Where the Secretary of State recalled a person to be detained in hospital under section 42(3) of the Mental Health Act 1983, the Secretary of State was not under a duty at common law nor under article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to give his reasons for the person’s detention immediately when he was detained and thus such reasons were not required to be given in writing upon detention. However, article 5.2 required those reasons to be adequately and promptly given to him following his detention.

The Court of Appeal so stated when dismissing the appeal of the claimant, Dale Lee-Hirons, against the dismissal of his claim for judicial review by the Administrative Court (Dingemans J) on 28 June 2013 [2013] EWHC 1784 (Admin); [2013] CN 1000 by which the judge held that both the decision of the Secretary of State for Justice to recall the claimant to be detained in a hospital, pursuant to section 42(3) of the Mental Health Act 1983, and his subsequent detention were lawful.

The claimant was detained in hospital pursuant to hospital and restriction orders made under the Mental Health Act 1983. He was conditionally discharged from hospital following a review by the First-tier Tribunal but later recalled to hospital by the Secretary of State pursuant to section 42(3) of the Act. A warrant recalling the claimant, which gave no reason for the recall, was executed at the time of which he was informed orally that the reason for his recall was because his mental health had deteriorated. Some two weeks after his recall, the claimant was read a copy of a report which detailed the reasons for his recall. The claimant issued judicial review proceedings claiming, inter alia, that the defendant’s decision to recall him absent written reasons was unlawful, thereby rendering his subsequent detention unlawful, and he sought a declaration to that effect and damages for false imprisonment. The judge dismissed the claim, holding that, inter alia, the reasons for recall had to be given when he was recalled but it was sufficient for them to be given orally and that the reason given to the claimant when the warrant was executed was adequate and was in summary the Secretary of State’s reason.

SIR STANLEY BURNTON said that article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms required that a person should be promptly and adequately informed of the facts and legal authority relied upon to deprive him of his liberty but did not require that information to be given to the person immediately when he was detained. That duty was intended to be satisfied by providing an explanation for the recall within 72 hours, as stipulated in health service guidelines HSG (93)(20) issued by the Department of Health in April 1993 and which supplemented the statutory provisions. Since article 5.1 did not require the reasons for the detention of the person to be given to him when he was detained then it did not require those reasons to be given in writing when he was detained. Article 5.2 required those reasons to be adequately and promptly given to him following his detention. HSG (93) (20) and local authority circular LAC (93)9 provided an obligation to provide to the person an explanation for the recall as soon as possible after readmission to hospital and in any event within 72 hours and a written explanation within 72 hours. As the Secretary of State had not complied with his duty to provide adequate reasons within 72 hours and the reasons for such failure were not good reasons, he had therefore breached both the policy and article 5.2. However, those breaches did not render the claimant’s recall and detention unlawful.

JACKSON LJ gave a concurring judgment.

PATTEN LJJ agreed.