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Cite as: [2001] EWHC Admin 1037

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IH Re An Application for Judicial Review R (on the Application of v Nottinghamshire Healthcare Nhs Trust & Ors [2001] EWHC Admin 1037 (5th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1037
		Case No: CO/93/2001

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

5 December 2001

B e f o r e :

MR JUSTICE BELL
____________________

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW THE QUEEN ON THE APPLICATION OF
IH
Claimant

- and -

(1) NOTTINGHAMSHIRE HEALTHCARE NHS TRUST

(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT

(3) SECRETARY OF STATE FOR HEALTH
Defendants

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Tim Owen Q.C. and Miss Aswini Weereratne, (instructed by David Mylan for the Claimants )
Miss Kristina Stern, (instructed by Hempsons, for the First Defendant NHS Trust )
Mr James Eadie, (instructed by the Treasury Solicitor, for the Second and Third Defendants)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

MR JUSTICE BELL:

This application raises issues as to whether the Mental Health Act 1983 (“the Act”), and in particular its provisions governing the conditional discharge and deferral of conditional discharge of “restricted patients”, are compatible with Article 5 of the European Convention on Human Rights. The context in which those issues arise involves the stipulation by the Mental Health Review Tribunal (“MHRT”) that upon conditional discharge, the claimant, a patient at Rampton Special Hospital, should be supervised in the community by a forensic psychiatrist, and the inability, despite every effort of the Health Authority to whose area he would be discharged, to find a psychiatrist prepared to supervise him. The psychiatrists approached considered in summary that the claimant needed a period at a medium secure unit before release into, and supervision in, the community could be considered safe or appropriate. The first defendant, Nottingham Healthcare NHS Trust, is the authority which administers Rampton and which is charged with detaining the claimant. The second defendant, the Secretary of State for the Home Department (“SSHD”), carries statutory duties and powers in relation to restricted patients such as the claimant, who are subject to detention under sections 37 and 41 of the Act. The third defendant, the Secretary of State for Health is responsible for mental health legislation. The claimant and all three defendants were represented at the hearing of the application. The MHRT was named as an interested party but was not represented at the hearing and took no part in the proceedings.

The relief ultimately claimed on the application is :

“A declaration under section 4(2) of the Human Rights Act 1998 that sections 73(2) and/or (7) of the Mental Health Act 1983 are incompatible with Articles 5(1)(e) and/or (4) of the Convention in that Mental Health Review Tribunals lack the power to guarantee that such conditions as they may attach to a deferred order for conditional discharge will be implemented within a reasonable period of time from the making of the order.”

The essential background is that on 2 March 1995, the claimant cut off the penis and testicles of his three year old son. The boy was rescued by his mother, Ms J, who was at that time the claimant’s partner. His penis and one testicle were surgically re-attached but the boy is still disturbed by his experience and his condition. He lives with his mother in North London.

The claimant was charged with causing grievous bodily harm with intent to do so. On 4 May 1995 he was transferred to Rampton under section 28 of the Act. On 21 July 1995, at Wood Green Crown Court, he was found not guilty by reason of insanity, and the court made an order under section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) authorising his admission to such hospital as might be specified by the SSHD. On 1 September 1995 the SSHD issued a warrant authorising the claimant’s transfer to and detention in Rampton. All this had the same effect as a hospital order under section 37 of the Act with an order under section 41 restricting his discharge without limitation of time; that is, he became “a restricted patient”.

The scheme of the Act relating to the discharge from hospital of restricted patients by MHRTs is essentially contained in sections 70 to 73.

By section 70, a restricted patient who is detained in a hospital may apply to a MHRT

“(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 ….. , and

(b) in any subsequent period of 12 months,”

By section 71,

“(1) The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.

(2) The Secretary of State shall refer to a Mental Health Review Tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.”

By section 72(1) (as amended from 26 November 2001 by The Mental Health Act 1983 (Remedial) Order 2001 under the remedial provisions of section 10 of the Human Rights Act 1998, to take account of Regina (H) v. Mental Health Review Tribunal North & East London Region (Secretary of State for Health Intervening [2001 3WLR 512),

“(1) 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 –

(a) ……

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied –

(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any one 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 necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

(iii) …..”

By section 73(1) and (2) (as similarly amended),

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

(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and

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

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

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

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

the tribunal shall direct the conditional discharge of the patient.”

The wording of sections 72(1) and 73(1) had previously, since 1983, placed the burden upon the patient to prove that the criteria justifying his detention in hospital for treatment no longer existed. The MHRT had to be “satisfied ….. that he is not then suffering from mental disorder”, for instance. The amendments require the MHRT to be positively satisfied in accordance with Articles 5(1) and (4) that all the criteria justifying the patient’s detention in hospital for treatment or justifying his conditional rather than absolute discharge continue to exist before refusing his discharge or directing his conditional discharge. But the criteria for continued detention, or absolute or conditional discharge remain the same.

By section 73(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 the 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.”

Section 117 applies to (among others) patients who have been admitted to hospital pursuant to an order under section 37, and then cease to be detained and leave hospital. By section 117(2),

“It shall be the duty of the Health Authority and of the local social services to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Health Authority and the local social services 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.”

By section 117(3) the relevant authorities are those for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.

MHRTs have at least one, but normally just one, medical member, and rule 11 of the Mental Health Review Tribunal Rules 1983 provides that the medical member, or at least one of them where there are more than one, shall examine the patient and take such steps as he considers necessary to form an opinion of the patient’s condition.

Rule 14 empowers a MHRT to take evidence on oath, and to subpoena any witness to appear before it or to produce documents, and by rule 15 it may call for further information or reports

Rule 16 gives an MHRT power to adjourn the hearing of an application for discharge for the purpose of obtaining further information or any other appropriate purpose, with the power to give directions to ensure prompt consideration of the application.

The original diagnosis in the claimant’s case was paranoid psychosis, and on 18 July 1996 a first MHRT made no direction for discharge.

On 7 September 1998, the claimant’s Responsible Medical Officer (“RMO”) at Rampton, Dr Sagar, reported in advance of a further MHRT hearing, that:

“I[H] is currently mentally well, stable and is on no medication for the past 18 months or so. Retrospectively it proved to be drug induced psychosis at the time of his offence ….. As far as I am concerned as long as Mr H keeps away from drugs, in my opinion, there is no risk whatsoever …… He has recently been seen by a consultant from [Chase Farm/Camlet Lodge in Enfield] a Regional Secure Unit, and it appears that verbally he has been accepted to go there to less secure surroundings. I shall recommend this myself unreservedly.”

On 11 September 1998, a second MHRT made no direction for discharge or reclassification of the claimant’s mental disorder. The reasons were that the claimant still suffered from mental illness and his further detention for the protection of the public was justified, but the tribunal endorsed the view expressed by the RMO that he should be transferred to a suitable Regional Secure Unit (“RSU”) for further observation and treatment.

No trial leave or transfer from one hospital to another, for instance from a special hospital to an RSU, can be granted in respect of a restricted patient unless the SSHD consents, and he did not consider such leave or transfer appropriate. An MHRT can not grant leave or direct transfer, although it can recommend it. The SSHD refused permission for trial leave at Camlet Lodge.

A further MHRT hearing was fixed for 7 June 1999. In December 1998 Dr Sagar had reported that the claimant was symptom free and in a state of natural remission. He had not been on any medication for more than 18 months. Dr Naresh Gandhi, a psychiatrist instructed by the claimant’s solicitor, reported on 31 May 1999, expressing the opinion that the claimant did not suffer, and had not for the past two years suffered, from a mental disorder within the meaning of the Act. Consequently, in Dr Gandhi’s opinion, he could not be legally detained in hospital under the Act. Dr Gandhi could not understand, in clinical terms, any proposal to move the claimant to medium security; he recommended discharge to some less restricted residence. Dr Page who had taken over from Dr Sagar as RMO did not support conditional discharge. The SSHD expressed the view that conditional discharge was not appropriate.

On 7 June 1999, the MHRT adjourned the hearing of the application in the following terms:

“Having considered all the medical evidence we have come to the conclusion that Mr H is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment. We adjourn the hearing until 1 December 1999 at the latest for a full Care Plan to be drawn up. The Terms which we consider should probably be attached to the Conditional Discharge are –

1. Supervision by a named social worker.

2. Supervision by a named forensic psychiatrist; Mr H to be subject to the directions of the psychiatrist including any relating to drug monitoring.

3. Residence at a suitable hostel, preferably staffed 24 hours a day.

If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed.

We require Haringey Council to provide full details of a suitable plan at the adjourned hearing.”

In August 1999, Dr Page asked the Mental Health Unit of the SSHD for consent to trial leave at Camlet Lodge. Enfield and Haringey Health Authority, the health authority for the purposes of section 117 of the Act, made extensive efforts to find forensic psychiatric supervision for the claimant upon any discharge. Its attempts were unsuccessful, primarily because Dr Akinkunmi, consultant forensic psychiatrist of the North London Forensic Service, took the view, shared by all his colleagues, that “a proposed conditional discharge direct into the community was clinically inappropriate, and unsafe”. He would be happy to have the claimant at Camlet Lodge for a period of trial leave, but he and his colleagues declined to supervise the claimant, as named forensic psychiatrist on conditional discharge.

Dr Page reported Dr Akinkunmi’s views to the tribunal at the adjourned hearing on 3 February 2000. Her own view, and that of the clinical team at Rampton was that the claimant was making progress and remained free of psychotic symptoms without psychotropic medication, but that further psychological work was required to address risk areas. She recommended that he “should continue to receive treatment in hospital for his mental illness in medium secure conditions to ensure safe, gradual rehabilitation ….. Mr H should transfer on trial leave to Camlet Lodge RSU under the care of Dr Akinkunmi”.

On 3 February 2000 the MHRT made “a Conditional Discharge order”, but deferred his discharge. Its findings were partly in tabulated form.

The tribunal answered “yes” to Question A:

“Is the Tribunal satisfied that the patient is not now 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 the patient to be liable to be detained in a hospital for medical treatment?”

It answered “yes” to Question B:

“Is the Tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?”

It answered “no” to Question C:

“Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?”

The reasons given for the Tribunal’s decision were:

“Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a Conditional Discharge order in the following terms:

1. There shall be supervision by a named social worker;

2. There shall be supervision by a named psychiatrist, preferably by a Forensic Psychiatrist;

3. Mr H shall be subject to the directions of the psychiatrist including any relating to drug monitoring;

4. Mr H shall reside at a suitable hostel, preferably staffed 24 hours a day;

5. Mr H shall be excluded from Enfield, Haringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose.

Mr H’s discharge shall be deferred until the arrangements listed have been made.”

Mr Tim Owen Q.C. for the claimant suggested, in argument, that at the time of making that deferred direction for conditional discharge, the Tribunal “well knew the unlikelihood of conditions being met, but made the decision”; indeed at one point he went so far as to suggest that the Tribunal knew that the condition of supervision by a named psychiatrist was incapable of being fulfilled. He argued that it was clear from the decision of R v. Mental Health Review Tribunal and Others, Ex parte Hall [2000] 1 W.L.R. 1323, that a MHRT could impose conditions of discharge which it knew could, or probably would, not be met. See Kennedy L.J. at page 1352:

“ ….. nothing in any statutory provision, or any rule of procedure, requires the tribunal to have available a care plan setting out workable conditions before the conditions are imposed.”

I cannot accept this. It is clear that Kennedy L.J. was speaking in the context of reasonable conditions. In my judgment a condition which a Tribunal positively knows will be impossible or highly unlikely to be put into effect is not reasonable. The Tribunal knew of very firm opposition from the North London Forensic Service and that the Health Authority could not provide a psychiatrist in its catchment area, and that psychiatrists in other areas had refused to be nominated in the light of the view of the North London Forensic Service. However, Dr Page had informed the Tribunal that the Health Authority had “not …. yet” been able to meet the condition of supervision by a named forensic psychiatrist proposed at the time of the June 1999 adjournment, but that yet a further forensic unit was being approached. Moreover, the Tribunal’s expressed concern that “no supervising psychiatrist has yet been identified” (my emphasis) intimates to me that it retained a real hope that one would be found: hence, no doubt, the deferment until arrangements, which included a supervising psychiatrist, had been made.

Thereafter, further efforts were made to find a psychiatrist who was prepared to supervise the claimant in the community but without success. It is accepted on behalf of the claimant that the Health Authority made genuine attempts to find a psychiatrist, and that the refusals of those who were approached were based on genuine clinical opinions.

Dr Page pressed the SSHD about her request for trial leave for the claimant at Camlet Lodge RSU, but this was refused because of its location within the exclusion zone imposed by the Tribunal to protect Ms J and her son who live in that area. He has had escorted leave in the community. But there has been stalemate so far as his conditional discharge is concerned.

The claimant’s solicitors invited Dr Page to seek consent from the SSHD for unescorted leave, daily from Rampton, to put him in as close a position as possible to conditional discharge, but Dr Page did not consider this appropriate. The claimant applied for leave to apply for judicial review of the failure of Dr Page, and therefore the Nottinghamshire Healthcare NHS Trust, to request unescorted leave, and for judicial review of the failure of the SSHD to make statutory provision guaranteeing the implementation of the deferred conditional discharge within a reasonable time. Ultimately, on 23 July 2001, the Court of Appeal dismissed the claimant’s application against the first defendant NHS Trust, but gave permission to apply for judicial review against the SSHD second defendant.

The details of remedies sought in the claimant’s amended Judicial Review Claim Form were a declaration of incompatibility under section 4(2) of the Human Rights Act 1998, and a declaration of entitlement to damages. During the hearing Mr Owen and Miss Weeraratne refined the form of declaration of incompatibility to that set out in paragraph 2 of this judgment. The claim in respect of damages was abandoned before the hearing on the basis that any claim would have to be made against a public authority under section 7(1)(a) of the 1998 Act, alleging an unlawful act for the purposes of section 6(1). But section 6(2) disapplies section 6(1) in respect of any act if, as a result of one or more provisions of primary legislation, the authority could not have acted differently, and Mr Owen accepted that in the present state of primary legislation as presently interpreted by the Court of Appeal, this would save any of the public authorities directly or indirectly responsible for the claimant’s continued detention from a claim under section 7(1). It was still contended that the Claimant has been detained in breach of Article 5(1) and 5(4), but as an illustration of the alleged incompatibility of section 73(2) and/or (7) of the Act with Article 5(1) and (4) of the Convention.

On 23 July 2001, the Court of Appeal suggested that the SSHD might refer the claimant’s case to the MHRT under section 71(1) of the Act, and the SSHD did so by letter dated 25 July 2001. A hearing is fixed for 7 December 2001. In the statement prepared by Dr Page for that hearing, she expresses the view that although the claimant’s illness is in remission, the possibility of recurrence makes it appropriate for him to receive further treatment in hospital, in medium security, allowing safe, gradual rehabilitation, testing and monitoring. He no longer requires treatment in high security conditions at Rampton. But he suffers from a mental illness which warrants his detention in hospital for treatment in the interests of his own health and for the protection of others. Discharge is not recommended. Dr Gandhi now considers that it is inappropriate for the claimant to remain liable to be recalled to hospital; he recommends an absolute discharge. However, the question of incompatibility remains, whatever the result of that hearing.

Article 5 of the Convention provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

……

(e) the lawful detention ….. of persons of unsound mind …..

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

In Winterwerp v. Netherlands [1979] 2 EHRR 387 at page 403, the European Court of Human Rights set out the criteria for establishing that a person is of unsound mind, justifying detention, for the purpose of Article 5(1)(e), thus:

“In the court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – this is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.”

Moreover, Tribunals which merely advised a department of state upon the release (as was the position in this country before the 1983 Act) fell short of satisfying Article 5(4). See X v. United Kingdom [1981] 4 EHHR 188, which led in part to the enactment of section 72 and 73 of the Act, at page 210, paragraph 61, thus:

“the 1959 Act provides the opportunity for a periodic review on a comprehensive factual basis by mental health review tribunals. There is nothing to preclude a specialised body of this kind being considered as a ‘court’ within the meaning of article 5(4), provided it enjoys the necessary independence and offers sufficient procedural safeguards appropriate to the category of deprivation of liberty being dealt with. Nonetheless, even supposing mental health review tribunals fulfilled these conditions, they lack the competence to decide ‘the lawfulness of [the] detention’ and to order release if the detention is unlawful, as they have advisory functions only.”

But even where a MHRT has found that a patient is no longer suffering from mental illness, that does not automatically lead to the conclusion that he must be immediately and unconditionally released to comply with Article 5 as interpreted in Winterwerp. See Johnson v. United Kingdom [1997] 27 EHHR 296 at page 322, paragraph 61:

“Such a rigid approach to the interpretation of that condition would place an unacceptable degree of constraint on the responsible authority’s exercise of judgment to determine in particular cases and on the basis of all the relevant circumstances whether the interests of the patient and the community into which he is to be released would in fact be best served by this course of action. It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not recovery from a episode of mental illness which justified a patient’s confinement is complete and definitive or merely apparent cannot in all cases be measured with absolute certainty. It is the behaviour of the patient in the period spent outside the confines of the psychiatric institution which will be conclusive of this.”

In Johnson, the MHRT first deferred conditional discharge in June 1989, until arrangements could be made to enable the patient to satisfy the relevant conditions, including residence in a hostel. It was not possible to find a hostel for a variety of reasons, including the patient’s own attitude. Further deferred directions for conditional discharge followed and the patient was detained until he was absolutely discharged three and a half years after the first deferment. At pages 324 to 325, the Court concluded:

“66. However in imposing the hostel residence requirement on the applicant and deferring his release until the arrangements had been made to its satisfaction, the Tribunal lacked the power to guarantee that the applicant would be relocated to a suitable post-discharge hostel within a reasonable period of time. The onus was on the authorities to secure a hostel willing to admit the applicant. It is to be observed that they were expected to proceed with all reasonable expedition in finalising the arrangements for placement. While the authorities made considerable efforts to this end these efforts were frustrated by the reluctance of certain hostels to accept the applicant as well as by the latter’s negative attitude with respect to the options available. They were also constrained by the limited number of available placements. Admittedly a suitable hostel may have been located within a reasonable period of time had the applicant adopted a more positive approach to his rehabilitation. However, this cannot refute the conclusion that neither the Tribunal nor the authorities possessed the necessary powers to ensure that the condition could be implemented within a reasonable time. Furthermore, the earliest date on which the applicant could have had his continued detention reviewed was 12 months after the review conducted by the June 1989 Tribunal. In between reviews the applicant could not petition the Tribunal to have the terms of the hostel residence condition reconsidered; nor was the Tribunal empowered to monitor periodically outside the annual reviews the progress made in the search for a hostel and to amend the deferred conditional discharge order in the light of the difficulties encountered by the authorities. While the Secretary of State could have deferred the applicant’s case to the Tribunal at any time it is to be noted that this possibility was unlikely to be effected in practice since even at the date of the January 1993 Tribunal the authorities maintained their opposition to the applicant’s release from detention until he had fulfilled the hostel condition.

67. In these circumstances it must be concluded that the imposition of the hostel residence condition by the 1989 Tribunal led to the indefinite deferral of the applicant’s release from Rampton Hospital especially since the applicant was unwilling after October 1990 to co-operate further with the authorities in their efforts to secure a hostel, thereby excluding any possibility that the condition could be satisfied. While the 1990 and 1991 Tribunals considered the applicant’s case afresh, they were obliged to order his continued detention since he had not yet fulfilled the terms of the conditional discharge imposed by the June 1989 Tribunal.

Having regard to the situation which resulted from the decision taken by the latter Tribunal and to the lack of adequate safeguards including provision for judicial review to ensure that the applicant’s release from detention would not be unreasonably delayed, it must be considered that his continued confinement after 15 June 1989 cannot be justified on the basis of Article 5(1)(e) of the Convention.

For these reasons the Court concludes that the applicant’s continued detention after 15 June 1989 constituted a violation of Article 5(1) of the Convention.”

Mr Johnson contended that the Tribunal’s lack of judicial powers to ensure compliance with the terms of his conditional discharge amounted to a breach of Article 5(4). The court noted that that issue had already been examined in the context of his complaint under Article 5(1). The court found that the applicant’s complaint under Article 5(4) gave rise to no separate issue. (See paragraphs 69 to 72.)

The court’s conclusion that the Tribunal was not empowered to monitor the progress made in search of a hostel, outside annual reviews, depended upon the decision of the House of Lords in Campbell v. Secretary of State for the Home Department (On appeal from R v. Oxford Regional Health Review Tribunal, ex p. Secretary of State for the Home Department) [1988] 1A.C. 120, in which Woolf J. had held that the Tribunal could reconsider a deferred direction for conditional discharge which was provisional until it took effect, but the Court of Appeal allowed an appeal, and the House of Lords dismissed an appeal against the Court of Appeal’s decision, holding that a direction for conditional discharge was final and a Tribunal could only defer it under section 73(7) for the necessary arrangements for the patient’s discharge to be made. So MHRTs had no power to reconsider their deferred decisions.

A very similar situation to that which has arisen in this case arose in Regina (K) v. Camden and Islington Health Authority [2001] 3WLR 553. An MHRT found that although K, a restricted patient, was still suffering from a mental disorder requiring ongoing treatment and medication, she was well enough to live at home under psychiatric and social supervision, but that the possibility of relapse required that she remain liable to recall to hospital. So the Tribunal ordered her conditional discharge under section 73 of the Act, on condition that she lived at her parents’ home and co-operated with supervision provided by a consultant forensic psychiatrist, but they deferred discharge until satisfactory arrangements had been made to meet the conditions. The residential condition was contrary to the advice of K’s responsible medical officer, who had recommended discharge to a hostel with professional support and monitoring before returning to her parents’ home. The health authority into whose area the applicant was to be discharged made repeated but fruitless attempts to find a forensic psychiatrist willing to supervise the applicant otherwise than in a nursing home. The applicant sought judicial review of the health authority’s decision not to provide her with psychiatric supervision in the community in implementation of the conditions by the tribunal. The health authority subsequently advised the Secretary of State for the Home Department that the Tribunal’s conditions were impossible to meet and requested him to consider exercising his statutory power to refer the applicant to a second tribunal. The judge refused judicial review on the ground that section 117 of the Act did not create an absolute obligation to implement the tribunal’s conditions but only a duty to take all reasonable steps to attempt to satisfy the conditions imposed with which the health authority had complied. He said that the doctors who had refused to participate, were plainly entitled to refuse, and on the basis of their own professional judgments obliged to refuse.

The patient appealed and her appeal was dismissed on the essential ground that section 117 of the 1983 Act did not impose on health authorities the absolute obligation to implement the conditions for a patient’s discharge from hospital required by a mental health review tribunal; that a health authority in exercising its discretion having regard to other demands on its budget should use reasonable endeavours to fulfil the conditions imposed by a tribunal in relation to medical care; that failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of the authority’s discretion; but that since it was not practical to provide the psychiatric supervision required by the applicant, the health authority was not in breach of its duty under section 117.

In the present case, Mr Owen argued that in the light of the Strasbourg cases it was clear that there have been contraventions of the claimant’s rights under Article 5. His detention has been unlawful under Article 5(1)(e) since February 2000 (or soon thereafter, allowing for a reasonable time for the conditions of his discharge to be put into effect), by the criteria in Winterwerp and Johnson. He has been deprived of a Tribunal with the necessary powers to put its direction for his discharge into effect without delay, contrary to Article 5(4), as a result of which the referral of his conditional discharge has become indefinite. Moreover, Mr Owen contended, the case of K has recently closed off the one statutory provision, namely section 117 of the Act, which might have provided the necessary judicial power to ensure prompt compliance with the terms of the claimant’s conditional discharge, thereby avoiding delay and unlawful detention. Once that route to enforcement of the condition of psychiatric supervision was closed off, it was clear that the conditional discharge provisions of the Act were incompatible with Article 5(1)(e) and (4), because MHRTs had no power to ensure that conditions which they imposed on a patient’s discharge were implemented within a reasonable time or at all.

The defendants’ answer to the contention that the claimant has been unlawfully detained since 3 February 2000, or soon thereafter, was to argue that the Tribunal did not find, on 3 February 2000, that he was not suffering from mental illness. Nor did it find, without more, that it was not necessary for his health or safety or for the protection of other persons that he should receive treatment in hospital. The effect of the Tribunal’s order was that the Tribunal found that he would continue to be lawfully detained in compliance with the Act until such time as conditions including psychiatric supervision could be satisfied. The claimant could not complain of delay in the matter being returned to the Tribunal, because, even by February 2000, he was entitled to make a new application, more than twelve months having expired since his previous application was made. So far as the question of incompatibility was concerned, the requirements of the Convention would be met by revisiting Campbell and interpreting section 73(7) as Woolf J. had interpreted it originally. In the light of section 3 of the Human Rights Act, the proper interpretation of section 73(7), to achieve compatibility with Article 5, was that a deferred direction of conditional discharge was provisional. This would mean that MHRTs could monitor the situation and intervene to achieve the implementation of conditions, or vary or remove conditions, or reconsider its direction for conditional discharge, if a necessary condition or conditions proved impossible to put into effect.

Mr Owen accepted that Campbell could be revisited in the light of section 3 of the Human Right Act, if this would achieve compatibility, but he argued that a re-interpretation of section 73(7) could not give MHRTs the power to enforce conditions which were placed on a direction for discharge. If all the Tribunal wanted to do was to see if psychiatric supervision could be put in place, it could adjourn the application, as it adjourned the claimant’s application in June 1999. Nothing less than a power to order a psychiatrist to supervise a patient, upon conditional discharge, would suffice to achieve compatibility with Article 5.

All counsel made reference to parts of the judgments in K, which offer views on Convention points which had become obiter once the section 117 point was decided against the appellant.

My conclusions are as follows.

For compliance with Article 5(1)(e) of the Convention, the patient must not be detained unless the three Winterwerp criteria of, first, true mental disorder based on objective, medical expertise, second, of a degree warranting compulsory confinement, and third, still persisting, are met, making due allowance for the difficulties of assessment referred to in Johnson. For compliance with Article 5((1)(e) and 5(4), MHRTs must be vested with sufficient powers to see that conditions, reasonably directed, can be implemented within a reasonable time.

It is at least arguable that the claimant has been detained unlawfully from a period of a few months after February, 2000. I have come to this conclusion, albeit with some difficulty, in the absence of representation of the Tribunal, because in both its June 1999 and February 2000 decisions the Tribunal simply concluded that the claimant was not suffering from mental illness of a nature or degree which necessitated his detention in hospital for medical treatment. In February 2000, it was satisfied also that it was not necessary for the health or safety of the claimant or for the protection of other persons that he should receive treatment in hospital. In June 1999 it related the need for a care plan and the potential terms of any conditional discharge to the claimant’s liability to recall to hospital. It did the same in February 2000. Admittedly this is the scheme of section 73(2), but this was not a case like K, and many others, where the Tribunal has positively found that the patient is suffering from mental illness, the symptoms of which are being fully controlled by medication, and that the patient needs ongoing medication or specified treatment in order to control his or her illness. As Buxton L.J. said in K at page 584, paragraphs 43 and 44, the issue of whether deferral entails a breach of the Convention depends on whether once the Tribunal has determined that the patient’s condition can and should be treated in the community, he or she is, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. Buxton L.J. found that question difficult. It is particularly difficult where the Tribunal, as it did here, simply answers tabulated Questions A and B in the affirmative. I do not consider that it is possible, in the circumstances of this particular case, safely to infer that the Tribunal only answered “yes” on the basis that the conditions which they thought appropriate, including supervision by a (preferably forensic) psychiatrist, would be implemented. An MHRT does not have to specify conditions when directing a conditional discharge: see section 73(4)(b). The essential purpose of a conditional discharge is to retain the power of recall to hospital whether there is a breach of any condition or not. The condition of psychiatric supervision is standard, and its inclusion does not necessarily indicate that without it the MHRT would not have directed conditional discharge. Nor does the fact of deferment of the direction for conditional discharge to allow implementation of the conditions necessarily point to such a conclusion. It would have been very easy for the Tribunal to have expressed in the reasons for their decision, including the deferment of conditional discharge, the view that they had only been able to conclude that the patient was not suffering from mental illness of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment, and that it was not necessary for the health or safety of the patient or the protection of other persons that he should receive such treatment, on the basis that he would receive psychiatric supervision when discharged from hospital. MHRTs often expressed their findings in that way during the period of my own sittings as a legal member of MHRTs, between 1983 and 1993. In my view, if a MHRT answers “yes” to Question A or Question B, only on the basis that the conditions of deferred discharge are met, it should say so.

In summary, I cannot therefore conclude that in this case, where there was a clear medical issue as to whether the claimant suffered from mental illness at all, the effect of the Tribunal’s February 2000 order was that they found that Mr H. would continue to be lawfully detained in compliance with the 1983 Act and the Convention until such time as conditions including psychiatric supervision, could be satisfied.

I am more confident that, in breach of Article 5(1)(e) and (4), the claimant has been left in limbo, as Mr Owen put it, for some twenty-one months. It does not seem to me to be reasonable to hold the claimant or his advisers responsible for the delay, in failing to press a fresh application for discharge. There was an understandable reason (reluctance to risk disturbance of the existing direction for conditional discharge) for not making a new application which, by section 73(7), would mean that when the claimant’s case came before the Tribunal, the previous application must be treated as one on which no direction under section 73 can be given.

I do not, however, consider that there was breach of Article 5(1)(e) or (4) based on a lack of power to ensure that the condition of psychiatric supervision was implemented within a reasonable time.

By section 3(1) of the Human Rights Act, the Mental Health Act including section 73(7) must, so far as it is possible to do so, be read and given effect in a way which is compatible with Convention rights. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. A declaration of incompatibility is a measure of last resort, and it must be avoided unless it is plainly impossible to do so. See R.v.A. (No.2) [2001] 2 WLR 1546, per Lord Steyn at page 1563. In the present case, unlike R.v.A., no “departure from the language of the statute”, is necessary; it is not necessary “to adopt an interpretation which linguistically may appear strained”. In my view, the desired result can be achieved on a natural interpretation of the first part of section 73(7), to the semi-colon. The words “A Tribunal may defer direction for the conditional discharge of a patient until such arrangements as appear necessary to the Tribunal for that purpose have been made to their satisfaction”, can readily be taken to mean that the Tribunal can monitor the situation meanwhile, no conditional discharge having yet been directed. The direction has been deferred – put off in time. In the meantime, the Tribunal can, therefore, monitor the situation; and by Rules 14 and 15 they can subpoena any psychiatrist, for instance, to appear before them, or call for further reports, all the time ensuring that an unacceptable delay in resolving matters does not occur. The fact that much the same end might be achieved by adjourning the application for discharge is not inconsistent with this interpretation of section 73(7). It must be left to the particular Tribunal to decide whether a deferred conditional discharge or an adjournment, or further adjournment, is more appropriate in all the circumstances of the particular case. The second part of section 73(7) can be perfectly well seen as free-standing, and not necessarily inconsistent with the interpretation which I have put on the first part.

It is true that this construction of section 73(7) does not empower a MHRT expressly to order any particular psychiatrist to supervise a restricted patient upon his conditional discharge from hospital, but in my view such a power is not necessary for compatibility with Article 5, for two reasons. Firstly, in the present state of domestic law, such an order against a consultant psychiatrist, or any registered medical practitioner, is not acceptable on broad policy grounds, namely the public interest in the courts not “second-guessing” a medical practitioner’s honest judgment as to the appropriate treatment for a particular patient. Mr Owen wishes to argue that the law as it stands at present fails to take account of the fact that a psychiatrist who is asked to supervise a conditionally discharged patient is, as he would argue, “a public authority” for the purposes of sections 6 and 7 of the Human Rights Act, but he accepted that he must save that argument for another day. Moreover, and in any event, I find it difficult to see how any order that a consultant psychiatrist must treat a patient in the community could be enforced in the face of an honest protest that it was against the practitioner’s professional principles to do so. Secondly, there is, in my view, no need to go that far to effect compliance with the Convention. In all normal circumstances MHRTs will not impose conditions which are not reasonably achievable, and will, if necessary, use their powers of adjournment to ascertain whether conditions which appear attractive are achievable. If a deferred direction for conditional discharge is made, the power to monitor attempts to comply with reasonable conditions, and to amend a deferred conditional discharge order in the light of difficulties encountered by the authorities, should be sufficient for compliance with the Convention. There is some support in K for the view that reinterpretation of section 73(7) is sufficient for compliance: see Lord Phillips M.R. at page 583, paragraph 36, and Buxton L.J. at page 585, paragraph 46. This may have been the reason, also, why Sedley L.J. thought that “the legislative scheme, while not always satisfactory in practice, is Convention compliant in principle”: page553, paragraph 56.

Had the claimant’s argument on incompatibility been otherwise successful, I would have seen no difficulty in the need for “a provision of primary legislation” to be incompatible with a Convention right, before a declaration of incompatibility can be made: see section 4(1) and (2) of the Human Rights Act. It seems to me that a provision for making deferred directions for conditional discharge, without a power to monitor the implementation of the conditions would be sufficient to qualify as such “a provision”. But for the reasons which I have sought to give, the application for a declaration of incompatibility must, in my view, fail.

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MR JUSTICE BELL: I made most of the corrections, not all of them. I made two additional ones where I referred to Lord Justice Buxton's judgment in Kay and the difficulty of applying (inaudible) and I referred to paragraph 54 (inaudible) does not add anything to the effect of it. There is another reference, I think, to the Master of the Rolls' judgment at paragraph 37 (inaudible). Otherwise, I will hand down the judgment in the form which is approved with the various corrections which have been made. If, however late in the day, you notice something, not just a question of punctuation or grammar or anything like that; a date which is clearly wrong like 1993 instead of 1983 or something like that.

MISS WEERERATNE: My Lord, I am grateful for that. My Lord, I have two matters to deal with. If I may I deal first with the issue of leave to appeal --

MR JUSTICE BELL: Permission to appeal.

MISS WEERERATNE: Permission to appeal and then the issue of costs?

MR JUSTICE BELL: Do either of you have anything to say about permission to appeal? It is really a matter for the tribunal.

MISS STERN: My Lord, only to say that insofar as the trust is concerned, we wish you to agree it is not a good sum, given that (inaudible) damages, and I believe that is true about this position. So, my Lord, subject to that clarification --

MR JUSTICE BELL: Well, I think the answer is this, really -- you do not have anything to say, Mr Qureshi?

MR QURESHI: No, sir, we are mutual on this point.

MR JUSTICE BELL: Well, I do think it is a matter of merit's permission to appeal. Of course if the trust wishes to be represented on the appeal, and no doubt it will be, and if someone could give me the form, when I put something in the box, I think I will suggest that the Court of Appeal should consider whether it wants the tribunal to (inaudible) or not. Let me just deal with this and then we can go on to the issue of costs.

MISS STERN: My Lord, I would like to state that permission against the second and third defendants would satisfy the application for permission to appeal.

MR JUSTICE BELL: Is it both the second and third defendants?

MISS STERN: My Lord, yes (pause).

MR JUSTICE BELL: What I have put on the form is the question of incompatibility at section 73MHA/1983, where Article 5 of the convention is arguable, the application raised questions which the Court of Appeal touched on in Kay 20013WLR553 but did not have to decide in order to dispose of that case.

MISS WEERERATNE: My Lord, the issue of costs. My submission is the usual order that there be no order for costs, save for public funding assessed with the claimants' costs. I understand my learned friend Miss Stern has some submissions to make.

MISS STERN: My Lord, I would say that the usual order when a party is successful is that costs follow the event and, my Lord, we ask for costs on two bases. The first is the damages claim was put against us; it was dropped in the course of the hearing and so in terms, we were successful insofar as we defended that damages claim.

The second point is we feel quite strongly that our attendance at this hearing was probably not necessary, given the confession was made at a late stage and it was not made earlier. My Lord, in those circumstances, I am instructed to ask for costs on the basis that they would not be enforced without the usual assessment which is supplied (inaudible) subject to public funding. On those two bases we do ask for costs.

MR JUSTICE BELL: Are you legally aided?

MISS STERN: My Lord, yes.

MR JUSTICE BELL: So the position is that if I make an order in favour of the trust, I make it for costs to be determined and then, as I understand the rather complicated provisions, the cost judge actually decides whether it is appropriate that any sum be paid by the LSC, which includes looking at the merits to some extent but also whether it would cause financial hardship so far as the trust is concerned.

MISS STERN: My Lord, if I could, however, make an observation that (inaudible). The skeleton argument that was put forward indicated that the damages (inaudible) a particular public authority was going to be difficult to pinpoint and that therefore while the claimants are seeking a ruling on the High Court damages, your Lordship will recall that the point was put in the context of a public authority which could not identify --

MR JUSTICE BELL: Had I had to decide that, it would not cause me any trouble at all because it seems to me the (inaudible) obtaining authority. There were some indications of that in Kay. But I find it difficult to see how it could really be anyone else.

MISS STERN: But my point is this: the claimants have sued on the basis that (inaudible) public authority could be so identified and that really the decision falls at the end of the day on (inaudible) appear or not in those circumstances. I obviously do not criticise their decision to appear; it is obviously very helpful that they should appear.

MR JUSTICE BELL: Thank you very much. I think that there should be an order for the trust cost to be determined to be paid by the claimants. I say that because whereas those representing the Secretary of State could, it seems to me, have perfectly dealt with the question of breach, or rather prima facie breach of the article insofar as that was necessary to the argument, the trust was entitled to proceed as the claim was presented up to pretty well the last moment that it might be vulnerable to an order or declaration in respect of damages. That I hardly need say. Making the order is really the end of the matter.

The cost of the particular jurisdiction which the cost judge now has not only to what might be the proper sum of the cost, but as to whether he should be paid at all, in effect, by the LSC. I have no doubt the trust will consider carefully whether it is an appropriate use of its funds to pursue the application before the cost judge, taken all in the round. So what it might do, I hardly need say, is spend a fair bit of money on that only for the costs judge to say, "I cannot see any financial hardship so far as the trust is concerned. On that ground alone, there shall be no order against the LSC." But that is for the cost judge for this jurisdiction to decide ultimately and it is for the trust to make its own judgment in relation to the matter. So I obviously express no opinion on either of those matters.

If I can have the form back…

MISS WEERERATNE: My Lord, is it right that your Lordship's order as far as the trust is concerned is that (inaudible) second and third defendants?

MR JUSTICE BELL: No, only as far as the trust is concerned (pause).

What I have added in the box on the form:

"Although the appeal is against my decision in favour of the second and third defendants, SHAD and DOH, the Court of Appeal may wish the NHS trust and NHRT to be represented on the appeal".

Thank you.