RH v South London & Maudsley NHS Foundation Trust and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Moses,Lord Justice Sedley |
| Judgment Date | 12 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1273 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2010 |
| Docket Number | Case No: C3/2010/0796 |
[2010] EWCA Civ 1273
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Judge Rowland Upper Tribunal Administrative Appeals Chamber
Before : Lord Justice Sedley
Lord Justice Moses
and
Lord Justice Sullivan
Case No: C3/2010/0796
Appeal No. M/695/2009
Miss Laura Davidson (instructed by Steel & Shamash) for the Appellant
Vikram Sachdeva (instructed by Bates Wells & Braithwaite) for the First Respondent
Paul Greatorex ( instructed by The Treasury Solicitors) for the Second Respondent
Hearing dates : Thursday, 28th October 2010
Lord Justice Sullivan :
Introduction
This is an appeal with the permission of the Upper Tribunal (Administrative Appeals Chamber) (“UT”) against the UT's decision dated 8 th February 2010 (corrected 15 th March 2010) dismissing the Appellant's appeal against the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) (“FTT”) on 18 th November 2008 rejecting his application under section 75 (2) of the Mental Health Act 1983 (“the Act”) for a direction under section 75(3)(b) that the restriction order imposed upon him on 14 th March 1978 under the Mental Health Act 1959 (“the 1959 Act”) should cease to have effect so that he would cease to be liable to be detained under a hospital order.
Factual Background
The hospital order and the restriction order were made following the Appellant's conviction on 14 th March 1978 on two counts of manslaughter. In October 1977 he had killed his two young children. The older child, aged 9, was poisoned and then drowned in the bath. The younger child, aged 5, was poisoned on the following day, and then suffocated. Eight days later the Appellant attempted to commit suicide by poisoning, following which he was arrested. He was admitted to Broadmoor Hospital on 6 th April 1978, transferred to Ashworth Hospital in 1983, and was conditionally discharged from Ashworth in 1986.
On 26 th November 1997 he was recalled to hospital because he had faxed threatening letters and messages to his probation officer and mental health professionals. He was admitted to the Bracton Centre, but was subsequently granted a conditional discharge by a Mental Health Review Tribunal on 4 th November 1998. At the time of the hearing before the FTT on 18 th November 2008 the Appellant was subject to three conditions. The first required him to live at a particular address. The second and third conditions were:
“2. That he should be under the medical supervision of his of a social worker appointed to his case.” RMO and accept whatever medical treatment he may from time to time prescribe and attend outpatients appointments as necessary.
3. That he should be under the supervision and direction
Since 18 th November 1998 the Appellant had been living in the community in compliance with those conditions.
The Appellant's application under section 75(3)(b) for the discharge of his restriction order was supported by his Responsible Medical Officer (RMO), now Responsible Clinician (RC) Dr Hukin, by his social supervisor, Mr Oguntoyinbo, and by his psychotherapist, Mr Hillier-Davies. In addition to hearing oral evidence from the Appellant, Dr Hukin and Mr Oguntoyinbo, the FTT considered written reports by Mr Hillier-Davies and an independent forensic psychiatrist, Dr Boast, who also supported the Appellant's application. The FTT also considered a written statement and supplementary statements from the Secretary of State opposing the application. The only opposition to the application was that of the Secretary of State.
The Statutory Scheme
Although the Court in 1978 dealt with the Appellant under the 1959 Act, it is convenient to consider the statutory scheme by reference to the current provisions in the Act. Following conviction for an offence punishable by imprisonment, the Court has power to make a hospital order under section 37 of the Act if it is satisfied:
“….that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that….the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his conditions.…[and]….the court is of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the offender, and to the other available means of dealing with him, that the most suitable method of disposing of the case is by way of [a hospital]….order….”: subsections 37(1) and (2).
Section 41(1) provides that, where the Court makes a hospital order, it may also make a restriction order if:
“it appears to the Court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section…. .”
The “special restrictions” referred to in sub-section (1) include the following modifications to the regime under Part II of the Act:
“(a) none of the provisions of Part II of this Act relating to section 42, 73, 74 or 75 below:” subsection 41(3). the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under
A patient who is subject to a hospital order and a restriction order may apply to a Mental Health Review Tribunal (now the FTT) to be discharged. Section 73 provides that on such an application:
“the tribunal shall direct the absolute discharge of the patient if-
(a) the tribunal are not satisfied as to the matters Secretary of State.” mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) the tribunal are satisfied 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—
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply, the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(4) Where a patient is conditionally discharged under this section-
(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.”
The matters mentioned in paragraph (b)(i) and (ii) of section 72(1) are:
“(i) that he is then suffering from mental illness, 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 necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment;…. .”
There is no suggestion that the decision to conditionally discharge the Appellant on 4 th November 1998 was unlawful. In particular, it is not suggested that an absolute discharge would have been justified at that time. As a conditionally discharged patient subject to a restriction order the Appellant was entitled to apply to the FTT under section 75(2) of the Act. Subsection 75(3) provides that:
“Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may-subject shall cease to have effect; …. .”
(a) vary any condition to which the patient is subject in connection with his discharge or impose nbunal are satisfied that it is not appropriate for the patient ay condition which might have been imposed in connection therewith; or
(b) direct that the restriction order &….to which he is subject shall cease to have effect; …. .”
The SC Case
The manner in which the FTT should exercise the discretion conferred by section 75(3) was considered by Munby J (as he then was) in R (on the application of SC v The Mental Health Review Tribunal and the Secretary of State for Health [2005] EWHC 17 (Admin) (“SC”). Munby J rejected the submission that section 75(3) did not provide a sufficient degree of forseeability, saying in paragraph 57 of his judgment that the Tribunal would exercise its powers against the background of the statutory framework contained in the Act:
“Accordingly the Tribunal when exercising these powers will need to consider such matters as the nature, gravity and circumstances of the patient's offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient re-offending, the degree of harm to which the public may be exposed if...
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