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Where a Mental Health Review Tribunal (MHRT) has committed an unlawful act, the high court can overturn that tribunal's decision and deal with the matter anew taking into account the circumstances of the case.

Mr DE appealed to the court of appeal which dealt with the matter on 13 November 2001. He wanted the court to reverse the decision of Mr Justice Scott Baker on 6 March 2001. The case is named DE (A Patient) -v- Wirral Health Authority, Wirral Borough Council and Mental Health Review Tribunal and Wirral and West Cheshire Community NHS Trust and Ashworth Hospital Authority (interested parties).

Mr DE was sentenced to four years imprisonment in May 1992 for an offence of making threats to kill, and should have been released in February 1994. However, he was transferred to Ashworth Special Hospital in March 1993 under section 47(1) Mental Health Act 1983 (MHA). That order was made in conjunction with a section 49 restriction direction, which effectively meant that DE had had a restriction order made under section 41 of the Mental Health Act

The restriction direction expired in February 1994, on the day that DE was due to have been released from his original sentence. Following the restriction direction's expiration, DE was treated as if he had been admitted to Ashworth under a hospital order. This meant that he was treated as if he had originally been sentenced by the court to a hospital order under section 37 of the MHA.

On 4 April 2000, DE applied for his case to be reviewed by a MHRT which directed his release on 8 January 2001. Dr F replaced Dr K as DE's responsible medical officer. Dr K had been supportive of DE's release.

On 5 January 2001, the status of DE's continuing detention was changed into a compulsory admission for treatment under section 3 of the MHA. In addition, Dr F released DE from his section 37 hospital order.

On 18 January 2001, Wirral Borough Council applied for a judicial review of the decision of the MHRT and on 23 February 2001 they applied to challenge Dr F's decision to release DE from his hospital order. Scott Baker granted both applications on 6 March 2001.

Mr DE appealed against that decision on grounds querying whether it was possible for a court to reconstitute a criminal sentence when it had come to an end. He argued that although Scott Baker quashed the MHRT's decision, the power to detain him under section 37 could no longer be revived. Lords Justice Clarke, Mance and Dyson dismissed DE's submissions and held that :

1. The judge had rightly concluded that if a decision of the court was quashed on appeal it would become a nullity. That being so, the judge was entitled to consider the next course of action, which did not mean DE's automatic discharge.

2. Where a tribunal had committed an unlawful act, a court can declare such an act as unlawful, quash that tribunal's decision and re-direct matters afresh. The court must take into account the facts and circumstances of the case in granting any relief.

3. The correct analysis was that when Scott Baker made an order quashing the MHRT's decision because it was unlawful, the decision to release DE was to be regarded as if it had never been made.

Bernadette Livesey

Human Rights Solicitor

Walker Morris