercare, treatment, and supervision will or will not continue whether the restriction order’s in place or not, and so on.
All this may be just another way of saying what’s already commonly said in s.75(2) Tribunals, but I think its advantage lies in a logical and progressive structure into which you can fit evidence and argument.
Next up is SLL v (1) Priory Health Care and (2) Secretary of State for Justice (Mental Health) [2019] UKUT 323 (AAC). This was an Upper Tribunal appeal about whether the MHRTW erred in deciding that a patient should be conditionally rather than absolutely discharged. UTJ Church delivered a tour de force of a judgment. And whilst it’s about s.73 rather than s.75, it goes into the circumstances in which an absolute discharge should be directed, which is obviously relevant to s.75(2) cases. Paragraphs 34(e) and 35 are pertinent:
“[34] Given that the power of recall in respect of a conditionally discharged patient can only be exercised for the purpose of the patient receiving further treatment, and given that the patient may be recalled to hospital only (and nowhere else) it is difficult to see how the question of the appropriateness of a patient continuing to be subject to the power of recall could properly be determined without the tribunal making findings about:
a. whether the patient now suffers from a mental disorder which may be expected to endure or has, now or in the past, suffered from a mental disorder which may be expected to recur;
b. if the answer to the question posed in paragraph a. is “yes”, how likely it is that the patient might experience symptoms of such mental disorder in the future;
c. what kind of treatment might be available in hospital to treat such mental disorder;
d. what can reasonably be expected to change in consequence of the patient receiving such treatment in hospital (in other words, what purpose is to be served by the recall?); and
e. (given the “least restrictive” principal that informs the MHA regime) whether any alternative strategies are available which might manage the risks associated with future deteriorations in the patient’s mental health effectively but which place less restriction on the patient’s liberty than the patient continuing to be subject to the power of recall.
35. Such findings would, no doubt, be based on evidence of the patient’s past experience (of the chronicity of his mental disorder, its symptoms, its response to treatment, the prognosis and the attendant risks), but the findings themselves must be forward-looking in nature.”
This is nice because it does what I was going on about in relation to the interaction between Bank Mellat and SC. At paragraph 34(e) we have the foundations of the proportionality test, and at paragraph 35 we have many of the things that Munby J thought relevant, but now expressly applied to that test. The cherry on the cake is the last phrase of paragraph 35, which emphasises the need not to get stuck on what the patient did in the past, but rather, and always of course having due regard to those events, to assess what they, and what’s happened subsequently, mean in relation to what should happen in the future.
How does this all work in practice? You fit your evidence into the heuristic framework and see what comes out the other end. Of course the result depends on the facts of the individual case, but generally I find it helpful to identify two different means of risk mitigation: internal and external. By internal I mean the patient’s insight, understanding, determination to remain well, diligence in taking treatment and seeking advice and support, and their resilience and ability to cope with change. By external I mean all the things the restriction order and conditions of discharge require. It’s probably reasonable to say that he more internal there is, the less external is likely to be needed, and so the closer to disproportionate the restriction order gets.
I like s.75(2), because it’s an acknowledgement that detention for treatment under the MHA can achieve its ultimate objective, which must be that a person who was once so ill that they needed a restriction order recovers sufficiently that they no longer need any coercion at all to remain well. Call it what you will - a vindication of forensic psychiatry, or of patients’ ability to overcome great adversity, or both, or simply a recognition of the legitimacy of cautious hope - but that it exists at all is, I think, a good thing.