R (on the application of H) v Mental Health Review Tribunal [2007] All ER (D) 29 (Apr)

The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant’s position and subsequently ordered the claimant’s discharge under s 73 of the Act on the condition that, amongst other things, the claimant ‘shall comply’ with medication prescribed by a specified doctor.  The claimant applied for revocation of this and other conditions and sought an order for absolute discharge on the basis that it interfered with his right under art 8 of the European Convention on Human Rights which provides that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’.

The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant’s position and subsequently ordered the claimant’s discharge under s 73 of the Act on the condition that, amongst other things, the claimant ‘shall comply’ with medication prescribed by a specified doctor. The claimant applied for revocation of this and other conditions and sought an order for absolute discharge. The claimant wanted to show a willingness to take the medication, free from the requirement to do so. The claimant argued that the condition should be revoked because conditions are subject to the principle of legality and that requiring the claimant to comply with the condition: • interfered with his common law right of ‘absolute choice’ in relation to medical treatment; and • interfered with his right under art 8 of the European Convention on Human Rights which provides that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’. The Queen’s Bench Division (Administrative Court) decided that the principle of legality did apply. They also held, however, that the Mental Health Review Tribunal would have meant for the condition to be read as being subject to the real consent of the claimant, because it was trite law that an adult of full capacity has the right of ‘absolute choice’ in relation to medical treatment and that a doctor had to be satisfied that they received real consent from their patient. Therefore, the Court held that the condition that the claimant ‘shall comply’ with medication prescribed by a specified doctor does not require the claimant to take the prescribed medication, but rather to consider the consequences of not taking the medication in deciding whether or not to consent. Accordingly, the Court held that the condition did not interfere with the claimant’s common law right of ‘absolute choice’ in relation to medical treatment or his right under art 8 of the European Convention to respect for his private and family life, his home and his correspondence. The Court clarified that, except in emergency situations, failure to comply with a condition does not mean that the order of conditional discharge is automatically revoked. The order can only be revoked, and the person the subject of the order consequently detained, if up to date medical evidence indicates that the criteria for detention are satisfied. Leana Papaelia, Human Rights Law Group, Mallesons Stephen Jaques