England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th July 2003

Mr Justice Silber:

Introduction

1. On 12 December 2002, the Mental Health Review Tribunal (East Midlands and North Eastern Region) ("the Tribunal") adjourned the hearing of an application by MP ("the claimant") in order to state a special case for determination by the High Court, pursuant to s78(8) of the Mental Health Act 1983 ("the Act").
2. This Case Stated raises the issue of the effect of Article 5 of the European Convention on Human Rights ("the Convention") on the current statutory regime for dealing with a restricted patient, who has not been moved from high secure conditions to a Regional Secure Unit of medium security despite recommendations to that effect from previous determinations of the Tribunals and the circumstances. The Trust was represented at the hearing by Mr. Martin Chamberlain, who took a neutral stance on the substantive issues raised on this application. Mr. Chamberlain also acted for the Secretaries of State for the Home Department and for Health ("the Interested Parties") and made submissions on their behalf. I am grateful to all counsel for their helpful submissions. In order to understand the issues, it is necessary to consider the facts of this case to which I now turn.

The facts

3. The Case Stated records that:-

(i) The claimant, who has a criminal record and had contact with the psychiatric services, killed another man in 1992, when he was aged 19. He was duly convicted of manslaughter and made the subject of a hospital order under s37 of the Act together with a restriction order under s41 of the Act.

(ii) The claimant was classified as suffering from psychopathic disorder, which is defined in s1 of the Act as "a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct …" It is a precondition of detention under that category that the medical treatment alleviates or prevents a deterioration in the condition of the patient. The claimant has been detained in High Secure conditions at Rampton Hospital since conviction.

(iii) The claimant has made progress in therapy. Prior to the time when the case was sated, it had been the view for some time of those treating him at Rampton that he is ready to move to a less secure hospital, namely conditions of Medium Security in a Regional Secure Unit, which is the normal course of progress for those detained in High Secure conditions.

(iv) In March 2000, the claimant's detention was reviewed by a Mental Health Review Tribunal, which concluded that he did not meet the test for release from detention, but supported his transfer to Medium Secure conditions. It stated,

"We do note that there is a difficulty in Mr. M moving to Newton Lodge [the Regional Secure Unit for West Yorkshire, Mr. M's home area]. We consider that it would be a matter of regret if that particular difficulty were to prevent Mr. M progressing on from Rampton and we recommend that every effort is made to overcome any such problems and that Mr. M is enabled to move to a medium secure unit as soon as that is possible".

(v) In February 2001, a Tribunal again concluded that he did not meet the test for release from detention, but again supported his transfer to Medium Secure conditions. It stated:-

"It is a matter of great concern that while his care team considers he no longer needs the high security provided by Rampton it has so far proved impossible to move him to an RSU. We strongly support the care team's decision that he should move to conditions of medium security. We understand that there may be personal factors operating at Newton Lodge which are improperly barring the acceptance of Michael there and we would urge that consideration is given to referring him to Stockton Hall or some alternative medium secure unit in an attempt to move him on more quickly. Until he is moved on it will not be possible to test him out adequately in the community. We consider the hurdles which are currently being placed in his way are unacceptable".

(vi) Mr. M made a further application to a Tribunal in July 2002. When that Tribunal met on 15 November 2002, the evidence was that there was no realistic prospect of Mr. M being transferred to a medium secure hospital in the foreseeable future. The Tribunal adjourned so that the Hospital and the Home Secretary could be represented in light of the point of law raised.

(vii) The Tribunal reconvened on 12 December 2002. The Hospital attended with legal representation, but the Home Office did not. The Tribunal was further adjourned so that this Special Case Stated could be lodge with the High Court and this has now occurred.

Issues raised on Case Stated

4. The Tribunal raised the following questions:-

(i) What are our powers when dealing with a patient such as the claimant:

a. who is a restricted patient;

b. who is detained in high security conditions;

c. who has been found by previous Tribunals not to require high security conditions;

d. whose discharge from hospital may be less likely unless he has progressed from high security conditions for further treatment and/or assessment as to the nature or degree of his detention and the other elements of the test for detention?

(ii) How should we apply the provisions of ss. 3 and 6 of the Human Rights Act 1998 in approaching the question of our powers under s.73 of the Mental Health Act 1983, including the power to defer a direction for discharge under s.73(7) of the Act, as interpreted in R (IH) v. Nottinghamshire NHS Healthcare Trust [2002] EWCA Civ 646, [2002] 3 WLR 967?

(iii) Does the absence of a power to ensure implementation of our findings that a patient should be transferred to a lower level of security mean that section 73 of the Act is incompatible with the Convention?

(iv) Does the absence of a power to ensure the implementation of any recommendation in relation to a patient detained under the Mental Health Act mean that the present powers of the Mental Health Review Tribunal under sections 72 and 73 are incompatible with the Convention?.

The Statutory Provisions

5. Before turning to the issues, it is appropriate to set out the relevant statutory provisions dealing with the discharge of patients. Section 72 of the Act provides:-

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

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

(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 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) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.

(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard –

(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and

(b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.

(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may –

(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

(b) further consider his case in the event of any such recommendation not being complied with.

6. Section 73 of the Act, which deals with the power to discharge restricted patients, such as the claimant, provides insofar as is relevant to this application that:-

"(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.

(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4) Where a patient is conditionally discharged under this section –

(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as If he had been conditionally discharged under subsection (2) of that section; and

(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal or at any subsequent time by the Secretary of State.

7. It is appropriate at this stage to comment on four matters that have been raised by Mr. Tim Owen QC on behalf of MP and which are all of importance in determining the issues that have to be resolved on this application. Those issues are:-

(a) whether if the Tribunal does not have statutory power to transfer a restricted patient to a less secure hospital, the statutory regime does not comply with Article 5 of the Convention ("Issue A – The Convention Issue");

(b) whether there is a power conferred on the Tribunal under the present statutory provisions for a restricted patient to be transferred to a lower level of security ("Issue B - The Statutory Provisions Issue");

(c) whether the Tribunal could grant the claimant a deferred conditional discharge under s73 of the Act which would allow it to retain a supervisory rule over the claimant in an attempt to secure his release with, if necessary, a period in a less secure place so long as the conditions do not amount to a continuance of his detention ("Issue C - The Deferred Conditional Discharge Order");

(d) the powers that the Tribunal have to deal with the claimant as a restricted patient ("Issue D – The Tribunal's Powers Issue").

A – The Convention Issue

8. Mr. Martin Chamberlain for the Interested Parties contends that the Convention is not concerned with the specific conditions under which a patient is detained or transferred. The only Article of the Convention relevant to the issues raised by the Tribunal is Article 5, which provides, insofar as material to this Case Stated, that:-

"(1) Everyone has the right to liberty and security of the 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" (emphasis added).

9. Mr. Chamberlain relies heavily on the decision of the Strasbourg court in Ashingdane v. UK (1985) 7 EHRR 528, in which the applicant, who was detained at Broadmoor, complained that although his transfer to conditions of lesser security was clinically appropriate and had been authorised by the Home Secretary, it had not been implemented for 18 months because of a dispute with staff at his local hospital. The applicant's submissions in that case were almost identical to those made by Mr. Owen as the Strasbourg court records the applicant's argument in Ashingdane as follows:-

"He contended that his continued detention at Broadmoor during this period was 'unlawful' for the purposes of Article 5(1)(e) for the following reasons: it was not in accordance with domestic law; to the knowledge of the responsible authorities, it was not necessary for his treatment and even involved a serious risk of deterioration in his mental health; in the 'inappropriate' conditions of Broadmoor, it limited his liberty to a greater extent and retarded his eventual release into the community for a longer period than was strictly required by the needs of society…" [43].

10. The Strasbourg Court then explained that:-

"The issue of principle raised by this submission is whether, and if so, to what extent the expression "lawful detention of a person of unsound mind" can be construed as including a reference not simply to the actual deprivation of liberty of mental health patients but also to matters relating to execution of the detention, such as the place, environment and conditions of detention" [44].

11. The Court accepted that:-

"there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention" [44].

12. It then went on to elaborate on what was required:-

"In principle, the detention of a person as a mental patient will only be lawful for the purpose of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the foregoing, Article 5(1)(e) is not in principle concerned with suitable treatment or conditions" (emphasis supplied).

13. Importantly, at paragraph 47, the Strasbourg Court specifically rejected the applicant's argument that the differences between the regime at Broadmoor and the regime at his local psychiatric hospital were "such as to change the character of his deprivation of liberty as a mental patient". Both were psychiatric hospitals where staff displayed "a constant preoccupation with the applicant's treatment and health". Accordingly:-

"although the regime at Oakwood was more liberal and, in the view of the improvement of his mental state, more conducive to his ultimate recovery, the place and conditions of the applicant's detention did not cease to be those capable of accompanying "the lawful detention of a person of unsound mind" [43].

14. The Strasbourg Court held that:-

"the injustice suffered by Mr. Ashingdane [as a result of not being transferred] is not a mischief against which Article 5(1)(e) of the Convention protects" [49].

15. The Strasbourg Court also decided that Article 5(4) "does not guarantee a right to judicial control of all aspects or details of the detention" [52]. Article 5(4) had to be read in accordance with Article 5(1)(e). Accordingly, there had been no violation of Article 5(4) because what the applicant was claiming was:-

"an entitlement to accommodation and treatment in the more 'appropriate' conditions of a different category of psychiatric hospital, a matter not covered by Article 5(1)(e)".

16. Mr. Owen points out that in the subsequent decision in Aerts v. Belgium (1999) 29 EHRR 50, the Strasbourg Court considered an application by a Belgian patient who had been detained in the "psychiatric wing" of a prison and it found a violation of Article 5(1). It reached that decision because on the facts of that case and in accordance with the reasoning in Ashingdane, the applicant in that case had been detained contrary to domestic law [47]. It was noteworthy that this was in a place which did not qualify as a "hospital, clinic or other appropriate institution" [49] because those on the prison wing where the applicant was detained were "not receiving either regular medical attention or a therapeutic environment" [49]. Aerts' position is very different from that of MP who is being detained in a hospital where he is receiving regular medical attention and a therapeutic environment.
17. Mr. Chamberlain submits that I should follow Ashingdane as it has been consistently and recently applied both in Strasbourg and in this country by the Court of Appeal, Divisional Court and High Court, both in the context of transfers between mental hospitals and in the context of transfers between different categorisation in hospitals. It is common ground between the parties that similar principles apply to mental health patient transfers issue and prisoner categorisation issue when Article 5 is being considered.
18. Thus, Mr. Chamberlain points out that in KM v. UK, (App No. 28376/95, 3 December 1996), the European Human Rights Commission unanimously rejected as being inadmissible a complaint that the decision to transfer a prisoner from a Category C prison to a Category D prison engaged Article 5(4). The Commission noted that "Article 5(4) requires a review by which the "lawfulness" of detention will be determined". It noted that there was a power to release the applicant if "the applicant's detention was no longer necessary for the protection of the public". It is significant that the Commission concluded that when refusing to following a transfer recommendation, the Secretary of State "was not determining the lawfulness of detention within the meaning of Article 5(4) and so the guarantees of that provision cannot apply to the refusal".
19. Similarly, in the municipal courts in R (Burgess) v. Secretary of State for the Home Department [2000] Prison Law Reports 257, a prisoner sought unsuccessfully to rely on Article 5(4) of the Convention to challenge a refusal by the Home Secretary to transfer a prisoner to open conditions. In its reasons, the Divisional Court expressly affirmed the decision in KM, which Rose LJ described in his judgment as "crushingly unanimous" [39]. The Divisional Court expressly endorsed the reasoning in Ashingdane. The difference in context between transfers between prisons and transfers between mental hospitals was considered not to be significant as Ashingdane's complaint was, in Rose LJ's words, "identical to that in the present case". He explained that "Article 5(4) does not … preclude the Secretary of State from taking a different view from the … Parole Board as to whether or not the applicant should be moved to open conditions".
20. Burgess and Ashingdane have been followed in the context of transfers between mental hospitals. Thus in R (SSHD) v. Mental Health Review Tribunal (2000) 63 BMLR 181, [79-80], Collins J noted that:-

"In the light of Burgess and Ashingdane, [the claimant's counsel's] ability to rely on Article 5(4) is, as he recognises, severely constrained".

21. The reasoning in Ashingdane, KM and Burgess was again expressly approved recently by the Court of Appeal in another case concerning transfer between prisons (R (Williams) v. Secretary of State for the Home Department [2002] 1 WLR 2264, at [28], per Lord Phillips MR, Judge and Carnwath LJJ). Indeed, the Court of Appeal expressly approved the statement of Rose LJ, which I have quoted in paragraph 13 above. However, the fact that it applied the reasoning in Ashingdane indicates that, in the view of the court, there was no relevant difference in the application of Article 5 between prisoner categorisation issues and restricted patient transfer issues.
22. Mr. Owen with characteristic candour accepted that I am bound by the Ashingdane decision, which has been endorsed in many cases and most recently in Williams, with the result that Article 5(1) and (4) are not concerned with the location in which a restricted patient is detained. Thus, the claimant cannot derive any assistance from Article 5 and I need not consider it further when analysing the remaining issues.

Issue B – The Statutory Provisions Issue

23. As I have explained, this issue raises the question of the Tribunal's powers in respect of a restricted patient detained in high security conditions who has been found by previous Tribunals not to require higher security conditions, but whose discharge from hospital may be less likely unless he has progressed from high security conditions for further treatment and/or assessment as to the nature or degree of his detention and the other elements of the test for detention. As I have stated in resolving Issue A, the Convention does not require the Tribunal to be able to recommend the transfer of a restricted patient to less secure accommodation.
24. It is significant that whereas in the case of non-restricted patients, s72(3) confers a power given to Tribunals to recommend transfer between hospitals, no similar provision exists in the following section for restricted patients, such as the claimant MP. This suggests clearly that in the case of restricted patients, the Tribunal does not have the power to transfer between hospitals.
25. In Grant v. Mental Health Review Tribunal of Trent (The Times) 26 April 1986, McNeill J held that in the case of a restricted patient, the Tribunal had no power to recommend the grant of leave of absence or of transfer. More recently, the Court of Appeal considered Grant's case in R v. Oxford Mental Health Authority Review Tribunal and Another ex parte Smith 25 January 1995 in which Sir Ralph Gibson giving the only reasoned judgment of the court said "I have no doubt that s72(3) does not give a statutory power to a Tribunal to make a recommendation in the case of a restricted patient under s73". That decision is binding on me and it is not suggested by Mr. Owen for the claimant that it does not apply here. Thus, there is no power under the Act for the Tribunal to order or recommend that the claimant as a restricted patient be moved to less secure conditions.
26. As a footnote, I should add that in R (Secretary of State for the Home Department) v. Mental Health Review Tribunal [2000] Mental Health Law Reports 209, Collins J explained that there is nothing to inhibit the Tribunal from making recommendations but they do not have to be followed. I agree with that conclusion, but such a recommendation does not give to a detained patient any binding or enforceable rights to have such a recommendation followed.

C – The Conditional Discharge Issue

27. Mr. Owen contends that the Tribunal is empowered to grant the claimant a deferred conditional discharge under s73 of the Act, which would then enable the Tribunal thereafter to retain a supervisory role over the claimant in an attempt to secure his progress towards release with, if necessary, a period in a less secure hospital so long as those conditions do not amount to a continuance of his detention. Mr. Owen points out that in R (IH) v. Secretary of State [2002] 3 WLR 697 (which is the case referred to in the second question posed for this court by the Tribunal and in which the claimant on that application is sometimes referred to in law reports as 'H'), the Court of Appeal held that deferred conditional discharge was a provisional decision which allowed the Tribunal to supervise its implementation by using its powers to call further evidence. The Court of Appeal also held that such an order could subsequently be amended if necessary by amending conditions for example, including by cancelling the operation of the condition of the patient deteriorated. Mr. Chamberlain submits correctly in my view that MP's position is very different from that of IH and so the decision in that case is not relevant to MP's position.
28. In IH's case, a Tribunal had previously concluded in 1999 that the claimant, a restricted patient, was not then suffering from mental illness which necessitated his detention. Thus, under s73 of the Act, the Tribunal ordered IH's conditional discharge subject to terms, which included a condition that he be supervised by a forensic psychiatrist and that he reside at a suitable hospital. That discharge was deferred for a care plan to be drawn up but the health authority, which was under a duty to provide after-care services, was unsuccessful in finding forensic psychiatric supervision for IH on discharge into the community. So he continued to be detained. In 2001, the Secretary of State referred IH to a further Tribunal which found that he was and always had been suffering from a current mental illness which required his detention in hospital for treatment. IH applied for judicial review on the grounds that his detention for two years after 1999 violated his Article 5 rights. The Court of Appeal upheld the decision of the judge refusing IH's application.
29. The Master of the Rolls giving the judgment of the Court of Appeal made it clear that the question of conditional discharge would not arise if the Tribunal concluded that a patient was suffering from mental disorder of a nature or degree which made it essential for his safety or that of others that he be detained in hospital for treatment ([76]). In the present case, it is not suggested in the Case Stated that the claimant is suitable for release although the claimant's solicitor disagrees. Thus, in both March 2000 and February 2001, the Tribunal concluded that the claimant did not meet the test for release from detention. Thus, the option of conditional discharge is not an available remedy for the claimant, while he does not remain suitable for release, although, as I have explained, the claimant's solicitors in a skeleton argument put before the Tribunal contended that he should be released.
30. Mr. Owen also relied on the decision of the Court of Appeal in Secretary of State for the Home Department v. Mental Health Review Tribunal [2002] EWCA Civ 1868 in which the Court of Appeal considered the extent of a Tribunal's powers to attach conditions for discharging a restricted patient, PH, from the hospital where he had been detained. The Tribunal had in that case decided to direct that the claimant be discharged but that the discharge should be deferred until satisfactory arrangements had been made to meet the conditions which had been imposed. The Secretary of State sought judicial review of that decision principally on the ground that the conditions imposed by the Tribunal fell outside its powers. The Court of Appeal upheld the decision of the judge that the Secretary of State's application had to be dismissed.
31. That case was a very unusual one as the applicant PH was aged 77 and he had been detained in Broadmoor for 44 years. He was in poor health. The responsible medical officer for PH concluded that it would be appropriate for him to be discharged conditionally provided that there was a condition that he must be escorted at all times when outside his place of residence. The President of the Tribunal explained the conditions imposed were necessary to facilitate rather than to inhibit the freedom of PH, who after such a long period of detention would have great difficulty in coping with such things as traffic and the value of money, especially since decimalisation. Thus, PH's case depends entirely on its own unique facts. The Tribunal concluded that it was satisfied that PH was not suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or degree which would make it appropriate for him to be detained in hospital for hospital treatment. This factor distinguishes PH from that of the present claimant. I am of the opinion that nothing in either of those cases gives the Tribunal the power to make a deferred conditional discharge order in respect of the claimant MP so as to permit him to be moved to a medium secure hospital, while the Tribunal still continues to consider that the detention criteria are met.
32. Indeed, there are powerful factors which indicate that the Tribunal should not have that power. There is no power to order discharge of any kind if the Tribunal is satisfied that the detention criteria are met. Section 72 of the Act imposes on the Tribunal a duty to direct discharge unless satisfied in respect of the patient (i) that he is then suffering from a mental illness, psychopathic disorder, severe mental impairment or mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (ii) that it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment. The words that I have emphasised in italics make it clear that the Tribunal is "looking to the present tense in the sense that it is dealing with the patient's condition as it appears to be then" per Collins J in R (Secretary of State for the Home Department v. Mental Health Review Tribunal [2000] Mental Health Law Reports 209 ([22]). It is important to stress that if the Tribunal is satisfied of both these matters, in relation to a restricted patient, it may not direct a discharge of any kind. That appears to be the present position so far as MP is concerned, although the skeleton argument from the claimant's solicitor shows that there is a contrary argument that he wishes to pursue. To accede to Mr. Owen's submissions would mean that the detention criteria were circumvented.
33. It is also suggested in the claimant's written skeleton argument that the Tribunal could use its powers under Rule 13 of the Mental Health Review Tribunal Rules ("the Rules") to direct that the claimant be transferred to a suitable hospital. Rule 13 enables a Tribunal "to give such directions it thinks fit to ensure the speedy and just determination of the application". I do not agree with the claimant's submission that this Rule can be used to justify transferring the claimant to a less secure hospital for three main reasons. First, Rule 13 is dealing with procedural matters and not with substantive issues such as discharge. Second, that provision does not empower the Tribunal to effect transfer of restricted patients between hospitals, which is a function specifically reserved to the Secretary of State. In R (Harry) v. Secretary of State [1998] 1 WLR 1737, 1746 Lightman J explained that in respect of transfer "Parliament has not by the Act of 1983 conferred upon the Tribunal any role (even as advisors) on the issue .. it is the Secretary of State (and not the Tribunal) who is by statute entrusted with the task of deciding whether to give consent ..". I respectfully agree. Third, the statutory tests in the Act lay down the criterion for determining if a patient, such as MP, can be discharged and Rule 13 cannot override them.
34. Similar reasoning defeats the next point of Mr. Owen which is that Rules 14 and 15 of the Rules enables the Tribunal to obtain evidence and information but this cannot be used for the purpose of securing a transfer as if that were to be done, it would be using the Rules for an inappropriate and impermissible process as the detention criterion would be avoided (see R (Secretary of State for the Home Department v. Mental Health Review Tribunal [82-83]).

Issue D - The Tribunal Powers Issue

35. As I have explained, the first question raised by the Tribunal relates to its powers when dealing with a patient such as the claimant, who is a restricted patient detained in high security conditions and who has been found by previous Tribunals not to require high security conditions but whose discharge from hospital may be less likely to occur unless he had progressed from high security conditions for further treatment and/or assessment as the nature or degree of his detention and the other elements of the test for detention.
36. In paragraphs 7 and 8 above, I have set out the relevant statutory provisions, which show that the Tribunal is first required to consider whether the potential criteria set out in s72(1) of the Act as applied by s73(1) of the Act are satisfied. If the answer to that inquiry is in the affirmative, then the Tribunal is required to refuse to discharge the patient whether absolutely or conditionally and whether immediately or on a deferred basis, although as I have explained in paragraph 26 above, in that event, the case the Tribunal may make a non-binding recommendation for transfer to another hospital or category of hospitals.
37. If on the other hand, the detention criteria set out in s72(1)(b) of the Act are not both satisfied, the Tribunal has then to consider whether it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. If they are so satisfied, the Tribunal must discharge the patient conditionally in which case it may not impose conditions which require the patient's continued detention for any period at a medium secure or other hospital.

The procedure used by the Tribunal

38. As I have explained, this application has been brought under s78(8) by the Tribunal seeking to state a special case for determination by the High Court. In Bone v. Mental Health Review Tribunal [1985] 3 All ER 330 at 334, Nolan J (as he then was) said that:-

"the procedure of an application for judicial review should be considered as an alternative to a Case Stated under s78(8). I say this not only because the judicial review procedure allows a broader consideration of the issues but also because it offers a much more comprehensive range of reliefs".

39. There are two disturbing features of the present unusual application. First, the Tribunal did not find any specific facts and therefore the questions to be resolved by this case are theoretical and academic whereas they ought to be fact-specific. Indeed, as I will explain this case will probably have to be remitted to the Tribunal to determine the facts and, in particular, to decide whether the claimant should be detained at all. Second, as no facts have been established by the Tribunal, the questions asked by it have in consequence been very wide. The first question to which I have referred in paragraph 5 above, asks this court to set out all the powers in dealing with a restricted patient detained in high security conditions, who had been found by previous Tribunals not to require high security conditions. The answer to that question as I have explained depends on many factors. Thus, the Tribunal will be required to engage in fact-finding itself after it receives the advice from this court.
40. I consider that with the benefit of hindsight this fact-finding exercise should have been performed before the Tribunal considered stating a special case for determination of this court especially as the claimant's solicitor has submitted to the Tribunal a detailed and careful skeleton argument explaining why the claimant should not be detained. If these contentions of the claimant's solicitors are right, the application to this court may have been a waste of court time and public money.

Answers to the questions raised by the Tribunal

41. In essence, I agree with Mr. Chamberlain that the answers to the questions stated should be as follows:-

(i) When dealing with a patient such as MP:

(a) who is a restricted patient;

(b) who is detained in high security conditions;

(c) who has been found by previous tribunals not to require high security conditions;

(d) whose discharge from hospital may be less likely unless he has progressed from high security conditions for further treatment and/or assessment as to the nature or degree of his detention and the other elements of the test for detention;

The answer is that the tribunal is required:

(1) to consider whether the detention criteria set out in s72(1)(b) (as applied by s73(1)) are both satisfied;

(2) if so, to refuse to discharge the patient (whether absolutely or conditionally and whether immediately or on a deferred basis), in which case they may make a non-binding recommendation for transfer to another hospital or category of hospital;

(3) if not, to consider whether they are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment;

(4) if so, to discharge the patient conditionally, in which case they may not impose conditions which require the patient's continued detention (for any period) at a medium secure or other hospital.

(ii) How should we apply the provisions of Sections 3 and 6 of the Human Rights Act 1998 in approaching the question of our powers under s73 of the Mental Health Act 1983, including the power to defer a direction for discharge under s73(7) of the Act, as interpreted in R (IH) v. Nottinghamshire NHS Healthcare Trust [2002] EWCA Civ 636, [2002] 3 WLR 967? Answer – See above.

(iii) Does the absence of a power to ensure implementation of our findings that a patient should be transferred to a lower level of security means that s73 of the Act is incompatible with the European Convention on Human Rights? Answer – No.

(iv) Does the absence of a power to ensure the implementation of any recommendation in relation to a patient detained under the Mental Health Act mean that the present powers of the Mental Health Review Tribunal under Sections 72 and 73 are incompatible with the European Convention on Human Rights? Answer – No.

Postscript

42. Mr. Owen indicated that he would wish to use this case to challenge the Ashingdane decision probably in Strasbourg. On further consideration, he might consider it preferable to return to the Tribunal so that the relevant up-to-date facts can be established and he could then pursue the claim in his instructing Solicitor's skeleton argument that the claimant should not now be released. This matter can be discussed when judgment is handed down.
43. After a draft of this judgment was circulated to counsel, I was helpfully informed by Mr. Chamberlain that on that day the Court of Appeal had handed down a judgment in Munjaz v. Mersey Care NHS Trust [2003] EWCA Civ 1036, in which one of the many questions raised was whether Article 5 of the Convention was concerned with conditions of detention. The Court of Appeal gave a negative answer in paragraphs 66-70 of their judgment and this accords with the conclusion that I reached in paragraph 22 above. The claimant's counsel did not avail themselves an opportunity that I gave them to make further submissions before this judgment was finalised.

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MR GLEDHILL: My Lord, the only ancillary matters -- first of all, might I have an order for a legally detailed assessment of M's costs?

MR JUSTICE SILBER: Of course.

MR GLEDHILL: The other point is the issue of appeal, which is actually quite complex in this case because, at first blush, this is a first tier appeal, and therefore any second tier appeal does not involve your Lordship; the Court of Appeal is the only body that can behove(?) that. Having said that, this is not really an appeal, because the case stated procedure on the facts of this case is a request for an opinion.

MR JUSTICE SILBER: Yes. You have read what I said in my judgment?

MR GLEDHILL: Yes. So my application to your Lordship is not to grant me permission to appeal, but to be on the safe side, in case I need to seek permission first before any question of any alternative appeal route is sought, can I ask your Lordship formally to refuse permission to appeal, on the basis that you say in your judgment --

MR JUSTICE SILBER: Well, I can explain it in more detail. The Court of Appeal has established that Article 5 of the Convention is not concerned with conditions in detention: Williams, Munjaz(?) and Burgess all make that clear. The claimant has also no right to a conditional discharge while the recognised statutory requirements for detention are satisfied. The strength of the claimant's case does not go anywhere near reaching the necessary threshold standard required to obtain permission to appeal. In any event, the Tribunal has not found the relevant facts, and it would not be an appropriate use of the court's time to consider points which might turn out to be academic, especially, as the claimant contends, with the benefit of medical opinion that he is entitled to at this stage.

MR GLEDHILL: Thank you, my Lord.

MR JUSTICE SILBER: I think that concludes matters for today.

I have just been asked about the relief. It seems that I do not say claim dismissed; it is question answered.

A copy of the final version of the judgment will be ready probably in an hour's time. You might like to have a look at what is said about the procedure rules which were adopted by the Tribunal: page 38 of the judgment.

Thank you both very much. Would you convey my thanks to Mr Owen as well?