R (H) v Secretary of State for the Home Department and another
| Jurisdiction | England & Wales |
| Judge | LORD OF RODGER OF EARLSFERRY,LORD SCOTT OF FOSCOTE,LORD HOBHOUSE OF WOODBOROUGH,LORD STEYN,LORD BINGHAM OF CORNHILL |
| Judgment Date | 13 November 2003 |
| Neutral Citation | [2003] UKHL 59 |
| Date | 13 November 2003 |
| Court | House of Lords |
[2003] UKHL 59
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
and another
My Lords,
This appeal raises important questions of principle and practice concerning the conditional discharge from hospital of restricted patients.
In March 1995 IH (the appellant) severely mutilated his three-year-old son. He was charged with causing grievous bodily harm with intent to do so. In July 1995, in the Crown Court at Wood Green, he was found not guilty of that offence by reason of insanity. An order was made under section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) authorising his admission to such hospital as might be specified by the Secretary of State for the Home Department. In September 1995 the Secretary of State issued a warrant authorising his transfer to and detention in Rampton Hospital, where he was already confined. Since that time the appellant has been a patient at Rampton. His status throughout has been that of a patient subject to a restriction order without limit of time made under sections 37 and 41 of the Mental Health Act 1983. The appellant does not challenge the lawfulness of his detention before 3 February 2000 or after 25 March 2002. But he contends that his detention between those dates was in breach of his rights guaranteed by article 5 of the European Convention on Human Rights and so unlawful.
The appellant was diagnosed as suffering from paranoid psychosis. In July 1996, when his case was first considered by a mental health review tribunal, no order was made for his discharge. Dr Sagar, the appellant's responsible medical officer (RMO) at Rampton, reported to a second tribunal hearing in September 1998 that the appellant's condition had improved to a point which would permit his treatment in less secure conditions at a regional secure unit, but the tribunal made no direction for discharge or reclassification of the appellant's mental disorder. He was still judged to suffer from mental illness and his further detention for the protection of the public was found to be justified. The tribunal endorsed the view of the RMO that the appellant should be transferred to a regional secure unit, but such a transfer required the consent of the Secretary of State and this consent was withheld, so the appellant remained at Rampton. A third tribunal hearing took place on 7 June 1999. Dr Sagar remained of the view that the appellant was free of symptoms and that his mental illness was in a state of natural remission, and a psychiatrist instructed for the appellant recommended his conditional discharge. But Dr Page, by this time the appellant's RMO at Rampton, did not support his application for conditional discharge, which was resisted by the Secretary of State. As it was empowered to do under the Mental Health Review Tribunal Rules 1983 ( SI 1983/942) the tribunal adjourned the hearing on these terms:
"Having considered all the medical evidence we have come to the conclusion that [the appellant] is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment.
We adjourn the hearing until 1st Dec 1999 at the latest for a full care plan to be drawn up. The Terms which we consider should probably be attached to the Conditional Discharge are:-
(1) Supervision by a named Social Worker;
(2) Supervision by a named forensic psychiatrist; [the appellant] to be subject to the directions of the Psychiatrist including any relating to drug monitoring;
(3) Residence at a suitable hostel, preferably staffed 24 hours a day.
If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed.
We require Haringey Council to provide full details of a suitable plan at the adjourned hearing."
This reference to Haringey Council embraced the Enfield and Haringey Health Authority, which owed the appellant a duty pursuant to section 117 of the 1983 Act to provide after-care services on his discharge.
The health authority made extensive efforts to find forensic psychiatric supervision for the appellant upon any discharge, but it was unsuccessful. This was primarily because Dr Akinkunmi, consultant forensic psychiatrist of the North London Forensic Service, which provided psychiatric services on behalf of the authority, took the view, shared by all his colleagues, that "a proposed conditional discharge… direct into the community was clinically inappropriate, and unsafe". He was willing to admit the appellant to his medium secure unit, but he and his colleagues declined to supervise the appellant as named forensic psychiatrist on conditional discharge. Transfer to the regional secure unit in question was precluded by the Secretary of State's withholding of consent.
The tribunal reconvened on 3 February 2000 under the chairmanship of Ms Recorder Cotton QC. Dr Page reported the opinion of Dr Akinkunmi. Her own view was that the appellant was making progress and remained free of psychotic symptoms but that further psychological work was required to address risk areas. She favoured transfer to a regional secure unit. The tribunal considered a body of material which included a letter from Dr Akinkunmi opposing conditional discharge. The decision of the tribunal, recorded on a prescribed form, was (so far as material) in these terms:
"4. Decision of the tribunal:
(d)The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below.
6. Findings of the tribunal concerning the statutory criteria:
The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions (A) or (B) is 'Yes', and the answer to question (C) is also 'Yes'.
The tribunal is obliged to direct the conditional discharge of the patient if the answer to either of the questions (A) or (B) below is 'Yes', but the answer to question (C) is 'No'.
Question
Decision of the tribunal
A. Is the tribunal satisfied that the patient is not now 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?
Yes
B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?
Yes
C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?
No
7. Conditions imposed by the tribunal (conditional discharge only): And the reasons for the tribunal's decision
Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a conditional discharge order in the following terms: (1) there shall be supervision by a named social worker; (2) there shall be supervision by a named psychiatrist, preferably by a forensic psychiatrist; (3) [the appellant] shall be subject to the directions of the psychiatrist including any relating to drug monitoring; (4) [the appellant] shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day; (5) [the appellant] shall be excluded from Enfield, Haringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. [The appellant's] discharge shall be deferred until the arrangements listed have been made."
In a written statement dated 28 March 2002 Ms Cotton has helpfully expanded on the tribunal's thinking when it made this decision. Its view was that the appellant probably still suffered from an underlying mental illness but that this did not require continued detention in hospital. It considered that if a conditional discharge were ordered a psychiatric supervisor would be found for the appellant. She continued:
"We found that continued detention of [the appellant] was not necessary, on the basis that the conditions we imposed were to be fulfilled. The imposition of conditions is a very important factor in determining whether a patient can safely be discharged. The requirement for supervision of a patient by a psychiatrist is a standard condition imposed in conditional discharge - that is to say that it is one commonly imposed. It has an important function, however, and I do not consider that the power to recall a patient to hospital can be divorced from the condition of psychiatric supervision. In the case of [the appellant], the ability to recall [the appellant] and the requirement of psychiatric supervision were inseparable as, in...
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