Case No: C/2000/2375
Neutral Citation Number: [2001] EWCA Civ 240
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Justice Burton
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 21st February 2001

B e f o r e :

MASTER OF THE ROLLS
(LORD PHILLIPS)
LORD JUSTICE BUXTON
and
LORD JUSTICE SEDLEY
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	REGINA
And
CAMDEN AND ISLINGTON HEALTH AUTHORITY	Respondent	
	Ex parte K		
		Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr R Drabble, QC and Ms F Morris (instructed by Hodges Jones & Allen for the 	Appellant)
Mr C Béar (instructed by Messrs Beachcroft Wansbroughs) for the Respondent

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Judgment
Lord Phillips MR  :
1.	This is the first of two appeals against Judgments of Burton J.  The second is in the case of The Queen v. Tower Hamlets Healthcare NHS Trust and Another, ex parte Count Franz von Brandenburg (otherwise known as Nicholas Hanley).  Permission to appeal in the latter case was granted by Schiemann LJ on 15th August 2000.  Permission to appeal in this case was granted by May LJ on 5th September 2000.  He directed that the two cases be heard either together or consecutively.  We chose the latter course.  In each case the Applicant was a patient compulsorily detained under the Mental Health Act 1983 (MHA).  In each case a Mental Health Review Tribunal (a Tribunal) had ordered the discharge of the Applicant.  In each case the Applicant sought judicial review on the basis that the Tribunal’s order had unlawfully been prevented from being implemented by, in the first case, omissions and, in the second case, acts of the relevant professionals.  Each appeal turns on a different narrow, though important, point of statutory construction.  Each appeal raises wider issues of general importance.  Each appeal involves areas of law and practice in relation to mental health of some complexity.  I propose to decide only those narrow issues which are necessary to resolve the appeals.  I shall, however, make some observations on the wider issues.

This Appeal
2.	The material facts, the relevant legislation, the submissions made and the issues that they raised are clearly set out in Burton J’s Judgment.  Rather than duplicate the exercise that he carried out I have annexed his Judgment to my own.  It will suffice at this point to give the briefest summary of the facts and issues.  
3.	Miss K was a restricted patient pursuant to Sections 37 and 41 of the MHA.  On 16th August 1999 a Tribunal decided that she should be conditionally discharged pursuant to Section 73 of the MHA.  This decision was contrary to the advice of Miss K’s Responsible Medical Officer (RMO).  The conditions specified by the Tribunal included a requirement that Miss K should reside at her parents’ home in Wood Green, North London, and co-operate with supervision to be provided by a forensic Consultant Psychiatrist.  The Respondent Health Authority is that for the area in which Miss K would be living when discharged.  The Respondent Authority does not itself employ any forensic psychiatrists.  Together with other health authorities in the London region it contracts for such services with the North London Forensic Service (NLFS), a specialist service forming part of the Enfield Community Care NHS Trust.  The Respondent Authority took all steps that it reasonably could to obtain from the NLFS, and indeed from other sources, a forensic psychiatrist who would be prepared to supervise Miss K.  They were unsuccessful, because no forensic psychiatrist was prepared to undertake the responsibility of supervising Miss K while she was living with her parents. All believed that the Tribunal had been mistaken in concluding that this was a viable course.
4.	Faced with this impasse, Miss K’s RMO wrote to the Home Secretary asking him to exercise his powers under Section 71(1) of the MHA to make a fresh reference of Miss K’s case to a Tribunal.  The Home Secretary complied with this request in November 1999.  It was at this point that Miss K applied for judicial review.
5.	Section 117 of the MHA places a Health Authority under a duty to provide after care services when a person in the position of Miss K is discharged from hospital.  Miss K contended that, on true construction of this section, the Respondent Authority was under an absolute duty to provide her with psychiatric supervision in the community in order to implement the conditions imposed by the Tribunal.  Burton J. rejected this contention.  He held that the Respondent Authority’s duty did not go beyond taking all reasonable steps in an attempt to satisfy the conditions imposed by the Tribunal.
6.	The narrow issue raised on this appeal is whether the Judge was right in his interpretation of Section 117 of the MHA or whether, as is contended on behalf of Miss K, that section imposed an absolute duty on the Respondent to provide services that satisfied the condition imposed by the Tribunal.  The wider issues are whether, and if so how, the statutory regime satisfies the obligations imposed by Article 5 of the European Convention on Human Rights. 
Subsequent Events
7.	Immediately after the hearing that has given rise to this appeal, Burton J. heard and rejected an application by Miss K for permission to apply for judicial review of the decision of the Secretary of State for the Home Department to make a fresh reference of her case to the Tribunal.  That application was not renewed before this Court.  The decision of the Tribunal was that Miss K should be conditionally discharged on condition that she ‘reside in accommodation approved by her RMO’ and ‘accept…. the supervision of her RMO’.  No-one has challenged the legality of that decision.  It follows that the issues raised on this appeal are, in one sense, academic.  May L.J. had this in mind but gave permission to appeal nonetheless because of the importance of the issues raised.  Having heard argument, we concluded that it was appropriate that we should determine, at least, the narrow issue directly raised by the appeal. Before so doing I propose to consider a number of matters that are relevant by way of background.

The position under the European Convention of Human Rights
8.	Article 5 of the ECHR provides:
	“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.”

9.	In Winterwerp v The Netherlands (1979) 2 EHRR 387 at p.401 the European Court observed:

	“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.”

10.		The Court added at p.403:

	“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.”

11.	This passage has been repeatedly cited by the Court when dealing with the effect of Article 5(1)(e).
12.	The question of whether the United Kingdom complied with Article 5(4) came before the European Court in X v United Kingdom (1981) 4 EHRR 188.  At that time a Mental Health Review Tribunal provided advice to the Home Secretary as to whether or not he should exercise his power to discharge a patient who was subject to a restriction order.  The Court held that this fell short of satisfying the requirements of Article 5(4):

	“….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.”

13.	It was in response to this decision that the provisions which now form Sections 72 and 73 of the MHA were enacted.  The effect of these Sections, as interpreted by the House of Lords in Campbell v Secretary of State for the Home Department [1988] 1AC 120, did not prove entirely satisfactory to the European Court.  

The decision in Campbell
14.		In Campbell the House of Lords had to consider the interrelationship of Section 73(2) and 73(7) of the MHA.  The Oxford Regional Tribunal had decided that a restricted patient was entitled to be conditionally discharged but deferred directing the discharge to enable necessary arrangement to be put in place.  This decision was open to objection in that the Secretary of State had not been afforded an opportunity to be represented at the hearing.  He applied by way of judicial review to have it quashed.  At first instance Woolf J. rejected his application.  He held that the Tribunal’s decision was provisional so that, until they actually directed the patient’s discharge, they could reconsider the position if exceptional circumstances made it necessary.  The correct remedy for the Secretary of State would have been to apply to the Tribunal to reconsider their decision. The Court of Appeal reversed this decision and was upheld by the House of Lords.  In the context of the present case it is worth setting out the arguments advanced before the House of Lords by the Appellants as reported at p.122-3:

	“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.”

15.	The House of Lords rejected this argument without calling on the Respondent.  The sole speech was that of Lord Bridge, with which the other four members of the Committee agreed.  The reasoning of Lord Bridge at pp.127-128 was as follows:
	
	“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.”

16.	Lord Bridge’s speech made no reference to the European Convention of Human Rights, which had led to the enactment of the sections that he had to interpret.  His decision had, however, practical consequences of significance in relation to the obligations imposed by Article 5.  Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions.  In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal.  The patient was not entitled himself to initiate a reference for twelve months.  The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State.  The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v United Kingdom (1997) 27 EHRR 296.  

The decision in Johnson
17.	In Johnson a Tribunal decided that a restricted patient was entitled to a conditional discharge, subject to conditions which included residence at a hostel.  No hostel could, however, be found which was prepared to take the patient.  In consequence the patient remained detained.  It is important to note the following reasons given by the Tribunal for its decision:

	“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.”

18.	The Court found that there was no reason to find that the Applicant’s continued detention was not in conformity with the substantive and procedural rules applying under English law.  The Court went on, however, to consider whether the position prevailing under English law was consistent with the obligations imposed by Article 5(1):

		“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

19.		Since 2nd October 2000 English Courts have been required, insofar as it is possible to do so, to read and give effect to legislation in a way which is compatible with the Convention rights.  In so doing account must be taken of the Strasbourg jurisprudence - see Sections 2 and 3 of the Human Rights Act 1998.  These requirements override the respect that would otherwise have to be given to binding precedent.  It is at least arguable that this approach is not required, or even permitted, where what is in issue is the legitimacy of acts and omissions occurring before 2nd October 2000.  Nonetheless, where there is no conflict with precedent, the correct approach has always been to attempt to interpret legislation in a manner which is consistent with this country’s obligations under the European Convention.  I propose first to consider the interpretation of Section 117 of the MHA on the basis of the law as it was prior to 2nd October 2000.  I shall then make some observations on the effect of the Human Rights Act 1998.  

The interpretation of Section 117
20.		The relevant provisions of Section 117(2) are set out at paragraph 19 of Burton J’s Judgment.  On their face they require the Health Authority to provide after care services for persons who cease to be detained and leave hospital.  Decisions at first instance, to which I am about to refer, have held that the duty of a Health Authority extends to making arrangements for the care of a patient before that patient is discharged.  Before Burton J., the Respondent Authority reserved its position as to whether these decisions were correct.  Before us it has made the following limited concessions:
(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.

21.	In contrast the Appellant contends that, where a Tribunal decides that a conditional discharge shall be subject to specified conditions, a Health Authority is placed by Section 117 under an absolute obligation to ensure that those conditions, so far as they relate to medical care, are fulfilled.  Each party seeks to support its case by reference to the decision of Otton J. in R. v Ealing District Health Authority, ex p. Fox [1993] 3 All ER 170.  

The decision in Fox
22.	In Fox a Tribunal directed that the applicant, who was a restricted patient, should be conditionally discharged, the discharge to be deferred until the Tribunal was satisfied that certain conditions could be met.  These included the provision of appropriate after care services and supervision by a RMO.  These conditions were not satisfied because relevant medical professionals declined to accept responsibility for the patient on the ground that his condition had deteriorated since the Tribunal’s decision to the extent that there was a substantial risk that the applicant would commit a violent offence if released into the community.  In those circumstances the Authority took no further steps to comply with the conditions.  Otton J. held that the Authority had not complied with its duty under Section 117.  
23.	For the Appellant, Mr Drabble, Q.C., relied upon the following passage from Otton J’s judgment at p.181:

		“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.”

24.	For the Respondent Mr Béar relied upon the following passage at the next page:

		“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).”

25.	Mr Béar submitted that the Respondent Authority had complied precisely with the requirements there laid down by Otton J.
26.	I am in no doubt that Otton J’s judgment supports the Respondent’s case and not that of the Appellant.  Otton J. declared at p.183 that the Health Authority had ‘erred in law in not attempting with all reasonable expedition and diligence to make arrangements so as to enable the Applicant to comply with the conditions imposed by the Mental Health Tribunal.’  He added that a District Health Authority was under a duty under Section 117 to provide after care services when a patient left hospital and acted unlawfully in failing to seek to make practical arrangements for after care prior to that patient’s discharge from hospital.  Thus the judgment held that the Health Authority was under a duty to use all reasonable endeavours to satisfy the Tribunal conditions, not that it had an absolute obligation so to do.  
27.	Fox was considered by Scott Baker J. in R. v Mental Health Review Tribunal and Others, ex p. Hall [1999] 3 All ER 132.  The Judge there held that a Tribunal had acted unlawfully in making a conditional discharge subject to conditions which were not reasonably capable of implementation within a reasonable time.  It was implicit in the judgment that the Health Authority was not under an absolute obligation to ensure that the conditions could be satisfied.  The Judge held that the Health Authority should have prepared a care plan for the Tribunal which would have led to the Tribunal specifying arrangements which were practical.  
28.	This decision was reversed on appeal - [1999] 4 All ER 883.  The Court of Appeal concluded that the conditions imposed by the Tribunal were reasonable and that the Health Authority could have been expected to implement the conditions within a reasonable time.  Nothing in this decision suggests that Health Authorities are under an absolute obligation to comply with whatever conditions may be imposed by a Tribunal, whether reasonably practicable or not.
29.	In my judgment Section 117 imposes on Health Authorities a duty to provide after care facilities for the benefit of patients who are discharged from mental hospitals.  The nature and extent of those facilities must, to a degree, fall within the discretion of the Health Authority which must have regard to other demands on its budget.  In relation to the duty to satisfy conditions imposed by a Tribunal, I would endorse the concession made by the Respondent Authority as to the extent of its duty.
30.	Putting on one side the question of compliance with Article 5 of the ECHR, I can see no justification in interpreting Section 117 so as to impose on Health Authorities an absolute obligation to satisfy any conditions that a Tribunal may specify as prerequisites to the discharge of a patient.  The Section does not expressly impose any such requirement, nor is it reasonable to imply such a requirement.  The Appellant’s suggested interpretation would place upon Health Authorities a duty which, on occasion, would be impossible to perform.  The Appellant’s skeleton argument suggested that there was more that the Respondent Authority could have done to persuade a forensic psychiatrist to provide the after care required by the Tribunal.  The decision of the Judge was to the contrary, and there is no basis upon which that decision can be challenged.  An interpretation of Section 117 which imposed on Health Authorities absolute duties which they would not necessarily be able to perform would be manifestly unreasonable.  
31.	Is an unreasonable interpretation of Section 117 nonetheless one that should be reached in order to procure compliance with the obligations imposed by Article 5 of the ECHR.  In my judgment it is not. My reason, in short, is that the Appellant’s interpretation would not ensure compliance with Article 5.  I shall develop this point in the next, and final, section of my Judgment, which considers the effect of the Human Rights Act.

Human Rights
32.	Does the legislative scheme, as interpreted in Campbell, violate the right to liberty conferred by Article 5 of the ECHR?  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 the case of Johnson, 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 in Winterwerp 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 Strasbourg 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 Strasbourg Court in Johnson.  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(e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless 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 suggests that the statutory regime as interpreted in Campbell, 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 Campbell.  If Section 73 were to be interpreted in the manner proposed by Woolf J. in Campbell, 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.
37.	For the reasons that I have given I consider that this appeal should be dismissed.
BUXTON LJ:
38.	I agree with the conclusion of the Master of the Rolls in paragraph 30 of his Judgment that section 117, when interpreted without reference to the ECHR, does not impose on Health Authorities the absolute obligation asserted by the Appellant.  I also agree that in the circumstances of this case no separate relief is available through the application of the ECHR or the Human Rights Act.  Since my reasons for reaching the latter conclusion differ in some respects from those of the Master of the Rolls, I venture to say something more about that aspect of the case.
39.	The effect of article 5(4) of the ECHR is to entitle a person in the situation of Miss K 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 [MHRT].  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 (1981) 4 EHRR 188 that is set out in paragraph 12 of my Lord’s Judgment.
40.	In the present case, the MHRT concluded that the detention of Miss K would be unlawful once the conditions upon which her release was contingent were put in place.  Those conditions, in particular, included co-operation by Miss K 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 UK 27 EHRR 296 at paras 66 and 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 MHRT 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 my Lord, in paragraph 32 of his Judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community; and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless 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, to the prospect of recurrence.  In both cases, there is continued detention; the role of the MHRT 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 MHRT in either case.
43.	There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is “of a kind or degree warranting compulsory confinement” to decisions that were not taken with that formulation expressly in mind.  In Miss K’s case, the MHRT answered “Yes” to the question: “Is the Tribunal satisfied that the patient is not now suffering from mental illness…..of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?”; but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment.  That is not a clear-cut decision of the type that Winterwerp seems to assume.
44.	However that may be, under the ECHR jurisprudence referred to in paragraph 5 above, once the MHRT made a decision as to Miss K’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, of indefinite deferral of the release that had been ordered by the MHRT.  That deferral would arguably entail a breach of the ECHR.  The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, 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 Miss K’s detention became unlawful I have not overlooked my Lord’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 ECHR terms is the ruling of the MHRT, the determining body created by Article 5(4).  If the ruling of the MHRT is frustrated, in a case where under the ECHR 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 ECHR would have held in Johnson had the issue not been determined already under Article 5(1): see paragraphs 69-72 of the Judgment.
46.	I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in commonsense terms, but also in view of the emphasis placed in the jurisprudence of the ECHR upon the judgement of the national authorities: see for instance the observations of the Court in Luberti v Italy (1984) 6 EHRR 440 at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the Judgment in Johnson as to the respect to be paid to the discretionary judgement of those responsible for dealing with the mentally ill.  The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of my Lord’s Judgment.  If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in Campbell, then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the ECHR.  That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5(4) requires to be respected.
47.	However, (quite apart from their effectively academic nature) it by no means follows from a provisional conclusion that Miss K may have been deprived of her ECHR rights that she is entitled to any relief in these proceedings. In Johnson, in the Strasbourg Court, all that it was necessary to demonstrate, and all that the court found, was that “the State”, generally understood, had committed a breach of Article 5.  It was not necessary for the Court to identify, and it did not do so, which of the various organs of the State that were involved with Mr Johnson had, looked at by itself, committed that breach.  That issue cannot, however, be avoided when the question is raised in domestic litigation, because it is then necessary to identify precisely what is the nature of the breach of Article 5, in order to determine whether the particular organ of the State against which relief is sought is guilty of that breach.
48.	Approaching this case on that basis, Miss K may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained.  The State is responsible for the whole of these circumstances.  That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT’s decision: see the last sentence of paragraph 67 of the Judgment.  The circumstances of Miss K’s case might, therefore, by the same token found a successful complaint in Strasbourg.  
49.	If, however, that complaint is to be articulated in domestic law terms, it cannot be directed at “the State” at large, but rather at the organ or organs of the State, the public authorities, that are responsible for the breach.  Being a complaint about detention, it would seem that the complaint would have to be directed at the organ of the State actually responsible for Miss K’s detention: that is to say, the authority responsible for Chase Farm Hospital.  Such an action would not depend on any actual fault on the part of that authority, but upon the fact that, implementing the arrangements made by the State, that authority had detained Miss K when by reason of Article 5(4) she should not have been detained.
50.	That, however, is in my view all that Article 5(4) imposes in the present context upon organs of the State.  I see no reason for concluding that article 5(4) imposes any duty on the Health Authority to do that which it cannot do.  Nor does it require section 117 to be interpreted in relation to orders of the MHRT in terms different from its general meaning, so as to put an absolute duty upon the Health Authority. That would be a surprising and manifestly unreasonable outcome.  Nor is such an obligation necessary in order to vindicate Miss K’s rights under Article 5(4): which, I would venture to think, would be the only basis upon which intervention of the court in order to secure compliance with the ECHR jurisprudence could be justified.
51.	Accordingly, although Article 5(4) may in the circumstances of this case entitle Miss K to a remedy against the public authority that acts on behalf of the state, that remedy is in respect of her detention, and therefore exigible, if at all, against the body that is detaining her: which the Health Authority plainly is not.  This may appear to be a narrow or technical conclusion.  However, if relief were available against the Health Authority, it would have to be relief of a nature, the provision of particular treatment, that on no view is required by the ECHR: see for instance paragraph 51 of the Judgment in Winterwerp.  That consideration renders these proceedings inept even if the general argument as to a breach of the ECHR were to prevail.  
SEDLEY L.J.
52.	If a person detained against her will becomes entitled to her liberty provided that certain conditions are met by the State, then it is incumbent on the State to meet them if it reasonably can.  Although I would regard this as a proposition of public law, informed as it now is by Article 5(1)(e) of the Convention, the State is not an entity recognised by English public law in its present stage of development.  The detaining authority, which English public law regards as the answerable entity, may have a sufficient answer to a charge of unlawful detention if it shows that it is others who are obstructing release, even if those others are themselves performing State functions.  Any public law challenge has therefore to proceed against the offending public body or officer - if there is one.
53.	In the present case it was doctors working for the North London Forensic Service, a limb of the Enfield Community Care NHS Trust, who formed the professional judgement that they could not responsibly undertake Miss K’s supervision in the community.  If such an attitude were shown to have been adopted less as an exercise of professional judgement than as a closing of the ranks against an unwelcome decision of the Mental Health Review Tribunal, the courts would not be powerless to intervene.  But if, as there is no reason to doubt happened here, there is an honest difference of professional judgment, the condition of practicability is simply not met and - for the reasons analysed by Lord Phillips MR - discharge is for the time being not lawfully possible.  I agree, however, with Buxton LJ that the difference between the Winterwerp class of case and the Johnson class of case is one of degree, not of kind.  As the judgment of the Master of the Rolls demonstrates, they illustrate the differential effect of a single principle on different fact situations.
54.	While Article 13 of the Convention is not among those scheduled to the Human Rights Act 1998, its requirement that there must be an effective remedy for violations of Convention rights reflects the longstanding principle of our law that where there is a right there should be a remedy.  Parliament’s intention was, of course, that the Human Rights Act itself should constitute the United Kingdom’s compliance with Article 13; but this makes it if anything more important that the courts, as part of the State, should satisfy themselves so far as possible that the common law affords adequate control, in conformity with Article 13, of the legality of official measures which interfere with personal autonomy.
55.	As it seems to me, the level of available redress, by judicial review rather than appeal, is an appropriate one. No judge can realistically sit as a court of appeal from a psychiatrist on a question of professional judgment.  What a judge must be able to do is to ensure that such judgment, to the extent that its exercise is a public law function, is made honestly, rationally and with due regard only to what is relevant.  Within this boundary more than one legitimate judgment - that of the community psychiatrist as well as of the MHRT - may have to be accommodated for the purposes of Article 5(4), at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.
56.	For these reasons I am rather less positive than Buxton LJ in looking to Strasbourg to afford Miss K a remedy that cannot be afforded here.  It seems to me, as I believe to Lord Phillips MR, that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.
57.	I agree that this appeal fails.

ORDER:
1.	Appeal dismissed with costs, subject to section 11 of the Access to Justice Act 1999 with the appellant’s liability assessed at nil.
2.	Appellant’s costs to be assessed by Community Legal Services.
3.	Leave to appeal to the House of Lords refused.
(Order does not form part of approved Judgment)