RH v South London and Maudsley NHS Foundation Trust [Court of Appeal; C3/2010/0796]
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 2010 |
| Date | 12 November 2010 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal; C3/2010/0796
Sedley, Moses and Sullivan LJJ
L Davidson (instructed by Steel &Shamash) for H; V Sachdeva (instructed by Bates Wells &Braithwaite) for the Trust; P Greatorex (instructed by the Treasury Solicitor) for the Secretary of State for Justice.
Whether the decision not to lift a restriction order was adequately reasoned; the proper test for the lifting of a restriction order; the approach to granting permission to appeal to the Court of Appeal from the Upper Tribunal.
In 1978, RH was made subject to hospital and restriction orders for the manslaughter of his children. He was conditionally discharged in 1986, recalled in 1997 after sending threatening letters to various professionals (after seeing a report that described his crimes as "murder"), and again conditionally discharged in 1998. In 2008, he applied to have the restriction order lifted under s75 Mental Health Act 1983; he had support from his responsible clinician, social worker and an independent psychiatrist, but the Secretary of State opposed the application. The Tribunal rejected the application after a hearing on 18 November 2008, finding that liability to recall was not shown to be inappropriate as RH continued to have a personality disorder and that the arrangements under the conditional discharge provided significant assistance to his ability to cope, including in relation to potential problems from gambling and alcohol, although it was accepted that he was unlikely to commit a further serious offence.
RH appealed, arguing that the Tribunal's reasons were inadequate in light of the unanimous support for the lifting of the restriction order. In the Upper Tribunal, the respondent hospital did not appear and the Secretary of State made no submissions on law. The Upper Tribunal judge held ([2010] MHLR 118) that the reasons given by the Tribunal demonstrated that it had directed itself correctly as to the law and showed what factors had been taken into account; that it had been entitled to take into account the factors it relied on, and to look to the longer term than the report writers whose conclusions it did not accept. Accordingly, the appeal was dismissed; but the Upper Tribunal judge also granted permission to appeal to the Court of Appeal on the basis of written grounds which added a fresh argument that the decision to uphold the restriction order breached Art 8 ECHR by placing the burden of proof on the patient to show that a restriction order was not required, and also suggested that the Tribunal had erred in comparing a conditionally discharged patient to a life sentence prisoner, in finding that a restriction order should remain in place for life, and in directing that its decision should be brought to the attention of future Tribunals considering the case.
Sullivan LJ:
Introduction
1. This is an appeal with the permission of the Upper Tribunal (Administrative Appeals Chamber) ("UT") against the UT's decision dated 8 February 2010 (corrected 15 March 2010) [2010] MHLR 118, dismissing the Appellant's appeal against the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) ("FTT") on 18 November 2008 rejecting his application under s75(2) of the Mental Health Act 1983 ("the Act") for a direction under s75(3)(b) that the restriction order imposed upon him on 14 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
2. The hospital order and the restriction order were made following the Appellant's conviction on 14 March 1978 on 2 counts of manslaughter. In October 1977 he had killed his 2 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 April 1978, transferred to Ashworth Hospital in 1983, and was conditionally discharged from Ashworth in 1986.
3. On 26 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 November 1998. At the time of the hearing before the FTT on 18 November 2008 the Appellant was subject to 3 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 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 of a social worker appointed to his case."
Since 18 November 1998 the Appellant had been living in the community in compliance with those conditions.
4. The Appellant's application under s75(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
5. 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 s37 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 …:" subss 37(1) and (2).
6. 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 …"
7. The "special restrictions" referred to in subs(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 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 section 42, 73, 74 or 75 below:" subs41(3).
8. 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 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."
9. The matters mentioned in para (b)(i) and (ii) of s72(1) are:
"(i) that he is 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 necessary for the health or safety of the patient or...
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RP v Dudley & Walsall Mental Health Partnership NHS Trust and The Secretary of State for Justice [2016] UKUT 0204 (AAC)
...to the tribunal. 13. The grounds of appeal cite the Court of Appeal decision in RH v South London and Maudsley NHS Foundation TrustMHLR[2010] MHLR 341. There is, of course, no problem with that. They also reason by comparison with the facts of that case. That is more of a problem. Decisions......
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RP v Dudley and Walsall Mental Health Partnership NHS Trust and the Secretary of State for Justice
...put to the tribunal. 13. The grounds of appeal cite the Court of Appeal decision in RH v South London and Maudsley NHS Foundation Trust [2010] MHLR 341. There is, of course, no problem with that. They also reason by comparison with the facts of that case. That is more of a problem. Decision......