R (H) v London North and East Region Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS MR |
| Judgment Date | 28 March 2001 |
| Neutral Citation | [2001] EWCA Civ 415 |
| Docket Number | Case No: C/2000/3539 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 2001 |
[2001] EWCA Civ 415
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Crane
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Kennedy and
Lord Justice Dyson
Case No: C/2000/3539
Mr Richard Gordon QC and Paul Bowen (instructed by Scott-Moncrieff, Harbour
& Sinclair for the Appellant)Ms Jenni Richards (instructed by Treasury Solicitor for the Respondent)
Mr Rabinder Singh (instructed by the Secretary of State for Health as Intervenor)
Introduction
This is the judgment of the Court.
On 15 September 1988, the appellant, whom we shall call 'H', was convicted of manslaughter. He was ordered to be detained in a hospital and to be subject to special restrictions pursuant to sections 37 and 41 of the Mental Health Act 1983 ("the Act"). He was admitted to Broadmoor Hospital. On 22 December 1999, he applied to the Mental Health Tribunal ("the tribunal") for a discharge pursuant to section 73 of the Act. On 29 March 2000, the tribunal decided that he should not be discharged from liability to be detained. H applied for judicial review of the decision of the tribunal. On 15 September 2000, Crane J. dismissed his application. Moreover, he refused to grant declaratory relief as to the compatibility of section 73 of the Act with Article 5(1) and (4) of the European Convention on Human Rights ("the Convention"). On 20 December 2000 the appellant obtained permission to appeal against these decisions from Laws L.J., who commented: "the appellant should be allowed to argue his Human Rights Act 1998 points". In the event the only issue that has been pursued before us has been the question of whether section 73 of the Act can be given an interpretation which is compatible with the Convention. That is a matter in which H has an interest. He is about to make a further application to the Mental Health Review Tribunal to be discharged from hospital. The true interpretation of section 73 may impact on the result of that application. The Secretary of State was given the requisite notice of an application by H for a declaration that section 73 is incompatible with H's rights under Article 5 of the Convention. He has appeared at this appeal, through his Counsel, Mr Rabinder Singh. Mr Singh has informed us that the Secretary of State wishes this court to make a declaration of incompatibility if it concludes that section 73 is not compatible with the Convention. The point is one of general importance and, in the circumstances, we have thought it right to entertain it.
The history of the proceedings
There were reports from two psychiatrists before the tribunal. Dr Basson was H's responsible medical officer ("RMO"). In his report dated 25 January 2000, Dr Basson referred to the diagnosis of schizophrenia, and said that since the commencement of antipschycotic medication in 1990, there had been an improvement in his mental state, and a marked decrease in the negative symptoms of his illness. He said that since the appellant was moved to the Windsor Ward, Broadmoor Hospital, in December 1996, there had been no positive symptoms of mental illness. He did, however, continue to show 'negative' symptoms of illness, and he still found it difficult to be motivated in relation to the future move to a regional secure unit. The negative symptoms were his lack of insight into (a) his illness, (b) his need for treatment and (c) the nature of his index offence. He concluded:
"Given [H's] recent improvement I think he may be able to be managed in a specialised hostel or hostel ward. I do not see him as being a danger to the general public. Those living in close proximity, if we take the index offence, are at risk if the living circumstances are inappropriate and/or the medication is inadequate."
In an addendum dated 29 February 2000, Dr Basson reported that his earlier report had been seen by staff from the North London Forensic Service who unanimously recommended long term medium security. He said that this was also the option favoured by the majority of the clinical team on Windsor Ward. In the addendum report, Dr Basson expressed his conclusion as follows:
"Given the above, the North London Forensic Service and Rehabilitation team at Broadmoor, advise that hostel accommodation providing the care this patient needs on initially leaving Broadmoor is not a realistic option and we should pursue the line of long term medium security. We have contacted the local authority to confirm the above view and they will do the appropriate assessment."
The second psychiatrist was Dr Somekh. In his report of 3 March 2000, he said that he was satisfied that H continued to suffer from a chronic paranoid schizophrenia which was currently well stabilised by his medication. It was noted that H was 'compliant with his medication even though he himself expresses doubts as to his need for it'. Dr Somekh raised the issue as to whether he needed continuing treatment in the hospital. He believed that the forensic psychiatry team were taking an unreasonably cautious approach in proposing a placement in long term medium security.
Both doctors gave evidence at the tribunal hearing. Both of them said that in their opinion H did not satisfy the conditions necessary for detention under the Act. Dr Basson said that he thought that if H went to a suitable hostel and continued to take his medication he would remain as well as he was at the present time.
Despite this evidence the tribunal concluded that H should not be discharged from hospital. In their written reasons the tribunal explained:
"The tribunal is of the opinion that this patient is (a) still exhibiting symptoms of his illness, namely the hearing of voices, (b) would not continue to take his medication… The tribunal are clear that this patient needs to be detained in hospital for treatment for his own health and safety."
The tribunal completed the standard Decision Form S73 by giving a negative answer to each of the following questions:
"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?
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."
Those questions reflect the provisions of section 73 of the Act. Before Crane J., junior Counsel Mr Bowen, on behalf of H, argued that the jurisprudence of the Strasbourg Court demonstrated that those questions were not appropriate and that section 73 was not compatible with the Convention. Before us Mr Gordon, Q.C., who did not appear below, suggested that it might be possible to interpret section 73 in a way that was compatible with the Convention and that was satisfactory to his client, but that should we not feel able to achieve this, we should make a declaration of incompatibility. Mr Gordon had obtained permission to advance a number of other grounds of appeal, but on instructions from H he did not pursue these.
Mr Gordon's submissions were founded on
i) the interrelationship of section 3 and section 72 and 73 of the Act.
ii) Article 5(1) and (4) of the Convention and the Strasbourg jurisprudence in relation to it.
H was admitted to hospital as a restricted patient pursuant to the provisions of sections 37 and 41 of the Act. For present purposes, however, it suffices to set out the following very similar provisions of the Act dealing with compulsory admission of an unrestricted patient for treatment in hospital under section 3(2). Section 3(2) reads:
"An application for admission for treatment may be made in respect of a patient on the grounds that-
(a)
he is suffering from mental illness, severe
mental impairment, psychopathic disorder or mental
impairment, and his mental disorder is of a nature or
degree which makes it appropriate for him to receive
medical treatment in a hospital; and
(b)
in the case of psychopathic disorder or mental
impairment, such treatment is likely to alleviate or
prevent a deterioration of his condition; and
(c)
it is necessary for the health or safety of the
patient or for the protection of other persons that he
should receive such treatment and it cannot be provided
unless he is detained under this section."
The relevant provisions for discharge of an unrestricted patient are set out in section 72(1)(b):
"The tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied-
(i)
that he is not then 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 him to be liable to be detained in a
hospital for medical treatment; or
(ii)
that it is not necessary for the health or safety of
the patient or for the protection of other persons that he
should receive such treatment…."
These apply to a restricted patient by virtue of section 73(1), which provides:
"Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or...
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