R (C) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 15 May 2002 |
| Neutral Citation | [2002] EWCA Civ 647 |
| Date | 15 May 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/1478 |
[2002] EWCA Civ 647
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Collins
Lord Phillips Mr
Lord Justice Jonathan Parker and
Lord Justice Dyson
Case No: C/2001/1478
Mr Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair for the Respondant)
Ms Nathalie Lieven (instructed by The Treasury Solicitor for the Appellant)
Introduction
This is the judgment of the Court in an appeal from the judgment of Collins J. which was delivered on 19 June 2001. The appeal first came before us on 10 December 2001. It was adjourned for further argument in the circumstances that we shall describe. The issue that it raises concerns the interpretation of s.71(1) of the Mental Health Act 1983 ("The Act"), which provides:
"The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal."
The question is what restrictions, if any, there are on the apparently unfettered discretion conferred by this provision.
The Facts
C is a patient in Broadmoor high secure hospital who is subject to a hospital order made pursuant to ss.37 and 41 of the Act following his conviction for various offences in 1988. In November 1999, he applied to the Mental Health Review Tribunal ("the Tribunal") for a discharge from hospital under s.70 of the Act. On 10 February 2000, the Tribunal adjourned the application for three months, inter alia, for a possible care plan to be prepared and for the production of a further report by Dr Isweran, C's responsible medical officer.
On 14 April 2000 Dr Isweran produced an addendum to his report saying that C continued to suffer from a psychopathic disorder and was not ready for a conditional discharge. That view was not, however, shared by the senior hospital social worker, Mr Jackson. In his report of 5 May 2000, Mr Jackson recommended that there should be a conditional discharge. He advised that it would be desirable that C should be placed in a hostel and have ready access to a psychiatrist or general practitioner with significant experience in psychiatric matters. His final recommendation was that C should be "conditionally discharged, deferred until such time as the conditions can be met".
C's case had also been considered by a Ms Roden, who is a social worker at Islington Borough Council. She formed the view, which she recorded in a manuscript document dated 7 February 2000, that if he were released into the community, C would require that there should be, as she put it, a "registered medical officer". By this she meant that C needed a supervising psychiatrist. On 4 May, Ms Roden produced a further report in which she listed thirteen needs that would have to be met if C were to be discharged conditionally. These included that C needed a "consultant psychiatrist in the community".
On 21 September, Mr Jackson produced an updated report in which he repeated his earlier views, and made it clear that C only needed to have access to a psychiatrist: he did not require supervision by a psychiatrist. He said:
"Access to a psychiatrist and supervision by a psychiatrist are quite different matters. If both were freely available, I would happily see [C] discharged to both. However, it appears – particularly in the light of the recent K case ( R v Camden and Islington Health Authority, ex parte K, 9 June 2000)– that it will be difficult to impossible to locate a psychiatric supervisor from the Camden and Islington Area."
There were a number of enclosures to Mr Jackson's report. One of these was described as an "amended statement of need". In his report, Mr Jackson described this as "amended statement of Need Roden/[C]/Jackson Sep OO". The document set out eleven needs, including at number 5 "needs easy access to a psychiatrist or suitable qualified GP". In addition, Mr Jackson produced a typed copy of the original manuscript assessment made by Ms Roden on 7 February 2000. However, he omitted the list of needs that had been attached to that report and the somewhat revised version of the list of needs contained in Ms Roden's report of May.
The hearing before the Tribunal took place on 11 and 12 October 2000. Oral evidence was given by Mr Jackson and Dr Isweran. Dr Isweran was of the opinion that if there were to be a conditional discharge, it should be subject to a condition of supervision by a psychiatrist. Mr Jackson maintained his position that a condition of access to a psychiatrist would be sufficient. The Tribunal was not made aware of the fact that Ms Roden shared Dr Isweran's view that the condition should be of supervision by a psychiatrist. The decision of the Tribunal was given on 13 October. It decided:
"The patient SHALL be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below".
At paragraph 6 of its decision, the Tribunal made the following findings:
"6. FINDINGS OF THE TRIBUNAL CONCERNING THE STATUTORY CRITERIA:
The Tribunal is obliged to direct the Absolute Discharge of the patient if the answer to any of the following questions (A) or (B) is "YES", and the answer to question (C) is also "YES".
The Tribunal is obliged to direct the Conditional Discharge of the patient if the answer to either of the questions (A) or (B) is "YES", but the answer to question (C) is "NO".
| Question | Decision of the Tribunal |
| A Is the Tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment? | YES |
| B Is the Tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment? | YES |
| C Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment? | NO" |
At paragraph 7 the Tribunal imposed the following conditions:
"1. That the patient be transferred to a hostel operated by the Langley House Trust which shall observe the regime as outlined at pages 15–19 of the report prepared by Mr W. R. Jackson dated 21 September 2000. We assume that the patient will go to the hostel in South London (Balham) which has been described to us, and decline to make any restriction upon the area in which such a hostel may be situated. We bear in mind that it would be in the patient's best interests to continue to receive the care and support of Miss Rogue and or Mr Jackson.
2. The patient will comply with the rules of the hostel, examples of which were read to us.
3. The patient will be overseen by a Social Supervisor and have access to such psychiatric treatment as he may need from time to time.
4. The patient will make no attempt to contact Helen Bailey or any members of her family in any way."
It will be seen, therefore, that the Tribunal accepted the recommendations made by Mr Jackson in relation to psychiatric treatment, and rejected the evidence of Dr Isweran. Shortly thereafter, Ms Roden learnt that the statement of needs that she had prepared had not been shown to the Tribunal. On 30 October, she wrote to the Tribunal enclosing a copy of her statement of need of May, highlighting the crucial differences to which we have referred. It was the fact that Ms Roden's report was not placed before the Tribunal that led the Secretary of State on 29 November to write referring C's case back for consideration by the Tribunal under s.71(1) of the Act.
In a witness statement dated 20 March 2001, Pamela Lutterloch, a civil servant in the Mental Health Unit of the Home Office, explains why the reference was made. She states (paragraph 9) that the
"apparent confusion over the documentation was very important because of the extreme rarity of a restricted patient being discharged without a condition of psychiatric supervision and the problems that this presents".
She goes on to identify the difficulties presented by a patient not having a supervising psychiatrist:
"10. There are approximately 1200 conditionally discharged patients in England and Wales subject to a restriction order under the 1983 Act. So far as colleagues currently in the Mental Health Unit and I are aware, there has only been one patient discharged into the community without the benefit of a named supervising psychiatrist. In that case, the Tribunal did not impose such a condition. This was because, having heard evidence from the Health Authority and social services department that they had made every effort but had been unable to find a psychiatrist in order to comply with conditions imposed in previous years i.e. both in 1997 and 1998, the Tribunal took the view that it would be wrong to impose such a condition. In the Claimant's case however, although there was no psychiatrist available in his catchment area who was prepared to supervise him, the possibility of a psychiatrist acting as supervisor from another area of the country, as had happened on the previous occasion that he was discharged, had not been explored. This was particularly because in Dr Isweran's view the Claimant was not yet ready for discharge as a hostel placement had not been identified. This is confirmed by Dr Isweran's report of 13 th September 2000 at page 218 of the...
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