The Civil Division of the Court of Appeal handed down judgment in the case of RH v South London and Maudsley NHS Foundation Trust and Others [2010] EWCA Civ 1273 on 12th November 2010. The case, an appeal against a decision to refuse an application for discharge of a restriction order, concerned whether the restriction order affected the appellant’s rights under the European Convention on Human Rights (the Convention)

The appellant had been admitted under a hospital order to Broadmoor Hospital in 1978 following a conviction on two counts of manslaughter. Later transferred to another hospital, the appellant was subsequently released in 1986, subject to conditions imposed by a restriction order.

The First-tier Tribunal (FTT) (Health, Education and Social Care Chamber) considered an application made under s. 75(2) of the Mental Health Act 1983 for a direction that the restriction order should cease so that he would no longer be liable to detention under a hospital order. Stating that it was following the guidance established in R(SC) v The Mental Health Review Tribunal and the Secretary of State for Health [2005] EWHC 17 (Admin), the FTT rejected the application. Dismissing the appeal, the Upper Tribunal found the reasoning of the FTT to be adequate.

Permission was granted to appeal to the Court of Appeal. Grounds arguing a breach of Art. 8 of the Convention on the basis that reliance on the SC case unlawfully placed the burden of proof on the appellant patient and further, applications for orders under s. 75(3) should not be compared to life sentence prisoners were highlighted as grounds raising important points of principle.

Accepting that Art. 5 of the Convention did not apply to the present case, as this was only applicable upon recall, the appellant submitted the burden of proof was relevant to Art. 8. Recognising that conditions could be burdensome the court focussed on the liability to recall issue. Considering whether it was lawful and necessary for the protection of the rights and freedoms of others under Art. 8(2), the court distinguished cases of those like the appellant from those compulsorily detained. The appellant had been made subject to the restriction order by a competent court following a criminal trial. The requirement that the appellant satisfy the FTT that the order should cease was therefore neither unfair, nor disproportionate or unnecessary.

Considering the submission regarding comparison of s. 75(3) applicants with life sentence prisoners, the court found the submission to be based on a misunderstanding of the Upper Tribunal’s decision. The two groups had not been equated; rather the Upper Tribunal had referred to life sentence prisoners to address a concern of one expert witness.

Dealing briefly with the remaining grounds, the court found numerous of the appellant’s arguments subsumed into a submission attacking the reasoning of the FTT. Finding the FTT was entitled to disagree with the conclusions of witnesses called for the appellant, the reasons given were intelligible. Outstanding grounds were held to be founded on misconceptions of the FTT and Upper Tribunal decisions.

Dismissing the appeal, the court highlighted that this being a second appeal compelling reasons would need to be given for a future grant of permission.