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
		Monday, 20th May 2002

Monday, 20th May 2002

MR JUSTICE ELIAS:

Introduction

1. PH, the interested party in this application, was admitted to hospital in 1958. He had been charged with two counts of wounding with intent to cause grievous bodily harm but found unfit to plead. He had broken into the family home of a child actress with the intention of killing her, and had attacked her parents when they intervened. He is currently detained under the provisions of section 46 of the Mental Health Act 1983. He continues to suffer from chronic paranoid schizophrenia and continues to express fixed delusional beliefs. He is now in his 70s and has been in Broadmoor for over 40 years. He has poor physical health and his food has to be fed to him directly to his stomach through a tube.
2. On 12th October 2001 the Mental Health Review Tribunal decided to direct that PH should be discharged from detention but that the discharge should be deferred until satisfactory arrangements had been made to meet a number of conditions which it imposed.
3. The Secretary of State for the Home Department now seeks judicial review of that decision. Essentially he submits that the Tribunal exceeded its powers and, in any event, failed to have regard to a highly relevant consideration.
4. On 22nd March 2001 Wright J adjourned the application for permission to apply for judicial review. He gave directions for that application to be relisted, with the application for judicial review to follow on immediately thereafter should permission be granted.

The background

5. On 24th January 2001, PH's solicitors applied to the Mental Health Review Tribunal for an order discharging him. That application led in the normal way to the submission of reports by PH's Responsible Medical Officer, Dr Horne, and the Senior Social Worker at Broadmoor, Mr Ruchpaul.
6. It is not disputed that the substance of the original reports was that PH suffered from a mental disorder within the terms of the 1993 Act, namely chronic schizophrenia, that his disorder was of such a nature and degree to make it appropriate for him to be detained in hospital, and that he needed to be detained in the interests of his own health and the protection of others.
7. Dr Horne summarised the position in his original report as follows:

"Whilst he understands that medication benefits him and therefore wishes to take it, if he were discharged he would have great difficulty coping even with the supports that he would be provided within the community. There would be a considerable risk of his condition deteriorating and if that happened he would be a serious danger to women around him."

8. The doctors at that stage recommended that he should be transferred to a less secure hospital. This had in fact been recommended on numerous previous occasions by the Mental Health Review Tribunal. However, the decision to reduce the level of security, unlike the decision to discharge a patient, is for the Secretary of State and not the Tribunal. It was plainly a matter of considerable irritation to Dr Horne that the Home Office was resisting this proposal. He considered that they were acting unreasonably.
9. At the hearing before the Tribunal on 24th May 2001 Dr Horne gave evidence which was inconsistent with the stance that he had adopted in his written opinion. He expressed the view that, subject to various conditions being imposed, PH should be discharged. The Tribunal adjourned the hearing in part to permit the Secretary of State to make representations about this new proposal.
10. Further reports were then submitted by Dr Horne and Mr Richpaul, and in addition reports were received from a Westminster Social Worker, Mr Hague, and from PH's independent psychiatrist, Dr Somekh, who in fact agreed entirely with Dr Horne's report. Save for Mr Hague, they all recommended discharge. The Home Office made representations to the effect that there was no proper basis for that discharge.
11. It is material to consider what caused Dr Horne to change his view. He explains why he did so in his supplementary report. He said this:

"I had gone into the tribunal hearing firmly of the opinion that [PH] could be managed safely in conditions of low security but could not reasonably be given a Conditional Discharge. In the course of the proceedings the patient's solicitor, Ms Scott-Moncrieff, suggested that it might be possible for [PH] to be conditionally discharged to a Hostel, provided that one of the conditions was that he should not leave the premises unless he was escorted and that the staff were sufficiently skilled to detect any relapse at an early stage. This ingenious proposal was not something that I had considered previously ...

I considered the proposal very carefully. A key question is whether [PH] would comply with the condition that he should not go outside the Hostel without an escort. [PH] said in evidence that he would comply with it and it is my opinion that he would. When [PH] is in his usual state of mind he is a co-operative and sensible man. When his mental state has deteriorated somewhat and he has once more become optimistic about being elected King and is fired up to campaign on behalf of crustaceans and so on, then he can be very determined and in that state I think it is quite possible that he would seek to leave the Hostel unescorted despite knowing that a recall to hospital would be an inevitable consequence.

However, when his mental state deteriorates it happens slowly and the signs are apparent to people around him and I think that provided the hostel staff and supervisors were properly briefed a relapse would be detected at an early stage."

12. On 12th October 2001 the Tribunal reconvened and ordered a deferred conditional discharge. It concluded that it was satisfied that PH was 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 made it appropriate for him to be detained in hospital for medical treatment. It also found that it was not satisfied that it was not appropriate for the patient to remain liable to be recalled to the hospital for further treatment. Four conditions were imposed in relation to his conditional discharge. They were as follows:

"1) [PH] continue to take and receive medication as prescribed.

2) [PH] accept and comply with regular supervision by a consultant psychiatrist and social supervisor.

3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security.

4) [PH] shall not leave the accommodation without an escort."

13. In addition, the discharge was deferred until various further steps had been taken. These included a full risk assessment to deal, amongst other matters, with sharing accommodation with female residents and the use of female escorts. Furthermore, it was stipulated that once suitable accommodation had been identified, a detailed care plan should be provided to the Tribunal, and the care plan was to deal with, amongst other matters, security levels in the building and grounds; the level of care and supervision on a 24 hour basis, including the monitoring of PH's psychiatric state, in particular with regard to his attitude to women; and contingency plans in the event of any relapse.
14. The reasons given by the Tribunal for this conclusion include the following matters:

"The unanimous evidence before the Tribunal was that [PH] no longer complied with the statutory requirements for detention in hospital. We accept that evidence. [PH] continues to suffer from chronic paranoid schizophrenia for which he receives necessary medication, with which he is compliant. He continues to express fixed delusional beliefs concerning women's responsibility for causing disasters and some other beliefs about crustaceans, nevertheless, he has not shown any aggressive behaviour for 7 years and that last incident was related to a mistaken absence of medication for which [PH] was not responsible ... [PH] has been in an institution for many years and the transfer to a new, less secure environment could prove stressful but the uncontroverted evidence from the RMO and [PH]'s independent psychiatrist, Dr Somekh, was to the effect that if there were a relapse it would be apparent and detected rapidly by trained staff. We recognise the difficulty in finding appropriate specialist accommodation to meet [PH]'s needs and the management of possible risks, including a relapse, which is why we consider it appropriate for him to be subject to recall."

The law

15. PH is detained under section 46 of the Mental Health Act ("the Act"). By section 46(3) of that Act a direction under that section has the same effect as a hospital order together with a restriction order; in other words, the provisions of sections 37 and 41 of the Act come into play. The discharge of restricted patients is regulated by sections 72 and 73 of the Act. Those provisions have recently been amended as a consequence of the decision of the Court of Appeal in R (on the application of) H v Mental Health Tribunal North and East London Region [2001] EWCA 415, in which the court held that the provisions as formally enacted were incompatible with Articles 5(1) and 5(4) of the European Convention on Human Rights in that they placed the onus on the patient to prove the criteria justifying his detention no longer existed, whereas the Convention required the Tribunal to be positively satisfied that the criteria justifying detention did continue to exist. Although the former legislation was in force at the time of this decision, nothing turns on it, and it is perhaps more helpful to put the legislation in the now amended form. Section 72, insofar as is material, is as follows:

"(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 ...

(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 a patient or for the protection of other persons that he should receive such treatment ..."

16. Section 73, or at least those material parts of it, are as follows:

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

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

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

(2) Where in the case of any such patient as is mentioned in 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."

17. Subsection 7 is as follows:

"A Tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the Tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the Tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given."

18. These statutory provisions are designed to give effect to the provisions in the European Convention on Human Rights Article 5, to which I have made reference. The relevant provision there is as follows: Article 5(1):

"Everyone has the right to liberty and security of the person. No one should 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..."

19. Article 5(4):

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

20. The ECHR has on occasions had to consider what is meant by the concept of deprivation of liberty, and I shall consider some of those cases later in this judgment. It is plain that the domestic law must be read consistently with the Convention, and accordingly it is common ground that the concept of detention in domestic legislation should at least encompass all situations which amount to a deprivation of liberty within the meaning of Article 5.
21. Before considering the particular grounds raised in this case, it is pertinent to note certain features of these statutory provisions. First, where the tribunal is not satisfied that both the conditions in section 72(1)(b)(i) and (ii) are met, then, when they are not satisfied that it is not appropriate that the patient remain liable to be recalled, as in this case, they are obliged to direct a conditional discharge.
22. Second, in order for the patient to be detained, the tribunal must at least be satisfied that the patient is capable of benefiting from medical treatment, which may, however, include treatment which ameliorates or prevents a deterioration of the mental condition. If the tribunal is so satisfied, the question remains whether the tribunal is satisfied that it is appropriate for the patient to be detained for such treatment. In answering that question, the tribunal must have regard not only to the medical considerations (that is to the question whether the patient is required to be in hospital because that is the only place where the relevant treatment can properly be provided), but also to the question of risk. In other words, even if the treatment could be provided in the community, it may not be appropriate that it should be if the risk of the patient harming himself or others is too great. In Reid v Secretary of State for Scotland, [1999] 1 All ER 481 at page 505, Lord Clyde summarised the position as follows:

"Where the appellant is a psychopath or has a mental impairment which is not severe [the Tribunal] must consider whether such treatment is likely to alleviate or prevent a deterioration of the condition. If [it] is satisfied that such treatment is not likely to do so, then [it] is bound to grant a discharge. (4) If [the Tribunal] is not so satisfied, or if [it] is dealing with any other kind of mental disorder, [it] must consider the propriety of the appellant receiving the medical treatment in detention in hospital. In doing so [it] must look to the nature and degree of the mental disorder. If [it] is satisfied in the light of all the evidence before [it] and in the whole circumstances that the appellant is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital for mental treatment, then [it] must discharge him. The circumstances which [it] may consider can include the matter of the health and safety of the patient and the safety of other persons, including members of the public; that is to say the propriety, as distinct from necessity, of his continued detention in hospital."

23. I have slightly reformulated that quote to take account of the fact that in England the decision is taken by a tribunal, whereas in Scotland it is by a Sheriff.
24. In determining whether it is appropriate to detain a patient in hospital, the interests of the patient have to be weighed against those of the public, and the tribunal has to determine whether the detention is proportional to the risks involved. If it is not satisfied that it is a proportionate response to those risks to detain the patient, then he must be discharged: see the observations of Lord Phillips MR in R (on the application of) H v Mental Health Review Tribunal North and East London Region [2001] EWCA 415 at paragraph 33.
25. Third, in determining whether they are satisfied under section 72(1)(b)(i) that it is appropriate for the patient to remain liable to be detained in hospital, the tribunal can have regard to the conditions that could properly be imposed if he were to be conditionally discharged and treated in the community. In other words, the question whether the continued detention is appropriate may depend upon whether satisfactory alternative arrangements in the community can be achieved. This is clear from the following observations of Lord Bridge in Campbell v Secretary of State for the Home Department [1988] AC 120 at page 127, where he said this:

"If the tribunal think the patient should remain liable to recall, they can only contemplate a conditional discharge under subsection (2). Here the tribunal's satisfaction or lack of satisfaction as to one or other of the paragraph (a) matters will, I think, inevitably be coloured by the conditions they have in mind to impose. Thus the answers to the questions (a)(i) whether or not the patient's disorder is 'of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment', or (a)(ii) whether or not it is necessary for his own health or safety or for the protection or others 'that he should receive such treatment', which must here mean treatment under detention, may be vitally influenced by the conditions which are to be imposed to regulate his life style upon release into the community. To take obvious examples suggested by the decision of the tribunal in this case, the tribunal may perfectly properly be satisfied that hospital detention is no longer necessary provided that the patient can be placed in a suitable hostel and required to submit to treatment as an out-patient by a suitable psychiatrist. These are matters to be secured by imposing appropriate conditions."

26. Accordingly, the proportionate response to the risk may be achieved by the imposition of suitable conditions rather than by continuing the patient's detention. If the appropriate response can be so achieved, then the patient should be discharged.
27. Fourth, it follows that when imposing conditions the tribunal may have regard not only to considerations relating to treatment itself, but also to the question of the risk, both to the patient and to the public.
28. Fifth, on the face of it, one might have thought that section 72(1) envisages that the effect of a discharge is to discharge the patient from the liability to be detained. This is not, however, necessarily the case. It is plain from section 41(3)(a) that a patient who is only conditionally discharged pursuant to section 73 remains liable to be detained within the meaning of that provision. Accordingly, in the case of someone conditionally discharged, it seems clear that the discharge is from actual detention rather than the liability to be detained. The latter may continue even when the former does not. (Of course, someone absolutely discharged is discharged both from any actual detention and any liability to be detained).
29. In this connection, I should refer to the decision of Mann J in Secretary of State for the Home Department v Mental Health Review Tribunal for Mersey Regional Health Authority [1986] 1 WLR 1170. In that case the tribunal were satisfied that a patient should be discharged, but it made an order for his conditional discharge from hospital and deferred the order for arrangements to be made for his admission to another hospital so that he could be rehabilitated for his eventual discharge into the community. Mann J held that in the circumstances there was no effective discharge in law. He said this (at page 1178):

"The word 'discharge', as employed in sections 72 to 75 of the Act of 1983, means, and in my judgment can only mean, release from hospital. The release may be absolute or it may be conditional. It will be conditional in the case of a restricted patient where the tribunal is not satisfied as to the matter in section 73(1)(b), but is satisfied as to the matters in section 72(1)(b)(i) or (ii). A condition requiring that a patient, who is conditionally discharged, should remain in hospital is, in my judgment, inconsistent with the duty to discharge albeit conditionally. Section 73(4)(a), with its reference to 'recall', strongly supports the inconsistency of such a condition with the concept of discharge. The condition imposed on the discharge of Mr Gordon was therefore, in my judgment, not lawful."

30. I confess that I am not convinced by the reasoning in this case, with great respect to the learned judge. In my view, the fallacy is to treat release from discharge as meaning release from hospital. It seems to me that it means release from detention in hospital or sometimes, as I have indicated, from liability to be detained. Release from hospital is neither a sufficient nor a necessary condition for constituting the discharge. If there is such a release but it is to another institution where the patient is detained in the sense that he is deprived of his liberty, then that would not, in my judgment, constitute a proper and lawful discharge. By the same token, in my judgment, if the patient is discharged from detention in a hospital such that he is no longer deprived of his liberty, then there is still an effective discharge notwithstanding that the conditions are such that he is required to reside in another hospital pending further consideration of his absolute discharge. The central issue, it seems to me, is whether or not the conditions constitute a continuing detention. If they do not, it is irrelevant where the patient resides thereafter. Indeed, if it were thought by the tribunal that the only appropriate institution to which a conditional discharge could properly be made was another hospital, it would seem to me to infringe Article 5 of the Convention to refuse that discharge simply because the only available alternative institution was another hospital. Of course, the nature of the conditions imposed requiring discharge to that other hospital may well be such that they do not in fact constitute a release from the deprivation of liberty, but that will be because of the overall effect of the conditions, not because the discharge is from one hospital to another.
31. Finally, it is now clear from the judgment of the Court of Appeal in R (on the application of) IH v the Secretary of State for the Home Department, a judgment handed down the day before I heard argument in this case, that where, as in this case, a discharge is to be effected until satisfactory arrangements can be made, it is open to the tribunal at any time thereafter in the light of fresh material to change its decision. In paragraph 71 of its decision the court said this in a judgment delivered on behalf of the court by Lord Phillips MR:

"Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the Tribunal. Such material may, for instance, show that the patient's condition has relapsed. It may show that the patient's condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the Tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a provisional decision and the Tribunal should monitor progress towards implementing so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time."

32. In this decision the court overruled the earlier decision of the House of Lords in the Campbell case to which I have made reference, on the ground that the ruling in that case was not consistent with the jurisprudence of the European Convention.

The grounds of challenge

33. I turn then to consider the grounds in this case. The principal ground is that the Tribunal has exceeded its powers. It can discharge from detention, either absolutely or subject to conditions, but it cannot simply effect a transfer to a lower security institution. It is submitted by Miss Giovannetti for the Secretary of State that the character of the conditions here imposed is such that there is, in substance, a continuing detention and not a discharge at all. She also submitted, as an element in this argument, that there was, in substance, a discharge from one hospital to another which would not constitute a discharge because of the principle enunciated in the decision of Mann J, to which I have made reference.
34. The second ground relied upon was this. It was said that the Tribunal had acted on a false premise. It had proceeded on the basis that there had been no incidents of violence for seven years, whereas in fact it is common ground that PH had been involved in another violent incident some two years before the Tribunal decision.
35. Initially, there was a third ground which, however, was not pursued before me. It was to the effect that the Tribunal had acted for an improper purpose in that it was seeking to circumvent its limited jurisdiction by effecting a transfer under the guise of a discharge. It is accepted by the Secretary of State that at all times the Tribunal, and those providing reports for it, have acted in the best interests of the patient. In those circumstances, that particular ground has not been pursued, and in my judgment rightly so. If the Tribunal has effected a lawful discharge, it seems to me to be quite irrelevant that they may in so doing have welcomed the fact that they may be achieving an objective which they consider to be in the interests of the patient notwithstanding that it may conflict with the views of the Secretary of State.

The first ground

36. I turn then to consider the first ground of challenge. The central issue here, as the parties accept, is what is embraced within the concept of detention. A secondary matter, which I have mentioned, is whether there can be a discharge if the effect of the decision is to transfer the patient from one hospital to another.
37. I will briefly deal with this latter argument. In my judgment, it clearly fails for two reasons. First, there is no reason to suppose that the institution to which PH would be discharged, if an appropriate institution can be found, would be a hospital within the meaning of the legislation. The concept of hospital is defined by section 145 of the Act; it is not necessary to set it out in this judgment. Suffice it to say that the evidence from Miss Sullivan, who was Chair of the Tribunal, is that the Tribunal did not envisage in fact that PH would be sent to another hospital, and that is supported by the fact that Dr Horne was looking into the possibility of a particular institution which is not a hospital as so defined. Accordingly, on the facts there is no reason to believe that the institution finally identified, if one ever is, will constitute a hospital within the meaning of the legislation. Secondly, and in any event, for reasons I have already given, in my view there may still be an effective and lawful discharge even although it is a condition of the discharge that the patient will reside for a period in another hospital.
38. Accordingly, the key question, in my judgment, and this really has been the focus of all the argument before me, is whether or not the effect of the conditions taken together is to constitute a continuing deprivation of liberty, which is equivalent to a continuing detention, within the meaning of the Convention and the English legislation.
39. There are a number of cases to which I have been referred which have dealt with the construction of these concepts. In R v Bournewood Community Mental Health NHS Trust ex parte L [1999] 1 AC 458 the issue concerned a patient informally detained in hospital in circumstances where he did not have the capacity to consent. One of the questions was whether he had been falsely imprisoned. Lord Goff, at page 486, commented on the meaning of detention as follows:

"In the course of their judgment, the Court of Appeal ante p 465 stated that: 'a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving'. I observe however that no mention is here made of the requirement that, for the tort of false imprisonment to be committed, there must in fact be a complete deprivation of, or restraint upon, the plaintiff's liberty."

40. The approach of the European Court to the concept of deprivation of liberty is found in Article 5. It is reflected in a number of cases. In Ashingdane v United Kingdom [1985] 7 EHRR 528 the applicant had been placed in Broadmoor but the Home Secretary had authorised his return to his local psychiatric hospital. Because of a dispute with hospital staff, that psychiatric hospital refused to accept the applicant. Accordingly, he had to remain at Broadmoor. He alleged that his continuing detention there infringed his rights under Article 5. In the course of giving its judgment, the European Court of Human Rights had to consider what was meant by the concept of deprivation of liberty. At paragraph 41 it said this:

"According to the established case law of the Court, Article 5(1)(e) is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No 4. In order to determine whether circumstances involve deprivation of liberty, the starting point must be the concrete situation of the individual concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature of substance."

41. That paragraph followed an earlier decision in Guzzardi v Italy [1980] 3 EHRR 333, paragraph 92, in which the court noted that the process of classification was not always easy. On the facts in Ashingdane, the court held that there had not been a breach of Article 5. Although the applicant would have been subject to a much more liberal regime at the local psychiatric hospital, nonetheless at all stages he was subject to a restriction order and he would only have been permitted to leave the hospital as a privilege conferred by the authorities themselves.
42. I was also referred to the case of HM v Switzerland, judgment of 26th February 2002. In that case the applicant was placed in an old person's and foster home on account of the fact that she was neglecting properly to look after herself. The court at paragraph 42 repeated the approach it has adopted in Ashingdane in identical terms. Accordingly, the most recent decision confirms the approach in the Ashingdane case. The court then continued at paragraph 43 as follows:

"The court recalls the case of Nielsen v Denmark concerning the placement of a 12 year old boy, at his mother's request, in the psychiatric ward of a State hospital for 5 1/2 months. In that case, in which no deprivation of liberty within the meaning of Article 5(1) of the Convention was found, the Court considered that:

'The applicant was in need of medical treatment for his nervous condition and the treatment administered to him was curative, aiming at securing his recovery from his neurosis ... The restrictions on the applicant's freedom of movement and contacts with the outside world were not much different from restrictions which might be imposed on a child in an ordinary hospital: it is true that the door of the Ward, like all children's wards in the hospital, was locked, but this was to prevent the children exposing themselves to danger or running around and disturbing other patients; the applicant was allowed to leave the Ward, with permission, to go for instance to the library and he went with other children, accompanied by a member of the staff, to visit playgrounds and museums and for other recreational and educational purposes; he was also able to visit his mother and father regularly and his old school friends and, towards the end of his stay in hospital, he started going to school again; in general, conditions in the Ward were said to be 'as similar as possible to a real home'... The duration of the applicant's treatment was 5 1/2 months. This may appear to be a rather long time for a boy of 12 years of age, but he did not exceed the average period of therapy at the Ward and, in addition, the restrictions imposed were relaxed as treatment progressed ... Nor did the intervention of the police, which would have been appropriate for the return of any runaway child of that age even to parental custody, throw a different light on the situation' (see the judgment of 28 November 1988, Series A no 144 page 25 paragraph 70)'."

43. In the circumstances of this particular case, the court concluded that there had been no deprivation of liberty. It concluded at paragraph 48 as follows:

"Bearing these elements in mind, in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances in the case of Nielsen v Denmark, cited above, the Court concludes that in the circumstances of the present case the applicants's placement in the foster home did not amount to a deprivation of liberty within the meaning of Article 5(1), but was a responsible measure taken by the competent authorities in the applicant's interests."

44. Both Miss Richards for the defendant, and Mr Bowen for PH, rely upon two features which are emphasised in this decision. First, that it is important, when determining whether there is a deprivation of liberty, to focus upon the specific situation of the individual concerned and not simply to ask the question whether there is such a deprivation in a vacuum. Second, as paragraph 48 of the decision makes clear, it is relevant to consider for what purpose a particular condition has been imposed.
45. Is there then a detention as a result of the conditions imposed in this case? Miss Giovannetti submits that there is. She highlights the fact that there has to be 24 hour medical support and that the patient can only leave the premises with an escort. She also refers to the fact that there are ill-defined security requirements, not only in relation to the premises, but the grounds as well. She submits that these conditions go beyond those which are habitually imposed in cases of this kind, and indeed suggests that the reference to the security requirements demonstrates that, in truth, what is happening here is that there is simply a transfer from a more to a less secure institution.
46. Miss Richards and Mr Bowen both contend otherwise. They emphasise that it is important to remember that PH is a man in his 70s, of frail health, who has been institutionalised for over 40 years. In those circumstances, they submit that the conditions being imposed are practical and realistic requirements which are designed not merely to ensure his security and those of third persons, but are also significantly imposed for the purpose of promoting his freedom. They submit it would be quite unrealistic to suggest that he could, in the practical world, go out alone when he has been institutionalised for such a very lengthy period of time. They submit that there is still considerable freedom that PH will have within the new regime. In particular he is in fact permitted to leave the premises, provided at least an escort is available to go with him. That is plainly a significant improvement on the position that currently pertains. They also emphasise that if there is a breach of the conditions, that does not automatically lead to his arrest or anything of that nature. Indeed, before detaining him further as a consequence of any such breach, the authorities would have to be satisfied that the conditions applicable to admission were clearly satisfied.
47. I confess I would give relatively little emphasis to this particular consideration. It seems to me that one has to look at what is in substance occurring, and that in substance if there were a breach of conditions in this case, there must be a very high risk that PH would again be detained, depending of course on the nature of the breach.
48. What I have to decide in this case at this stage is whether the conditions imposed will inevitably result in a deprivation of liberty within the meaning of the Convention jurisprudence. If so, then it is common ground that the Tribunal has not effected a proper discharge. I put the matter this way because, as Miss Richards and Mr Bowen accept, it may be that when more detailed security proposals are identified in the care plan, the position would then change. The combination of factors at that stage may lead to a different conclusion than one that could properly be reached now. But given the situation as it is at present, in my judgment, the conditions imposed do not constitute a deprivation of liberty. I have in mind the particular starting point as described by the ECHR which I have already described, and I bear in mind that there will be the opportunity for PH to go into the community and to receive people from the community, albeit that restrictions are imposed. It is in part a matter of impression at the end of the day, but I am not prepared in the circumstances to interfere with the conclusion that the Tribunal reached having weighed up the various considerations. As I have said, if the relevant conditions cannot be achieved or if fresh material leads to some change in the conditions imposed, then of course that might alter the legal position.

The second ground

49. I turn then to the second ground. It is plain from the Tribunal's decision that on the face of it they have acted on the assumption that there had been no violent incidents for a period of seven years. That is clear from the extract of the reasoning which I have reproduced above. In fact, it is also common ground that there had been an incident some two years before the decision. That was in fact referred to in the first report of Dr Horne.
50. I have been provided with a witness statement from Miss Sullivan in which she states in terms that this later incident was in fact brought to the attention of the Tribunal, and was considered by the Tribunal, before reaching its decision. Indeed, she indicated that it had been the intention of the Tribunal to make reference to this incident in their decision. She said that there had been an omission of some words from the decision which would have made it plain that they had this particular incident in mind.
51. Miss Giovannetti points out that the particular words that would apparently have been added would still leave the decision in a state of some confusion as to which incident was in fact being referred to. I think that is correct. Miss Giovannetti referred to the decision of R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302, where at page 315 Hutchison LJ said this:

"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief."

52. That judgment was given in a different context, namely where there was a statutory obligation to provide reasons. Nonetheless, it is clearly right, in my view, that any court should be very cautious before considering explanations given about a reasoned decision which a court or tribunal has already provided.
53. However, in this case is seems to me that this is not a situation where new or fresh reasons were being advanced. The allegation from the Secretary of State was that a particular matter had not been properly taken into consideration by the Tribunal. The Tribunal has indicated in response -- and I should say that the statement of Miss Sullivan has been accepted as accurate by the other two members of the Tribunal -- that it did have very much in mind that there had been an incident only two years earlier, and, indeed, that it had intended to make some reference to that in the decision itself. In these circumstances, in my judgment that it would be wrong to uphold the Secretary of State's challenge.
54. Miss Giovannetti also submitted that had this factor been taken into account properly, then it ought to have affected the deliberations of the Tribunal for this reason. The Tribunal concluded, consistently with the medical evidence before it, that any deterioration in PH's mental state could be readily identified by appropriate nursing staff, even although PH were not in a hospital. Miss Giovannetti submits that the fact that this incident occurred two years ago, when PH had mistakenly not taken appropriate medication, suggests that in fact it is not so easy to identify such a deterioration. That submission, however, goes to the question of whether or not the decision of the Tribunal was one that it could properly reach on the evidence. That was not a matter which was identified in any of the grounds in the original application and I do not consider that I should consider it now. I should, in any event, add that there plainly was clear evidence from the mental health experts that the deterioration could be identified, and it would have been very difficult to say that the decision of the Tribunal was not one that it could possibly reach in the light of that material.
55. Finally, I refer briefly to an argument that was advanced principally by Mr Bowen for the third party. He submitted that the court should not consider this application because of undue delay. There was a period of some ten weeks between the decision and the lodging of the application. It is, of course, accepted that the application should be lodged promptly, and it is no answer to a delay challenge merely to say that it has been made within the three month period.
56. I have received some witness statements from the claimant explaining the circumstances in which this application has been made, and I accept Mr Bowen's submission that in certain respects the application was not made as promptly as it ought to have been. I also accept that of course it is a matter of particular significance to act expeditiously in circumstances where the liberty of a subject is at stake. However, it does seem to me that in this particular case it was plain that it would take some time before effect could be given to giving the conditional discharge. It had been deferred for the purpose of obtaining further information, and of course it would have been necessary to prepare a care plan if appropriate premises had been identified. Moreover, this is a matter of some importance when the safety of the public is also engaged. Accordingly, I would not have been minded either to refuse permission on grounds of delay or, indeed if I thought that it was appropriate to grant relief in this case, would I have felt that it would have been right to refuse relief because of such delays as occurred in this case.
57. I have not done full justice to Mr Bowen's argument in this regard, but given my finding that, in any event, there has been no error by the Tribunal, it seems unnecessary to explore the nature of the argument more fully.
58. Accordingly, although I would grant permission for judicial review, in the circumstances I do not consider that the allegation that the Tribunal has acted unlawfully has been made out.

MISS RICHARDS: My Lord, I ask your Lordship formally to dismiss the application. Secondly, I ask your Lordship to direct that the claimant should pay the Tribunal's costs.

MR JUSTICE ELIAS: You cannot resist that?

MS MATHAROO: No.

MR BOWEN: My Lord, I would ask for a similar order in relation to Mr H. I should add that he has been funding this privately, he is not legally aided.

MR JUSTICE ELIAS: It is very unusual to give orders to both parties.

MR BOWEN: If your Lordship considers it was appropriate that he be represented, then plainly he has won in the sense that the application has been dismissed. It is an application which affects him more intimately --

MR JUSTICE ELIAS: What is the general position in these cases? Is there any authority as to whether costs would normally be awarded? I can see there is an argument perhaps that where the liberty of a subject is at stake it may be rather different.

MR BOWEN: If your Lordship considers it appropriate that he be represented --

MR JUSTICE ELIAS: Well, I do not think that that is quite right. Very often it may be considered appropriate for a party to be here, and the court says it is perfectly right that they should make representations if they so wish, but that is not the issue. The issue is who bears the cost at the end of the day.

MR BOWEN: My Lord, I am not aware of any specific authority relating to the situation that is before your Lordship. I am aware of authorities to the effect -- I should have brought them with me, I am sorry -- that if the court considers it appropriate that a party be represented, then it falls within the court's discretion to make an order in those terms.

MR JUSTICE ELIAS: Yes, it is ultimately discretionary, but it is a discretion rarely exercised, I have to say, in my experience.

MR BOWEN: My Lord, I recognise that.

MR JUSTICE ELIAS: Let me see what the Secretary of State says.

MS MATHAROO: We would resist the costs in relation to the interested party. Although I was not actually at the hearing, I understand that the arguments that were raised were also raised in relation to the Tribunal's arguments, and in relation to the delay, your Lordship has given judgment in relation to not being with the interested party on the delay point, so we would resist the application for costs.

MR JUSTICE ELIAS: Yes.

MR BOWEN: My Lord, the issues that were raised by the interested party in his summary grounds and which were also in his skeleton argument, in fairness to my learned friend, Miss Richards, did not appear in her summary or detailed grounds or in her skeleton argument, and I do not think somebody whose liberty is as stake can necessarily sit back and hope that by the time the hearing comes up the Tribunal has taken on board all the points that the interested party would have taken. It is right that when she made her oral submissions to your Lordship Miss Richards did adopt the arguments that Mr H had put forward, but those were put forward first by him, and your Lordship has seen how they were developed both in the summary grounds and in the skeleton argument. Those were primarily the grounds upon which your Lordship finally decided this application.

A patient should not be put in a situation where a decision discharging him is made where, because he has been in hospital for so long, he has managed to raise sufficient savings to exclude him from receiving Community Legal Services Funding. He should not have to make a choice between placing himself at risk of not being reimbursed for any costs that he incurs, even if he wins and resists the application, and alternatively not being represented at all. That is an invidious position for a patient to be placed in. I would respectfully request that your Lordship, in the exceptional circumstances of a case such as this, make an order for costs against the Secretary of State in relation to both the defendant and the interested party.

MR JUSTICE ELIAS: No, Mr Bowen. I have some sympathy for your client, but I do not think it would be right that the fact that he may not have been entitled to legal services funding from the Legal Services Commission would justify the Secretary of State paying his costs. It is exceptional, very exceptional, for the claimant to have to pay two sets of costs in this situation. I can, of course, quite understand why you are here acting for him, and I can also say that I have been greatly assisted by your contribution, but nonetheless I do not think it should be right that the Secretary of State should bear those costs.

MR BOWEN: In relation to your Lordship's order on that point, may I just formally ask for permission to appeal.

MR JUSTICE ELIAS: I think you better persuade the Court of Appeal on that. I do not feel I am sufficiently familiar with the case law as to precisely what the law is.

MR BOWEN: As far as the Secretary of State's position is concerned, I am not sure whether my learned friend has got instructions about any appeal, but I would ask that if an application is not made today it be made very shortly in the light of the interests at stake in this case.

MS MATHAROO: My Lord, I would like to seek an extension of time for the Secretary of State to make an application to the Court of Appeal on the papers, perhaps for a short period of time on receipt of the judgment. In that regard I would ask for an expedited transcript of the judgment in order for the Secretary of State to consider an application to the Court of Appeal.

MR JUSTICE ELIAS: I will order an expedited transcript. I will give you 7 days from when we receive the transcript.

MS MATHAROO: I am obliged.

MISS RICHARDS: My Lord, just in relation to the question of extension of time for leave to appeal, we would, as would, I am sure, Mr Bowen, oppose any extension of time. Judgments are handed down routinely not in handwritten form. The fact that a transcript is not available should not prevent the Home Secretary from reaching a decision as to whether he wishes to seek leave to appeal and do so expeditiously. The representatives of the Home Office have been here throughout. Miss Giovannetti has been involved throughout. The fact that she is not here today may mean that an application cannot be made to your Lordship today, but there is no reason for there to be an extension of time for making an application to the Court of Appeal, bearing in mind we are now many months after the Tribunal's decision, which was back in October, and bearing in mind the fact that the liberty of a subject is at stake in the present case.

MR JUSTICE ELIAS: I think we are talking about a very short period. If I can get the transcript back within a week then we are talking about a very short period. I think it is desirable we have a chance to see a proper transcript.

MR BOWEN: My Lord, can I make a request in relation to the order for costs. Can I ask, as I should have done today, whether I can make some written submissions to your Lordship and draw your Lordship's attention to some authorities on this point as to two orders for costs, so that issue be adjourned to be considered on the papers. If we all have, say, 5 days to put written submissions into your Lordship on the question of whether two orders for costs should be made --

MR JUSTICE ELIAS: I do not think I can fairly do that now as I have made a ruling on it, not unless the Secretary of State is in agreement.

MR BOWEN: I recognise what your Lordship says, but of course until it is sealed in an order it is not an order that the court has actually made.

MR JUSTICE ELIAS: Is there any opposition?

MS MATHAROO: Yes, we would oppose it for the reasons given earlier as to why we would oppose costs being made of the interested party.

MR BOWEN: My Lord, the position is that the time and effort that is going to be expended appealing to the Court of Appeal might be more effectively --

MR JUSTICE ELIAS: If you have a look at the authorities you can then decide whether to go to the Court of Appeal.

MR BOWEN: I am obliged, my Lord.

MR JUSTICE ELIAS: Can I thank very much all counsel involved in this case.