R (H) v Ashworth Hospital Authority and Others; R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Lord Justice Mummery,Lord Justice Simon Brown
Judgment Date28 June 2002
Neutral Citation[2002] EWCA Civ 923
Docket NumberCase No: C/2001/2550
CourtCourt of Appeal (Civil Division)
Date28 June 2002
The Queen on the Application of "H"
Ashworth Hospital Authority and Others
1st and 2nd Respondents
The Queen on the Application of Ashworth Hospital Authority
The Mental Health Review Tribunal for West Midlands and North West Region
The London Borough of Hammersmith and Fulham
3rd Respondent
Ealing, Hammersmith and Hounslow Health Authority
4th Respondent

[2002] EWCA Civ 923


Lord Justice Simon Brown

Lord Justice Mummery and

Lord Justice Dyson

Case No: C/2001/2550





(Mr Justice Stanley Burnton)

Royal Courts of Justice


London, WC2A 2LL

Lord Justice Dyson

Outline of the case


H has been a patient in Ashworth Special Hospital ("Ashworth") since 1994. Until 22 March 2001, he was detained there under section 3 of the Mental Health Act 1983 ("the Act"). On that date, the Mental Health Review Tribunal for West Midlands and North West Region ("the Tribunal") discharged him from detention. He did not leave hospital because he had nowhere to go. Instead, he remained as a voluntary patient. On 26 March, Dr Croy, H's Responsible Medical Officer ("RMO") signed a report on him for the purposes of section 5(2) of the Act. On 28 March, two registered medical practitioners, Dr Croy and Dr Silva, made written recommendations for the admission of H for treatment pursuant to section 3 of the Act. On 29 March, Ms Berry, an approved social worker ("ASW") for the purposes of the Act, made an application for the admission and detention of H pursuant to sections 3 and 13. At 16.40 on the same day, the managers of Ashworth acted on that application, and since that date have detained him for treatment under the Act.


On 29 March, Ashworth started judicial review proceedings against the Tribunal in which they contended that the decision of 22 March was legally flawed. On the same day, Stanley Burnton J gave permission to apply for judicial review, and made an order staying the carrying into effect of the decision, and granted an injunction prohibiting the release of H pursuant to it.


On 4 May 2001, H started judicial review proceedings in which he sought to challenge as unlawful the recommendations of Dr Croy and Dr Silva of 28 March, the application of Ms Berry of 29 March as well as the decision of the managers of Ashworth to admit H on that date.


The two proceedings were heard at the same time by Stanley Burnton J. In a clear and comprehensive judgment given on 9 November 2001, he upheld the challenge by Ashworth and quashed the decision of the Tribunal; and he dismissed the challenge by H to the acts of the doctors, the ASW and the hospital managers.


H now appeals against both decisions. So far as H is concerned, the outcome of these appeals is of no interest whatsoever. This is because, following his readmission to Ashworth on 29 March 2001, he applied to another tribunal for a discharge. On 4 April 2002, the tribunal decided that he should not be discharged. Nevertheless, the appeals raise issues of considerable importance in the field of mental health law. It is common ground that, if the judge was right to quash the decision of the Tribunal, then H was lawfully detained at the hospital under the procedures put in place prior to that decision, and that H's challenge to the decisions of Doctors Croy and Silva, Ms Berry and the managers of Ashworth fall away. That challenge is based on the premise that the Tribunal's decision was lawful. If the Tribunal's decision was lawful, the question whether he was lawfully detained remains, and that depends on the lawfulness of the decisions which led to his readmission on 29 March.

The background and events leading to the Tribunal's decision of 22 March


The admission of H to Ashworth was precipitated by an incident in July 1994, when he gained access to his ex-partner's house, chasing her with a knife. He punched and kicked her and placed his son in an arm-lock. Once admitted to a medium secure unit ("MSU") a few days later, he kicked down a door, assaulted the social worker and gained access to another ward, where he attacked a junior doctor striking him about 20 times with blows to the head. Following an assault on a secretary, he was transferred from the MSU to Ashworth.


H has a long history of violence going back to the early 1980s. He was convicted of criminal offences a number of times. On one occasion in 1984, he was transferred from prison to a mental hospital, having assaulted prison officers with an iron bar, and having set fire to his bedding. In the late 1980s, he was admitted to Broadmoor. He was released by a mental health review tribunal in 1991. There were subsequent relapses, and several further in-patient episodes until the incident in 1994 to which I have already referred. In 1993, he attacked a fellow patient, and at about the same time, he decided that the baby his wife was carrying was connected to the Devil and not his own, and should be killed. This provoked the attack that led to his detention in Ashworth.


Between 1994 and 1997, there were many examples of aggressive behaviour at Ashworth, including assaults on staff and patients. In 1998, his medication was substantially increased. Thereafter, his aggression continued, but at a reduced level: in particular, there were no further acts of physical violence.


Dr Williams was his RMO between September 1994 and April 1997. In January 1998, Dr Croy became his RMO. From time to time, he applied to a tribunal for discharge, but until 22 March 2001, all his applications were unsuccessful.

The documents before the Tribunal at the hearing on 22 March


There were before the Tribunal no fewer than 9 medical reports from 6 doctors, namely Drs Williams, Croy, Duncan, Cole, Lomax and Heads. Dr Duncan and Dr Lomax were psychiatrists who had been instructed by H's solicitors, and were independent of Ashworth. Dr Heads, of the Ealing Hammersmith and Fulham Mental Health Trust, wrote a report dated 2 October 2000 in which she said that H continued to require care and treatment in conditions of maximum security, and that he had not made enough progress to move to a long-term medium secure unit. In his report of 30 October 2000, Dr Lomax recommended that H be transferred to a MSU.


In her report of 26 February 2001, Dr Croy said that H's illness required him to be detained in hospital for treatment in the interests of his own health, his own safety and for the safety of others. His lack of insight and openness with staff, and the general level of his hostility would make it very difficult to supervise him in the community. She concluded her report:

"Should the long-term medium secure facility in H's home area agree that they could manage him in their unit, then I would support his transfer there. However, given their expressed concerns, it remains appropriate for him to be treated at Ashworth"


Dr Williams was of the opinion that H suffered from paranoid schizophrenia, but that the illness was no longer of a nature or degree that continued to require treatment in a hospital setting. In his report of 8 March 2001, he said:

"The symptoms of the illness are well controlled and he has gained full insight into illness. He intends to continue with his treatment on discharge and appreciates that he would need professional help to resettle in the community".


He strongly disagreed with the view of Dr Cole that H required long-term medium secure facilities. He was of the opinion that it would be appropriate for H to be discharged and made subject to supervision under section 25A of the Act.


In short, only Dr Williams thought that H was ready for discharge, but, according to his report, even he thought that H should be subject to an application for supervision upon discharge, ie liable to detention.


There were also reports by two social workers. Tita Ariola, a senior social worker employed by the London Borough of Hammersmith and Fulham ("LBH"), reported that if H were discharged, the local authority would not be able to provide appropriate accommodation, since he still needed a high level of care and supervision. She continued:

"The London Borough of Hammersmith and Fulham is hopeful that H will soon respond to treatment and rehabilitation. It seems, however, that an adequate and appropriate treatment management can still only be effected at Ashworth Hospital at this stage. Indeed, Dr Heads' report suggested that H still requires care and treatment in conditions of maximum security. The view of the local authority is that H meets the criteria for section 3 of the Mental Health Act 1983.

In view of this, Social Services feel that perhaps a transfer to a medium secure unit could be looked at again after reassessment at a later date by forensic psychiatrist at Three Bridges. If this is the decision of the Tribunal, gradual re-introduction to the community can then be effected from the Regional Secure Unit".


Tim Miles, a social worker at Ashworth, wrote that it was appropriate for H to remain detained in hospital for treatment, and that it would "seem advisable for his rehabilitation to be via an MSU where it could proceed by stages and where he and his potential community supervisors could establish a relationship prior to his eventual discharge".

The hearing on 22 March and the decision


Dr Croy presented the case for...

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