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
		18 July 2008

Mr Justice Bean :

1. The Claimant is the subject of a hospital order with restrictions pursuant to Section 37 and 41 of the Mental Health Act 1983, imposed at the Liverpool Crown Court on 10 January 2000. In April 2006 he was conditionally discharged to supported accommodation at T House. Following two incident of sexually inappropriate behaviour in public places in June 2006 he was recalled to hospital. He makes no challenge in these proceedings to that recall.
2. His case was referred in the usual way to the Mental Health Review Tribunal ("MHRT"). On 22^nd August 2006 the MHRT recommended that he be made the subject of conditional discharge, deferred until certain conditions were put into effect.
3. The MHRT reconvened on 13^th March 2007. It heard oral evidence from the Responsible Medical Officer ("RMO"), Dr Tint; an approved social worker ("ASW") supervising the Claimant, Ms Monk, and from the Claimant himself. It had written reports from the RMO and Ms Monk, the most recent being 9^th February and 15^th February 2007 respectively, and what is described in the MHRT's decision as a "proposed conditional discharge plan" dated 13^th March 2007, that is to say the day of the Tribunal hearing. Unfortunately this document cannot now be traced. Ms Monk's report suggested that the Claimant's care plan should provide for "escorted leave in the community only". Dr Tint's report had said that very soon he would be applying to the Home Office for the Claimant to be granted "unescorted local area leave". In the meantime, on 21 February 2007, the police successfully applied to the local magistrates' court for a Sexual Offences Prevention Order under s.104 of the Sexual Offences Act 2003 restricting the Claimant's movements (in particular prohibiting him from being outside schools, or in public parks). One consequence of that order was to give the police power to arrest the Claimant on the spot if he was found in a prohibited area.
4. The MHRT decided that the Claimant should once again be conditionally discharged. The conditions specified by the Tribunal were as follows:-

"(a) to reside at T House; when deemed appropriate by the clinical team;

(b) to abide by the rules of T House;

(c) to continue to receive treatment as advised by the RMO or his nominee;

(d) to continue to take medication as advised by the RMO or his nominee;

(e) to accept social work and CPN involvement;

(f) to comply with the treatment and therapy programmes as advised by the multi-disciplinary team."

5. The Tribunal gave as the reasons for their decision:-

"The patient has complied with his treatment since the deferred conditional discharge. A well structured conditional discharge plan is now in place and the Tribunal believe that it is now appropriate for that to be activated."

6. On 23^rd April 2007 the Claimant was discharged from hospital. He resided at T House and complied with the conditions imposed by the MHRT. As had been envisaged in Ms Monk's report of 15^th February 2007, and possibly also in the conditional discharge plan placed before the Tribunal on 13^th March 2007, he was escorted on a 1:1 basis whenever he left T House. In a report by Ms Monk to the Mental Health Unit of the Defendant dated 5^th June 2007 she wrote:-

"[He] remains on 1:1 escort outside T House at all times. We have just agreed he can be unescorted between Rosemount Day Care Services, Dane Ward, and the hospital CAS Office, which are all on campus."

7. In answer to another question on the form Ms Monk stated that she did not feel that the patient presented an increased risk to others since her last report. She also stated that the staff at T House reported a big change in his attitude from his previous stay in early 2006 - this time he was cheerful, helpful and courteous and had sustained this over the full 6 week period up to her report; that the risks were being appropriately managed by the current care plan; and that Dr Tint agreed that the Claimant was ''doing extremely well".
8. The report was seen by Mr Richard Westlake, a casework manager in the Mental Health Unit at the Ministry of Justice. He wrote to the RMO on 19^th June asking whether it was correct that the Claimant was on 1:1 escorts at all times whilst outside T House, and what the reason for this was. Dr Tint replied:-

"I can confirm that [the Claimant] remains on 1:1 escorts at all times whilst outside T House until reviewed by his consultant Dr Waring, at his next outpatient follow up. The reason for this is because of his past history of risks of sexual behaviour involving young children and the public. I can confirm there have been no such incidents of behaviour recently."

9. Mr Westlake's response was to recall the Claimant to hospital. In his witness statement dated 6^th June 2008 he writes:-

"In my view, the fact that IT required escorts due to the risk of sexual offending demonstrated that he presented a risk to others. I considered that the escort arrangements amounted to deprivation of liberty equivalent to detention and that it was not appropriate for a restricted patient to be conditionally discharged if he could not have unsupervised access to the community due to the risk posed to others. I therefore informed Dr Waring [the new RMO] that I would recall IT to hospital. In taking this decision I took account of the fact that IT had been recalled to hospital in 2006 following an allegation that he had made sexually inappropriate advances to a 16 year old woman in the street."

10. The Claimant's case was considered by a differently constituted MHRT on 25^th September 2007. It granted a deferred conditional discharge on a basis which is agreed on all sides to be unsatisfactory. That decision was quashed by consent in judicial review proceedings (CO/11187/2007) bought by the Secretary of State. The present claim is concerned with the lawfulness or otherwise of the decision to recall the Claimant to hospital on 4^th July 2007. That was more than a year ago. As Ms Eleanor Grey puts it in her skeleton argument on behalf of the Secretary of State, "it is not disputed that this case has had an extremely unfortunate procedural history, and that is regretted". That is putting it mildly. Despite the claim being issued promptly with an application for urgent consideration and despite the claimant's solicitors chasing both the defendant and the court in correspondence, no progress was made until 22^nd May 2008 when the matter came before Blake J who directed expedition and gave directions for hearing. But the deplorable delay does not affect the lawfulness or otherwise of Mr Westlake's decision.
11. Ms Grey submits that there are 2 questions to be answered in determining that issue, and that she has to succeed in both if the decision is to be upheld: (1) Did the facts as presented to Mr Westlake in June 2007 amount to a deprivation of liberty equivalent to detention? (If not, she accepts, the decision was taken on a legally incorrect basis and would have to be quashed.) (2) If they did, was the only proper response by or on behalf of the Secretary of State to apply for judicial review of the MHRT's decision, rather than exercising the statutory power of recall. (If so, she accepts, the Claimant must succeed.) Mr Stephen Simblet, for the Claimant, submits that the two questions should be taken in reverse order. Because of the constitutional importance of the second issue, I agree. I will therefore consider it first.
12. In R (von Brandenburg) v East London and The City Mental Health NHS Trust [2004] 2 AC 280 Lord Bingham of Cornhill said, at paragraphs 8 and 10:-

"[T]he rule of law requires that effect should be loyally given to the decisions of legally constituted Tribunals in accordance with what is decided. It was clearly established by the House in P v Liverpool Daily Post and Echo Newspapers PLC [1991] 2 AC 370 that a Mental Health Review Tribunal is a court to which the law of contempt applies. It follows that no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such a tribunal. The regime prescribed by Part V of the 1983 Act would plainly be stultified if proper effect were not given to tribunal decisions for what they decide, so long as they remain in force, by those making application for the admission of a patient under the Act. It is not therefore open to the nearest relative of a patient or an ASW to apply for the admission of the patient, even with the support of the required medical recommendations, simply because he or she or they disagree with a tribunal's decision to discharge. That would make a mockery of the decision. ...[10.]...Consistently with the principle identified in paragraph 8 above, an ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a Mental Health Review Tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the Tribunal which puts a significantly different complexion on the case as compared with that which was before the Tribunal."

13. It is common ground that the same principles apply where the Secretary of State is recalling a patient to hospital. As Toulson LJ said in R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687 at paragraph 50:-

"For the Home Secretary to recall a patient who has been "conditionally discharged" by a MHRT, he has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient."

In order to be consistent with the Brandenburg case this must, I think, be read as meaning that for the Secretary of State to recall a patient who has been conditionally discharge by the MHRT the decision maker must "believe on reasonable grounds that something has happened since the decision of the MHRT, or information has emerged which was not available to the MHRT, of sufficient significance to justify recalling the patient."

14. We do not have a record of what Dr Tint and Ms Monk said to the MHRT in oral evidence on 13^th March 2007, nor a copy of the "proposed conditional discharge plan" of that date which was placed before them. But it is clear from the February 2007 reports of both Dr Tint and Ms Monk that they proposed that to begin with the Claimant would only be allowed out of T House with an escort. There was, therefore, nothing in the material available to Mr Westlake which had not been known to the Tribunal and which put a significantly different complexion on the case as compared with that which was before the Tribunal. (On the contrary: the position was, if anything, a little more favourable to the Claimant, since Ms Monk's report of 5^th June 2007 indicated that he had done well in the previous 6 week period and that it was proposed to allow him freedom of movement "on campus" without an escort in the very near future.) It follows, in my judgment, that on this ground alone the decision to recall was unlawful. If the Secretary of State disagreed with the decision of the MHRT the proper course was to seek judicial review.
15. Strictly speaking this makes it unnecessary to consider whether the facts as presented to Mr Westlake amounted to a deprivation of liberty, but in deference to Ms Grey's sustained argument I will express a view on it. The question derives from a decision of the Court of Appeal in R (Secretary of State for the Home Department) v Mental Health Review Tribunal (PH. Interested Party) [20021 EWCA Civ 1868. PH was a 77 year old man who had been detained in Broadmoor for 44 years. A MHRT had directed his conditional discharge. The conditions imposed specified that he should reside at suitable specialist accommodation and that he was not to leave that accommodation without an escort. The Secretary of State challenged the decision by way of judicial review, contending that the conditions imposed were "so restrictive as to deprive this patient of his liberty, with the result that he would continue to be detained, albeit in a situation of lower security. The Tribunal only has the power to discharge a patient from detention and to impose conditions upon discharge. It has no power to direct the transfer of a patient from one detaining institution to another, and therefore in the present case the Tribunal has acted ultra vires." It appears to have been common ground between counsel in the PH case that a person is "detained" within the meaning of the Mental Health Act if he is, in ECHR Article 5 terms, deprived of his liberty. Keene LJ said at paragraphs 14-16:-

"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...

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 irrelevant 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. ..."

16. Keene LJ noted that it was accepted by counsel for the Secretary of State that the burden on him to show that continued deprivation of liberty would be the inevitable effect of the conditions imposed by the Tribunal. He also noted that it appeared from a witness statement made by the President of the Tribunal that it had retained control over the details of the measures required by the conditions imposed; and that they appear to have been imposed to protect PH himself. In paragraph 24 Keene LJ concluded that the conditions did not inevitable mean that PH would be in a regime so restrictive that he would be deprived of his liberty; that the conditions did not involve this transfer from one state of detention. Finally for present purposes, he observed at paragraph 25 that "if a patient is discharged from detention, that is still an effective discharge, even though he may be required to reside in another institution which qualifies as a 'hospital'. So long as he is not detained there, the Tribunal has lawfully discharged him."
17. This is a curious area of human rights jurisprudence, in which the Secretary of State prays Article 5 of the ECHR in aid of an argument that a patient should be detained in hospital. The ratio of the PH case, in my view, is that the MHRT acts ultra vires if it imposes conditions which amount to a transfer from one state of detention to another. Restrictions on liberty of movement do not amount to deprivation of liberty; the distinction between the two is one of fact and degree; and among other matters the duration of the measures in question is relevant. All this is confirmed by the decision of the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 356, a control order case, in which the indefinite duration of the orders was clearly of importance (see paragraph 21 of the speech of Lord Bingham of Cornhill, in which the PH case is cited).
18. In the present case, by contrast with PH. the conditions were not imposed by the Tribunal. However, it may be that if they were specified in the missing document, the proposed conditional discharge plan, they ought to be considered in the same way. Even then they did not, in my judgement, amount to what Keene LJ described as a transfer from one state of detention to another. The 1:1 escort condition was envisaged as a temporary measure. Dr Tint and Ms Monk both planned to move towards unescorted leave within a few weeks, beginning with unescorted movement around the campus. A sexual offences prevention order imposed by the local magistrates' court meant that the police could immediately arrest the Claimant if he were to stray into a prohibited area. This planned gradual loosening of the restrictions did not amount to detention by another name. Had it been proposed to continue indefinitely the position might have been different; it is not necessary to decide that issue. But it is unfortunate that because of this litigation a year has gone by without the Claimant having been given the opportunity to make any progress at all.
19. It follows that the claimant succeeds on both the issues I have outlined.
20. Ms Grey submitted that even I were to find in the Claimant's favour on liability I should not quash the Secretary of State's warrant but remit the case to the MHRT for yet another hearing. That cannot be right. The Claimant is entitled to the benefit of the MHRT decision of 13 March 2007 which was not challenged by way of judicial review. The warrant was unlawful and should be quashed. If a place cannot be found for the Claimant at T House in the very near future, it may be that the Secretary of State should exercise his power under Section 73 of the Act to vary the conditions laid down by the Tribunal; but this must be in a way which follows the principles laid down by the House of Lords in the Brandenburg case.
21. The result is that the Claimant is entitled to damages for what prima facie is his false imprisonment from 4^th July 2007 onwards. Mr Simblet and Ms Grey agreed that if damages cannot be agreed they should be assessed by a Judge, and that I should conduct the assessment if I am available. I will invite counsel to agree the necessary directions.




P O S T - HTML VERSION OF JUDGMENT D I S C U S S I O N
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1. MR JUSTICE BEAN: Ms Grey, yes. The warrant in this case recalling the claimant to hospital is quashed. The claimant's case succeeds for the reasons given in a judgment which I am handing down today, which the legal representatives of the parties have had in advance, and copies of which can be supplied on request to anyone else who is here (for example, from the press) and would like to have a copy.
2. MS GREY: My Lord, Mr Marsh attends in place of Mr Simblet. Perhaps in the circumstances it might be useful if I introduce the terms of the suggested order, together with the disagreement which still exists between the parties as to its scope. I do not know if your Lordship has a draft order from my learned friend Mr Simblet.
3. MR JUSTICE BEAN: I have. The points which seem to me to arise are firstly, should I increase the degree of anonymity. My present view -- perhaps I should not have handed out the order -- is that the claimant's anonymity is adequately protected and I see no reason why the doctors and the hospital should be anonymised. The whole thing ends up like some sort of Kafkaesc judgment in which nobody is allowed to know anything about anything except that it was a patient of a hospital with a doctor.
4. MS GREY: My Lord, we are neutral about it. This is a matter that exists for the patient's protection so I will leave that to Mr Marsh to develop further.
5. MR JUSTICE BEAN: Can we deal with that now, because if that is to be done then I have to withdraw the judgment I have just handed out and prohibit publication of names and so forth and really start again.
6. MR MARSH: My Lord, I know that you have already had communication with Mr Simblet, whose case this is, about why he said that should be the case.
7. MR JUSTICE BEAN: Yes. Thank you for stepping in. I was not persuaded by his written submissions, but if there is anything you would like to add.
8. MR MARSH: My Lord, I am not as familiar with the case as Mr Simblet, so I do not think I can add anything. Let his submissions stand.
9. MR JUSTICE BEAN: Thank you. I think the claimant is sufficiently protected by the fact that he is referred to as "IT" in the judgment. I do not think I have at any stage in the judgment mentioned his name. For the avoidance of doubt, for any press representative who is here today and coming fresh to the case, there is an order already in force, which remains in force, prohibiting identification of the claimant.
10. MS GREY: My Lord, that being so, the suggested paragraph 2 in the draft from Mr Simblet will be struck out.
11. MR JUSTICE BEAN: Yes.
12. MS GREY: I confess I have not checked the order of Stanley Burnton J. Does that simply run until judgment or further order? It might be necessary to provide for it to be extended in the same terms.
13. MR JUSTICE BEAN: Good point, Ms Grey. Let us try and find it.
14. MS GREY: Yes, my Lord, it is at A34 of the bundle. It is without limit of time.
15. MR JUSTICE BEAN: It is without limit of time, so happily what I said a moment ago is correct, that the claimant's name is not to be published without leave of the court. That order continues in force.
16. MS GREY: My Lord, that takes us on to draft paragraph 3. This is a substantive point between the claimant and the defendant. The claimant seeks a declaration as to detention and false imprisonment.
17. MR JUSTICE BEAN: Mr Marsh, my view is that what I should order today is that the defendant Secretary of State pay damages to the claimant for false imprisonment, such damages to be agreed if possible and, if not agreed, to be assessed by a judge at a further hearing. We will come to the timetable in a moment, but on the point of principle. What I said in the course of argument at the hearing was that if the claimant succeeded, he would be entitled to damages for false imprisonment, but prima facie the period is from 4th July 2007 to date and continuing. However, it would be open to the Secretary of State to raise arguments as to causation. The onus would clearly be on the Secretary of State to establish arguments which give the claimant anything less than damages for the full period, but I did not hear argument on that point at the hearing and it would not be appropriate now. Both counsel at the hearing, who had experience of this kind of litigation, told me what I already know, namely that these cases tend to settle; but if there is not a settlement then the Secretary of State will be entitled to raise arguments at the assessment of damages.
18. MS GREY: Your Lordship anticipates what I was going to argue so I will sit down.
19. MR JUSTICE BEAN: Mr Marsh, do you want to say anything more about that?
20. MR MARSH: I am in the unfortunate position, my Lord, of not being here and hearing the arguments. However, I know Mr Simblet's thinking was that if a financial responsibility is placed on the defendant it will focus minds and further action will be taken quickly to rectify the situation.
21. MR JUSTICE BEAN: Yes. The claimant is entitled to an order for damages for false imprisonment, to be agreed if possible; and if not agreed by 1st September, to be assessed by a judge at a further hearing, the judge to be me if possible.
22. What I had in mind for directions is a slightly shorter timescale than the parties were suggesting. Any further evidence from the claimant to be submitted by 22nd September, that is 3 weeks on. Any further evidence from the defendant to be submitted by 13th October. Skeleton arguments on the principles to be applied, together with any authorities relied on, to be exchanged one week prior to hearing, and the matter to be listed for hearing with a time estimate of half a day on the first available date after 1st November. Parties to apply for a date to be fixed as soon as practicable after 1st September if damages are not agreed by then. The defendant to pay the claimant's costs in assessment for public funding purposes.
23. MS GREY: My Lord, as to the last points -- your Lordship has just mentioned costs -- the proposal from our side was that the ruling should be that the defendant to pay the claimant's costs to date. Otherwise there is a general costs order and, supposing further issues on costs arise after this date, the obvious scenario is, if we were to make an early and ultimately effective part 36 order and that not be accepted --
24. MR JUSTICE BEAN: I see, yes.
25. MS GREY: -- we would be resisting costs at large. So "costs to date" takes account of the litigation to date but leaves the "assessment of damages" issues still to be resolved.
26. MR JUSTICE BEAN: I thought when a court said, "Defendant to pay the claimant's costs", in these circumstances that it meant "to date", but there cannot be any objection to the words "to date" being put in.
27. MS GREY: I may be being overcautious, my Lord.
28. MR MARSH: My Lord, no. The only comment that I had was that the word "reasonable" is otiose.
29. MR JUSTICE BEAN: It is indeed. The wording I would have in mind is "the defendant to pay the claimant's costs to date, to be the subject of detailed assessment if not agreed" and "assessment of the claimant's costs for the purposes of his public funding".
30. MS GREY: My Lord, for the avoidance of doubt, we strike out paragraph 3 of my learned friend's proposed order.
31. MR JUSTICE BEAN: I should have made copies for the two of you. I apologise. Here is what I had in mind. (Handed).
32. MS GREY: I do not think I have any observations to make on your Lordship's slightly shorter timescale. Although the reason for the longer one was the vacation period, I am sure that nonetheless it can be accommodated, and if not one comes back to court with pleas of mercy at the appropriate time. Thank you, my Lord. I think that does in fact dispose of all the issues relating to your Lordship's order.
33. Can I just inform the court what the position is in relation to Mr T. It is that there is no place available for him at present at the house at which he was to date. In those circumstances -- and this really is for information, because it is not directly the purview of the court today -- the Secretary of State will be minded to vary the existing conditions by providing for him to continue to reside on the ward where he is now until a bed comes available at W Lodge. That seems to be the most promising lodge. It is the one that the MHRT, back in September 2007, heard most about. And to remain under the care of Dr Waring, his RMO, or his successor, under the care of Diane Monk, the social supervisor, to take all prescribed medication, refrain from alcohol and illicit drugs, provide random urine samples for screening for illicit drugs and then to comply with the requirements of the order which your Lordship has already heard of.
34. My Lord, I shall tell you that and I should also tell you that your Lordship has already seen the opinion of the current RMO in this matter, who does raise issues as to whether or not T is properly detainable now under section 3. So I would simply draw that point to the court's attention. There are those continuing difficulties, but that would be something that the care team, together with the Secretary of State, will have to consider as a matter of urgency. Should any further and fresh decisions be taken under either of those statutory provisions, then should they in any way, shape or form be thought to be unlawful, the claimant would have to issue fresh judicial review proceedings. I am not saying that that will happen, but it is right that I should tell the court, and therefore Mr Marsh, that these complications do exist in this case.
35. MR JUSTICE BEAN: I will say no more at this stage except thank you for letting me know. The claimant does have advice.
36. MS GREY: Indeed.
37. MR JUSTICE BEAN: I did say at the hearing that I have read Dr Waring's recent observations, and that I hoped the position in the House of Lords in the Brandenburg case would be drawn to his attention, but that is as much as I will say.
38. MS GREY: Indeed. No one wants a cycle of repeat litigation, but all these matters will simply require careful consideration over the next few days. My Lord, unless there is anything else with which I can assist you, I think that does dispose of everything arising today.
39. MR MARSH: My Lord, I have no further issues to raise.
40. MR JUSTICE BEAN: Thank you both very much for your assistance. (Pause). I did put into the judgment the suggested sentence about the reasons for the delay.
41. MR MARSH: Thank you, my Lord.
42. MR JUSTICE BEAN: It is in the handed-down version. Thank you, Mr Marsh.