Ipsofactoj.com: International Cases [2004] Part 8 Case 2 [HL] 


HOUSE OF LORDS

Coram

I.H.

- vs -

Secretary of State

(Home Department)

LORD BINGHAM OF CORNHILL

LORD STEYN

LORD HOBHOUSE OF WOODBOROUGH

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

13 NOVEMBER 2003


Judgment

Lord Bingham of Cornhill

My Lords,

  1. This appeal raises important questions of principle and practice concerning the conditional discharge from hospital of restricted patients.

  2. In March 1995 IH (the appellant) severely mutilated his three-year-old son. He was charged with causing grievous bodily harm with intent to do so. In July 1995, in the Crown Court at Wood Green, he was found not guilty of that offence by reason of insanity. An order was made under section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) authorising his admission to such hospital as might be specified by the Secretary of State for the Home Department. In September 1995 the Secretary of State issued a warrant authorising his transfer to and detention in Rampton Hospital, where he was already confined. Since that time the appellant has been a patient at Rampton. His status throughout has been that of a patient subject to a restriction order without limit of time made under sections 37 and 41 of the Mental Health Act 1983. The appellant does not challenge the lawfulness of his detention before 3 February 2000 or after 25 March 2002. But he contends that his detention between those dates was in breach of his rights guaranteed by article 5 of the European Convention on Human Rights and so unlawful.

  3. The appellant was diagnosed as suffering from paranoid psychosis. In July 1996, when his case was first considered by a mental health review tribunal, no order was made for his discharge. Dr Sagar, the appellant's responsible medical officer (RMO) at Rampton, reported to a second tribunal hearing in September 1998 that the appellant's condition had improved to a point which would permit his treatment in less secure conditions at a regional secure unit, but the tribunal made no direction for discharge or reclassification of the appellant's mental disorder. He was still judged to suffer from mental illness and his further detention for the protection of the public was found to be justified. The tribunal endorsed the view of the RMO that the appellant should be transferred to a regional secure unit, but such a transfer required the consent of the Secretary of State and this consent was withheld, so the appellant remained at Rampton. A third tribunal hearing took place on 7 June 1999. Dr Sagar remained of the view that the appellant was free of symptoms and that his mental illness was in a state of natural remission, and a psychiatrist instructed for the appellant recommended his conditional discharge. But Dr Page, by this time the appellant's RMO at Rampton, did not support his application for conditional discharge, which was resisted by the Secretary of State. As it was empowered to do under the Mental Health Review Tribunal Rules 1983 (SI 1983/942) the tribunal adjourned the hearing on these terms:

    Having considered all the medical evidence we have come to the conclusion that [the appellant] is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment.

    We adjourn the hearing until 1st Dec 1999 at the latest for a full care plan to be drawn up. The Terms which we consider should probably be attached to the Conditional Discharge are:-

    (1)

    Supervision by a named Social Worker;

    (2)

    Supervision by a named forensic psychiatrist; [the appellant] to be subject to the directions of the Psychiatrist including any relating to drug monitoring;

    (3)

    Residence at a suitable hostel, preferably staffed 24 hours a day.

    If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed.

    We require Haringey Council to provide full details of a suitable plan at the adjourned hearing.

    This reference to Haringey Council embraced the Enfield and Haringey Health Authority, which owed the appellant a duty pursuant to section 117 of the 1983 Act to provide after-care services on his discharge.

  4. The health authority made extensive efforts to find forensic psychiatric supervision for the appellant upon any discharge, but it was unsuccessful. This was primarily because Dr Akinkunmi, consultant forensic psychiatrist of the North London Forensic Service, which provided psychiatric services on behalf of the authority, took the view, shared by all his colleagues, that "a proposed conditional discharge .... direct into the community was clinically inappropriate, and unsafe". He was willing to admit the appellant to his medium secure unit, but he and his colleagues declined to supervise the appellant as named forensic psychiatrist on conditional discharge. Transfer to the regional secure unit in question was precluded by the Secretary of State's withholding of consent.

  5. The tribunal reconvened on 3 February 2000 under the chairmanship of Ms Recorder Cotton QC. Dr Page reported the opinion of Dr Akinkunmi. Her own view was that the appellant was making progress and remained free of psychotic symptoms but that further psychological work was required to address risk areas. She favoured transfer to a regional secure unit. The tribunal considered a body of material which included a letter from Dr Akinkunmi opposing conditional discharge. The decision of the tribunal, recorded on a prescribed form, was (so far as material) in these terms:

    4.

    Decision of the tribunal:

    (d)

    The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below.

    6.

    Findings of the tribunal concerning the statutory criteria:

    The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions (A) or (B) is 'Yes', and the answer to question (C) is also 'Yes'.

    The tribunal is obliged to direct the conditional discharge of the patient if the answer to either of the questions (A) or (B) below is 'Yes', but the answer to question (C) is 'No'.

     

    Question

    Decision of the tribunal

    A.

    Is the tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?

    Yes

    B.

    Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?

    Yes

    C.

    Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?

    No

    7.

    Conditions imposed by the tribunal (conditional discharge only): And the reasons for the tribunal's decision

    Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a conditional discharge order in the following terms:

    (1)

    there shall be supervision by a named social worker;

    (2)

    there shall be supervision by a named psychiatrist, preferably by a forensic psychiatrist;

    (3)

    [the appellant] shall be subject to the directions of the psychiatrist including any relating to drug monitoring;

    (4)

    [the appellant] shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day;

    (5)

    [the appellant] shall be excluded from Enfield, Haringey and Islington save for the purpose only of visiting his relatives in their homes.

    In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. [The appellant's] discharge shall be deferred until the arrangements listed have been made.

    In a written statement dated 28 March 2002 Ms Cotton has helpfully expanded on the tribunal's thinking when it made this decision. Its view was that the appellant probably still suffered from an underlying mental illness but that this did not require continued detention in hospital. It considered that if a conditional discharge were ordered a psychiatric supervisor would be found for the appellant. She continued:

    We found that continued detention of [the appellant] was not necessary, on the basis that the conditions we imposed were to be fulfilled. The imposition of conditions is a very important factor in determining whether a patient can safely be discharged. The requirement for supervision of a patient by a psychiatrist is a standard condition imposed in conditional discharge - that is to say that it is one commonly imposed. It has an important function, however, and I do not consider that the power to recall a patient to hospital can be divorced from the condition of psychiatric supervision. In the case of [the appellant], the ability to recall [the appellant] and the requirement of psychiatric supervision were inseparable as, in practice, without the supervision of a psychiatrist, the power to recall would have been an inadequate safeguard. If one accepts, as I do, that these two are usually inseparable, then the removal of the condition for psychiatric supervision would normally change the Tribunal's answer to the statutory question - otherwise the Tribunal should be granting the patient an absolute discharge.

    Thus, it seems safe to infer that had the tribunal foreseen that the conditions which it laid down could not be fulfilled it would not have directed that he be discharged absolutely but that his detention be continued.

  6. Further attempts were made by the health authority to find a psychiatrist willing to supervise the appellant but without success and his detention continued. On 25 July 2001, at the suggestion of the court, the Secretary of State referred the case back to the tribunal and there was a further hearing in January and March 2002 under the chairmanship of Mr. Macleod QC. In detailed written reasons dated 25 March 2002 this tribunal found that the appellant was and always had been suffering from a current mental illness which was in remission but with a significant risk of relapse; that it was appropriate for the appellant to be detained in hospital for treatment of his illness; that the evidence of the need for hospital treatment was compelling; and that while it had regard to the decision of the previous tribunal it was fully satisfied on the material before it that it was making the appropriate decision.

  7. In his submissions to the House on behalf of the appellant, Mr. Owen QC made no criticisms of the efforts made by the health authority to secure compliance with the conditions indicated by the tribunal in its decisions of 7 June 1999 or 3 February 2000, nor did he impugn in any way the professional integrity or competence of Dr Akinkunmi or any of the other psychiatrists who shared his opinion. But he contended that the appellant's rights under article 5 of the Convention had been violated in four major respects: first, because the tribunal had lacked the power to secure compliance with its conditions and so had lacked the coercive power which is one of the essential attributes of a court; secondly, because, failing compliance with its conditions within a reasonable time (a matter of months), the tribunal failed to discharge the appellant absolutely, so rendering his continued detention unlawful; thirdly, because, on the health authority's failure to secure compliance with the tribunal's decisions, the tribunal had been unable to reopen and reconsider the case; and, fourthly, because the psychiatrists, as hybrid public authorities within the scope of section 6(3)(b) of the Human Rights Act 1998, had failed to act compatibly with the appellant's Convention rights by affording him psychiatric supervision and treatment in accordance with the conditions laid down by the tribunal. To put these submissions in context, reference must be made to the 1983 Act, to the Human Rights Act 1998 and to the Convention and the relevant Convention jurisprudence.

    THE 1983 ACT

  8. So far as relevant to this case, section 37 of the 1983 Act provides:

    37.

    Powers of courts to order hospital admission or guardianship

    (1)

    Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, .... or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

    (2)

    The conditions referred to in subsection (1) above are that -

    (a)

    the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -

    (i)

    the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or ....; 

    and

    (b)

    the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

    Section 37 is reinforced by section 41, of which subsections (1)-(3) and (6) are relevant:

    41.

    Power of higher courts to restrict discharge from hospital

    (1)

    Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as 'a restriction order'.

    (2)

    A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

    (3)

    The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows -

    (a)

    none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;

    (aa)

    none of the provisions of Part II of this Act relating to after-care under supervision shall apply;

    (b)

    no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) below;

    (c)

    the following powers shall be exercisable only with the consent of the Secretary of State, namely -

    (i)

    power to grant leave of absence to the patient under section 17 above;

    (ii)

    power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection (3) of that section; and

    (iii)

    power to order the discharge of the patient under section 23 above;

    and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer; and

    (d)

    the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

    and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.

    ....

    (6)

     

    While a person is subject to a restriction order the responsible medical officer shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.

  9. Sections 70-73 of the Act, so far as relevant, and as recently amended, provide:

    70.

    Applications to tribunals concerning restricted patients

    A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to a Mental Health Review Tribunal -

    (a)

    in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order, hospital direction or transfer direction; and

    (b)

    in any subsequent period of 12 months

    71.

    References by Secretary of State concerning restricted patients

    (1)

    The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.

    (2)

    The Secretary of State shall refer to a Mental Health Review Tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.

    72.

    Powers of tribunals

    (1)

    Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and -

    (a)

    the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied -

    (i)

    that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

    (ii)

    that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

    (b)

    the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied -

    (i)

    that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

    (ii)

    that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

    (iii)

    in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.

    (2)

    In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard -

    (a)

    to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and

    (b)

    in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.

    (3)

    A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may -

    (a)

    with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

    (b)

    further consider his case in the event of any such recommendation not being complied with.

    ....

    (5)

     

    Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject), the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.

    (6)

    Subsections (1) to (5) above apply in relation to references to a Mental Health Review Tribunal as they apply in relation to applications made to such a tribunal by or in respect of a patient.

    (7)

    Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.

    73.

    Power to discharge restricted patients

    (1)

    Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if -

    (a)

    the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and

    (b)

    the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

    (2)

    Where in the case of any such patient as is mentioned in subsection (1) above -

    (a)

    paragraph (a) of that subsection applies; but

    (b)

    paragraph (b) of that subsection does not apply,

    the tribunal shall direct the conditional discharge of the patient.

    (3)

    Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

    (4)

    Where a patient is conditionally discharged under this section -

    (a)

    he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and

    (b)

    the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal or at any subsequent time by the Secretary of State.

    ....

    (7)

     

    A Tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the Tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the Tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.

  10. Section 117(2) of the Act as amended provides:

    117.

    (2)

    It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject.

    In R(K) v Camden & Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198, the Court of Appeal held that this section does not impose on health authorities an absolute obligation to implement the conditions for a patient's discharge from hospital required by a tribunal; the authorities' duty is, in general, to use reasonable endeavours to secure compliance with those conditions.

    THE 1998 ACT

  11. By section 6(1) of the 1998 Act, "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". The Convention rights referred to, scheduled to the Act, include article 5 of the Convention. Section 6(3) of the Act defines "public authority" as including

    (a)

    a court or tribunal, and

    (b)

    any person certain of whose functions are functions of a public nature.

    A person falling within (b) has come to be called a hybrid public authority, bound to act compatibly with the Convention only when exercising public functions. By subsection (6), an act includes a failure to act. Section 2(1)(a) requires domestic tribunals, determining any question which has arisen in connection with a Convention right, to take into account any judgment or decision of the European Court of Human Rights.

    THE CONVENTION

  12. The provisions of article 5 which bear on this case are these:

    1.

    Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    ....

    (e)

    the lawful detention .... of persons of unsound mind ....

    ....

    4.

     

    Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

  13. Article 5(4) was the subject of the European Court's decision in X v United Kingdom (1981) 4 EHRR 188, which concerned a restricted patient. Under the Mental Health Act 1959 then in force, a mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the discharge of the patient. The Court held in paragraph 61 of its judgment that this advisory power did not meet the Convention requirement:

    Nonetheless, even supposing Mental Health Review Tribunals fulfilled these conditions, they lack the competence to decide 'the lawfulness of [the] detention' and to order release if the detention is unlawful, as they have advisory functions only ....

    The legislation was amended to make good this deficiency. Under the sections of the 1983 Act quoted above, the tribunal has power to direct, and not merely recommend, the discharge of a restricted patient.

  14. In Winterwerp v The Netherlands (1979) 2 EHRR 387, paragraph 39, page 403, the European Court defined, in terms repeated and applied in many later cases, the conditions to be met before the detention of a person may be justified on grounds of mental illness:

    In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.

    It is not suggested that there is any dissonance between these requirements and the provisions of the 1983 Act as it now stands.

  15. Detailed reference must be made to Johnson v United Kingdom (1997) 27 EHRR 296, since Mr. Owen relied on this decision of the Court as the linch-pin of his case and the resolution of this appeal depends in large part on a correct understanding of it. Mr. Johnson, who had a history of violence, was convicted of causing actual bodily harm to a passer-by. While in custody awaiting trial he was diagnosed as suffering from mental illness, and on appropriate medical evidence he was made subject on conviction to a hospital order under section 37 of the 1983 Act coupled with a restriction order without limit of time under section 41. He was admitted to Rampton in August 1984, and his case was reviewed by tribunals in 1986, 1987 and 1988 when it was reported that he had made great progress, but no direction was made for his discharge or for re-classification of his illness. At a fourth tribunal hearing in June 1989 the consensus of medical opinion was that he was no longer suffering from mental illness but that he would benefit from help and medical supervision to enable him to rehabilitate himself in the community after nearly five years at Rampton. The tribunal accordingly ordered Mr. Johnson's conditional discharge. The conditions were that he should be subject to the psychiatric supervision of a named consultant psychiatrist and to the social work supervision of a nominated psychiatric social worker, and that he should reside in a supervised hostel approved by the psychiatrist and the social worker. His discharge was deferred until suitable accommodation could be arranged. Despite considerable efforts, no satisfactory hostel could be found, partly because of Mr. Johnson's own conduct. So he remained at Rampton. At a further review in January 1990, when he sought an absolute discharge, the medical evidence was again that he was no longer mentally ill. But since suitable accommodation had not been found the tribunal again directed that he be conditionally discharged, deferring the discharge until suitable arrangements had been made for supervised accommodation. A period of trial leave in another hospital was then interposed, but this proved unsuccessful and Mr. Johnson was returned to Rampton. A sixth tribunal review of the case in April 1991 was in all essentials a repeat of that in January 1990: he was not mentally ill, but he could not cope in the community without supervision and support, and the necessary arrangements could not be made. So the same order was made as in January 1990. At a final review in January 1993, the tribunal ordered Johnson's absolute discharge on the basis that he "is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled for further treatment". Mr. Johnson was accordingly released from hospital.

  16. Before the Court, Mr. Johnson's first contention was that, given the medical evidence and its own assessment in June 1989, the tribunal should then have ordered his immediate and unconditional release. The Court rejected this contention in paragraphs 61-64 of its judgment, as the Commission had done in paragraph 66 of its opinion: both bodies recognised the desirability of making arrangements to ease Mr. Johnson's rehabilitation in the community and found no violation in the imposition of conditions to that end.

  17. Mr Johnson's alternative submission to the Court was that, while the discharge of a person found to be no longer of unsound mind may be made subject to conditions, such conditions must not hinder immediate or near immediate release and certainly not delay it excessively as had occurred in this case. This argument succeeded. The Commission concluded, in paragraph 67 of its opinion, that in circumstances such as these release may not be indefinitely deferred. The Court was of the same mind. It said, in paragraph 63 of its judgment:

    63.

    It is however of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of Article 5(1) and with the aim of the restriction in [Article 5(1)] sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed.

    The Court drew attention, in paragraph 66 of its judgment, to the absence of power in the tribunal or the authorities to ensure that the conditions could be implemented within a reasonable time, and to the 12-monthly interval between tribunal reviews, and in paragraph 67 concluded:

    67.

    In these circumstances it must be concluded that the imposition of the hostel residence condition by the June 1989 Tribunal led to the indefinite deferral of the applicant's release from Rampton Hospital especially since the applicant was unwilling after October 1990 to co-operate further with the authorities in their efforts to secure a hostel, thereby excluding any possibility that the condition could be satisfied. While the 1990 and 1991 Tribunals considered the applicant's case afresh, they were obliged to order his continued detention since he had not yet fulfilled the terms of the conditional discharge imposed by the June 1989 Tribunal.

    Having regard to the situation which resulted from the decision taken by the latter Tribunal and to the lack of adequate safeguards including provision for judicial review to ensure that the applicant's release from detention would not be unreasonably delayed, it must be considered that his continued confinement after 15 June 1989 cannot be justified on the basis of Article 5(1)(e) of the Convention.

    For these reasons the Court concludes that the applicant's continued detention after 15 June 1989 constituted a violation of Article 5(1) of the Convention.

    The Court did not address Mr. Johnson's challenge to the lawfulness of the hostel condition (see paragraph 68), nor did it rule on his argument that it was for the authorities to ensure that a placement in a hostel could be guaranteed, if not immediately then within a matter of weeks (paragraph 53). It was argued for Mr. Johnson that since the 1989 tribunal had had no power to ensure compliance with its conditions it had lacked a necessary attribute of a court in violation of article 5(4), but neither the Commission (paragraph 77) nor the Court (paragraph 72) regarded this complaint as giving rise to any separate issue.

  18. The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case.

  19. The Court of Appeal had occasion to consider Johnson, in a factual context very similar to that in the present case, in R(K) v Camden & Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198. The applicant, K, was a restricted patient detained pursuant to orders made under sections 37 and 41 of the 1983 Act. In August 1999, contrary to the advice of K's RMO, the tribunal directed her discharge under section 73 of the Act subject to conditions that she reside with her parents and co-operate with supervision to be provided by a consultant forensic psychiatrist. The respondent health authority did what it could to find a psychiatrist willing to assume responsibility for supervising K while she lived with her parents, but was unsuccessful and K applied for judicial review. The narrow issue in the appeal concerned the extent of the duty of a health authority under section 117 of the Act, and the court's ruling has been noted in paragraph 10 above. But the appeal touched on wider issues. One of these concerned the construction put on section 73(2) of the 1983 Act by the House of Lords in R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department [1988] AC 120. In its judgment in the present case ([2002] EWCA Civ 646, [2003] QB 320) the Court of Appeal neatly summarised the effect of this decision in paragraph 53:

    53.

    Section 73 provides for a two-stage process in relation to a conditional discharge. At the first stage the tribunal decides that it will direct the patient's discharge subject to conditions, but defers giving the direction so that arrangements may be made to enable the patient to comply with the conditions. The second stage is reached if and when the tribunal is satisfied that those arrangements have been made, whereupon it directs the conditional discharge. The tribunal is not obliged, or even entitled, to reconsider its earlier decision in order to accommodate any new facts that might cause it to alter that decision.

    Another wider issue concerned the impact of Johnson in a case such as the present where discharge was ordered subject to a condition of psychiatric supervision which could not be met.

  20. With reference to these wider issues, Lord Phillips of Worth Matravers MR. said, in paragraphs 32-36 of his judgment in K's case:

    32.

    Does the legislative scheme, as interpreted in the Oxford case [1988] AC 120, violate the right to liberty conferred by article 5 of the Convention? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in Johnson's case 27 EHRR 296, the tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur.

    33.

    Where

    (i)

    a patient is suffering from mental illness, and

    (ii)

    treatment of that illness is necessary in the interests of the patient's own health or for the protection of others, and

    (iii)

    it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community,

    it seems to me that the three criteria identified by the European Court of Human Rights in Winterwerp's case 2 EHRR 387 are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither article 5 nor European Court of Human Rights jurisprudence lays down any criteria as to the extent to which member states must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital.

    34.

    If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by article 5.

    35.

    Very different considerations apply to a factual situation such as that considered by the European Court of Human Rights in Johnson's case 27 EHRR 296. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by article 5(1)(e) does not apply. In Johnson's case the court has recognised that, in such circumstances, it may none the less be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson's case suggests that the statutory regime as interpreted in the Oxford case [1988] AC 120, may not be consistent with article 5. If the tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.

    36.

    The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in the Oxford case. If section 73 were to be interpreted in the manner proposed by Woolf J in the Oxford case, the tribunal would be in a position to deal speedily with any contingency and, in particular, to ensure that where proposed conditions proved not to be viable this did not prevent the discharge of a patient entitled to liberty.

  21. Buxton LJ agreed with the Master of the Rolls on the result, but expressed differing views on the Convention issues. In paragraphs 39-42 of his judgment he said:

    39.

    The effect of article 5(4) of the Convention is to entitle a person in the situation of the applicant to have the lawfulness of her detention decided by a body, within the system of the state that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the mental health review tribunal. One necessary characteristic of such a body, if it is to meet the requirements of article 5(4), is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see the passage from the judgment in X v United Kingdom 4 EHRR 188 that is set out in paragraph 12 of the judgment of Lord Phillips of Worth Matravers MR.

    40.

    In the present case, the mental health review tribunal concluded that the detention of the applicant would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included co-operation by the applicant with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the state. If that order were to be effective, as article 5(4) requires, such supervision had to be provided.

    41.

    Johnson v United Kingdom 27 EHRR 296, 324-325, paras 66-67 seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of article 5(1) is committed by the state if, once the mental health review tribunal has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the state.

    42.

    In applying that part of the court's jurisprudence, I would not make the distinction drawn by Lord Phillips of Worth Matravers MR., in paragraph 32 of his judgment, and based on the approach of the European Court of Human Rights in Winterwerp's case 2 EHRR 387, between cases where the mental health review tribunal concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson's case 27 EHRR 296 itself) where the mental health review tribunal finds that the patient is no longer suffering from mental illness but none the less needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson's case, to the prospect of recurrence. In both cases, there is continued detention; the role of the mental health review tribunal in both cases is to exercise the court-like functions required by article 5(4), and under the jurisprudence of article 5(4) the national authorities are equally bound to respect and act on the determination of the mental health review tribunal in either case.

    In paragraphs 44-45 he continued:

    44.

    However that may be, under the Convention jurisprudence referred to in paragraph 5 above, once the mental health review tribunal made a decision as to the applicant's release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the state to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson's case 27 EHRR 296, of indefinite deferral of the release that had been ordered by the mental health review tribunal. That deferral would arguably entail a breach of the Convention. The issue would depend on whether, once the mental health review tribunal had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp's case 2 EHRR 387, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here.

    45.

    In raising the possibility that the applicant's detention became unlawful I have not overlooked Lord Phillips of Worth Matravers MR's view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in Convention terms is the ruling of the mental health review tribunal, the determining body created by article 5(4). If the ruling of the mental health review tribunal is frustrated, in a case where under the Convention jurisprudence the subject should no longer be detained, then the subject is deprived of her article 5(4) protection, as (I think it to be clear) the court would have held in Johnson's case 27 EHRR 296, had the issue not been determined already under article 5(1): see pp 325-326, paras 69-72 of the judgment.

    Sedley LJ (in paragraph 53 of his judgment) agreed with Buxton LJ that

    53.

    .... the difference between the Winterwerp class of case and the Johnson class of case is one of degree, not of kind.

    THE PRESENT PROCEEDINGS

  22. In his application for judicial review the appellant contended that he had been unlawfully detained, in violation of his rights under article 5 of the Convention, between 3 February 2000 and 25 March 2002 and that this came about because the relevant legislation was incompatible with the Convention. The application came before Bell J, who did not have the benefit of Ms Cotton's explanatory statement: [2001] EWHC Admin 1037. He thought it arguable that the appellant had been unlawfully detained once a few months after the tribunal's February 2000 order had passed, and could not conclude that the tribunal had then found that he would continue to be lawfully detained until such time as the conditions imposed by the tribunal could be satisfied. With more confidence, he found that the appellant's rights under article 5(1)(e) and (4) had been violated by the failure to resolve his position much more quickly: he had been left in limbo for some twenty-one months. The judge found no breach in the lack of a power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. He construed section 73(7) of the 1983 Act as permitting the tribunal to monitor the situation before making an order for discharge, and so found no incompatibility and made no declaration.

  23. The judgment of the Court of Appeal (Lord Phillips of Worth Matravers MR., Jonathan Parker and Dyson LJJ) was delivered by the Master of the Rolls. It held the decision in the Oxford case ([1988] AC 120) to be incompatible with the Convention and ruled (in paragraph 71 of the judgment):

    71.

    Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the tribunal. Such material may, for instance, show that the patient's condition has relapsed. It may show that the patient's condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a provisional decision, and the tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time.

  24. In paragraphs 90 and 91 of its judgment the court considered two different situations, in these terms:

    90.

    Where the tribunal is not satisfied that a restricted patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, the tribunal must discharge the patient, either absolutely or conditionally. That is the effect of section 73(1) and (2) when read together with section 72(1)(b)(i). The effect of those provisions reflects the first of the three requirements in Winterwerp's case 2 EHRR 387. In order to comply with Winterwerp's case and Johnson's case 27 EHRR 296 a conditional discharge must not be deferred under section 73(7) beyond a reasonable limited period. After that the tribunal must discharge the patient whether or not it has proved possible to put in place arrangements to accommodate the conditions that the tribunal originally wished to impose. If it has not, then the tribunal should make appropriate modification to the conditions so that it will be possible for the patient to comply with them. Thus far there is no incompatibility between the Act and the Convention.

    91.

    It is possible that a tribunal may conclude that a patient is still suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, that this is no longer of a nature or degree that makes it necessary that the patient should be detained in hospital for treatment, even if he cannot receive treatment in the community, but that it is appropriate that the patient should be subject to recall. In such a situation the tribunal may defer discharge for a reasonably limited period to enable arrangements to be put in place for a conditional discharge. If, however, the preferred arrangements prove impossible, the tribunal must make appropriate modifications to the conditions and direct the discharge of the patient. Such a course is necessary because in this situation the second and third requirements in Winterwerp's case will not be satisfied.

    The Court of Appeal then turned (in paragraph 92) to the "critical impasse" which occurs

    92.

    where a tribunal considers that it is necessary for the health or safety of the patient or the safety of others that the patient continues to receive psychiatric treatment, and that it is reasonable for such treatment to be provided in the community, but the psychiatrists who would have to provide such treatment refuse to do so because they disagree with the tribunal's view that the patient can safely be treated in the community.

    The court resolved that impasse in paragraph 96 of its judgment:

    96.

    We consider that in a case such as the present the provisions of section 73 of the Act operate as follows. Where a tribunal decides (i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of other persons and (ii) that detention in hospital for that treatment is not necessary if, but only if, psychiatric treatment is provided in the community, the tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangements to be made for providing psychiatric treatment in the community. The health authority subject to the section 117 duty will then be bound to use its best endeavours to put in place the necessary after-care. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the health authority is unable to provide the necessary services, the tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision.

    In paragraph 98 of its judgment the court made the following summary:

    98.

    The following summary of the position of a tribunal considering the conditional discharge of a restricted patient substantially accords with submissions made to us on behalf of the Secretaries of State.

    (i)

    The tribunal can, at the outset, adjourn the hearing to investigate the possibility of imposing conditions.

    (ii)

    The tribunal can make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under section 117 of the Act make the necessary arrangements to enable the patient to meet those conditions.

    (iii)

    The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place.

    (iv)

    Once the arrangements have been made, the tribunal can direct a conditional discharge without holding a further hearing.

    (v)

    If problems arise with making arrangements to meet the conditions, the tribunal has a number of options, depending upon the circumstances; (a) it can defer for a further period, perhaps with suggestions as to how any problems can be overcome; (b) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered; (c) it can order a conditional discharge without specific conditions, thereby making the patient subject to recall; (d) it can decide that the patient must remain detained in hospital for treatment.

    (vi)

    It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements.

    In its conclusion (paragraph 100) the court held that the appellant's right under article 5(1) had been violated, but only because the wording of section 73, before its amendment in 2001 by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), permitted detention to be continued provided the tribunal was not satisfied that the patient was not suffering from a relevant mental disorder rather than where the tribunal was satisfied that the patient was suffering from such a disorder: see R(H) v London North & East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1.

    CONCLUSIONS

  25. This regrettably lengthy prologue enables me, I hope fairly, to review Mr. Owen's main submissions summarised in paragraph 7 above more briefly than would otherwise have been possible.

  26. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court. What article 5(1)(e) and (4) require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in article 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised otherwise than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permits that possibility to be explored and, it may be, tried.

  27. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's article 5(4) right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in paragraph 71 of its judgment quoted above. Evidence before the House shows that that ruling is already yielding significant practical benefits. Mr. Owen was, I think, right to submit that the tribunal could have achieved the same result, consistently with the Oxford case, by a judicious use of its power to adjourn and by proleptic indication of the conditions it had in mind to impose, but it is undesirable to restrict the procedural freedom of tribunals in a field as important and sensitive as this, where personal liberty and safety and public protection are all at stake: the outcome should not turn on procedural niceties.

  28. There was no time between 3 February 2000 and 25 March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of article 5(1)(e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr. Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards. While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. The appellant was never detained when there were no grounds for detaining him. To the extent that Buxton and Sedley LJJ differed from the Master of the Rolls on this point in K, the opinion of the latter is to be preferred.

  29. The duty of the health authority, whether under section 117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist. Thus the appellant can base no claim on the fact that the tribunal's conditions were not met. This conclusion makes it unnecessary, in my opinion, to address a question on which the House heard argument, but which was not considered below, whether in a context such as this psychiatrists were or could be a hybrid public authority. Determination of that question is best left to a case in which it is necessary to the decision. We are nonetheless grateful to the Royal College of Psychiatrists for its submissions on this point.

  30. I do not consider that the violation of article 5(4) which I have found calls for an award of compensation since (a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which article 5 is intended to avoid.

  31. For these reasons, and in very substantial agreement with the Court of Appeal, I would dismiss this appeal.

    Lord Steyn

    My Lords,

  32. I have had the advantage of reading the opinion of my noble and learned friend, Lord Bingham of Cornhill. I agree with it. For the reasons he gives I would also dismiss the appeal.

    Lord Hobhouse of Woodborough

    My Lords,

  33. I agree that the appeal should be dismissed for the reasons given by my noble and learned friend Lord Bingham of Cornhill.

    Lord Scott of Foscote

    My Lords,

  34. I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Bingham of Cornhill. I am in agreement with the conclusions he has expressed and for the reasons he has given I, too, would dismiss this appeal.

    Lord Rodger of Earlsferry

    My Lords,

  35. I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Bingham of Cornhill. I agree with it and for the reasons he has given I, too, would dismiss this appeal.


Cases

X v United Kingdom (1981) 4 EHRR 188; Winterwerp v The Netherlands (1979) 2 EHRR 387; Johnson v United Kingdom (1997) 27 EHRR 296; R(K) v Camden & Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198; R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department [1988] AC 120; R(H) v London North & East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1

Legislations

Criminal Procedure (Insanity) Act 1964: s.5

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991): s.3

Mental Health Act 1983: s.37, s.41, s.73, s.117


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