R (OS) v Secretary of State for the Home DepartmentS
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Silber: |
| Judgment Date | 24 July 2006 |
| Neutral Citation | [2006] EWHC 1903 (Admin) |
| Date | 24 July 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2043/2006 |
[2006] EWHC 1903 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London, WC2A 2LL
The Honourable Mr Justice Silber
Case No: CO/2043/2006
Christopher Buttler (instructed by Kaim Todner) for the Claimant
Andrew Henshaw (instructed by Treasury Solicitor) for the Defendant
I. Introduction
OS ("the claimant") seeks to quash decisions of the Secretary of State for the Home Department ("the Secretary of State") made on 23 December 2005 ("the December decision") and 20 March 2006 ("the March decision") refusing consent for the claimant to have community leave of absence under section 17 of the Mental Health Act 1983 ("the Act"). The consequence of these decisions is to prevent effect being given to a decision of the Mental Health Review Tribunal ("the MHRT") made on 10 May 2005 whereby it directed the claimant's conditional discharge from Chase Farm Hospital. Sullivan J gave the claimant permission to apply for judicial review. The submissions have focussed on the challenge to the March decision because it would not assist the claimant to obtain an order quashing the December decision if the March decision still remained in force. The March decision will also very shortly be overtaken by a further decision of the Secretary of State, who has agreed to reconsider his decision after the determination of the appeal, which was heard on 11 July 2006 and which was against the deportation order to which I will refer in paragraph 24 below.
II. Background
The claimant is a Turkish national, who was born 1 January 1979. He arrived in the United Kingdom on 10 October 1998, claiming asylum at the port. On 28 March 1999, the claimant was arrested for murder of Bilal Gilfil. On 15 February 2000, he was transferred to Chase Farm Psychiatric Hospital ("Chase Farm"). On 15 June 2001, the defendant refused the claimant's asylum claim. On 30 September 2003, the claimant was convicted of the manslaughter of Bilal Gilfil on the grounds of diminished responsibility. On 23 April 2004, the claimant was sentenced to detention at Chase Farm without limit of time and the Court imposed a restriction order under section 41 of the Act, on the grounds "…that it is necessary for the protection of the public from serious harm".
Section 41(3) of the Act states that the effect of a restriction order means that:
"(a) …the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under …Part II or absolutely discharged under section 42 [Powers of the Secretary of State in respect of patients subject to restriction orders], 73 [Power of the MHRT to discharge restricted patients] …below;
(b) none of the provisions of Part II of this Act relating to after-care under supervision shall apply;
…
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely –
(i) power to grant leave of absence to the patient under section 17 above;
…
and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer;
(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 may be exercised at any time…"
On 30 December 2004, the claimant made an application to the Mental Health Review Tribunal ("MHRT") for his discharge pursuant to section 73 of the Act. The MHRT's powers to discharge restricted patients, whether absolutely or subject to conditions are conferred by section 73 of the Act, which requires the MHRT to conditionally discharge a patient where it is not satisfied that:
i. he is suffering a mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder 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. it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and
iii. it is not appropriate for the patient to remain liable to be recalled to the hospital for further treatment.
The MHRT may either order a bare conditional discharge where the only condition is that the patient is liable to be recalled to hospital but the MHRT will usually seek to impose additional conditions as it did in this case to ensure that the community mental health team would be able to determine if and when the patient should be recalled. Section 73(7) of the Act provides that:
"A [MHRT] may defer a direction for the conditional discharge of a patient until such arrangements as appear to the [MHRT] to be necessary for the purpose have been made to their satisfaction…"
If a patient is conditionally discharged by the MHRT, the Secretary of State may subsequently impose conditions: section 73(4) (b). He may from time to time vary any condition imposed by the MHRT: section 73(5). The Secretary of State may at any time recall a patient who has been conditionally discharged by the MHRT: section 73(4) (a).
The Claimant applied to the MHRT on 30 December 2004 for his discharge pursuant to section 73 of the Act and this has led to a series of very clearly reasoned decisions and findings of the MHRT which are relevant to this application and which I will now summarize.
III. The 2005 MHRT Decisions.
(i) The 10 May 2005 Decision
On 10 May 2005, the MHRT explained that it was:
(a) satisfied that claimant was suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment;
(b) not satisfied that it is necessary for the health or safety of the claimant or for the protection of other persons that he should receive such treatment [i.e. treatment while detained in hospital]; and
(c) satisfied that it is appropriate for the claimant to remain liable to be recalled to hospital for further treatment.
The MHRT directed the claimant's deferred conditional discharge on the conditions that the claimant:
(a) reside at such 24 hour supported accommodation as may be approved by the claimant's responsible medical officer ("RMO"); and
(b) shall accept all psychiatric and social supervision, attend follow-up appointments and comply with all such treatment and supervision as may be directed.
The MHRT deferred release of the claimant until such time as it was satisfied that the necessary arrangements had been made to meet these conditions and second the claimant had undergone a period of "testing" in the form of unescorted community leave.
The MHRT stated that:
"[6.2] His symptoms at the time of the restriction order included auditory and visual hallucinations and persecutory delusions. It is not disputed that when he is psychotic [the claimant] presents a risk to himself and others: the clinical history discloses suicidal ideation and self harm attempts as well as command hallucinations instructing him to harm others."
However, the MHRT accepted that the claimant had broadly speaking remained well since about June 2000, that medication had ceased in May 2001, and that the claimant was then free of all psychotic symptoms, albeit there was some evidence of three mild and short-lived psychotic episodes in 2002 and 2003.
The professional team treating the claimant at Chase Farm opposed his discharge on the grounds that:
"[6.5] …he lacks insight into the index offence, has not yet been tested on Community leave and may disengage from services if released into the Community. His mental state might then deteriorate and he could constitute a risk to himself and others. They require [the claimant] to be tested in this way so as to be able to identify further areas of psychological work that may benecessary. They say that he has not engaged well with such work over the years…"
The professional team also referred to the seriousness of the offence of manslaughter for which the claimant had been sentenced and the lack of remorse shown by the claimant. The practice at Chase Farm was not prepared to recommend restricted patients for discharge until they had been tested out on unescorted community leave, but the team's requests for such leave for the claimant had until that time been refused. Dr. de Souza, who was the Specialist Registrar to Dr. Mikhail the claimant's responsible medical officer("RMO"), concluded his report dated 13 April 2005 by stating that:-
"If discharged at the present time, I would be concerned that [the claimant ] would disengage from psychiatric aftercare, putting him at high risk of further breakdown and increased risk of violent offending. It is felt that a significant period of safe testing in the community with escorted and unescorted community leave would be required before we are able to recommend discharge. Psychological work at this time would address areas of risk that may arise during this period as well as revisiting areas of insight into illness and offending behaviour, which will be important in his reintegration into the community."
The MHRT found that there had been no major change in the claimant's mental state since April 2002 and that there was "no evidence before us that the claimant cannot complete his...
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R (OS) v Secretary of State for the Home Department
...patient granted a deferred conditional discharged was unlawful Facts OS, a Turkish national, claimed asylum on his Neutral Citation [2006] EWHC 1903 (Admin) Court and Reference: Administrative Court; CO/2043/2006 Silber J R (OS) and Home Secretary Appearances:C Buttler (instructed by Kaim ......