R v Camden and Islington Health Authority ex parte K
| Jurisdiction | England & Wales |
| Judge | Lord Phillips MR |
| Judgment Date | 21 February 2001 |
| Neutral Citation | [2001] EWCA Civ 240 |
| Docket Number | Case No: C/2000/2375 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2001 |
[2001] EWCA Civ 240
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Justice Burton
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Of The Rolls
(Lord Phillips)
Lord Justice Buxton and
Lord Justice Sedley
Case No: C/2000/2375
Mr R Drabble, Qc And Ms F Morris (instructed By Hodges Jones & Allen for The Appellant)
Mr C Béar (instructed By Messrs Beachcroft Wansbroughs) For The Respondent
This is the first of two appeals against Judgments of Burton J. The second is in the case of The Queen v. Tower Hamlets Healthcare NHS Trust and Another, ex parte Count Franz von Brandenburg (otherwise known as Nicholas Hanley). Permission to appeal in the latter case was granted by Schiemann LJ on 15 th August 2000. Permission to appeal in this case was granted by May LJ on 5 th September 2000. He directed that the two cases be heard either together or consecutively. We chose the latter course. In each case the Applicant was a patient compulsorily detained under the Mental Health Act 1983 (MHA). In each case a Mental Health Review Tribunal (a Tribunal) had ordered the discharge of the Applicant. In each case the Applicant sought judicial review on the basis that the Tribunal's order had unlawfully been prevented from being implemented by, in the first case, omissions and, in the second case, acts of the relevant professionals. Each appeal turns on a different narrow, though important, point of statutory construction. Each appeal raises wider issues of general importance. Each appeal involves areas of law and practice in relation to mental health of some complexity. I propose to decide only those narrow issues which are necessary to resolve the appeals. I shall, however, make some observations on the wider issues.
This Appeal
The material facts, the relevant legislation, the submissions made and the issues that they raised are clearly set out in Burton J's Judgment. Rather than duplicate the exercise that he carried out I have annexed his Judgment to my own. It will suffice at this point to give the briefest summary of the facts and issues.
Miss K was a restricted patient pursuant to Sections 37 and 41 of the MHA. On 16 th August 1999 a Tribunal decided that she should be conditionally discharged pursuant to Section 73 of the MHA. This decision was contrary to the advice of Miss K's Responsible Medical Officer (RMO). The conditions specified by the Tribunal included a requirement that Miss K should reside at her parents' home in Wood Green, North London, and co-operate with supervision to be provided by a forensic Consultant Psychiatrist. The Respondent Health Authority is that for the area in which Miss K would be living when discharged. The Respondent Authority does not itself employ any forensic psychiatrists. Together with other health authorities in the London region it contracts for such services with the North London Forensic Service (NLFS), a specialist service forming part of the Enfield Community Care NHS Trust. The Respondent Authority took all steps that it reasonably could to obtain from the NLFS, and indeed from other sources, a forensic psychiatrist who would be prepared to supervise Miss K. They were unsuccessful, because no forensic psychiatrist was prepared to undertake the responsibility of supervising Miss K while she was living with her parents. All believed that the Tribunal had been mistaken in concluding that this was a viable course.
Faced with this impasse, Miss K's RMO wrote to the Home Secretary asking him to exercise his powers under Section 71(1) of the MHA to make a fresh reference of Miss K's case to a Tribunal. The Home Secretary complied with this request in November 1999. It was at this point that Miss K applied for judicial review.
Section 117 of the MHA places a Health Authority under a duty to provide after care services when a person in the position of Miss K is discharged from hospital. Miss K contended that, on true construction of this section, the Respondent Authority was under an absolute duty to provide her with psychiatric supervision in the community in order to implement the conditions imposed by the Tribunal. Burton J. rejected this contention. He held that the Respondent Authority's duty did not go beyond taking all reasonable steps in an attempt to satisfy the conditions imposed by the Tribunal.
The narrow issue raised on this appeal is whether the Judge was right in his interpretation of Section 117 of the MHA or whether, as is contended on behalf of Miss K, that section imposed an absolute duty on the Respondent to provide services that satisfied the condition imposed by the Tribunal. The wider issues are whether, and if so how, the statutory regime satisfies the obligations imposed by Article 5 of the European Convention on Human Rights.
Subsequent Events
Immediately after the hearing that has given rise to this appeal, Burton J. heard and rejected an application by Miss K for permission to apply for judicial review of the decision of the Secretary of State for the Home Department to make a fresh reference of her case to the Tribunal. That application was not renewed before this Court. The decision of the Tribunal was that Miss K should be conditionally discharged on condition that she 'reside in accommodation approved by her RMO' and 'accept…. the supervision of her RMO'. No-one has challenged the legality of that decision. It follows that the issues raised on this appeal are, in one sense, academic. May L.J. had this in mind but gave permission to appeal nonetheless because of the importance of the issues raised. Having heard argument, we concluded that it was appropriate that we should determine, at least, the narrow issue directly raised by the appeal. Before so doing I propose to consider a number of matters that are relevant by way of background.
The position under the European Convention of Human Rights
Article 5 of the ECHR provides:
"1. Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…(e)
The lawful detention… of persons of unsound mind…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
In Winterwerp v The Netherlands (1979) 2 EHRR 387 at p.401 the European Court observed:
"The Convention does not state what is to be understood by the words 'persons of unsound mind'. This term is not one that can be given a definitive interpretation: as was pointed out by the Commission, the Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitudes to mental illness change, in particular so that a greater understanding of the problems of mental patients is becoming more widespread."
The Court added at p.403:
"In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority this is, a true mental disorder calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
This passage has been repeatedly cited by the Court when dealing with the effect of Article 5(1)(e).
The question of whether the United Kingdom complied with Article 5(4) came before the European Court in X v United Kingdom (1981) 4 EHRR 188. At that time a Mental Health Review Tribunal provided advice to the Home Secretary as to whether or not he should exercise his power to discharge a patient who was subject to a restriction order. The Court held that this fell short of satisfying the requirements of Article 5(4):
"….the 1959 Act provides the opportunity for a periodic review on a comprehensive factual basis by Mental Health Review Tribunals. There is nothing to preclude a specialised body of this kind being considered as a 'court' within the meaning of Article 5(4), provided it enjoys the necessary independence and offers sufficient procedural safeguards appropriate to the category of deprivation of liberty being dealt with. Nonetheless, even supposing Mental Health Review Tribunals fulfilled these conditions, they lack the competence to decide 'the lawfulness of [the] detention' and to order release if the detention is unlawful, as they have advisory functions only."
It was in response to this decision that the provisions which now form Sections 72 and 73 of the MHA were enacted. The effect of these Sections, as interpreted by the House of Lords in Campbell v Secretary of State for the Home Department [1988] 1AC 120, did not prove entirely satisfactory to the European Court.
The decision in Campbell
In Campbell the House of Lords had to consider the interrelationship of Section 73(2) and 73(7) of the MHA. The Oxford Regional Tribunal had decided that a restricted patient was entitled to be conditionally discharged but deferred directing the discharge to enable necessary arrangement to be put in place. This decision was open to objection in that the Secretary of State had not been afforded an...
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