Cameron v Secretary of State for Justice [2025]

Although non-adherent to antipsychotic treatment for several months, Mr Cameron, who had an established paranoid schizophrenia diagnosis, was arrested for attempted murder of a neighbour, ‘being seriously unwell’ at the time of the offence. Following pleading guilty, he was made subject to s.37/41 in 2016. After a period of successful treatment and recovery, he was conditionally discharged in 2021. In 2023, he applied to the MHT for absolute discharge under s.75(2). However, before this could be heard, his mental state deteriorated, leading to his recall to hospital under s.42(3) in 2024.

In accordance with s.75(1), the SSJ duly referred the case (the SSJ is required to refer to the MHT within 1 month any restricted patient on conditional discharge recalled to hospital). Although there was an intention to consider both the recall referral and the outstanding discharge application together, the MHT struck out the absolute discharge application on jurisdictional grounds, a decision upheld on appeal. The Court of Appeal clarified that, on recall, any pending application for discharge under s.75(2) is effectively ‘subsumed’ within the mandatory s.75(1) referral – the MHT’s powers remain the same irrespective of the route of referral. The MHT must consider the patient’s current clinical state and all relevant up-to-date evidence, including events leading to recall.

Re G (absolute discharge) [2023]

This case concerned a conditionally discharged restricted patient who, unusually, remained detained in prison under a life sentence with many years remaining before Parole Board eligibility. A condition of discharge required her to remain in custody. Information regarding the psychiatric history and index offence for the original s.37/41 was redacted from the judgment available online. The judgment provided important considerations on the function and continued necessity of s.41 restriction orders.

The MHT applied the established absolute discharge criteria from R (SC) v Mental Health Review Tribunal [2005] (Box 3). Central to the case was whether the MHA framework remained necessary alongside the criminal justice regime governing life sentence prisoners. The applicant argued that Parole Board licence conditions could adequately replicate the safeguards of the MHA. In contrast, the responsible authority emphasised that the MHA framework provided specialist risk management and facilitated timely hospital treatment, which the prison-based system could not guarantee without a delay. The MHT highlighted a key practical limitation: as the patient was not living in the community, recall powers under s.41 were not operable, having no relevance in her mental health management and risk, and so ‘serve[d] no useful purpose’, i.e. rendering the core feature of the restriction order functionally redundant. The MHT reiterated that its duty was to assess the current utility of s.41, rather than speculate about future eventualities in relation to the patient’s prison term. The MHT concluded that the restriction order was no longer necessary and should cease. The decision illustrated that where restriction orders confer no present or practical benefit, their continuation may be difficult to justify, even in high-risk forensic contexts.

DA v Central and North West London NHS Foundation Trust [2021]

This case addressed whether it was irrational for the MHT to remove all conditions of a conditional discharge while maintaining the ability to recall and whether its reasoning was adequate. DA had a diagnosis of paranoid schizophrenia that was in remission. He had a history of substance misuse and serious violence, including a 2011 offence of wounding with intent to cause grievous bodily harm (GBH), culminating in a s.37/41. After a sustained period of stability, he was conditionally discharged in 2016 with standard supervisory conditions. By 2020, both his responsible clinician and future community consultant supported an absolute discharge, albeit noting ‘one could never predict with complete certainty’ that recall ‘is not an imminent likelihood’. The MHT refused absolute discharge, describing the case as ‘very finely balanced’. It concluded that it remained ‘appropriate for the patient to remain liable to be recalled to hospital’, citing the severity of the index offence and the potentially grave risk if relapse occurred. Notably, it removed all conditions while retaining only the ‘safety net’ of recall. On appeal, the Upper Tribunal (which hears appeals from MHT decisions) rejected the argument that this was inherently irrational. The judge clarified that ‘there is nothing in the legal framework […] which makes […] a conditional discharge, when no conditions are attached, intrinsically irrational’, and highlighted that s.73(4)(b) expressly allows for conditions ‘if any’. The essence of conditional discharge lay in ‘liability to recall’, not in the conditions themselves. Retaining recall as a safeguard was therefore ‘entirely rational’. This case highlighted the permissibility of condition-free conditional discharge, but with the necessity of clear, clinically grounded reasoning, particularly when departing from unanimous professional opinion.

An interesting issue explored in this case concerned the psychological burden on DA from the ‘possibility of recall hanging over him’ (which had been identified as a live issue in evidence given). The judge acknowledged that ‘There will be cases where there is a psychological burden, but it has to be borne’, but the reasons in this case had not addressed such an impact on DA. This in part led to the case being successfully appealed owing to overall inadequate reasoning and the judgment was set aside and reheard before a new MHT.

SLL v Priory Healthcare Limited & Secretary of State for Justice [2019]

This case involved SLL, who was made subject to s.37/41 in 2015 following an offence of arson. In 2018, he applied to the MHT for discharge. At the time of the hearing, he was on remand in prison facing a separate charge of violent disorder allegedly committed while he had been a restricted patient in hospital. SLL presented a complex and contested diagnostic picture. There was some agreement, though not unanimous, that he met criteria for dissocial personality disorder. Greater diagnostic uncertainty surrounded whether he suffered from a psychotic disorder. Historically, in 2009 he had been assessed as psychotic while in custody and was treated with antipsychotic medication. His index offence of arson in 2015 appeared to have occurred during a psychotic episode. However, the broader longitudinal evidence during his hospital admission did not clearly support an enduring diagnosis of schizophrenia or any other severe mental illness. The clinical picture was further complicated by illicit substance use, which may have contributed to psychotic symptoms.

At the time of the MHT, management focused on risk assessment, psychiatric monitoring and pharmacological treatment where indicated, particularly the use of antipsychotic medication to treat suspected psychotic symptoms. There was also consideration of the limits of hospital treatment effectiveness, particularly in relation to personality disorder, where structured psychological and behavioural approaches are typically more relevant, but were not clearly detailed in the MHT’s findings. The MHT concluded that the statutory criteria for continued detention under s.72 were not met but nevertheless ordered a conditional discharge with continued liability to recall, without imposing conditions. On appeal, the Upper Tribunal held that the MHT had failed properly to apply the ‘two-stage test’ under s.73 and had provided inadequate reasons, particularly by not explaining clearly the nature of SLL’s mental disorder, the purpose and availability of treatment and why recall remained appropriate. Because further facts were needed, the judgment was set aside and reheard before a new MHT.

DL v SLAM & Secretary of State for Justice [2010]

This case involved an appeal by DL against a 2009 MHT decision refusing him an absolute discharge, which maintained his conditional discharge. His diagnosis was paranoid schizophrenia. The index offence of manslaughter occurred in 2000 while floridly psychotic, resulting in the death of his grandmother. He was detained under s.37/41 following a guilty plea on the grounds of diminished responsibility. Treatment with clozapine led to significant improvement such that he became symptom-free. He was conditionally discharged in 2005 and, apart from a brief readmission due to interpersonal issues at a supported hostel, he remained mentally stable with no subsequent relapses or recalls.

DL appealed on the basis that the MHT erred in law by relying on irrelevant considerations, making incorrect assumptions and failing to provide adequate reasoning. The Upper Tribunal accepted that the MHT’s reasoning had indeed been inadequate. A key issue was the MHT’s reliance on the ‘relative’ recency between the index offence and conditional discharge, without clarifying the significance of these time frames. This lack of context rendered the reasoning unclear. Critically, the MHT failed to explain why it rejected strong expert evidence from a consultant forensic psychiatrist and a forensic social worker, both of whom supported absolute discharge. Although not bound to accept expert opinions, the MHT was required to provide clear justification for rejecting them, which it had not. The appeal was allowed and the case sent for rehearing before a new MHT.

R (SH) v Mental Health Review Tribunal [2007]

This case addressed whether MHTs could vary conditions attached to the conditional discharge of restricted patients and how such conditions interact with the patient’s right to consent to treatment. SH, who had a history of schizophrenia, killed his wife in 2000 and was consequently made subject to s.37/41. He was conditionally discharged in 2003, having responded to antipsychotic depot medication. In 2005, he applied for absolute discharge under s.75(2). This was refused but the MHT amended the conditional discharge conditions. The revisions included replacing a named prescribing doctor with ‘the RMO [responsible medical officer]’ and adding a requirement that SH ‘shall comply’ with treatment recommendations, including medication and psychotherapy. SH challenged these conditions, arguing that the mandatory wording unlawfully interfered with his common law ‘absolute right to choose’ or refuse treatment, i.e. as a capacitous and consenting patient.

The court held that MHTs have the authority to amend conditions at subsequent hearings. It interpreted the obligation to ‘comply’ as inherently subject to the patient’s ongoing right to consent, rather than as authorising compulsory treatment in the community (which it has no powers to do anyway). As SH had expressed willingness to continue medication, the challenge failed on the facts. The conditions did not breach Article 8 of the European Convention on Human Rights (ECHR) (the right to respect for private and family life); any interference was proportionate and supported by procedural safeguards. This case confirmed that treatment-related conditions are permissible if they respect patient autonomy and do not override valid consent.

R (SC) v Mental Health Review Tribunal [2005]

This judgment reviewed the statutory powers of the MHT under s.73 and s.75 in relation to the discharge of restricted patients and addressed both the scope of relevant considerations and compatibility with Article 8 of the ECHR. In 1988, SC was convicted of GBH with intent and made subject to s.37/41. He was conditionally discharged in 2001. In 2003, he applied for absolute discharge but this was refused, although one condition (residence in a hostel) was removed. SC challenged the decision: first, that it had erred by relying on evidence of ‘psychopathic personality’ despite his previous classification as mental illness; and second, that s.75(3) was incompatible with Article 8 owing to the absence of defined criteria guiding MHT decision-making. It is this case that gave rise to the now long-held criteria to be considered in absolute discharge applications (Box 3).

The court rejected both arguments. It found that the MHT was not confined to a fixed ‘lexicon’ of factors unless specified by statute; in the absence of such, it was entitled to consider a broad range of clinically relevant matters, including personality features. The presence or absence of a formally classified mental disorder did not automatically determine entitlement to absolute discharge – the judgment noted that s.73

Importantly, s.75(3) was found compatible with Article 8 – the statutory framework was sufficiently clear, foreseeable and protective against arbitrariness. The claim for judicial review was dismissed and conditional discharge continued.