R (on the application of Lee-Hirons) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lady Hale,Lord Kerr,Lord Reed,Lord Toulson |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] UKSC 46 |
| Court | Supreme Court |
[2016] UKSC 46
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Toulson
Appellant
Jenni Richards QC John McKendrick QC
(Instructed by Stephens Scown LLP)
Respondent
Martin Chamberlain QC Oliver Jones
(Instructed by The Government Legal Department)
Heard on 26 April 2016
(with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agree)
A man is convicted of an offence. Satisfied that he is suffering from mental disorder, the court makes an order for his detention in hospital. Satisfied that it is necessary for the protection of the public, the court also makes a restriction order, which removes from the hospital the power to discharge him. In due course a tribunal directs his discharge from hospital on conditions. Afterwards, however, the Secretary of State for Justice ("the Minister") exercises his power to recall the man to hospital, where he is subject to renewed detention. This appeal is about the explanation for the recall which the law requires the Minister to provide to the man both at the time of his recall and soon afterwards.
In this case the explanation provided on behalf of the Minister, the respondent, to Mr Lee-Hirons, the appellant, at the time of his recall was simply that his mental health had deteriorated. This generates three questions:
(1) Was such an explanation legally sufficient?
(2) If not, did it make the appellant's renewed detention unlawful?
(3) If his detention was unlawful, should the court formally so declare and, in particular, should it award him damages for it and, if so, how much?
Fifteen days after the appellant's recall, a fuller oral explanation for it was provided to him. The Minister concedes that each of two separate legal principles required it to have been provided to him within three days of the recall and indeed in writing. These conceded breaches of the appellant's rights generate three further questions:
(4) Did the breaches make the appellant's detention between the third and the fifteenth days following his recall unlawful?
(5) If so, should the court formally so declare and, in particular, should it award him damages and, if so, how much?
(6) Even if they did not make his detention unlawful, should the court make the breaches the subject of a formal declaration and, in particular, should it award him damages for them and, if so, how much?
The appellant appeals against the order of the Court of Appeal dated 1 May 2014, whereby it dismissed his appeal against the dismissal of his application for judicial review of the Minister's explanations to him: [2014] EWCA Civ 553, [2015] QB 385. The leading judgment was given by Sir Stanley Burnton; and Jackson LJ (who added some observations of his own) and Patten LJ both agreed with it. In effect the answers to the questions given by the Court of Appeal were:
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(1) Yes.
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(2) Not applicable.
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(3) Not applicable.
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(4) No.
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(5) Not applicable.
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(6) Not addressed but the court's order means no.
The appellant is aged 49. He has the misfortune to have suffered protracted mental disorder, namely a personality disorder and a chronic paranoid delusional disorder. The question whether he has also suffered mental illness, in particular paranoid schizophrenia, has for long been the subject of clinical disagreement. He has a long history of admission to psychiatric hospitals.
The appellant has 61 convictions for a variety of offences. In 2006 he was convicted of offences of arson and burglary. In the light of the nature or degree of his mental disorder and of all the other circumstances, the court then made a "hospital order" pursuant to section 37 of the Mental Health Act 1983 ("the Act"), by which it authorised his admission to and detention in a secure hospital. But, in the light of the perceived need to protect the public from serious harm, the court then also made a "restriction order" pursuant to section 41 of the Act, by which the power to discharge the appellant was removed from the hospital and vested in the Minister or the First-tier Tribunal (Health, Education and Social Care Chamber). By section 79(1) of the Act, the appellant thereby became a "restricted patient" for the purposes of Part V of it.
The appellant's detention took place in medium-secure hospitals first in Dawlish and, from 2009, in Doncaster. On 27 April 2012, under section 73(2) of the Act, the First-tier Tribunal made a direction, which on 24 August 2011 it had in principle resolved to make but had deferred, that he should be conditionally discharged from the hospital in Doncaster. In so directing, the tribunal overruled the concerns of the appellant's responsible clinician that the risks of his discharge, even on a conditional basis, were too great. Having received evidence from Mr Hart, the appellant's proposed social supervisor at a registered care home for ex-offenders in Lancaster, the tribunal approved a plan that the appellant should move there on 11 June 2012. There were eight conditions, including that he should reside only at places approved by Mr Hart, that he should accept treatment directed by whoever was to become his responsible clinician, that he should not drink alcohol, that he should not approach members of the public in order to promote his (very intense) religious beliefs and that he should not contact an identified woman.
From 11 June 2012 to 19 July 2012 the appellant resided at the care home in Lancaster.
On 19 July 2012 both Mr Hart, who had indeed become the appellant's social supervisor at the home, Ms Weldon, who was a psychologist attached to the home, and Dr Omar, who had become his responsible clinician in Lancaster, resolved to invite the Minister to consider whether to exercise his power under sections 42(3) and 73(4)(a) of the Act to recall the appellant to a secure hospital. That afternoon Mr Hart telephoned Mr Elliott, who was a senior case-worker at the National Offender Management Service within the Ministry of Justice ("the Ministry"). Mr Elliott was responsible for acting on behalf of the Minister in deciding whether to recall conditionally discharged patients to hospital. Immediately after their conversation, Mr Hart sent to Mr Elliott, by email, a statement in which he outlined the concerns of himself and of Ms Weldon, who had together seen the appellant that morning, and of Dr Omar. In the statement Mr Hart suggested that in the appellant there was a greater component of mental illness (as opposed to other types of mental disorder) than had at first been observed; that his mental health had deteriorated; that he had become fixated upon securing change of the conditions of his discharge; that he had been craving alcohol; that his presentation had become more unpredictable; that he had threatened to assault somebody; that he had been ranting and swearing in the office; that, against Dr Omar's advice, he had refused to take all medication; that he was likely to abscond and thereupon to abuse alcohol and to seek to contact the woman identified in one of the conditions; that the only option was to recall him; and that a bed was available for him in a medium-secure hospital in Manchester.
Mr Elliott immediately resolved that the appellant should be recalled to the hospital in Manchester. One hour after receiving Mr Hart's email, he sent to Mr Hart by email a warrant for the appellant's recall. It recited no reason for the recall. When, however, Mr Hart thereupon informed the appellant that he had been recalled to a hospital in Manchester, he added that the reason for his recall was that his mental health had deteriorated. No fuller explanation was provided to the appellant that day; and, as I have indicated, the warrant with which he was then served would not have enlightened him. That evening police officers took him from Lancaster to the hospital in Manchester. He was unhappy but cooperative. Mr Hart at once confirmed to Mr Elliott by email that the warrant had been executed.
Nothing in the evidence casts doubt on the appellant's assertions that, when he arrived there, the hospital in Manchester knew nothing about him; that, during that evening, Dr Kasmi, a consultant forensic psychiatrist who was to become his responsible clinician there, asked him why he had been recalled; and that even two days later the nursing staff remained unable to explain to him the reasons for his recall.
Within a month of recalling a restricted patient to hospital, the Minister is obliged by section 75(1)(a) of the Act to refer his case to the First-tier Tribunal. In the appellant's case the Minister did so at once, namely on 20 July 2012.
On 24 July 2012 an officer in the Ministry, not Mr Elliott, sent a profoundly unsatisfactory letter to the hospital in Manchester. It was no doubt intended to be addressed to the appellant's responsible clinician there, namely Dr Kasmi. But it was addressed to Dr Omar even though the writer should have been well aware that he had been the appellant's responsible clinician in Lancaster. It enclosed a copy of the warrant which, for some reason, the writer understood not yet to have been executed. The writer was equally unaware of the fact that the Minister had already referred the appellant's case to the tribunal. In the letter the writer stated that the appellant should be informed of the reasons for his recall within 72 hours of admission; but 72 hours had passed by the date of the letter. Nor did the letter in any way identify the reasons for the recall; it did not even attach the statement which Mr Hart had emailed to Mr Elliott on 19 July. One surely needs to hope that the letter represents an isolated example of incompetence and that it does not betoken within...
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