R (Secretary of State for the Home Department) v Mental Health Review Tribunal

JurisdictionEngland & Wales
JudgeLord Justice Keene,Sir Anthony Evans,Lord Justice Kay
Judgment Date19 December 2002
Neutral Citation[2002] EWCA Civ 1868
Docket NumberCase No: C1/2002/1298/A
CourtCourt of Appeal (Civil Division)
Date19 December 2002

[2002] EWCA Civ 1868






Lord Justice Kay

Lord Justice Keene and

Sir Anthony Evans

Case No: C1/2002/1298/A


The Secretary of State for the Home Department
Mental Health Review Tribunal 'P.H.'
Respondent Interested Party

Mr T Mould (instructed by the Treasury Solicitor) for the Appellant

Miss J Richards (instructed by the Treasury Solicitor) for the Respondent

Mr P Bowen (instructed by Scott-Moncrieff Harbour & Sinclair, London NW5 1LB) for the Interested Party

Lord Justice Keene

This appeal concerns the extent of a Mental Health Review Tribunal's powers to attach conditions to a direction to discharge a restricted patient from the hospital where he is detained.


P.H. is now aged 77. He has been detained in Broadmoor Hospital for some 44 years, having been admitted in 1958 after having been found unfit to plead to two counts of wounding with intent to cause grievous bodily harm. He had broken into the family home of a child actress with the intention of killing her and had attacked her parents when they intervened. He was ordered to be detained at Her Majesty's pleasure under the legislation then in force, with the result that he is currently detained under the provisions of section 46 of the Mental Health Act 1983 ("the Act"). He continues to suffer from chronic paranoid schizophrenia and to express fixed delusional beliefs. He has poor physical health and, because of an injury to his throat, he can only receive food via a permanent tube to his stomach.


The matter comes to this court on appeal from a decision of Elias J. On 12 October 2001 the relevant Mental Health Review Tribunal ("the Tribunal") had decided to direct that P.H. be discharged but that the discharge should be deferred until satisfactory arrangements had been made to meet the conditions which it imposed. The Secretary of State for the Home Department sought judicial review of that decision, principally on the basis that the conditions imposed fell outside the scope of the powers of the Tribunal. Elias J. granted permission to seek judicial review but concluded that the Tribunal had not acted unlawfully. He therefore refused to quash its decision. The Secretary of State now appeals against Elias J.'s decision. There is also a cross-appeal and an application to cross-appeal by P.H. as an interested party, to which matters I shall come later in this judgment.


The history of this matter is covered in detail in the judgment of Elias J. ( [2002] EWHC 1128 (Admin.)) and I need therefore only summarise it here. On 24 January 2001 P.H.'s solicitors applied to the Tribunal for an order discharging him. Reports were duly submitted by his Responsible Medical Officer, Dr. Andrew Horne, and by a Senior Social Worker at Broadmoor. At that stage the opinion was that it was still appropriate for P.H. to be detained in hospital but that he could be transferred to conditions of low security. That had in fact been the recommendation on a number of previous occasions by the Tribunal, but the Secretary of State, whose decision it is to alter the level of security for such patients, as opposed to a decision on discharge, had not accepted that recommendation.


However, at a hearing before the Tribunal on 24 May 2001, Dr. Horne expressed the view that P.H. did not need to be detained in hospital, so long as appropriate conditions were imposed on his discharge to ensure that his needs could be met in the community. As the Secretary of State had had no opportunity to comment on this new proposal, the Tribunal adjourned the hearing. Further reports were then submitted, both by Dr. Horne and the Senior Social Worker and by an independent psychiatrist, Dr. Somekh, on behalf of P.H. and by a social worker from the responsible social services authority. The Secretary of State did not submit any psychiatric evidence but submitted statements expressing the view that P.H. still required detention in hospital. In his further report Dr. Horne explained the reasons for his change of view, noting that when P.H. was in his usual state of mind he was a co-operative and sensible man and adding:

"When his mental state deteriorates it happens slowly and the signs are apparent to people around him, and I think that provided the hostel staff and supervisors were properly briefed a relapse would be detected at an early stage."

He concluded that it would be appropriate for P.H. to be discharged conditionally, provided that there was a condition that he must be escorted at all times when outside his place of residence. Dr. Somekh agreed with Dr. Horne's views.


The Tribunal reconvened on 12 October 2001 and heard oral evidence from those who had submitted reports, as well as from P.H. and his brother. All the expert witnesses supported conditional discharge. The Tribunal concluded that it was satisfied that PH was not now suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment. It also found that it was not satisfied that it was not appropriate for the patent to remain liable to be recalled to the hospital for further treatment.

It therefore directed his conditional discharge. Four conditions were imposed, as follows:

" 1) [PH] continue to take and receive medication as prescribed.

2) [PH] accept and comply with regular supervision by a consultant psychiatrist and social supervisor.

3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security.

4) [PH] shall not leave the accommodation without an escort."


In addition, the Tribunal exercised its powers under section 73(7) of the Act to defer the discharge until a number of steps had been taken. These included the completion of a full risk assessment to deal, inter alia, with sharing accommodation with female residents and the use of female escorts, and the provision of a care plan. On this last aspect the decision reads as follows:

"Once suitable accommodation has been identified, a detailed Care Plan is provided to the Tribunal and approved by them. The Care Plan is to deal with, inter alia,

(a) security levels in the building and grounds;

(b) the level of care and supervision on a 24 hour basis including monitoring of [P.H.]'s psychiatric state, in particular with regard to his attitude to women;

(c) the provision of escorts outside the accommodation;

(d) contingency plans in the event of a relapse."


The reasons given by the Tribunal for these conclusions included the following:

"The unanimous evidence before the Tribunal was that [PH] no longer complied with the statutory requirements for detention in hospital. We accept that evidence. [PH] continues to suffer from chronic paranoid schizophrenia for which he receives necessary medication, with which he is compliant. He continues to express fixed delusional beliefs concerning women's responsibility for causing disasters and some other beliefs about crustaceans, nevertheless, he has not shown any aggressive behaviour for 7 years and that last incident was related to a mistaken absence of medication for which [PH] was not responsible … [PH] has been in an institution for many years and the transfer to a new, less secure environment could prove stressful but the uncontroverted evidence from the RMO and [PH]'s independent psychiatrist, Dr. Somekh, was to the effect that if there were a relapse it would be apparent and detected rapidly by trained staff. We recognise the difficulty in finding appropriate specialist accommodation to meet [PH]'s needs and management of possible risks, including a relapse, which is why we consider it appropriate for him to be subject to recall."


A number of grounds were advanced before Elias J. by way of challenge to the Tribunal's decision, but only one is now relied on by the Secretary of State in this appeal. His contention is that the conditions imposed by the Tribunal, in particular conditions 3 and 4, are so restrictive as to deprive this patient of his liberty, with the result that he would continue to be detained, albeit in a situation of lower security. The Tribunal only has the power to discharge a patient from detention and to impose conditions upon discharge. It has no power to direct the transfer of a patient from one detaining institution to another, and therefore in the present case the Tribunal has acted ultra vires.


Before coming to consider the detailed arguments advanced in support of this contention it is necessary to deal with the statutory context. As a result of section 46(3) of the Act, the order originally made in respect of P.H., which is now treated as a direction under that section, has the effect of a hospital order together with a restriction order, made without limitation of time. He is therefore a restricted patient. The powers of a Tribunal to discharge restricted patients are provided by sections 72 and 73 of the Act. As the judge below noted, those provisions have recently been amended as a result of the decision in R (on the application of H) v Mental Health Tribunal North and East London Region [2001] 3 WLR 512, so as to change the burden of proof, with the result that the Tribunal is now required to be satisfied that detention is justified. That amendment had not been made at the time of the Tribunal's decision, but this case is not affected by...

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