COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ELIAS J.)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
SIR ANTHONY EVANS
| The Secretary of State for the Home Department
|- and -
|Mental Health Review Tribunal
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Miss J Richards (instructed by the Treasury Solicitor) for the Respondent
Mr P Bowen (instructed by Scott-Moncrieff Harbour & Sinclair, London NW5 1LB) for the Interested Party
Crown Copyright ©
Lord Justice Keene:
"When his mental state deteriorates it happens slowly and the signs are apparent to people around him, and I think that provided the hostel staff and supervisors were properly briefed a relapse would be detected at an early stage."
He concluded that it would be appropriate for P.H. to be discharged conditionally, provided that there was a condition that he must be escorted at all times when outside his place of residence. Dr. Somekh agreed with Dr. Horne's views.
It therefore directed his conditional discharge. Four conditions were imposed, as follows:
"1) [PH] continue to take and receive medication as prescribed.
2) [PH] accept and comply with regular supervision by a consultant psychiatrist and social supervisor.
3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security.
4) [PH] shall not leave the accommodation without an escort."
"Once suitable accommodation has been identified, a detailed Care Plan is provided to the Tribunal and approved by them. The Care Plan is to deal with, inter alia,
(a) security levels in the building and grounds;
(b) the level of care and supervision on a 24 hour basis including monitoring of [P.H.]'s psychiatric state, in particular with regard to his attitude to women;
(c) the provision of escorts outside the accommodation;
(d) contingency plans in the event of a relapse."
"The unanimous evidence before the Tribunal was that [PH] no longer complied with the statutory requirements for detention in hospital. We accept that evidence. [PH] continues to suffer from chronic paranoid schizophrenia for which he receives necessary medication, with which he is compliant. He continues to express fixed delusional beliefs concerning women's responsibility for causing disasters and some other beliefs about crustaceans, nevertheless, he has not shown any aggressive behaviour for 7 years and that last incident was related to a mistaken absence of medication for which [PH] was not responsible [PH] has been in an institution for many years and the transfer to a new, less secure environment could prove stressful but the uncontroverted evidence from the RMO and [PH]'s independent psychiatrist, Dr. Somekh, was to the effect that if there were a relapse it would be apparent and detected rapidly by trained staff. We recognise the difficulty in finding appropriate specialist accommodation to meet [PH]'s needs and management of possible risks, including a relapse, which is why we consider it appropriate for him to be subject to recall."
"(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied
(i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health or safety of a patient or for the protection of other persons that he should receive such treatment "
"(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 satisfied
(a) as to the matters mentioned in paragraph (b)(i) or (ii) above of section 72(1); and
(b) 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 the Tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the Tribunal shall direct the conditional discharge of the patient.
(7) A Tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the Tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case come before the Tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given."
"Everyone has the right to liberty and security of the person. No one should 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 "
Article 5(4) states:
"Everyone who is deprived of his liberty by arrest or detention should be entitled to take proceedings by which the lawfulness of his detention should be decided speedily by a court and his release ordered if his detention is not lawful."
Consequently it is common ground that a person is "detained" within the meaning of the Act if he is in Article 5 terms deprived of his liberty.
"a responsible exercise by his mother of her custodial rights in the interests of the child" para. 73.
"in view of his long incarceration, [P.H.] would require (initially at least) a significant amount of support in terms of his interaction with the public and with the outside world."
The reference in condition 3 to "appropriate security" was not intended to suggest that he needed to be in any kind of locked facility, but that there would be a degree of supervision in place for the benefit of the residents, such as that which obtains for residents with problems such as dementia who would not be best placed to safeguard their own welfare. As for the requirement that he be escorted when outside the home, this, according to the witness statement, was imposed so as to facilitate rather than inhibit his freedom. The Tribunal was aware that he had not lived in the outside world for many years and there were concerns that he would become disorientated or would find it difficult to cope with such things as traffic and the value of money, especially since decimalisation.
"(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case." (page 1178 H)
It is submitted that a patient detained under the Act has a very special interest, since his liberty is at stake and that it was wrong in principle for him to be denied his costs.
"As in all questions to do with costs, the fundamental rule is that there are no rules." (page 1178F)
Principles suggested for planning cases cannot therefore simply be transported without modification to other areas of judicial review. But the significance attached in Bolton to whether or not a party has an interest requiring separate representation does seem to me to have relevance to the present case. P.H. was not merely an interested party, he was someone whose personal liberty was at issue in the case. To suggest that he might have more sensibly decided not to appear but to have left his interests to be defended by the Tribunal and its representative is to say that he should have been content to leave the issue of his detention or his liberty to be at the discretion of the Tribunal in its conduct of the case. I cannot accept that, where the liberty of the subject is involved, the subject is not entitled to be represented and, if he succeeds in the proceedings, normally not to have his legal costs paid by the losing party. Of course, there may be exceptions to this, but there are no factors in the present case which suggest that P.H. should not have got his costs. The point has in fact been made that one of the arguments successfully advanced below, namely that the decision in Mental Health Review Tribunal for Mersey R.H.A. should not be followed, was put forward on behalf of P.H. and not dealt with by the Tribunal. That strengthens the case for a second set of costs to be awarded.
Sir Anthony Evans:
Lord Justice Kay: