On 12 November 2010, the Court of Appeal gave judgment in RH v South Maudsley NHS Foundation Trust and another.
The case concerned a restricted patient who had been conditionally discharged but who remained subject to recall, under the provisions of section 75 of the Mental Health Act 1983.
He had applied for the restriction to be removed and was supported by the whole of his treating team and an independent psychiatrist. However, the First-Tier Tribunal (FTT) found that it was not inappropriate for him to be subject to recall.
He appealed to the Upper Tribunal (UT) who found there was nothing wrong with the reasoning of the FTT in keeping the restriction in place.
Permission to appeal to the Court of Appeal was granted by the UT. This was on the ground that it was being argued that the way in which section 75 was being interpreted had the effect of placing the burden of proof on the patient to show that discharge from restriction was appropriate and that this was the equivalent of a breach of his Article 8 rights to respect for private life under the European Convention on Human Rights.
The Court of Appeal decided that it was not a breach of his Article 8 rights. At the present time, RH was living in the community and was subject to conditions on his discharge which were described as being “supportive” to him. They concluded that any interference with his private life would only arise if he were recalled and, at that point, it would be his Article 5 rights (deprivation of liberty) that would be interfered with but in accordance with a procedure set down by law.
His appeal was dismissed.