COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GAGE
LORD JUSTICE TOULSON
| THE QUEEN ON THE APPLICATION OF MM
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Martin Chamberlain (instructed by Treasury Solicitor) for the Respondents
Hearing dates: 18 May 2007
Crown Copyright ©
Lord Justice Toulson :
"At this point I feel that a further stay in a low secure unit may become counter-productive as we have reached a therapeutic point where he is as well [as] he is ever going to be with regards to his schizophrenia. It is clear that his response to medication is excellent and that while on the medication he quickly gets well and stays well. As Dr ….points out if he is going to relapse in the future it will be due to the lack of compliance and the use of illicit substances. …"
Given that he is mentally very well and that his personality issues which include impulsivity when frustrated are unlikely to change even if he should remain detained for an extended period I believe at this point conditional discharge would be appropriate. …
Given his impulsive personality I would advise that the threshold for considering an assessment under the Mental Health Act is low should his mental state suggest psychotic relapse."
"MM has a long history of mental illness with many hospital admissions and an often chaotic lifestyle associated with illicit drug use and poor concordance with treatment. Having been recalled to hospital on three occasions under the conditions of section 37/41 he remains convinced that this represents a miscarriage of justice and shows little insight into how his actions have warranted this intervention…In spite of the difficulties represented in this report I would recommend at this time a conditional discharge in order to test his ability to more adequately manage his own mental health and illicit drug use. This I feel could be closely monitored by the Knowsley Assertive Outreach Team with mutually agreed priorities and clearly set boundaries in a planned intervention."
"After reading and hearing the evidence…we are not satisfied that this patient's mental illness presently meets the statutory criteria for his lawful detention in hospital for treatment.
We heard that there has been an overall improvement in [MM's] mental state. He has not shown any psychotic symptoms. He has abstained from the use of illicit drugs. He has shown a certain degree of cooperation with his clinical team. There has been an apparent increase in the level of his insight into his mental illness and the effect drugs have had and are likely to have thereon…
We recognise that MM has a history of non-compliance with his medication resulting in a deterioration of his mental health and recall to hospital on three occasions following his conditional discharge. We are satisfied that he needs to remain subject to recall in the event of a further relapse and a return of the symptoms of his paranoid schizophrenia."
The March 2006 recall
"Historically, [MM's] placement in the community fails due to his return to illicit drug use and resultant relapse of his mental illness…In view of the rapidity with which he can relapse and the danger he poses when unwell we felt it was important to bring this to your attention immediately."
"On admission he expressed frustration at being brought back into hospital but was generally pleasant and co-operative. I noted that he had lost weight since his discharge. There was no evidence of thought disorder, auditory hallucinations or any other symptoms of psychosis. Having established that his mental state was unchanged from the time of discharge I applied to the Home Office for Leave. He was granted escorted leave. Since his admission to hospital he has not shown any signs of psychosis…
He has a tendency to push boundaries and does not tend to learn from mistakes…The use of illicit substances has been a strong feature of his history. He has used cannabis, cocaine, ecstasy and heroin. He has attended a substance misuse programme and he was given methadone for two years and has come off the methadone completely. He admitted using cannabis and cocaine on one occasion since his last discharge.
[MM's] mental state has remained free of psychosis throughout his current admission…I do not believe his current mental state warrants his detention in hospital. However, given extensive forensic history and complex mental health needs, an enchanced package of care which includes regular monitoring of mental state by his Care Coordinator and continued treatment with depo, anti psychotic medication will be required for [MM] to live successfully in the community. Given the fact that he is free of psychosis and his mental state is stable, I recommend conditional discharge from this hospital."
The June 2006 recall
"The patient was recalled to hospital for breaking one of the conditions attaching to his conditional discharge on 9.5.06 namely the taking of illicit drugs. That was triggered by the patient learning that the Home Office were intending to Judicially Review the discharge order of 9.5.06 …
Since his recall he has not exhibited any psychotic features which is confirmed by the clinical team. He has been involved since his admission with a drug rehabilitation team which can continue three times a week in the community and which he has so far attended on six occasions."
The September 2006 recall
"The MHU wanted to discuss what further action, if any, I considered to be appropriate in the circumstances and we discussed the options of recall to hospital and issuing MM with a warning letter. I explained to the MHU that when I reviewed MM on 11 September 2006 he had promised to abstain from illicit substances and was very worried about the possibility of being recalled to hospital. We therefore agreed that a warning letter would be the most appropriate action in the circumstances."
"Use of illicit drugs is behaviour that is likely to lead to deterioration in your mental health, and as you will doubtless recollect has lead to your recall to hospital on a number of occasions in the past. It is, therefore, in your own best interest to comply with all the conditions on which you were discharged to avoid being recalled.
It must be clearly understood that this letter should be considered a final warning. Should you test positive for illicit substances in the future, we will have no option other then to immediately recall you to hospital.
Copies of this letter have also been sent to Dr Ibitoye and Gary McDonald."
"Gary McDonald rang to say that [MM] had had a drugs screen and had tested negative for cannabis and cocaine, but positive for amphetamines. This is despite our warning letter of 14.9.06. I said we would be likely to recall but I wanted Dr Ibitoye's confirmation of this. Gary and I agreed that he would go ahead with arrangements to get [MM] assessed by the hospital in Blackpool where he would be admitted. Dr Ibitoye rang a bit later and agreed that recall was appropriate and that the assessment should go ahead. He promised to ring me back tomorrow."
"On 18 September 2006 Gary McDonald informed me that M had once again tested positive for amphetamines. Gary McDonald confirmed that he had already informed the MHU, who had indicated their intention to recall MM but first wished to discuss their decision with me. Accordingly I telephoned Sarah Denvir of the MHU and she confirmed that they had decided to recall MM on account of his continuing breach of conditions, despite the warning letter he had received. I informed Sarah Denvir that I would make myself available at the assessment to be undertaken by Regency Lodge, Blackpool the following day."
Judicial Review – further steps
"(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" – that is,
"(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 that 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" (which I shall refer to as the statutory criteria)
(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…; 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."
"Article 5 ECHR requires that, when a person is detained for being of "unsound mind", the detention must comply with domestic law and in addition three conditions must be satisfied, namely (i) except in emergency cases, the individual concerned must be clearly shown to be of unsound mind, i.e. a true mental disorder must be established before a competent authority on the basis of objective medical expertise; (ii) the mental disorder must be of a kind or degree warranting compulsory confinement; (iii) the validity of continued confinement depends upon the persistence of such a disorder: Winterwerp v Netherlands (1979) 2 EHRR 387.
The Home Secretary accepts that, before he can lawfully recall a conditionally discharged patient, there must be "up to date medical evidence about the applicant's mental health"; Kay v United Kingdom (1998) 40 BMLR 20 at  (European Commission of Human Rights). That means that there must be medical evidence upon which the Home Secretary can properly conclude that the Winterwerp criteria (or the first two criteria, since the third relates to continued, rather than initial, detention) are satisfied."
"It must be shown by medical evidence that MM either is now in a mental state such that it is necessary to readmit him to hospital for treatment under the conditions set out in section 37, or that he will, if he takes drugs, inevitably suffer a deterioration such that he will be in that condition in the imminent future." (Emphasis added)
"If, as here, there is abundant medical evidence to the effect that MM suffers from paranoid schizophrenia and that his condition is likely to deteriorate imminently and significantly if he takes illicit drugs, then that evidence suffices to justify recall unless there is good reason for believing that it is no longer currently valid."
Lord Justice Gage:
Lord Justice Keene: