R (H) v Secretary of State for the Home Department and another; R (on the application of IH) v Nottinghamshire Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judgment Date | 15 May 2002 |
| Neutral Citation | [2002] EWCA Civ 646 |
| Date | 15 May 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/2810 |
[2002] EWCA Civ 646
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
The Hon Mr Justice Bell
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Phillips, Master of the Rolls
Lord Justice Jonathan Parker and
Lord Justice Dyson
Case No: C/2001/2810
Tim Owen QC and Miss Aswini Weereratne (instructed by David Mylan for the Appellant)
Philip Havers QC and Nathalie Lieven (instructed by The Treasury Solicitor for the Respondents)
Lisa Giovanetti (instructed by The Treasury Solicitor for MHRT an interested party)
Kristina Stern (instructed by Hempsons) for the Nottinghamshire Healthcare NHS Trust an interested party
Mr Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair for Appellant 'C' an interested party)
Lord Phillips MR :
This is the judgment of the Court.
IH has since 1995 been detained in Rampton Special Hospital. He was transferred there on a warrant issued by the Home Secretary, having been found not guilty by reason of insanity of a charge of causing grievous bodily harm with intent. His status is the same as that of a restricted patient without limit of time under ss.37 and 41 of the Mental Health Act 1983 ('the Act'). He contends that for a period of approximately two years, ending in March of this year, his detention violated Article 5 of the European Convention on Human Rights ('the Convention') and that this came about because the relevant legislation is incompatible with the Convention. He seeks a declaration to that effect.
Bell J. held that the relevant legislation could be interpreted in a manner compatible with the Convention, albeit on a basis that was incompatible with the decision of the House of Lords in Campbell v Secretary of State for the Home Department [1988] 1 AC 120. For IH, Mr Tim Owen QC obtained permission to appeal from Bell J. in order to challenge that conclusion. His initial stance was that, whether or not Campbell required to be reviewed in the light of the Human Rights Act 1998, and he suggested that it did not, no re-interpretation of the legislation could provide the answer to the problem that has arisen in this case. That problem is the impasse that can develop where a Mental Health Review Tribunal ('a Tribunal') determines that a restricted patient is entitled to release on condition that he receives psychiatric supervision, but no psychiatrist can be found who is prepared to provide that supervision.
Bell J. recorded, at paragraph 57 of his judgment, that Mr Owen wished to argue that 'the law as it stands at present fails to take account of the fact that a psychiatrist who is asked to supervise a conditionally discharged patient is, as he would argue, a "public authority" for the purposes of ss.6 and 7 of the Human Rights Act, but he accepted that he must save that argument for another day'. Shortly before the hearing of this appeal, Mr Owen made it plain that he wished to pursue this submission before us. For a number of reasons, which we shall explain in due course, we held that it was not open to him to do so. It follows that our major task is to review the decision in Campbell in the light of the Convention. That is a task of some importance. It is also one which bears upon the issue in an appeal that we heard last term in The Queen (on the application of C) v the Secretary of State for the Home Department ("C"). While preparing our judgment in that case, we learnt of the appeal pending in this one and directed that C should be restored for further argument at the time of the hearing of this appeal. We shall in this judgment refer to some of the submissions made by Counsel in C in the course of this hearing, but will give a separate judgment in C immediately after this judgment.
The statutory scheme
The statutory provisions to which we are about to refer are intended to give effect to the following provisions of the Convention:
Article 5(1): Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…
(e) the lawful detention of …persons of unsound mind…
Article 5(4): Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.
The primary protection against unlawful detention of patients detained under the Mental Health Act lies in a reference or application to a Tribunal. The regime differs to some extent depending upon whether or not the patient is a restricted patient. Under s.70 of the Act a restricted patient can apply to a Tribunal once every 12 months. Under s.71, the Secretary of State can refer the case of a restricted patient to a Tribunal at any time and must do so if the patient has been detained for three years without having his case considered by a Tribunal.
S.72 of the Act provides for the circumstances in which a patient other than a restricted patient is entitled to be discharged. At the material time the relevant provisions read as follows:
"(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and –
(a) …..
(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 one 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;"
S.73 of the Act deals with the position of restricted patients by reference to s.72 of the Act. At the material time it provided as follows:
"(1) … the tribunal shall direct the absolute discharge of the patient if satisfied –
(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matters referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient."
S.73(4) entitles the Secretary of State to recall to hospital a patient who has been conditionally discharged. The subsection also requires the patient to comply with 'such conditions (if any) as may have been imposed at the time of discharge'.
S.73(7) is the most critical sub-section in the context of this appeal. It provides:
"A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for the purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given."
The provisions of ss.72 and 73 were designed to accord with the requirements of Article 5(1)(e) and 5(4) of the Convention, having particular regard to the decision of the Strasbourg Court in X v United Kingdom (1981) 4 EHRR 188. The exercise was not wholly successful, as this Court identified in R(H) v Mental Health Review Tribunal North & East London Region [2001] 3 WLR 512. In consequence of that decision, the provisions of s.72(1) that we have set out were amended on 26 November 2001 in order to make them compliant with the Convention. Whereas, prior to that date, a Tribunal was required to discharge a patient only if satisfied that the conditions for detention no longer prevailed, now the Tribunal has to discharge a patient unless satisfied that the conditions for detention continue to be satisfied. However, the legislative scheme has not altered and the issues that we have to resolve arise equally in respect of the legislation in its amended form.
S.117 applies to (among others) patients who have been admitted to hospital pursuant to an order under s.37, and then cease to be detained and leave hospital. By s.117(2):
"It shall be the duty of the Health Authority and of the local social services to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services, but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject".
By s.117(3) the relevant authorities are those for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he is detained.
The facts
We shall incorporate,...
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