Re-admission under the Mental Health Act following discharge by a Mental Health Review Tribunal

Kristina Stern* and David Hewitt**

Introduction
There is continuing confusion over the precise effect and force of Mental Health Review Tribunal(‘MHRT’) decisions and the extent to which they may be lawfully overborne. That confusion hasnot been alleviated by the Court of Appeal judgment in the Von Brandenburg case,(1) and it may even have been exacerbated by the case of H v Ashworth Hospital.(2) Now that the latter decision has been considered by the Court of Appeal, and before the former decision comes before the House of Lords, this may be an opportune moment to place both cases in their true context and to attempt to distil some definitive guidance on this troublesome point.

Footnotes:
*Kristina Stern is a barrister practising from chambers at 39 Essex Street, London, WC2R 3AT. She appeared both at first instance and in the Court of Appeal in Von Brandenburg, and at first instance in H v Ashworth,both of which cases are considered here. This paper is based upon a lecture delivered by Dr Stern at the Hempsons Mental Health Law Seminars in Manchester on 26 June 2002 and London on 2 July 2002
**David Hewitt is a partner with Hempsons, Solicitors, a member of the Mental Health Act Commission and Associate Lecturer in the Faculty of Health at the University of Central Lancashire
(1) R v East London & the City Mental Health NHS Trustand David Stuart Snazell, Approved Social Worker exparte Count Franz Von Brandenburg (aka Nicholas Hanley) [2001] EWCA Civ 239; see: David Hewitt, Detention of a recently discharged psychiatric patient,Journal of Mental Health Law, February 2002, pp50–58
(2) R v Mental Health Review Tribunal for West Midlands & North West Region, ex parte Ashworth Hospital Authority and (1) H (a patient) (2) Hammersmith & Fulham London Borough Council (3) Ealing,Hammersmith & Hounslow Health Authority(Interested Parties) : R v (1) Ashworth HospitalAuthority (2) Lorraine Berry (3) Edward Silva (4)Melanie Frances Croy, ex parte H (a patient) and Ealing, Hammersmith & Hounslow Health Authority (Interested Parties) [2001] EWHC Admin 901; See:David Hewitt, Challenging MHRT decisions, Solicitors Journal, vol 146, no 14, 12 April 2002, pp 338–339; Rv Ashworth Health Authority and others, ex parte H : Rv (1) Mental Health Review Tribunal for WestMidlands and North West Region (2) London Borough of Hammersmith and Fulham (3) Ealing, Hounslow and Hammersmith Health Authority, ex parte Ashworth Hospital Authority [2002] EWCA Civ 923

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