CO/2202/2001
Neutral Citation Number: [2002] EWHC 1522 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE  COURT
Royal Courts of Justice
The Strand
London

Tuesday  9  July  2002

B e f o r e:

MR  JUSTICE  STANLEY  BURNTON

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THE  QUEEN

on the application of

L H

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(1)  MENTAL HEALTH REVIEW TRIBUNAL

(2)  THE SECRETARY OF STATE FOR HEALTH
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
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MR S JAISRI (instructed by Messrs Blavo & Co, London WC1X) appeared on behalf of THE CLAIMANT

MISS LISA GIOVANETTI (instructed by the Treasury Solicitor) appeared on behalf of THE DEFENDANT
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J U D G M E N T
Tuesday 9 July 2002
1.	MR JUSTICE STANLEY BURNTON: Subject to anything counsel may wish to say, I propose to direct that, if any report of this case is made, the identity of the patient will not be disclosed and he will be referred to by the letter “H”. 
2.	This is an application for the judicial review of a decision made on 26 February 2001 by a Mental Health Review Tribunal concerning a patient to whom I shall refer as “H”. The application is made by his mother as his nearest relative. The patient himself is an interested party, but has played no part in these proceedings. 
3.	The claimant seeks two forms of relief: an order quashing the decision of the tribunal and a declaration that the Mental Health Act 1983, and in particular section 72, is incompatible with the European Convention on Human Rights. The challenge to the tribunal, like that to the Act, relates only to the question of human rights. The particular Convention right to which reference has been made today is the right under Article 8, and in particular the right to respect for family life. It is said that the institution in which H is detained, being relatively remote from the home of his mother, leads to an infringement of his and her Article 8 rights because the location of the place of his detention unduly interferes with their family life.
4.	An application for a review of the compulsory detention of H was made to the tribunal. He was then detained under section 3 of the Act. The medical evidence before the tribunal and the report of the social worker were all one way. The opinion was unanimous. I can conveniently set out the claimant's medical position by reference to his responsible medical officer's (“RMO's”) report of 4 May 2000. He said: 
“[H] suffers from the devastating combination of Asperger's Syndrome with a super‑imposed psychosis. He undoubtedly fulfils the criteria for detention under the Mental Health Act under the criteria of Mental illness. If he were discharge he would be a danger to himself and to others as he is quite incapable of organising his own life and understanding the consequences of his actions. He is extremely vulnerable to stress and it would be too risky for anyone to try and cope with [H] within a family home. People with Asperger's Syndrome have great difficulty tolerating other people's strong emotions. 
At his recent CPA meeting it was agreed that I would ask his local Health Authority for an up‑to‑date assessment of his needs with a view to referring him to a newly opened specialist unit which caters for people with Asperger's Syndrome who present a risk to themselves and others. He was assessed on 3 May 2000 by a clinician from the John Howard Centre on behalf of the East London and City Health Authority and depending upon the outcome of that assessment I will refer him to Dr Anna Thomas at Cefn Carnau. The Clinical Team agree that he does not require the high secure element of the treatment at Rampton, but because of his unpredictability and the vehemence of his aggression there is currently little in the way of provision nationally that could manage his assaultative behaviour.” 
5.	In the course of his report of 4 May 2000, Dr Wilson said that over the previous twelve months there had been fifteen serious incidents of physical aggression which had had to be skilfully handled by staff and which had resulted in seclusion. Seclusion, as is well known, is a measure of last resort taken by a hospital when other measures have failed. 
6.	Dr Wilson also referred to the effect of visits by the claimant's mother, but it is perhaps unnecessary for me to refer to the comments he made on that occasion. 
7.	When the matter came before the tribunal there was therefore no conflict of medical opinion. Quite what was submitted to the tribunal in relation to Convention rights is unclear. I have a witness statement of Mr John Blavo, the solicitor instructed on behalf of the claimant, who has had the conduct of this matter and who is responsible for the conduct of the tribunal application. While in paragraph 2 he refers to articles 3, 5, 6 and 8 of the European Convention, in dealing with the decision of the tribunal itself he refers only to articles 3, 5 and 6 (as he does in paragraph 13). He referred to the statement of Dr Wilson which indicated that there might be other hospitals which could deal with H and said: 
“I believe that there is in these circumstances no evidence to justify the conclusion that [H] needs to be in Rampton Hospital. I believe that that conclusion is perverse, in view of the evidence that was given by [H's] RMO. I also believe that the conclusion that [H] is lawfully detained in terms of articles 3, 5(1) and 5(4) of the European Convention for Protection of Human Rights .... is inconsistent with both the instruments themselves and the manner in which those instruments have been interpreted by the European Court.” 
8.	It has not been suggested, however, that the detention and treatment of H at Rampton involves any breach of article 3. Indeed, I find it difficult to see on what basis Mr Blavo could have thought that there was. There is certainly no evidence of it before me. Equally, it is no longer suggested that there was any breach of article 5, paragraphs (1) or (4), of themselves. I say that because article 5 is concerned with the detention of patients, insofar as it is relevant to the present case, and ultimately it is accepted that H was, and is, properly detained under the Mental Health Act. Indeed, any decision of a tribunal on the basis of the evidence that was before this tribunal to discharge him from detention would have been perverse. 
9.	The tribunal declined to make any recommendation in relation to H. Paragraph 8 of the form (which would appear to be a proforma form prepared for the use of a tribunal making a decision under section 72), under the heading “Recommendation” states: 
“A. With a view to facilitating discharge on a future date, does the Tribunal recommend that the patient be ‑‑ 
(i)granted leave of absence from the hospital? 
(ii)transferred to another hospital? 
(iii)transferred into guardianship?” 
10.	Against each of those separately the tribunal answered “No”. 
11.	The tribunal, as I have already indicated, decided that the patient should not be discharged. It gave the following reasons, which are stated to be reasons for the tribunal's decision and recommendations. They said they had read the reports and documents handed to them by the applicant. It seems that those documents consisted of correspondence and principally a letter from the hospital, seeking an assessment with a view to his transfer to the Welsh Unit I referred to a moment ago. That letter from Dr Wilson was dated 31 March. It was to the Clinical Director at the John Howard Centre in London. It was with a view to a decision being made by the Health Care Trust who were responsible for the patient. It said: 
“You will see from the enclosed Tribunal report [that was a reference to a previous report] that he was admitted here from Kneesworth House Hospital after his behaviour became so challenging that they were unable to manage him. He has the sad combination of Asperger's Syndrome, coupled with the worst sort of psychotic disorder that came on in late teenage years. He has been seen by Lorna Wing in the past who agrees that the prognosis is appalling. He is not a serious management problem now but he is totally misplaced in an admission ward in a high secure setting. 
I would very much like to be able to refer him to Dr Anna Thomas who works for an organisation that has recently opened a specialist medium secure unit near Cardiff which meets the needs of young people with Asperger's syndrome with unpredictable and risky behaviour.” 
	(Lorna Wing, who is referred to in that letter, is an acknowledged expert in Asperger's Syndrome.) The specialist medium secure unit near Cardiff was the Welsh Unit to which I referred earlier. 
12.	Returning to the reasons given by the tribunal, they said: 
“We have also considered the legal matters raised in the submissions to the tribunal.” 
13.	Regrettably, I am not sure what those legal matters were. It is not made clear from the evidence now before the court. The tribunal continued: 
“We are satisfied that the patient still suffers from a mental illness, namely autistic spectrum disorder and schizophrenia of a nature and degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment and also that such treatment is necessary in the interests of the patient's health and safety and for the protection of others. 
His capacity for appropriate social interactions is limited, as is his ability to understand the consequences of his actions. The frequency and extent of his aggressive outbursts have reduced since his admission to Rampton Hospital which is a measure of the success of his treatment. 
Nevertheless there have been a number of incidents of aggression, some recent, and he has required seclusion on two occasions in the last two months. It was suggested to the tribunal that the projection of danger relies only upon a disputed episode of threat with a knife towards a woman. It does not. It includes assault in hospital which led to facial injuries and rib fracture in staff. 
He responds adversely to high expressed emotion; the tribunal recognises the sincere view of his mother that he would be safely supported by extensive family contact. However, it concludes that unfortunately this is not wholly realistic nor, on the evidence, would it necessarily be beneficial to his overall treatment. 
The unopposed professional evidence was that he requires a high level both of procedural and relational security, whilst the need for physical security is less paramount. 
In total we conclude his treatment could only safely be delivered in high secure hospital. 
We note that a recent assessment from Dr Thomas from a specialist medium secure unit with expertise in autism concluded that he could not be treated there since he is too dangerous. 
We conclude that the detention in Rampton Hospital is not currently in excess of his requirements. 
The tribunal is satisfied that the clinical team will take appropriate steps to obtain a placement elsewhere when this is feasible in the light of his complex treatment needs which are currently met at Rampton Hospital. 
The tribunal find no breach of the provisions of the Human Rights Act.” 
14.	The reference to the recent assessment from Dr Thomas must be a reference to the assessment made with a view to transfer to the Welsh Unit to which I have already referred. It follows that at the date of the tribunal decision that transfer was not a practical possibility. No other transfer had been suggested. There was no evidence that there was any other unit which could properly treat H, which was willing to accept him, and no evidence therefore of any unit more conveniently placed to his mother which could or would accept him, assuming that which is asserted, namely that it was in the interests of the patient to be located closer to his mother. I say assuming that because that consequence does not necessarily follow on the facts of the present case. 
15.	The attack that is made on the decision of the tribunal is that the reasons given by the tribunal in relation to the provisions of the Human Rights Act were inadequate. The authorities relating to the adequacy of the reasons of tribunals are well known. They are recently supplemented by the decision of the Court of Appeal in The Queen on the application of H v Ashworth Hospital Authority [2002] EWCA Civ 923. It is trite law that the adequacy of reasons given by a tribunal must depend on the issues put before it and the context, that is to say the decision which the tribunal is to reach. Here I have no evidence as to what provisions of the Human Rights Act were alleged. Insofar as there were breaches of Articles 5 and 6 in relation to the decision to be made by the tribunal, I am not surprised that the tribunal dealt with them in the cursory way that they did. The Mental Health Review Tribunal is patently an independent tribunal qualifying as such for the purposes of articles 5 and 6. Insofar as it was alleged that there was a breach of Article 5, the tribunal decided, as was inevitable, that H was, and should continue to be, lawfully detained. There was a proper review of the legality of his detention. That review was contained in the decision of the tribunal and there was by reason of the review by the tribunal and its decision compliance with Article 5 and, insofar as relevant, Article 6. 
16.	So far as Article 8 is concerned, there is nothing, as I have already stated, to indicate whether any submission in relation to Article 8 was made. Even assuming it was, however, given the medical evidence before the tribunal, the decision that H should continue to be detained was inevitable. Indeed, on the material before the tribunal and before the court, it was an inevitable decision that the rights of H himself to a personal life would best be respected and safeguarded by his continued detention. As the tribunal found ‑‑ and it was an inevitable conclusion based on the uncontradicted evidence before them ‑‑ a release from detention would produce a risk of injury, if not to the life, of H himself, and would place other persons at risk. 
17.	In those circumstances I am unable to see to what point there would have been in any discussion by the tribunal of the Article 8 rights of the patient. Equally, insofar as the decision was being made that he should continue to be detained, there would have been no point in any discussion of any Article 8 rights of the claimant. Those rights, which are not unqualified, could not conceivably have led to any different decision so far as the detention of the patient was concerned. Effectively, so far as the decision on discharge is concerned, all that could be sought realistically by the claimant would be remission of this decision to the tribunal for them to enlarge on the last sentence of their decision. That, it seems to me, would be a wholly pointless exercise, assuming what has not been proved, that is to say that the contentions put before the tribunal justified a more lengthy discussion of the human rights' aspects of their decision. 
18.	It would be wholly wrong for the court to quash a decision of a tribunal which unquestionably was right and which the claimant accepts was a correct decision so far as the detention of the patient is concerned. 
19.	I turn therefore to the other aspect of the complaint as to the decision. That is the failure to make a recommendation and the failure to give reasons for the refusal to make a recommendation. The power to make a recommendation is statutory. Section 72(3) of the Act provides as follows: 
“A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may ‑‑ 
(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and 
(b) further consider his case in the event of any such recommendation not being complied with.” 
20.	The power to make a recommendation is expressly qualified by the words “with a view to facilitating his discharge on a future date”. There is no power under subsection (3) of section 72 to make a recommendation with a view to doing something other than facilitating the discharge of the patient on a future date. For example, there is no power under section 72 to make a recommendation for the transfer of a patient to another hospital more convenient for him or his family. The wording of section 72(3) is reflected in section 8 of the form on which the tribunal recorded its decision. As I have already read out, the question poses to the tribunal is: 
“With a view to facilitating discharge on a future date, does the tribunal recommend that the patient be ‑‑ 
.... 
(ii) transferred to another hospital?” 
21.	There was no evidence before the tribunal to justify making a recommendation of such a kind with a view to facilitating discharge at a future date. All that is now said, and I assume was then said to the tribunal, was that a recommendation could and should have been made for transfer to another hospital with a view to facilitating access to the patient by his mother, that is to say with a view to facilitating their family life. That is not a purpose within the scope of section 72. 
22.	It follows that the tribunal had before it neither a contention nor any evidence in support of a contention justifying a recommendation, or justifying consideration of a recommendation, under subsection (3). In those circumstances the absence of any reasons for not making such a recommendation is wholly explicable. The issues raised before the tribunal and the evidence before the tribunal simply did not warrant such issues being addressed by it. For that reason alone I would refuse to grant any relief in relation to that alleged failing on the part of the tribunal in setting out its reasons. 
23.	However, the claimant faces a further insuperable difficulty in this regard. A recommendation of itself has no legal effect. A recommendation made outside the scope of section 72(3) may be likened to a recommendation made by an adjudicator in immigration cases such as was the subject of consideration by the Court of Appeal in Kharib‑Shahidi v IAT [2001] IAR 124, in which the Court of Appeal held that a decision not to make an extra statutory recommendation by an adjudicator was not susceptible to judicial review because it had no legal force. It is impossible to distinguish that case from the present case. 
24.	It does not follow, however, that a failure by a Mental Health Review Tribunal to give reasons for a failure to make a recommendation within the scope of section 72(3) would not be susceptible to judicial review in circumstances where the contentions and material before the tribunal justified its consideration of such a recommendation. That is a matter which may be decided on another occasion. I express no view on it. 
25.	It follows that the criticisms made of the decision of the tribunal are ill‑founded and that there is no ground for interfering with its decision in any way. 
26.	I turn, therefore, to the application for a declaration of incompatibility. A declaration of incompatibility is sought on the basis that section 72 does not authorise a tribunal to consider and to determine questions such as whether a hospital is a particularly suitable hospital in terms of the degree of security or in terms of geographical proximity to the family of a patient. So far as the latter point is concerned, it means that section 72 does not empower a tribunal to consider or to determine the rights of the patient or the members of his family under article 8. On this basis, it is said, the Act, and in particular section 72, is incompatible with the Convention. 
27.	So far as this point is concerned, the claimant faces to my mind the insuperable difficulty posed by the decision of the House of Lords in In Re S (2002) UKHL 10. On analysis the only complaint that can be made as to the powers of a tribunal under section 72 is that they are insufficient, that there is therefore a lacuna in the Act, or alternatively there is a lack of an effective remedy in the Act for breach or an arguable breach of article 8 rights. This argument, if correct, would be independent of the facts of the present case. I emphasise that there is nothing that I have seen to indicate that there has been in the present case any breach of anyone's article 8 rights having regard to the medical evidence before the tribunal. However, in In re S the only speech was given by Lord Nichols of Birkenhead, with whom the other members of the House of Lords agreed. He stated in terms that a lacuna in an Act (he was there dealing with the Children Act), or a failure to provide an effective remedy for a violation of a Convention right, does not lead to the conclusion that the Act is incompatible with that Convention right or the provisions of the Convention in question. Clearly there is no necessary incompatibility between the Mental Health Act and the Convention. The evidence before me in the present case indicates that there is no evidence, as I have already stated, of any infringement of any Convention right. Be that as it may, this case is indistinguishable from In re S. For the reasons set out in the speech of Lord Nichols, a declaration of incompatibility could not be made in the present case. 
28.	I would add only this. The present case is concerned with the conditions in which H is detained and the location of his detention. It is well known that there is a national shortage of places in secure units. The place in which, and the conditions in which, a patient is detained are ultimately questions of clinical judgment. Any transfer of a patient from one unit to another involves the agreement of the National Health Service Trust which is responsible for his treatment. Realistically it involves consideration and agreement by the hospital in which he is currently detained and being treated and of course requires assessment and agreement on the part of the receiving hospital. Such assessments and the decisions made on them are principally clinical matters with which any court is loath to interfere. They may also be affected by questions as to the availability of resources with which the court cannot interfere unless those resources, and the lack of them, lead to an infringement of a Convention right, for example, a right under article 3. That is not the position in the present case. The evidence I have seen in the present case indicates that H's needs in terms of treatment and in terms of the conditions under which he is detained have been sensibly, and indeed sympathetically, examined by his responsible medical officer and other authorities responsible for him, including the social worker who prepared the report that was before the tribunal. As I have already indicated, nothing in the evidence I have seen would lead to any suspicion that H is being inappropriately treated or detained. 
29.	For the reasons I have given, therefore, this application for judicial review will be dismissed. 
MISS GIOVANETTI: My Lord, I am not instructed to make any application. 
MR JAISRI: My Lord, the claimant is legally aided. 
MR JUSTICE STANLEY BURNTON: You would like the usual certificate? 
MR JAISRI: My Lord, yes. 
MR JUSTICE STANLEY BURNTON: You may have the usual certificate. Thank you both very much.