R (RA) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 2002 |
| Neutral Citation | [2002] EWHC 1618 (Admin) |
| Docket Number | Claim No. CO/536/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2002 |
[2002] EWHC 1618 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London WC2A 2LL
Mr. Justice Crane
Claim No. CO/536/2002
Mr.Paul Bowen appeared for the Claimant.
Mr.Steven Kovats appeared for the Defendants.
General
1. This case concerns the exercise of the Secretary of State's power to give or refuse his consent to leave of absence, often referred to as “community leave”, under the Mental Health Act (“the Act”), section 17, when a deferred conditional discharge has been granted to a restricted patient by a Mental Health Review Tribunal (“the Tribunal”).
2. On 15 November 1999 the Claimant was found not guilty by reason of insanity of kidnapping and assault occasioning actual bodily harm. He was diagnosed as suffering from a mental illness, that is, acute paranoid schizophrenia, the symptoms of which included paranoid delusions and olfactory and auditory hallucinations. An order was made under the Criminal Procedure (Insanity) Act 1964, section 5(2)(a) for his admission to hospital. By the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, section 5(1)(a) and Schedule 2, paragraph 2(1)(a), that order was to be treated for the purposes of the Mental Health Act 1983 as if the Claimant had been admitted in pursuance of a hospital order. A direction was made under Schedule 2, paragraph 2(1)(b), with the result that he was to be treated as if an order had been made under the Mental Health Act 1983, section 41, restricting his discharge without limit of time.
The statutory framework
3. Section 41(3) of the Act, as amended, sets out the special restrictions applicable to a patient in respect of whom a restriction order is in force:
“(a) … the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under … Part II or absolutely discharged under section 42 [Powers of the Secretary of State in respect of patients subject to restriction orders], 73 [Power of tribunals to discharge restricted patients] … below;
“(b) none of the provisions of Part II of this Act relating to after-care under supervision shall apply;
…
“(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely —
(i) power to grant leave of absence to the patient under section 17 above;
…
and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer.
“(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; …”.
4. The Act provides for the discharge of restricted patients either by a Tribunal or by the Secretary of State. In describing the discharge provisions I shall refer only to those who have been suffering from mental illness.
5. The conditional discharge of a restricted patient must be directed by a Tribunal, on an application, if they are not satisfied (a) that the patient is either now suffering from mental illness or not from mental illness of a nature and degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment and (b) that it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment, but (c) that it is not appropriate for him to remain liable to be recalled to hospital for further treatment: section 73(2) as amended. (The amendment did not take effect until November 2001, but the Tribunal in fact applied the section as if the amendment had already taken place.)
6. By section 73(7):
“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…”.
In these circumstances the direction will be made only after the arrangements have been made.
7. If a patient is conditionally discharged by a tribunal, the Secretary of State may subsequently impose conditions: section 73(4)(b). He may from time to time vary any condition imposed either by the tribunal or by him: section 73(5). The patient must comply with any conditions imposed by the tribunal or by the Secretary of State: section 73(4)(b).
8. The Secretary of State's power of discharge arises under section 42(2). He may, if he thinks fit, by warrant discharge a restricted patient either absolutely or subject to conditions. The Secretary of State is not guided by the Act about the matters he should take into account.
9. Section 73(8) reads:
“This section is without prejudice to section 42”.
10. The Secretary of State may at any time recall a restricted patient who has been conditionally discharged, whether by the tribunal or by him: sections 42(3) and 73(4)(a).
11. Leave of absence from hospital is governed by section 17. The responsible medical officer (“RMO”) may grant to any patient who is liable to be detained leave to be absent from the hospital. The leave may be subject to any conditions that the RMO considers necessary in the interests of the patient or for the protection of other persons: section 17(1). Leave may be granted either indefinitely or on specified occasions or for any specified period: section 17(2). The RMO may direct that the patient remain in custody (that is, in practice, escorted) during his absence: section 17(3). As I have mentioned, if the patient is a restricted patient, the power to grant leave is exercisable only with the consent of the Secretary of State: section 41(3)(c)(i).
12. Leave may be revoked by the RMO by notice in writing if it appears to him that “it is necessary to do so in the interests of the patient's health or safety or for the protection of other persons”: section 17(4). If the patient fails to return at the expiration of any period of leave, he may be taken into custody and returned to the hospital: section 18(1)(b). The Secretary of State has the same power to recall as the RMO if the patient is a restricted patient: section 41(3)(c).
13. Thus the scheme of the Act is that if the Tribunal grant a deferred conditional discharge to a restricted patient, but leave of absence is necessary for visits to a hostel or for a trial period staying there, the consent of the Secretary of State is required for such leave.
14. Section 117 imposes duties on Health Authorities and local social services to provide after-care to those released from detention under the Act. The duty is not absolute; those concerned must use their best endeavours to fulfil conditions imposed by Tribunals: R. (K) v. Camden and Islington Health Authority [2002] QB 198 (C.A.).
The history
15. On 30 May 2001 the Tribunal decided to make an order conditionally discharging the Claimant under section 73 of the Act, but deferred their direction for his conditional discharge under section 73(7). The Claimant was at that time in the Shaftesbury Clinic at the Springfield Hospital. The RMO was Dr.Deji Oyebode.
16. The Tribunal decided that the Claimant was still suffering from the same mental illness. However, they continued:
“Since admission Mr. A has made very good progress, has responded well to his medication and treatment, currently displays no overt symptoms of his illness and is stable. He is fully compliant with medication and we accept that in view of the degree of insight which he now has he is likely to remain compliant if discharged. We are satisfied on balance that although Mr.A is suffering from mental illness, it is not of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment. There is no evidence of any self harm or of threatening or aggressive behaviour towards others.
“Mr.A has not yet been tested in the community with escorted or unescorted leave. We accept the RMO's [Responsible Medical Officer's] evidence, which was not disputed, that the risk or relapse is fairly high if he fails to take his medication. There is a history of illicit drug use while in hospital which had some associations with the symptoms of his illness. Recent monitoring has proved negative for illicit substances and there is no other evidence of current drug abuse. Mr.A told us that he now realises the danger to himself if he does not continue to abstain from taking illicit drugs. For all these reasons we are satisfied that it is appropriate for him to remain liable to be recalled to hospital for further treatment.
“The RMO's preference if Mr.A is to be discharged is for him to reside in a hostel where he can receive an appropriate level of support and supervision. No such accommodation is currently available although the Senior Social Worker indicated that options are being pursued”.
17. The Tribunal agreed with the suggestion from both the Claimant's legal representatives and the RMO that the discharge should be deferred until appropriate accommodation was available and approved by the RMO. They said:
“We note that the Home Office has been requested to grant leave to Mr.A and we recommend that this is now given urgent consideration”.
18. The conditions imposed were:
“1. To reside at such accommodation as may be approved by the RMO as providing an appropriate level of supervision and support.
2. To accept medical supervision including the taking of medication as may be prescribed and directed by the RMO.
3. To abide by the terms of a discharge plan as...
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