England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Friday, 15th December 2000

JUDGMENT
1. MR JUSTICE COLLINS: In form, this case involves an application by the Secretary of State for a declaration that a decision by a Mental Health Review Tribunal, made on 14th March of this year, to adjourn a case before it until 8th June of this year, was wrong in law. We are now in December. As may be obvious, the adjournment itself is long past and to that extent the claim is academic. Indeed, no one has appeared before me to represent the patient whose case the Tribunal was hearing. But the issue is of considerable importance to the tribunals and to patients. In those circumstances, it is clearly desirable that the matter should be decided, particularly as it is unlikely that any decision to adjourn will be live by the time judicial review claims could be heard. There is ample authority to justify me hearing the case, notwithstanding that it may be thought to be academic.
2. Although no one has appeared on behalf of the patient involved, Mr Bowen has been permitted to appear before me and to make submissions on behalf of another patient who found himself in exactly the same position in a hearing before another tribunal. It has been helpful to have submissions from the patient's point of view, and I am satisfied that all possible arguments relevant to the issue have been placed before me.
3. The factual background can be shortly stated. The patient, whom I shall refer to as "Ms W", was convicted in December 1990 of offences of burglary, handling and possession of an offensive weapon. Reports before the Crown Court showed her to be suffering from a psychopathic disorder, and so she was ordered to be detained in a special hospital and a restriction order was made. She was placed in Broadmoor. She applied to the Mental Health Review Tribunal in October 1999; this was not her first application. A few days before the hearing was due, her solicitors wrote requesting an adjournment because, to quote the letter:

"We feel that it would be very helpful to the Tribunal to have information about a possible assessment from an all-women unit before deciding this tribunal ..."

4. Two days later, the Home Office, who had of course been notified and served with this letter from the patient's solicitors, wrote to the Tribunal saying this:

"I should be grateful if you would respectfully remind both the solicitors and the Tribunal members that directions about transfers are outside the Tribunal's remit and that, therefore, it is inappropriate for the hearing to be adjourned solely for that purpose."

5. The reference to transfers is because what was being considered was not an immediate discharge but the possibility that Ms W would be transferred to a less secure hospital on the way to eventual discharge.
6. On 14th March, notwithstanding the Home Office objection, the Tribunal decided that the matter should be adjourned. The form which the Tribunal sent to the parties, which is headed "Notice of adjournment", contains a box in which the reasons for the adjournment are to be set out. The Chairman, who was His Honour Judge Meier, said this:

"This was an application supported by the patient's RMO who was very keen for an early assessment with a view to transfer to a less secure accommodation. [The RMO] has taken steps to arrange funding although this has not yet been confirmed. She has identified two possible units as suitable and would anticipate an early assessment in April. If the assessment is positive, it would support the recommendation made by the Tribunal in 1998, but without a positive assessment it would be difficult for the current Tribunal to take the matter further. On balance the Tribunal believe an adjournment to 8 June 2000 would be of benefit to the patient."

7. Those reasons have been expanded and explained in a witness statement which has been served by Judge Meier in these proceedings. In paragraph 3 of that statement, he says:

"The reason for the adjournment was that the Tribunal wished to know the outcome of the assessment of Ms [W's] suitability for transfer to less secure accommodation, her responsible medical officer (RMO) having identified two units as being potentially suitable, so as to decide whether to reiterate its own previous recommendation at the hearing in 1998, which had been ignored, for transfer to less secure accommodation."

8. He says, in paragraph 5 of that statement:

"Whether or not the Tribunal was correct on this particular occasion, I respectfully ask the court to give Tribunals some guidance on the scope of the power to adjourn in Rule 16, both in relation to applications concerning sections 72 and 73, and generally. It is my personal experience, and I am informed it is the experience of other Tribunals, that a narrow construction of the power to adjourn is in some cases a hindrance to the doing of justice and to furthering the best interests of the patient."

9. Thus the adjournment was solely to enable the Tribunal to decide whether a recommendation should be made, as it had done before at a previous hearing in 1998, for Ms W's transfer to a less secure hospital in order to prepare for her eventual discharge.
10. A considerable body of evidence has been put before me, both on behalf of the patient represented by Mr Bowen, and the Tribunal, setting out the advantages which would accrue were the Tribunal able to assist the Secretary of State by making such recommendations. Further, there are, it is said, disadvantages to the patient if that cannot be investigated, since it is usual for a patient to be discharged gradually so that he or she is not sent straight from a completely secure unit to the outside world.
11. Since the Secretary of State is concerned that no restricted patient should be released unless he can be sure that there is no danger to the public, but equally that none should be detained unless their condition requires it, he would obviously, it is said, be assisted in his task by the view of an expert tribunal such as a Mental Health Review Tribunal. The Secretary of State takes issue on some of the points raised on behalf of the Tribunal and the intervener. While I am prepared to accept that a recommendation from a tribunal, based on its assessment of the evidence available, is valuable and likely to be of assistance to the Secretary of State, the suggested advantages, and disadvantages if recommendations cannot be made, cannot help me in deciding the point of construction which is involved in this case.
12. As will be seen when I consider the statutory provisions in more detail, there is no express power under the Mental Health Act 1983 which enables the Tribunal to make such a recommendation in the case of restricted patients. But tribunals do regularly make such recommendations and it is not suggested that they are forbidden to do so. If they do make a recommendation, the Secretary of State will take such recommendation into account, but is not bound to follow it. His approach was indicated by the then minister in the Home Office, Mr Douglas Hogg QC, in a written answer to a Parliamentary question on 28th October 1987.
13. The question was what steps the department currently took when, in relation to a patient to whom section 73 of the 1983 Act applied, that is to say a restricted patient, a Mental Health Review Tribunal included in its written decision a recommendation that a patient be granted leave of absence or be transferred to another hospital, or be transferred into guardianship. The reply from the minister was this:

"Any such recommendation received in the Home Office is acknowledged, and any comments are offered which could usefully be made at that stage. Correspondence with the tribunal is copied to the patient's responsible medical officer, since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on a tribunal's recommendation, full account is taken of the tribunal's views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the tribunal had made."

14. The minister went on to indicate that there was no intention to amend section 73 to enable tribunals to make recommendations in the case of restricted patients.
15. I should now set out the relevant statutory provisions, all of which are contained in the Mental Health Act 1983. The power for a court to make a hospital order and to impose restrictions are contained in sections 37 and 41. I do not need to cite them. I only note section 41(3)(c)(ii), which provides:

"The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows ...

"(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely -

"(ii) power to transfer the patient in pursuance of regulations under section 19 above ..."

16. or in pursuance of subsection (3) of that section. It is section 19 which empowers the Secretary of State to make regulations to deal with the transfer of patients from one hospital to another, or into guardianship of a local social services authority or any person approved by such an authority.
17. The right of application to and provisions dealing with the constitution of mental health review tribunals are contained in Part V of the Act, starting with section 65. Section 70 provides that a restricted patient may apply to a tribunal:

"(a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order or transfer direction; and

"(b) in any subsequent period of 12 months."

18. Thus, there is a right of application every year to the Tribunal. If a patient does not make an application, the Secretary of State is required to ensure that there is an application put before a tribunal at least every three years.
19. Section 72 contains the general powers of tribunals in relation to discharge. As may be recalled, the reason why tribunals were instituted in the first place was because of an adverse finding in the European Court of Human Rights in a case called X v United Kingdom (1981) 4 EHRR 188, that the absence of any independent consideration of whether a patient should be discharged was a breach of the Convention. Hence, Parliament provided that the mental health review tribunals should be instituted and should deal with whether there ought to be a discharge of the patient.
20. For restricted patients slightly different considerations apply because there is a greater control by the Secretary of State over the power to discharge. If a patient has been transferred to a hospital from a sentence of imprisonment, and if it is decided that he no longer needs treatment and should be discharged from the hospital, it may be that he still has a period of his sentence to run, in which case although he is discharged from the hospital he will not necessarily be discharged from custody because he will have to be returned to the prison. It may be that he can then be released on parole or on licence, but that will be a matter for the Secretary of State to decide, as he decides in relation to prisoners generally, subject of course to the views of the Parole Board in appropriate cases.
21. Coming back to section 72, subsection (1) reads:

"Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and ...

"(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied -

"(i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

"(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment", and (iii) I do not need to read.

22. I draw attention to the word "then" in section 72(1)(b)(i), because that clearly indicates that the Tribunal must consider the question whether there should be a discharge at the time the matter is before it. It is looking to the present in the sense that it is dealing with the patient's condition as it appears to it then. It is not, on the face of it, concerned with improvements, in the sense that it cannot decide he will be able to be discharged in the future. That, of course, is subject to any specific provisions in the Act to the contrary.
23. Subsection (3) of section 72 is of importance. It reads:

"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 do 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."

24. There we see, in relation to the general powers under section 72, that the Tribunal is specifically given the power to defer discharge and to make a recommendation that steps be taken with a view to facilitating his discharge, which may involve the transfer to another hospital. The importance of that, in relation to restricted patients, is that it is disapplied, and as I will indicate, there is Court of Appeal authority which confirms that that is indeed so. The result is, as we shall see, that a tribunal dealing with a restricted patient has no statutory power, either to defer discharge, that is to say to direct a discharge at a future date, or to make any recommendation, which of course would follow because the recommendation is intended to facilitate the future discharge.
25. Subsection (5) enables the Tribunal to direct that there be a reclassification of the patient if it is satisfied that the patient is suffering from a different form of mental disorder than that which is recorded against him, or that which led to his being placed in the hospital in the first place, it can direct that that different form of mental disorder is recorded in the place of the one which was previously on the record. That particular subsection does apply in relation to restricted patients as well as any other patient. So much has been decided by at least two cases, and no argument has been put before me to suggest that those decisions were erroneous.
26. Finally, subsection (7) provides:

"Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below."

27. Section 73 is the section which deals directly with the power to discharge restricted patients. Subsection (1) reads:

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

"(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and

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

28. Subsection (2):

"Where in the case of any such patient as is mentioned in subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.

"(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 ...

"(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 ..."

29. I do not think I need read any more of section 73.
30. It will be seen from that that the powers of the Tribunal are limited. First, it may discharge absolutely; second, it may discharge conditionally; and thirdly, it may decide that it is not appropriate to discharge. When one adds in the powers given by section 72(5) it will be seen that the statutory powers of the Tribunal are thereby limited to four courses of action, because one adds in the power to reclassify.
31. It is, I am told, somewhat rare for a discharge to be ordered directly from a secure hospital into the community, and one can well understand why that should be so. Nonetheless, it is clear that the powers of the Tribunal are limited by the section in the way that I have indicated. So far as conditions are concerned, it is equally apparent that a transfer to another hospital, albeit less secure, is not a condition which can properly be imposed on ordering a discharge; the reason being the obvious one, that it would not be a discharge if it was required that the patient be kept in another hospital. Indeed, there is authority which I do not need to cite which makes that plain, but as I say, it seems to me that it is self-evident.
32. Finally, one comes to section 78, which is headed "Procedure of tribunals" and contains the rule making power. Subsection (1):

"The Lord Chancellor may make rules with respect to the making of applications to Mental Health Review Tribunals and with respect to the proceedings of such tribunals and matters incidental to or consequential on such proceedings."

33. Subsection (2):

"Rules made under this section may in particular make provision ..."

34. Then there are subparagraphs (a) to (k), which deal with specific matters which can be contained in the rules. The relevant one for our purposes is (j), which reads:

"for conferring on the tribunals such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of their functions under this Act."

35. The Rules made in pursuance of section 78 are the Mental Health Review Tribunal Rules 1983 (SI 1983 No 942). There are wide powers given in those rules, which is not surprising because the Tribunal's powers are relatively wide under section 72. They are limited in relation to restricted patients by section 73. It is perfectly obvious that the rules must be read subject to any limitations which are contained in the statute. The rules cannot give to the Tribunal powers which are not given by the statute.
36. They do indicate, as Miss Foster has pointed out, that the Tribunal is given an inquisitorial role. It is up to the Tribunal to obtain evidence in the form that it thinks appropriate, and to seek the assistance of such witnesses as it thinks appropriate. Normally those witnesses will be medical witnesses. The Tribunal itself has a medical member who is able, and indeed in, I am told, virtually all cases will carry out his own examination of the patient in question and will report that to the Tribunal, which will then take it into account in reaching its decision.
37. There is the usual general Rule 13 which provides:

"Subject to the provisions of these Rules, the tribunal may give such directions as it thinks fit to ensure the speedy and just determination of the application."

38. "Speedy" is of some importance in this field because those detained, be they restricted or other patients, have lost their liberty, and it is essential, as the Human Rights Convention makes plain, that they should not be detained any longer than is necessary or reasonable in all the circumstances. I say that because when one is dealing with discharge one has to recognise that it may take some time to enable conditions to be fulfilled, or placements to be established, before the discharge can actually take place. But the need for as much speed as possible at all stages is, I would have thought, obvious.
39. Rule 16(1) is the rule which was applied in the circumstances of this case. It reads:

"The tribunal may at any time adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate."

40. The basic submission made by Mr Rabinder Singh, on behalf of the Secretary of State, amounts to this. When considering the functions, within the meaning of section 78(2)(j), one is to look at what in a particular case the statute permits or requires the Tribunal to do. In respect of restricted patients, as I have already indicated, that is limited to discharge or no, and to classification. Thus, the power of adjournment can only be exercised, it is submitted, for that purpose; that is to say for the purpose of enabling the Tribunal to decide whether there should be a discharge or not, whether conditions should be applied to such a discharge, or whether there should be a reclassification in the circumstances of the case.
41. Miss Foster, on behalf of the Tribunal, submits that on their true construction the Act and the Rules do permit adjournments for the purpose of considering a recommendation for a transfer; that is to say an equivalent power to that given in section 72(3). Mr Bowen also argues that that is so, but further contends that Article 5(4) of the European Convention on Human Rights, now applied by the Human Rights Act of 1998, requires that section 72(3) be construed to apply to restricted patients, because otherwise they might be unlawfully detained.
42. In R v The Nottingham Mental Health Review Tribunal ex parte Secretary of State for the Home Department, a decision of the Court of Appeal which is unreported and was decided on 15th September of 1988, of which I have been provided with a transcript, the court was concerned to decide the question whether a Mental Health Review Tribunal, considering whether to discharge a restricted patient under section 73, had power, when it accepted that the statutory criteria for such a discharge were not presently satisfied, to adjourn the application to give an opportunity for the condition of the patient to improve. What had happened there was that the doctor in charge of the patient had started a new type of treatment and it wanted to see whether that new treatment proved successful after an interval of some six months. If the improvement in the patient continued, then no doubt the Tribunal took the view that it might be able to order the discharge that it did not feel able to order at the time that it was considering the application before it.
43. As Miss Foster has correctly pointed out, the question there was not the same as here, since the tribunal in the Nottingham case had, before deciding to adjourn, concluded that there could be no discharge, but the reasoning of the court is important.
44. The court was referred to an earlier Court of Appeal decision, a case which was later affirmed by the House of Lords, R v Oxford Regional Mental Health Review Tribunal ex parte Secretary of State for the Home Department [1986] 1 WLR 1180. In that case, the limited powers of the Tribunal under section 73 were noted. Balcombe LJ, who gave the only reasoned judgment in the Nottingham case, referred to the submission made in the Oxford case by Mr Laws, as he then was, where he pointed out the limited options available to the Tribunal in section 73 cases. He did not then refer to the reclassification power, not surprisingly, because the authorities which establish that section 72(5) does apply to section 73 cases, that is the reclassification, had not then been decided. The court was looking at the narrow terms of section 73. In any event, the additional reclassification power can in no way affect the reasoning of the Court of Appeal or the outcome of the case before it.
45. Having referred to and cited Rule 16, the court at page 15 of the transcript said this:

"Mr Pannick [who was appearing on behalf of the Secretary of State], as I understood it, on behalf of the Secretary of State accepted that if a tribunal requires further information as to the present state of health, particularly the mental health, of a patient, clearly that is a purpose for which it can properly exercise its power of adjournment. But, as will have been apparent from the extracts both from the letter giving the reasons for the tribunal's decision and the affidavit of Judge Woods, to which I have already referred, that was not the purpose for which the Trent tribunal adjourned [the patient's] case. They adjourned it not to monitor it themselves, as apparently was at one time suggested, but to enable [the doctor] to monitor [the patient's] mental state, and in particular to see whether the improvement in that state (which had come about by the introduction of lithium into his medication) was maintained. That, it seems to me, cannot properly be described as an adjournment for the purpose of obtaining further information within the first part of Rule 16."

"... Mr Pleming then relied on the second limb of Rule 16, namely the power of a tribunal to adjourn a hearing:

"'for such other purposes as it may think appropriate.'

46. "Those words are, of course, very wide and, taken by themselves, I accept could well have justified an adjournment for the purpose of monitoring the continued state of a patient's health. But, of course, the Rules must be construed in the light of the Act and, in particular, of the powers contained in the Act to make Rules. I have already referred to the rule making power under section 78 and, in particular, to section 78(2)(j)", which he then cites.
47. He continues:

"So it becomes necessary to consider what are their functions under the Act.

"At this point, I think it would be appropriate to say that for my part I would not think it right to criticise in any way the tribunals for exercising their powers in the way they did in the particular cases; nor, as I understand it, did the learned judge below. No attack was made on their bona fides nor, indeed, on the quality of their decisions, if they had power to make them. The question is simply: did they have power under the Act and under the Rules to adjourn these applications for the purposes for which they did adjourn them?

48. "I have already referred to the passage from Lawton LJ's judgment in [the Oxford case] stating that a tribunal really only has three options under section 73", and he then sets them out.
49. He goes on:

"The tribunal in such a case is, of course, exercising a judicial, as opposed to an administrative, function. A judicial function does not of itself preclude the possibility of an adjournment to see whether or not conditions which are not then satisfied will be satisfied at some future date, if that is within the scope of the powers which the Act in question gives the tribunal. In my judgment the Act does not give a mental health review tribunal any such powers. It has, as I have said, no general supervisory function over the progress of a restricted patient. That is the function of the Secretary of State. It has certain specific judicial powers to be exercised in relation to the application before it, and I remind myself of the wording contained in section 72(b)(i) which I have already read and which is incorporated by reference in section 73:

"'the tribunal shall direct the discharge of a patient ... if they are satisfied ... that he is not then suffering from mental illness ...'

"Where the tribunal is satisfied that the criteria of section 73(1) and (2) are not then fulfilled and it is, therefore, inappropriate to direct the absolute or conditional discharge of a patient, in my judgment the tribunal has no power to adjourn the proceedings in order to give the condition of the patient an opportunity to improve or ... an opportunity to see if an improvement already made is sustained. Its powers to adjourn the hearing are under Rule 16 and are primarily for the specific purpose of obtaining further information, and I have already indicated what I believe that may relate to. There may well be other matters which would entitle a tribunal within those powers to grant an adjournment but not, as I have already said, for the purpose of seeing whether a patient's condition improves or an improvement is sustained."

50. Obvious other matters are to enable a fair hearing to take place. It may, for example, happen that the patient's representatives have not done what they ought to have done and have not put before the Tribunal sufficient material, or have conducted themselves in such a way as shows that they are not able to assist the Tribunal in their functions. That may be a reason to adjourn. One can think, although it is not necessary to give examples, of other situations when, as I say, fairness would dictate the need to adjourn. But as it seems to me, the reasoning of Balcombe LJ that I have just set out makes it plain that in considering whether or not to adjourn under Rule 16, the Tribunal must bear in mind that the only purpose for which they can adjourn is to enable them to carry out their statutory duties or powers. That, as it seems to me, is made perfectly clear.
51. The fact that in the Nottingham case the situation was different in that the tribunal had there made its mind up that it could not discharge, whereas here the Tribunal had not necessarily reached that decision, seems to me to be nothing to the point. The Court of Appeal was making it clear that the Act governed the exercise of the power to adjourn.
52. That the provisions of section 72(3) do not apply has been confirmed by a decision of the Court of Appeal, R v Oxford Mental Health Authority Review Tribunal and Another ex parte Smith. Again, the case is unreported, but it is dated 25th January 1995, and I have been provided with a transcript taken from the net. That was a case in which it seems that I obtained leave as counsel. That was in November 1993, and although the Court of Appeal directed that the matter should be heard speedily, it did not come before the court until January 1995, by which time I was on the bench and so other counsel took over.
53. The question at issue was whether an earlier decision of McNeill J, which concluded that the section 72(3) powers were excluded by section 73, was correct. That decision was Grant v Mental Health Review Tribunal of Trent, again unreported, and was reached in April 1986. The only reasoned judgment in the Oxford case was given by Sir Ralph Gibson. At the bottom of page 5 of the transcript he records:

"Mr Fitzgerald, for the SHSA, in his written submissions supported those submissions to which I have referred. Both he and Mr Richards referred to the decision of McNeill J ... for the proposition that in the case of a Restriction Order patient the Tribunal has no power to recommend the grant of leave of absence or transfer."

54. Then on the next page, he concludes:

"For my part I regard the conclusion of McNeill J in Grant v Tribunal as correct, and I accept, in substance, the submissions of the Tribunal and the SHSA. I have not found the drafting of this part of the 1983 Act to be easy to follow, but in the end I have no doubt that s 72(3) does not give a statutory power to a Tribunal to make a recommendation in the case of a restricted patient under s 73."

55. He then gives his reasons, which I do not need to set out. I only refer to his third reason, where he says:

"It might be thought, in support of the Applicant's contention, that in any case where it is directed that a patient need not be discharged it may be seen as useful by a Tribunal to recommend leave or transfer:

"'with view to facilitating the discharge on a future date ...'

"with the following power to: 'Further consider his case in the event of any such recommendation not being complied with' but if that were the intention I can see no reason why the draftsman should limit the description of circumstances in which the power arises to: 'Where a Tribunal do not direct discharge' under s 72(1), particularly because in the closely following section, s 72(5), the draftsman expressly referred to a wholly general situation."

56. Both Miss Foster and Mr Bowen accept that they cannot take that argument any further, at least before me. Miss Foster submits that the approach is too narrow. The rule making power, and the Rules themselves, are in very wide terms and are consistent, she submits, with the existence of the relevant power. Functions ought to include anything a tribunal may lawfully do. Since they may lawfully make a recommendation, so, she submits, it is properly to be regarded as part of their functions to do so. She drew my attention, in support of her argument, to section 51(3) of the Act, which deals with those serving sentences of imprisonment who are transferred while they are serving their sentence to a mental hospital. Subsection (3) provides:

"If the Secretary of State is notified by the responsible medical officer, any other registered medical practioner or a Mental Health Review Tribunal at any time before the detainee's case is disposed of by that court -

"(a) that the detainee no longer requires treatment in hospital for mental disorder; or

"(b) that no effective treatment for his disorder can be given at the hospital to which he has been removed, "the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital ..."

57. I need read no more. This, submits Miss Foster, shows that the Act contemplates that there should be, certainly in those cases, an advisory role placed upon the Tribunal, or at least if she does not go that far, that the Act indicates that the Tribunal must have wider powers than those that are set out in section 73.
58. That seems to me not to follow at all. If a prisoner is in a mental hospital he has the same right to apply to a tribunal as any other patient in a hospital. The Tribunal's powers are the same under section 73. If they order discharge then that can only mean of course discharge from the hospital, because the prisoner will still be subject to his sentence of imprisonment. It follows that they must notify (and indeed section 74(1)(a) confirms the existence of this duty), as indeed they must in any case, the Secretary of the State of their conclusion. In my view, it does not indicate that there are any extra powers given to the Tribunal beyond those contained in sections 72 and 73 so far as applicable.
59. She further submits that the Tribunal's character is relevant. As the Rules demonstrate it has an inquisitorial function, and therefore it is entitled to obtain any material relevant to the application before it. In my judgment, all that the Rules confer upon the Tribunal is latitude in the manner in which it exercises its function. They in no way indicate what is the extent of those functions, and they do not go beyond or give additional powers to those conferred by the Act. Miss Foster accepts that the Tribunal is not entitled to direct transfer, that is a matter solely for the Secretary of State. The power, as I say, is limited, in my view, in the way that the Court of Appeal has indicated in the Nottingham case. The attempts by Miss Foster to distinguish on the facts, for the reasons I have already given, do not prevail.
60. Miss Foster also sought to raise an argument, which was not put before the court in Nottingham, which relies on the general words in section 78(1). She submits that it is not necessary to look at section 78(2)(j) in order to enable the Tribunal to have a power to adjourn. That power would, in any event, be available under the wording of section 78(1) because adjournments are clearly incidental to the applications before the Tribunal.
61. I entirely accept that there would have been a power to adjourn implicit in any event, but that power would have been limited to adjournments in order to ensure fairness, and for the purposes of enabling the Tribunal to exercise its functions properly. So one has the same thing. The only purpose for which an adjournment could properly be granted under section 78(1) would be precisely the same as that under section 78(2)(j), because however wide the power is stated to be, it must, in my judgment, be exercised for the purposes of enabling the Tribunal to do what the statute requires it to do.
62. Mr Bowen submits that there is to be implied into the Act a power to give advice. This, he submits, arises because the Secretary of State must obtain advice in order to carry out his functions in relation to transfer and to discharge. There is nothing to limit the bodies or persons from whom he can seek such advice. If the Tribunal gives him advice in the form of a recommendation, he will take it into account.
63. Mr Bowen drew my attention to observations of Lightman J in R v Secretary of State for the Home Department ex parte Harry [1998] 1 WLR 1737. The challenge in that case had been taken to the Secretary of State's approach, a recommendation having been made. What the Secretary of State did in that case was himself to seek advice from the Advisory Board on Restricted Patients, notwithstanding that a recommendation in relation to transfer had been made by the Tribunal. On behalf of the applicant, it was submitted that it was irrational for the Secretary of State so to act, because the Tribunal had already itself considered the matter carefully and had, after such consideration, decided to make the recommendation. Lightman J decided that it was not irrational and indeed the Secretary of State acted properly in deciding that further advice was needed.
64. The reason that my attention was drawn to the case was because Mr Bowen indicated that it made clear that the Secretary of State did have regard to and act in accordance with, in the sense that he regarded it as a material consideration, the recommendation that had been made. However, on page 1746 at letter B, the learned judge said this:

"Parliament has not by the Act of 1983 conferred upon the tribunal any role (even as advisers) on the issue before him: the tribunal would not have even entered into the picture but for the Secretary of State adopting the practice of entertaining the tribunal's recommendations. It is the Secretary of State (and not the tribunal) who is by statute entrusted with the task of deciding whether to give consent and he cannot have deprived himself of access to further information if he considers this to be required."

65. It seems to me that that passage is not helpful to the submission that has been made by Mr Bowen. The patient undoubtedly has a legitimate expectation that the Secretary of State will pay heed to the advice given, not that he will follow it, but that he will take it into account in reaching his decision. Mr Bowen submits that it follows from that that there is a legitimate expectation that the Tribunal should be able to give the best advice that it can, and therefore to get information to enable it to do so. The Secretary of State, he submits, is entitled to seek advice from the Tribunal, and again, that means that the Tribunal should be in a position to give him such advice. The fallacy of that argument is that the Secretary of State does not seek advice from the Tribunal. Of course, if the Tribunal chooses to give it, he will properly take it into account.
66. In any event, the submissions are imaginative and ingenious but are unacceptable. The fact that there may be a legitimate expectation that advice will be heeded if given does not indicate that the Tribunal should in all cases, or indeed whenever it thinks fit, obtain material relevant only to the giving of such advice. That is not its role. It is not, as Lightman J emphasised in the Harry case, an advisory body. Its role is limited, as I repeat, by the provisions of sections 72 and 73.
67. Mr Bowen then further submitted that there was a breach of Article 5(4) of the European Convention on Human Rights. He recognised that his argument had been made somewhat more difficult as a result of a recent decision of the Divisional Court in The Queen on the Application of B. v Secretary of State for the Home Department. The judgment was given on 3rd November of this year. The point at issue in B.' case was the Prison Service's refusal to reclassify the applicant from category C to category D. The significance of that was that the Parole Board had advised that that should happen because that was the route to parole, which was what Mr B. desired. The argument essentially was that the failure to do that would result in the applicant spending a longer time in prison, and if an independent body, equivilent to the court, had decided that that should not happen, it was not proper for the Secretary of State to override that decision.
68. There is Strasbourg authority, in Ashingdane v United Kingdom (1985) 7 EHRR 528, which is to a large extent inconsistent with the arguments being presented by Mr Fitzgerald. Ashingdane was a case involving a mental patient who had been subject to a restriction. He had been committed to a mental hospital and placed in a secure special hospital. In 1978 his condition had improved and the Home Secretary had authorised his return to a local psychiatric hospital. The health authority for that hospital had refused to accept him because there was a dispute with the staff at the hospital, who had indicated they would not take patients who had been the subject of a restriction order because they believed that the conditions at the hospital were not safe, and that therefore it was wholly inappropriate that such patients should come to them. The result of that was that the applicant had to remain in the secure hospital for some two years, and the argument was that that constituted a breach of Article 5(4) of the Convention. The court unanimously held that there had been no violation of Article 5(4).
69. It is to be noted that at paragraph 42 of the judgment, the court records the submission made on behalf of the applicant:

"In this regard, there were important differences between the two regimes at Broadmoor and Oakwood. Mr Ashingdane's transfer to Oakwood had a proximate connection with a possibly recovery of liberty, in that, in the circumstances, it constituted an unavoidable staging post on the road to any eventual discharge into the community."

70. The conclusion, in relation to Article 5(4), is contained in paragraphs 51 and 52 of the judgment, which read:

"Mr Ashingdane's second grievance was that the domestic judicial proceedings he was able to take did not give him access to a court with jurisdiction to decide his claim that his continued detention at Broadmoor Hospital after October 1978 was unlawful. He alleged a breach of Article 5(4), which provides:

"'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.'

"52. Article 5(4) does not guarantee a right to judicial control of the legality of all aspects or details of the detention. The scheme of Article 5, when read as a whole as it must be, implies that in relation to one and the same deprivation of liberty the notion of 'lawfulness' should have the same significance in paragraphs 1(e) and 4. Thus, the domestic remedy available under paragraph 4 should enable review of the conditions which, according to paragraph 1(e), are essential for the 'lawful detention' of a person on the ground of unsoundness of mind.

"However, the claims that the applicant was prevented by operation of section 141 of the 1959 Act from pursuing before the national courts do not fall within the scope of the judicial determination of 'lawfulness' which Article 5(4) guarantees. As noted above, in his domestic litigation the applicant did not challenge the legal basis for his detention as a person of unsound mind under the 1959 Act or seek his release from the reality of detention: he was claiming an entitlement to accommodation and treatment in the more 'appropriate' conditions of a different category of psychiatric hospital, a matter not covered by paragraph 1(e) of Article 5.

"Accordingly, the dismissal of his actions against the responsible authorities did not give rise to a breach of Article 5(4)."

71. It must be obvious that that decision creates a very great difficulty for Mr Bowen in the submissions that he makes. The court has made clear that Article 5 is concerned with whether the detention was lawful and not with whether the circumstances in which he is detained are appropriate. Here, transfer would have the same effect. Transfer would be to a less secure hospital, one in which conditions were no doubt better for the patient, or less restricted for the patient, than Broadmoor. But she would still be detained, and she would still be lawfully detained as a result of the order of the court.
72. True it is that if a tribunal were to order discharge, subject to conditions, but the administration took too long a time to achieve that discharge, then there might be a breach of Article 5. But that is a different situation, because in that situation the court, that is to say the Tribunal, has made a direction that there should be a discharge. Accordingly, the continued detention is unlawful unless it is reasonable to take whatever time is taken to ensure that the conditions can be complied with. That is, as I say, a very different situation from that in this case, and distinguishes the other case to which I was referred, Johnson v United Kingdom (1999) 27 EHRR 196.
73. B.' case followed Ashingdane, and I think it perhaps is unnecessary for me to refer to more than paragraph 69 in the transcript, of which I have been provided, where Elias J said this:

"I do not accept Mr Fitzgerald's argument. I accept that the decision of the Secretary of State may well have an adverse effect on the applicant. Plainly, it will make it more difficult for him to persuade the [Discretionary Lifer Panel] DLP on the next assessment that he should be released than it would have done if the DLP's recommendations had been followed. But that, in my judgment, is not a decision which constitutes a deprivation of his liberty or an unlawful detention. It does not prevent him from being periodically considered by the DLP as to whether his continued detention is lawful, nor does it affect the criteria which is to be adopted by the DLP when making that determination."

74. If one substitutes the Mental Health Review Tribunal for the DLP, one sees the analogy.
75. In addition, when considering issues which raise the application of the Convention I have been reminded of the approach which the court should adopt, set out in the recent judgment of the Privy Council in the case of (1) Procurator Fiscal, Dunfermline and (2) Her Majesty's Advocate General for Scotland's v Margaret Anderson Brown, which was delivered on 5th December of this year. Lord Bingham of Cornhill, giving the leading judgment, said this under the heading "Conclusions":

"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment according to those bodies: see Lester and Pannick, Human Rights Law and Practice, (1999) at pp. 73-6. The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from 'The heart-ache and the thousand natural shocks that flesh is heir to'.

"In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the Court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a 'living tree capable of growth and expansion within its natural limits' (Edwards v Attorney-General for Canada [1930] AC 124 at 136 per Lord Sankey LC), but those limits will often call for very careful consideration."

76. In his speech, Lord Steyn made similar points under the subheading "(II) The Objectives of the Convention". I do not propose to extend this judgment by reading them; they are in the Privy Council report.
77. The United Kingdom has of course been a signatory to the European Convention since its outset 1951. Since 1966 it has granted the right of individual access, and there have been a considerable number of cases against the United Kingdom before the court. We now have incorporated the Convention into our law by the Human Rights Act of 1998. But, as it seems to me, the view that that makes a sea change is an erroneous one. We have had, over the years since 1951, to comply with the terms of the Convention. Sometimes, as decisions of the court have made plain, we have not succeeded in doing so. But for the most part, the practices and procedures carried out in this country do comply with the terms of the Convention, and it is wrong to approach the matter with a view that there may be a breach. Rather, as it seems to me, the approach should be that the court will not accept a breach unless persuaded and satisfied that there is one.
78. Certainly at first instance, as it seems to me, a court should be very slow indeed to find that a rule of law applied or legislation is not compliant with the European Convention on Human Rights. Unless, as I say, persuaded or satisfied that there is such a breach, the court ought to apply the existing law. It is not, as it seems to me, for first instance judges to branch out on their own, and we must always bear in mind the approach which I have already referred to, which is set out by Lord Bingham and by Lord Steyn in the Brown case.
79. In the light of B. and Ashingdane, Mr Bowen's ability to rely on Article 5(4) is, as he recognises, severely constrained. What he has submitted is that if the Secretary of State unreasonably vetoes a transfer, Article 5 may be engaged. Therefore, there is, he says, a need to construe section 72(3) widely and to apply it to section 73. It seems to me that simply does not follow. If the Secretary of State were unreasonably to veto a transfer, there is no need for Article 5. Domestic law would give all the necessary protection. There would be judicial review available. There would be habeas corpus available and there may even be available a claim for damages. If of course the Secretary of State acts reasonably, then again, there can be no importation of Article 5(4), as the authorities make clear.
80. Accordingly, I reject the arguments put before me by both Miss Foster and Mr Bowen. In my judgment, as I have indicated, the power of adjournment was not properly exercised in the circumstances of this case.
81. Before leaving the case, I would like to make clear that nothing I have said is intended to inhibit the Tribunal from making recommendations if it considers it appropriate in any case to do so. Equally, there is nothing to prevent the Tribunal receiving or seeking evidence relevant to that issue, nor can it be criticised if it chooses to do so. What it cannot do is to use its powers of adjournment solely for the purpose of obtaining such material. If it has reason to adjourn to obtain information material to the matters upon which it has to decide, that is to say discharge or classification, there is nothing to stop the Tribunal at the same time obtaining information which may be relevant to transfer.
82. One can readily see that in some cases there may be an overlap between the two, and the Tribunal may be assisted in its functions by seeing what the position might be in relation to conditions, or in relation to whether discharge should be gradual or immediate. But the Tribunal, whether or not it has a duty to do so, clearly, and this is in accordance with good practice, does give reasons for adjourning. The form, as I have already indicated, has a box on it which is headed "Reasons for Adjournment". So, if the Tribunal decides to adjourn, it must have and must give reasons which show that there was a proper purpose behind such adjournment. That must mean that there is something beyond the desire to obtain the material which would be relevant only to the making of a recommendation.
83. At one time in the course of the argument I did consider whether it might be open to a tribunal to adjourn, if it was likely that in a relatively short time they would be able to direct discharge. But on reflection, I am satisfied that there is no such power. It would be contrary to the reasoning of the Court of Appeal in the Nottingham case because, of course, it would be satisfied that then the applicant should not be discharged. If it reached that conclusion then its decision must be, in accordance with section 73, no discharge. But in such a case, the Tribunal would no doubt make a very strong recommendation, and equally the Secretary of State would undoubtedly pay heed to such a recommendation.
84. MR JUSTICE COLLINS: Now, Mr Rabinder Singh, in the light of that, any declaration required?
85. MR RABINDER SINGH:My Lord, can I deal with that and some other points while I am on my feet, if your Lordship would permit. My Lord, the only declaration that we sought in the application to this Court is at page 1 in the court bundle. We would suggest that that would suffice and it probably is appropriate that the Court should make some formal order.
86. MR JUSTICE COLLINS: Yes.
87. MR RABINDER SINGH:My Lord, a declaration that the decision of the Tribunal, dated 14th March, to adjourn was unlawful.
88. MR JUSTICE COLLINS:I think that follows.
89. MR RABINDER SINGH:If anyone wants to know why your Lordship is so concluded they can read the judgment.
90. MR JUSTICE COLLINS:They can read the judgment. Yes, I think that is probably appropriate.
91. MR RABINDER SINGH:My Lord, that move we submit is appropriate. More than that, we suggest is unnecessarily and potentially dangerous.
92. MR JUSTICE COLLINS:I agree, subject to anything that either of you two would like to say.
93. MISS FOSTER: My Lord, yes. My friend and I have had an opportunity to have a brief word. I do not seek a complicated declaration, but I wonder if it might be helpful to insert into those bare words to adjourn "solely for the purpose"?
94. MR JUSTICE COLLINS:No, I think because --
95. MISS FOSTER: I do not mind terribly, I have to submit.
96. MR JUSTICE COLLINS:No, I do not think it is necessary or appropriate. The reasons why it was unlawful can be seen from the judgment.
97. MISS FOSTER: They can be seen plainly from the way your Lordship has put it in the judgment, I respectfully accept that, yes.
98. MR RABINDER SINGH:Yes, I am grateful to my learned friend for that.
99. My Lord, then if I could just briefly deal with one or two other matters.
100. MR JUSTICE COLLINS: Yes.
101. MR RABINDER SINGH: On costs we make no application.
102. MR JUSTICE COLLINS:No, that does not surprise me.
103. MR RABINDER SINGH:My Lord, can I deal with two drafting points.
104. MR JUSTICE COLLINS:Yes, of course. I indicated that I would welcome it. As you will appreciate this was, albeit it not entirely exemplary, it was not wholly reading --
105. MR RABINDER SINGH:My Lord, there were two points that did occur to me as I was listening to your Lordship's judgment. The first was that when my Lord was discussing the reclassification power in section 72(5), my Lord said that there might be situations where the Tribunal would reclassify the type of mental illness.
106. MR JUSTICE COLLINS:That is wrong, is it not.
107. MR RABINDER SINGH:It should be mental disorder.
108. MR JUSTICE COLLINS:Mental disorder, yes.
109. MR RABINDER SINGH: Instead of illness.
110. MR JUSTICE COLLINS:Because mental illness is one of the types of mental disorder. Yes, I think I realised when I said that that it was wrong. When I check the transcript I will change that.
111. MR RABINDER SINGH:Indeed, my Lord. My Lord, the second point requires slightly more elaboration and it really follows from the fact that your Lordship did not need me to reply in full. It is a point I would have made in reply if it had been necessary.
112. MR JUSTICE COLLINS: Yes.
113. MR RABINDER SINGH: My Lord referred to the submissions of Miss Foster on section 51(3) --
114. MR JUSTICE COLLINS: Yes.
115. MR RABINDER SINGH: -- in relation to prisoners who have been transferred to hospital, and on the subject of a restriction direction by the Secretary of State. My Lord, there is in fact an express duty on the Tribunal in the Act to notify the Secretary of State of their --
116. MR JUSTICE COLLINS:I had assumed, I am bound to say, that they would have to.
117. MR RABINDER SINGH:My Lord, that is in section 74, which is at page 294 in the manual.
118. MR JUSTICE COLLINS:Thank you very much for drawing that to my attention. Section 74?
119. MR RABINDER SINGH: (1)(a). It might be helpful in case the judgment is referred to --
120. MR JUSTICE COLLINS:I will amend that to make that clear. It simply makes express what I had assumed to be implicit.
121. MR RABINDER SINGH:Indeed. My Lord, that is right.
122. MR JUSTICE COLLINS:So, the point that Miss Foster was making was not a good one.
123. MR RABINDER SINGH:My Lord, yes. As it was unnecessary for me to make that point yesterday I thought I would draw that to your attention.
124. MR JUSTICE COLLINS: I am grateful.
125. MR RABINDER SINGH: My Lord, there is nothing else for my part.
126. MR JUSTICE COLLINS:Thank you. Miss Foster, is there anything that you wish to say?
127. MISS FOSTER: My Lord, I would seek your Lordship's leave to appeal this judgment. It is a matter which is of some interest.
128. MR JUSTICE COLLINS: Yes.
129. MISS FOSTER: Those who instruct me would be concerned, particularly since they are, it is fair to say, blocked by the Court of Appeal judgment, around which it was impossible for your Lordship to find in my favour.
130. MR JUSTICE COLLINS:You mean the Smith case or Nottingham?
131. MISS FOSTER: The Nottingham case, which construes the power --
132. MR JUSTICE COLLINS: Yes.
133. MISS FOSTER: -- to make rules in a particular way.
134. MR JUSTICE COLLINS:I am bound to say, Miss Foster, that I found your arguments wholly unpersuasive. That is the problem. I recognise that the point is perhaps an important one, but it is a point for Parliament and not for the courts, I think, on the clear --
135. MISS FOSTER: My Lord, the centre of my submissions, as your Lordship will remember, was that the word "functions" should be construed wider than just some of the express powers.
136. MR JUSTICE COLLINS: Yes.
137. MISS FOSTER: It is my submission, as your Lordship heard, that that can be done by examining, one can construe that word more widely --
138. MR JUSTICE COLLINS: Yes.
139. MISS FOSTER: -- in the way that I said. It is a narrow and a neat point which I respectfully suggest in this context may well appear to their Lordships as arguable. I would suggest that because it is of such wide importance, although your Lordship was, as I was very well aware, wholly unpersuaded by what I was saying.
140. MR JUSTICE COLLINS:Yes, I take that point. But how important is this in fact? I appreciate that tribunals are concerned to obtain the necessary information, because they find it a useful --
141. MISS FOSTER: Yes.
142. MR JUSTICE COLLINS: -- and patients want them to be able to do this. But how often is it going to arise that an adjournment is going to be solely for this ...
143. MISS FOSTER: My instructions are that there are many cases in which adjournments are --
144. MR JUSTICE COLLINS:You surprise me, because I would have thought that in many there would be a perfectly proper reason to adjourn to get more information which might be relevant to the questions that they do have to determine. I appreciate information from RMOs, or from other hospitals, as to what the position would be there could not properly be said to fall into that category.
145. MISS FOSTER: No.
146. MR JUSTICE COLLINS:It could normally fall into that category, but I have endeavoured to make clear that there is nothing to stop the tribunal getting that, they simply cannot use their power to adjourn.
147. MISS FOSTER: The most material evidence is that evidence that is from the place to which the patient will be transferred.
148. MR JUSTICE COLLINS:Yes, I follow that.
149. MISS FOSTER: As your Lordship has said, it is very difficult to knit that into information.
150. MR JUSTICE COLLINS:Sometimes you can because the Tribunal may be wavering as to -- and if they were satisfied that proper arrangements could be made, they may say, "well this is a borderline case, we are not in those circumstances prepared to direct discharge, but we will make a recommendation." If on the other hand no sensible arrangements could be made, or it transpired that perhaps it was thought that on balance it was not necessary, then they might reach a different conclusion. Who knows? All I am saying is that I take your point on the difficulty. But I would have thought that there were some instances where you could, justifiably, and I am not in any way suggesting that tribunals would, as I think I put it in argument, fudge the issue, of course they would not. They would only do, if assuming that I am right --
151. MISS FOSTER: My Lord, if one --
152. MR JUSTICE COLLINS:On a proper basis.
153. MISS FOSTER: Entirely so, and if one assumes that the Tribunal is content that it has material in order to answer its statutory questions.
154. MR JUSTICE COLLINS: Yes.
155. MISS FOSTER: They cannot then say, "we want more material to consider broadly his condition".
156. MR JUSTICE COLLINS: That is true.
157. MISS FOSTER: It is a indication, I would respectfully suggest, given that it would be helpful to them to have this power. It would be better for them, if it were available, to give reasons that are not wholly accurate, or not broad enough to truly reflect the position.
158. MR JUSTICE COLLINS:The difficulty with this, of course, is if I give you leave to go to the Court of Appeal you are not going to fare any better in the Court of Appeal.
159. MISS FOSTER: That is your Lordship's --
160. MR JUSTICE COLLINS:Because Nottingham is clearly binding. You really want a leapfrog, but I do not think the circumstances for a leapfrog would exist. I certainly would not, and I do not imagine the Secretary of State would consent anyway.
161. MISS FOSTER: No.
162. MR JUSTICE COLLINS:So there is no question of that. Let me see what Mr Rabinder Singh has to say. Mr Bowen, I do not think you are really involved in this argument.
163. MR BOWEN: I did want to make a couple of points, if I may. Firstly, because I am, in fact, a party to the proceedings.
164. MR JUSTICE COLLINS:I am not sure you are, are you?
165. MR BOWEN: On this point there was some dispute about it, but I know my learned friend, Mr Rabinder Singh, is not taking any issue on that.
166. MR JUSTICE COLLINS: I can never remember what the rules provide. I have had this before.
167. MR BOWEN: I am a party by virtue of section 151 of the Supreme Court Act. Once notice of the proceedings have been served on a person they become a party for those purposes.
168. MR JUSTICE COLLINS:All right. I will assume that that is right, that you are a party.
169. MR BOWEN: It may assist if I go by way of supporting Miss Foster's application for leave to appeal, rather than by making an application in my own right.
170. MR JUSTICE COLLINS:I think so. I think I would have grave doubts as to whether you ought to be able to make an application in your own right. You are only here, in a sense, on sufferance, because your client is not directly involved. So far as he is concerned it is all academic. So I really think that, as I say, I would have the gravest doubts as to whether you were in a position properly to appeal. I do not know whether you are privately or publicly funded?
171. MR BOWEN: Publicly funded, my Lord.
172. MR JUSTICE COLLINS:Certainly, as I said, I am grateful to you for being here. It was valuable to have an input from the point of view of the patients, but that is all there.
173. MR BOWEN: My Lord, perhaps then if I can make these submissions in support of Miss Foster's application.
174. MR JUSTICE COLLINS: Certainly, you may support Miss Foster.
175. MR BOWEN: There are really two matters which, in my respectful submission, the court could very helpfully consider. The first one is the construction of section 72(3). I am well aware that the court is bound by its own decision in Smith.
176. MR JUSTICE COLLINS: Yes.
177. MR BOWEN: It was shown to be wrong, to use the words the "British aeroplane test". But there is one particular point which was not brought to the attention of the Court of Appeal in Smith which I did raise with your Lordship. Your Lordship has not dealt with it in the judgment because you are bound by Smith, but it is this issue that section 72(3) not only confers a power to make a recommendation, but it also confers a power to direct discharge at a future date.
178. MR JUSTICE COLLINS: Yes.
179. MR BOWEN: The point that, of course, I made to your Lordship is that, as presently construed, under section 73 the tribunal has a power to defer discharge in the case of a patient who is to be discharged conditionally, but has no power whatsoever to direct the future discharge of a patient in those circumstances. I gave the example arising from the House of Lords' decision in Reid(?). If a tribunal were to find that a patient, however dangerous, were considered to be untreatable, one who suffered from psychopathic disorder, they would have no option but to direct their immediate absolute discharge. It seems to me that that point not having been put to the Court of Appeal may, in fact, permit them to come to a different conclusion from that in Smith and find that, in fact, section 72(3) does apply to restricted patients, because it would then give a tribunal power to direct the future discharge of a patient to be discharged absolutely.
180. MR JUSTICE COLLINS:How would that help with the situation you have described?
181. MR BOWEN: Because the purpose of directing a patient's discharge at a future date is to permit the arrangements that are obliged to be made under section 117 to be made. A patient who has been restricted, perhaps in a secure hospital for many years, will require a very tight package of care. They cannot be imposed by way of conditions, by virtue of the fact that the patient has to be absolutely discharged.
182. MR JUSTICE COLLINS: No, quite.
183. MR BOWEN: But nevertheless that patient is entitled to very supportive aftercare: housing, perhaps placed in a hostel, contact with social worker, that sort of thing. As we know from the case of Hall(?), which my learned friend Mr Rabinder Singh referred to yesterday, at present the Tribunal cannot wait until a proper section 117 plan is before it, before it can consider whether to exercise its powers under the Act. So what one has is a potentially very dangerous situation, as a result of the manner in which section 72(3) has been construed today.
184. MR JUSTICE COLLINS:You would say it is a dangerous situation as a result of the way the Act has been drafted, and the limitation of the powers under section 73. It does not mean that section 72(3) has to be construed in an artificial way, in order to meet a perceived problem. This is all a matter for Parliament. They have taken long enough, as it is, to get round to dealing with some of the anomalies and difficulties that arise under the 1983 Act, but Mr Rabinder Singh told me yesterday that he was instructed that a White Paper is imminent. I know there is consideration -- I think there has been some committee, has there not, which has been considering the Mental Health Act?
185. MR BOWEN: It was the expert committee to which I referred your Lordship yesterday, who have recommended that there be in fact a power of transfer -- well, a power to order transfer, not only to recommend it.
186. MR JUSTICE COLLINS:One frankly sees the force of it. But there are political -- or at least there are no doubt reasons -- why we have not been allowed it.
187. MR BOWEN: My Lord has heard the submissions I made yesterday on the other points.
188. MR JUSTICE COLLINS: Yes.
189. MR BOWEN: It is my respectful submission also that the Article 5(4) point is one that should be considered by the Court of Appeal in this context, because you are bound by B.. But it may well be, and certainly I would seek to persuade --
190. MR JUSTICE COLLINS:I think B. is right, I am bound to say.
191. MR BOWEN: My Lord may be right about that, but it is a very important issue.
192. MR JUSTICE COLLINS:I think Ashingdane dishes you, I do not think B. is necessary, frankly.
193. MR BOWEN: I am aware of your Lordship's views on that. That is my application.
194. MR JUSTICE COLLINS:Thank you very much. Mr Rabinder Singh.
195. MR RABINDER SINGH:My Lord, very briefly, obviously it is a matter for the Court's discretion. The test for permission to appeal is whether there is any real prospect of success in the Court of Appeal.
196. MR JUSTICE COLLINS:Yes, that is right.
197. MR RABINDER SINGH:I have to say, with respect to my learned friends, that given the forceful way in which my Lord has expressed the judgment, and given especially that much of the reasoning is based upon decisions of the Court of Appeal --
198. MR JUSTICE COLLINS: Yes.
199. MR RABINDER SINGH: -- Nottingham and Smith, it does in our respectful submission become clear that this is one of those cases where your Lordship can be confident that permission ought not to be granted.
200. As for the point about B., it is accepted that that is not binding on the Court of Appeal as it was in this Court. But as my Lord has just indicated, the real problem Mr Bowen faces is Ashingdane, not B..
201. MR JUSTICE COLLINS:Yes, that is my view. Thank you.
202. No, sorry is there anything you want to add, Miss Foster? No, I do not think this is an appropriate case for leave to appeal to be granted. I appreciate the point is an important one for the Tribunal and for patients, but I am utterly satisfied that there is no real prospect of success before the Court of Appeal. If that court decides that they ought to entertain the matter with a view, perhaps, to letting it go further, then that must be a matter for them, not for me.
203. Mr Rabinder Singh, your copy of B.. With many thanks. Was this yours, Miss Foster, or was this yours, Mr Bowen?
204. MISS FOSTER: I think it may be mine.
205. MR JUSTICE COLLINS:Yes, it is yours.
206. MISS FOSTER: Thank you.
207. MR JUSTICE COLLINS:It comes from your chambers' library. We now have to sign a form saying why we refuse leave to appeal, which irritates me beyond measure since it is on the transcript, but there we are.
208. Thank you all for your assistance. I had forgotten I gave leave in this one, did I not, originally.