R (CS) v Mental Health Review Tribunal and Managers of Homerton Hospital
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHFORD |
| Judgment Date | 06 December 2004 |
| Neutral Citation | [2004] EWHC 2958 (Admin) |
| Docket Number | CO/786/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 December 2004 |
[2004] EWHC 2958 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Pitchford
CO/786/2004
MR STEPHEN SIMBLET (instructed by Hereward Forster Solicitors, 101 Barking Road, Canning Town, London E16 4HQ) appeared on behalf of the CLAIMANT
MS KRISTINA STERN (instructed by Treasury Solicitors, Queen's Anne's Chambers, 28 Broadway, London SW1H 9JS & Bevan Ashford, 1 Chancery Lane, London WC1A 1LF) appeared on behalf of the DEFENDANT & INTERESTED PARTY
The claimant, whom I shall call CS, has a clinical psychiatric history, diagnosed as paranoid schizophrenia. On 7th May 2003, CS was detained in hospital under section 3 Mental Health Act 1983. On 29th October 2003, her detention was renewed. She made application for discharge on 5th November 2003. A hearing took place on 2nd February 2004, having been adjourned from January. The tribunal made a decision that CS should not be discharged. It is that decision which CS now seeks to quash as unlawful and irrational.
Events have, however, overtaken the decision. In reality, the application is for a declaration that the claimant's detention was unlawful and damages for her unlawful detention under the Human Rights Act 1998.
Interim relief was refused on 20th February 2004 and permission to proceed was granted on 22nd April 2004.
The challenge to the decision is made on the ground, first, since CS's responsible medical officer (hereafter "RMO") was not seeking an actual admission to hospital, the statutory preconditions for an admission under section 3 were not made out and, as a matter of law, the claimant should have been discharged. Second, the tribunal's decision that CS should remain liable to recall to hospital was disproportionate and in breach of her rights under Article 5 ECHR. Argument on these grounds as developed before me was somewhat more refined, as I shall describe later in the course of my judgment.
It is necessary for me to recite a summary of events in the progress of CS's illness.
CS is aged 36, born in England. Her parents divorced when she was a young girl. She lived with her mother and brother until her mother's mental health deteriorated. At the age of 13, she moved to be cared for by her father and the family moved with some regularity throughout CS's childhood. She is an intelligent lady, who obtained A' levels and attended university to study French and Politics. She did not complete the course, but over a period of several years, working part time and under what must have been difficult circumstances, she achieved a degree in Fine Art.
CS was first admitted to Strauss Ward at St Bartholomew's Hospital (where it was then situated) on 23rd December 1991 at the age of about 23, having suffered a psychotic episode. On 9th January 1993 she was readmitted for five days, with a further transient psychotic episode. A third admission took place on 1st February 1993. There was, however, no further contact with Mental Health Services until 23rd February 1998.
At that time CS gave a history of having an average of five psychotic episodes per year, characterised by bizarre auditory and visual hallucinations. She was described as having "a strong personal philosophy as to the meaning and purpose of those episodes". She was cared for by her general practitioner and a small but extremely supportive group of friends. During episodes of psychosis she would require 24-hour care, which was provided by her friends. She was not at that time receiving medication.
However, on 29th June 1998, CS was arrested for an alleged offence of attempting to abduct a child. She was acting in a bizarre fashion and was admitted to hospital under section 2 of the Mental Health Act 1983, described as "psychotic, uncooperative and unpredictable". She was treated with Olanzapine and discharged after making good progress on 24th July 1998. She was released on a successful care programme and discharged from clinic on 4th November 1998.
A further admission to Strauss Ward (which had by this time moved to Homerton Hospital) took place on 5th May 2000 after a further psychotic episode. After a good response to Sulpiride, she was discharged on 24th May. Following discharge, CS discontinued her medication and her condition deteriorated until readmission on 7th July. She was then treated with Quetiapine and was discharged on 19th July. It was at this time that the diagnosis of paranoid schizophrenia was first made.
A further admission took place under section 3 on 2nd August 2001 and remained in place until 19th September 2001. CS was resistant to follow-up services and medication. Her next section 3 admission took place on 18th August 2002. She was now suffering florid psychotic symptoms, was vague and appeared to have been neglecting herself. She received Clopixol, an anti-psychotic. Her response was good and she was discharged on 13th November 2002, with follow-up care given by the Assertive Outreach Service (hereafter "AOS"). She again stopped her medication on discharge.
The Outreach Team saw a marked deterioration in CS's mental state during early 2003. Dr Mark Cross, her Outreach key worker, tried to persuade her to accept voluntary admission to hospital. She did accept medication, but not admission. She was therefore admitted under section 3 on 7th May 2003. CS had been refusing contact with AOS and said that she had felt unwell for some months.
Her family influences had been Catholic and Jewish. She had since followed Buddhism and Judaism. Three months before her admission she had worn a ring signifying her mother's faith and believed she had by that means betrayed the Buddhists and a group of Jewish mystics. She felt that she was being physically interfered with. She believed that she was destined to be united with a woman who was her true love. By wearing the ring, she had thwarted her destiny. She was now being punished physically. She was convinced that her life was over.
CS was treated with Risperidone. Response was slow. On 24th June 2003, for the first time, she was given overnight leave. It was a success. She was granted one week's leave on 15th July. Unhappily, there was an almost immediate decline. She was not taking her medication, nor taking care of herself. The Outreach Team found bags of vomit in her flat and she was recalled to hospital on 23rd July.
Following admission, medication was taken and improvement was sufficient to return to overnight leave on 27th August 2003. This was increased to a week's leave on 3rd September. By 19th September, CS's health was in decline again and she returned to hospital on 24th September.
A full review took place on 29th October. CS had ideas about, as she put it, "breaking the hex". She had caused spiritual death by offending both Jewish and Buddhist religions. The ideas appeared psychotic and fixed. She believed she was as good as dead. She felt hopeless. Her medication was changed to a depot injection of a typical anti-psychotic drug, Piportil, with a view to stabilising her intake of medication. Given recent events, the multi-disciplinary team considered CS should not be discharged from her section 3 detention, which was renewed on 29th October.
There were three primary considerations, which I take from the first witness statement of the RMO, Dr Sanders:
"• The very fixed nature of CS's psychotic symptoms, their distressing nature and the very significant impact they were having on her ability to care for herself.
• Ongoing concerns were expressed by CS's closest friends, who felt CS should remain under section at this time. CS's friends had previously been caring for CS's illness extremely competently for over ten years and felt that this episode was significantly more severe.
• CS's ongoing reluctance to take the medication that had previously been useful to her and her inability to accept the current episode as a mental illness made it impossible to treat CS appropriately on an informal basis."
Having met CS's two closest friends, Dr Sanders authorised leave for four hours on 4th November. At a meeting on 5th November it was agreed that depot medication had made a change for the better. Although she had been unsettled by a mental health review tribunal which had confirmed her detention and was upset by staff changes at AOS, her mental state had improved. At CS's request, a week's leave was granted, with support from AOS three times a week. CS's friends remained supportive.
By 3rd December, when she was seen on a ward round, CS was coping but her mental state had deteriorated somewhat. She said that she was "really unhappy" and said that she would not take her depot medication voluntarily. She did not think that she was mentally ill. She had stopped taking her oral anti-depressant medication. At this time CS was attending ward rounds once every three weeks.
On 17th December, CS agreed to try lithium therapy and to see a psychologist on the ward. She changed her mind about the lithium, but did see Dr Chippendall, the psychologist. Unfortunately CS wanted to see her own psychotherapist as well, a course which her RMO did not regard as beneficial.
On 24th December, Claire Gunson (CS's Outreach nurse) was not available to administer her depot medication at home. Miss Gunson went to CS's flat on 7th January 2004 and offered the injection. CS said no, she would not take it,...
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