R (K) v Camden and Islington Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 2001 |
| Date | 21 February 2001 |
| Court | Court of Appeal (Civil Division) |
Court and Reference:Court of Appeal ; C/2000/2375
Lord Phillips MR, Buxton and Sedley LJJ
R Drabble QC and F Morris (instructed by Hodge Jones & Allen) for K; C Bear (instructed by Beachcroft Wansbroughs) for the Health Authority.
Whether a local health authority was obliged to provide psychiatric supervision to a restricted patient to allow a Tribunal ordered conditional discharge to put into effect.
K was a restricted patient, having been detained under s. 37 Mental Health Act 1983 with an order under s. 41 of the Act. On 16 August 1999, she was given a deferred conditional discharge by a Tribunal under s. 73 of the Act, including conditions of residence at home (with her parents) and supervision by a psychiatrist. The Tribunal had previously adjourned to allow the relevant psychiatrist to put forward his views as to suitability for discharge. After the Tribunal decision, the psychiatrist assessed K and concluded that she could not safely live at home, and so he would only offer her supervision if she was in a registered nursing home. The relevant health authority approached other psychiatrists in the area, but all agreed that it would not be safe to place K at her home. The failure to take steps to allow the Tribunal order to be put into effect (so that K remained a detained patient) was challenged on the basis that there was a breach of the duty under s. 117 Mental Health Act 1983 to provide aftercare, and that the failure to put into effect the decision of the Tribunal undermined the position of the Tribunal as the body designed to ensure compliance with Article 5(4) of theEuropean Convention on Human Rights (court ordered release from detention). The Health Authority's position was that it was for the doctors to exercise their professional judgment, and any impasse should involve the case being referred back to the Tribunal. The judge dismissed the application; permission to appeal was granted by a single Lord Justice.
1. This is the first of two appeals against judgments of Burton J. The second is in the case of R v Tower Hamlets Healthcare NHS Trust and Another ex p Count von B(otherwise known as Nicholas H). Permission to appeal in the latter case was granted by Schiemann LJ on 15 August 2000. Permission to appeal in this case was granted by May LJ on 5 September 2000. He directed that the two cases be heard either together or consecutively. We chose the latter course. In each case the Applicant was a patient compulsorily detained under the Mental Health Act 1983 (MHA). In each case a Mental Health Review Tribunal (a Tribunal) had ordered the discharge of the Applicant. In each case the Applicant sought judicial review on the basis that the Tribunal's order had unlawfully been prevented from being implemented by, in the first case, omissions and, in the second case, acts of the relevant professionals. Each appeal turns on a different narrow, though important, point of statutory construction. Each appeal raises wider issues of general importance. Each appeal involves areas of law and practice in relation to mental health of some complexity. I propose to decide only those narrow issues which are necessary to resolve the appeals. I shall, however, make some observations on the wider issues.
This Appeal
2. The material facts, the relevant legislation, the submissions made and the issues that they raised are clearly set out in Burton J's judgment. Rather than duplicate the exercise that he carried out I have annexed his judgment to my own. It will suffice at this point to give the briefest summary of the facts and issues.
3. Miss K was a restricted patient pursuant to ss. 37 and 41 MHA. On 16 August 1999 a Tribunal decided that she should be conditionally discharged pursuant to s. 73 MHA. This decision was contrary to the advice of Miss K's Responsible Medical Officer (RMO). The conditions specified by the Tribunal included a requirement that Miss K should reside at her parents' home in Wood Green, North London, and co-operate with supervision to be provided by a forensic Consultant Psychiatrist. The Respondent Health Authority is that for the area in which Miss K would be living when discharged. The Respondent Authority does not itself employ any forensic psychiatrists. Together with other health authorities in the London region it contracts for such services with the North London Forensic Service (NLFS), a specialist service forming part of the Enfield Community Care NHS Trust. The Respondent Authority took all steps that it reasonably could to obtain from the NLFS, and indeed from other sources, a forensic psychiatrist who would be prepared to supervise Miss K. They were unsuccessful, because no forensic psychiatrist was prepared to undertake the responsibility of supervising Miss K while she was living with her parents. All believed that the Tribunal had been mistaken in concluding that this was a viable course.
4. Faced with this impasse, Miss K's RMO wrote to the Home Secretary asking him to exercise his powers under s. 71(1) MHA to make a fresh reference of Miss K's case to a Tribunal. The Home Secretary complied with this request in November 1999. It was at this point that Miss K applied for judicial review.
5. Section 117 MHA places a Health Authority under a duty to provide after care services when a person in the position of Miss K is discharged from hospital. Miss K contended that, on true construction of this section, the Respondent Authority was under an absolute duty to provide her with psychiatric supervision in the community in order to implement the conditions imposed by the Tribunal. Burton J rejected this contention. He held that the Respondent Authority's duty did not go beyond taking all reasonable steps in an attempt to satisfy the conditions imposed by the Tribunal.
6. The narrow issue raised on this appeal is whether the Judge was right in his interpretation of s. 117 MHA or whether, as is contended on behalf of Miss K, that section imposed an absolute duty on the Respondent to provide services that satisfied the condition imposed by the Tribunal. The wider issues are whether, and if so how, the statutory regime satisfies the obligations imposed by Art 5 of the European Convention on Human Rights.
Subsequent Events
7. Immediately after the hearing that has given rise to this appeal, Burton J heard and rejected an application by Miss K for permission to apply for judicial review of the decision of the Secretary of State for the Home Department to make a fresh reference of her case to the Tribunal. That application was not renewed before this Court. The decision of the Tribunal was that Miss K should be conditionally discharged on condition that she 'reside in accommodation approved by her RMO' and 'accept … the supervision of her RMO'. No-one has challenged the legality of that decision. It follows that the issues raised on this appeal are, in one sense, academic. May LJ had this in mind but gave permission to appeal nonetheless because of the importance of the issues raised. Having heard argument, we concluded that it was appropriate that we should determine, at least, the narrow issue directly raised by the appeal. Before so doing I propose to consider a number of matters that are relevant by way of background.
The position under the European Convention on Human Rights
8. Article 5 of the ECHR provides:
"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…
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 the detention is not lawful."
9. In Winterwerp v The Netherlands (1979) 2 EHRR 387 at p401 the European Court observed:
"The Convention does not state what is to be understood by the words 'persons of unsound mind'. This term is not one that can be given a definitive interpretation: as was pointed out by the Commission, the Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitudes to mental illness change, in particular so that a greater understanding of the problems of mental patients is becoming more widespread."
10. The Court added at p403:
"In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - this is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
11. This passage has been repeatedly cited by the Court when dealing with the effect of Art 5(1)(e).
12. The question of whether the UK complied with Art 5(4) came before the European Court in X v UK (1981) 4 EHRR 188. At that time a Mental Health Review Tribunal provided advice to the Home Secretary as to whether or not he should exercise his power to discharge a patient who was subject to a restriction order. The Court held that this fell short of satisfying the requirements of Art 5(4):
"… the 1959 Act provides the opportunity for a periodic review on a comprehensive factual basis by Mental Health Review Tribunals. There is nothing to preclude a specialised body of this kind being considered as a 'court' within the meaning of Art...
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