COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Burton
Strand, London, WC2A 2LL
Wednesday 21st February 2001
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE SEDLEY
CAMDEN AND ISLINGTON HEALTH AUTHORITY
|Ex parte K
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr C Béar (instructed by Messrs Beachcroft Wansbroughs) for the Respondent
Crown Copyright ©
Lord Phillips MR :
The position under the European Convention of Human Rights
"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."
"The Convention does not state what is to be understood by the words 'persons of unsound mind'. This term is not one that can be given a definitive interpretation: as was pointed out by the Commission, the Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitudes to mental illness change, in particular so that a greater understanding of the problems of mental patients is becoming more widespread."
"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 - this 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."
"….the 1959 Act provides the opportunity for a periodic review on a comprehensive factual basis by Mental Health Review Tribunals. There is nothing to preclude a specialised body of this kind being considered as a 'court' within the meaning of Article 5(4), provided it enjoys the necessary independence and offers sufficient procedural safeguards appropriate to the category of deprivation of liberty being dealt with. 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 decision in Campbell
"A tribunal which defers under section 73(7) does so to await the making of '…such arrangements as appear to the tribunal to be necessary for that purpose…', (that is, the purpose of a conditional discharge). It follows that unless and until such arrangements are made, there are outstanding unresolved matters whose resolution is necessary for the purpose of a conditional discharge. Further, it follows that until such necessary arrangements are made, the tribunal cannot be satisfied that the case is one suitable for conditional discharge.The 'arrangements' referred to in section 73(7) typically involve matters of residence, supervision and out-patient treatment. The criteria for discharge set out in section 72(b)(i)(ii), which are incorporated into section 73(1) by statutory reference, must often involve for their proper application consideration of the circumstances in which the patient would find himself if he were discharged. Thus, the question whether a patient's mental disorder is 'of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment' can properly depend upon the available out-patient provision, supervision, treatment and support which would be available for that patient. If none can be made available, continued detention in a hospital for medical treatment may be appropriate. If, by contrast, the out-patient facilities are extensive, detention in a hospital may no longer be appropriate. Similarly, the question whether it is 'necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment' (being treatment under detention in hospital) can properly depend upon the out-patient facilities available. Effective out-patient treatment, if available, may sufficiently meet the treatment needs of the patient. Effective supervision may provide sufficient protection for other persons.A tribunal which defers to seek information about the available arrangements for the patient will therefore be awaiting evidence which goes to the heart of its consideration of whether the patient should be discharged at all. The use in section 73(7) of the word 'necessary' as adjectival to the word 'arrangements' makes clear that evidence concerning such arrangements is integral to a decision to discharge and not subsidiary or incidental to it. When deciding to defer under section 73(7), a tribunal has done no more than decide that, if arrangements of a kind which are capable of being made can in fact be made, then the case appears to be suitable for a direction for conditional discharge. Such a decision is appropriately characterised in the rules as 'provisional'. There is no reason in law or policy, after such a deferral, to restrict the tribunal's access to any other evidence prior to their making a final direction for conditional discharge.The contrary contention would prevent a tribunal from heeding, after deferral but prior to making a direction to discharge, evidence of a deterioration in the condition of the patient, or other evidence which might show the patient to be then unsuitable for discharge. In such circumstances it would follow that a tribunal would have to direct the conditional discharge of a patient who no longer satisfied the criteria for discharge. The foregoing argument avoids this unsatisfactory result."
"The first issue which a mental health review tribunal must address on an application falling for determination under section 73 is whether they are satisfied as to one or other of the matters referred to in paragraph (a) of subsection (1). If they are so satisfied and also satisfied that the patient need not remain liable to recall it is mandatory under subsection (1) that they shall direct his absolute discharge.If the tribunal think the patient should remain liable to recall, they can only contemplate a conditional discharge under subsection (2). Here the tribunal's satisfaction or lack of satisfaction as to one or other of the paragraph (a) matters will, I think, inevitably be coloured by the conditions they have in mind to impose. Thus the answers to the question (a)(i) whether or not the patient's disorder is "of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment," or (a)(ii) whether or not it is necessary for his own health or safety or for the protection of others "that he should receive such treatment," which must here mean treatment under detention, may be vitally influenced by the conditions which are to be imposed to regulate his life style upon release into the community. To take obvious examples suggested by the decision of the tribunal in this case, the tribunal may perfectly properly be satisfied that hospital detention is no longer necessary provided that the patient can be placed in a suitable hostel and required to submit to treatment as an out-patient by a suitable psychiatrist. These are matters to be secured by imposing appropriate conditions.Once satisfied under subsection (2) as to one or other of the matters referred to in paragraph (a) of subsection (1), it is mandatory that the tribunal "shall direct the conditional discharge of the patient." But if the tribunal are only able to be so satisfied by the imposition of conditions to which the patient will be subject on release, it is obvious that in many, perhaps most, cases some time must elapse between the decision that conditional discharge is appropriate and the effective order directing discharge of the patient, for the purpose of making the necessary practical arrangements to enable the patient to comply with the conditions, e.g. securing a suitable hostel placement for him and finding a suitable psychiatrist who is prepared to undertake his treatment as an out-patient. This seems to me to be the common sense of the matter and it is, I think, precisely for this purpose that the tribunal, being satisfied as required by subsection (2), are given the option either to direct the immediate discharge of the patient under subsection (2) or to defer that direction under subsection (7). Unless a decision has first been reached under subsection (2) that discharge on certain conditions is appropriate, I find it difficult to see what is envisaged by the words in subsection (7) "such arrangements as appear to the tribunal to be necessary for that purpose." The purpose contemplated must surely be that of enabling the patient to comply with the conditions which the tribunal have already decided to impose. Conversely, when the tribunal have deferred a direction for the conditional discharge of the patient, the words of subsection (7) which reserve to the tribunal the further decision as to whether the necessary arrangements "have been made to their satisfaction" are wholly inapt to indicate a deferment of the decision as to whether the tribunal can be satisfied, as required under subsection (2), of the matters on which a decision in favour of conditional discharge depends.The contrary argument is that no direction for the conditional discharge of the patient can ever be given unless the tribunal are satisfied as required by subsection (2) at the moment when the direction is given. Having deferred a direction under subsection (7) the tribunal, it is submitted, not only may, but must, examine the whole issue afresh before the direction for discharge is given. If this were right, the two stage procedure, which seems to be contemplated by subsections (2) and (7) and which, as it appears to me, is designed to serve the purpose I have suggested in the foregoing paragraph, would not seem to serve any useful purpose at all. Moreover, for reasons indicated earlier in this opinion this construction of section 73 would not avail the appellant in resisting an order to quash the decision of the tribunal in this case. But, to my mind, the conclusive refutation of this suggested construction is to be found in the second part of subsection (7) following the semi-colon. This provision contemplates: (1) an application or reference leading to a deferred direction for conditional discharge; (2) a further application or reference relating to the same patient coming before the tribunal before any direction for his conditional discharge has actually been given. In this situation it is provided that no direction may be given pursuant to the first application or reference. The effect of this is that the whole issue must be re-opened pursuant to the second application or reference. If, as submitted on behalf of the appellant, the whole issue always remains at large following a deferred direction for conditional discharge, this provision would be otiose. Its evident purpose is to ensure that, in the situation to which it applies, it will not be open to the tribunal when the second application or reference comes before them to say: "We decided on the first application or reference in favour of conditional discharge but deferred giving the direction; being now satisfied that the necessary arrangements have been made for the purpose we now direct the conditional discharge of the patient pursuant to that application or reference and there is no necessity for us to consider the matter afresh pursuant to the new application or reference."
I think this provision, so interpreted, also meets the point, of which much was made in the argument, that if the tribunal, having deferred a direction under subsection (7) have no power to re-open the issue under subsection (2), they may be compelled to discharge a patient whose condition has deteriorated since the tribunal first considered the matter and made a deferred direction for conditional discharge. It may well be, I think, that the second part of subsection (7) is designed to meet this very contingency. But, whether that is so or not, it certainly enables the Secretary of State, when a deterioration in the condition of the patient is brought to his attention, to forestall the patient's discharge by exercising his power under section 71 of the Act of 1983 to refer the patient's case to the tribunal afresh."
The decision in Johnson
"The Tribunal accepts the medical evidence that the patient is not now suffering from mental illness. The episode of mental illness from which he formerly suffered has come to an end. He is not now in receipt of any psychotropic medication.
However the Tribunal continued:
The [applicant] had an unrealistic opinion of his ability to live on his own in the community after nearly five years in Rampton Hospital and required rehabilitation under medical supervision and that such rehabilitation (and its associated support) can be provided only in a hostel environment. Further, the Tribunal is of the opinion that the recurrence of mental illness requiring recall to hospital cannot be excluded until after successful rehabilitation of that nature."
"The Court stresses, however, that the lawfulness of the applicant's continued detention under domestic law is not in itself decisive. It must also be established that his detention after 15 June 1989 was in conformity with the purpose of Article 5(1) of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion and with the aim of the restriction contained in sub-paragraph (e). In this latter respect the Court recalls that, according to its established case law, an individual cannot be considered to be of "unsound mind" and deprived of his liberty unless the following three minimum conditions are satisfied: first, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, and of sole relevance to the case at issue, the validity of continued confinement depends upon the persistence of such a disorder.
By maintaining that the 1989 Tribunal was satisfied that he was no longer suffering from the mental illness which led to his committal to Rampton Hospital, Johnson is arguing that the above-mentioned third condition as to the persistence of mental disorder was not fulfilled and he should as a consequence have been immediately and unconditionally released from detention.
The Court cannot accept that submission. In its view it does not automatically follow from a finding by an expert authority that the mental disorder which justified a patient's compulsory confinement no longer persists, that the latter must be immediately and unconditionally released.
Such a rigid approach to the interpretation of that condition would place an unacceptable degree of constraint on the responsible authority's exercise of judgment to determine in particular cases and on the basis of all the relevant circumstances whether the interests of the patient and the community into which he is to be released would in fact be best served by this course of action. It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not recovery from an episode of mental illness which justified a patient's confinement is complete and definitive or merely apparent cannot in all cases be measured with absolute certainty. It is the behaviour of the patient in the period spent outside the confines of the psychiatric institution which will be conclusive of this….
In the view of the Court it must also be acknowledged that a responsible authority is entitled to exercise a similar measure of discretion in deciding whether in the light of all the relevant circumstances and the interests at stake it would in fact be appropriate to order the immediate and absolute discharge of a person who is no longer suffering from the mental disorder which led to his confinement. That authority should be able to retain some measure of supervision over the progress of the person once he is released into the community and to that end make his discharge subject to conditions. It cannot be excluded either that the imposition of a particular condition may in certain circumstances justify a deferral of discharge from detention having regard to the nature of the condition and to the reasons for imposing it. 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 sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed.
Having regard to the above considerations, the Court is of the opinion that the 1989 Tribunal could in the exercise of its judgment properly conclude that it was premature to order Johnson's absolute and immediate discharge from Rampton Hospital. While it was true that the Tribunal was satisfied on the basis of its own assessment and the medical evidence before it that the applicant was no longer suffering from mental illness, it nevertheless considered that a phased conditional discharge was appropriate in the circumstances…..
However in imposing the hostel residence requirement on the applicant and deferring his release until the arrangements had been made to its satisfaction, the Tribunal lacked the power to guarantee that the applicant would be relocated to a suitable post-discharge hostel within a reasonable period of time. The onus was on the authorities to secure a hostel willing to admit the applicant. It is to be observed that they were expected to proceed with all reasonable expedition in finalising the arrangements for a placement. While the authorities made considerable efforts to this end these efforts were frustrated by the reluctance of certain hostels to accept the applicant as well as by the latter's negative attitude with respect to the options available. They were also constrained by the limited number of available placements. Admittedly a suitable hostel may have been located within a reasonable period of time had the applicant adopted a more positive approach to his rehabilitation. However, this cannot refute the conclusion that neither the Tribunal nor the authorities possessed the necessary powers to ensure that the condition could be implemented within a reasonable time. Furthermore, the earliest date on which the applicant could have had his continued detention reviewed was 12 months after the review conducted by the June 1989 Tribunal. In between reviews the applicant could not petition the Tribunal to have the terms of the hostel residence condition reconsidered; nor was the Tribunal empowered to monitor periodically outside the annual reviews the progress made in the search for a hostel and to amend the deferred conditional discharge order in the light of the difficulties encountered by the authorities. While the Secretary of State could have referred the applicant's case to the Tribunal at any time it is to be noted that this possibility was unlikely to be effected in practice since even at the date of the January 1993 Tribunal the authorities maintained their opposition to the applicant's release from detention until he had fulfilled the hostel condition.
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 approach to statutory interpretation
The interpretation of Section 117
(a) A Health Authority has power to take preparatory steps before discharge of a patient;
(b) It will normally be the case that, in the exercise of this discretionary power, an authority should give way to a Tribunal decision, and should use reasonable endeavours to fulfill the conditions imposed by such a decision, insofar as they relate to medical care;
(c) Failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion.
The decision in Fox
"The next question which arises is to determine the nature of the duty or obligation (if any) attaching to a health authority when an order of conditional discharge has been made by a tribunal. Counsel for the respondent authority suggested in argument that there was no express or implied duty at all and even if there was, the health authority could only assume any such duty if it consented. It may be true that there is no express statutory power to direct a district health authority to provide any particular type of health care to any particular person at any particular time. However, I am satisfied that the district health authority had fulfilled its obligations under s3(1)(e) to provide facilities as it considered appropriate by the establishment of a regional secure unit at a hospital in Ealing. It does not follow that they were not in breach by refusing to treat Mr Fox within or under its aegis. I consider s117(2) as mandatory. It shall be the duty of the district health authority to provide after-care services for any person to whom the section applies. The section clearly will apply to the applicant as he falls within sub-s (1). Thus, the duty is not only a general duty but a specific duty owed to the applicant to provide him with after-care services until such time as the district health authority and local social services authority are satisfied that he is no longer in need of such services. I reject the submission that this duty only comes into existence when the applicant is discharged from Broadmoor. I consider a proper interpretation of this section to be that it is a continuing duty in respect of any patient who may be discharged and falls within s117, although the duty to any particular patient is only triggered at the moment of discharge."
"In my judgment, if the district health authority's doctors do not agree with the conditions imposed by the mental health review tribunal and are disinclined to make the necessary arrangements to supervise the applicant on his release, the district health authority cannot let the matter rest there. The district health authority is under a continuing obligation to make further endeavours to provide arrangements within its own resources or to obtain them from other health authorities who provide such services so as to put in place practical arrangements for enabling the applicant to comply with the conditions imposed by the mental health review tribunal or, at the very least, to make inquiry of other providers of such services. If the arrangements still cannot be made then the district health authority should not permit an impasse to continue but refer the matter to the Secretary of State to enable him to consider exercising his power to refer the case back to the mental health review tribunal under s 71(1)."