In the case of IT v Secretary of State, the Administrative Court was asked to review the decision of the defendant Secretary of State to recall IT back to hospital.

IT had been the subject of a hospital order. He was conditionally discharged but following incidents of sexually inappropriate behaviour he was recalled to hospital and his case referred to a mental health review tribunal. Both oral and written evidence and was submitted to the tribunal. The social worker’s report suggested that IT’s care plan should provide for ”escorted leave in the community only” and the registered medical officer’s report said that he would very soon apply for IT to be granted “unescorted local area leave”. The tribunal concluded that IT should once again be conditionally discharged.

Six weeks after discharge, a social work report was prepared and submitted to all parties. The report stated that IT should be escorted on a one-to-one basis whenever he left his accommodation. The Secretary of State considered the report and recalled IT to hospital on the basis that the escort arrangement amounted to a deprivation of liberty equivalent to detention and that it was not appropriate for a restricted patient to be conditionally discharged if he could not have unsupervised access to the community because of the risk he posed to others.

The issues for determination were whether (i) the only proper response by the Secretary of State was to apply for judicial review of the tribunal’s decision rather than exercising the statutory power of recall; (ii) the facts as presented to the Secretary of State amounted to a deprivation of liberty equivalent to detention.

It was decided that the Secretary of State’s decision to recall was unlawful as there was nothing in the material available to the Secretary of State which had not been known to the tribunal and which put a significantly different complexion on the case as compared with that which was before the tribunal. If the Secretary of State disagreed with the decision of the tribunal the proper course was to seek judicial review.

The judge also confirmed that a restriction on movement is not the same as deprivation of liberty: the distinction is one of fact and degree and in this case, there was an intention for the conditions attached to the escort to be relaxed over time. There was no deprivation of liberty and the patient should not have been recalled on that basis.