England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Mitting J
C080482006

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2007

Lord Justice Toulson :

1. The appellant MM challenges the legality of orders made by the Home Secretary in March 2006 and September 2006, directing his recall to a mental hospital under section 42 of the Mental Health Act 1983 ("the Act"). Mitting J rejected his challenge but gave permission to appeal: [2006] EWHC 3056 (Admin).

Background

2. MM has the misfortune to suffer from paranoid schizophrenia and has a long history of hospital admissions. He also has a long history of drug abuse.
3. His first psychiatric admission was in 1989 at the age of 18. In May 1996 he was convicted of an offence of unlawful wounding contrary to s 20 of the Offences Against the Person Act 1861. He attacked a man who he believed was having an affair with his girlfriend and struck him on the leg with a hammer. For this offence he was made the subject of a hospital order under s 37 of the Act with a restriction order under s 41.
4. In June 1997 he was conditionally discharged on the direction of a Mental Health Review Tribunal ("MHRT"). Since then there has been a history of recalls by the Home Secretary under s 42, followed by further conditional discharges. His longest period of recall was from February 2004 to December 2005. On 13 December 2005 he was conditionally discharged on the direction of a MHRT which had received reports from his responsible medical officer ("RMO"), Dr Vovnik, dated 18 November 2005, and his approved social worker, Mr Williams, dated 24 November 2005.
5. Dr Vovnik wrote in his report:

"At this point I feel that a further stay in a low secure unit may become counter-productive as we have reached a therapeutic point where he is as well [as] he is ever going to be with regards to his schizophrenia. It is clear that his response to medication is excellent and that while on the medication he quickly gets well and stays well. As Dr ….points out if he is going to relapse in the future it will be due to the lack of compliance and the use of illicit substances. …"

Given that he is mentally very well and that his personality issues which include impulsivity when frustrated are unlikely to change even if he should remain detained for an extended period I believe at this point conditional discharge would be appropriate. …

Given his impulsive personality I would advise that the threshold for considering an assessment under the Mental Health Act is low should his mental state suggest psychotic relapse."

6. Mr Williams wrote in his report:

"MM has a long history of mental illness with many hospital admissions and an often chaotic lifestyle associated with illicit drug use and poor concordance with treatment. Having been recalled to hospital on three occasions under the conditions of section 37/41 he remains convinced that this represents a miscarriage of justice and shows little insight into how his actions have warranted this intervention…In spite of the difficulties represented in this report I would recommend at this time a conditional discharge in order to test his ability to more adequately manage his own mental health and illicit drug use. This I feel could be closely monitored by the Knowsley Assertive Outreach Team with mutually agreed priorities and clearly set boundaries in a planned intervention."

7. In directing his conditional discharge the MHRT stated:

"After reading and hearing the evidence…we are not satisfied that this patient's mental illness presently meets the statutory criteria for his lawful detention in hospital for treatment.

We heard that there has been an overall improvement in [MM's] mental state. He has not shown any psychotic symptoms. He has abstained from the use of illicit drugs. He has shown a certain degree of cooperation with his clinical team. There has been an apparent increase in the level of his insight into his mental illness and the effect drugs have had and are likely to have thereon…

We recognise that MM has a history of non-compliance with his medication resulting in a deterioration of his mental health and recall to hospital on three occasions following his conditional discharge. We are satisfied that he needs to remain subject to recall in the event of a further relapse and a return of the symptoms of his paranoid schizophrenia."

8. The conditions imposed by the MHRT included that MM should reside at his parents home, that he should accept treatment from Dr Capstick (a psychiatrist), that he should accept supervision from the Knowsley Assertive Outreach Team, that he should accept social supervision from Mr Williams and that he should submit to random drug testing. MM was discharged into the care of Dr Ibitoye as his Community RMO. Dr Capstick was a member of Dr Ibitoye's team.

The March 2006 recall

9. On 11 January 2006 Dr Capstick saw MM. He admitted to her that he was using cannabis regularly, which he insisted was purely for relief of chronic shoulder pain. She warned him that if she was aware that his cannabis use was impacting on his mental health she would take steps to inform the Home Office and have him recalled. Dr Capstick set these matters out in a letter to MM's general practitioner dated 17 January 2006.
10. On 27 February 2006 Mr Williams rang the Mental Health Unit ("MHU") of the Home Office to say that MM's father had contacted him with concerns about MM's behaviour. MM had admitted to taking rock cocaine and was associating with other drug users. He had also recently refused to take a drug test. Mr Williams expressed a view that there was a "clear relapse signature".
11. On 28 February 2006 Dr Capstick wrote to the MHU, enclosing a copy of her letter to MM's general practitioner dated 17 January 2006 and referring also to the more recent information from Mr Williams. In the letter she wrote:

"Historically, [MM's] placement in the community fails due to his return to illicit drug use and resultant relapse of his mental illness…In view of the rapidity with which he can relapse and the danger he poses when unwell we felt it was important to bring this to your attention immediately."

12. In the light of those developments on 2 March 2006 an official of the MHU decided on behalf of the Home Secretary to recall MM to hospital. This was the first of the two recalls which MM contends was unlawful.
13. On the following day the Home Secretary referred MM's case to a MHRT under s 75(1)(a) of the Act.

Judicial Review

14. On 29 March 2006 MM issued proceedings for judicial review of the decision to recall him. On 10 April permission was refused by Wilkie J on paper. At that stage the MHRT was due to consider MM's case on 25 April. MM's legal advisers took the sensible view that in the circumstances there was no practical purpose in pursuing his claim for judicial review, because even if leave to apply for judicial review was obtained on an oral application, there was no realistic prospect of the matter being dealt with substantively prior to the MHRT's decision.
15. The MHRT met on 25 April and 9 May 2006, and on the latter date it ordered MM's conditional discharge. It had a report from Dr Vovnik dated 10 April 2006 in which he said:

"On admission he expressed frustration at being brought back into hospital but was generally pleasant and co-operative. I noted that he had lost weight since his discharge. There was no evidence of thought disorder, auditory hallucinations or any other symptoms of psychosis. Having established that his mental state was unchanged from the time of discharge I applied to the Home Office for Leave. He was granted escorted leave. Since his admission to hospital he has not shown any signs of psychosis…

He has a tendency to push boundaries and does not tend to learn from mistakes…The use of illicit substances has been a strong feature of his history. He has used cannabis, cocaine, ecstasy and heroin. He has attended a substance misuse programme and he was given methadone for two years and has come off the methadone completely. He admitted using cannabis and cocaine on one occasion since his last discharge.

[MM's] mental state has remained free of psychosis throughout his current admission…I do not believe his current mental state warrants his detention in hospital. However, given extensive forensic history and complex mental health needs, an enchanced package of care which includes regular monitoring of mental state by his Care Coordinator and continued treatment with depo, anti psychotic medication will be required for [MM] to live successfully in the community. Given the fact that he is free of psychosis and his mental state is stable, I recommend conditional discharge from this hospital."

16. The conditions of discharge required MM, among other things, to accept social supervision by Mr Neil Callan as his Care Coordinator and from Mr Gary McDonald as his Social Supervisor, and to submit to random drug testing.

The June 2006 recall

17. On 5 June 2006 the Home Secretary issued a claim for Judicial Review of the MHRT's decision to discharge MM.
18. On 8 June 2006 Mr Callan contacted the MHU to say that MM had tested positive for cocaine. On the following day a fresh order was made for MM's recall. That order has not been the subject of legal challenge.
19. The Home Secretary did not pursue his application for Judicial Review of the May discharge, since it had been overtaken by the June recall.
20. On 4 September 2006 MM was again conditionally discharged on the order of a MHRT. The conditions required him, among other things, to abstain from illicit drugs, to submit to drug testing and to keep in regular contact with his Care Coordinator and the Community Health Services.
21. In its reasons the MHRT stated:

"The patient was recalled to hospital for breaking one of the conditions attaching to his conditional discharge on 9.5.06 namely the taking of illicit drugs. That was triggered by the patient learning that the Home Office were intending to Judicially Review the discharge order of 9.5.06 …

Since his recall he has not exhibited any psychotic features which is confirmed by the clinical team. He has been involved since his admission with a drug rehabilitation team which can continue three times a week in the community and which he has so far attended on six occasions."

The September 2006 recall

22. On 12 September 2006 Dr Ibitoye wrote to MM's general practitioner saying that he had visited MM on the previous day for an assessment with MM's Social Supervisor and Community Psychiatric Nurse. MM had tested positive for drugs but was not showing psychotic systems and was anxious about possible recall to hospital, insisting that he remained mentally well. Dr Ibitoye said that "We repeated our usual advice for total abstinence from illicit substances".
23. Dr Ibitoye faxed the letter to the Assertive Outreach Team. On the following day he had a telephone discussion with an official in the MHU. In a witness statement Dr Ibitoye described the conversation:

"The MHU wanted to discuss what further action, if any, I considered to be appropriate in the circumstances and we discussed the options of recall to hospital and issuing MM with a warning letter. I explained to the MHU that when I reviewed MM on 11 September 2006 he had promised to abstain from illicit substances and was very worried about the possibility of being recalled to hospital. We therefore agreed that a warning letter would be the most appropriate action in the circumstances."

24. On the same day the MHU sent a letter to MM reminding him of his conditions of discharge and saying:

"Use of illicit drugs is behaviour that is likely to lead to deterioration in your mental health, and as you will doubtless recollect has lead to your recall to hospital on a number of occasions in the past. It is, therefore, in your own best interest to comply with all the conditions on which you were discharged to avoid being recalled.

It must be clearly understood that this letter should be considered a final warning. Should you test positive for illicit substances in the future, we will have no option other then to immediately recall you to hospital.

Copies of this letter have also been sent to Dr Ibitoye and Gary McDonald."

25. On 18 September 2006 Miss Sarah Denvir, a Casework Manager in the MHU, recorded in an attendance note (which she confirmed in a witness statement):

"Gary McDonald rang to say that [MM] had had a drugs screen and had tested negative for cannabis and cocaine, but positive for amphetamines. This is despite our warning letter of 14.9.06. I said we would be likely to recall but I wanted Dr Ibitoye's confirmation of this. Gary and I agreed that he would go ahead with arrangements to get [MM] assessed by the hospital in Blackpool where he would be admitted. Dr Ibitoye rang a bit later and agreed that recall was appropriate and that the assessment should go ahead. He promised to ring me back tomorrow."

26. A further entry on the following day confirmed that Dr Ibitoye had rung, as promised, saying that MM had been assessed and would be admitted to a low secure unit at Regency Lodge, Blackpool.
27. Dr Ibitoye's recollection of the conversation was a little different. He said in a witness statement:

"On 18 September 2006 Gary McDonald informed me that M had once again tested positive for amphetamines. Gary McDonald confirmed that he had already informed the MHU, who had indicated their intention to recall MM but first wished to discuss their decision with me. Accordingly I telephoned Sarah Denvir of the MHU and she confirmed that they had decided to recall MM on account of his continuing breach of conditions, despite the warning letter he had received. I informed Sarah Denvir that I would make myself available at the assessment to be undertaken by Regency Lodge, Blackpool the following day."

28. The difference is whether Dr Ibitoye expressed positive agreement that recall was appropriate or merely refrained from expressing disagreement.
29. On 19 September 2006 MM was admitted to Regency Lodge as the nearest available bed at the time of his recall. This was the second of the recalls which MM contends was unlawful.

Judicial Review – further steps

30. On 12 October 2006 at an oral hearing Keith J gave permission to apply for judicial review of the March and September recalls.
31. On 23 November 2006 Mitting J gave judgment dismissing MM's claims. On 11 January 2007 MM was conditionally discharged again, so one might question the practical relevance of the present appeal. But history has continued to repeat itself in that on 12 February 2007 MM was again recalled. He issued a further claim for judicial review on grounds parallel to those advanced in the present proceedings. That claim awaits the outcome of this appeal.

Legal framework

32. Under s 37 of the Act, if a person is convicted of an offence punishable with imprisonment (other than an offence for which the sentence is fixed by law) the court may order his admission to a mental hospital if, among other circumstances, it is satisfied on appropriate medical evidence that the offender is suffering from a form of mental illness of a nature or degree which makes its appropriate for him to be detained in a hospital for medical treatment, and that the most suitable method of disposing of the case is by an order under the section.
33. Under s 41, the Crown Court may attach "a restriction order" to a hospital order where it considers it necessary to do so for the protection of the public from serious harm. A restriction order has the effect of involving the Home Secretary in any subsequent procedure for the release of the patient, whether by way of leave of absence or by way of discharge. With the consent of the Home Secretary, a patient subject to a restriction order can be discharged under s 23. But in disputed cases the Act confers the responsibility for making decisions whether a patient should be discharged on a MHRT.
34. S 73 provides, so far as material, that:

"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a Tribunal, the Tribunal shall direct the absolute discharge of the patient if –

(a) the Tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72 (1) above" – that is,

"(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree that makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment" (which I shall refer to as the statutory criteria)

"and

(b) the Tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) above –

(a) paragraph (a) of that subsection applies; but

(b) paragraph (b) of that subsection does not apply,

the Tribunal shall direct the conditional discharge of the patient.

(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4) Where a patient is conditionally discharged under this section –

(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above…; and

(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal or at any subsequent time by the Secretary of State."

35. In short, the MHRT must order the patient's discharge if it is not satisfied that both of the statutory criteria for the patient's continued detention are made out. In that event it then has to consider whether the discharge should be absolute or conditional.
36. S 42(3) empowers the Home Secretary to recall to hospital a patient subject to a restriction order who has been conditionally discharged. When the Home Secretary does so, s 75 requires him to refer the case to a MHRT within one month of the recall. In practice the referral is made within a day or so.
37. The Act does not set out any substantive or procedural rules about how the Home Secretary is to exercise his powers of recall, but there is a body of case law in relation both to the Act and to Article 5 of the European Convention.
38. In his skeleton argument on behalf of the Home Secretary, Mr Chamberlain accepted that his powers were limited as follows:

"Article 5 ECHR requires that, when a person is detained for being of "unsound mind", the detention must comply with domestic law and in addition three conditions must be satisfied, namely (i) except in emergency cases, the individual concerned must be clearly shown to be of unsound mind, i.e. a true mental disorder must be established before a competent authority on the basis of objective medical expertise; (ii) the mental disorder must be of a kind or degree warranting compulsory confinement; (iii) the validity of continued confinement depends upon the persistence of such a disorder: Winterwerp v Netherlands (1979) 2 EHRR 387.

The Home Secretary accepts that, before he can lawfully recall a conditionally discharged patient, there must be "up to date medical evidence about the applicant's mental health"; Kay v United Kingdom (1998) 40 BMLR 20 at [50] (European Commission of Human Rights). That means that there must be medical evidence upon which the Home Secretary can properly conclude that the Winterwerp criteria (or the first two criteria, since the third relates to continued, rather than initial, detention) are satisfied."

The issue

39. It is common ground that a breach of the patient's conditions of discharge does not provide a freestanding ground for recall. The question is whether the breach has the effect of enabling the Home Secretary to form a proper (i.e. not Wednesbury unreasonable) judgment on the medical evidence before him that the statutory criteria are established.
40. Mitting J summarised in paragraph 40 of his judgment the central submission advanced by Mr Simblet before him and on the appeal:

"It must be shown by medical evidence that MM either is now in a mental state such that it is necessary to readmit him to hospital for treatment under the conditions set out in section 37, or that he will, if he takes drugs, inevitably suffer a deterioration such that he will be in that condition in the imminent future." (Emphasis added)

41. Mr Simblet submitted that the Home Secretary could not properly form such a judgment on the medical evidence before him. MM's continued drug taking created a risk that his mental condition would deteriorate, but it was no more than a risk, and recall could not be warranted until psychotic symptoms had either recurred or become an immediate inevitability. Neither in March nor in September 2006 did the doctors suggest to the MHU that things had reached that stage.
42. Mitting J rejected Mr Simblet's submission as too stringent. He said in paragraph 41 of his judgment:

"If, as here, there is abundant medical evidence to the effect that MM suffers from paranoid schizophrenia and that his condition is likely to deteriorate imminently and significantly if he takes illicit drugs, then that evidence suffices to justify recall unless there is good reason for believing that it is no longer currently valid."

43. Both parties attacked that formulation. Mr Simblet submitted that likelihood of deterioration was not enough and that the Home Secretary needed to have evidence from an appropriately qualified doctor that such deterioration had occurred or was inevitable in the imminent future in order for his recall to be lawful.
44. Mr Chamberlain submitted that the judge was wrong to require that deterioration must be "likely to occur". In deciding whether to recall a patient who had recently been conditionally discharged, the Home Secretary should ask himself whether there had been such a material change of circumstances since the Tribunal's previous decision that he could reasonably form the view that the detention criteria were now satisfied.
45. I do not think that Mitting J was attempting to lay down a quasi-statutory formula. He was commenting on the effect of the evidence which the MHU had at the time of each recall, from which he judged that the Home Secretary could reasonably conclude that the statutory criteria were established.
46. I agree with the judge that Mr Simblet's submission is too stringent.
47. The first of the two statutory criteria is essentially a matter of clinical judgment. The second criterion is supplementary to the first and involves a risk assessment consequential on the patient's clinical condition. There is no dispute that MM was suffering at all relevant times from paranoid schizophrenia. Drug abuse was liable to trigger a worsening of his condition and, as Dr Capstick warned the MHU in her letter dated 28 February 2006, relapse and consequent danger could be rapid. The language of the first statutory criterion ("of a nature or degree which makes it appropriate for him to be liable to be detained") would be unduly circumscribed if, as Mr Simblet would submit, there had to be either psychotic symptoms or the certainty of psychotic symptoms in the imminent future before detention for treatment could be considered appropriate. Taken to its logical conclusion, the submission would mean that if a doctor were to advise the MHU that in his view there was a serious risk that a patient, who suffered from mental illness and was taking illicit drugs, could at any moment become homicidal, but that there was no certainty of this happening and were no immediate symptoms of psychosis, the patient could not be recalled. This would not make sense.
48. Unlike the patient in the case of K, on which Mr Simblet relied, there is no dispute that at all relevant times MM suffered from a form of mental illness which required continuing treatment. "Treatment" of a mentally ill person has a broad meaning under the Act (see Reid v Secretary of State for Scotland [1999] 2 AC 512). An obvious part of its purpose is the avoidance or minimisation of risk. I can see no reason in law why it could not be appropriate for a person in MM's position to be detained for treatment before reaching the stage stipulated by Mr Simblet (that is, when psychotic symptoms either had recurred or were certain to be on the point of recurring); but determining the point at which the risks are such as to make detention for treatment appropriate may involve a difficult judgment on the facts of a particular case.
49. I would also reject Mr Simblet's submissions about the alleged inadequacy of the medical evidence available to the Home Secretary at the time of the March and September recalls.
50. For the Home Secretary to recall a patient who has been conditionally discharged by a MHRT, he has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient. As I have said, it is not in dispute that he must have up-to-date medical evidence about the patient's mental health. Since in the nature of things the patient will have a RMO, it is hard to imagine that (save in the most exceptional circumstances) the Home Secretary would recall the patient without first seeking the RMO's clinical opinion whether it is appropriate for the patient to be detained for treatment. But I do not think that it would be appropriate for this court to lay down some form of test of general application extrapolated from the particular circumstances of this case.
51. As to the February recall, it is true that Dr Capstick did not conclude her letter dated 28 February 2006 with a recommendation of recall, but it was a very stark warning. I do not consider that it was Wednesbury unreasonable for the Home Secretary to conclude from that warning, taken in conjunction with the observations of the MHRT when previously discharging MM and the latest evidence from Mr Williams, that it was proper to order his recall.
52. As to the September recall, the order was not made until after the MHU had discussed the matter with Dr Ibitoye on 13 September and again on 18 September 2006. On the first occasion they discussed whether it would be appropriate to recall MM or to give him a warning, and it was decided that he should be given a warning. On the second occasion there is a difference of recollection whether Dr Ibitoye expressed positive agreement that recall was appropriate, but as MM's responsible medical officer he would have owed a professional responsibility to tell the MHU if in his clinical judgment a recall for treatment was not appropriate. Again, I cannot see that the decision in such circumstances to recall MM was improperly reached or unreasonable.
53. In my judgment, Mitting J's reasoning and conclusion were sound, and I would dismiss this appeal.

Lord Justice Gage:

54. I agree.

Lord Justice Keene:

55. I also agree.