R v Mental Health Review Tribunal, ex parte Hall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE WARD,LORD JUSTICE TUCKEY |
| Judgment Date | 30 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0730-20 |
| Docket Number | QBCOF 1999/0521/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1999 |
[1999] EWCA Civ J0730-20
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S DIVISION (CROWN OFFICE LIST)
(MR JUSTICE SCOTT-BAKER)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Kennedy
Lord Justice Ward
Lord Justice Tuckey
QBCOF 1999/0521/4
MR N PLEMING QC (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Appellant
MR R GORDON QC and MISS P MORRIS (Instructed by Messrs Peter Edwards & Co, Holyake, Wirral, L47 1HE) appeared on behalf of the Respondent
Friday 30 July 1999
1. This is an appeal by the Tribunal from a decision of Scott Baker J who on 23rd April 1999 in the Crown Office list ordered that the Tribunal's decision of 30th April 1998 be quashed, and declared that Torfaen CBC and Gwent HA had erred in law in failing to—
1) make practical arrangements for the appellant's after-care under section 117 of the Mental Health Act 1983, and—
2) implement the Care Approach Programme.
It was ordered that the matter be referred back to the Tribunal. There is no appeal to this court by either the CBC or the HA.
2. Background.
The history of this case is clearly set out in the judgment of Scott Baker J which is reported at [1999] 3 All ER 132, and I can therefore deal with the background only in so far as it is relevant for the purposes of this appeal.
The appellant was born on 22nd September 1967, so he is now 31. In February 1991, when aged 23, he killed a girl friend by strangling her and battering her with an iron bar. On 20th September 1991, at Cardiff Crown Court, he was found not guilty of manslaughter by reason of insanity, and an order was made under section 5(1) of the Criminal Procedure (Insanity) Act 1964 that he be detained in hospital. He thereby became a restricted patient at Ashworth Hospital, detained without limit of time under sections 37 and 41 of the Mental Health Act 1983.
On 30th May 1996 he applied to a Mental Health Review tribunal for discharge. The Tribunal then had to exercise its powers under sections 72 and 73 of the 1983 Act. The relevant parts of those sections are set out at 139 b-j in the judgment of Scott Baker J. For present purposes the effect of the two sections can be summarised thus—
(a) a Tribunal must direct the absolute discharge of the patient if they are satisfied—
(i) that he is not then suffering from mental illness, psychopathic disorder or mental impairment of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment, or
(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment,
AND—
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73(1)).
(c) If the Tribunal is satisfied as to (a) but not as to (b) it "shall direct" the conditional discharge of the patient (section 73(2)).
(d) A Tribunal may defer a direction for a conditional discharge of a patient until such arrangements as appear to the Tribunal to be necessary for that purpose have been made to the Tribunal's satisfaction (section 73(7)).
(e) Where a patient is conditionally discharged he must comply with such conditions (if any) as may be imposed at the time of the discharge by the Tribunal or at any subsequent time by the Secretary of State, and may be recalled by the Secretary of State (section 73(4)).
The Tribunal heard evidence from Dr A.O Williams (the appellant's Responsible Medical Officer ( RMO), Dr Lillywhite (an independent psychiatrist), Mr Miles (the appellant's senior social worker at Ashworth) and the appellant himself. It made its decision on 4th February 1997 (the first Tribunal decision) when it concluded that—
(1) The appellant continued to suffer from a mental illness, even though without medication he had no overt symptoms, and had not exhibited any at Ashworth. Condition (a)(i) above was therefore not satisfied, but
(2) it was not necessary for the health and safety of the appellant or for the protection of other persons that the appellant should receive medical treatment, so the condition in (a)(ii) above was satisfied.
The Tribunal was concerned that the stress of independent living in the community may cause the appellant to relapse, and concluded that—
(3) it was appropriate for the appellant to remain liable to be recalled to hospital for further treatment—so condition (b) above was not satisfied.
It therefore became incumbent on the Tribunal to direct the conditional discharge of the appellant—see(c) above—and because of the perceived risk of relapse the Tribunal considered it necessary to impose four conditions, namely—
(1) the patient shall reside at a place to be agreed by the patient's psychiatric and social supervisors.
(2) That he receives medical supervision by a nominated forensic psychiatric supervisor
(3) That he complies with the directions of his RMO.
(4) That he complies with the directions of his social supervisor as nominated by his RMO.
The Tribunal ordered that the appellant's discharge be deferred "until the appropriate package has been prepared".
Unfortunately the conditions imposed by the first Tribunal proved difficult to satisfy. No forensic psychiatrist was found who would supervise the appellant in the community, but Dr S. Hunter, a consultant in psychological medicine, was prepared to assist, so on 23rd September 1997 the Tribunal relaxed its condition in relation to the qualifications of the required psychiatric supervisor. It was also agreed that a community psychiatric nurse nominated by the RMO could be nominated as social supervisor. That left only the vexed question of accommodation. Mr Miles attempted, without success, to persuade Torfaen and Gwent to accept responsibility for the appellant's after-care, and eventually the appellant's solicitors simply made a fresh application to the Mental Health Review Tribunal. That, by statute, caused the decision of the first Tribunal to lapse.
3. Before the Second Tribunal.
The second Tribunal was differently constituted, and heard evidence from Dr Croy (who had succeeded Dr A.O. Williams as the appellant's RMO), Dr T. Williams (an independent psychiatrist), Mr Miles and the appellant himself. The findings of the second Tribunal on 30th April 1998 differed from the findings of the first Tribunal in that the second Tribunal was satisfied that the appellant was not suffering from mental illness or psychopathic disorder or any relevant condition making it appropriate for him to be liable to be detained in a hospital for treatment. But the second Tribunal like the first Tribunal, was troubled by the risk of a spontaneous recurrence of mental illness, and rejected Dr T. Williams' submission that the order should be one of absolute discharge. The Tribunal recognised the risk that the appellant may not co-operate, but considered it essential that the following four conditions be in place "because of the risk of recurrence of mental illness and the need to protect the community"—
(1) the patient shall reside at a place to be agreed by the patient's psychiatric and social supervisors which should be a considerable distance from the scene of the index offence.
(2) That he receives medical supervision by a nominated forensic psychiatrist supervisor (notwithstanding the previous Tribunals decision to permit a supervisory psychiatrist not forensically trained).
(3) That he complies with the directions of his nominated forensic psychiatrist supervisor.
(4) That he complies with the directions of his social supervisor who shall be an approved social worker specialising in forensic psychiatry.
Clearly those conditions were more stringent than the conditions imposed by the first Tribunal in three respects—
(1) the location of the residential accommodation:
(2) the qualifications of the medical supervisor:
(3) the qualifications of the social supervisor.
When asked for clarification of the conditions as to residence the Tribunal on 8th June 1998 replied that the appellant should be resettled outside the Gwent area and preferably outside South Wales. Mr Miles did his best, but as the judge said, Torfaen and Gwent (i.e. those whose duty it was to try to satisfy the Tribunal's conditions) "were doing little if anything". In an attempt to achieve some progress the appellant's solicitors on 29th July 1998 began these proceedings for judicial review, and so in late February 1999 the matter came before Scott Baker J. Nearly a year had passed since the second Tribunal decision, and the appellant was still in Ashworth Hospital.
4. The Judge's Conclusions
So far as the second Tribunal was concerned the judge held that—
(1) when the Tribunal imposed conditions and deferred discharge until those conditions were met it exercised a discretion, which should have been exercised with article 5 of the European Convention of Human Rights "in the mind and under the consideration of the Tribunal". Article 5, so far as relevant reads—
(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…..
(2) whilst recognising that the 1983 Act has several potentially conflicting purposes, including the protection of the patient and the safety of others, the Tribunal should have weighed in the scales—
(i) the...
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