R (Secretary of State for the Home Department) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 2002 |
| Date | 19 December 2002 |
| Court | Court of Appeal (Criminal Division) |
Court and Reference:Court of Appeal ; C1/2002/1298/A & C1/2002/1298
Kay and Keene LJJ, Sir A Evans
Appearances:T Mould (instructed by the Treasury Solicitor) for the Home Secretary; J Richards (instructed by the Treasury Solicitor) for the Tribunal; P Bowen (instructed by Scott-Moncrieff Harbour & Sinclair) for the patient, an interested party.
The lawfulness of a discharge from hospital on condition that a patient not leave a hostel without an escort.
PH, who was detained under s. 46 Mental Health Act 1983 at a high security hospital and had been for some considerable time, applied to a Tribunal seeking an order of discharge. The report submitted by his Responsible Medical Officer ("RMO") supported transfer to a less secure hospital rather than discharge; however, at the Tribunal, the RMO supported discharge if several conditions were imposed, including one that he reside at a hostel and not go outside without an escort. The Tribunal was adjourned so that the Home Office could comment on the changed situation; further reports were then filed, most of which supported discharge. At the adjourned hearing, the Tribunal imposed a deferred conditional discharge, including the condition that he reside at suitable specialist accommodation with full-time care and appropriate security and not leave it without an escort.
This decision was challenged by the Home Secretary, who argued that the Tribunal had exceeded its powers (which are limited to discharge from detention) by taking steps which amounted to ordering a transfer to a lower-security setting which in substance amounted to detention. There was also an argument that the Tribunal had proceeded on a false premise that there had been no violence for 7 years whereas in fact there had been an incident some 2 years ago.
The judge dismissed the application: [2002] Mental Health Law Reports 241. The Home Secretary appealed on the question of whether the conditions were lawful because they amounted in reality to continued detention. There was a cross-appeal, including in relation to the failure of the judge to award PH his costs against the Home Secretary.
1. 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.
2. PH 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 2 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 s. 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.
3. 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 PH 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 PH as an interested party, to which matters I shall come later in this judgment.
4. The history of this matter is covered in detail in the judgment of Elias J ([2002] Mental Health Law Reports 241) and I need therefore only summarise it here. On 24 January 2001 PH'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 PH 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.
5. However, at a hearing before the Tribunal on 24 May 2001, Dr Horne expressed the view that PH 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 PH 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 PH still required detention in hospital. In his further report Dr Horne explained the reasons for his change of view, noting that when PH 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 PH 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.
6. The Tribunal reconvened on 12 October 2001 and heard oral evidence from those who had submitted reports, as well as from PH 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...
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