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
		7 October 2004

Mr Justice Collins:

1. The claimant, who is now 67, attempted to strangle his 10 year old niece and raped her mother in 1966. He was found unfit to plead when he appeared at court in early 1967 and was admitted to Broadmoor Hospital in accordance with the provisions of Section 5 of the Criminal Procedure (Insanity) Act 1964. He is treated as if he were committed to hospital under Sections 37 and 41 of the Mental Health Act 1983, that is to say, subject to a hospital order and a restriction order without limitation of time.
2. He suffers from paranoid schizophrenia. He has been treated over the years so that by 15 July 2003 a Mental Health Review Tribunal felt able to decide that he could be discharged conditionally. An absolute discharge was not considered appropriate since the claimant should remain liable to be recalled to hospital for further treatment. Furthermore, the tribunal was not prepared to order an immediate conditional discharge since it was satisfied that there should be a deferment until the conditions which it considered necessary were able to be fulfilled by means of a discharge plan which the clinical team having charge of him thought must be put in place. The conditions were as follows: -

1). To reside at [a named] hostel

2). To accept supervision and treatment as directed by his RMO.

3). To accept social supervision from the appointed supervisor.

3. Unfortunately, the hostel which it was believed would accommodate the claimant decided after all that it could not. Efforts to find an alternative placement have proved unsuccessful. A tribunal has reconsidered his case on three subsequent occasions, namely 14 October 2003, 5 January 2004 and 9 March 2004. At the first two of those the tribunal adjourned the matter in the hope that suitable arrangements could be made and a hostel prepared to accept the claimant could be found. It is the decision of the tribunal of 9 March 2004 which is the subject of this claim since it was and remains clear that it is unlikely that it will be possible to fulfil the conditions imposed in July 2003 in that no hostel can be found. That being so, the tribunal will have no option but to revoke the conditional discharge. That is because the deferment means that the order is regarded as provisional (see R(H) v Secretary of State for the Home Department [2003] 3 WLR 1278) and so can be reconsidered if circumstances change. In R(H) v Secretary of State for the Home Department Lord Bingham approved what had been said by Lord Phillips M.R. in the Court of Appeal (see [2003] 3 W.L.R. at p.1295 Paragraph 23): -

"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 patients' 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 it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time".

4. In the 1980s the claimant had been discharged conditionally but it had not worked out and in 1987 he was recalled to Broadmoor following a serious assault on a pregnant nurse at the Maudsley Hospital to which he had been transferred. In 1995 he assaulted a male nurse and tried to strangle him at a hospital to which he had been transferred from Broadmoor and so he was again recalled. There were several serious assaults in Broadmoor in 1995 but since then his condition has improved and he has remained symptom free. In March 2000 he was transferred to Thornford Park Hospital, a private sector psychiatric hospital. He has worked through the rehabilitation service at the hospital and his present situation was described by the defendants as follows: -

"Since the hearing in July 2003 there has been no significant change in G's mental state. His condition remains stable and his symptoms are well controlled by anti-psychotic medication with which he self-medicates as prescribed. His behaviour on the ward has been appropriate at all times, he has presented no management problems and there have been no incidents of inappropriate behaviours of any kind towards other patients or staff. He has been granted unescorted Section 17 leave of up to 6 hours a day which he has taken without problems, visiting Newbury and Reading. He had lived in rehabilitation flat at Thornford Park Hospital since January 2003 largely caring for himself including cooking, cleaning and financial management. There have been no problems with his self-care. He engages well with his care team and involves himself in OT and visits the gym".

He attended the hearing of his claim on unescorted leave.

5. The defendants' view was that he remained ready for conditional discharge provided that he resided at accommodation which could give him an appropriate level of medical and nursing support and supervision. This was necessary to minimise the risk of relapse and to manage it if it occurred particularly having regard to his limited insight. Any signs of a deterioration had to be detected as early as possible because a relapse would be likely to increase the risk of sexually inappropriate or violent behaviour. The defendants accepted the evidence of the claimant's RMO, which was in any event not in dispute. They record it as follows in paragraphs 8 to 10 of their very full reasons: -

""8. The factual evidence of the RMO, Dr Pearson, was not in dispute and we accept it. As a detained patient G has his own rehabilitation flat which is within the main secure hospital building. He is expected to abide by the 'house rules'. He has leave granted to him, under s. 17. Access to and from the grounds is only by way of secure and substantial security gates operated by remote control and video some distance from the reception entrance to the main building. When he wishes to go out he is required to agree with staff the times of leaving and return and where he will be going. He is only permitted to take leave during daylight hours. If he wishes to go out at other times unescorted, staff will have to make a decision whether he can go out or not. They may refuse. He has his own electronic key which enables him to get from his flat to the reception area. If he is going out he surrenders his key and is let through the 'air lock'. Once outside the building he has to request that the electronic main gate is opened in order to leave the grounds. On his return he must signal for the main gate to be opened, request to be let in through the 'air lock' and is then given his key by reception. If he is in 'breach' he is at risk of having his leave withdrawn. He can be forcibly returned to the hospital if necessary.

9. As a conditionally discharged patient Dr Pearson acknowledged that in practical day to day terms the regime for G would be very similar. He would be required to enter into a 'contract' which defines his rights and obligations and would, for example, require him to abide by the 'house rules'. The house rules would remain the same and it may be difficult to change them so as to accommodate the individual circumstances of a conditionally discharged patient, particularly if it involved a change of policy. Although G's legal status will have changed and he would have the theoretical right to leave the hospital, in practice he would be expected to agree 'leave' with the Primary Care Nurse under Dr Pearson's supervision as the RMO. He would only be permitted to leave the hospital during daylight hours. If he wished to go out at times which are not agreed or he is in breach of his 'contract' this could cause management difficulties and the 'contract' would have to be reconsidered. Dr Pearson might have to consider asking the Home Secretary to recall him or even consider re-examining him. The procedures when G wished to go out would be the same as now (surrendering his key etc). The arrangements for his supervision would also remain the same as now.

10. Dr Pearson suggested that G's initial residency at Thornford Park may assist in finding another placement when he has had an opportunity to 'prove' himself. We are sceptical about this but in any event do not think it has a bearing on the central issue we have to decide. He also suggested at one point that the 'contract' could be seen as a way of giving G additional choices but he accepted that this is a rather tenuous argument. Dr Pearson also confirmed to us that Thornford Park has not previously taken conditionally discharged patients. We understand that it was commissioned in the private sector to treat mainly restricted patients many of whom were transferred from Broadmoor and similar institutions".

6. A tribunal's powers in relation to a restricted patient are to be found in Sections 72 and 73 of the 1983 Act, as amended. Section 72 deals with its general powers in relation to patients. Section 72(1)(b) provides, so far as material, that a tribunal shall direct the discharge of a patient if 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 prisoners that he should receive such treatment".

Section 73 deals with restricted patients. So far as material it provides; -

(i) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order … 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) When 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.

(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 … [which gives a general power of recall to the Secretary of State so long as a restriction order continues to be in force, as it would in the case of a conditional discharge]; 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) 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".

7. A tribunal has no power to order a patient's transfer from one place of detention to another. Thus a tribunal could not, for example, direct that a restricted patient be moved from a high security hospital to one which was less secure. It follows that if the effect of the conditions which a tribunal regard as appropriate would be to maintain the patient's detention they would be unlawful and the tribunal would be acting ultra vires. The defendants in this case took the view that to require the claimant to remain at Thornford Park under the same regime as he was subject to at present would be to deprive him of his liberty. They record their conclusions in Paragraph 13 of their reasons as follows; -

"Having regard to our findings as to the restrictions that would apply to G if he were required to remain at Thornford Park as a conditionally discharged patient, we consider that they could not reasonably be regarded as simply restrictions on his liberty of movement. They would go much further than that and would amount to a significant deprivation of his liberty. He would be subject to clear limitations on his freedom to come and go from the hospital extending well beyond mere supervision of movement for his own benefit or well-being. He would remain in a hospital setting which imposes on him the same degree of security as at present. The hospital would be in total control of his movements. He would not enjoy a significantly greater degree of freedom than he currently enjoys as a detained patient. There would be an inflexible regime in place which would not be capable of responding readily to G's circumstances and any further improvements in his mental condition".

I should add that they felt unable to attach much weight to G's evidence that conditional discharge would be important to him as a sign of his increased freedom since the effect of the restrictions which would apply was the main consideration.

8. The only other legislation to which I need refer is first Section 117 of the 1983 Act which deals with after-care of patients who "cease to be detained and (whether or not immediately after so ceasing) leave hospital". A duty is imposed on the relevant Health and Social Services authorities to provide after-care services. Secondly, s.131(1) provides; -

"Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder … from remaining in any hospital … in pursuance of arrangements made in that behalf after he has ceased to be liable to be detained".

9. In his grounds, Mr Bowen contended that the defendants erred in regarding the condition of residence at Thornford Park as a deprivation of liberty. It was, submitted Mr Bowen, a restriction on his movements and so was permissible. The correct approach to this issue has recently been considered by the Court of Appeal in R(Secretary of State for the Home Department) v MHRT [2002] EWCA Civ 1868 (the PH case). That case concerned a similar sort of situation to this. The restricted patient was 77 and had been detained in Broadmoor for 44 years. His mental state was liable to deteriorate, but that happened slowly, and, provided that he was subject to a regime which ensured that he was observed and monitored by properly trained and briefed staff, he could be discharged conditionally. The conditions which were in issue were that he should reside at a suitable specialist establishment which provided 24 hour trained nursing care and appropriate security and that he should not leave the accommodation without an escort. The SSHD challenged these proposed conditions, accepting that he had to establish that they would inevitably, whatever precise measures were in the end considered possible, involve the patient's continued detention. The Court had evidence from the President of the Tribunal, which made it clear that one of the major factors underpinning the tribunal's approach to the conditions was their awareness of the patient's need for assistance and care in respect of his physical needs, particularly because of his long incarceration. The need for security and that he be escorted was for his benefit and protection since he would be likely to be unable to cope on his own in the outside world. As the court emphasised, nothing in the evidence indicated that the reference to 'appropriate security' and the requirements as to escorts were included for the protection of the public. The risk of relapse could be guarded against by supervision since the signs of deterioration would be noticed before problems arose. In the circumstances, the Court was not persuaded that the proposed conditions would inevitably result in continued detention.
10. It was common ground and the Court accepted that a patient is to be regarded as being detained within the meaning of the 1983 Act if he is in terms of Article 5 of the European Convention on Human Rights deprived of his liberty. Article 5(1)(e) provides, as far as material; -

"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 …"

The principles established by the jurisprudence of the ECtHR are not in dispute and were helpfully set out by Keene LJ, who gave the only reasoned judgment, in paragraphs 14 to 17. He said; -

"14. There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5(1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol No. 4 and do not amount to a breach of Article 5. This has been repeatedly spelt out by the European Court of Human Rights in cases such as Guzzardi v Italy [1980] 3 EHRR 333, Ashingdane v United Kingdom [1985] 7 EHRR 528 and H.M. v Switzerland [26 February 2002] application no. 39187/98.

15. Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above.

16. Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. This principle can be seen in two Strasbourg decisions. In Nielsen v Denmark [1988] E.H.R.R. 175 a child of about 12 was placed in a hospital psychiatric Ward for children as a result of a decision by his mother, based upon medical advice. He claimed that there had been a breach of his Article 5 rights, but the European court of Human Rights found that the objective of his hospitalisation was the protection of his health. The restrictions imposed were not in principle different from those obtaining in many hospital Wards where children with physical disorders were treated. It was concluded that this regime did not amount to a deprivation of liberty within the meaning of Article 5 but was:

"a responsible exercise by his mother of her custodial rights in the interests of the child" – Paragraph 73."

17. The second decision illustrating this principle is perhaps of greater relevance to the present appeal. In H. M. v Switzerland the applicant was a woman who at the age of 84 had been placed compulsorily in a foster home. The Court found that she had been placed there by the Swiss authorities in her own interests in order to provide her with necessary medical care and satisfactory living conditions and hygiene. In those circumstances the court concluded, citing the Nielsen case, that her placement did not amount to a deprivation of liberty within Article 5(1), but was a responsible measure taken by that competent authorities in the applicant's interests. Therefore, there was no violation of Article 5(1)".

11. Mr Bowen relies particularly on H.M. v Switzerland since it establishes the importance of the purpose of restrictions which might otherwise be regarded as a deprivation of liberty. But it is also to be noted that the Court in H.M. records in Paragraphs 45 and 46 of the judgment that H.M. was not placed in a secure Ward in the nursing home but had freedom of movement and the ability to maintain social contact with the outside world. Further, the Swiss Court had found as a fact that H.M. was hardly aware of the effects of her stay in the nursing home which were mainly felt by her son who did not wish to leave his mother. She was undecided as to which solution she preferred and indicated that she had no reason to be unhappy at the nursing home. The court's conclusion in 48 is in these terms; -

"Bearing those elements in mind, in particular the fact that the [Swiss Court] had ordered the applicant's placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene, and also taking into consideration the comparable circumstances in Nielsen .., the Court concludes that in the circumstances of the present case the applicant's placement in the nursing 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".

12. I have referred in more detail to H.M. v Switzerland because it is, I think, important to bear in mind that the purpose of any measure of restriction, while a relevant consideration, must not be given too much weight. Nielsen's case concerned a 12 year old boy whose parents had split up and whose father had been guilty of kidnapping him. He did not want to live with his mother but could not live with his father, who was in custody. In those circumstances and on medical advice, he was admitted to the child psychiatric Ward in the State hospital. The court's findings, are set out in Paragraphs 69 and 70 of the judgment of the majority as follows; -

"69.The Court is satisfied that the mother, when taking her decision on the basis of medical advice from her family doctor and from Professor Tolstrup, had as her objective the protection of the applicant's health (see paragraphs 15 and 19-20 above). This is certainly a proper purpose for the exercise of parental rights.

70. There is also no reason to find that the treatment given at Hospital and the conditions under which it was administered were inappropriate in the circumstances.

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. This treatment did not involve medication, but consisted of regular talks and environmental therapy.

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, 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; 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 ½ months. This may appear to be a rather long time for a boy of 12 years of age, but it did not exceed the average period of therapy at the Wards and, in addition, the restrictions imposed were relaxed as treatment progressed.

At the hearing before the Court, the applicant also alluded to the possibility that his treatment in the Ward constituted an abuse of psychiatry. The Court is however satisfied that no such abuse took place. Neither the accounts given by Professor Tolstrup in his report to the Medical Health Officer of Copenhagen and to the Social Welfare Committee of Herlev County or to the Supreme Court reveal anything to that effect. For its part the National Health Authority concluded, after an independent investigation of the applicant's treatment, that it saw no reason for criticising the applicant's treatment, that it saw no reason for criticising Professor Tolstrup or the Ward for the medical treatment given".

The conclusions of the majority in Paragraph 72 read; -

"The Court accepts, with the Government, that the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the State to provide safeguards against abuse. However it does not follow that the present case falls within the ambit of Article 5.

The restrictions imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in Paragraph 1 of Article 5. In particular, he was not detained as a person of unsound mind so as to bring the case within Paragraph 1(e). Not only was the child not mentally ill within the meaning of the 1938 Act, but the Psychiatric Ward at the hospital was in fact not used for the treatment of patients under the 1938 Act or of patients otherwise suffering from mental illness of a psychotic nature. Indeed, the restrictions to which the applicant was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital.

The conditions in which the applicant stayed thus did not in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated.

Regarding the weight which should be given to the applicant's views as to his hospitalisation, the Court considers that he was still of an age at which it would be normal for a decision to be made by the parent even against the wishes of the child. There is no evidence of bad faith on the part of the mother. Hospitalisation was decided up by her in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights, a case which clearly is not covered by Paragraph 1 of Article 5.

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".

It is to be noted that the minority (the decision was by 9 to 7) took the view that there was a deprivation of liberty in that a 12 year old who was not mentally ill had been placed in a psychiatric ward against his will for several months.

13. Any detention of a mentally ill person for treatment may be regarded as in his best interests, but that cannot prevent such detention being a deprivation of liberty within the meaning of Article 5. It seems that the Court in the PH case was very much influenced by the evidence that the restrictions proposed by the tribunal were in the patient's interests and for his benefit to enable him to be discharged and were not primarily imposed because otherwise there would be a risk of danger to the public. In the present case, there is a similar concern about the possibility of relapse, but it is to be noted that the claimant already enjoys unescorted leave for up to 6 hours a day and no problems have resulted from it. The reality in this case is that, because no hostel can be found (and such hostel placement would have involved compulsory supervision), the only way forward is, it is submitted, a conditional discharge to Thornford Park, if that is lawful.
14. An important decision of the ECtHR in the context of patients suffering from mental disorder is Ashingdane v United Kingdom (1985) 7 EHRR 528. The applicant had been placed in Broadmoor following his conviction for a number of offences. His condition improved and so the Secretary of State authorised his transfer to a local psychiatric hospital. The Health Authority was in dispute with the staff of the local hospital and so refused to accept the transfer. The applicant suffered from paranoid schizophrenia which was controlled by medication and supervision but he was unwilling or unable to comply with his treatment voluntarily and so, if released, might be dangerous. The applicant was eventually transferred to the local hospital. The regime to which he was subject is described thus (Paragraph 24 on p.536)-

"Ordinary psychiatric hospitals such as Oakwood house both voluntary and involuntary patients and no appreciable distinction is made in their regimes. Situated within the town of Maidstone, Oakwood Hospital is easily reached by public transport. There is no surrounding wall and neither the main entrance nor the reception area is locked. As Dr Sherry had recommended, the applicant was at first placed in a closed ward for sixteen patients, male and female, which was locked, at least at night. There was no special security but a high staff/patient ratio. The work available to him at Oakwood during this initial period, although similar to that at Broadmoor, was subject to less and eventually to no supervision. With effect from December 1980, he was allowed freedom, unescorted, in the hospital grounds for two hours a day. In the summer of 1981, he was moved to an open ward. Since then, regular, unescorted leave to visit his family has become a feature of his life at Oakwood. As at November 1984, he was going home every weekend from Thursday till Sunday and was free to leave the hospital as he pleased on Monday to Wednesday, provided only that he returned to his ward at night".

15. The restrictions are far fewer than those which will continue to apply to the claimant. Nonetheless, the court took the view that he remained detained and deprived of his liberty at the local hospital. The courts' reasons are contained in Paragraphs 40 to 42 of its judgment at pp541-542. It said; -

"40. According to the first of these 'alternative' submissions, the nature and conditions in Broadmoor Hospital and Oakwood Hospital were so fundamentally different that the choice between the two establishments amounted, in the circumstances of the applicant's case, to a choice between detention and liberty; the restrictions to which he eventually became subject as a patient at Oakwood were such as to constitute only restrictions on his freedom of movement and not deprivation of liberty. Consequently, it was concluded, his continued detention in Broadmoor after October 1978, or at least after March 1979, ceased to be 'lawful' for the purposes of Article 5(1)(e).

41. 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 or substance.

42. In this regard, there were important differences between the two regimes at Broadmoor and at Oakwood. Mr Ashingdane's transfer to Oakwood had a proximate connection with a possible recovery of liberty, in that, in the circumstances, it constituted an unavoidable staging post on the road to any eventual discharge into the community.

Nonetheless, on being admitted to Oakwood Hospital in October 1980, he was, as expected from the outset, placed in a closed ward, where he remained for ten months until being moved to an open ward. The transfer from Broadmoor to Oakwood thus involved going from one regime of hospital detention to another, albeit different and more liberal.

Mr Ashingdane has remained a detained person during his stay at Oakwood in the sense that his liberty, and not just his freedom of movement, has been circumscribed both in fact and in law (he has been continually subject to a restriction order under the 1959 Act), even though he has been permitted to leave the hospital on frequent occasions.

It cannot therefore be said that, in being kept at Broadmoor between March 1979 and October 1980, he was being maintained in 'detention' when he had been medically and administratively judged fit for a return to liberty."

Miss Stern and Mr Chamberlain emphasise the court's observations in Paragraph 42 that the applicant had remained a detained patient in that his liberty had been circumscribed both in fact and in law. But the words in parenthesis are important and show that the Court was influenced by the fact that he remained subject to a restriction order. Section 73(4) and (6) makes clear that a conditional discharge does not bring a restriction order to an end and the patient remains subject to recall, although it may be that actual recall will depend on evidence that he is then suffering from a mental disorder and possibly one which justifies his detention (see Kay v United Kingdom (1998) 40 BMLR 20). This will probably not be difficult to establish in the case of one such as the claimant who is a paranoid schizophrenic.

16. As the Court makes clear in Ashingdane, all the circumstances of a particular case have to be taken into account in deciding whether there is a deprivation of or a restriction on liberty, the latter of which would fall within Article 2 of the Fourth Protocol (which is not included in the Schedule to the Human Rights Act 1998). The purpose of the restrictions will not change: they remain primarily for the protection of the public by ensuring that the claimant is kept under supervision. The only material change will be in his legal status. He becomes a conditionally discharged patient instead of one detained in pursuance of his restriction order. But he remains subject to the restriction order and so liable to detention: see s.73(3) and (6) of the 1983 Act.
17. While I accept that it is possible for a patient to cease to be detained if discharged with a condition that he receive and is subject to supervision at the same hospital in which he is detained, it is difficult to see that that could occur when the regime and the purpose of the restrictions remain the same. There is no doubt that conditions can impose restrictions which do not constitute deprivation of liberty: were it otherwise, the possibility of conditional discharge would be drastically curtailed. But such conditions are normally imposed upon release from the hospital where the patient is detained to a hostel or some other supervised residential accommodation with a view to a staged discharge into the community. Whether or not the conditions are so restrictive as to be regarded as a deprivation of liberty will depend on the circumstances of the individual case. In any event, the purpose of all treatment of those suffering from mental disorder is to try to effect a cure or to control the problem by means of medication so that the individual is able to live in the community and does not need to be detained in a hospital. Whether or not the claimant is discharged conditionally now, steps will (indeed, must) continue to be taken to try to find a hostel to achieve his release.
18. Mr Bowen referred me to R v Bournewood Mental Health NHS ex parte L [1999] AC 558. That case involved a claim for damages for false imprisonment by an autistic and profoundly mentally retarded man. He had, following an episode when he became particularly agitated (he had a history of self-injurious behaviour), been admitted to hospital. He was not placed in a locked ward because he was compliant and showed no desire to leave, but he would have been detained compulsorily if he had tried to leave. The majority of the House of Lords decided that he had not been unlawfully detained, primarily because he had never been kept in a locked ward. There was a powerful dissent by Lord Steyn (see p.495A-D) drawing attention to the control exercised by supervision and medication and the evidence that if he had tried to leave he would have been prevented from doing so. That is yet another example of the difficulty of deciding in an individual case on which side of the line it should fall between deprivation of liberty and restrictions on liberty.
19. That difficulty has been referred to by the ECtHR. Thus in Guzzardi v Italy (1980) 3 E.H.R.R. 33 the Court observed (Paragraph 93 on p.363): -

"The difference between deprivation of and restriction upon liberty is … merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends".

Guzzardi concerned an Act which enabled a variety of preventive measures to be taken against 'persons presenting a danger for security and public morality'. Such persons included those 'whose outward conduct gives good reason to believe that they have criminal tendencies'. If a warning from the Chief of Police was not heeded, the person could be placed under special police supervision and, if regarded as specially dangerous, required to reside in a specified district. The applicant, who was suspected of involvement in a kidnapping, was required to live on the Island of Asinara off Sardinia. There was an overnight curfew and a requirement to report twice a day to the authorities. The island itself had an area of about 50 square kilometres but he was restricted to some 2.5 square kilometres. The bulk of the rest of the island was occupied by a prison. The Court decided that special supervision under the Act accompanied by an order for compulsory residence in a specified district did not of itself come within the scope of Article 5. It was the manner of implementation in the circumstances of the applicant's case upon which the Court had to focus. The Court took the view that in certain respects the treatment complained of resembled detention in an open prison. It decided by a majority of 10 to 8 that on balance there was a deprivation of liberty and a breach of Article 5.

20. Mr Bowen submitted that my approach should not be to apply the Wednesbury principles to the defendant's decision. I should treat the question whether on the facts there has been a deprivation of liberty as one to be answered by myself. In my view, whether the facts found show deprivation or not is indeed a question of law which I should determine. That approach is entirely consistent with that applied by the ECtHR. But the observations I have already cited in Paragraph 93 of Guzzardi show that there will be borderline cases when a decision either way cannot be said to be wrong in law. The court must be careful not to interfere unless persuaded that the decision was wrong in law. This is not in my view the same test as irrationality since the threshold is lower and perversity does not need to be established.
21. In all the circumstances, I am not persuaded that there will be other than a deprivation of liberty if the condition of residence at Thornford Park is imposed. The defendant's conclusion as summarised in Paragraph 14 of their reasons that the restrictions would mean that in reality the claimant would continue to reside in circumstances which would amount to the continued detention is correct. It is not in my view a borderline case and so the correct approach is not material.
22. In the course of argument, largely as a result of a suggestion made by me, Mr Bowen raised an alternative submission. This was that, even if the claimant remained deprived of his liberty, the defendants could make the desired order because he would consent to the deprivation and should thus be regarded as a voluntary patient. 'Discharge' within the meaning of section 72(1)(b) means discharge from liability to be detained, not discharge from a hospital. Reliance is placed on s.131(1).
23. This argument is, I am satisfied, ill-founded. A conditional discharge does not operate as a discharge from a liability to be detained. So much is clear from the provisions of s.73 which I have already cited. Furthermore, there is a contradiction between the concept of remaining in hospital as a voluntary patient and being required by a condition imposed by a tribunal so to remain. Section 131(1) only applies where there is no 'order or direction rendering him liable to be detained under this Act'. In any event, I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal. A deprivation remains since the consent cannot convert into something else.
24. I recognise that the claimant will be disappointed by my decision. It is certainly to be hoped that efforts to find an appropriate hostel placement will be pursued and will succeed. The situation he is now in would (subject to the change of status, which, as I have said, is not substantial) have continued in any event. While s.117 will not strictly apply, in a case such as this it would be wrong for efforts not to be made by those who would otherwise have been responsible. But I am satisfied that the lack of any changes in regime or accommodation leaves inexorably to the conclusion that there will be a deprivation of liberty so that the defendants' decision was correct.
25. It follows that this claim must be dismissed.