R (OS) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 2006 |
| Date | 24 July 2006 |
| Court | Queen's Bench Division (Administrative Court) |
Silber J
Appearances:C Buttler (instructed by Kaim Todner) for OS; A Henshaw (instructed by Treasury Solicitor) for the Home Secretary
Whether a refusal to approve unescorted leave for a patient granted a deferred conditional discharged was unlawful
OS, a Turkish national, claimed asylum on his entry to the UK in October 1998; this was refused in June 2001. In March 1999, he was charged with murder. He was transferred to hospital in February 2000. In September 2003, he was convicted of manslaughter and in April 2004 he was made the subject of a hospital order with a restriction order without limit of time, under ss. 37 and 41 Mental Health Act 1983. On 10 May 2005, a Mental Health Review Tribunal granted OS a deferred conditional discharge. It found that his mental illness was of a nature or degree to make liability to detention in a hospital for treatment appropriate; but that the separate requirement that it be necessary for his health or safety or the protection of others that he be so detained was not met provided that the conditions it imposed were met, which included that he reside at supported accommodation approved by his Responsible Medical Officer. Discharge was deferred until those conditions could be met; the Tribunal noted that he required a period of testing on unescorted community leave, which could be done whilst the accommodation was being located.
There was a further Tribunal hearing on 23 August 2005, which confirmed the first decision. OS had not yet had unescorted leave because permission for this was awaited from the Home Secretary, who must approve the grant of leave to restricted patients. On 25 November 2005, the Tribunal again confirmed its decision and expressed concern that the ongoing failure to grant unescorted community leave was hindering OS's rehabilitation. However, the Home Secretary on 23 December 2005 refused to grant unescorted leave, stating that it was inappropriate in light of OS's immigration status (which by then meant that he was liable to deportation) and consequent risk of absconding. Subsequently, on 10 January 2006, a deportation order was made, though the appeal process had not yet been completed.
On 24 February 2006, the Tribunal reconvened and made the same order as before: it declined to impose different conditions which might allow OS's release without a period of trial leave because of the need to protect the public from the risk of his being discharged without supervision. The Home Secretary made a further decision in March 2006 to refuse to grant unescorted leave, based on the risk of absconding and also the risk to the public in the event of such absconding (in light of his past offending). This decision was challenged in judicial review proceedings, it being submitted that the Home Secretary's position was undermined by errors of fact and approach.
I. Introduction
1. 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 s. 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 para 24 below.
II. Background
2. The claimant is a Turkish national, who was born 1 January 1979. He arrived in the UK 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 s. 41 of the Act, on the grounds " that it is necessary for the protection of the public from serious harm".
3. 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 s. 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;
(aa) 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 s. 17 above;
and if leave of absence is granted under the said s. 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 s. 17 and power to take the patient into custody and return him under s. 18 may be exercised at any time"
4. On 30 December 2004, the claimant made an application to the Mental Health Review Tribunal ("MHRT") for his discharge pursuant to s. 73 of the Act. The MHRT's powers to discharge restricted patients, whether absolutely or subject to conditions are conferred by s. 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.
5. 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"
6. If a patient is conditionally discharged by the MHRT, the Secretary of State may subsequently impose conditions: s. 73(4)(b). He may from time to time vary any condition imposed by the MHRT: s. 73(5). The Secretary of State may at any time recall a patient who has been conditionally discharged by the MHRT: s. 73(4)(a).
7. The Claimant applied to the MHRT on 30 December 2004 for his discharge pursuant to s. 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
8. 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 [ie 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.
9. 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.
10. 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.
11. 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."
12. However, the MHRT accepted that the claimant had broadly speaking remained well since about June 2000, that medication had...
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