QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
|- and -
|NOTTINGHAMSHIRE HEALTHCARE NHS TRUST
|(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) SECRETARY OF STATE FOR HEALTH
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Martin Chamberlain for the Defendant (instructed by Hempsons), for the Secretary of State for the Home Department (instructed by the Treasury Solicitor) and for the Secretary of State for Health (instructed by The Solicitor for the Department of Health)
Crown Copyright ©
Mr Justice Silber:
(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
(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  EWCA Civ 646,  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
"(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.
"(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.
(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
"(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).
"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…" .
"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" .
"there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention" .
"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).
"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" .
"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" .
"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)".
"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".
Issue B – The Statutory Provisions Issue
C – The Conditional Discharge Issue
Issue D - The Tribunal Powers Issue
The procedure used by the Tribunal
"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".
Answers to the questions raised by the Tribunal
(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  EWCA Civ 636,  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.
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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?