[2024] UKUT 190 (AAC)

OO is subject to two restricted hospital orders. Each of those restricted hospital orders brings a right to apply to the First-tier Tribunal for a review. OO has not exercised his right to apply to the First-tier Tribunal pending the outcome of this appeal.

Given OO’s right to apply to the First-tier Tribunal for review of his section, this appeal against the determination of the Secretary of State’s reference could be characterised as somewhat academic. However, the principle raised by the appeal is an important one. Because of the deficiencies identified above, OO was denied an effective judicial determination of his right to liberty following the 8th March 2022 recall which the MHA 1983 (and Article 6 of the Convention) requires. This may well have implications in respect of Article 5(4) of the Convention, because the right of appeal to the First-tier Tribunal forms part of a detained patient’s network of effective access to the courts, which was what Keene LJ found made s.75(1) MHA 1983 compliant with Article 5(4) of the Convention in Secretary of State for Justice v Rayner [2008] EWCA Civ 176 (see paragraphs [45] and [46]).

OO has a right to apply to the FTT in relation to both the 2010 and the 2023 restricted hospital orders (the s.70(1)(a) 6-month period having now passed in both), but those rights to apply do not provide a remedy to an error of law in the decision that this appeal concerns. In R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 WLR 123, Singh LJ rejected an approach that “assumes that fairness is not required at an earlier decision-making stage simply because fairness is required at a later decision-making stage”:

Where a patient is subject to concurrent restricted hospital orders, and so has multiple rights to apply and/or have his case referred to the Tribunal, there is always a Gordian knot of potential procedural complications. But the First-tier Tribunal and the Secretary of State for Justice have the procedural tools to deal with anything that arises.

The First-tier Tribunal has a discretion to consolidate multiple sets of proceedings under r.5(3)(b) of the FtT Rules, and the Secretary of State has discretions in s.42(1) and (2) MHA to discharge a patient from liability to detention under a restricted hospital order, whether conditionally or absolutely.

It is unlikely that the First-tier Tribunal would end up making a decision in relation to only one of the two restricted hospital orders, but even if it did, and it decided that OO was entitled to discharge, the Secretary of State would have a discretion to discharge in relation to the other restriction order.

I presume that all those discretions will be exercised rationally and in accordance with OO's fundamental rights.

The appropriate remedy is set aside and remittal under s.12(2)(b)(i) of the TCEA 2007, which will result in OO having the hearing that the MHA 1983 requires him to have, albeit late.