England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2013

Mr Justice Dingemans

Introduction

1. This case raises, among other matters, an issue about whether reasons for a restricted patient's recall to detention in a hospital have to be provided orally or in writing.
2. The Claimant, Mr Lee-Hirons, claims that the decision of the Defendant, the Secretary of State for Justice ("the Secretary of State"), to recall him, pursuant to section 42(3) of the Mental Health Act 1983 ("the Mental Health Act"), to be detained in a hospital on 19 July 2012 was unlawful. The Claimant seeks a declaration to that effect and damages for false imprisonment, or pursuant to the Human Rights Act 1998. The Secretary of State, and the Interested Party, Partnerships in Care Limited, which operates the hospital where the Defendant is detained, resist the claim.

Some procedural matters

3. When the claim first started in 2012 the Claimant was seeking his release from detention. However after recall the Claimant's case was referred, pursuant to the provisions of the Mental Health Act, to the First Tier Tribunal (Health, Education and Social Care Chamber)(Mental Health) to consider the appropriateness of the Claimant's continued detention. The Claimant is seeking an absolute discharge (rather than a conditional release) and that has not been ordered. It has been common ground since November 2012 that the issue of whether the Claimant should continue to be detained is for the First Tier Tribunal.
4. This means that the present action effectively became a claim for damages and a declaration only. At that stage there would have been many advantages in having the matter transferred to continue as if it had been started as a normal claim for damages in the Queen's Bench Division. The matter could have been properly case managed. As it was the time estimate of one day was barely adequate, although I am very grateful to counsel, solicitors and the parties for all of their help and co-operation which meant that the matter was heard within the one, very full, day.
5. It might be noted that although there were some differences exposed in the evidence, particularly between the Claimant's witness statement and the contemporaneous document produced by Mr Hart described in the bundle as the statement of Ian Hart regarding reasons for recall, there was no application to cross examine any witnesses. The reason that cross examination rarely occurs in judicial review proceedings is because judicial review involves a judge reviewing a decision, not making it, see Bubb v Wandsworth LBC [2011] EWCA Civ 1285; [2012] PTSR 1011 at paragraph 24. However different considerations are sometimes engaged when considering a claim for damages for false imprisonment in relation to a past event.
6. There was not full evidence on quantum. This meant that if liability had been established, the matter would have had to be adjourned, and this would have increased costs. It would have meant that there was effectively a split trial on liability and quantum without any judicial consideration about whether that was appropriate. There was a late request for the Claimant to attend by video link from the hospital where he is currently detained. This was accommodated although there were intermittent problems with the link.
7. Having noted these matters, it should be recorded that a motivating factor was to save legal aid costs of expert evidence on quantum in the event that there was not a finding of liability, and the matter was properly commenced in the Administrative Court. The Administrative Court has jurisdiction to deal with the claim for a declaration and damages. Transferring the matter at this late stage would have caused delay, so the action has remained as it started, in the Administrative Court.

The Claimant

8. The Claimant was born on 23 August 1966. He has 61 convictions for a variety of offences. The majority involve theft, fraud and offences against property. He has two convictions for arson. In December 2003 he had been informally admitted to hospital. He was discharged in February 2004 with a diagnosis of mania with possible schizophrenic features.
9. In March 2004 he was admitted to hospital again. He was then reported (as appears from summaries set out in various reports) to have had a chronic fixed delusion of a snake being in his spine because of his past sins. He showed aggression towards staff and other patients. On discharge his diagnosis was chronic paranoid delusional disorder, amphetamine and cocaine misuse, and a sociopathic personality disorder.
10. The relevant conviction was on 10 November 2006 when the Claimant was convicted of arson and burglary. He had burgled a charity shop to steal money, and then he had set the shop alight. When he was sentenced by the Crown Court a hospital order and a restriction order were made, pursuant to sections 37 and 41 of the Mental Health Act.
11. A number of different psychiatrists have come to different conclusions at different times about the type of mental disorder suffered by the Claimant. Diagnoses have included delusions of a religious and grandiose nature, paranoid schizophrenia, polysubstance dependence and dissocial personality disorder. Two particular features about the Claimant should be mentioned. The first is that the Claimant has strong religious beliefs, and it is common ground that this is no evidence of mental illness. In this respect he also considers that some of his religious poetry will, when published, become a best seller and make him famous on a world wide basis. The second feature is that the Claimant also believes that a particular daughter of a pastor known to him will become his wife, and there have been issues and concern about his fixation with that person.

Provisions in the Mental Health Act

12. The effect of the making of the restriction order was that the Claimant would be detained until discharge by the First Tier Tribunal under Part V of the Mental Health Act or discharge under Part II of the Mental Health Act with the consent of the Secretary of State. Tribunals are empowered to direct the discharge of patients subject to a restriction order either absolutely or conditionally, pursuant to section 73 of the Mental Health Act.
13. The effect of the restriction order meant that, after the conditional discharge of the Claimant, the Secretary of State might, pursuant to section 42(3) of the Mental Health Act "… at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged … by warrant recall the patient to such hospital as may be specified in the warrant". Once recalled the case is referred again to the First Tier Tribunal.
14. As a matter of statutory history in the Mental Health Act there were four categories of mental disorder, namely: mental illness; mental impairment; psychopathic disorder; and severe mental impairment. The Mental Health Act 2007 abolished these four separate categories and replaced them with a single definition of mental disorder.

Decisions of the Tribunals and the conditional release of the Claimant

15. On 27 January 2008 the Claimant applied to the First Tier Tribunal for discharge from the hospital from the First Tier Tribunal.
16. On 18 March 2008, after hearing evidence, the First Tier Tribunal decided that the Claimant was suffering from a mental disorder which made it appropriate for him to be liable to be detained in a hospital for medical treatment. The Tribunal decided that it was necessary that the Claimant should receive such treatment. The Tribunal was satisfied that appropriate medical treatment was available and that it was appropriate for the Claimant to remain liable to be recalled. The Tribunal addressed the evidence and accepted (paragraph 11) that the Claimant met the diagnostic criteria for antisocial personality disorder and continued to exhibit a number of psychopathic features including lack of remorse, an inability to appreciate his impact on others and was quick to anger. It was noted that his personality disorder was exemplified by overly grandiose behaviour, and the Claimant's belief that his poetry would be a worldwide bestseller was recorded (paragraph 14). The Tribunal noted a conflict of evidence between experts and concluded that the Tribunal was not satisfied that the Claimant had a mental illness, but were sure that he suffered an antisocial personality disorder.
17. On 11 November 2009 the Claimant was transferred to Cheswold Park Hospital and the Responsible Clinician ("RC") became Dr Nimmagadda.
18. On 12 April 2010 the Upper Tribunal set aside the judgment of the First Tier Tribunal. This was because that part of the First Tier Tribunal's decision which had held that the Claimant would benefit from continued treatment, was not sufficiently reasoned. The matter was remitted back to the First Tier Tribunal for determination.
19. On 24 August 2011 the First Tier Tribunal gave judgment. They had heard evidence on dates between 16 February and 24 May 2011. That included evidence from Dr Nimmagadda who was of the view that the Claimant suffered from both paranoid schizophrenia and an antisocial personality disorder. It also included evidence from Dr Kearns, an independent forensic psychiatrist, who did not support the diagnosis of paranoid schizophrenia, and Dr Indoe, an independent psychologist, who considered that the Claimant had an antisocial personality, but not an independent personality disorder. There were disputes between Dr Nimmagadda and Dr Indoe about whether treatment of the Claimant would be effective.
20. The Tribunal held that "notwithstanding earlier diagnoses we are not satisfied that [the Claimant] has paranoid schizophrenia". However the Tribunal also held that the Claimant had an antisocial personality disorder. The Tribunal was satisfied that treatment could be provided, but also took the view "… that it may be possible for [the Claimant] to be treated in the community on a Conditional Discharge. Approved accommodation and the supervision of a social supervisor and RC are essential". The proposed conditions were then set out.
21. In preparation for his conditional discharge a HCR-20 risk assessment at Cheswold Park was updated in April 2012. After making various comments about offences it was noted that drugs and alcohol led to involvement in offending behaviour. It was also recorded that "although his mental health diagnosis had been disputed, it was found that a deterioration in mental state was related to an increase in risk behaviours related to violence".
22. It appears, from the decision of the First Tier Tribunal dated 27 April 2012, that Dr Nimmagadda and others worked very hard to ensure that the conditions could be implemented for the Claimant. The Tribunal heard evidence from Mr Ian Hart and Mr Joe Costelloe of Langley House Trust ("LHT") about the regime for persons suffering from personality disorders such as the Claimant. After careful assessment LHT had offered a place to the Claimant. Mr Hart and Mr Costelloe were questioned by Dr Nimmagadda about the proposed arrangements, and Dr Nimmagadda then said that he agreed that the Claimant should be conditionally discharged to LHT.
23. The Tribunal specifically recorded that "we have formed a very high opinion of Mr Hart and Mr Costelloe". The Tribunal also noted that "if [the Claimant] breaks house rules and can no longer be allowed by his social supervisor to be at Longcroft [the Claimant] can be recalled to hospital". After thanking Dr Nimmagadda and his team the Tribunal gratefully acknowledged "… the work done by Mr Hart, Mr Costelloe and Mr Hoyle in enabling us to implement the deferred CD. Without the outstanding and skilled efforts of all of the above [the Claimant] would probably still be detained in hospital".
24. The Claimant was conditionally discharged from Cheswold Park Hospital to LHT on 11 June 2012. His social supervisor was Mr Hart. His RC was Dr Omar.

Legal principles governing the decision to recall

25. In the course of submissions by counsel it became clear that there was a considerable amount of common ground about the legal principles governing the decision to recall. As noted in paragraph 13 above, the statute provides a power to the Secretary of State to recall a person subject to conditional release.
26. In R(MM) v Secretary of State for the Home Department [2007] EWCA Civ 687; (2007) 98 BML 130; at paragraph 50 Toulson LJ, giving a judgment with which Gage and Keene LJJ agreed, said "for the Home Secretary to recall a patient who has been conditionally discharged by a [Mental Health Review Tribunal], he has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient".
27. It is also clear that the Secretary of State cannot simply recall a patient because he disagrees with the decision of the Tribunal, because that would undermine the decision of a legally constituted Tribunal, compare R(von Brandenburg) v East London and the City Mental Health NHS Trust [2004] 2 AC 280 at paragraphs 8 and 10, and the decision of Bean J in IT v Secretary of State for Justice [2008] EWHC 1707 (Admin); [2008] MHLR 290 at paragraphs 12 and 13.
28. This means that the question for the Secretary of State is "… whether there had been such a material change of circumstances since the Tribunal's decision that he could reasonably form the view that the detention criteria were now satisfied", see R(M) v Secretary of State for the Home Department [2008] EWHC 3638 (Admin).

The duty to give reasons for recall

29. It is established law that fairness requires reasons to be given for many public law decisions. One of the categories where fairness has required reasons to be given is where personal liberty is removed, see the discussion in R(Wooder) v Feggetter and another [2002] EWCA Civ 554; [2003] QB 219 at paragraph 23-28.
30. It has been long established that a failure to give reasons after an arrest renders the detention unlawful, see Christie v Leachinsky [1947] AC 573 at 588H, notwithstanding the fact that, if reasons had been given, the arrest would have been lawful. This principle has been reaffirmed and followed in other areas of public law, see Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at paragraphs 77-89.
31. In my judgment the decision to recall a person subject to conditional release back to detention, is a decision of such importance that fairness requires that reasons be provided to the person being recalled. This is because the decision involves the removal of the (albeit part conditional) liberty enjoyed by that person. It might be noted that article 5 of the European Convention on Human Rights ("ECHR"), scheduled to the Human Rights Act 1998, is to the same general effect. The ECHR provides at article 5(1)(e) for the lawful detention of persons of unsound mind. Article 5(2), which applies to all the reasons for detention provided for in article 5(1), provides that "everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charge against him".
32. I also agree that a failure to provide reasons would render the subsequent detention unlawful. This is because the giving of reasons is a condition precedent to the lawful recall of the person to be detained, in the same way that the giving of reasons for arrest is a condition precedent to lawful arrest by the police.
33. It was submitted on behalf of the Claimant that the reasons should be in writing, and provided to the person to be detained. Reference was made to R(O) v West London Mental Health NHS Trust [2005] EWHC 604 (Admin); [2005] MHLR 188. In that case there was a Code of Practice relating to the Mental Health Act which required a Hospital Manager's decision following a Mental Health review to be recorded, the decision to be communicated orally and in writing, and for one of the members of the panel to explain the reasons to the patient. The opening submission on behalf of the Claimant in this case had been that handing over written reasons was a condition precedent to the lawfulness of the detention following recall. Following submissions by other parties and discussion about emergency situations the submission on behalf of the Claimant was modified, and it was then submitted that written reasons should be provided in every case, either immediately or as soon as reasonably practicable to do so, and the provision of such reasons were a condition precedent to the lawfulness of the decision to recall.
34. I reject the submission that the provision of written reasons, either immediately, or as soon as reasonably practicable after detention, is a condition precedent to the lawful recall of the person being detained. This is for a number of reasons set out below.
35. First the critical matter is for the recalled person to know why he is being detained and oral reasons, which must be provided, will provide that information. There is therefore no pressing need for written reasons to be provided before a lawful recall. Secondly there are many practical reasons why the provision of written reasons before recall will be difficult, for example in emergencies, or where the location of the person liable to be detained is not known. The modification of the suggested principle that "written reasons were a condition precedent to lawful recall" to a principle that "written reasons, provided either immediately or as soon as reasonably practicable, were a condition precedent to lawful recall" suggests that what is being suggested is a desirable practice, rather than a condition precedent to the very legality of the detention. Thirdly types of mental disorder can vary very significantly. The provision of written reasons to a patient will not always be the most effective way of communicating the reasons for recall. The current practice of requiring the RC to explain to the patient the reasons for recall means that the RC can explain the reasons in a manner that is most likely to be fully understood by the patient. Finally the fact that written reasons are not required to be provided before the lawful arrest of a person by the police, strongly suggests that written reasons are not likely to be required before the lawful detention of a person who is liable to recall under the Mental Health Act. I can see nothing in R(O) v West London Mental Health Trust or article 5(2) of the ECHR which requires a different conclusion.
36. Having found that there is no legal requirement to provide written reasons I should note that very often it will be desirable to provide the patient with written reasons. This will enable those helping the patient (and in this case the Claimant has been given assistance over a long period of time by his solicitor Mr Evans) to know how best to provide assistance to the patient. In this case I should note that there was a delay in pre-action correspondence in providing documents relating to the reasons for recall to Mr Evans which was unnecessary and unfortunate. However as written reasons were not required to be provided as a condition precedent to lawful detention, that delay did not affect legality of the original decision to recall.

A lawful decision to recall

37. The evidence about the circumstances leading up to the Claimant's recall comes from a variety of sources. Mr Hart made a statement on 19^th July 2012 about what he had seen which led him to recommend recall. The Claimant has made a witness statement dated 17 September 2012 setting out the fact of his recall and his comments about medical notes, and a further statement dated 23 November 2012 setting out what happened. David Elliott, the Head of Casework Team Two responsible for discharging the Secretary of State's powers in respect of restricted persons, made a witness statement dated 6 November 2012 and a further statement dated 5 February 2013. There are medical notes referring to the reasons for the decision.
38. Mr Hart noted, in his statement, that the Tribunal had withdrawn the mental illness classification of the Claimant's illness. Mr Hart recorded that he had originally questioned whether there was underlying mental illness, noting that "recently there has been increasing concern as to whether his presentation was more a mental illness presentation rather than a faith based one". Mr Hart noted he was now convinced that a portion of the Claimant's faith expression should be categorised as an illness expression, noting that the Claimant had suggested that his poetry was "… so significant that it held the same significance as the bible …". Mr Hart was convinced that this last belief was driven by an underlying mental illness.
39. Mr Hart recorded that he had seen the Claimant with a psychologist in the morning. He said "we were both of the opinion that there has been a shift in his mental health ..." noting that the Claimant was fixated on the conditions of his discharge, wanting the bans on alcohol, preaching and contacting the pastor's daughter changed. Mr Hart recorded "it has become evident over the last few weeks that he has been craving alcohol and this is becoming increasingly difficult for him".
40. Mr Hart noted that the Claimant's "… presentation has become much more unpredictable, he has appeared distracted and guarded. He does not show any insight into the fact that his mental health does not appear to be very solid. He flatly denies [any] mental illness but it was clear in my meeting with him that he was very guarded, his eye contact was extremely poor. He was ranting about his regional commissioner … and blamed him for everything that had happened to him. He informed us that if Andy turned up at his CPA next week he would have assaulted him". Mr Hart continued: "During my assessment this morning his mood was flat, he would not look at either myself or the psychologist, he was distracted, guarded and generally suspicious. He told us that he expected to be recalled … Staff have reported in the last 24 hours that [the Claimant] has presented in a bizarre manner. This is characterised by him sitting in the office and ranting/swearing … He has made specific reference to absconding and taking alcohol.".
41. Mr Hart concluded this part of the statement by recording that "I have liaised with Dr Omar (Responsible Clinician) … He is of the opinion that there is clear evidence of a delusional disorder".
42. Mr Hart stated that there had been discussions about an admission to a local psychiatric facility but said they were of the opinion that the Claimant would in all probability abscond.
43. The Claimant relates, in his second witness statement, that he had had a meeting with Mr Hart and a psychologist in the morning. After the meeting the Claimant had felt a bit better. In his first statement, the Claimant referred to electronic notes that he had seen and set out his case in relation to the matters. He denied that he was preoccupied and not engaging. He did say that he had a plan and purpose to help drug addicts become normal people through his organisation Unity, which was God's work, and that he did want his poems published. He was craving alcohol in the sense of having the freedom to drink, and not to get drunk. The Claimant said that Mr Hart had shared his worries that the Claimant would get drunk and find the pastor's daughter, but the Claimant had made it clear that that would not happen, he had been tested and was clear of drink and drugs. He was not hallucinating on 11 July. He was not guarded or suspicious. He had never been intimidating. He did want his conditions changed, but only because they were an unnecessary interference with his freedom. He had not contacted the pastor's daughter for over 3 years. He had discussed her, but only in relation to conditions. He could not recall mentioning absconding, but if he had it would have been along the lines that the restrictions were enough to make him think of absconding, but he never had that intention. The Claimant said he had never been violent.
44. The Claimant said that he had beliefs about exorcism, but these were accepted and shared beliefs. He did not say that his poems would sell more than the bible. He had not shown relapse signs in November/December 2011. The only inappropriate thing that he might have done is to make a comment about his bowels, but that is why he has support in the community. In relation to the suggestion that he might be violent the Claimant said "… I have been challenged repeatedly for the six years that I have been in hospital. I have been given no leave whatsoever, I have been medicated against my will for mental illness from which it has been found twice now that I do not suffer, and my faith has been treated as a delusion. In all of that time I have not been physically aggressive".
45. The Claimant continued in his statement, taking issue with comments made by Mr Hart in the medical notes, and explaining himself.
46. David Elliott, as Head of Casework Team Two, was the person who made the decision to recall the Claimant, acting on behalf of the Secretary of State. Mr Elliott sets out his note made on 19 July 2012 in his witness statement (dated 6 November 2012). He had a telephone call with Mr Hart, followed up by a report. Mr Elliott set out that there was clear evidence of a delusional disorder, refusing medication and that the patient presented in a bizarre manner characterised by him sitting in the office ranting/swearing. The Claimant was reported to have become unpredictable, distracted and guarded, with no insight into the fact that his mental health was not solid and it was clear that his mental health was deteriorating. Other matters set out in Mr Hart's report were summarised. Mr Elliott recorded at the end of this contemporaneous note that "I am satisfied that there is clear evidence of a deterioration in the patient's mental health, that an increased risk to the public is being presented and the patient is non-compliant with his medication and the requirements of his supervision in the community. Recall actioned".
47. The email exchanges provide timings. At 1457 hours Mr Hart emailed Mr Elliott saying "please find attached the statement relating to [the Claimant] as discussed". At 1508 hours Mr Elliott emailed back saying that all had been received and the formal recall warrant would be emailed within the hour. Complaint is made on behalf of the Claimant that Mr Elliott had had only 11 minutes to consider the report. It is correct to say that Mr Elliott had only had 11 minutes to consider the report, but it does appear that there had been a telephone conversation between Mr Elliott and Mr Hart before that report had been emailed through.
48. In my judgment the Secretary of State was entitled to find "that something has happened" and that "information has emerged" which was of "sufficient significance to justify recalling the patient". The thing which had happened, and the information which emerged was a "shift in his mental health" recorded by Mr Hart and the psychologist. This was coupled with the fact that the Claimant's presentation had become "much more unpredictable", that he had appeared "distracted and guarded" and the fact that he had "presented in a bizarre manner" such that he had sat in an office "ranting/swearing" and had made specific reference to "absconding and taking alcohol". This justified Mr Elliott being satisfied that there was "clear evidence of a deterioration in the patient's mental health" and that "an increased risk to the public is being presented" and this justified the decision to recall. This was the reason for recall, which was based on Mr Hart's report, but was (through Mr Elliott) the Secretary of State's reason for recall.
49. I do not accept the submission on behalf of the Claimant that the decision to recall was inconsistent with the judgment of the Tribunal. The Tribunal had not said (nor, on the evidence, would they have been justified in saying) that the Claimant's mental condition would never deteriorate. On the contrary the Tribunal had specifically noted the possibility of recall (see paragraph 23 above). The information which led to the recall was reported by Mr Hart, about whom the Tribunal had had such a high opinion. An earlier risk assessment had noted that, whatever the diagnosis, a deterioration in the Claimant's mental state was related to an increase in risk behaviours related to violence (see paragraph 21 above).
50. It is correct to state, as Mr Evans of CVC solicitors does in paragraph 10 of his witness statement, that the Tribunal had referred to the Claimant's religious poetry and the desire to publish it, without finding it to be evidence of mental illness. However it might be noted that Mr Hart had recorded the additional and new fact that the Claimant considered the poetry to be of the same significance as the Bible. It might be noted that the Claimant disputes stating that, but that was something that the Secretary of State could not resolve. This fact (if true) was a matter which took the Claimant's beliefs beyond usual religious beliefs.
51. Many of the submissions made on behalf of the Claimant about the inconsistency between the decision to recall and the Tribunal's reasons seemed to be based on the proposition that the Claimant's mental state could not have changed between the hearings before the Tribunal and the decision to recall. I accept the general point made by Mr Evans in paragraph 22 of his witness statement that a personality disorder "is generally considered to be lifelong stable condition" but, as the statement expressly made by Mr Evans shows, this is a generalisation, and mental disorders vary considerably. Indeed this appears to have been one of the reasons for the changes in categories in the Mental Health Act, referred to in paragraph 14 above. It appears that the Claimant's mental state had after his initial detention improved. However, before his recall, there was clear evidence that the Claimant had a deteriorating mental state.
52. The Claimant also made two separate complaints: (1) the decision to recall was irrational because it took into account an irrelevant consideration, namely the fact that the Claimant suffered from a delusional disorder by reference to the grandiosity of the Claimant's religious poetry; and (2) that a psychiatric report was required before an order for recall was made in this case.
53. I do not consider that irrelevant considerations were taken into account in this case. It was right to record the apparent development of the Claimant's comments about his religious poetry because it appeared to take the Claimant's views away from mere grandiose thinking, for the reasons given in paragraph 50 above. There was no need to obtain a psychiatric report. Mr Hart had spoken to those dealing with the Claimant, including a psychologist and the Claimant's RC.
54. After the Claimant had been recalled his case was referred again to the First Tier Tribunal by letter dated 20 July 2012.

Adequate reasons provided to the Claimant

55. After the email exchange referred to in paragraph 45 above at 1600 hours on 19 July 2012 David Elliott sent a formal signed recall warrant for the Claimant. The warrant was headed "Warrant recalling patient conditionally discharged". It recorded that in pursuance of section 42(3) of the Mental Health Act 1983 the Secretary of State recalled the Claimant to the Spinney.
56. The Claimant, in his second witness statement, having related his earlier meeting with Mr Hart and the psychologist said that about two hours after the meeting, while talking to a member of staff, the Claimant had seen two police officers and Mr Hart. The Claimant said "at this, my heart sank, Ian Hart then told me I was to be recalled and that I was not going to Cheswold Park Hospital in Doncaster but to the Spinney, a medium secure hospital in Manchester, allegedly because `my mental state had deteriorated' and alleged due to drinking which I deny took place". The Claimant commented that Mr Hart had not mentioned drinking since that occasion. The Claimant said "it was not explained to me why the recall had taken place other than what is stated above".
57. Later that night Mr Hart emailed back thanking Mr Elliott for his assistance and recording that the warrant had been executed at 1823 hours. He continued saying that the Claimant "was informed of the reasons for his recall, the place to which he was being recalled to and informed that there would be an automatic referral to the First Tier Tribunal (Mental Health)". The Claimant's reaction was noted (not happy but compliant) as was the Claimant's comment to staff earlier that morning to the effect that he believed that his recall was inevitable.
58. In the Claimant's witness statement (made on 17^th September 2012) he said that he had been "trying to obtain details of the reasoning for my recall", and specifically whether it was based on mental disorder, for which he had been conditionally released, or mental illness, which it had been decided he did not have.
59. The report from Dr Kasmi, by then the Claimant's RC, dated 22 August 2012, provides further evidence about what reasons were provided to the Claimant, and when they were provided. The report records (at pages 23 and 24 of the report) evidence of what the Claimant was saying on arrival. It is right to note that he said that "he was unsure why he was recalled" when Dr Kasmi spoke to him later on 19 July 2012. This is consistent with the Claimant's first witness statement, but not the second witness statement, which says that he was told that he had been recalled because of his deteriorating mental state.
60. In this respect Dr Kasmi also recorded that the Claimant stated that "his Social Supervisor had said that his mental health had deteriorated and that he consumed alcohol. He said he did not". Dr Kasmi had asked the Claimant about the deterioration but the Claimant had denied any. The report by Dr Kasmi showed that at times the Claimant had been restless, pacing up and down, irritable and intimidating.
61. On 3 August 2012 Dr Kasmi had discussed the recall statement with the Claimant, and the Claimant had said (page 25 of the report) that his Social Supervisor had not been truthful about the incidents leading to recall. He had denied the allegation that he had been ranting, and had also said that he would not drink to get drunk.
62. As noted in paragraph 5 above, I have not had the benefit of hearing evidence on the issue of what oral reasons were provided to the Claimant. However, doing the best that I can on all of the evidence available, I find that the Claimant was told of the reasons for his recall. These were provided by Mr Hart to the Claimant, and Mr Hart recorded that they had been provided to the Claimant in his near contemporaneous email referred to in paragraph 56 above. The reason for the Claimant's recall (which was Mr Hart's reason, and adopted by Mr Elliott on behalf of the Secretary of State, as appears from paragraph 48 above) was because the Claimant's mental health had deteriorated. As noted above, risk assessments showed that when the Claimant's mental state deteriorated he became more unpredictable and risks increased.
63. Although the Claimant said in his first witness statement that he was not provided with reasons, and he had said at first to Dr Kasmi that he was unsure why he was recalled, in his later witness statement, and in later discussion with Dr Kasmi, the Claimant does recall that he was told that his mental health had deteriorated. This accords with Mr Hart's email to the effect that he had told the Claimant about the reasons for his recall. It is right to record that it is apparent that the Claimant did not agree that his mental health had deteriorated. However the Claimant was told that Mr Hart said that it had, and that this was the reason for the recall.
64. It was suggested that there was a difference between Mr Hart's reason for recommending recall, Mr Elliott's contemporaneous note set out in his witness statement, and other matters set out in paragraph 5 of Mr Elliott's witness statement about the policy to recall. As was pointed out on behalf of the Claimant in argument, part by reference to the line of authority commencing with R v Westminster Council, ex parte Ermakov [1996] 2 All ER 302, contemporaneous records are a more reliable guide to the reason for the decision that was made. It seems to me that paragraph 5 is a fuller explanation of the policy behind recall, but the reason for Mr Hart's report to Mr Elliott, the reason for Mr Elliott issuing a warrant for recall, and the reason for recall was that the Claimant's mental health had deteriorated, and this was recorded in contemporaneous documents.
65. In these circumstances I find that oral reasons for the recall were given to the Claimant, and therefore the detention of the Claimant was not unlawful for a failure to give reasons. There was also no infringement of rights protected by article 5 of the ECHR.

Conclusion

66. For the detailed reasons set out above I am satisfied that the decision to recall the Claimant was lawful because there had been a deterioration in his mental health since the hearing before the Tribunal. I find that there is a duty to give the patient who is being recalled oral reasons for that decision. I am satisfied that the Claimant was told of the reasons for his recall. I therefore dismiss the claim for damages for false imprisonment and breaches of article 5 of the ECHR, and I dismiss the claim for a declaration.