R (KB) v South London and South West Region Mental Health Review Tribunal; R (B) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton,MR JUSTICE STANLEY BURNTON |
| Judgment Date | 23 April 2002 |
| Neutral Citation | [2002] EWHC 639 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 April 2002 |
| Docket Number | Case Nos: CO/2363/2001; CO/3130/2001; CO/3863/2001; CO/4052/2001; CO/4070/2001; CO/4598/2001; CO/97/2002 |
[2002] EWHC 639 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Stanley Burnton
Case Nos: CO/2363/2001; CO/3130/2001; CO/3863/2001; CO/4052/2001; CO/4070/2001; CO/4598/2001; CO/97/2002
Kris Gledhill and Mark Mullins (instructed by Harman & Harman, Kaim Todner, Stuart Miller & Co., Archers Solicitors, Galbraith Branley) Claimants
Eleanor Grey (instructed by the Treasury Solicitor) for the Defendant
Elizabeth Laing (instructed by the Solicitor to the Department of Health) for the Interested Party
Each of the Claimants is or was a patient detained under powers conferred by the Mental Health Act 1983 (“the Act”). They are referred to in this judgment by their initials. Each of them applied to a Mental Health Review Tribunal for the review of their detention. KB, MK, JR and TB made their applications to the Mental Health Review Tribunal for the South London and South and West Region (to which I shall refer as “South London”); GM, LB, PD and TB made their applications to the Mental Health Review Tribunal for the North London and East Region (“North London”).
In each case, the hearing arranged by the Tribunal was repeatedly adjourned.
PD was detained under section 2. His application was ultimately arranged to take place over 4 weeks after his application had been made. The Mental Health Review Tribunal Rules (“the Rules”) require the hearing of such an application to be fixed for a date no more than 7 days after the Tribunal's receipt of the application.
KB, LB, GM and JR had been detained under section 3 of the Act. The hearings of their applications for the review of their detentions took place between 9 weeks 5 days (in the case of KB) and over 22 weeks (in the case of JR) after the dates of their respective applications. LB's case did not in the event go before a Tribunal, because her Responsible Medical Officer (“RMO”) discharged her just over 8 weeks after her application, but still 3 weeks before the expected date of the hearing of her application. GM was discharged by the Tribunal; JR and KB were not.
MK was detained pursuant to an order made under section 37 of the Act on 17 July 2000 by the Crown Court, as varied on appeal, following proceedings under the Criminal Procedure (Insanity) Act 1964. She had been accused of arson with intent to endanger life. Her application for her discharge was eventually heard 9 weeks and 4 days after she made her application. She was discharged.
TB was convicted of two offences of indecent assault in 1999 and made subject to detention under section 37 and to a restriction order under section 41 of the Act. He made an application to the Tribunal on 11 July 2001. Following 2 cancellations, by 8 January 2002 no date for a hearing had been set, and proceedings for judicial review were begun. A hearing was set for 16 January 2002, but at the beginning of the hearing his solicitor applied to withdraw the application, and his application was granted. The time between application and hearing was 27 weeks.
These seven cases were ordered to be heard together by Munby J as lead cases thought to be representative of a number of cases in which mental health patients have sought judicial review following alleged delays to the hearings of their applications by the Tribunal.
The claims in these proceedings
The basic complaint of the Claimants concerns the delay between the making of their applications and the dates of the effective hearings of their applications before the Tribunal. Delays in Tribunal hearings may result in the unjustified detention of patients who, if their cases had been considered earlier, would have been discharged. Even when discharge is not directed (and it is only in a relatively small percentage of cases that the Tribunal directs discharge), the delay prolongs the period of uncertainty for the patient. Cancellations of hearings, particularly if repeated, have other consequences: distress and disappointment for the mentally vulnerable patient, the risk of damage to his or her relationship with the psychiatrists and staff of his or her hospital, loss of trust in the tribunal system, and the waste of scarce resources, as where a RMO or an independent psychiatrist witness cancels a clinic to accommodate a Tribunal hearing which in the event is cancelled shortly before it is due to take place. The effect of cancellations is described by a consultant forensic psychiatrist at South London and Maudsley NHS Trust in a letter dated 27 November 2001:
“I can confirm that I have had a number of cancelled tribunals over the last month. The clinical team and myself have generally been advised of a cancellation the day prior to the tribunal taking place. Whilst this can be wasteful of professionals’ time, it does have a marked detrimental effect on the patient's state of mind.
Clearly a tribunal can be as highly stressful process for the patients and much of the anxiety they experience is anticipation of the tribunal. For it to be cancelled at the last moment leaves them feeling upset, cheated and resentful. On one occasion I have been accused of (deliberately) sabotaging their (hoped for) discharge and on other occasions the independence of the review tribunal has been questioned.”
Article 5 of the European Convention on Human Rights provides, so far as relevant:
“RIGHT TO LIBERTY AND SECURITY
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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ….
4. Every one 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 [ à bref délai] by a court and his release ordered if the detention is not lawful.”
In England and Wales, the decision required by Article 5.4 as to the lawfulness of a mental patient's detention is entrusted to the Mental Health Review Tribunal. (The decisions of the Tribunal may be the subject of judicial review, but that is irrelevant for present purposes.) The Claimants contend that their rights to a speedy determination of the lawfulness of their detentions were infringed, by reason of the cancellations of their hearings and the delays before effective hearings could take place.
In addition, PD claims that the failure to hold a hearing in his case within 7 days of the Tribunal's receipt of his application was unlawful by reason of the breach of rule 31 of the Rules.
Some of the claim forms in these cases contain claims for declarations that individual cancellations of hearings were unlawful. These claims would require the Court to examine the decision of the person responsible for each cancellation. It is apparent that in many cases the cancellation was inevitable, for reasons that appear below, and after discussion the Claimants agreed not to seek such declarations.
The claims before me include claims for damages for infringement of the Claimants’ Convention rights. It was agreed during the course of the hearing that all questions of damages should go over to be determined, if necessary, in the light of my judgment on the issue of infringement.
The earliest application that is the subject of these proceedings was made in March 2001 and the latest in October 2001. The last effective hearing was in January 2002. It follows that the delays with which this judgment is concerned occurred in the North and South London regions between March 2001 and January 2002.
The Legislative Framework
Most of the relevant provisions of the Act and of the Rules were summarised in paragraphs [11] to [25] of the judgment of Lord Phillips MR in R (C) v London South and West Region Mental Health Review Tribunal [2001] EWCA Civ 1110, [2002] 1 WLR 176, and it is unnecessary for me to repeat them. That case was concerned with an application made by a patient detained under section 3. In the case of a section 2 patient (who may be detained for not more than 28 days under that section), Rule 31 requires the Tribunal to fix a date for a hearing of an application within 7 days of receipt of his or her application.
Section 37 of the Act confers powers on the Crown Court and a Magistrates’ Court to make a hospital order for the admission and detention of a mentally ill person who is convicted of an imprisonable offence other than one the punishment for which is fixed by law. By section 40, a hospital order authorises detention for an initial period of 6 months, which may be renewed indefinitely without an order of the Court.
“The position of a person admitted to hospital pursuant to a hospital order is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say over his disposal.”
( R. v. Birch (1989) 11 Cr. App. R (S) 202 at 210, Court of Appeal.)
Under section 41 of the Act, the Crown Court may make a restriction order in respect of such persons on the ground that “it is necessary for the protection of the public from serious harm” to do so. A restriction order applies special restrictions to the patient (who is a “restricted patient”), relating to the duration renewal and expiration of...
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