Secretary of State for Justice v RB and another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Moses,Lord Justice Maurice Kay |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1608 |
| Docket Number | [2010] UKUT 454 (AAC) |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2011 |
[2011] EWCA Civ 1608
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE APPEALS TRIBUNAL
THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
(Vice President of the Court of Appeal Civil Division)
Lady Justice Arden
and
Lord Justice Moses
Case No: C3/2011/0851
Mr Martin Chamberlain (instructed by Treasury Solicitor) for the Appellant
Mr Simon Burrows (instructed by odonnells Solicitors) for the First Respondent
The Second Respondent did not appear
Hearing date : 12 October 2011
The respondent, RB, is 75 years old. RB suffers from a persistent delusional disorder. On the medical evidence, his condition is ongoing and it is still appropriate for him to be detained. He is in detention in a mental hospital. He is a "restricted patient" for the purposes of the Mental Health Act 1983 ("the MHA"), that is to say, on his conviction in 1999 for indecent assault, the Crown Court imposed a "restriction order". One of the effects of that order is that he is liable to be detained indefinitely until he is discharged either by the Secretary of State for Justice or a mental health review tribunal, now the First Tier Tribunal (see MHA, section 41, set out in paragraph 20 below).
The issue on this appeal arises out of the following development relating to the care of RB. The medical experts are satisfied that he could be cared for in a location with less security than a mental hospital, but that his transfer to that institution would need to be subject to conditions, including a condition that he should have only escorted access to the community. So the most he can hope for is a conditional discharge. Before the Upper Tribunal (Carnwath SPT, HHJ Sycamore CP and UTJ Rowland), RB succeeded in obtaining an order pursuant to section 73 of the Mental Health Act 1983 ("the MHA") that he should be conditionally discharged into the community to reside in a care home. However, the conditions imposed on him would inevitably still amount to a deprivation of his liberty. Nonetheless, RB is agreeable to that course and the medical practitioners caring for him support it also. No doubt his quality and enjoyment of life would improve as a care home would be a more pleasant and congenial place to live than a mental hospital. The Secretary of State for Justice, however, appeals against that order and contends that section 73 confers no power to make an order of this kind. I set out section 73 in paragraph 23 below.
Background to the discharge provisions of the MHA —Convention jurisprudence
One of the purposes of the MHA was to give effect to the rights guaranteed by the European Convention on Human Rights ("the Convention") for the benefit of a person subject to compulsory detention on the grounds of his mental disorder. As the Senior President and HHJ Sycamore held at paragraph 15 of their joint judgment:
"Until the 1983 Act, tribunals only had an advisory role in relation to restricted patients. Although a patient was entitled to have his case referred to a tribunal, the role of the tribunal was limited to providing advice to the Secretary State. The ultimate decision as to whether or not to discharge rested with the Secretary of State."
Even if this were not its purpose, the MHA would, in any event, have to be interpreted so far as possible so as to be compatible with Convention rights, there being no contrary indication: see Human Rights Act 1998, section 3 and see generally the leading case of Ghaidan v Godin-Mendoza [2004] 2 AC 557.
The relevant Convention rights include the right to security and liberty guaranteed by article 5 of the Convention, and the starting point for any discussion in this case is, therefore, article 5, which so far as relevant provides as follows:
"Article 5
Right to liberty and security
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention … of persons of unsound mind…
…
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
RB is entitled to the full benefit of article 5. It has not been suggested that the mental illness suffered by RB is not such as to render him "of unsound mind" for the purposes of article 5.
In the case of detention of persons in the position of RB, compliance with article 5 entails extensive procedural guarantees. In the landmark case of Winterwerp v The Netherlands (1979–1980) 2 EHRR 387, the Strasbourg Court held that the arbitrary detention of a person of unsound mind would be unlawful. This, in effect, is the organising principle and accordingly, detention had to be justified by objective medical evidence warranting compulsory detention. Moreover, the detention had to be in accordance with domestic law, as interpreted by the national court, but the Strasbourg court could review the domestic law for compliance with the Convention. That was an application of the Strasbourg court's doctrine of subsidiarity. Under this doctrine, which underlies the whole of the Convention, the contracting states have primary responsibility for enforcing Convention rights (see article 1 of the Convention). The jurisdiction of the Strasbourg court is supervisory, and applies where a contracting state has failed to fulfil its obligations. Consistently with its supervisory role and as one of the ways open to it of applying the doctrine of subsidiarity, the Court may, save of course in the case of the absolute rights (such as the right to life), discharge its role by defining what needs to be done by the contracting state in order to fulfil a Convention right within its own jurisdiction by laying down minimum safeguards applicable to all the contracting states. The methods of implementation of those minimum guarantees is then left to the contracting states. Winterwerp is an example of such a case.
In particular, in order to comply with article 5(4), the Strasbourg court held that:
"The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals". (paragraph 55)
Moreover, this review had to be a suitable judicial procedure. As to the nature of that procedure the Court held:
"The judicial proceedings referred to in Article 5 para. 4 (art. 5–4) need not, it is true, always be attended by the same guarantees as those required under Article 6 para. 1 (art. 6–1) for civil or criminal litigation (see the above-mentioned De Wilde, Ooms and Versyp judgment, p. 42, para. 78 in fine). Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty" (see the last-mentioned judgment, p. 41, para. 76). Mental illness may entail restricting or modifying the manner of exercise of such a right (see, as regards Article 6 para. 1 (art. 6–1), the above-mentioned Golder judgment, p. 19, para. 39), but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves." (emphasis added)
The Strasbourg court, therefore, in harmony with the doctrine of subsidiarity, permitted national law to derogate from the right of access to court in the light of the patient's mental illness, provided that the very essence of the right was not destroyed. As it said at the end of its judgment:
"While, as has been indicated above in connection with article 5(4) (see paragraphs 60 and 63), mental illness may render legitimate certain limitations upon the exercise of the "right to a court", it cannot warrant the total absence of the right as embodied in article 6 (1)". (paragraph 75)
In the subsequent case of HL v United Kingdom (2005) 40 EHRR 32, a person was detained informally as a voluntary mental patient, and he later complained that his detention had violated article 5(4) of the Convention because he had not had any right to test the legality of his detention as the statutory right of review did not apply to a person in his position. His complaint was upheld. The Strasbourg court emphasised that it was not enough that these conditions were in fact observed. It held that these conditions had to be clearly laid down in domestic law. It therefore rejected the argument of the United Kingdom government that:
"Consensual non-imposed treatment was considered more likely to attract a degree of co-operation from the patient and to be beneficial. Furthermore, informal admission and treatment were in the incapacitated patient's best interests and treated that person with the required dignity." (paragraph 80).
The requirement that the procedures be enshrined in the law are a practical safeguard against arbitrary conduct by any arm of the state. Moreover the high value which the Strasbourg court attaches to the procedural guarantees secured by article 5(4), and to strict compliance with legal certainty as to the existence of those guarantees, can be clearly seen from the Strasbourg Court's judgment in HL, and in particular from the following observations:
"90… The Court recalls that the right to liberty is too important in a...
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