Re Campbell ; R v Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 29 July 1987 |
| Judgment citation (vLex) | [1987] UKHL J0729-2 |
| Date | 29 July 1987 |
| Court | House of Lords |
[1987] UKHL J0729-2
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Ackner
Lord Oliver of Aylmerton
Lord Goff of Chieveley
My Lords,
The appellant, who is now 46 years old, suffers from psychopathic disorder as defined in section 1 of the Mental Health Act 1983. When he was 17 years old he sexually abused and strangled a 6 year old boy. He was acquitted of murder, but convicted of manslaughter on the ground of diminished responsibility. There being no power at that time to make a hospital order, he was sentenced to 10 years' imprisonment. He was released in 1965. In 1969 he became a voluntary patient at the West Middlesex Hospital and shortly thereafter was admitted to and detained at Broadmoor Hospital pursuant to section 26 of the Mental Health Act 1959. He disclosed that he had committed certain burglaries of which he was in due course convicted and he was thereupon made subject to a hospital order under section 60 of the Act of 1959 and a restriction order without limit of time under section 65. Those orders continue in force under the corresponding sections 37 and 41 of the consolidating Act of 1983.
The Secretary of State has power under section 42 of the Act of 1983 to order the discharge of a patient subject to a hospital order and a restriction order either absolutely or subject to conditions. Upon absolute discharge both the hospital order and the restriction order cease to have effect. A conditional discharge leaves the patient liable to recall by the Secretary of State, which, in effect, reactivates the hospital order and the restriction order. Under the Act of 1959 it was only by the exercise of this executive discretion that such a patient could secure his discharge. But now such a patient (a "restricted patient" within the definition of that phrase in Part V of the Act of 1983) enjoys the benefit of one of the changes in the law effected by the Mental Health (Amendment) Act 1982 in that a Mental Health Review Tribunal is empowered to order his discharge under section 73 of the Act of 1983.
The provisions of section 73 of the Act of 1983 upon which this appeal depends, if written out in full to include in subsection (1)( a) the words incorporated by reference from section 72(1)( b), read as follows:
"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient is satisfied - ( a)(i) that he is not then 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 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.
(2) Where in the case of any such patient as is mentioned in subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph ( a) of that subsection but not as to the matter referred to in paragraph ( b) of that subsection the tribunal shall direct the conditional discharge of the patient.
…
(7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given."
The effects of absolute and conditional discharge by order of a Mental Health Review Tribunal are the same as those respectively of absolute and conditional discharge by the Secretary of State under section 42. In addition, the Secretary of State may add to the conditions imposed by the tribunal and may, from time to time, vary any conditions, whether imposed by the tribunal or by himself.
In June 1984 the appellant applied to the Oxford Regional Mental Health Review Tribunal for his discharge. The procedure in relation to such an application is governed by the Mental Health Review Tribunal Rules 1983 ( S.I. 1983 No. 942) ("the rules"). I need not refer to them in any detail. In accordance with the rules, reports on the appellant by Dr. Tidmarsh, the consultant psychiatrist who had been responsible for the care and treatment of the appellant at Broadmoor since 1981, were submitted to the tribunal. These were to the effect that discharge would be quite inappropriate. The Secretary of State, who is clearly the only party capable of representing any interest the public may have in opposing an application for discharge, notified the tribunal of his opposition. The tribunal heard and determined the application on 12 February 1985. In breach of the rules the Secretary of State was not given notice of the hearing. A report commissioned by the appellant's solicitor from Dr. Russell Davis, a consultant psychiatrist who had seen the appellant for an aggregate of one and a half hours on two visits in January 1985 was put before the tribunal. This supported the application for discharge on the ground that the appellant's disorder was not "of a nature or degree which makes it appropriate for him to be liable to be detained." A copy of this report, dated 1 February 1985, was sent to the Secretary of State, as the rules require, but did not reach him until the very day of the tribunal's determination. Dr. Tidmarsh, your Lordships were told, attended the hearing and was cross-examined by the solicitor appearing for the appellant. Dr. Russell Davis did not attend.
The determination of the tribunal is recorded in a document headed "Decision of the Oxford Regional Mental Health Review Tribunal." The operative part reads as follows:
"The tribunal has considered the patient's application relating to the above named and hereby directs that:-
This patient shall be conditionally discharged, such discharge to be deferred to Friday, 28 June 1985, for proposals to meet the conditions to be prepared.
The conditions shall be that:-
1. The patient reside at and abide by the rules of a suitably supervised hostel which has an active rehabilitation programme.
2. The patient shall be placed under the supervision of a suitable probation officer or suitable social worker, who shall report from time to time as requested to the Home Office and the hospital referred to in condition 3.
3. The patient shall attend a psychiatric out-patient clinic as directed by a consultant psychiatrist yet to be nominated.
The tribunal is satisfied about these reasons because:-
They were satisfied that this patient continues to suffer from psychopathic disorder but not of a nature of degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment but were satisfied that this patient should remain...
To continue reading
Request your trial
-
R (H) v Secretary of State for the Home Department and another
...these concerned the construction put on section 73(2) of the 1983 Act by the House of Lords in R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department [1988] AC 120. In its judgment in the present case ( [2002] EWCA Civ 646, [2003] QB 320) the C......
-
R (H) v Secretary of State for the Home Department and another; R (on the application of IH) v Nottinghamshire Healthcare NHS Trust
...albeit on a basis that was incompatible with the decision of the House of Lords in Campbell v Secretary of State for the Home Department [1988] 1 AC 120. For IH, Mr Tim Owen QC obtained permission to appeal from Bell J. in order to challenge that conclusion. His initial stance was that, whe......
-
R v Mental Health Review Tribunal, ex parte Hall
...It cannot even set a time limit because, as Lord Bridge said in R v Mental Health Review Tribunal ex parte Home Secretary (Campbell) [1988] AC 120 at 129E— "In the nature of the case it is impossible for a tribunal in making a deferred direction for conditional discharge to predict how lon......
-
R (W) v Doncaster Metropolitan Borough Council
...important because it set aside the ruling in R v Oxford Mental Health Review Tribunal Ex p the Secretary of State for the Home Department [1988] AC 120 that once a tribunal was satisfied the patient should be conditionally discharged it could only defer the order under section 73(7) for the......