Jasmin Djaba v west London Mental Health Trust and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Sales,Lady Justice Arden |
| Judgment Date | 28 June 2017 |
| Neutral Citation | [2017] EWCA Civ 436 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 2017 |
| Docket Number | Case No: C3/2016/3337,C3/2016/3337 |
[2017] EWCA Civ 436
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Jacobs
HM/0405/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice McCombe
and
Lord Justice Sales
Case No: C3/2016/3337
Kerry Bretherton QC and Fiona Paterson (instructed by Abbotstone Law) for the Appellant
Vikram Sachdeva QC (instructed by Bevan Brittan) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 25 May 2017
Approved Judgment
This is an appeal by Mr Jasmin Djaba from a decision of 19 July 2016 of the Upper Tribunal (Administrative Appeals Chamber) (Upper Tribunal Judge Jacobs) ("UT"), refusing to set aside a decision of 23 November 2015 of the First-tier Tribunal (Health, Education and Social Care Chamber) (Tribunal Judge Rickman, Dr M. Al-Yassiri and Mrs. R Sekhawat) ("FTT") that the appellant should not be discharged from liability to be detained for medical treatment. The appellant appeals with permission given by Moore-Bick LJ by order of 10 November 2016 on the basis that this second appeal raises a point of principle and that it had sufficient prospect of success to warrant the grant of permission.
By my direction this case appeared in the court's lists with the appellant's name anonymised. However, at the hearing, we revoked that direction for the future, since we were informed by Ms Bretherton QC (for the appellant) that Mr Djaba, with the full concurrence of his litigation friend, wished his case to have normal publicity. Accordingly, the appellant's full name appears in this judgment and will so appear in court documents, absent any further order to the contrary.
As appears in paragraph 3 of the Grounds of Appeal, the appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 ("MHA") require a "proportionality assessment" to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms ("ECHR") and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. Some limited summary of the background facts and procedural history of the case are necessary as follows.
The appellant was born in 1980 to a family of West African origin. It is said in the written decision of the FTT (para 1.1) that he was born in the United Kingdom but moved to Ghana with his mother at the age of 8. He returned to the UK when aged 21. He became unwell while living in Ghana and, it appears, he was admitted to psychiatric hospitals on more than one occasion while living there. He was first admitted to hospital in this country in 2002 and there followed a number of other admissions arising from his non-compliance with medication regimes. His current admission began in 2007. In 2008 he was transferred to medium security conditions because of his aggressive behaviour and he was detained in various hospitals until his transfer to Broadmoor Hospital in 2009.
On 26 July 2012, in the Crown Court at Reading, he was found to be unfit to plead to an indictment charging him with three offences, involving unlawful wounding and assault occasioning actual bodily harm, contrary to sections 20 and 47 (respectively) of the Offences against the Person Act 1861. Two of the offences were said to have occurred in July 2009. The first happened when he lost his temper when his mobile telephone ran out of credit and he repeatedly punched the victim, causing him severe bruising to the face and head, bleeding and whiplash. The second incident related to an occasion when he attacked members of the care team attempting to administer medication. The third offence alleged was in January 2011 when he attacked his victim while under escort from a shower room at the hospital; he punched the victim six times, causing injuries, including a fractured eye socket. He was found to have committed the acts underlying the offences charged and the court imposed a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 ("MHA"). He is, therefore, a "restricted patient" for the purposes of the MHA. He had no history of violence prior to his detention and all the recorded violence has been in hospital surroundings.
The appellant has been kept in secluded conditions since admission to Broadmoor and, since 2014, he has been accommodated in what is called "a super seclusion suite" built entirely for the purposes of his confinement. This suite consists of a small room divided into two parts, with a secure partition between the two sections. Save for reviews to assess his health, no one is permitted to enter the room without the partition being in place. Treating staff have to enter the room wearing personal protective equipment (including shields, helmets and visors), as the appellant is highly resistant to receiving his depot medication, which has to be administered forcibly. Limited interventions are made to enable visits by the appellant to communal areas of the hospital, but always with the use of mechanical restraints and accompaniment by several staff members. Until the intervention of his present solicitors, the appellant had not had face-to-face contact with his mother, other members of his family or with friends for a number of years.
The FTT decision records further incidents of varying seriousness and other occasions when the appellant himself has suffered injury, including a shoulder dislocation twice. At the hearing of the appeal, we were also taken to parts of the fuller medical evidence that was before the FTT dealing with the numerous incidents of extreme behaviour by the appellant that have led to the decisions as to his treatment and management in the secluded conditions described above. It is not for us on this appeal to review that material or the decisions of the clinicians that have been made on the basis of it. The appeal is concerned solely with the issue of principle which I have already outlined.
The appellant did not exercise his right of appeal to the FTT (under MHA s.70) in the first three years of detention, although it is accepted that he would have been reminded of his right to do so in accordance with normal statutory procedures. As a result, the Secretary of State, pursuant to his duty under MHA s.71(2), referred the case to the FTT, thus triggering a review of the detention.
The relevant sections of the MHA were sections 73 (power to discharge restricted patients) (applying by reference criteria set out in s.72) and 145 (interpretation) which provide as follows:
" 72 Powers of tribunals
(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 or is a community patient, the tribunal may in any case direct that the patient be discharged, and –
…
(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 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 of 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; …
73 Power to discharge restricted patients
(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 paragraph (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 remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above –
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.
145 Interpretation
(1) In this Act, unless the context otherwise requires –
…
'medical treatment' includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below);
…
(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening or, the disorder or one or more of its symptoms or manifestations."
The hearing before the FTT was opened at the hospital on 14 November 2015 when directions were given; the case was heard substantively (again at the hospital) on 20 and 21 November 2015. The appellant was represented (as now) by Ms Bretherton QC and his solicitor, Ms Luscombe. He was then seeking either a conditional discharge or an extra-statutory recommendation by the FTT for his transfer to a different hospital.
The FTT decision records that the appellant attended the hearing wearing mechanical restraints throughout. It is stated that he interrupted proceedings frequently and was warned that he might be excluded. However, it appears from the record that he gave oral evidence.
The decision was announced at the end of the hearing and the reasons were given in the written decision of 23 November 2015. The formal grounds of the decision were:
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