England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		6 December 2004

1. MR JUSTICE PITCHFORD: The claimant, whom I shall call CS, has a clinical psychiatric history, diagnosed as paranoid schizophrenia. On 7th May 2003, CS was detained in hospital under section 3 Mental Health Act 1983. On 29th October 2003, her detention was renewed. She made application for discharge on 5th November 2003. A hearing took place on 2nd February 2004, having been adjourned from January. The tribunal made a decision that CS should not be discharged. It is that decision which CS now seeks to quash as unlawful and irrational.
2. Events have, however, overtaken the decision. In reality, the application is for a declaration that the claimant's detention was unlawful and damages for her unlawful detention under the Human Rights Act 1998.
3. Interim relief was refused on 20th February 2004 and permission to proceed was granted on 22nd April 2004.
4. The challenge to the decision is made on the ground, first, since CS's responsible medical officer (hereafter "RMO") was not seeking an actual admission to hospital, the statutory preconditions for an admission under section 3 were not made out and, as a matter of law, the claimant should have been discharged. Second, the tribunal's decision that CS should remain liable to recall to hospital was disproportionate and in breach of her rights under Article 5 ECHR. Argument on these grounds as developed before me was somewhat more refined, as I shall describe later in the course of my judgment.
5. It is necessary for me to recite a summary of events in the progress of CS's illness.
6. CS is aged 36, born in England. Her parents divorced when she was a young girl. She lived with her mother and brother until her mother's mental health deteriorated. At the age of 13, she moved to be cared for by her father and the family moved with some regularity throughout CS's childhood. She is an intelligent lady, who obtained A' levels and attended university to study French and Politics. She did not complete the course, but over a period of several years, working part time and under what must have been difficult circumstances, she achieved a degree in Fine Art.
7. CS was first admitted to Strauss Ward at St Bartholomew's Hospital (where it was then situated) on 23rd December 1991 at the age of about 23, having suffered a psychotic episode. On 9th January 1993 she was readmitted for five days, with a further transient psychotic episode. A third admission took place on 1st February 1993. There was, however, no further contact with Mental Health Services until 23rd February 1998.
8. At that time CS gave a history of having an average of five psychotic episodes per year, characterised by bizarre auditory and visual hallucinations. She was described as having "a strong personal philosophy as to the meaning and purpose of those episodes". She was cared for by her general practitioner and a small but extremely supportive group of friends. During episodes of psychosis she would require 24-hour care, which was provided by her friends. She was not at that time receiving medication.
9. However, on 29th June 1998, CS was arrested for an alleged offence of attempting to abduct a child. She was acting in a bizarre fashion and was admitted to hospital under section 2 of the Mental Health Act 1983, described as "psychotic, uncooperative and unpredictable". She was treated with Olanzapine and discharged after making good progress on 24th July 1998. She was released on a successful care programme and discharged from clinic on 4th November 1998.
10. A further admission to Strauss Ward (which had by this time moved to Homerton Hospital) took place on 5th May 2000 after a further psychotic episode. After a good response to Sulpiride, she was discharged on 24th May. Following discharge, CS discontinued her medication and her condition deteriorated until readmission on 7th July. She was then treated with Quetiapine and was discharged on 19th July. It was at this time that the diagnosis of paranoid schizophrenia was first made.
11. A further admission took place under section 3 on 2nd August 2001 and remained in place until 19th September 2001. CS was resistant to follow-up services and medication. Her next section 3 admission took place on 18th August 2002. She was now suffering florid psychotic symptoms, was vague and appeared to have been neglecting herself. She received Clopixol, an anti-psychotic. Her response was good and she was discharged on 13th November 2002, with follow-up care given by the Assertive Outreach Service (hereafter "AOS"). She again stopped her medication on discharge.
12. The Outreach Team saw a marked deterioration in CS's mental state during early 2003. Dr Mark Cross, her Outreach key worker, tried to persuade her to accept voluntary admission to hospital. She did accept medication, but not admission. She was therefore admitted under section 3 on 7th May 2003. CS had been refusing contact with AOS and said that she had felt unwell for some months.
13. Her family influences had been Catholic and Jewish. She had since followed Buddhism and Judaism. Three months before her admission she had worn a ring signifying her mother's faith and believed she had by that means betrayed the Buddhists and a group of Jewish mystics. She felt that she was being physically interfered with. She believed that she was destined to be united with a woman who was her true love. By wearing the ring, she had thwarted her destiny. She was now being punished physically. She was convinced that her life was over.
14. CS was treated with Risperidone. Response was slow. On 24th June 2003, for the first time, she was given overnight leave. It was a success. She was granted one week's leave on 15th July. Unhappily, there was an almost immediate decline. She was not taking her medication, nor taking care of herself. The Outreach Team found bags of vomit in her flat and she was recalled to hospital on 23rd July.
15. Following admission, medication was taken and improvement was sufficient to return to overnight leave on 27th August 2003. This was increased to a week's leave on 3rd September. By 19th September, CS's health was in decline again and she returned to hospital on 24th September.
16. A full review took place on 29th October. CS had ideas about, as she put it, "breaking the hex". She had caused spiritual death by offending both Jewish and Buddhist religions. The ideas appeared psychotic and fixed. She believed she was as good as dead. She felt hopeless. Her medication was changed to a depot injection of a typical anti-psychotic drug, Piportil, with a view to stabilising her intake of medication. Given recent events, the multi-disciplinary team considered CS should not be discharged from her section 3 detention, which was renewed on 29th October.
17. There were three primary considerations, which I take from the first witness statement of the RMO, Dr Sanders:

"* The very fixed nature of CS's psychotic symptoms, their distressing nature and the very significant impact they were having on her ability to care for herself.

* Ongoing concerns were expressed by CS's closest friends, who felt CS should remain under section at this time. CS's friends had previously been caring for CS's illness extremely competently for over ten years and felt that this episode was significantly more severe.

* CS's ongoing reluctance to take the medication that had previously been useful to her and her inability to accept the current episode as a mental illness made it impossible to treat CS appropriately on an informal basis."

18. Having met CS's two closest friends, Dr Sanders authorised leave for four hours on 4th November. At a meeting on 5th November it was agreed that depot medication had made a change for the better. Although she had been unsettled by a mental health review tribunal which had confirmed her detention and was upset by staff changes at AOS, her mental state had improved. At CS's request, a week's leave was granted, with support from AOS three times a week. CS's friends remained supportive.
19. By 3rd December, when she was seen on a ward round, CS was coping but her mental state had deteriorated somewhat. She said that she was "really unhappy" and said that she would not take her depot medication voluntarily. She did not think that she was mentally ill. She had stopped taking her oral anti-depressant medication. At this time CS was attending ward rounds once every three weeks.
20. On 17th December, CS agreed to try lithium therapy and to see a psychologist on the ward. She changed her mind about the lithium, but did see Dr Chippendall, the psychologist. Unfortunately CS wanted to see her own psychotherapist as well, a course which her RMO did not regard as beneficial.
21. On 24th December, Claire Gunson (CS's Outreach nurse) was not available to administer her depot medication at home. Miss Gunson went to CS's flat on 7th January 2004 and offered the injection. CS said no, she would not take it, but would take it on the ward. She attended on 8th January and received that injection.
22. On 8th January the frequency of attendance at hospital for a ward round was changed to once every four weeks. CS saw the psychologist, Dr Chippendall, once a week and AOS workers twice a week. Save for the occasion on 7th January, she received her medication from AOS, but expressed the view on the 8th that it was degrading to have the injection performed at home and wanted to receive it on the ward.
23. The RMO's case for the continuation of CS's detention under section 3 was at first expressed by her SHO, Dr Patel, in his report of 8th January 2004. Towards the end of that report he said:

"Her insight remains very poor and given the history of non-compliance with medication and disengagement with services in the past and recent non-compliance, she still needs treatment under section. If she was informal, the likelihood is that CS would refuse medication and deteriorate rapidly, posing a risk to herself.

Plan

The plan is for CS to continue with the depot medication and finally to be discharged back to the care of the AOS. Due to recent concerns regarding her non-compliance and trying to disengage with The Assertive Outreach Team, I do not believe that CS will be able to comply fully with this plan. She does not have sufficient insight into her situation to manage this as a voluntary patient at present.

I recommend that she continue to be detained under section 3."

24. At the hearing on 2nd February, Dr Sanders herself spoke of the past and present regimes and her plan for the future. I extract the following from a note of the evidence taken by the claimant's solicitor at the hearing:

"The section 3 is still required for CS's own health and safety but not for the safety of others. ...

I saw her last Wednesday (28.01.04). ... She has now accepted the depot.

Since last month things have gone well. She is communicating well with the AOS and still attending ward rounds. ... She has fixed delusions. These were present last Wednesday when I saw CS. She has a negative way of thinking, almost total hopelessness. She has very limited insight into her condition.

... CS feels that she has been sentenced to death. She is already dead or as good as dead.

...

The ring, Judaism etc, these delusions are still present. Her ideas have not shifted at all. ...

Since I have known CS she has been in hospital several times. Her last leave from the ward did not go very well. It is currently a touchy situation. Things could get worse for CS.

I hope that things continue to improve but there is a chance that things could get worse.

CS should stay on her current medication at present. It is working. She is engaging well with the AOS and she is engaging with her psychologist. It is all positive but slow.

CS says that she will continue to take her depot until May. I am not so sure. I do not think she has enough insight into her own condition. I do not think she would comply for very long. She is reasonably happily engaged with AOS.

...

In the past her deterioration has been pretty quick if disengaged.

Nothing different for affective side of things ... Work with that rather than enforcing any medication.

...

... At present she is seeing the AOS two times a week. She has requested that she sees the AOS once a fortnight.

The AOS on their own cannot cure CS. She needs medication as well. She needs the insight work and medication together.

...

I understand that CS wanted the depot to be given on the ward and not by the AOS. [The RMO was referring to the events of 7th and 8th January.]

...

We have two ward rounds a week. For one of the ward rounds CS may not be present but we will always mention her briefly. If CS is present this could be anything up to twenty minutes.

...

CS is now returning to the hospital for ward rounds once every four weeks, instead of once every two weeks.

I think that section 3 is useful. I am not sure why it works. She has been better since 5th November 2003.

If things go well then Dr Cross will take over and I will take less responsibility on the ward.

I think it is helpful that she knows that she has the hospital there for her.

...

There will be no hospital treatment after four weeks, depending on how things go during the four weeks.

...

I have written a section 17 form for the next four weeks. I signed it last Wednesday. I said, 'I will see you again in four weeks or if things go well Dr Cross will see you.'"

Asked whether that was an expectation, she replied:

"You are asking about intangibles. I cannot give a definite answer.

The aim is that CS has less and less to do with the ward. AOS would have more responsibility with CS.

...

The psychologist said that CS was very careful with what she says to him and what she brings into the sessions. Now CS is also seeing a psychotherapist. I do not think it is good to see both a psychologist and a psychotherapist. The two professions should discuss the matter together."

Claire Gunson, the Outreach nurse, explained her own anxiety:

"It is complicated. She feels on her way to death. She thinks that death has occurred already. Self-neglect is a worry. I worry that she would disengage with the AOS and her friends. This has happened in the past. ...

...

If CS stopped taking her medication, she will get back into illness and then spiral out of control. Historically it has been shown that CS will not take her medication."

25. CS gave evidence herself. She said that she would take her medication until May and would continue to see the AOS. She regarded her relationship with AOS as positive. She was content to continue seeing the psychologist but she did not think the answer to her problem was psychiatry. She was agreeing to take medication for her friends' sake.
26. At the tribunal the panel received the report of Dr Jack Wright, a consultant psychiatrist reporting on the instructions of CS's solicitors. Dr Wright expressed his opinion and recommendation as follows:

"Opinion

1. For the past decade CS has suffered from a psychotic illness. ... I concur with the frequently cited diagnosis of schizo-affective disorder. These illnesses have responded well to neuroleptic medication, but her view that she does not need medication and consequent reluctance to comply in the community has occasioned frequent relapse.

2. The present illness appears to be responding well to Piportil, as far as the psychotic symptoms are concerned, but she still has some way to go and I believe consideration might be given to a modest increase in the dose. She is also, I feel, nurturing an affective illness that merits treatment and I fully endorse the present suggestion that she be given a course of lithium, perhaps with an anti-depressant being considered later. Maybe reluctantly, CS told me that she would fully comply with such a programme.

3. ...

4. Meanwhile, I believe CS is sincere in her assertion that she will cooperate with her treatment programme and that accordingly her detention under Section can be lifted without peril to herself or others.

Recommendations

1. In light of this opinion, therefore, may I respectfully recommend that the tribunal grant CS's request that her detention under section 3 of the Mental Health Act (1983) be rescinded.

2. May I further recommend to CS that she give her full cooperation to those providing her care and in particular that she comply with her prescribed medication."

27. Having considered her evidence the tribunal reached the following conclusions:

"... she has a record of non-compliance with medication and disengagement from Community Services when out of Hospital, leading to quick relapse and readmission. The patient's condition has been characterised by paranoid delusions, somatic delusions, (someone interfering with her body), beliefs that her body was rotting in response to her belief that she had done a terrible act, and she has delusions of guilt. Her nutrition, self-care and home-care caused concern before this admission. She became socially isolated, did not feel safe in her flat and has wandered in the past. She is pessimistic and has talked of harming herself if her physical health deteriorates. ...

Since this admission, although her self-care has improved, her core delusions have not shifted, nihilistic delusions remain (death is very much around her because of religious events). Negativity and hopelessness are both still present. She has been on full-time section 17 leave since 05.11.03 working with the Assertive Outreach Team (AOT). ...

She has very little insight into her condition and need for medication. The medical oral evidence is that she does not like taking medication and believes she got better naturally in the past. ...

The medical oral evidence is that the patient needs continuing treatment with depot Piportil and AOT work, which were explained at the hearing to include motivational interviewing, insight work, activities of daily living and back to training in the longer term. Both elements of treatment were necessary. The medical evidence is that she is taking medication from and engaging well with the AOT, that she comes back to the hospital at present after four weeks' leave, that the aim is to hand over gradually to the community psychiatrist if things go well. She is also seeing a psychologist, but the RMO stated that things are progressing slowly in that area.

...

... [The RMO] agreed that things are going well with the section in place, but that, without it, she could easily stop taking medication with a resulting quick deterioration as in the past. The CPN gave evidence that it is an historical probability that the patient would withdraw from medication and if she discontinued treatment with medication she would spiral into social withdrawal and self-neglect. Although the independent report of 9.1.04 believes that the patient is sincere in her assertion that she will cooperate with the treatment programme, Dr Wright also states that the patient is of a view that she does not need medication and is reluctant to comply in the community. The tribunal note that even when she believed she had psychosis on previous admissions ... she did not continue medication or engagement with follow-up and we must therefore have doubts about her compliance on this occasion when she has said clearly that she does not believe that she has psychosis. She said in oral evidence that the reason she would continue medication until May was because her "friends want me to" ... She does not feel that it has helped or is helping her at present.

In view of her past insight, her past history of non-compliance with medication and her disengagement with community following, we feel from all the evidence that she is unlikely at present to be able to comply with treatment as an informal patient. ... In the community she was felt, before admission, to be at risk of exploitation and self-harm ... The section should therefore be retained for her health and safety.

We have taken into account R (on the application of H) v Mental Health Review Tribunal North and East London Region [2001] and from the evidence are satisfied that detention is a proportionate response having regard to the risks on discharge.

... The AOT have stated that a good relationship is currently being built up between the team and the patient. We are satisfied that it is too early in that relationship for consolidation to have taken place, that it needs to continue at its current level of contact for that to be assured.

The RMO has said that the section is necessary for the patient at this stage in case things do not go well which would result in rapid deterioration... It would also enable the hand-over to the community psychiatrist, which is at an early, and therefore crucial stage, to take place safely in accordance with the needs of the patient. Although the representative submitted that there must come a point when she cannot go on having successive on-leave ... we are satisfied that that point has not yet arrived, that the hand-over to the community is not yet safely established. We look (as the cases presented to us today tell us to do) at the whole course of the patient's treatment, past, present and future, and are satisfied from past history, from present level of insight and present and future transfer plans into the community ... that it is too early to discharge the section today."

28. Section 72(1) and (2) Mental Health Act 1983 read in their material parts:

"(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) ...

(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 ... 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 ... that he should receive such treatment;

...

(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 ... 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."

29. These powers, as Mr Simblet submitted on behalf of the claimant, represent the reverse side of the section 3 coin: in other words, if the tribunal is not satisfied that the patient any longer satisfies the conditions for detention under section 3, then the patient must be discharged. In Reid v Secretary of State for Scotland, HL [1999] 2 AC 512, the House was concerned with the Scottish equivalent of section 3 as it affected a convicted person admitted many years before suffering from mental deficiency. Diagnosis had changed. The patient was now thought to be suffering a psychopathic disorder. The patient's liability to continued detention was to be judged, the House held, against the criteria for admission, which included a requirement that the patient's condition was likely to be alleviated by medical treatment in a hospital, or medical treatment was likely to prevent a deterioration in his conduct, this notwithstanding that the statutory test to be applied by the sheriff, considering an appeal against a refusal to discharge, was differently phrased.
30. Here the test for admission is phrased in terms identical with the test for statutory discharge, save for the omission of the words "and it cannot be provided unless he is detained under this section", which appear in section 3(2)(c) but not in section 72(1)(b)(ii).
31. Having regard to the other requirements of section 2(1)(b) and what I consider to be the correct interpretation of the words "appropriate for him to be liable to be detained in a hospital", it does not seem to me that the omission raises any significant issue in this claim.
32. Detention under section 3 is not, in practice, necessarily residence in a hospital. What it means in practice in any particular case will depend upon the regime in force.
33. Section 17(1) gives to the RMO the authority to grant leave of absence from the hospital subject to such conditions as he considers necessary in the interests of the patient or for the protection of others.
34. Subsection (2) provides that leave of absence may be granted either indefinitely or on specified occasions or for any specified period and the period may be extended.
35. By subsection (3) leave of absence may be in the custody of any officer on the staff of the hospital or another person authorised or at another hospital. Leave of absence may be revoked in appropriate circumstances under subsection (4).
36. A person granted leave of absence cannot, by subsection (5), be recalled to hospital once he has ceased to be liable to be detained. Apart from any other limitation upon detention, a patient who has been on leave for six months ceases to be liable to recall unless he has in the meantime returned to hospital or he has been transferred to another hospital or is absent without leave at the end of the period.
37. There is a confusion created in the Act in the interchange between the words "detained" and "liable to be detained". It was observed and discussed at length by McCullough J in R v Hallstrom, Ex parte W [1986] QB 1090, and more shortly by the Court of Appeal in R v Barking Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 106. What the draftsman intended by the word or phrase chosen will depend upon the context in which it is used. As Lord Woolf MR, as he then was, observed as to the use of the words "liable to be detained" in section 20 at page 114 of the report:

"On my reading of the 1959 Act 'liable to be detained' is used both to cover a person who is detained and a person who would be detained if he were not on leave. The opening words of section 20(3) require the responsible medical officer to examine those who are 'liable to be detained'. This literally applies to those on leave but it must also refer to those who are 'detained'. It is to the managers of the hospital where the 'patient is detained' that the report is to be furnished. However, I do not find it inappropriate to describe the hospital of a patient who is on leave in this way. As [counsel] submits the detention does not have to be continuous, as section 17 makes clear, but even when on leave the patient still has a hospital at which he is detained when not on leave. Equally, he will for the purpose of section 20(4) continue to be detained whether when the report is furnished he is in hospital or liable to be required to return to hospital."

38. In Hallstrom McCullough J held that section 3 applied only to a person whose mental condition required admission to a hospital as an in-patient, which would of course mean, without more, that the detention of a patient on indefinite leave under section 17 could not be renewed under section 20 and that a patient making application to the tribunal under section 72 must be discharged. The Court of Appeal in Barking disapproved of the reasoning which led to the decision on the facts in Hallstrom. Lord Woolf said at page 112:

"So far as his analysis causes McCullough J to come to the conclusion that section 3 'only covers those whose mental condition is believed to require a period of in-patient treatment' I have no reason to quarrel with his reasoning. The overnight admission of W was not the in-patient treatment which justifies section 3 being invoked. It is his reasoning as to the interpretation of section 20 which I regard as being wrong and leading to results which cannot have been intended by Parliament. ...

McCullough J's judgment has been now been applied for many years by the medical profession. They have accepted that a patient on leave under section 17 cannot have his detention renewed under section 20. Consequently, care is taken to ensure that a patient is not on leave when the renewal takes place. The need to rearrange leave is an inconvenience but nothing more than an unnecessary inconvenience. More serious is the indirect consequence that [counsel] contends follows from McCullough J's reasoning. ...

If [counsel's] approach is right it creates considerable difficulties in treating the many patients like the appellant who should be treated partly as an in-patient and partly as an out-patient as described by Dr Taylor in the case of the appellant. In such cases the activities which take place as part of the in-patient treatment may all individually be capable of being performed without the treatment taking place in the hospital, yet for the treatment as a whole to be successful there will often need to be an in-patient element to the treatment which means it is in fact 'appropriate for him to receive medical treatment in a hospital' and 'that it cannot be provided unless he continues to be detained'. The requirement that the patient has to return to hospital and be monitored and is liable to be recalled and from time to time is subjected to the discipline of being treated in hospital as an in-patient under direct supervision with urine and other tests is an essential part of the treatments. They enable the patient to attempt the process of rehabilitation in the wider community which would be more precarious otherwise. ...

... It is the treatment as a whole which must be calculated to alleviate or prevent the deterioration of the mental disorder from which the patient is suffering. As long as treatment viewed in that way involves treatment as an in-patient the requirements of the section can be met."

39. The question for consideration is therefore whether the tribunal made a rational decision that: (1) CS was then suffering from mental illness of a nature or degree which made it appropriate for her to be detained in a hospital for medical treatment; and (2) it was necessary for the health and safety of the patient that she should receive such treatment. The word "detained" is to be construed according to Lord Woolf's guidance in Barking. Therefore the first question can be further refined to: was CS's mental illness of a nature or degree which made it appropriate for her to receive treatment, a significant and justified component of which was treatment in a hospital? See also the decision of Wilson J in R v (DR) v Mersey care NHS Trust (2002] EWHC 1810 at paragraph 30. The way Wilson J expressed the question in the case before him was:

"... whether a significant component of the plan for the claimant was for treatment in hospital. It is worth noting that, by section 145(1) of the Act, the words 'medical treatment' include rehabilitation under medical supervision. There is no doubt, therefore, that the proposed leave of absence for the claimant is properly regarded as part of her treatment plan. As para 20.1 of the Code of Practice states, 'leave of absence can be an important part of a patient's treatment plan'. Its purpose was to preserve the claimant's links with the community; to reduce the stress caused by hospital surroundings which she found particularly uncongenial; and to build a platform of trust between her and the clinicians upon which dialogue might be constructed and insight on her part into her illness engendered."

I respectfully accept and adopt Wilson J's analysis.

40. Mr Simblet agreed in the course of argument that I need not be concerned with the measurement of the degree to which CS's proposed treatment plan under detention exercised actual physical control over her movements, since the degree of the control may be infinitely variable depending upon the patient's precise needs without undermining the concept of treatment in a hospital. Nor am I concerned with the absence of sleep-over in the hospital. As Mr Simblet further conceded - rightly in my view - treatment in a hospital under section 3 can take place daily without overnight stays in hospital.
41. What, then, was the treatment in hospital? It comprised ward rounds with the claimant which it was planned would take place once every four weeks. Dr Sanders explained their significance in her second witness statement:

"... the ward round reviews attended by CS consisted of discussions with her about how her leave was progressing, how her medication was suiting her and whether any adjustments were necessary to the dose of her medication. In addition they included supportive and motivational interviewing to help CS to move out of the hospital-based model of care to community-based care under the AOS. This included support with her compliance with medication including achieving insight into the role of medication as an important part of her package of treatment. The treating teams experienced some difficulty getting CS to engage in care, hence her referral to AOS, and efforts to encourage her to continue to engage are still an important part of her care plan. Also in the ward rounds, we would agree the care plan for the next period of leave and negotiate the length of the next period of leave. On the basis of the suitable agreement I would authorise the next section 17 leave."

42. It included, in addition, weekly sessions with the ward psychologist, Dr Chippendall; and it included, upon the submission of Miss Stern, the continued provision of a place of refuge and stability, a reference point for CS in her attempts to disengage with treatment in the hospital and engagement with treatment in the community.
43. To see the treatment plan in context Miss Stern invited me to consider what happened next. RMO responsibility was handed over to Dr Cross on 12th March 2004, as a result of an agreement between himself and Dr Sanders that CS's mental state and compliance with medication was stable enough for her care to be delivered in the community. This was seen as a progression of the care plan and was in preparation for her care to continue on an informal basis. CS was in fact discharged on 27th April 2004. Dr Cross has continued to monitor her medication and has recently reduced it to help reduce side-effects and aid compliance. CS is in contact with AOS between once and twice per week.
44. Viewed as a whole the course of treatment should be seen, it is submitted, as a continuing responsive programme, during which the need for treatment in hospital and on leave was being constantly reassessed depending upon the circumstances, including CS's responses to AOS and the ward round. Until such time as the transition was complete, the element of treatment at hospital remained a significant part of the whole. I am not convinced that the mere existence of the hospital and its capacity to be treated by the patient as a refuge and stability is part of the treatment of the patient at that hospital. Otherwise, I accept the submissions made by Miss Stern in this context.
45. Mr Simblet characterises what was happening as merely a method of enforcing cooperation with the Outreach Team. This was the rationale for the decision in Hallstrom, as explained by Wilson J in DR; as he put it:

"28. Mr Simblet's submission is predictable: it is that in the cases of Hallstrom and Gardner McCullough J said that the plan had to be in-patient treatment and that, far from being doubted in the Barking case, that part of his decision was there echoed. He says that the plan in the present case was not for any element of in-patient treatment; and that the other test allegedly reflected in the judgment of Thorpe LJ, namely whether the hospital was to be the patient's 'home base', is also unsatisfied in the present case.

29. I reject Mr Simblet's submission. The test is what is laid down in section 20(4)(a) (and section 3(2)(a)), namely whether the plan is for the patient to receive medical treatment in a hospital. There was no need for McCullough J in the two plain cases of Hallstrom and Gardner, where there was no plan for any treatment in hospital, whether in-patient or out-patient, to hold that the test embraced only in-patient treatment. His remarks, though entitled to very great respect, are obiter; and his distinction between treatment at hospital and treatment in hospital is too subtle for me. When I eat at a restaurant, I eat in a restaurant. In the Barking case, where the limited proposed treatment in hospital happened to be of an in-patient character, it was natural that that word might again be deployed. But that does not make it become the test, any more than the reference of Thorpe LJ to a 'home base' renders that concept the test. The significance of the Barking case is that the renewal was lawful notwithstanding that only part of the plan was for treatment in hospital. It sufficed if that part of the plan was, to borrow another phrase from the judgment of Thorpe LJ, an essential ingredient."

46. I consider Mr Simblet's characterisation of the treatment in hospital as too crude an analysis. It is clear to me that the RMO was engaged in a delicate balancing exercise by which she was, with as light a touch as she could, encouraging progress to discharge. Her purpose was to break the persistent historical cycle of admission, serious relapse and readmission. It may be that in the closing stages of the treatment in hospital her grasp on the claimant was gossamer thin, but to view that grasp as insignificant is, in my view, to misunderstand the evidence. I accept the submission Miss Stern based upon the following passage from Dr Sanders' evidence:

"It is not appropriate to abruptly discharge a patient who has been subject to compulsory admission and treatment as an in-patient for a number of months. I would strongly disagree with an assertion that it is better for a patient to be discharged straight into the community without adequate phasing of care and then re-sectioned if the patient suffers a relapse. Such a statement shows little insight into modern means of engaging and treating patients with severe mental illness. With the rest of her multi-disciplinary treating team, I have worked hard with CS to engage her in thinking about her own illness in a way that allows her to accept medical treatment. To allow CS's section to lapse or bring it to an abrupt end only to re-section her would greatly upset CS and damage the relationship between her and the clinical team. It would also mean that mental health services were only able to engage once CS has suffered a significant deterioration. CS has a very distressing illness when it is in its acute phase and we have attempted to help her to avoid acute exacerbations of her illness. Bringing her back from leave at the earliest sign of deterioration has avoided a significant descent into her severest symptoms and has led to limited rather than prolonged periods spent on the ward before further leave could be granted."

47. In my judgment the tribunal acted lawfully and rationally upon the evidential material available.
48. Mr Simblet further argues that the tribunal should have considered the alternatives of guardianship under section 8 and supervision under section 25A and following as alternatives for detention. There has not been identified to me any material upon which the tribunal should have considered section 25A supervision as appropriate. Dr Sanders gave evidence that in her view it was not appropriate in CS's particular case because she had experience that CS's personality was such she would find difficulty in complying. The tribunal was never asked to consider making a recommendation under section 8. Had the tribunal been asked, I have no doubt they would have found it inappropriate. The delicate balance which the RMO had achieved would have been disrupted by fresh upheaval both in the regime and the personnel to which CS would have been subjected - something to which she had not responded well in the past. Furthermore, as Miss Stern points out, there was no power available under either regime to require the patient to take medication. CS's knowledge of the RMO's powers was a significant element in her willingness to accept the treatment plan.
49. Finally, Mr Simblet suggested that the tribunal should have required the RMO to name the day of discharge under section 72(3). That course could, as Miss Stern pointed out, have been disastrous. The RMO was not in a position to know from one day to the next what CS's prospects in the community could ultimately be. Only upon the successful completion of the carefully laid plan of treatment could discharge be risked.
50. Both parties agree that there is required in the section 72 judgment by the tribunal a consideration of the proportionality which the patient's mental state and needs bear to the steps proposed by the RMO. A question has arisen in argument: is it necessary to engage with the further consideration whether the application of section 72 is itself a proportional response to Article 5(1)(e) ECHR? Miss Stern has invited my attention to the decision of the Court of Appeal in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, a decision upon the lawfulness of detention in asylum cases. At paragraph 54 Lord Phillips MR said:

"Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary."

In that case the Court of Appeal held that the Secretary of State's policy was Article 5 compliant.

51. As she puts it in her skeleton, Miss Stern submits that there is no separate requirement under Article 5 that detention must be proportionate. Article 5 protects against arbitrary detention: it does not incorporate any additional requirement of proportionality. The repeated view of the European Court of Human Rights has been that the requirements to be satisfied to protect an individual from arbitrary detention under Article 5(1)(e) are those set out in Winterwerp v Netherlands [1979] 2 EHRR 387 at paragraph 39 and Ashingdane v United Kingdom [1985] 7 EHRR 528 at paragraph 44.
52. It seems to me that there is force in the argument advanced by Miss Stern and that, as in the case of the immigration cases considered by the Court of Appeal, the question is whether or not domestic law permits the arbitrary detention of those in the position of the claimant. It seems to me that manifestly it does not. Accordingly, there is no dimension further to section 72 of the 1983 Act which needs to be added to the statutory right to discharge and the exercise of the residual discretion. The application of the principle of proportionality to this case leads in any event, in my view, to only one conclusion: the interference with the claimant's freedom of movement and choice were minimal in the context of the object to be achieved, namely her satisfactory return to community care. For these reasons, the claim must be dismissed.
53. MISS STERN: My Lord, I think that only leaves my application for costs. My Lord, I would just ask for an application on the usual 'football pools' order. I am never good at remembering the precise terms. But I would say that costs should follow subject to the usual provision, which is that it should be subject to a determination of the claimant's liability to pay those costs pursuant to section 11 of the Access to Justice Act. My experience in these matters is that the associate is far better at formulating the precise terms of the order than I am.
54. MR JUSTICE PITCHFORD: Let me ask Mr Simblet whether he agrees in principle.
55. MR SIMBLET: The only observations I would make, my Lord, is that this is, of course, an application brought by a patient who is unlikely ever to have the means to satisfy the order and that the argument put forward on her behalf in effect raised an issue of principle and wider public importance. Your Lordship may have seen the correspondence between the Legal Services Commission and its Public Interest Advisory Panel, and so on, in this matter. It was an issue that is thought - and is indeed raised in the skeleton argument as being - an important issue in the current edition of Jones and the argument was in effect one that had importance beyond simply CS's affairs. So, in those circumstances, as a matter of discretion, it would be my submission that it is not appropriate to make a costs order in favour of the defendant.
56. MR JUSTICE PITCHFORD: Well I congratulate you on getting a representation order, Mr Simblet, but I do think that the 'football pools' order, if it can be converted into acceptable language --
57. MR SIMBLET: I can help you with that. The current formulation is: subject to an assessment of a claimant's liability to pay, such assessment to be postponed; that is the critical Power v Smith or Power v Jones, or whatever the case is called, variation of what is called a 'football pools' order. The associate does have experience in these matters and we will cobble together a form of words between us. My Lord, it should be the defendant's costs, not the costs of the interested party.
58. MISS STERN: Yes.
59. MR JUSTICE PITCHFORD: Yes.
60. MR SIMBLET: Could I also ask for public funding assessment of the claimant's costs?
61. MR JUSTICE PITCHFORD: You have, of course, got the certificate?
62. MR SIMBLET: Yes. I think the certificate is with the associate. Could I ask for fourteen days to produce it if it is not here?
63. MR JUSTICE PITCHFORD: Either now or seven days.
64. MR SIMBLET: Thank you.