Mental health law briefing 197 – Must reasons be given in advance to recall a patient?
It is well known that most administrative law decisions require reasons to be given. To what extent must reasons for recall to detention under Section 42(3) Mental Health Act be provided in advance?
In a recent case the Claimant asked the Court to declare that the Secretary of State had unlawfully recalled him to hospital.
The Claimant had been convicted of arson and burglary and was made subject to a hospital Order and a restriction Order. He had then been discharged by the First Tier Tribunal which made an Order for conditional discharge. Three months later his social supervisor had reported that his mental health had deteriorated and recommended that he be recalled. This report was duly accepted by the Secretary of State and the patient was returned to hospital.
The Claimant argued that the failure to provide reasons in advance of his recall rendered the detention unlawful. However, this was rejected by the Court.
The Court held that recall was an important decision involving the liberty of the subject and that reasons must be given. However, providing reasons was not a condition precedent to a lawful recall and could be given immediately or as soon as reasonable practicable after detention. The key point was that the recalled patient knew why he was being detained.
The reason could be explained orally and the Court did not criticise the practice of explaining the reason for recall to the patient by means of a conversation with his responsible clinician. It would be desirable (but not expressly mandatory) for written reasons to be provided.
T. 020 7227 7282
 R (on the application of Lee-Hirons) v Secretary of State for Justice  EWHC 1784
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