R (G) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 07 October 2004 |
| Neutral Citation | [2004] EWHC 2193 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 October 2004 |
| Docket Number | Case No: CO/2606/2004 |
[2004] EWHC 2193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Collins
Case No: CO/2606/2004
Mr Paul Bowen (instructed by Scott-Moncieff, Harbour & Sinclair, Solicitors) for the Claimant
Miss Kristina Stern (instructed by the Treasury Solicitor for the Defendants
Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department (Interested Party).
The claimant, who is now 67, attempted to strangle his 10 year old niece and raped her mother in 1966. He was found unfit to plead when he appeared at court in early 1967 and was admitted to Broadmoor Hospital in accordance with the provisions of Section 5 of the Criminal Procedure (Insanity) Act 1964. He is treated as if he were committed to hospital under Sections 37 and 41 of the Mental Health Act 1983, that is to say, subject to a hospital order and a restriction order without limitation of time.
He suffers from paranoid schizophrenia. He has been treated over the years so that by 15 July 2003 a Mental Health Review Tribunal felt able to decide that he could be discharged conditionally. An absolute discharge was not considered appropriate since the claimant should remain liable to be recalled to hospital for further treatment. Furthermore, the tribunal was not prepared to order an immediate conditional discharge since it was satisfied that there should be a deferment until the conditions which it considered necessary were able to be fulfilled by means of a discharge plan which the clinical team having charge of him thought must be put in place. The conditions were as follows: -
1). To reside at [a named] hostel
2). To accept supervision and treatment as directed by his RMO.
3). To accept social supervision from the appointed supervisor.
Unfortunately, the hostel which it was believed would accommodate the claimant decided after all that it could not. Efforts to find an alternative placement have proved unsuccessful. A tribunal has reconsidered his case on three subsequent occasions, namely 14 October 2003, 5 January 2004 and 9 March 2004. At the first two of those the tribunal adjourned the matter in the hope that suitable arrangements could be made and a hostel prepared to accept the claimant could be found. It is the decision of the tribunal of 9 March 2004 which is the subject of this claim since it was and remains clear that it is unlikely that it will be possible to fulfil the conditions imposed in July 2003 in that no hostel can be found. That being so, the tribunal will have no option but to revoke the conditional discharge. That is because the deferment means that the order is regarded as provisional (see R(H) v Secretary of State for the Home Department [2003] 3 W.L.R. 1278) and so can be reconsidered if circumstances change. In R(H) v Secretary of State for the Home Department Lord Bingham approved what had been said by Lord Phillips M.R. in the Court of Appeal (see [2003] 3 W.L.R. at p.1295 Paragraph 23): -
"Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the tribunal. Such material may, for instance, show that the patients' condition has relapsed. It may show that the patient's condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a provisional decision, and the tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time".
In the 1980s the claimant had been discharged conditionally but it had not worked out and in 1987 he was recalled to Broadmoor following a serious assault on a pregnant nurse at the Maudsley Hospital to which he had been transferred. In 1995 he assaulted a male nurse and tried to strangle him at a hospital to which he had been transferred from Broadmoor and so he was again recalled. There were several serious assaults in Broadmoor in 1995 but since then his condition has improved and he has remained symptom free. In March 2000 he was transferred to Thornford Park Hospital, a private sector psychiatric hospital. He has worked through the rehabilitation service at the hospital and his present situation was described by the defendants as follows: -
"Since the hearing in July 2003 there has been no significant change in G's mental state. His condition remains stable and his symptoms are well controlled by anti-psychotic medication with which he self-medicates as prescribed. His behaviour on the ward has been appropriate at all times, he has presented no management problems and there have been no incidents of inappropriate behaviours of any kind towards other patients or staff. He has been granted unescorted Section 17 leave of up to 6 hours a day which he has taken without problems, visiting Newbury and Reading. He had lived in rehabilitation flat at Thornford Park Hospital since January 2003 largely caring for himself including cooking, cleaning and financial management. There have been no problems with his self-care. He engages well with his care team and involves himself in OT and visits the gym".
He attended the hearing of his claim on unescorted leave.
The defendants' view was that he remained ready for conditional discharge provided that he resided at accommodation which could give him an appropriate level of medical and nursing support and supervision. This was necessary to minimise the risk of relapse and to manage it if it occurred particularly having regard to his limited insight. Any signs of a deterioration had to be detected as early as possible because a relapse would be likely to increase the risk of sexually inappropriate or violent behaviour. The defendants accepted the evidence of the claimant's RMO, which was in any event not in dispute. They record it as follows in paragraphs 8 to 10 of their very full reasons: -
""8. The factual evidence of the RMO, Dr Pearson, was not in dispute and we accept it. As a detained patient G has his own rehabilitation flat which is within the main secure hospital building. He is expected to abide by the 'house rules'. He has leave granted to him, under s. 17. Access to and from the grounds is only by way of secure and substantial security gates operated by remote control and video some distance from the reception entrance to the main building. When he wishes to go out he is required to agree with staff the times of leaving and return and where he will be going. He is only permitted to take leave during daylight hours. If he wishes to go out at other times unescorted, staff will have to make a decision whether he can go out or not. They may refuse. He has his own electronic key which enables him to get from his flat to the reception area. If he is going out he surrenders his key and is let through the 'air lock'. Once outside the building he has to request that the electronic main gate is opened in order to leave the grounds. On his return he must signal for the main gate to be opened, request to be let in through the 'air lock' and is then given his key by reception. If he is in 'breach' he is at risk of having his leave withdrawn. He can be forcibly returned to the hospital if necessary.
9. As a conditionally discharged patient Dr Pearson acknowledged that in practical day to day terms the regime for G would be very similar. He would be required to enter into a 'contract' which defines his rights and obligations and would, for example, require him to abide by the 'house rules'. The house rules would remain the same and it may be difficult to change them so as to accommodate the individual circumstances of a conditionally discharged patient, particularly if it involved a change of policy. Although G's legal status will have changed and he would have the theoretical right to leave the hospital, in practice he would be expected to agree 'leave' with the Primary Care Nurse under Dr Pearson's supervision as the RMO. He would only be permitted to leave the hospital during daylight hours. If he wished to go out at times which are not agreed or he is in breach of his 'contract' this could cause management difficulties and the 'contract' would have to be reconsidered. Dr Pearson might have to consider asking the Home Secretary to recall him or even consider re-examining him. The procedures when G wished to go out would be the same as now (surrendering his key etc). The arrangements for his supervision would also remain the same as now.
10. Dr Pearson suggested that G's initial residency at Thornford Park may assist in finding another placement when he has had an opportunity to 'prove' himself. We are sceptical about this but in any event do not think it has a bearing on the central issue we have to decide. He also suggested at one point that the 'contract' could be seen as a way of giving G additional choices but he accepted that this is a rather tenuous argument. Dr Pearson also confirmed to us that Thornford Park has not previously taken conditionally discharged patients. We understand that it was commissioned in the private sector to treat mainly restricted patients many of whom were transferred from Broadmoor and similar institutions".
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