R (W) v Doncaster Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Mance LJ,Judge LJ |
| Judgment Date | 06 May 2004 |
| Neutral Citation | [2004] EWCA Civ 378 |
| Docket Number | Case No: C3/2003/0387 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 2004 |
[2004] EWCA Civ 378
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
MR JUSTICE STANLEY BURNTON
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Judge
The Right Honourable Lord Justice Mance and
The Right Honourable Lord Justice Scott Baker
Case No: C3/2003/0387
Richard Gordon Q.C and Kris Gledhill (instructed by Howells) for the Appellant
Robert Jay Q.C and Robert Weir (instructed by Halliwell Landau) for the Respondent
The appellant, W, is a mental patient. He claims that for seven or more months he was detained in a medium secure hospital when he should have been living in the community pursuant to a conditional discharge ordered by a Mental Health Review Tribunal (MHRT). He claims that the respondent, the Doncaster Metropolitan Borough Council, was responsible for this state of affairs and claims damages for false imprisonment and under the Human Rights Act 1998. Stanley Burnton J dismissed his claim but gave permission to appeal because the case involved points of principle on which the ruling or guidance of the Court of Appeal is required.
The Facts
W is now aged 30. In April 1994 he was detained with a restriction order under Sections 37 and 41 of the Mental Health Act 1983 ("the 1983 Act"). He had attacked with a knife a fellow resident in bed and breakfast accommodation where he was staying. He had had previous involvement with the psychiatric services and was suffering from mental illness at the time.
He was placed first at Arnold Lodge, Leicester, a medium secure hospital. In 1996 he was transferred to Wathwood Hospital, Rotherham. In mid 1998, following a change of medication, his condition improved, but on Christmas Day 1998 he savagely attacked a fellow patient. Dr Mendelson, his responsible medical officer ("RMO") felt he constituted a grave and immediate danger to the public and he was assessed for admission to Rampton, a high security hospital. However, he made a dramatic improvement to the extent that by January 2000 he was described as "remarkably stable". The Secretary of State agreed that he should have periods of unescorted leave in the community and these were successful.
A move to Loversall Hospital in Doncaster was considered as the next stage in his rehabilitation, but when he was there on a period of leave he met the victim of his 1998 attack. Nothing untoward happened but, because W felt he could not cope with the proximity of his victim, the proposed move to Loversall did not take place.
On 12 March 2001 W's case was referred to a MHRT. A restricted patient's case must be referred to a tribunal once every 3 years even if the patient does not himself apply.
The respondent was the local authority responsible for after-care services for W because he had last lived in its area before he was detained. Ms Arnell-Smith (now Mrs Richardson) has at all material times been his caseworker.
W's case was considered by the MHRT on 9 July 2001. The material it considered included:
i) A statement from the hospital that he was receiving a significant amount of leave that had included some time at a less secure hospital.
ii) The following medical evidence. Two reports from Dr Mendelson, the RMO, supplemented by short oral evidence updating matters since the previous April and a written report by Dr. Soliman who had been instructed by the solicitors for W. It was all to the same effect. Dr Soliman said in his report:
"The main risk factors in Mr W's case is the likelihood he might stop taking his medication with the consequent relapse of his illness, causing him to become irritable and aggressive towards himself or others. This risk could be significantly diminished if he is offered a community place where there is staff available 24 hours who could also monitor his medication, in addition to the continuous involvement of the community team, including his CPN, Social Worker and Community Support Workers.
Given the stability of Mr W's mental state over the past 2 years or so and the encouraging degree of insight he has gained, I would consider him to present a low risk to the community at large, and hence fit to be discharged from the hospital on a conditional discharge.
Should the panel agree to grant him a conditional discharge, I would be prepared to provide psychiatric supervision for him in the community. However, this offer would be subject to two conditions:
Firstly, during his first year in the community, should his mental condition deteriorate to such an extent that hospital admission is required, Wathwood Hospital will undertake to admit him.
Secondly, provision should be made available to ensure that full community support in Rotherham, including CPN, Social Worker and Community Support Worker are in place prior to his discharge from Wathwood Hospital."
Dr Soliman was against putting pressure on him to return to Doncaster.
The view of Doncaster Social Services was that discharge was inappropriate and that W's discharge into the community should be preceded by a move to a non-secure hospital.
The tribunal accepted Dr Soliman's opinion. It was not satisfied W was suffering from a mental condition of the kind specified in section 72(1)(b)(i) of the 1983 Act. It was satisfied it was not necessary for his health or safety, or the protection of others, for him to receive medical treatment, but it was not satisfied it was not appropriate for him to remain liable to be recalled to hospital for further treatment. It imposed the following conditions and deferred his conditional discharge under section 73(7) of the 1983 Act.
'1. He shall receive psychiatric supervision from Dr A H Soliman or his successor.
2. He shall receive social supervision from a named social worker.
3. He shall reside at appropriate accommodation as approved by Dr Soliman and the named social worker."
The tribunal said in expressing its reasons that W appeared to have a clear insight into his condition and an understanding of the need for continued medication and continued:
"Though he has enjoyed generous unescorted leave in recent months there is still a concern as to how (W) may react if left unsupervised and his previous mental history of violence, absconding, substance abuse and frank mental illness means that he must remain liable to recall.
For some time it has been recognised both within the unit and by the designated social workers that the patient is ready to move on. However, a transfer to a less secure hospital accommodation has not taken place, in part because of understandable concerns on (W's) part about a return to the Doncaster area and renewed acquaintance with the victim of the index offence. In fact it seems to us that though such may have been appropriate as a 'test exercise' the statutory criteria did not demand such.
In the last few weeks real progress has been made to identify a suitable hostel placement. No formal assessment (at Westfield House) has yet taken place and thus, though we hope such may be (W's) next move the conditions we impose are necessarily more general than would otherwise have been the case."
Ms Arnell-Smith was the named social worker for the purposes of the tribunal's decision. What happened was this. I recount the events as described in the judgment of the judge. On 16 July 2001, Dr Mendelson wrote to her asking her to make an application for W's placement to Westfield House Hostel in Rotherham. She replied on 19 July 2001, stating that she was required to produce a current, comprehensive assessment of his needs before pursuing a formal application for placement. She requested a recent psychiatric/medical assessment of W, a risk assessment summary, a recent occupational therapy assessment and a psychological/nurse therapist assessment summary identifying W's perceived psychological support needs. On the following day, she wrote to the principal social worker at Wathwood asking for her opinion regarding W's "future needs with specific reference to the suitability of a placement at Westfield House and the availability of appropriate after care provision within the Rotherham area." The principal social worker replied on 6 August 2001. She stated:
"It is my view that (W) requires 24 hour care provided by staff who are experienced not only in mental health but if possible forensic issues. I understand that you have visited Westfield House to carry out your own assessment regarding the suitability of the unit. It is my view that Westfield may not have adequate staffing levels and staff are not social work or RMN trained. (W) can be dependent on a service and will require a comprehensive care package on discharge, this will include day care. If (W) resettles in an area outside of Doncaster then there will be funding implications for Day Care."
She suggested a meeting to discuss the options.
Ms Arnell-Smith herself visited Westfield House on 31 July 2001. She attended a clinical team meeting at Wathwood Hospital on 16 August 2001, when the principal social worker practitioner at Wathwood expressed serious reservations as to the suitability of Westfield House for W.
Ms Arnell-Smith did not receive all of the reports she had requested in her letter of 19 July 2001. She nonetheless produced a detailed Community Mental Health Team Assessment Document dated 6 September 2001. She concluded:
"Westfield House is a privately managed residential facility providing primary rehabilitation but also continuing care to clients from 18–65 years. However, this...
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