Law Report: Mental health order restricting discharge continues: Regina v Secretary of State for the Home Department, ex parte Didlick - Queen's Bench Divisional Court. (Lord Justice Watkins and Mr Justice Rougier), 29 March 1993

An order under the Mental Health Act 1983 restricting the discharge of a patient remains in force unless the Home Secretary directs the order should cease or discharges the patient absolutely.

The Divisional Court dismissed the applicant's challenge of the validity of a warrant issued under section 42(3) of the Mental Health Act 1983 recalling the applicant to hospital under a restriction order made on 17 April 1968.

In 1968 the applicant was convicted of indecent assault. Acting on medical evidence that he suffered from schizophrenia, the court made a restriction order without limit under section 69 of the Mental Health Act 1959 (now section 41 of the Mental Health Act 1983). In 1973 he was conditionally discharged. In 1979 the conditions were allowed to lapse, but the Home Department informed the applicant that he was liable to recall. The applicant controlled his schizophrenia by appropriate medication.

In 1989 the applicant was convicted of assault occasioning actual bodily harm, of attempting to pervert the course of justice and of indecent assault and sentenced to four years imprisonment. His mental condition deteriorated and he was made subject to a restriction direction which expired at the end of his sentence.

In 1991 a mental health review tribunal decided that if the applicant had been subject to a restriction order, he would not be absolutely or conditionally discharged. The Home Secretary therefore issued the warrant to recall the applicant to hospital under the 1968 restriction order. In July 1992 the tribunal directed his conditional discharge.

The applicant applied for judicial review of the warrant on the ground that the Home Secretary had no power to recall the applicant under the 1968 restriction order as it was no longer in force.

Andrew MacFarlane (Cox McQueen & Co) for the applicant; Stephen Richards (Treasury Solicitor) for the applicant.

MR JUSTICE ROUGIER said that section 42(1) and (2) indicated clearly that before a restriction order could be brought to an end, the Home Secretary must either make a direction to that effect or discharge the patient absolutely. Each of those was a positive act. There was no room for the situation whereby a restriction order ceased to have effect by inference or implication.

Therefore, by merely allowing the conditions under which the applicant was discharged to lapse, the Home Secretary did not thereby bring to an end the operation of the restriction order. It followed that the issue of the warrant was intra vires the Home Secretary and valid.

LORD JUSTICE WATKINS agreed.

Ying Hui Tan, Barrister