England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ELIAS J.)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2002.

Lord Justice Keene:

1. This appeal concerns the extent of a Mental Health Review Tribunal's powers to attach conditions to a direction to discharge a restricted patient from the hospital where he is detained.
2. P.H. is now aged 77. He has been detained in Broadmoor Hospital for some 44 years, having been admitted in 1958 after having been found unfit to plead to two counts of wounding with intent to cause grievous bodily harm. He had broken into the family home of a child actress with the intention of killing her and had attacked her parents when they intervened. He was ordered to be detained at Her Majesty's pleasure under the legislation then in force, with the result that he is currently detained under the provisions of section 46 of the Mental Health Act 1983 ("the Act"). He continues to suffer from chronic paranoid schizophrenia and to express fixed delusional beliefs. He has poor physical health and, because of an injury to his throat, he can only receive food via a permanent tube to his stomach.
3. The matter comes to this court on appeal from a decision of Elias J. On 12 October 2001 the relevant Mental Health Review Tribunal ("the Tribunal") had decided to direct that P.H. be discharged but that the discharge should be deferred until satisfactory arrangements had been made to meet the conditions which it imposed. The Secretary of State for the Home Department sought judicial review of that decision, principally on the basis that the conditions imposed fell outside the scope of the powers of the Tribunal. Elias J. granted permission to seek judicial review but concluded that the Tribunal had not acted unlawfully. He therefore refused to quash its decision. The Secretary of State now appeals against Elias J.'s decision. There is also a cross-appeal and an application to cross-appeal by P.H. as an interested party, to which matters I shall come later in this judgment.
4. The history of this matter is covered in detail in the judgment of Elias J. ([2002] EWHC 1128 (Admin)) and I need therefore only summarise it here. On 24 January 2001 P.H.'s solicitors applied to the Tribunal for an order discharging him. Reports were duly submitted by his Responsible Medical Officer, Dr. Andrew Horne, and by a Senior Social Worker at Broadmoor. At that stage the opinion was that it was still appropriate for P.H. to be detained in hospital but that he could be transferred to conditions of low security. That had in fact been the recommendation on a number of previous occasions by the Tribunal, but the Secretary of State, whose decision it is to alter the level of security for such patients, as opposed to a decision on discharge, had not accepted that recommendation.
5. However, at a hearing before the Tribunal on 24 May 2001, Dr. Horne expressed the view that P.H. did not need to be detained in hospital, so long as appropriate conditions were imposed on his discharge to ensure that his needs could be met in the community. As the Secretary of State had had no opportunity to comment on this new proposal, the Tribunal adjourned the hearing. Further reports were then submitted, both by Dr. Horne and the Senior Social Worker and by an independent psychiatrist, Dr. Somekh, on behalf of P.H. and by a social worker from the responsible social services authority. The Secretary of State did not submit any psychiatric evidence but submitted statements expressing the view that P.H. still required detention in hospital. In his further report Dr. Horne explained the reasons for his change of view, noting that when P.H. was in his usual state of mind he was a co-operative and sensible man and adding:

"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.

6. The Tribunal reconvened on 12 October 2001 and heard oral evidence from those who had submitted reports, as well as from P.H. and his brother. All the expert witnesses supported conditional discharge. The Tribunal concluded that it was satisfied that PH was not now suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment. It also found that it was not satisfied that it was not appropriate for the patent to remain liable to be recalled to the hospital for further treatment.

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."

7. In addition, the Tribunal exercised its powers under section 73(7) of the Act to defer the discharge until a number of steps had been taken. These included the completion of a full risk assessment to deal, inter alia, with sharing accommodation with female residents and the use of female escorts, and the provision of a care plan. On this last aspect the decision reads as follows:

"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."

8. The reasons given by the Tribunal for these conclusions included the following:

"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."

9. A number of grounds were advanced before Elias J. by way of challenge to the Tribunal's decision, but only one is now relied on by the Secretary of State in this appeal. His contention is that the conditions imposed by the Tribunal, in particular conditions 3 and 4, are so restrictive as to deprive this patient of his liberty, with the result that he would continue to be detained, albeit in a situation of lower security. The Tribunal only has the power to discharge a patient from detention and to impose conditions upon discharge. It has no power to direct the transfer of a patient from one detaining institution to another, and therefore in the present case the Tribunal has acted ultra vires.
10. Before coming to consider the detailed arguments advanced in support of this contention it is necessary to deal with the statutory context. As a result of section 46(3) of the Act, the order originally made in respect of P.H., which is now treated as a direction under that section, has the effect of a hospital order together with a restriction order, made without limitation of time. He is therefore a restricted patient. The powers of a Tribunal to discharge restricted patients are provided by sections 72 and 73 of the Act. As the judge below noted, those provisions have recently been amended as a result of the decision in R (on the application of H) –v- Mental Health Tribunal North and East London Region [2001] 3 WLR 512, so as to change the burden of proof, with the result that the Tribunal is now required to be satisfied that detention is justified. That amendment had not been made at the time of the Tribunal's decision, but this case is not affected by the burden of proof and, like Elias J., I consider that it is more helpful to cite the statutory provisions in their current form.
11. Section 72 of the Act deals with the discharge of patients generally, whether restricted or not. Insofar as material for present purposes, it provides:

"(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 …"

12. Section 73 then deals more particularly with the power to discharge restricted patients. The material parts read as follows:

"(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."

13. Some comments were made in Reg. –v- Bournewood Mental Health Trust, ex parte L. [1999] I A.C. 458 about the concept of detention, though principally in the context of the tort of false imprisonment. The emphasis in the speeches of the majority was on the need for there to be an actual, as opposed to a potential, deprivation of liberty before it could be said that a person was detained. But all parties in the present appeal agree that sections 72 and 73 now have to be read, since the coming into force of the Human Rights Act 1998, in a way which is compatible with the European Convention on Human Rights, and in particular with Article 5 thereof. Article 5(1), insofar as relevant provides:

"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.

14. There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5(1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol no. 4 and do not amount to a breach of Article 5. This has been repeatedly spelt out by the European Court of Human Rights in cases such as Guzzardi –v- Italy [1980] 3 EHRR 333, Ashingdane –v- United Kingdom [1985] 7 EHRR 528 and H.M.-v- Switzerland [26 February 2002] application no. 39187/98.
15. Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above.
16. Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. This principle can be seen in two Strasbourg decisions. In Nielsen –v- Denmark [1988] E.H.R.R. 175 a child of about 12 was placed in a hospital psychiatric ward for children as a result of a decision by his mother, based upon medical advice. He claimed that there had been a breach of his Article 5 rights, but the European Court of Human Rights found that the objective of his hospitalisation was the protection of his health. The restrictions imposed were not in principle different from those obtaining in many hospital wards where children with physical disorders were treated. It was concluded that this regime did not amount to a deprivation of liberty within the meaning of Article 5 but was:

"a responsible exercise by his mother of her custodial rights in the interests of the child" – para. 73.

17. The second decision illustrating this principle is perhaps of greater relevance to the present appeal. In H.M. –v- Switzerland the applicant was a woman who at the age of 84 had been placed compulsorily in a foster home. The Court found that she had been placed there by the Swiss authorities in her own interests in order to provide her with necessary medical care and satisfactory living conditions and hygiene. In those circumstances the Court concluded, citing the Nielsen case, that her placement did not amount to a deprivation of liberty within Article 5(1), but was a responsible measure taken by that competent authorities in the applicant's interests. Therefore, there was no violation of Article 5(1).
18. In the present appeal the Secretary of State's case is that the effect of conditions 3 and 4 would be that P.H. would be confined within the institution in which he would reside save when it was possible to provide him with an escort to go out. His excursions into the community would therefore be in practice in the gift of the institution. Mr Mould points to the reference in condition 3 to there having to be "appropriate security" at the home or similar institution, and he submits that this demonstrates that measures were contemplated so as to protect the public against the risk posed by P.H. In the same context, reference is made to the passage in the Tribunal's decision where it requires the Care Plan to deal with "security levels in the building and grounds". The Secretary of State accepts that condition 3, including its reference to "appropriate security", was in part intended to protect the patient himself but it is contended that that was not its sole purpose. The mere fact that someone is held in conditions of low security does not mean that he is not being detained, since there are low security hospitals. It is for the Secretary of State to determine whether a patient should be detained in low security conditions as opposed to high or medium security ones, not for the Tribunal.
19. Mr Mould acknowledges that at the present time one does not have the full detail of the measures contemplated by the Tribunal's conditions. Since the distinction between deprivation of liberty and restrictions on freedom of movement is one of fact and degree (translating Strasbourg jurisprudence into more conventional domestic terminology), this absence of detail forces Mr Mould to accept that he has to demonstrate that the implementation of the conditions will inevitably involve the continued detention of P.H. But he submits that such would be their necessary effect.
20. The judge below did not accept that, and neither do I. It is perhaps regrettable that one is having to assess the effect of these conditions attached to the discharge direction at this stage, without knowing the detail of what would be done in practice. It is clear from the Strasbourg jurisprudence that the practical details of any restriction are of the greatest importance when considering Article 5(1). Phrases such as "appropriate security" can easily cover a range of different measures. Nonetheless, the Secretary of State has accepted the burden of showing that continued deprivation of liberty would be the inevitable effect of conditions 3 and 4, and I am prepared to approach the issue on that basis.
21. The court is assisted by a witness statement made by the President of the Tribunal, Miss Linda Sullivan, Q.C., in which she gives a more detailed account of the Tribunal's thinking. Sometimes this court will be reluctant in judicial review proceedings to take into account witness statements provided after the event by the decision-maker, but in the present case her evidence has a particular relevance, because the terms of the deferment of discharge make it clear that this matter is in any event going to receive further consideration from the Tribunal. The detailed Care Plan, which is to be drawn up, is to be approved by the Tribunal. Since the Care Plan will have to deal with "security levels in the building and grounds, the level of care and supervision … including monitoring of P.H.'s psychiatric state … [and] the provision of escorts", it is obvious that the Tribunal has retained control over the details of the measures required by the conditions imposed. That makes the expression of the Tribunal's views by Miss Sullivan of relevance for present purposes, and that is accepted on behalf of the Secretary of State. Moreover, her evidence also goes to the purpose of the restrictions envisaged, which is agreed to be a relevant consideration.
22. In her statement, Miss Sullivan emphasises that one of the major factors underpinning the Tribunal's approach to the conditions was their awareness of P.H.'s need for assistance and care in respect of his physical needs. She states that:

"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.

23. Nothing in Miss Sullivan's statement or elsewhere in the evidence indicates that the reference to "appropriate security" and the requirement as to escorts were included for the protection of the public. While there is a risk of a relapse in P.H.'s mental condition, that particular risk was seen by the Tribunal as something which could be guarded against by the supervision of him by trained psychiatric staff, who would be able to detect the early stages of what would be a process of deterioration. That part of the conditions does not seem to be regarded as objectionable by the Secretary of State. The features of the proposed regime which are alleged to be so restrictive as to make it one of detention are those of security measures and escorts. But those appear to have been imposed to protect P.H. himself. One can readily understand that, if he has to be accompanied for his own welfare when outside the institution in question, measures would also have to be taken to ensure that he does not wander out of the building and grounds on his own. That in itself necessitates some form of security measures, albeit at a relatively low level.
24. I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty. Condition 3 is sufficiently broadly phrased as to allow for measures which would fall short of such a deprivation, and both it (where it deals with security) and condition 4 have as their purpose the protection of P.H. himself and would therefore be in his interests. I should add that there is some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable P.H. to go out with an escort whenever he chose to do so. On this principal issue, therefore, I conclude that the conditions would not involve his transfer from one state of detention to another state of detention. They are therefore not ultra vires.
25. In the written grounds submitted, the Secretary of State also took the point that any registered care home or similar institution would be likely to qualify as a "hospital" within the extended meaning given to that word by section 79(6) of the Act and that, even if P.H. were not being "detained" there, he would not have been discharged from hospital. This point was based on the decision of Mann J. in Secretary of State for the Home Department –v- Mental Health Review Tribunal for Mersey Regional Health Authority [1986] 1 WLR 1170. In the present case, Elias J. did not feel able to follow that decision, and before us Mr Mould abandoned the point. In my judgment, he was right to do so. I find the reasoning of Elias J. at para. 30 of his judgment compelling. If a patient is discharged from detention, that is still an effective discharge, even though he may be required to reside in another institution which qualifies as a "hospital". So long as he is not detained there, the Tribunal has lawfully discharged him.
26. There remain the matters raised on behalf of P.H. by way of cross-appeal. Elias J. rejected a submission that permission to seek judicial review should be refused because of undue delay on the part of the Secretary of State. That decision was challenged at the outset of this appeal hearing and we indicated, after hearing argument, that we regarded the challenge as ill-founded. The basic facts are that the Tribunal's decision was dated 12 October 2001; the Home Office received a copy of the decision on 22 October 2001; it filed its claim form on 28 December 2001. That last action was within the 3 months stipulated by CPR Part 54.5.1, but that rule also requires the claim form to be filed "promptly". Elias J. found that it had not been filed "in certain respects" as promptly as it ought to have been, but for a number of reasons he would not have refused on this ground permission to seek judicial review nor would he have refused substantive relief on this basis.
27. On behalf of P.H., Mr Bowen accepts that the judge was entitled to find that there was good reason to extend time, given that issues of the safety of the public were involved. But he argues that there was substantial prejudice to P.H.'s rights as a result of the undue delay, which would justify a refusal of relief under section 31(6) of the Supreme Court Act 1981. In particular it is said that the delay violated P.H.'s rights under Article 5(4), set out earlier in this judgment, since that paragraph requires the lawfulness of a person's detention to be decided "speedily". Eleven weeks between decision and the filing of the claim form prejudiced a speedy decision. Mr Bowen submits that the Secretary of State should have launched judicial review proceedings within days of the Tribunal's decision.
28. It is to be noted that it is accepted on behalf of P.H. that the word "speedy" in Article 5(4) has to be considered in the context of the facts of the particular case, the usual approach to the interpretation of the Convention. It is conceded by Mr Bowen that one of those facts, relevant to this issue, is that P.H. could not have been released in practice from Broadmoor until a Care Plan had been drawn up and approved by the Tribunal. No such steps had been taken by the time when the Secretary of State's challenge had been lodged, and it is also accepted that the passage of some 11 weeks between the Tribunal's decision and the filing of the claim form did not materially extend the time P.H. spent in detention.
29. To my mind that is a significant factor when assessing whether there was here any breach of his Article 5(4) rights. Certainly there can be a breach where a decision is delayed, even though the ultimate decision is not to discharge. But here, there had already been a decision to discharge, but actual discharge had been deferred, and the period of deferment was (and is) proving to be considerable while suitable arrangements are being investigated and put in place. In those circumstances I cannot accept that any delay on the part of the Secretary of State deprived P.H. of a speedy decision on his case. Moreover, while it is important that delay is avoided where the liberty of the subject is involved, one would not encourage the launching of judicial review challenges "within a matter of days" in a case such as this, because of the danger that that would lead to proceedings being begun without adequate reflection. That too has the potential for harming the rights of the individual.
30. In the circumstances of this case, I can see no basis on which this court can or should interfere with the judge's exercise of his discretion on this aspect of the case. I would dismiss this cross-appeal.
31. Finally, there is a renewed application on behalf of P.H. for permission to appeal on the issue of costs. What happened below was that the judge awarded costs against the Secretary of State in favour of the Tribunal but refused costs to P.H. He did so on the basis that it was very exceptional for a claimant in judicial review proceedings to have to pay two sets of costs, even though it was acknowledged that the court had been greatly assisted by the contribution on behalf of P.H.
32. Reference is now made on behalf of P.H. to the decision of the House of Lords in Bolton Metropolitan District Council –v- Secretary of State for the Environment [1995] 1 WLR 1176, where Lord Lloyd of Berwick, giving the leading speech, set out certain principles applicable to decisions on costs in planning cases where there are two or more successful parties. He dealt in particular with the situation where the Secretary of State and the developer were the successful respondents, and he stated that:

"(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.

33. I agree with that proposition. One of the points emphasised by Lord Lloyd in the Bolton case was that there are no hard and fast rules:

"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.

34. One is always very conscious that this court is and should be reluctant to interfere with an exercise of discretion by the court below, especially over an issue of costs. Only where the decision is clearly wrong should this court intervene. But in my judgment this is such a case. In principle, P.H. should have been awarded his costs against the Secretary of State for the reasons I have indicated. I would therefore grant the application for permission to cross-appeal on this issue and allow the cross-appeal.
35. In summary, I would dismiss the appeal by the Secretary of State, dismiss the cross-appeal by P.H. on the issue of delay but allow his appeal as to costs below.

Sir Anthony Evans:

36. I entirely agree.

Lord Justice Kay:

37. I also agree.
Order: Appeal dismissed, cross-appeal dismissed in part but in part allowed. Cost order as per agreed draft. (Order does not form part of the approved judgment)