ON APPEAL FROM THE APPEALS TRIBUNAL
THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
 UKUT 454 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
(VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION)
LADY JUSTICE ARDEN
LORD JUSTICE MOSES
| THE SECRETARY OF STATE FOR JUSTICE
|- and -
| (1) RB
(2) LANCASHIRE CARE NHS FOUNDATION TRUST
Mr Simon Burrows (instructed by odonnells Solicitors) for the First Respondent
The Second Respondent did not appear
Hearing date : 12 October 2011
Crown Copyright ©
Lady Justice Arden:
Background to the discharge provisions of the MHA - Convention jurisprudence
"Until the 1983 Act, tribunals only had an advisory role in relation to restricted patients. Although a patient was entitled to have his case referred to a tribunal, the role of the tribunal was limited to providing advice to the Secretary State. The ultimate decision as to whether or not to discharge rested with the Secretary of State. "
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention … of persons of unsound mind…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
"The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals". (paragraph 55)
"The judicial proceedings referred to in Article 5 para. 4 (art. 5-4) need not, it is true, always be attended by the same guarantees as those required under Article 6 para. 1 (art. 6-1) for civil or criminal litigation (see the above-mentioned De Wilde, Ooms and Versyp judgment, p. 42, para. 78 in fine). Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty" (see the last-mentioned judgment, p. 41, para. 76). Mental illness may entail restricting or modifying the manner of exercise of such a right (see, as regards Article 6 para. 1 (art. 6-1), the above-mentioned Golder judgment, p. 19, para. 39), but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves." (emphasis added)
"While, as has been indicated above in connection with article 5(4) (see paragraphs 60 and 63), mental illness may render legitimate certain limitations upon the exercise of the "right to a court", it cannot warrant the total absence of the right as embodied in article 6 (1)". (paragraph 75)
"Consensual non-imposed treatment was considered more likely to attract a degree of co-operation from the patient and to be beneficial. Furthermore, informal admission and treatment were in the incapacitated patient's best interests and treated that person with the required dignity." (paragraph 80).
"90… The Court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action….
120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act (see paragraphs 36 and 54 above) is, in the Court's view, significant.
In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The appointment of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities."
"The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance." (paragraph 89)
i) There must be reliable medical evidence that the patient is suffering from a mental disorder;
ii) The mental disorder must be of a kind or degree warranting compulsory confinement;
iii) The mental condition must persist throughout the period of confinement; and
iv) The criteria for detention must be "prescribed by law", that is to say, be set out in legislation, so that the patient knows what they are and can bring effective proceedings to challenge his detention.
I shall refer to these four points as "the Winterwerp conditions", though condition (iv) comes from HL.
Relevant provisions as to admission and discharge in the MHA
"3 Admission for treatment
(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that—
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) . . .
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.
(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case."
"17 Leave of absence from hospital
(1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons."
"19 Regulations as to transfer of patients
(1) In such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State—
(a) a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may be transferred to another hospital or into the guardianship of a local social services authority or of any person approved by such an authority;
(b) a patient who is for the time being subject to the guardianship of a local social services authority or other person by virtue of an application under this Part of this Act may be transferred into the guardianship of another local social services authority or person, or be transferred to a hospital.
(2) Where a patient is transferred in pursuance of regulations under this section, the provisions of this Part of this Act (including this subsection) shall apply to him as follows, that is to say—
(a) in the case of a patient who is liable to be detained in a hospital by virtue of an application for admission for assessment or for treatment and is transferred to another hospital, as if the application were an application for admission to that other hospital and as if the patient had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application;
(b) in the case of a patient who is liable to be detained in a hospital by virtue of such an application and is transferred into guardianship, as if the application were a guardianship application duly accepted at the said time;
(c) in the case of a patient who is subject to guardianship by virtue of a guardianship application and is transferred into the guardianship of another authority or person, as if the application were for his reception into the guardianship of that authority or person and had been accepted at the time when it was originally accepted;
(d) in the case of a patient who is subject to guardianship by virtue of a guardianship application and is transferred to a hospital, as if the guardianship application were an application for admission to that hospital for treatment and as if the patient had been admitted to the hospital at the time when the application was originally accepted.
(3) Without prejudice to subsections (1) and (2) above, any patient who is for the time being liable to be detained under this Part of this Act in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006, in a hospital vested in the Welsh Ministers for the purposes of their functions under the National Health Service (Wales) Act 2006, in any accommodation used under either of those Acts] by the managers of such a hospital or in a hospital vested in a National Health Service trust, NHS foundation trust, Local Health Board or Primary Care Trust, may at any time be removed to any other such hospital or accommodation which is managed by the managers of, or is vested in the National Health Service trust, NHS foundation trust, Local Health Board or Primary Care Trust for, the first-mentioned hospital; and paragraph (a) of subsection (2) above shall apply in relation to a patient so removed as it applies in relation to a patient transferred in pursuance of regulations made under this section…."
"37 Powers of courts to order hospital admission or guardianship
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law [. . .. . .], or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
"41 Power of higher courts to restrict discharge from hospital
(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section. . .; and an order under this section shall be known as "a restriction order".
(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely—
(i) power to grant leave of absence to the patient under section 17 above;
(ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection (3) of that section; and
(iii) power to order the discharge of the patient under section 23 above;
and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and
(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;
and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.
(4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time.
(5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.
(6) While a person is subject to a restriction order the responsible clinician shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require."
"42 Powers of Secretary of State in respect of patients subject to restriction orders
(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.
(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, 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.
(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant.
(4) Where a patient is recalled as mentioned in subsection (3) above—
(a) if the hospital specified in the warrant is not the hospital from which the patient was conditionally discharged, the hospital order and the restriction order shall have effect as if the hospital specified in the warrant were substituted for the hospital specified in the hospital order;
(b) in any case, the patient shall be treated for the purposes of section 18 above as if he had absented himself without leave from the hospital specified in the warrant. . ..
(5) If a restriction order in respect of a patient ceases to have effect after the patient has been conditionally discharged under this section, the patient shall, unless previously recalled under subsection (3) above, be deemed to be absolutely discharged on the date when the order ceases to have effect, and shall cease to be liable to be detained by virtue of the relevant hospital order accordingly…."
"72 Powers of tribunals
(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—
(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied—
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i) that he is then suffering from mental disorder or from mental 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 necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia) that appropriate medical treatment is available for him; or
(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself;
(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—
(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b) further consider his case in the event of any such recommendation not being complied with."
"73 Power to discharge restricted patients
(1) Where an application to the appropriate 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 the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—
(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and
(b) the tribunal is 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 as if he had been conditionally discharged under subsection (2) of that section; 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.
(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.
(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.
(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 its 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 comes 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.
(8) This section is without prejudice to section 42 above."
"The policy of the Act, in relation to patients with psychopathic disorders, is treatment not containment."
Previous judicial interpretation of the word "discharge" in section 73 of the MHA
"The word 'discharge', as employed in sections 72 to 75 of the Act of 1983, means, and in my judgment can only mean, release from hospital. The release may be absolute or it may be conditional. It will be conditional in the case of a restricted patient where the tribunal is not satisfied as to the matter in section 73(1)(b), but is satisfied as to the matters in section 72(1)(b)(i) or (ii). A condition requiring that a patient, who is conditionally discharged, should remain in hospital is, in my judgment, inconsistent with the duty to discharge albeit conditionally. Section 73(4)(a), with its reference to 'recall', strongly supports the inconsistency of such a condition with the concept of discharge." (page 1178)
"30. I confess that I am not convinced by the reasoning in this case [the Mersey Regional Health Authority case above], with great respect to the learned judge. In my view, the fallacy is to treat release from discharge as meaning release from hospital. It seems to me that it means release from detention in hospital or sometimes, as I have indicated, from liability to be detained. Release from hospital is neither a sufficient nor a necessary condition for constituting the discharge. If there is such a release but it is to another institution where the patient is detained in the sense that he is deprived of his liberty, then that would not, in my judgment, constitute a proper and lawful discharge. By the same token, in my judgment, if the patient is discharged from detention in a hospital such that he is no longer deprived of his liberty, then there is still an effective discharge notwithstanding that the conditions are such that he is required to reside in another hospital pending further consideration of his absolute discharge. The central issue, it seems to me, is whether or not the conditions constitute a continuing detention. If they do not, it is irrelevant where the patient resides thereafter. Indeed, if it were thought by the tribunal that the only appropriate institution to which a conditional discharge could properly be made was another hospital, it would seem to me to infringe Article 5 of the Convention to refuse that discharge simply because the only available alternative institution was another hospital. Of course, the nature of the conditions imposed requiring discharge to that other hospital may well be such that they do not in fact constitute a release from the deprivation of liberty, but that will be because of the overall effect of the conditions, not because the discharge is from one hospital to another."
"a curious area of human rights jurisprudence" (paragraph 17).
The decision of the Upper Tribunal in this case
"50. The basis of Elias J's reasoning, as we understand it, is that the word "discharge" itself necessarily connotes release from detention to a state of liberty; and that accordingly, while the patient remains deprived of his liberty, there can be no "proper and lawful discharge". With respect, we do not think that the word "discharge", in its ordinary sense, bears that interpretation. The dictionary definitions show that, depending on context, the word may mean "release from custody", but may also connote release in the more general sense of "dismiss" or "send away". Thus, in ordinary language, a patient may be "discharged" from hospital, without any connotation that he is being released from deprivation of liberty in the legal sense. In the context of section 72, it seems more natural to read the word "discharge" as meaning simply release from the state there mentioned, that is from "detention in a hospital for treatment."
"53. The premise for exercise of the tribunal's powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. The next step is to devise the conditions. At that stage, it is hard to see why the question whether the conditions would amount to detention for the purposes of article 5 should come into it. Even if they do amount to such detention, there will be no breach of Article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by Article 5. The tribunal's concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. We see no reason why Parliament should have concerned themselves with the fine distinctions which may arise under the Strasbourg case-law on detention. The PH decision itself shows how narrow the dividing-line may be, and indeed that the issue may not be capable of final decision at that stage. It is surprising that a matter going to the jurisdiction of the tribunal to make an order should depend, not solely on the terms of the conditions, but on how they are implemented."
"55. On the other hand, a qualified PH principle holds good. A tribunal cannot conditionally discharge a person with conditions that amount to detention in a hospital for treatment. That is not because the detention would be an assault on the patient's human rights but because a finding that such conditions are necessary would be inconsistent with the premise upon which any conditional discharge under section 73 must be based which is that the tribunal is not satisfied as to the matters mentioned in section 72(b)(i), (ii) or (iia)."
Submissions on this appeal
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
My analysis of the arguments on this appeal
The "prescribed by law" issue
"Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
The incompatibility issue
"rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course." (R v Horncastle  2 AC 373 at  per Lord Phillips giving the judgment of the Supreme Court)
The justification issue
Lord Justice Moses:
Lord Justice Maurice Kay: