England and Wales High Court (Administrative Court) Decisions

MR JUSTICE BURTON:
1. Miss K is a restricted patient, detained pursuant to Sections 37 and 41 of the Mental Health Act 1983 ("the MHA"). On 4 November 1997 she committed, and was, on 2 February 1998, convicted of, an offence of causing grievous bodily harm with intent. From June 1998 she was detained in Ravenswood House Medium Secure Unit in Hampshire.
2. She applied for discharge to a Mental Health Review Tribunal, pursuant to Section 66 of the MHA, and on 24 May 1999 the Tribunal adjourned for a care plan to be formulated, in accordance with the suggestions in the then recently reported decision of R v Mental Health Review Tribunal Ex Parte Hall [1999] 3 AER 132, and for Dr Hamilton of the North London Forensic Service ("NLFS") to prepare a Psychiatric Report dealing with his views concerning the Applicant's eligibility for conditional discharge. Dr O'Grady, her then Responsible Medical Officer ("RMO"), told the Tribunal that clinically the Applicant could now move to appropriately supported accommodation in a non-hospital setting (e.g. such as a hostel), and he also was to provide an updated Psychiatric Report.
3. Dr O'Grady, in a letter of 28^th May 1999 to the Applicant's solicitor, expressed the view that the Applicant could either move to conditions of lesser security in a hostel setting or, alternatively, move to a staff hostel in the community if the circumstances were right. Dr Hamilton recommended a move to Camlet Lodge, Regional Secure Unit in Enfield, which, being in London, would be nearer to her family, and in particular, her sister.
4. At the adjourned hearing on 16^th August 1999, Dr O'Grady and a social worker, Ms Lindsay, gave evidence: they advised that there should be no conditional discharge, but a move to hostel type accommodation in North London, where Dr Kennedy would be the supervising consultant. The Tribunal chaired by H.H. Judge Palmer concluded however that there should be a conditional discharge. The conditions were that the Applicant should reside at her parents' home in Wood Green, and should co-operate with social supervision by a social worker to be allocated to her case, and with supervision by a forensic Consultant Psychiatrist, and should comply with such treatment as might be prescribed for her.
5. In its reasons, the Tribunal recited that it was satisfied on the evidence of Dr O'Grady that the Applicant was then suffering from mental illness, namely schizophrenia, the symptoms of which were being fully controlled by medication, and that she needed ongoing treatment and medication in order to control her illness. It recorded that the issue which it had to resolve was whether, as she contended, her treatment could now be continued in the community or whether, as Dr O'Grady contended, she should first move to Malvern House, a hospital run unit in the community. The Tribunal concluded:-
"Having carefully considered all the evidence, we have come to the conclusion that the patient is well enough to be discharged to live with her parents and sister at home under psychiatric and social supervision, but that, in view of the possibility of a relapse, she should remain liable to be recalled to hospital for further treatment".
The conditional discharge was deferred until satisfactory arrangements had been made to meet the prescribed conditions.
6. The provisions of the MHA relating to discharge are set out in Section 73, which cross references, in sub-paragraph (1)(a), to the relevant provisions of Section 72, which I incorporate for convenience in my citation of Section 73 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) (i) [that he is not 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 not justified in the interests of his own health or safety or with a view to the protection of other persons;] 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 sub-section (1) above, the Tribunal are satisfied as to the matters referred to in paragraph (a) of that sub-section but not as to the matters referred to in paragraph (b) of that sub-section, the Tribunal shall direct the conditional discharge of the patient.
(4) Where a patient is conditionally discharged under this Section
a) he may be recalled by the Secretary of State under sub-section (3) of Section 42 above, as if he had been conditionally discharged under sub-section (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.
(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 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."

7. Dr Kennedy subsequently saw the Applicant with two members of his team on 30^th September 1999, and he concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He wrote a lengthy letter to Dr O'Grady dated 6^th October 1999, of which the material parts are as follows:
"I suggested to [Miss K] that she needs a higher level of professional support and monitoring than her family might be able to provide while she lived at home. She could see her family, probably as often as she wished during the day and engage in work and education as she had planned while staying at an alternative 24 hour nursed care placement. More importantly, she still needs further psychological treatment regarding her dependency and vulnerability in her relationship with H and more generally. This could not be done safely whilst she was living at home, owing to the high risk that the stress and grieving process involved in relinquishing this relationship would be too difficult for her to bear and might destabilise her for a time. For all of these reasons, the professionals present felt that she needed an intermediate step for returning home, staying at Avesbury House,.... a new forensic 24 hour nursed care unit, near her parents' home, which would offer the requisite level, both of professional (medical and nursing)support and monitoring as well as formal psychological treatment.
[Miss K] was unhappy with this, insisting that the Mental Health Review Tribunal had given her the right to go home. We explained that the conditions attached to a conditional discharge still had to be negotiated with those who would take responsibility for supervising her, and with the Home Office. Unless acceptable and safe conditions could be agreed with some supervisors, the conditional discharge could not be completed......I made it clear that I would not consider it safe to supervise [Miss K] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.......
I have no doubt that the next stage in [Miss K's] treatment, rehabilitation and risk management ought to take placed in North London and near to her family. This could either take place in medium security at Camlet Lodge (by transfer prior to conditional discharge), or, if [Miss K] is willing to consent to it, by setting a condition of residence that she should reside at Avesbury House. I should make it clear that Avesbury House is a registered mental nursing home (equivalent to psychiatric hospital status).... As an alternative, I could, if you wish, ask one of my colleagues here to assess her to see if they would be willing to supervise her on the conditional discharge to her parents' home, or I could ask one of the general psychiatrists at St. Anne's Hospital to consider this. I think it is very unlikely that any experienced psychiatrist would agree to this."
8. As a result of the meeting, the Applicant's solicitors wrote to Dr Kennedy on 5^th October 1999:-
"I would be pleased if you would write and confirm that you are willing to supervise her if she lives at home. If you are not willing to supervise, can you identify who the relevant psychiatrist should be, as I have understood that she is your responsibility......If I do not hear from you within 14 days, I will be writing to Judge Palmer. The Tribunal must clearly be informed of the position. If you are not willing to give [Miss K] care that the Tribunal has thought appropriate, then we will also have to consider what remedies are available to [her]. I hope this will not be necessary and that this has in fact been a misunderstanding."
9. They wrote further to Dr Kennedy on 13^th October, recording Miss K's understanding that he would be prepared to act as her Consultant Psychiatrist but only if she was based in the medical nursing home suggested, which was not acceptable to Miss K, and again asking whether an alternative consultant psychiatrist who would take on her care had been found. Dr O'Grady wrote, with a copy to the Applicant's solicitors, to the Mental Health Review Tribunal dated 11^th October 1999 as follows:-
"I am writing to give you advance notice that we are not able to meet the conditions of the Tribunal for [Miss K's] conditional discharge. She has been assessed by Dr Kennedy who is a Catchment Area Forensic Psychiatrist. Dr Kennedy would not be willing to supervise her in the community should she be discharged directly to her parents' address........As you know, she has also been seen by Dr Hamilton who is one of Dr Kennedy's colleagues in the same forensic service who was also of the opinion that it would be unsafe to manage her should she be discharged directly to her parents' address. In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the Tribunal.........We continue to hold the view that it is not in her best interest to be discharged directly to her family, but should go for a further period of rehabilitation in the community to prepare her fully for community living."
10. Dr Kennedy responded to the Applicant's solicitors by letter dated 18^th October 1999:-
"I have now had the opportunity to discuss Miss K again with her consultant at Ravenswood, Dr O'Grady. I think you are right that [Miss K] has chosen to rule herself out for Avesbury House, at least for the present. As you know, it is my view that I could not safely supervise her in the community living at home with her parents. That is also the view of other members of my team. Dr O'Grady and I have agreed that he should canvass the views of other Consultant Forensic Psychiatrists in the catchment area, to see if anyone can be found who would agree to supervise Miss K. It is clear from all that [Miss K] says and from her general mental state and demeanour that she remains very much at risk of further high risk behaviour."
11. By a further letter to the Mental Health Review Tribunal dated 19^th October 1999, Dr O'Grady indicated that he would now write to the other Consultant Forensic Psychiatrists in the NLFS to enquire if they would be prepared to supervise Miss K under the conditions laid down by the Tribunal, indicating that he was not proposing to write to other forensic psychiatrists in London outside the Area, as he had assumed from the Tribunal's decision that it envisaged Miss K being supervised by a catchment area forensic team, and if she were to be supervised by a psychiatrist outside her catchment area, this would not lead to proper multi-disciplinary follow-up. He invited correction of that understanding by the Tribunal, but the Tribunal did not respond. In any event, as will be seen in due course, the net was, unsuccessfully, widened.
12. The letter to the other consultant psychiatrists in the NLFS was duly written by Dr O'Grady on that day, 19^th October 1999, asking if they would consider seeing and assessing Miss K with a view to being her supervising consultant forensic psychiatrist under the conditions laid down by the Tribunal. None of them was prepared to do so. On 9^th November 1999 the Applicant was moved to Camlet Lodge in Enfield. By letter dated 15^th November 1999 the Respondent Health Authority asked the Director of NLFS, if neither the forensic nor the local services were able to offer supervision to Miss K, to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision, a course which the Director in his response dated 18^th November 1999 thought would be inappropriate, but was nevertheless further pursued by the Respondent by letter dated 30^th November 1999, indicating that the option needed to be fully explored; and by letter dated 1^st December 1999, the Respondent wrote to the Enfield and Haringey Health Authority:-
"We have asked the North London Forensic Service to explore the following supervision options: supervision by her new RMO, Dr Duffield, supervision by a private sector forensic consultant, and supervision by any of the consultants at NLFS regardless of their catchment area. Given the possibility that [Miss K] may become a resident of [ Enfield]...on discharge, I wondered if you would be kind enough to confirm to us whether you are aware of any other options for forensic supervision, which could be explored in this instance."
13. NLFS responded on 2^nd December 1999:-
"I have this afternoon discussed the issues with Dr Duffield, Consultant Forensic Psychiatrist here at Camlet Lodge, and we have the following comments. Dr Duffield has kindly agreed to approach all local catchment area Forensic Consultant Psychiatrists who would be willing to provide aftercare supervision for [Miss K], if she was discharged to the family home, as stipulated by the Mental Health Review Tribunal's deferred conditional discharge. Simultaneously, Dr Duffield will continue to assess [Miss K's] mental state and will be undertaking a fresh risk assessment.....Avesbury House....is a 24 hour nursed care facility.....Dr Duffield is of the opinion that this is a clinically more appropriate placement as he is not satisfied that [Miss K] should return home."
14. The position crystallised in NLFS's letter of 15 December 1999 to the Respondent:-
"At the present time, no consultant forensic psychiatrist from the NLFS is willing to supervise Miss K in the community. Having once again discussed the issue of an independent or private sector consultant forensic psychiatrist providing supervision, Dr Kennedy informs me that it is not the responsibility of the NLFS to explore this issue....nor is it a viable or suitable option in his opinion. The service is not aware of any individual or organisation who would be suitably equipped or qualified to undertake such a task in the community. Most private independent sector providers concentrate on acute and in-patient care only. Dr Kennedy would be willing to manage [Miss K] at [Avesbury House] if she were transferred there or conditionally discharged with conditions of residence [there]. Furthermore, it would be necessary for her to be compliant with the conditions of residence and her treatment there. I have discussed this case with Mr Nick Purchase, Forensic Social Work Manager from the London Borough of Enfield, who informs me that he will be willing to allocate a forensic social worker to [Miss K] if she were to be a resident at [Avesbury House]. Mr Purchase would not be supportive of a community placement and as such he would be unwilling to allocate a forensic social worker to provide community supervision at present. The rationale for this decision is due to the current level of risk posed by [Miss K] and the recent risk assessments which indicate a further period of in-patient treatment is required at present. It is felt that she could be adequately cared for in a 24 hour nursed care facility. However, Mr Purchase feels that any lower level of support at this stage would subject [Miss K] to the risk of deterioration and may present a risk of harm to herself or others."
15. Dr Duffield reported by letter dated 17^th December 1999 to the Mental Health Review Tribunal that its conditions could not be complied with to date, that the principal difficulty was that no Forensic Psychiatrist was prepared to supervise Miss K if she resided at the stipulated address, and that the general feeling was that this would not be a sufficiently supportive placement for her at this stage and would be unsafe. By a letter drafted with the involvement and approval of the Applicant's solicitors, the Respondent wrote in December 1999 and early January 2000 to the clinical directors of the Forensic Psychiatry Services in London, Hertfordshire and Essex, identifying nine units additional to the NLFS who had not previously been canvassed. All were asked to discuss the case urgently with their consultant colleagues and establish whether any of them was prepared to see and assess Miss K with a view to being her supervising Consultant Forensic Psychiatrist under the terms laid down by the Tribunal. None was willing or able to assist. In a letter dated 27^th January 2000 the Applicant's solicitors further suggested inviting institutions in Cambridgeshire and Northamptonshire, ordinary hospitals and the private sector. The Respondent did so, and a detailed list of those further contacted is set out in the fourth witness statement of Mr Hobbs, and its exhibits. There was no success. On 9^th February Miss K was transferred to Avesbury House. The Respondent concluded that there were no further steps it could take, and by letter dated 3^rd March 2000 Dr Kennedy wrote to the Home Office advising his opinion that the Tribunal's conditions were impossible to meet and, as Miss K's RMO, as he now was, asking if the Home Secretary would consider exercising his powers under Section 71(1) of the MHA to refer Miss K to a Mental Health Review Tribunal.
16. In a letter dated 17^th March 2000 the Home Office informed Dr Kennedy that the Home Secretary had decided to exercise such powers, and had that day referred the case to a Mental Health Review Tribunal, and the hearing is, I understand, presently fixed for 4^th August.
17. In support of her application by way of Judicial Review, which I shall in a moment summarise, Miss K's advisers have served a Psychiatric Report dated 17^th May 2000 by a Dr Balakrishna of the East London and City Mental Health NHS Trust. Dr Balakrishna does not support implementation of the present condition of the Tribunal for the Applicant to live at home, and certainly does not suggest that he would be prepared so to supervise. He records Miss K's acknowledgement that "she now accepts the clinical team's decision for her to move to a supervised hostel". He concludes:
"I would support the current plan for Miss K to be placed in a supervised hostel in the community in the first instance."
18. The Applicant, by way of Judicial Review, seeks the following:-
"(1) Certiorari to quash the ...decisions [of the Respondent made on or around 1 October 1999 and on-going not to provide the Applicant with psychiatric supervision in the community in implementation of the conditions imposed on the applicant by the Mental Health Review Tribunal and thereby preventing her discharge from hospital], further and/or alternatively,
(2) Mandamus to compel the Respondent to provide the Applicant with the psychiatric supervision necessary to implement the conditions imposed on the Applicant on discharge by the Mental Health Review Tribunal.
(3) A declaration that the above decisions and each of them were ultra vires and/or void."
19. Her case is:-
1) that the Respondent is in breach of its duty under Section 117(2) of the MHA, which provides:-
"It shall be the duty of the [Health Authority]......to provide in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies [being persons who are detained under Section 3....or .....37...and then cease to be detained and [(whether or not immediately after so ceasing)] leave hospital] until such time as the [Health Authority]....are satisfied that the person concerned is no longer in need of such services [; but they shall not be so satisfied in the case of a patient who is subject to after care under supervision at any time while he remains so subject.]"
Such duty is alleged to be absolute, and in the circumstances of this case to amount to a duty to provide the Applicant with psychiatric supervision in the community in order to implement the conditions imposed on her by the Tribunal.
2) The Applicant is entitled, in the light of the conclusion of the Tribunal, to be discharged, though Miss Morris, who has ably argued the matter on behalf of the Applicant, accepts that, this being a conditional discharge, the words of Lord Bridge in Campbell v Secretary of State for the Home Department [1988] AC 120 at 127 are apt:-
"If the Tribunal think the patient should remain liable to recall, they can only contemplate a conditional discharge under sub-section (2). Here the tribunal's satisfaction or lack of satisfaction as to one or other of the paragraph (a) matters, will, I think, inevitably be coloured by the conditions they have in mind to impose. Thus the answers to the questions (i) whether or not the patient's disorder is "of a nature of degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment", or (ii) whether or not it is "necessary for his own health or safety or for the protection of others that he should receive such treatment," which must here mean treatment under detention, may be vitally influenced by the conditions which are to be imposed to regulate his lifestyle upon release into the community. To take obvious examples suggested by the decision of the tribunal in this case, the tribunal may perfectly properly be satisfied that hospital detention is no longer necessary provided that the patient can be placed in a suitable hostel and required to submit to treatment as an out-patient by a suitable psychiatrist. Those are matters to be secured by imposing appropriate conditions. Once satisfied under sub-section (2) as to one or other of the matters referred to in paragraph (a) of sub-section (1), it is mandatory that the tribunal "shall direct the conditional discharge of the patient". But if the tribunal are only able to be satisfied by the imposition of conditions to which the patient will be subject on release, it is obvious that in many, perhaps most, cases some time must elapse between the decision that conditional discharge is appropriate and the effective order directing discharge of the patient, for the purpose of making the necessary practical arrangement to enable the patient to comply with the conditions."
It is then up to the Respondent to take steps to ensure compliance with such conditions.
3) The Tribunal is the safeguard for the detainee pursuant to the European Convention of Human Rights, and the automatic right of application to the Tribunal was indeed introduced in order to comply with the United Kingdom's obligations (see X v United Kingdom [1981] 4 EHRR 181 and Pickering v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370 at 380 per Lord Donaldson MR) and the effectiveness of such safeguard is undermined by failure to comply with the conditions imposed on a conditional discharge.
4) Miss Morris accepts that there can be what is described in Ex Parte Hall and in R v Ealing District Health Authority Ex Parte Fox [1993] 3 AER 170 as an impasse, rendering it impossible for the conditions to be complied with. But she submits that such impasse only arises if it is indeed so impossible and thus either, (her first submission) the Health Authority would be in technical breach of an absolute duty or (her fall-back argument if she is wrong that the duty is absolute) the Health Authority would not be in breach. On the facts of this case, the Respondent is, in her submission, in breach, and indeed not in technical breach because there were steps which the Respondent could have taken and still could take, to comply with its duty. Primarily it ought to have arranged supervision by Drs Kennedy and/or Hamilton and/or Duffield and, effectively, not taken no for an answer. Secondly, there were steps which it ought to have taken by way of further and better follow-ups of the negative responses from the various entities with whom it has communicated, as set out above.
20. The Respondent's answer in general terms is as follows:-
1) The Respondent denies that it is in breach of duty. It refers to the steps it has taken, as set out above, and further to the Notes for the Guidance of Supervising Psychiatrists issued by the Home Office and the Department of Health and Social Security in 1987, under the heading "Mental Health Act 1983: Supervision And After-Care of Conditionally Discharged Restricted Patients". The relevant extracts appear primarily in two sections, that headed "Section 7 - the role of the supervising psychiatrists" and that headed "Section 9 - Liaison between the Supervising Psychiatrists and other Professionals involved and their role". The Respondent refers to the latter section primarily for its general submission that it is essential that the supervising psychiatrist is able (and thus sufficiently amenable and available) to perform what has been referred to above as the multi-disciplinary local supervision. As to the former section, relevant passages are as follows:-
"17....[The Home Secretary] recognises that this hope [that, by means of conditional discharge of a restricted patient, a situation of danger to the patient or to others could be avoided] places great reliance on the personal skills and dedication of individual supervisors... It is important that the supervisor sets out to provide more than just crisis intervention.
18. The supervising psychiatrist, in any case, is responsible for all matters relating to the mental health of the patient, including the regular assessment of the patient's condition, the monitoring of any necessary medication, and the consideration of action in the event of deterioration in the patient's mental state.
20. The supervising psychiatrist should be prepared to be directly involved in the treatment and rehabilitation of the patient and to offer constructive support to the patient's progress in the community...the supervising psychiatrist should also be prepared to work with other professionals involved in the patient's care.
22.....This [supervision of their own restricted patients after conditional discharge] is an obvious course if the patient is to be discharged into the immediate vicinity of the discharging hospital. In other cases a supervising psychiatrist should be chosen who is within easy travelling distance of the patient and can easily keep in touch with the other professionals involved in the case, particularly the social supervisor. It may be appropriate, in some cases, for the Responsible Medical Officer to supervise the patient for an initial period of several months and then make arrangements for a local consultant psychiatrist to take over as supervising psychiatrist.
23. The two most important elements in effective supervision are the development of a close relationship with the patient and the maintenance and good liaison with the social supervisor."
(2) The issue is only whether there can be compliance with the present conditions imposed by the Tribunal, and thus whether there is an impasse as to the fulfilment of those present conditions. Not only are Drs Kennedy, Hamilton and Duffield not the employees of the Respondent, and not subject to its direct authority, but in any event, even if they were, they are doctors and not subject to be instructed to do what they are told if it is contrary to what they believe to be their duty, whether to their patient or to their professional ethic or to the community at large. In Ex Parte Fox itself, Otton J. accepted at 182, in relation to the consultants who in that case declined to accept the responsibility of supervising the applicant in the community, that "as consultants, in my judgment, they are perfectly free and untrammelled in reaching their opinions and recommendations." The fact that there is an impasse, or an impossibility to comply with the conditions, neither deprives the Applicant of an `entitlement' to be discharged (as is clear from a full consideration of the passage in Campbell I have cited above), nor renders ineffective the safeguards of the Tribunal. On the reference under Section 71, the Tribunal can be invited to reconsider the position. The Tribunal may, as was suggested in Ex Parte Hall by Kennedy L.J. in the Court of Appeal [1999] 4 AER 883 at 889(j) "shame", or rather perhaps have another go at persuading, one or more of the reluctant consultants into changing their mind, or an alternative course can be taken, dependent upon the evidence placed before the Tribunal at the time, which might include no discharge at all, if such be the appropriate and correct course, or conditional discharge on some different conditions, e.g. those supported by Dr Balakrishna.
21. I accept these submissions of Mr Bear for the Respondent, as more particularly set out below, and am entirely satisfied that the Applicant has no case for Judicial Review.
1. In my judgment the duty of the Respondent Health Authority is as defined by Otton J. in Ex Parte Fox in the declarations he made at 183g, namely "that a District Health Authority is under a duty under Section 117 of the [MHA] to provide after-care services when a patient leaves hospital, and acts unlawfully in failing to seek to make practical arrangements for after-care prior to that patient's discharge from hospital where such arrangements are required by a Mental Health Review Tribunal in order to enable the patient to be conditionally discharged from hospital" and that it acts unlawfully and thus in breach of that duty in "not attempting with all reasonable expedition and diligence to make arrangements so as to enable the applicant to comply with the conditions imposed by the Mental Health Review Tribunal."

This was, after considerable further argument before him, repeated and adopted by Scott Baker J., in terms, in Ex Parte Hall at 143b:
"An Authority with a duty to provide after-care arrangements acts unlawfully by failing to seek to make arrangements for the fulfilment of conditions imposed by a mental health Review Tribunal".
The Court of Appeal in Ex Parte Hall was not considering the position of the Health Authority, which was not party to the Appeal, but only the position of the Mental Health Review Tribunal. The conclusion of Scott Baker J. had been that the Health Authority was in breach of its duty as defined (not by virtue of any failure to override its consultants or give them instructions (any more than in Ex Parte Fox), but by virtue of its failure to take steps to provide accommodation and funding for supervision). Miss Morris referred to the words of Kennedy L.J. at 889d:-
"Once the Tribunal has stipulated its conditions, the burden is passed to the local authority and health authority to make the necessary arrangements within a reasonable time...and to the applicant to co-operate with arrangements which are made".
But this, in my judgment, was (i) not in any way seeking to quarrel with the detailed analysis and conclusions of Otton J., as repeated and approved by Scott Baker J., of much of which this is a very shorthand reference (ii) in any event not seeking to define or deal with the duty of a Health Authority, when neither such party nor any such issue was before the court. I accept and adopt the conclusions of Otton J. and Scott Baker J that the duty of the Health Authority is mandatory, but not absolute, and is in the terms I have set out above.
2. The procedure to be adopted by a Health Authority in compliance with its duty is thus as set out in Ex Parte Fox at 182e-g:-
"In my judgment, if the district health authority's doctors do not agree with the conditions imposed by the Mental Health Review Tribunal and are disinclined to make the necessary arrangements to supervise the applicant on his release, the district health authority cannot let the matter rest there. The district health authority is under a continuing obligation to make further endeavours to provide arrangements within its own resources or to obtain them from other health authorities who provide such services, so as to put in place practical arrangements for enabling the applicant to comply with the conditions imposed by the Mental Health Review Tribunal or, at the very least, make enquiry of other providers of such services. If the arrangements still cannot be made, then the district health authority should not permit an impasse to continue, but refer the matter to the Secretary of State to enable him to consider exercising his power to refer the case back to the mental health review tribunal under Section 71(1)"
and in Ex Parte Hall at 143a-c:-
"In my judgment Ex Parte Fox supports the following proposition which I accept to be the law:
(i) An authority's duty to provide after-care services includes a duty to set up the arrangements that will be required on discharge. It is not a duty that arises for the first time at the moment of discharge;
(ii) An authority with a duty to provide after-care arrangements acts unlawfully by failing to seek to make arrangements for the fulfilment of conditions imposed by mental health review tribunal under s.73(1);
(iii) If such an authority is unable to make the necessary arrangements, it must try to obtain them from another authority;
(iv) If arrangements still cannot be made an impasse should not be allowed to continue; the case must be referred back to a mental health review tribunal through the Secretary of State.
In carrying out such obligation, the Authority is entitled and obliged to bear in mind the 1987 Guidance Notes, to which I have referred.
3. There is no obligation on the Health Authority to instruct its own doctors or, a fortiori, doctors employed as here by a third party, who decline to take part in arrangements which have been prescribed as a condition by the Tribunal, to do so. The most that can be expected from an Authority is to clarify that such is indeed the position and, where appropriate, to expect the consultants who have declined themselves personally to take part to assist, in so far as they owe a duty either to their patient or to the authority, in exploring other possibilities.
4. The Respondent in this case was not in breach of its obligations. So far as the consultants were concerned (and it is important to emphasise that it was not simply, as appears to be considered by the Applicant, Dr Kennedy, but also, and successively, Dr Hamilton and Dr Duffield, who did not approve of and were not prepared to act as supervising officer in relation to the proposals for the Applicant to live at her parents' home), the Respondent received a clear response, which required no further clarification, that the doctors themselves were not prepared to participate, as they were plainly entitled, and, on the basis of their own professional judgments obliged, to do, but also received all co-operation that could have been expected in exploring other alternatives. The Respondent did not, as Otton J. concluded had been the case in Ex Parte Fox, "let the matter rest there", but took, with the co-operation, and to some extent under the guidance, of the Applicant's solicitors, what in my judgment was every appropriate step to explore and find alternatives. Criticisms were made by Miss Morris, as I have indicated, of the Respondent's failure to probe some of the negative responses they received. This is in my view clutching at straws. It is plain that, as indeed Miss Morris in the course of argument conceded, it was extremely unlikely that consultants out of the locality, without proper access, unable to participate and supervise properly in terms of the Guidance Notes, and knowing of the views of all those consultants who had been involved with the Applicant and her treatment (as indeed it was inevitable and proper that they should), would be willing to take on supervision in the terms of the Tribunal's conditions. Indeed, although the net was spread ever wider, it is in my judgment clear that the Tribunal's conditions can only have been complied with if a local consultant was carrying out the necessary supervision. As it is, not even a local social worker could be found who was prepared to comply with the other condition laid down by the tribunal (not the responsibility of this Respondent), and today there is no supervising forensic consultant psychiatrist available and willing to comply with the Tribunal's condition, not even the Applicant's own witness, Dr Balakrishna, who, as set out above, neither offers to carry out such role nor even supports the condition of residence at home. I reject the criticisms of Miss Morris. One of the negative responses which it is suggested should have been more fully explored by the Respondent is that of Dr Boast, Consultant in Forensic Psychiatry with City and Hackney NHS Trust, by his letter dated 30^th December 1999:-
"Thank you for your letter of 24 December 1999 asking whether I would be willing to supervise [Miss K]. The short answer is that I would not. This is based on the fact that her local forensic services do not think that she should be living with her family. I have copied your letter and enclosures to my colleagues here asking them to reply directly."
It was suggested by Miss Morris that there should have been a further follow up by the Respondent. I do not accept that the Respondent was in breach of duty in not following up that negative response; but in fact as it turns out, we do, it seems, have the response of at any rate one of those colleagues, for the Applicant's own witness, Dr Balakrishna, is such a consultant with what appears to be that very NHS trust, (its name now slightly changed but based at the same address). As set out above, even his response is similarly negative, even after further and detailed consideration.
5. I am satisfied therefore that there is no breach of duty by the respondent.
6. There is in those circumstances, an impasse, such as to justify (and indeed in accordance with the analysis of Otton J. and Scott Baker J. to require) the invitation by the Respondent to the Secretary of State to make a reference under Section 71; which he has done. As I indicated above, Miss Morris's submission was that the Respondent's duty was absolute, such that it would be in breach of such duty, even if there were no further steps it could reasonably take. In such circumstances, Miss Morris submitted that there would be a "technical breach", in respect of which no relief would be granted to the Respondent. As I have set out above, in my judgment the duty is not absolute, and it would be inappropriate and unsustainable to conclude that an Authority which had taken all reasonable steps (such as I have concluded the Respondent to have done here), was still in breach of obligation, even if escaping sanction of the court. But even if, contrary to my firm conclusion, such duty were absolute, I would be satisfied in this case that there was indeed only what Miss Morris would then describe as a technical breach. Miss Morris accepts, rightly in my view, that in the event of a finding of such technical breach, in that case too there would be an impasse, in the sense that there would be nothing further that could reasonably be, or be ordered by the court to be, done. There is in my judgment therefore, on the findings I have made, even on Miss Morris's own submissions, which I have rejected, an impasse, and a proper and sensible invitation to the Secretary of State to exercise his powers to refer to a further tribunal under Section 71, so that that matter can now be fully reconsidered.
22. For the avoidance of doubt, I should record that I entirely reject any suggestion, such as was made, that Dr Kennedy or any of the consultants, have "thwarted" the conclusions of the Mental Health Review Tribunal. As I have set out above, all those doctors are and were entitled, and indeed obliged, to exercise their own professional judgment, and indeed all they were doing was indicating that they were not prepared themselves to supervise the applicant in the conditions prescribed. Neither Dr Kennedy nor Dr Hamilton nor Dr Duffield:-
(i) themselves owe a statutory duty pursuant to Section 117(2) of the MHA, or otherwise, nor any duty to the Tribunal, nor are they compellable by the Respondent or by the Applicant or by the court, to carry out the supervision which was the condition imposed by the Tribunal for the discharge of the applicant, and indeed for the investigation of which the conditional discharge was deferred, which must carry with it at the very least, in the light of Ex Parte Fox and Ex Parte Hall, the possibility that it would not be forthcoming, such that the provisions of Section 73(7) might apply or the conditions for Section 71 might arise
(ii) are in any way estopped or barred by the Tribunal's decision from exercising their own professional judgment.
Whatever may be the impact of the obiter dicta of McCullough J. in R v Home Secretary Ex Parte K [1990] 1 WLR 168 at 181E-C, where he would regard as unlawful a decision by the Secretary of State to recall, in the absence of some fresh development, a patient who had been a week earlier discharged by a Tribunal, such reasoning cannot apply to inhibit the professional judgment of consultants in this case, or certainly not so as to compel them to carry out supervision themselves, or to be regarded as `thwarting' the conclusion of a Tribunal if they decline to do so.

23. In those circumstances, this application is dismissed.


MR. JUSTICE BURTON: For the reasons which I briefly gave on the previous occasion, and now more fully set out in my judgment, I have dismissed the application. Miss Morris, thank you for your one or two typographical errors in the judgment. I picked up quite a lot more. I do not know if you have had an opportunity of checking through the judgment last night in the format in which it was handed down.
MISS MORRIS: I have not looked through it again.
MR. JUSTICE BURTON: It incorporated the one or two changes which you wanted. It did not incorporate the changes that Mr Bear wanted because the word processor would not cope with his acute accent. The other changes are mainly corrections of the documents which I had not had time to go through when I handed down the judgment. There were some lines missing but I think you had that earlier in the week.
MISS MORRIS: I have seen that.
MR. JUSTICE BURTON: The last paragraph was missing completely and the last paragraph but one, there were some words garbled in the last two lines. Hopefully there was no substantive change. You applied on the last occasion for leave to appeal which I refused. I think I sorted out costs on the last occasion.
MISS MORRIS: You did, my Lord.