R (SC) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 17 January 2005 |
| Neutral Citation | [2005] EWHC 17 (Admin) |
| Date | 17 January 2005 |
| Court | Queen's Bench Division (Administrative Court) |
[2005] EWHC 17 (Admin)
Court and Reference: Administrative Court; CO/1802/2004
Munby J
Appearances: R Pezzani (instructed by Christian Khan) for SC; M Chamberlain (instructed by the Treasury Solicitor) for the Tribunal; T Ward (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department. The Secretary of State for Health did not appear and was not represented
Whether s. 75(3) Mental Health Act 1983 is incompatible with the ECHR; the matters to be taken into account by a Tribunal when considering an application by a conditionally discharged restricted patient; whether a Tribunal had acted unlawfully by taking into account a mental disorder from which the patient was not classified as suffering.
In 1999 SC had been detained under ss. 37 and 41 Mental Health Act 1983 following his conviction for causing grievous bodily harm. He was classified as suffering from a mental illness. In 2001 he was conditionally discharged by a Mental Health Review Tribunal. One of the conditions was that he reside in a hostel. He remained a restricted patient, liable to be recalled by the Home Secretary. In December 2003 the Tribunal heard SC's application for a direction under s. 75(3)(b) that the restriction order cease to have effect. The Tribunal refused his application, citing as one of its reasons for doing so that he had been diagnosed, although never classified, as suffering from a psychopathic disorder as well as a mental illness.
SC sought judicial review on 2 grounds. First, that the Tribunal adopted an unlawful approach by taking into account the diagnosis of psychopathic disorder, which was irrelevant because he had not been classified as suffering from such a disorder when detained. Second, that s. 75(3) was incompatible with SC's rights under the ECHR because, as it provides no criteria for the Tribunal to consider when considering an application, it was insufficiently clear to provide the applicant with adequate protection from arbitrary interference with Convention rights.
1. This is an application for judicial review, pursuant to permission granted by Owen J on 20 May 2004, whereby SC seeks to challenge a decision of the Mental Health Review Tribunal dated 15 January 2004.
2. The relevant facts can be shortly stated. On 7 September 1998 SC was convicted at the Crown Court of an offence of causing grievous bodily harm with intent. On 19 May 1999 the Crown Court made a hospital order under s. 37 of the Mental Health Act 1983,being satisfied that SC was suffering from mental illness within the meaning of s. 1(2) of the Act, and further ordered that SC should be subject indefinitely to the special restrictions set out in s. 41 of the Act.
3. So far as is material for present purposes s. 37 of the Act provides as follows:
"(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law … and the conditions mentioned in subs(2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order …
(2) The conditions referred to in subs(1) above are that -
(a) the court is satisfied, on the written or oral evidence of 2 registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) … ; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.
(7) A hospital order … shall specify the form or forms of mental disorder referred to in subs(2)(a) above from which, upon the evidence taken into account under that subsection, the offender is found by the court to be suffering; and no such order shall be made unless the offender is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of them."
4. Section 41(1) provides as follows:
"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as "a restriction order"."
A patient who is subject to a restriction order is referred to in the relevant parts of the Act as a "restricted patient": s. 79(1).
5. Section 41(3) of the Act sets out the special restrictions which are applicable to a patient in respect of whom a restriction order is in force. For present purposes 2 are important. Section 41(3)(a) provides that:
"none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under s. 42, 73 … or 75 below."
Section 41(3)(c) provides that various powers under the Act shall be exercisable only with the consent of the Secretary of State, that is, the Secretary of State for the Home Department.
6. Both the Secretary of State for the Home Department and a Mental Health Review Tribunal have power in appropriate circumstances, in the case of the Secretary of State in accordance with s. 42(2) of the Act and in the case of the Tribunal in accordance with s. 73, to direct the discharge of a restricted patient, either conditionally or absolutely. In either case, and consistently with s. 41(3)(a), an absolute discharge has the consequence that the restriction order ceases to have effect: see ss. 42(2) and 73(3). Conversely, and again consistently with s. 41(3)(a) a restricted patient who is only conditionally discharged remains subject to the restriction order - in other words remains a restricted patient - and can at any time be recalled to hospital by the Secretary of State: see ss. 42(3) and 73(4)(a). Additionally, both the Secretary of State and the Tribunal have power in appropriate circumstances, in the case of the Secretary of State in accordance with s. 42(1) of the Act and in the case of the Tribunal in accordance with s. 75(3)(b), to direct that a restriction order shall cease to have effect.
7. I ought to add, as Mr Martin Chamberlain on behalf of the Tribunal pointed out, that the Secretary of State's power to recall a restricted patient is not unfettered. In recalling a restricted patient, the Secretary of State has to act compatibly with the patient's rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. This means that the Secretary of State must have up-to-date medical evidence that the patient is, at the time of recall, suffering from a true mental disorder, and that evidence must show that the criteria for detention are met: see Kay v UK (1994) 40 BMLR 20 at paras [47] and [50], referring to Winterwerp v Netherlands(1979) 2 EHRR 387, and R (B) v Mental Health Review Tribunal[2003] Mental Health Law Reports 19 at para [31]. If those criteria are not met, the Secretary of State's decision to recall will be judicially reviewable. Quite apart from that, s. 75(1)(a) requires the Secretary of State to refer the case of any recalled restricted patient to a Tribunal within 1 month. In practice, such references are usually made very quickly: see Bat para [29]. So, as Mr Chamberlain comments, although it is true that a recalled restricted patient can be re-detained without the need for a prior judicial decision, the discretion to exercise the power of recall is far from unfettered and, moreover, any detention which results from recall must be swiftly endorsed by a Tribunal.
8. I think I should set out these various provisions. So far as material s. 42 provides that:
"(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient cease to be subject to the special restrictions set out in s. 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect …
(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a...
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