QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF H|
|MENTAL HEALTH REVIEW TRIBUNAL|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MS NATHALIE LIEVEN (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Crown Copyright ©
Thursday, 7th December 2000
"Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law...or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified."
"The conditions referred to in subsection (1) above are that-(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either-
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act;
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as 'a restriction order'.
(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows-
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under sections 42, 73, 74 or 75 below...
(b) no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) below;
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely-(i) power to grant leave of absence to the patient under section 17 above;
(ii) the power to transfer the patient in pursuance of regulations under section 19 above...and
(iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer;
(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;
and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule."
"(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restriction set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.
(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant."
"A patient who is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, shall, subject to the provisions of this subsection, be treated for the purposes of the provisions of this Act mentioned in Part 1 of Schedule 1 to this Act as if he had been so admitted or placed on the date of the order in pursuance of an application for admission for treatment or a guardianship application, as the case may be, duly made under Part II of this Act, but subject to any modifications of those provisions specified in that Part of that Schedule. "
"Patients Not Subject To Special Restrictions
Sections...[25C] to 28...shall apply in relation to the patient without modification."
"Sections...23...shall apply in relation to the patient with the modifications specified in paragraphs 3 to 9 below."
"Section...23...shall apply in relation to the patient with the modifications specified in paragraphs 3 to 8 below.
I shall return to paragraph 7.
Meanwhile, however, it is necessary to go back to section 23 of the Act which is headed "Discharge Of Patients"; this section is of course in Part 2 of the Act relating to civil patients. Section 23(1) provides:
"Subject to the provisions of this section and 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him from detention or guardianship (in this Act referred to as 'an order for discharge') is made in accordance with this section.
(2) An order for discharge may be made in respect of a patient-
(a) where the patient is liable to be detained in hospital in pursuance of an application for admission for assessment or for treatment [I pause there because both counsel agree that there should be a pause there as if there were a comma] by the responsible medical officer, by the managers or by the nearest relative of the patient;
(b) where the patient is subject to guardianship, [now there is a comma] by the responsible medical officer, by the responsible local social services authority or by the nearest relative of the patient."
"Without prejudice to any provision of section 66(1) above as applied by section 40(4) above, an application to a Mental Health Review Tribunal may also be made-
(a) in respect of a patient admitted to a hospital in pursuance of a hospital order, by the nearest relative of the patient in the period between the expiration of six months and the expiration of 12 months beginning with the date of the order and in any subsequent period of 12 months;"
"Applications To Tribunals Concerning Restrictive Patients
A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to a Mental Health Review 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."
"...a person who has for the time being the functions under the Act of the nearest relative of a patient who is not a restricted patient."
"...the patient, the responsible authority, any other person to whom a notice under rule 7 or rule 31(c) is sent or who is added as a party by direction of the tribunal."
"The responsible authority [viz the managers of the hospital where the patient is detained] shall send a statement to the tribunal and, in the case of a restricted patient, the Secretary of State, as soon as practicable and in any case within three weeks of its receipt of the notice of application; and such statement shall contain-
(a) the information specified in Part A of Schedule 1 to those Rules in so far as it is within the knowledge of the responsible authority..."
"9. The dates of all previous tribunal hearings in relation to the patient, the decisions reached at such hearings and the reasons given. (In restricted patient cases this requirement does not relate to decisions before September 30, 1983).
10. Details of and proceedings in the Court of Protection and of any receivership order made in respect of the patient.
11. The name and address of the patient's nearest relative or of any other person who is exercising that function.
12. The name and address of any other person who takes a close interest in the patient.
13. Details of any leave of absence granted to the patient during the previous 2 years, including the duration of such leave and particulars of the arrangements made for the patient's residence while on leave."
"On receipt of the authority's or, in the case of a [conditionally discharged patient], the Secretary of State's statement, the tribunal shall give notice of the proceedings..."
"where any person other than the applicant is named in the authority's statement as exercising the functions of the nearest relative, to that person; and...
(f) to any other person who, in the opinion of the tribunal, should have an opportunity of being heard."
"The tribunal shall give a least 14 days' notice of the date, time and place fixed for the hearing (or such shorter notice as all parties may consent to) to all the parties and, in the case of a restricted patient, the Secretary of State."
"The decision by which the tribunal determines an application may, at the discretion of the tribunal, be announced by the president immediately after the hearing of the case and, subject to paragraph (2), the written decision of the tribunal, including the reasons, shall be communicated in writing within 7 days of the hearing to all the parties and, in the case of a restricted patient, the Secretary of State."