R(on the application of LV) v Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 15 May 2014 |
| Neutral Citation | [2014] EWHC 1495 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3230/2012,CO/3230/2012 |
| Date | 15 May 2014 |
[2014] EWHC 1495 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: CO/3230/2012
Mr Hugh Southey QC (instructed by Campbell Law Solicitors) for the Claimant
Miss D Rhee (instructed by The Treasury Solicitor) for the First Defendant
Mr J Cornwell (instructed by The Treasury Solicitor) for the Second Defendant
Hearing dates: 18 and 19 March 2014
Introduction
On 14 May 2008 the Claimant was convicted of arson with intent to endanger property. She received an indeterminate sentence, the minimum term of which has expired. The issue in the case is the allegation that there was excessive and unlawful delay before the Claimant's subsequent detention, pursuant to a direction of the Secretary of State, was reviewed by a judicial body. Permission was refused on the papers and oral renewal, but was granted on appeal on 18 July 2013.
The Factual Background
The Claimant was born on 20 September 1963. She has a long history of mental health problems, demonstrating aggressive and self-injurious behaviour from the age of nine or ten. She has spent several periods in hospital in relation to her mental health, both on a voluntary basis and under the Mental Health Act 1983. In 1982 she was made subject to a Hospital Order following an offence of attempting to administer poison to her father. There is a "well-documented history of repeated self-harming and aggressive outbursts during her time in hospital". The Claimant has committed numerous offences including two previous convictions for arson in 1980 and 1981, a number of assaults, assault on police, an offence of causing grievous bodily harm with intent and a previous offence of possession of an offensive weapon.
In 2004, the Claimant absconded from her residential psychiatric unit in north Wales and jumped from a bridge over a motorway, an episode which left her with significant acquired brain injury. She was also left with considerable physical difficulties and limited mobility as a result of this incident. She has a diagnosis of "Emotionally Unstable Personality Disorder" which, according to medical opinion in 2012, is characterised by:
"A tendency to act impulsively and without consideration for the consequences. There is a liability to outbursts of emotion and an incapacity to control the behavioural explosions. There is a tendency to quarrelsome behaviour and to conflict with others, especially when impulsive acts are thwarted or censored and to self-destructive behaviour, including suicide gestures and attempts."
In early 2008, the Claimant and her partner were living in poor accommodation and were having problems with neighbours. The Claimant's partner committed a robbery and was remanded in custody. The Claimant became distressed in the absence of her partner, took an overdose of prescribed morphine medication and was admitted to a psychiatric hospital as a voluntary patient. However she discharged herself after a few days. It was at that stage that the index offence was committed. The Claimant was living in one of five adjoining flats within a property that was part of a terrace of other homes. She set fire to a bundle of newspapers she had placed on her bed and then left home. Her case was that she had taken some steps to ensure that no-one was hurt by telephoning the one resident of adjoining property whom she knew to be present. However, the sentencing judge commented that the potential to damage property and life was "devastating". She received a sentence of imprisonment for public protection. The minimum period to be served before release expired in September 2009. The Claimant remained a prisoner at HMP Styal until July 2010.
On 20 July 2010, the First Defendant directed that the Claimant should be transferred to hospital under Section 47 of the Mental Health Act 1983, and further made a direction under Section 49 of the Act restricting the Claimant's discharge. The Claimant was transferred from HMP Styal to St Andrew's hospital, Northampton on 27 July 2010.
According to the subsequent decision of the First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health) ["the Tribunal"] given following a review on 12 December 2011, the Claimant had a troubled time in St Andrew's hospital, although she made some progress as time went on. The Tribunal found that:
"The patient's time at St Andrew's hospital has been marked by acts of self-harming and numerous, albeit increasingly infrequent, acts of aggression, mainly verbal, but including physical assaults on others and attempts at causing damage … the most recent assaults occurred in January 2011; in June 2011 when the patient assaulted staff members … and in September 2011 when the patient, together with another, took a member of staff hostage and later assaulted her … the patient has lost her temper on three occasions since September 2011. On each occasion there was no assault and the incident was de-escalated by a staff member, interventions which increasingly the patient is willing to accept."
It was in that context that, on 24 May 2011, the Claimant applied to the Tribunal for a review of the extent to which her detention was in accordance with the 1983 Act. According to the scheme of the legislation in a case of this kind, which I summarise below, the Claimant must apply first to the Tribunal for a notification to the Secretary of State that, if subject to a Restriction Order rather than a Restriction Direction, she would be entitled to be discharged. If the Secretary of State does not himself discharge following such a notification, then the matter falls to be referred to the Parole Board to consider her release.
The first hearing before the Tribunal took place on 1 August 2011. The Claimant gave evidence to the Tribunal to the effect that she did not suffer from a mental disorder and that she regarded her detention in hospital as "grossly inappropriate".
At this hearing the Tribunal was in receipt of evidence from the Claimant's Responsible Clinician Dr Chu, a locum consultant neuro-psychiatrist. Dr Chu noted that the Claimant's insight into her own problems, and their effect on her ability to function in the community, was limited. Dr Chu also informed the Tribunal that in her opinion St Andrew's was unable to offer the patient further therapy and the time had come for her to move on. This hearing was adjourned so that a report from an independent expert, instructed on behalf of the Claimant, could be obtained.
The Tribunal reviewed the Claimant's case on 12 December 2011. By then Dr Chu had submitted a second report, repeating her view that St Andrew's was unable to offer the patient further therapy and concluding that the Claimant:
"would greatly benefit further from having her personality disorder addressed in an environment where she could be safely managed and adequate support can be given to facilitate her gradual integration back into the community."
The Tribunal noted that since August 2011 the Claimant had begun to engage with the ward psychologist, and for the first time had requested a sedative drug on occasion which they regarded as "evidence of recognition that she needs help in stabilising her mood". There had been no assaults since September 2011 and the evidence led the Tribunal to conclude that the Claimant was making significant progress. The Tribunal received evidence in the course of the hearing that recent discussions had identified –
"non-clinical establishments in Wales qualified to provide necessary 24-hour support and management of the potential risks that the [Claimant] presents to herself and others. The members of the clinical team who gave evidence to the Tribunal on 12 December 2011, with varying degrees of caution, supported this pathway and, were it available, opined that the continued detention of the patient in hospital for treatment would be neither appropriate nor necessary. They emphasised that there would have to be, in addition, a package of clinical support for the patient, including a psychiatrist and a psychologist to build on the progress the patient was currently making."
The Tribunal went on to find that it was time for the patient to move on from St Andrew's, and that:
"Further detention there on any but a provisional basis pending the identification of a step-down placement, whether a low security or unlocked unit or an appropriately staff hospital, would risk therapeutic regression. Although the [Claimant], by reason of her emotional lability, continues to present a diminishing risk to her own health and safety and to the safety of others, the Tribunal is not convinced that this necessarily requires her continued detention in a hospital…. The Tribunal unreservedly accepts the evidence of the clinical team that to return the patient to prison to continue serving her sentence would be [to] put at risk all the progress she has made since her admission to St Andrew's."
The Tribunal went on to give carefully calibrated indications as to the Claimant's future:
"The issue is whether the [Claimant's] therapeutic needs require continued detention in a low secure unlocked unit; or whether they can be met in an appropriately staffed hostel. In the judgment of the Tribunal, it is for [the Claimant's care co-ordinator] to investigate what is available and if and when he has identified a hospital placement, it will be for that establishment,...
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