HM/1161/2012

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPEAL

 

Decision and Hearing

 

1. This appeal by the Secretary of State for Justice and the relevant NHS Trust succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 21^st December 2011 (under reference MP/2010/12679) to recommend that the patient be discharged subject to conditions.

 

2. I refer the matter to the President of the Health, Education and Social Care Chamber of the First-tier Tribunal for directions to arrange an expedited hearing as soon as possible by a completely differently constituted panel in that chamber, which is to hold a fresh hearing and make a fresh decision based on its own assessment of the evidence and in accordance with the legal guidance given below.

 

3. The Secretary of State and the relevant NHS Trust both appealed against the decision of the First-tier Tribunal and in technical terms it seems that the Secretary of State is the first appellant and second respondent, the hospital patient in question is the first respondent and the NHS Trust is the second appellant and third respondent. To preserve anonymity and without intending to show any lack of respect, and for the sake of convenience, I refer to the parties as “the patient”, “the Secretary of State” and “the Trust”. I have treated the matter as though there were only one appeal at this stage.

 

4. I held an oral hearing of this appeal in London on 16^th April 2013. The Secretary of State was represented by Mr Martin Chamberlain of counsel, instructed by the Treasury Solicitor. The Trust was represented by Ms Gillian Irving QC instructed by Hempsons, solicitors. The patient did not appear in person but was represented by Ms Catherine Gordon of counsel, instructed by Scott-Moncrieff & Associates, solicitors. I am grateful to all of them for their assistance.

 

Background and Procedure

 

5. The patient is a man who was born on 5^th September 1959. He has a long list of convictions (starting from when he was aged 10) for serious criminal offences. At the age of 14 he was convicted of indecently assaulting a 10 year old girl. In April 1982 he was released from prison, having been sentenced to 30 months imprisonment for a series of indecent assaults on females and a male. During the period September to November 1982 he committed offences of causing grievous bodily harm with intent (GBH), rape, robbery and five indecent assaults on females. The circumstances of the GBH and rape were that on 20^th November 1982 he attacked a 16 year old girl as she was walking home, dragged her along the ground for about 50 yards, punched and kicked her, pounded her head against the ground until she was unconscious, raped her while she was unconscious and repeatedly stabbed her, causing horrific wounds to the extent that she required extensive gynaecological surgery and was in a coma for five weeks. Four of the indecent assaults appear to have been attempts at rape, one of them involved banging a woman’s head on the pavement, four of them and the robbery involved squeezing the necks or throats of women, and the robbery also involved kicking a woman about the body and stealing her handbag after he failed to drag her into an alleyway. In May 1983 he was sentenced to two terms of life imprisonment and 6 terms of imprisonment for two years, all to run concurrently.

 

6. While the patient was in prison the view was taken that he was suffering from mental disorder and on 17^th June 1985 the Secretary of State issued a warrant under the provisions of section 47 of the Mental Health Act 1983 authorising his transfer to a high security mental hospital and a direction under section 49 restricting his discharge without limit of time. The section 49 direction is referred to as a “restriction direction” in the provisions of section 74 of the 1983 Act set out below. The patient was diagnosed as suffering from psychopathic anti-social personality disorder.

 

7. During his time in the high security hospital the patient was involved in matters that achieved some public notoriety with consequences for hospital procedures, but these are not relevant to my decision and, although they are discussed in the papers, I do not need to go into them.

 

8. From March 1998 the patient has had “technical lifer status”. This is a non-statutory status based on a discretionary administrative process which means that a patient is treated as thought the court had originally made a hospital order and will not be returned to prison but will be entitled to periodic reviews of the lawfulness of the detention. If the First-tier Tribunal notifies the Secretary of State of a recommendation under section 74(1)(b) of the Act (see below) that such a patient would, if subject to a restriction order, be entitled to be conditionally discharged from hospital, the Secretary of State will usually agree to the recommendation for discharge.

 

9. On 9^th June 2010 the patient in this case applied to the First-tier Tribunal for a recommendation for discharge and on 28^th January 2011 his application was refused. On 18^th March 2011 the First-tier Tribunal set aside that decision and a new hearing was arranged. On 11^th April 2011 the patient was moved, on a trial basis, to a medium security unit (“Lodge D”), where he was still residing at the date of the hearing before me.

 

10. The new hearing before the First-tier Tribunal took six days and there were over 600 pages of documents to consider. The patient and the responsible authority were each represented by counsel. On 5^th January 2012 the tribunal made a decision to recommend conditional discharge, and I consider its decision in more detail below. On 15^th March 2012 the First-tier Tribunal gave both the Secretary of State and the Trust permission to appeal to the Upper Tribunal against the decision of 5^th January 2012.  On 15^th June 2012 I gave procedural directions and on 18^th October 2012 I directed that there be an oral hearing of the appeal to the Upper Tribunal. This took place on 16^th April 2013. The patient opposes the appeal and supports the decision of the First-tier Tribunal.

 

 

The Relevant Law: The 1983 Act

 

11. The main statutory provisions that are relevant to this appeal are to be found in the Mental Health Act 1983 and, in so far as is relevant are set out below.

 

s. 72(1) Where application is made to the appropriate 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 a patient be discharged, and –

 

(a) [relates to a patient liable to be detained under section 2]

 

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied –

 

(i) that he is then suffering then from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

 

(ii) that it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment; or

 

(iia) that appropriate medical treatment is available for him …

 

s. 73(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if –

 

(a)   the tribunal is not satisfied as to the matters mentioned in … (b)(i), (ii) or (iia) of section 72(1) above; and

(b)  the tribunal is satisfied that it is not appropriate for the patient to be liable to be recalled to hospital for further treatment.

 

s. 73(2) Where in the case of any such patient as is mentioned in subsection (1) above –

(a) paragraph (a) of the subsection applies; but

(b) paragraph (b) of the subsection does not apply

 

The tribunal shall direct the conditional discharge of the patient.

 

…

 

s. 73(4) Where a patient is conditionally discharged under this section –

(a)   he may be recalled by the Secretary of State …; and

(b)  the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the Tribunal or at any subsequent time by the Secretary of State.

 

s. 73(5) The Secretary of State may from time to time vary any condition imposed (whether by the Tribunal or by him) under subsection (4) above.

 

s. 73(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.

 

s. 73(7) A Tribunal may defer a direction for conditional discharge of a patient until such arrangements as appear to the Tribunal to be necessary for that purpose have been made to its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes before the Tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.

 

S 74(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a … restriction direction, or where the case of such a patient is referred to the appropriate tribunal, the Tribunal -

 

(a)   shall notify the Secretary of State whether, in its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and

(b)  if the Tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that, in the event of his not being discharged under this section he should continue to be detained in hospital.

 

The Relevant Human Rights Law

 

12. The main relevant provisions of the Human Rights Act 1998 are as follows (“Convention rights” refers to the provisions of the European Convention on Human Rights):

 

s3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

 

s6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

s6(3) In this section "public authority" includes –

(a)   a court or tribunal

 

s7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) …

(b)  rely on the Convention right or rights concerned in any legal proceedings

 

13. For the purposes of the present appeal, the main relevant provisions of the European Convention on Human Rights are as follows:

 

Article 5:

 

5.1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

 

[The cases are:]

…

e. the lawful detention of … persons of unsound mind

…

 

5.4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

 

The First-tier Tribunal

 

14. The First-tier Tribunal noted that all of the witnesses said that the patient is a very different person from how he was in 1982 and that its task was to look at  the situation as it was at the time of the hearing and to consider the historical evidence in relation to the present day risk. It considered and reviewed a great deal of evidence but it is not necessary for me to go into any detail of that in this decision.

 

15. The tribunal was satisfied that the patient was suffering from mental disorder or from mental disorder of a nature which made it appropriate for him to be liable to be detained in a hospital for medical treatment, which was available, although it was not satisfied that it was necessary for the health and safety of the patient or for the protection of other persons that he receive such treatment. It considered that it was appropriate for the patient to remain liable to be recalled to hospital for further treatment and that conditions on his discharge were required. Thus, had he been subject to a restriction order under section 41, he would have been entitled to be conditionally discharged from liability to be detained in hospital, while remaining liable to be recalled for treatment should it become necessary. The tribunal would have deferred this conditional discharge until it was satisfied that the necessary arrangements had been made and, in the event of him not being discharged, would recommend that he continue to be detained in hospital.

 

16. In paragraph 15 of its statement of reasons he First-tier Tribunal included the following:

 

“(a) … it is necessary to be satisfied as to a suitable place in the community where the patient can be properly and safely managed …

(b) … Staff will support him at all times to see he is safe in the community and all others are safe …”

 

17. It is necessary to set out the proposed conditions in detail, although I have anonymised them. They were as follows:

 

“1. To reside at Lodge A [address given] or such other supported accommodation run by [Organisation B] as directed by Dr TW of Clinic C.

2. To comply with the rules of [Lodge A] or any other residence.

 

3. To comply with all directions of Dr TW in regards to his mental well-being.

 

4. To attend on Dr TW and/or the Clinical Forensic Team at Clinic C as he may be directed by Dr TW and/or his social supervisor.

 

5. To attend on his social supervisor as and when directed.

 

6. To attend for psychological treatment as directed by Dr TW and/or Dr RB Consultant Psychologist at [Clinic C].

 

7. During the first 13 weeks of residence at [Lodge A] not to leave the premises unless under the direction of the staff at [Lodge A] and thereafter only under the guidance of such staff.

 

8. To communicate to Dr TW or the social supervisor the fact of any relationship formed by him with any person, whether intimate or not, and to keep Dr TW informed of the progress and/or termination of any such relationship.

 

9. To refrain from consuming alcohol at all times.

 

10. To undergo any random testing deemed appropriate by Dr TW, the staff at [Lodge A], or his social supervisor.

 

11. To comply with any lawful requirement of MAPPA and Local Authority Child Care Services.

 

12. To comply with the care plan agreed with himself, the Clinical Team at “Lodge D” (and if necessary the RC at [the previous secure hospital] and the Clinical Forensic Team at [Clinic C], reviewed from time to time in accordance with the principles of the Care Programme Approach.”

 

The Grounds of Appeal

 

18. The Secretary of State’s grounds of appeal fall into two clusters. The first is that the First-tier Tribunal failed to give adequate reasons for its view that the patient did not need to be detained in hospital or for why it preferred other evidence and opinions over that of the clinical team who had been treating and dealing with the patient and regarded him as having anti-social personality disorder with narcissistic traits and as posing a significant and substantial risk to members of the public, particularly females; nor did it explain why the particular proposed conditions were considered necessary. The second is that the proposed conditions were not feasible for various reasons and would also amount to unlawful detention. In particular the combined effect of conditions 1 and 7 was that the patient would continue to be detained. The Trust supported these grounds and added arguments that the committal to the care of Dr TW (who did not consider that the patient had a mental disorder) was irrational, especially in the context that there had been no community leave at all.

 

19. It was argued on behalf of the patient that the First-tier Tribunal’s reasons “set out at length and with clarity a balanced summation of the evidence; the issues it needed to determine; its findings and why they preferred the evidence called on behalf of [the patient] as opposed to that of the Responsible Authority (and vice versa) on each of the discrete criteria”. The argument that the conditions amounted to an unlawful deprivation of liberty was rejected. Not every restriction on a patient amounted to detention, neither does being required to live at a particular place. The proposed discharge placement is a conventional residential property with live-in support staff. The patient would have the privacy of his own bedroom as well as shared communal facilities and “full access to the community and to leisure opportunities”. The restrictions on the patient’s movements were time limited.

 

20. There was a great deal of argument in both written and oral submissions over whether the findings of the First-tier Tribunal were irrational and/or adequately explained. In addition, the Trust sought to produce before me correspondence and minutes of a meeting dated 1^st October 2012 and a progress report on the patient dated 19^th March 2003. I do not really see how these documents can help me form a view on whether a decision of the First-tier Tribunal made on 5^th January 2012 was made in error of law, although they might well be part of the evidence placed before the new panel of the First-tier Tribunal.

 

21. Similarly, much of the argument before me related to conflicting opinions on the value of the expert evidence and occasionally the parties lost sight of the fact that the Upper Tribunal can only interfere with the decision of the First-tier Tribunal if it was made in error of law, not on the basis that its opinion as an expert tribunal was mistaken.

 

22. I base my decision on the argument that the conditions amounted to an unlawful deprivation of liberty. Since the new panel of the First-tier Tribunal will have to consider all relevant matters afresh, it is not necessary for me to form a view on whether the First-tier Tribunal decision of 5^th January 2012 was irrational or inadequately reasoned or whether the proposed conditions were professionally or financially or administratively unfeasible.

 

Unlawful Deprivation of Liberty

 

22. Although the parties did not refer explicitly to this, the Code of Practice (2008) states (in paragraph 1.3):

 

“1.3 People taking action without a patient’s consent must attempt to keep to a minimum the restrictions they impose on a patient’s liberty, having regard to the purpose for which the restrictions are imposed”.

 

This is referred to as the “least restriction principle” and is obviously correct and reflects the jurisdiction of the European Court of Human Rights (eg Witold Litwa v Poland Application 26629/95, 4^th April 2000).

 

23. A number of authorities were cited to me but it is only necessary to refer to two Court of Appeal decisions. I was invited to consider giving detailed guidance to the First-tier Tribunal generally but it seems to me inappropriaet in general terms to go beyond what the Court of Appeal said in the following cases. A judgment must be made in each particular case in accordance with that guidance.

 

24. In Secretary of State v MHRT and PH [2002] EWCA Civ 1868 the Court of Appeal considered the case of conditions imposed on the discharge of a 77 year old patient who had been detained in hospital for 44 years after being found unfit to plead to serious charges of violence and who was still suffering from chronic paranoid schizophrenia with fixed delusional beliefs. The conditions that were the subject of the dispute were that the patient must reside at suitable accommodation which provided 24 hours trained nursing care and daytime trained psychiatric nursing care and appropriate security, and that he “shall not leave the accommodation without an escort”.

 

25. The Court of Appeal noted that the jurisprudence of the European Court of Human Rights distinguished between restrictions on liberty of movement (which do not amount to a breach of article 5) and deprivation of liberty but that “the distinction is one merely of degree or intensity of restrictions, not of nature or substance” (paragraph 15). Matters to be taken into account included the actual situation of the patient, the type, duration, effects, manner of implementation and purpose(s) of the measure(s) in question (in particular whether they were to assist or protect the patient or whether they were the protection or safety of others) and their cumulative effect. It would not be lawful for a patient to be conditionally discharged but to, in effect, continue to be detained, albeit in a situation of lower security. It would be lawful for the patient to be required to reside in another (or even the same) institution, so long as the patient was no longer detained.

 

26. On the facts of the case the Court did not accept the Secretary of State’s argument that the conditions would inevitably place the patient in a regime that was so restrictive that that he would be deprived of his liberty, especially since there was evidence that in one of the proposed care homes the staffing arrangements would be such as to enable the patient to go out with an escort whenever he chose to do so.

 

27. Secretary of State v RB and Lancashire Care NHSFT and [2011] EWCA Civ 1698, [2012] 1 WLR 2043 was an appeal to the Court of Appeal from a decision of the Upper Tribunal ([2010] UKUT 454 (AAC), HM/1533/2010) in a case involving another patient with a persistent delusional disorder. The Upper Tribunal had upheld a series of conditions on the basis that although the patient would be deprived of his liberty, there was no lawful reason why the First-tier Tribunal could not conditionally discharge him to somewhere that was not a hospital if it were in the patient’s best interests to do so. The conditions imposed by the First-tier Tribunal and upheld by the Upper Tribunal included conditions that the patient live in a care home and not leave it without an escort. The Secretary of State successfully appealed to the Court of Appeal.

28. The Court of Appeal held that there was no power to detain a patient other than at a hospital (“A person cannot have his liberty taken away unless that is the clear effect of the statute” per Lady Justice Arden at paragraph 53), and a tribunal cannot rely on the patient’s best interests as a ground for ordering conditional discharge on terms that involve a deprivation of liberty.

 

Conclusions

 

29. It seems to me that the cumulative effect of the conditions of discharge would amount to detention and to an unlawful deprivation of liberty such that it could hardly be characterised as a discharge at all. It is clear that a major purpose of the conditions was the protection and safety of others. There was an enormous amount of power placed in the hands of Dr TW without any flexibility or arrangements for him to be substituted (see condition 1) or any requirement that his directions be reasonable or even lawful (see condition 3 as contrasted to condition 11). There was an unhealthy combination of this power exercisable by Dr TW and a requirement that the patient reside at any supported accommodation run by a specific organisation (and I understand that there are over 60 such establishments) as directed by Dr TW, again with no limitation as to reasonableness or geographical or other suitability. What was to happen after 13 weeks was unclear but condition 7 could be read as permanently preventing the patient from leaving his residence without the permission of the staff or under whatever conditions the staff (or Dr TW) saw fit to impose (whether reasonable or lawful or not). The requirement in condition 8 to communicate “any relationship” seems oppressively unclear and capable of arbitrary application by the relevant staff. “Relationship” is a very wide term and the condition explicitly does not limit its application to an “intimate” relationship. Does it include a nodding acquaintanceship? Seeing somebody more than once?

 

30. For the above reasons this appeal by the Secretary of State and the Trust succeeds and I make the orders set out in paragraphs 1 and 2 above.

 

 

 

H. Levenson

Judge of the Upper Tribunal

 

5^th July 2013