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Cite as: [2006] EWHC 3056 (Admin)
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Neutral Citation Number: [2006] EWHC 3056 (Admin)
CO/2743/2006 CO/8048/2006

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
23 November 2006

B e f o r e :

MR JUSTICE MITTING
____________________

THE QUEEN ON THE APPLICATION OF MM (CLAIMANT)
-v-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (DEFENDANT)
FIVE BOROUGHS NHS TRUST (INTERESTED PARTY)

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

MR S SIMBLETT (instructed by Jackson & Canter) appeared on behalf of the CLAIMANT
MR M CHAMBERLAIN (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

see: MM, R (on the application of) v The Secretary of State for the Home Department & Anor [2006] EWHC 3056 (Admin) (23 November 2006)
  1. MR JUSTICE MITTING: On 7 May 1996, MM was convicted of an offence of unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. He had attacked a man he suspected to have had an affair with his then girlfriend, with a hammer. An order was made for his admission to hospital under section 37 of the Mental Health Act 1983, with a restriction order under section 41.

  2. His condition in respect of which those orders were made was paranoid schizophrenia. There are many reports apparently in the possession of the Home Office about it. They can conveniently be summarised in the words of Dr Calvert, who has produced the latest report on his condition for the purpose of a Mental Health Review Tribunal to be held in the near future, dated 9 November 2006:

    "Many previous reports indicate that at times [MM] has presented with abnormal thoughts, including paranoid thinking, abnormal perceptions, including hallucinations, and a range of behaviours that gave concern, including threats to harm others, including his family."
  3. He was conditionally discharged on 26 June 1997, but recalled just under six years later in May 2003. He was discharged again in July 2003, and recalled yet again on 16 February 2004. The occasion of his recall on that date was concern about deterioration of his mental health associated with illicit drug use and the breakdown of his relations with his family.

  4. The Mental Health Review Tribunal refused to discharge him on 22 April 2004. On 18 November 2005, Dr Vovnik, a consultant psychiatrist at the Capio Nightingale Hospital (where he was then confined), reported favourably on his response to treatment at that hospital. He noted a consistent theme of the reports:

    "As Dr Kulupana points out, if he is going to relapse in the future, it will be due to the lack of compliance and the use of illicit substances."
  5. He recommended his discharge, but:

    "Given his impulsive personality, I would advise that the threshold for considering an assessment under the Mental Health Act is low should his mental state suggest psychotic relapse."
  6. On 24 November 2005, Mr Williams (an approved social worker) reported to the Tribunal:

    "In spite of the difficulties represented in this report, I would recommend at this time a conditional discharge in order to test his ability to more adequately manage his own mental health and illicit drug use."
  7. On 13 December 2005, the Tribunal decided to direct his discharge subject to conditions. The conditions included:

    "(f) Submits to random testing for the presence of illicit drugs by giving samples of urine/blood and/or hair."
  8. The reasons for the decision and the conditions were said to be as follows:

    "After reading and hearing the evidence as listed above, we are not satisfied that this patient's mental illness presently meets the statutory criteria for his lawful detention in hospital for treatment. We have heard that there has been an overall improvement in [MM's] mental state. He has not shown any psychotic symptoms. He has abstained from the use of illicit drugs. He has shown a certain degree of co-operation with his clinical team. There has been an apparent increase in the level of his insight into his mental illness and the affect drugs have had and are likely to have thereon."
  9. The Tribunal went on to note:

    "This patient's clinical team is of the opinion that further detention in hospital would be counter-productive to his continuing improvement. We recognise that [MM] has a history of non-compliance with his medication resulting in a deterioration of his mental health and recall to hospital on three occasions following his conditional discharge. We are satisfied that he needs to remain subject to recall in the event of a further relapse and a return of the symptoms of his paranoid schizophrenia."
  10. On 11 January 2006, while living at his parents' home, MM told Mr Williams that he intended to continue to use cannabis. On 17 January 2006, Dr Capstick, a consultant psychiatrist who had had him under her supervision, wrote to his general practitioner setting out the medication that he was receiving, and noting:

    "The problems are likely to be if he returns to illicit substance misuse, and to an extent this has commenced as he uses cannabis regularly. However, he dismisses this as having any affect on his mental health and insists he uses it purely for pain relief from his chronic shoulder pain. I have made him thoroughly aware that if I am aware this cannabis use is impacting on his mental health, then we will be taking steps to inform the Home Office and have him recalled."
  11. On 21 February, Mr Williams received a telephone call from MM's father. He reported concerns that MM was misusing illicit drugs. He stated that he had been associating with known drug users in the area and had been acting strangely. He also said that, when directly challenged, he had admitted to using rock cocaine. His father threatened to evict him from the family home if he was using drugs.

  12. Unsurprisingly, Mr Williams made immediate arrangements to visit MM at his parents' home. On 22 February, he received a telephone call from his father to say that he was not at home. On 23 February a colleague visited him, and Mr Williams noted that MM refused to provide a urine sample for a drug test to him.

  13. On 27 February, Mr Williams was informed of those events and decided to convey his concerns to the Mental Health Unit at the Home Office. In paragraph 10 of his witness statement, sworn for the purposes of these proceedings on 30 October 2006, he notes that he spoke to Christina Clark, the case worker in charge of the case at the Mental Health Unit, and they discussed MM's behaviour and "noted that such behaviour had, on previous occasions, been followed by a decline in his mental state".

  14. On 28 February, he confirmed his concerns in writing to Ms Clark. She noted those concerns in these terms:

    "Phone call from Vincent Williams, saying that MM's father contacted him. MM admitted to his father that he had taken 'rock cocaine'. This was after initial denials and challenging behaviours. In addition to this, MM has continued to use cannabis and is suspected of selling mobile phones and a coat to purchase cocaine. Mr Williams saw MM two weeks ago and described his eyes as 'glazed'. He was asked in front of his mother whether he was using a class A drug. When he denied it, his mother left the room. Mr Williams took this to mean that MM was lying and his mother was unhappy about it.
    MM has been associating with other drug users. His father, with whom he has a fragile relationship, went to one of their houses to retrieve his son. Mr Williams feels that MM is engaging on a very superficial level with supervision and has recently refused a drug test. Mr Williams stated that there is a 'clear relapse signature' and will submit a report ASAP."
  15. In his confirmatory letter, Mr Williams stated:

    "MM's illicit drug use precipitates a mental health relapse when he has, and may continue to present a threat of harm to others.
    MM has admitted to continuing to use cannabis on a daily basis since his latest discharge and shows little insight into how illicit drug use might affect his mental health."
  16. On the same day, Dr Capstick reported to Ms Clark, noting:

    "Historically, MM's placement in the community fails due to his return to illicit drug use and resultant relapse of his mental illness. It has been brought to my attention by his Care Co-ordinator, Mr Vince Williams, and other members of the Assertive Outreach Team that there is a likelihood that MM has been using illicit drugs once more. This is based on reports from his father of belongings having disappeared for no convincing reason. It is suspected that they have been sold to make funds for drug purchase. More direct evidence to support this supposition is MM's manner was more abrasive than previously seen when visited last week. When asked to provide a urine sample for drug testing, he refused to do so."
  17. In view of the criticism that is made of Ms Clark's subsequent decision, the last paragraph of Dr Capstick's letter is worthy of note:

    "In view of the rapidity with which he can relapse and the danger he poses when unwell we felt it was important to bring this to your attention immediately."
  18. On 2 March 2006, the Secretary of State issued a warrant for MM's recall. There is no witness statement from Ms Clark, but the history which I have recited makes plain what her motivation in procuring the issue of that warrant was. It was a fear of imminent serious deterioration in MM's mental health, brought upon by drug use which created a risk of danger to himself and others, in particular his parents.

  19. On 9 May 2006, the Mental Health Review Tribunal directed MM's discharge. That direction was the subject of dispute between the Secretary of State and the Mental Health Review Tribunal, and of judicial review proceedings brought by the Secretary of State. Those have been resolved and I need say nothing more about them.

  20. MM was discharged but was in fact recalled on 9 June 2006. On 4 September 2006 a differently constituted Mental Health Review Tribunal met again and again ordered his discharge subject to conditions, which included:

    "(b) to abstain from illicit drugs;
    (c) to submit to regular drug screening."
  21. The Tribunal gave as its reasons for ordering MM's discharge and for imposing those conditions:

    "The patient was recalled to hospital on 8.6.06 for breaking one of the conditions attaching to his conditional discharge on 9.5.06, namely the taking of illicit drugs [he was in fact released as a result of the Tribunal's decision on 9 May, and recalled again by the Secretary of State].
    That was triggered by the patient learning that the Home Office were intending to judicially review the discharge order of 9.5.06. The patient was noticed by his mother to have physical symptoms consistent with his having taken illicit drugs and she phoned the Mental Health Services to inform them.
    Since his recall he has not exhibited any psychotic features which is confirmed by the clinical teams. He has been involved since his admission with a drug rehabilitation team which can continue three times a week in the community and which he has so far attended on six occasions.
    We were impressed by the patient's mother and of the importance attached by her to drawing to the attention of the authorities any taking of illicit drugs by her son. We were satisfied that the parents are prepared to offer a stable home to the patient and that [the mother] will use her best endeavours to ensure that her son engages with the clinical team and the rehabilitation work proposed by them."

    He was discharged on the same day.

  22. On 11 September, MM tested positive for cocaine. Dr Ibitoye, who had been a consultant psychiatrist assigned to supervise MM in the community, arranged a meeting which initially MM tried to cancel. At a meeting with Dr Ibitoye, either then or subsequently (it is not clear), MM tested positive for amphetamine, but negative for cannabis and cocaine. Dr Ibitoye says that the meeting took place later on 11 September 2006, but there is contemporaneous evidence in the form of a letter from him, and witness evidence from the social worker, Mr McDonald, that in fact that test occurred later, and I decide this case on the footing that it did.

  23. MM did not then, according to Dr Ibitoye, exhibit any psychotic symptoms. He reported on his visit to the Mental Health Unit. His report was noted by a case worker in the unit, Mr Westlake, on 13 September:

    "It is clear that MM is using illicit substances, and it is for such behaviour that we have recalled three time previously. I have spoken to Dr I and discussed the possibility of recall or a warning letter. He feels a warning letter would be best course as MM is very worried about possibility of recall."

    He therefore directed that a strong and final warning be sent to MM.

  24. Again on 13 September, he received a call from the social worker, Gary McDonald, in which he said: "Michael has tested positive for cannabis", and that that had led to a heated argument with his father, who threatened to kick him out of the house if he continued to use drugs. The note went on to say:

    "Unfortunately MM was adamant that he would continue to use drugs. However, Gary felt it unlikely the father would kick Michael out as he often takes this stance initially. Gary and I agree that we would not recall today as the mental state appears stable, but I advise that we will recall the next time MM tests positive."
  25. A warning letter was sent. It was in blunt terms. It reminded MM of the conditions upon which he had been released, and noted that the Home Secretary was very concerned about his behaviour. It reminded him that he was liable to recall under section 42(3) of the Mental Health Act. It said:

    "Use of illicit drugs is behaviour that is likely to lead to deterioration in your mental health, and you will doubtless recollect has led to your recall to hospital on a number of occasions in the past. It is, therefore, in your own best interests to comply with all the conditions on which you were discharged to avoid being recalled.
    It must be clearly understood that this letter should be considered a final warning. Should you test positive for illicit substances in the future, we will have no option other than to immediately recall you to hospital."
  26. That is precisely what happened. On 18 September 2006 Gary McDonald telephoned the Mental Health Unit and reported as follows. What he said was noted by the case worker, who was then temporarily in carriage of the case, Sarah Denvir:

    "Gary McDonald rang to say that MM had had a drugs screen and had tested negative for cannabis and cocaine, but positive for amphetamines. This is despite our warning letter of 14.9.06. I said we would be likely to recall, but I wanted Dr Ibitoye's confirmation of this. Gary and I agreed that we would go ahead with arrangements to get MM assessed by the hospital in Blackpool where he would be admitted."
  27. Clearly she had recall in mind. Dr Ibitoye rang, as she noted, a short while later. She noted him as agreeing that "recall was appropriate and that the assessment should go ahead". He promised to ring back tomorrow, which he did. She noted on 19 September:

    "Dr Ibitoye rang as promised. MM has been assessed and will be admitted to a low secure unit."

    She determined to prepare a warrant for his recall, which was issued that day. He has been detained ever since. A Mental Health Review Tribunal is pending.

  28. Against that necessarily lengthy recital of the detailed history, Mr Simblett, for MM, submits that both recalls were unlawful: first, because the conditions upon which the law permits recall were not fulfilled; and secondly because of procedural failings. The procedural failings are very much at the back of his argument, and I will turn therefore first to the law.

  29. The statutory provision is in broad terms. It is contained in section 42(3) of the Mental Health Act 1983:

    "(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant."
  30. There is no statutory fetter upon the exercise of the power. Such fetter as there is, is established by case law. The Secretary of State accepts that the discretion to recall is not unfettered, and by a policy promulgated on 1 March 2006, set out the criteria upon which recall will be ordered. The foundation for that policy is stated to be, and clearly is, decisions of the European Court of Human Rights at Strasbourg -- most recently a decision of the Commission, Kay v United Kingdom (1998) 40 BMLR 20. The facts of that case are far removed from those of this case. In a nutshell, a Mental Health Review Tribunal found that there was no evidence that the applicant was suffering from any mental disorder. He was released from hospital, and while at liberty, committed offences of violence and was sentenced to imprisonment. As his sentence drew to a close, the Home Secretary issued a warrant of recall. The warrant was based upon, as was described, the dissenting opinion of a single psychiatrist that he was suffering from a continuing psychopathic disorder, the very condition which the Mental Health Review Tribunal had held that he was not suffering when it made its decision. In expressing its view about the lawfulness of the Home Secretary's proceedings, the Commission reminded itself of the law as established by the court in Winterwerp v The Netherlands (1979) 2 EHRR 387:

    "... the detention must be effected in accordance with the procedure prescribed by law, ie domestic law; except in emergency cases, the individual concerned must be clearly shown to be of unsound mind, ie a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder."
  31. On the facts, the Commission were of the view that the background of the serious risk which the applicant presented to members of the public "could not, in the Commission's view, dispense with the need to obtain up-to-date medical evidence about the applicant's mental health before ordering his recall to hospital".

  32. In paragraph 51, it is stated:

    "The weight of medical evidence at the material time was in the applicant's favour, for the most recent decision of the Mental Health Review Tribunal in 1986 had found that there was no evidence that the applicant was then suffering from any psychopathic disorder."
  33. In paragraph 53, the Commission held as its principal reason for holding that the warrant for recall was in breach of the applicant's rights under Article 5 was that there was no up-to-date objective medical expertise showing that he suffered from a true mental disorder, or that his previous psychopathic disorder persisted. The disorder was in fact only confirmed one month after his recall.

  34. United Kingdom domestic law was considered by the House of Lords against the Convention background in von Brandenburg v East London and the City Mental Health NHS Trust and another [2004] 2 AC 280 in which the House approved with minor qualifications the observations of the Master of the Rolls in the Court of Appeal:

    "30. The nature of mental illness is such that the severity of the symptoms and the need for treatment will often fluctuate over time. A sequence of discharge, readmission, discharge and readmission is not uncommon. Normally a sensible period is likely to elapse between discharge and readmission. In such circumstances the implied statutory requirement of change of circumstances for which Mr Gordon contends is neither necessary nor sensible. If the professionals concerned are acting objectively and bona fide, the application for readmission is likely to be triggered by behaviour of the patient that is, at least in part, a reaction to life in the community. This will almost certainly constitute a change of circumstances when compared with the patient's reaction to the hospital regime that was prevailing when the tribunal discharged the patient. To require the professionals involved to investigate and attempt a comparison between the two sets of circumstances in order to decide whether or not there has been a relevant change of circumstances would not be helpful or even meaningful.
    "31. The position is very different where an application for readmission is made within days of a tribunal's decision to discharge, which carries the necessary implication that the criteria for admission are not present — the more so if the patient has remained under the hospital regime because discharge has been deferred, so that there has been no change in the patient's environmental circumstances. In such a situation there is likely to have been, as Mr Gordon pointed out, a difference of view between the patient's responsible medical officer and the tribunal as to whether or not the criteria justifying detention were established. Under the statutory scheme, where such a conflict exists, it is the opinion of the tribunal that is to prevail."
  35. Lord Bingham went on to state in paragraph 8 of his speech:

    "Fourthly, the rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided. It was clearly established by the House in P v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370 that a mental health review tribunal is a court to which the law of contempt applies. It follows that no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such a tribunal. The regime prescribed by Part V of the 1983 Act would plainly be stultified if proper effect were not given to tribunal decisions for what they decide, so long as they remain in force, by those making application for the admission of a patient under the Act. It is not therefore open to the nearest relative of a patient or an ASW to apply for the admission of the patient, even with the support of the required medical recommendations, simply because he or she or they disagree with a tribunal's decision to discharge. That would make a mockery of the decision."
  36. Lord Bingham noted with approval the passage of the Master of the Rolls' speech, to which I have already referred, in paragraph 9(2) of his speech:

    "As the Master of the Rolls pointed out in para 30 of his judgment quoted above, the condition of many of those suffering from mental disorder will not be static. Episodes of acute illness may be followed by episodes of remission. Thus it does not follow that a tribunal decision, however sound when made, will remain so. Other things being equal, the longer the period since the decision was made the greater the chance that the patient's mental condition may have altered, whether for better or worse."
  37. In sub-paragraph (3), he re-emphasised the point in these words:

    "The tribunal will doubtless endeavour to assess a patient's condition in the round, and in considering issues of health, safety and public protection under sub-paragraphs (a)(ii) and (b)(ii) of section 72(1) it cannot ignore the foreseeable future consequences of discharge, but the temporal reference of 'then' is clear and the tribunal is not called upon to make an assessment which will remain accurate indefinitely or for any given period of time."
  38. In summarising his conclusion in paragraph 10, Lord Bingham said:

    "Consistently with the principle identified in para 8 above, an ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. It is impossible and undesirable to attempt to describe in advance the information which might justify such an opinion."
  39. He went on to give three hypothetical examples, of which one is tangentially relevant to the present facts:

    "At the tribunal hearing the patient's mental condition is said to have been stabilised by the taking of appropriate medication. The continuing stability of the patient's mental condition is said to depend on his continuing to take that medication. The patient assures the tribunal of his willingness to continue to take medication and, on the basis of that assurance, the tribunal directs the discharge of the patient. Before or after discharge the patient refuses to take the medication or communicates his intention to refuse. Having taken medical advice, the ASW perceives a real risk to the patient or others if the medication is not taken."
  40. Mr Simblett submits, on the basis of those authorities, that the test can be stated as follows. It must be shown by medical evidence that MM either is now in a mental state such that it is necessary to readmit him to hospital for treatment under the conditions set out in section 37, or that he will, if he takes drugs, inevitably suffer a deterioration such that he will be in that condition in the imminent future.

  41. In my view, that test is far too stringent and is not warranted either by the statute or by the authorities. Its elements need to be analysed separately. First of all, Mr Simblett suggests that there must be contemporaneous or up-to-date medical evidence to justify one or other of those conclusions. I agree that there must be, in the possession of the Secretary of State, medical evidence which justifies the decision to recall. But that medical evidence need not be a report freshly prepared upon the precise conditions recently obtaining. If, as here, there is abundant medical evidence to the effect that MM suffers from paranoid schizophrenia and that his condition is likely to deteriorate imminently and significantly if he takes illicit drugs, then that evidence suffices to justify recall unless there is good reason for believing that it is no longer currently valid.

  42. In contrast with the case in Kay, there never has been any doubt here that MM suffers from a mental condition which, if untreated or unmanaged, does create a risk of serious harm to himself or others. Nor is it in dispute that his paranoid schizophrenia can be caused to become symptomatic and to deteriorate by the taking of illicit drugs. In those circumstances, the taking of illicit drugs was, and was rightly held to be, a warning sign to those responsible for his care, and to the Secretary of State, that admission might again be required. This is not a case in which the Secretary of State, either in March or in September, defied the decision of the Mental Health Review Tribunal. I have recited its reasons for ordering discharge and for imposing the conditions that it did. They plainly include the expectation that his drug use would be, as it had been in hospital, at worst reduced, at best eliminated, if released into the community; and that if he were again to resume active drug use, his parents would notify the authorities.

  43. The reasoning of the Mental Health Review Tribunal seems to me to be entirely consistent with the Mental Health Unit, acting upon such reports appropriately if they received them: otherwise, what purpose would be served by the parents' reports? The only action that the Secretary of State could realistically take was recall for assessment and, if appropriate, treatment in hospital. The suggestion that meetings could be arranged at which MM could be assessed with his full co-operation with a view to recalling him to hospital is, in my view, far fetched. His reluctance to return to hospital is well documented in the papers. He had on one or two occasions, as I have noted, failed to provide samples of urine for testing, and had either failed to keep, or sought to fail to keep, appointments.

  44. In the nature of his condition and of his propensity to use illicit drugs, to adopt that course would, the Secretary of State could reasonably conclude, be to take an unacceptable risk with his own health and with the safety of others.

  45. Another element of Mr Simblett's test is either the fact of, or the imminent inevitability of, a deterioration in his mental state as a requirement for his recall to hospital. The Home Office policy, which it is not necessary for me to set out, anticipates that there will be circumstances in which the Secretary of State can and should act pre-emptively to forestall deterioration likely to occur if conditions obtaining at the time of recall continue.

  46. In my view, Mr Simblett's test is unrealistically stringent. I draw a close analogy with the words of Lord Bingham in von Brandenburg for the true test which should be applied in circumstances such as those which I have described. Lord Bingham observed, in a somewhat different context, that "unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal", he should not apply for readmission under the Civil admission procedures in sections 2 and 3.

  47. The Secretary of State is of course operating against a slightly different background. In the case of a recall under section 42(3), an order of the court has already been made, following upon a conviction, under sections 37 and 41. The Secretary of State is entitled to have at the forefront of his mind not just the health and safety of the patient, but also the safety of members of the public, including the patient's own family. The Secretary of State is not obliged to put the interests of such people at significant risk by staying his hand in circumstances where he has medical evidence that the taking of illicit drugs would be likely to cause imminently a severe deterioration in his mental condition. In my view, the proper test is as follows. 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. On the facts which I have dealt with in detail, that test was abundantly satisfied in both instances.

  48. Subject to the procedure question, I therefore declare that both warrants for recall were lawful.

  49. The procedural question can be dealt with shortly. Mr Simblett submits that it can sometimes happen that the patient disputes that he has committed the act or acts upon which his recall is based. So here, MM has said in a witness statement that the amphetamines found to be present in his urine on the occasion of the last test got there not due to voluntarily ingestion, but because they formed part of the regime of drugs which was prescribed for him. That issue has simply not been explored in these proceedings. But, in my view, there is no requirement that it should be before recall is ordered. The fact that traces of illicit drugs were found in his urine was sufficient to justify recall, against the background as I have described. It is simply impractical for the Secretary of State to convene an assessment at which the patient is entitled to make such representations of fact as he wishes before he is recalled, in the generality of cases. It would have been impractical here.

  50. The outcome is not necessarily to the disadvantage of the patient. Under section 75(1), the Secretary of State must refer the case to the Mental Health Review Tribunal within one month of recall. In practice, in most cases that reference takes place within a matter of days. It is in MM's own interests that his condition should be professionally assessed. That is best done in hospital after recall, rather than attempted in the community beforehand.

  51. Accordingly, applying the test that I have outlined to the facts as I have stated them, I have no hesitation in declaring that these two warrants of recall were lawfully issued.

  52. MR CHAMBERLAIN: My Lord, the only correction that I think is required -- my Lord, there are two in fact -- one is that it is section 75(1) which requires the Secretary of State to refer a case to the Tribunal, not section 73.

  53. MR JUSTICE MITTING: Thank you. I failed to read my own writing.

  54. MR CHAMBERLAIN: And the second was that I think at one stage you referred to a letter of 28 January when outlining the background to the first recall. It was 28 February.

  55. MR JUSTICE MITTING: You are quite right.

  56. MR CHAMBERLAIN: My Lord, the only formal order that I would ask your Lordship to make is an order dismissing these claims for judicial review.

  57. MR JUSTICE MITTING: Yes. Mr Simblett?

  58. MR SIMBLETT: My Lord, having already intervened, I hope helpfully, in the judgment, which I would not normally do --

  59. MR JUSTICE MITTING: I am grateful to you for that. For obvious reasons, it was not an aspect of the case upon which I focused, there being quite enough to focus on already.

  60. MR SIMBLETT: One date that I think I noticed your Lordship mention was the first reference of Dr Vovnik's reports. Your Lordship said 18 November 06, and obviously it was 18 November 05. So when the judgment comes to be typed up, if that correction can be inserted I am sure that would be accurate rather than inaccurate.

  61. MR JUSTICE MITTING: Thank you for that.

  62. MR SIMBLETT: My Lord, the application that I have -- and it obviously ill behoves an applicant to stand up at 5 o'clock, the judge having kindly sat late to deliver a judgment in a not straightforward case -- but the application I have is to seek permission to appeal. As I think Mr Chamberlain submitted, the legal test for recall in this situation is not one which has previously been the subject of recent authority. I cannot remember the words he used now, I think it is that the legal test for recall is one that your Lordship has, as it were, formulated effectively for the first time in his judgment. It is my submission and application that there is at least a real prospect of success of an appeal in that a different view may be taken on appeal. Secondly, if your Lordship is not with me on that submission, which I can develop if your Lordship wants to hear further oral argument about it, this is the sort of case which merits the attention of the Court of Appeal because of the importance of the issue and the generality of the issue. Mr Chamberlain referred to the fairly large number of patients that are subject to this regime, and it is the sort of case which, in my submission, the criteria under Part 52.36 -- there is another compelling reason why the appeal should be heard -- would apply. It is the sort of issue that the Court of Appeal ought to consider.

  63. MR JUSTICE MITTING: I would only contemplate giving you leave to appeal on the second ground and not on the first. Although sometimes I am willing to acknowledge the possibility of error, I think one has to assume for present purposes that one's decision is right.

  64. MR SIMBLETT: As I prefaced these remarks, it ill behoves the applicant, who has just sat through a judgment being delivered, to stand up and say: this is why you have got it wrong. In my submission, your Lordship did say that the test of the taking illicit drugs was rightly viewed as a warning sign to him and the Secretary of State that admission "might" be required. Of course, in this case it inevitably leads to admission "is" required and there may be scope for somebody taking a different view on that. So I would formally apply that there is a real prospect of success, but I hear what your Lordship says about it.

  65. MR JUSTICE MITTING: If I said that admission "might" be required, that is a grammatical error that I will correct in the text. He must clearly be satisfied that admission "is" required, albeit that the test for that is that which I have set out. I am grateful to you for drawing to my attention a modest slip of the tongue, which I will correct. Mr Chamberlain, do you have any view about the submission on the second ground?

  66. MR CHAMBERLAIN: My Lord, I do not resile from what I say about the importance of the case. I would, however, make these observations, that whatever the test that is applied, the facts of these cases are never going to get over whatever threshold is imposed. There is no real prospect that, on the facts of these cases, my learned friend will succeed before another court.

  67. As to the test, of course your Lordship has propounded that test for the first time, and it is a matter on which we have sought guidance. It is an observation that one can make that your Lordship has considered it right to base the test on remarks of Lord Bingham in the von Brandenburg case, and that may be a matter that your Lordship bears in mind when considering whether the matter needs to go further to the Court of Appeal.

  68. MR JUSTICE MITTING: Thank you.

  69. MR SIMBLETT: My Lord, I do not think I have anything to add.

  70. MR JUSTICE MITTING: I will give you permission to appeal on the second basis, that this is an issue of wider importance than this case. Although I have no reason for thinking that the test that I have propounded, or something very close to it, is wrong, nonetheless it may be of assistance to others to have the views of a higher court.

  71. MR SIMBLETT: I am grateful. In the circumstances, it might be helpful if I could seek certain directions about that. The difficulty that we are all in is that MM is still detained. If in fact the outcome of those proceedings had been different, MM would have been released. It may be that by the time realistically this case comes before the Court of Appeal, that the proceedings before the Mental Health Review Tribunal have unfolded. But I am not confident of that. I do not think either side has any instructions as to when any date has been set, if at all. Mr Chamberlain is receiving instructions. I think he is receiving instructions that it is 14 December, is that right?

  72. MR CHAMBERLAIN: My Lord, those are my instructions, yes. Whether that date will be kept to of course is not something one can guarantee.

  73. MR JUSTICE MITTING: Those are proceedings quite distinct from this.

  74. MR SIMBLETT: They are distinct from this, but of course if in fact that answer had not been given, I would feel some responsibility as an advocate in a case involving the liberty of the subject to try and progress matters. Since that is a date not that far away, and I cannot contemplate circumstances in which this case would be ready to be considered by the Court of Appeal before then, I feel less concerned than I might otherwise do.

  75. MR JUSTICE MITTING: There is a more fundamental reason. Given the scheme of the 1983 Act, it is the safety and health of the patient and the safety of others which is paramount in these cases. They have from time to time to be considered by those who are expert in the field, and the Mental Health Review Tribunal is expert in the field. If perchance the Court of Appeal were to say that his recall was unlawful, it would still remain open to the Secretary of State to order his immediate recall and his yet further assessment by the Mental Health Review Tribunal if the Mental Health Review Tribunal in its imminent decision were to hold that he should be detained. In other words, the decision on whether he should be in the community rests ultimately where it should, with the Tribunal.

  76. MR SIMBLETT: Only that if in fact the Court of Appeal had been convened and had taken a different view, M would be discharged. The Mental Health Review Tribunal would not take place because he would no longer be seeking discharge.

  77. MR JUSTICE MITTING: That assumes a speed of progress in any appeal, which is not going to occur.

  78. MR SIMBLETT: Your Lordship will see the tentativeness with which I made those submissions. If in fact there was no date at all, I would feel that it would be particularly important perhaps to try and progress if. But I can see from the reasoning that your Lordship has followed in granting permission to appeal and the reality of the situation that perhaps there is no point, as it were, pushing for expedition in that sense. But since your Lordship has granted permission to appeal, it would be helpful, bearing in mind that this is an ex tempore judgment, if the transcript can be produced and considered reasonably soon.

  79. MR JUSTICE MITTING: Well, my experience of receiving transcripts back for correction is that the service is very quick.

  80. MR SIMBLETT: Good. The only other order that I seek is detailed assessment of the claimant's costs for the purposes of his public funding. There are certificates filed on the court file.

  81. MR JUSTICE MITTING: Yes, I make that order.

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