THE QUEEN ON THE APPLICATION OF IH v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) SECRETARY OF STATE FOR HEALTH MENTAL HEALTH REVIEW TRIBUNAL NOTTINGHAMSHIRE HEALTHCARE NHS TRUST Appellant ‘C’ [2002] EWCA Civ 646

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

The Hon Mr Justice Bell

[2002] EWCA Civ 646

Case No Case No: C/2001/2810

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

THE QUEEN ON THE APPLICATION OF IHAppellant

(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) SECRETARY OF STATE FOR HEALTH MENTAL HEALTH REVIEW TRIBUNAL NOTTINGHAMSHIRE HEALTHCARE NHS TRUST Appellant ‘C’

Respondents InterestedParties

Before

Lord Phillips

Lord Justice Jonathan Parker

Lord Justice Dyson

Tim Owen QC and Miss Aswini Weereratne (instructed by David Mylan for the Appellant)

Philip Havers QC and Nathalie Lieven (instructed by The Treasury Solicitor for the Respondents)

Lisa Giovanetti (instructed by The Treasury Solicitor for MHRT an interested party)

Kristina Stern (instructed by Hempsons) for the Nottinghamshire Healthcare NHS Trust an interested party

Mr Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair for Appellant ‘C’ an interested party)

Date 15 May 2002

Lord Phillips MR : This is the judgment of the Court. IH has since 1995 been detained in Rampton Special Hospital. He was transferred there on a warrant issued by the Home Secretary, having been found not guilty by reason of insanity of a charge of causing grievous bodily harm with intent. His status is the same as that of a restricted patient without limit of time under ss.37 and 41 of the Mental Health Act 1983 (‘the Act’). He contends that for a period of approximately two years, ending in March of this year, his detention violated Article 5 of the European Convention on Human Rights (‘the Convention’) and that this came about because the relevant legislation is incompatible with the Convention. He seeks a declaration to that effect.

[2]Bell J. held that the relevant legislation could be interpreted in a manner compatible with the Convention, 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, whether or not Campbell required to be reviewed in the light of the Human Rights Act 1998, and he suggested that it did not, no re-interpretation of the legislation could provide the answer to the problem that has arisen in this case. That problem is the impasse that can develop where a Mental Health Review Tribunal (‘a Tribunal’) determines that a restricted patient is entitled to release on condition that he receives psychiatric supervision, but no psychiatrist can be found who is prepared to provide that supervision.

[3]Bell J. recorded, at paragraph 57 of his judgment, that Mr Owen wished to argue that ‘the law as it stands at present fails to take account of the fact that a psychiatrist who is asked to supervise a conditionally discharged patient is, as he would argue, a “public authority” for the purposes of ss.6 and 7 of the Human Rights Act, but he accepted that he must save that argument for another day’. Shortly before the hearing of this appeal, Mr Owen made it plain that he wished to pursue this submission before us. For a number of reasons, which we shall explain in due course, we held that it was not open to him to do so. It follows that our major task is to review the decision in Campbell in the light of the Convention. That is a task of some importance. It is also one which bears upon the issue in an appeal that we heard last term in The Queen (on the application of C) v the Secretary of State for the Home Department (“ C ”). While preparing our judgment in that case, we learnt of the appeal pending in this one and directed that C should be restored for further argument at the time of the hearing of this appeal. We shall in this judgment refer to some of the submissions made by Counsel in C in the course of this hearing, but will give a separate judgment in C immediately after this judgment. The statutory scheme

[4]The statutory provisions to which we are about to refer are intended to give effect to the following provisions of the Convention: Article 5(1): 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… Article 5(4): 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 his detention is not lawful.

[5]The primary protection against unlawful detention of patients detained under the Mental Health Act lies in a reference or application to a Tribunal. The regime differs to some extent depending upon whether or not the patient is a restricted patient. Under s.70 of the Act a restricted patient can apply to a Tribunal once every 12 months. Under s.71, the Secretary of State can refer the case of a restricted patient to a Tribunal at any time and must do so if the patient has been detained for three years without having his case considered by a Tribunal.

[6]S.72 of the Act provides for the circumstances in which a patient other than a restricted patient is entitled to be discharged. At the material time the relevant provisions read as follows:

“(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and – (a) ….. (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied (i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any one 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;”

[7]S.73 of the Act deals with the position of restricted patients by reference to s.72 of the Act. At the material time it provided as follows:

“(1) … the tribunal shall direct the absolute discharge of the patient if satisfied – (a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; 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 matters referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.”

[8]S.73(4) entitles the Secretary of State to recall to hospital a patient who has been conditionally discharged. The subsection also requires the patient to comply with ‘such conditions (if any) as may have been imposed at the time of discharge’.

[9]S.73(7) is the most critical sub-section in the context of this appeal. It provides:

“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 the 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.”

[10]The provisions of ss.72 and 73 were designed to accord with the requirements of Article 5(1)(e) and 5(4) of the Convention, having particular regard to the decision of the Strasbourg Court in X v United Kingdom

(1981) 4 EHRR 188

. The exercise was not wholly successful, as this Court identified in R(H) v Mental Health Review Tribunal North & East London Region

[2001] 3 WLR 512

. In consequence of that decision, the provisions of s.72(1) that we have set out were amended on 26 November 2001 in order to make them compliant with the Convention. Whereas, prior to that date, a Tribunal was required to discharge a patient only if satisfied that the conditions for detention no longer prevailed, now the Tribunal has to discharge a patient unless satisfied that the conditions for detention continue to be satisfied. However, the legislative scheme has not altered and the issues that we have to resolve arise equally in respect of the legislation in its amended form.

[11]S.117 applies to (among others) patients who have been admitted to hospital pursuant to an order under s.37, and then cease to be detained and leave hospital. By s.117(2): “It shall be the duty of the Health Authority and of the local social services to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services, but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject”.

[12]By s.117(3) the relevant authorities are those for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he is detained. The facts

[13]We shall incorporate, with some adaptation, the facts so clearly set out in the judgment of Bell J., for these are not the subject of any challenge.

[14]On 2 March 1995, the appellant cut off the penis and testicles of his three year old son. The boy was rescued by his mother, Ms J, who was at that time the appellant’s partner. His penis and one testicle were surgically re-attached but the boy is still disturbed by his experience and his condition. He lives with his mother in North London.

[15]The appellant was charged with causing grievous bodily harm with intent to do so. On 4 May 1995 he was transferred to Rampton under s.28 of the Act. On 21 July 1995, at Wood Green Crown Court, he was found not guilty by reason of insanity, and the Court made an order under s.5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) authorising his admission to such hospital as might be specified by the Secretary of State for the Home Department. On 1 September 1995 the Secretary of State for the Home Department issued a warrant authorising the appellant’s transfer to and detention in Rampton.

[16]IH was diagnosed as suffering from paranoid psychosis. On 18 July 1998, at the end of his first Tribunal review, no order was made for his discharge.

[17]On 7 September 1998, the appellant’s Responsible Medical Officer (“RMO”) at Rampton, Dr Sagar, reported in advance of a second Tribunal hearing, that:

“I(H) is currently mentally well, stable and is on no medication for the past 18 months or so. Retrospectively it proved to be a drug induced psychosis at the time of his offence…. As far as I am concerned as long as Mr H keeps away from drugs, in my opinion, there is no risk whatsoever…… He has recently been seen by a consultant from [Camlet Lodge in Enfield] a Regional Secure Unit, and it appears that verbally he has been accepted to go there to less secure surroundings. I shall recommend this myself unreservedly.”

[18]On 11 September 1998, the second Tribunal made no direction for discharge or reclassification of the appellant’s mental disorder. The reasons were that the appellant still suffered from mental illness and his further detention for the protection of the public was justified, but the Tribunal endorsed the view expressed by the RMO that he should be transferred to a suitable Regional Secure Unit (“RSU”) for further observation and treatment.

[19]No trial leave or transfer from one hospital to another, for instance from a special hospital to an RSU, can be granted in respect of a restricted patient unless the Secretary of State consents, and he did not consider such leave or transfer appropriate. A Tribunal cannot grant leave or direct transfer, although it can recommend it. The Secretary of State refused permission for trial leave at Camlet Lodge.

[20]A third Tribunal hearing was fixed for 7 June 1999. In December 1998, Dr Sagar had reported that the appellant was symptom free and in a state of natural remission. He had not been on any medication for more than 18 months. Dr Naresh Gandhi, a psychiatrist instructed by the appellant’s solicitor, reported on 31 May 1999, expressing the opinion that the appellant did not suffer, and had not for the past two years suffered, from a mental disorder within the meaning of the Act. Consequently, in Dr Gandhi’s opinion, he could not be legally detained in hospital under the Act. Dr Gandhi could not understand, in clinical terms, any proposal to move the appellant to medium security; he recommended discharge to some less restricted residence. Dr Page, who had taken over from Dr Sagar as RMO, did not support conditional discharge. The Secretary of State expressed the view that conditional discharge was not appropriate.

[21]Rule 16 gives a Tribunal power to adjourn the hearing of an application for discharge for the purpose of obtaining further information or any other appropriate purpose, with the power to give directions to ensure prompt consideration of the application. On 7 June 1999, the third Tribunal adjourned the hearing of the application in the following terms: ”Having considered all the medical evidence we have come to the conclusion that IH is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment. We adjourn the hearing until 1 December 1999 at the latest for a full Care Plan to be drawn up. The Terms which we consider should probably be attached to the Conditional Discharge are 1. Supervision by a named social worker. 2. Supervision by a named forensic psychiatrist; Mr H to be subject to the directions of the psychiatrist including any relating to drug monitoring. 3. Residence at a suitable hostel preferably staffed 24 hours a day. If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed. We require Haringey Council to provide full details of a suitable plan at the adjourned hearing.”

[22]The reference to Haringey Council embraced the Enfield and Haringey Health Authority (‘the Enfield Health Authority’). This was the Health Authority with a duty, pursuant to s.117 of the Act, ‘to provide, in co-operation with the relevant voluntary agencies, after-care services’ to IH upon his discharge.

[23]Enfield Health Authority made extensive efforts to find forensic psychiatric supervision for the appellant upon any discharge. Its attempts were unsuccessful, primarily because Dr Akinkunmi, consultant forensic psychiatrist of the North London Forensic Service which provided psychiatric services on behalf of the Authority, took the view, shared by all his colleagues, that ‘a proposed conditional discharge direct into the community was clinically inappropriate, and unsafe.’ He would be happy to have the appellant at Camlet Lodge for a period of trial leave, but he and his colleagues declined to supervise the appellant, as named forensic psychiatrist on conditional discharge.

[24]Dr Page reported Dr Akinkumni’s views to the Tribunal at the adjourned hearing on 3 February 2000. Her own view, and that of the clinical team at Rampton, was that the appellant was making progress and remained free of psychotic symptoms without psychotropic medication, but that further psychological work was required to address risk areas. She recommended that he ‘should continue to receive treatment in hospital for his mental illness in medium secure conditions to ensure safe, gradual rehabilitation….. Mr H should transfer on trial leave to Camlet Lodge RSU under the care of Dr Akinkunmi.’

[25]On 3 February 2000 the third Tribunal, presided over by Ms Recorder Cotton, QC, gave a decision in writing on a standard form which Tribunals use when giving decisions in respect of restricted patients. The material parts of this document read as follows:

“4. DECISION OF THE TRIBUNAL (d) The patient SHALL be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below. 6.

(B) is “ YES ”, and the answer to question (C) is also “ YES ”

. The Tribunal is obliged to direct the Conditional discharge of the patient if the answer to either of the questions (A) or (B) below is “ YES ”, but the answer to the question (C) is “ NO ”. Question? Decision of the Tribunal A. Is the Tribunal satisfied that the patient is not now 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 the patient to be liable to be detained in a hospital for medical treatment? YES B. Is the Tribunal satisfied that it is not necessary for the health or safety of the patient for the protection of other persons that the patient should receive such treatment? YES C. Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment? NO 7. CONDITIONS IMPOSED BY THE TRIBUNAL (Conditional Discharge Only): AND THE REASONS FOR THE TRIBUNAL’S DECISION Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a Conditional Discharge order in the following term: 1. There shall be supervision by a named social worker; 2. There shall be supervision by a named psychiatrist, preferably by a Forensic Psychiatrist; 3. IH shall be subject to the directions of the psychiatrist including any relating to drug monitoring; 4. IH shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day; 5. IH shall be excluded from Enfield, Haringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. IH’s discharge shall be deferred until the arrangements listed have been made.”

[26]Additional evidence was placed before us in the form of a witness statement made by Ms Cotton. She explained that when her Tribunal reached their decision they were not satisfied that IH was not still suffering from a mental illness, albeit one that was under remission and symptom free. When making their decision they expected that a psychiatric supervisor would be found for IH. In the following helpful passage she explained her Tribunal’s reasoning:

“We found that continued detention of IH was not necessary, on the basis that the conditions we imposed were to be fulfilled. The imposition of conditions is a very important factor in determining whether a patient can safely be discharged. The requirement for supervision of a patient by a psychiatrist is a standard condition imposed in conditional discharge that is to say that it is one commonly imposed. It has an important function, however, and I do not consider that the power to recall a patient to hospital can be divorced from the condition of psychiatric supervision. In the case of IH, the ability to recall IH and the requirement of psychiatric supervision were inseparable as, in practice, without the supervision of a psychiatrist the power to recall would have been an inadequate safeguard. If one accepts, as I do, that these two are usually inseparable, then the removal of the condition for psychiatric supervision would normally change the Tribunal’s answer to the statutory question otherwise the Tribunal should be granting the patient an absolute discharge.”

[27]Further attempts were then made by Enfield Health Authority to find a psychiatrist who was prepared to supervise IH in the community, but with no success. He remained detained. On 25 July 2001, at the suggestion of the Court, the Secretary of State referred IH to a fourth Tribunal, presided over by Mr MacCleod QC. That Tribunal gave their decision in writing on 25 March 2002. They found that IH was suffering, and always had been, from a current mental illness which was in remission but with a significant risk of relapse. They found that it was appropriate for IH to be detained in hospital for the treatment of his illness. They viewed the evidence in support of hospital treatment as compelling. They stated that they had had regard to the decision of the previous Tribunal, but were fully satisfied on the material before them that they were making the appropriate decision. Relevant jurisprudence

[28]Before turning to the judgment of Bell J. it will be helpful to summarise briefly the effect of some decisions of both the Strasbourg and our own Courts which bear on this case. We shall have to revisit these in more detail in due course.

[29]The leading Strasbourg decision on Article 5 is Winterwerp v The Netherlands

[1979] 2 EHRR 387

. That case established the following principles: i) A mental patient cannot lawfully be detained unless he has been reliably shown to be of unsound mind. ii) The nature of the mental disorder must be of a kind or degree to warrant compulsory confinement. iii) Continued detention will only be justified if the disorder persists. iv) A person detained must have periodic access to an authority with the characteristics of a court in order to obtain a review of the lawfulness of his detention.

[30]In Johnson v United Kingdom

[1997] 27 EHRR 296

the Court held that where an authority found that the mental disorder which justified a patient’s detention no longer persisted, the patient was not entitled to immediate and unconditional release. The authority was entitled to make the release subject to conditions designed to enable the patient’s progress after release to be monitored. The imposition of conditions could justify deferring the discharge, but safeguards had to be in place to ensure that the deferral was consonant with the purpose of Article 5(1) and not unreasonably delayed.

[31]In Campbell the House of Lords held that, once a Tribunal had decided to make a deferred conditional discharge of a patient, it had no jurisdiction to reconsider its decision pending the discharge.

[32]In R v Mental Health Review Tribunal, ex parte Hall

[2000] 1 WLR 1323

this Court held that a Tribunal had a duty to impose such conditions of discharge of a restricted patient as it considered necessary, even though it was in no position to enforce those conditions and it was apparent that it would be difficult to put in place arrangements to enable the conditions to be satisfied.

[33]R (K) v Camden and Islington Health Authority [2001] 3 WLR (‘ K ’) was a case whose facts closely resembled those of the present case. A Tribunal decided to make a deferred direction for the conditional discharge of a patient, one condition being that the patient should receive psychiatric supervision after discharge. The Health Authority with the duty under s.117 of the Act to make aftercare arrangements for the patient, despite its best endeavours, failed to persuade any psychiatrist to undertake this responsibility. The patient brought judicial review proceedings against the Health Authority, contending that it was under an absolute duty to provide the psychiatric services necessary to enable compliance with the condition specified by the Tribunal. This Court dismissed the proceedings, holding that the Health Authority owed no such duty. Its statutory duty was restricted to using reasonable endeavours to provide the services in question. This it had done as it was in no position to order a psychiatrist to supervise the patient, if the psychiatrist declined to do so on grounds of professional judgment. The hearing before Bell J.

[34]IH joined, as defendants to the application for judicial review, the Nottinghamshire Healthcare NHS Trust, the authority which administers Rampton Hospital and was thus charged with the detention of IH; the Secretary of State for the Home Department, who has statutory duties and powers in relation to restricted patients; and the Secretary of State for Health, who has responsibility for mental health legislation. The Tribunal was named as an interested party, but was not represented and took no part in the proceedings.

[35]The remedies originally sought by IH, as set out in the Judicial Review Claim Form, included a declaration that the Trust had acted unlawfully, a claim for damages under s.8 of the Human Rights Act and a declaration of incompatibility under that Act ‘should the Court hold that under the scheme of the Mental Health Act 1983, neither the Tribunal, nor the Defendants, nor any body can be compelled to act in a way which secures the appellant’s discharge in a reasonable time’. Before the hearing the claim for damages was abandoned for reasons set out by Bell J. in paragraph 35 of his judgment:

“The claim in respect of damages was abandoned before the hearing on the basis that any claim would have to be made against a public authority under section 7(1)(a) of the 1998 Act, alleging an unlawful act for the purposes of section 6(1). But section 6(2) disapplies section 6(1) in respect of any act if, as a result of one or more provisions of primary legislation, the authority could not have acted differently, and Mr Owen accepted that in the present state of primary legislation as presently interpreted by the Court of Appeal, this would save any of the public authorities directly or indirectly responsible for the claimant’s continued detention from a claim under section 7(1). It was still contended that the Claimant has been detained in breach of Article 5(1) and 5(4), but as an illustration of the alleged incompatibility of section 73(2) and/or (7) of the Act with Article 5(1) and (4) of the Convention.”

[36]In the course of the hearing the claim to a declaration of incompatibility was refined to read as follows:

“A declaration under section 4(2) of the Human Rights Act 1998 that sections 73(2) and/or (7) of the Mental Health Act 1983 are incompatible with Articles 5(1)(e) and/or (4) of the Convention in that Mental Health Review Tribunals lack the power to guarantee that such conditions as they may attach to a deferred order for conditional discharge will be implemented within a reasonable period of time from the making of the order.”

[37]We can summarise Mr Owen’s submissions to Bell J. as follows. Once the Tribunal had decided to make a conditional discharge order, IH became entitled to be discharged, subject to a reasonable deferment to enable the conditions to be put in place. In the event IH found himself detained ‘in limbo’ for approximately two years. This violated both Article 5(1) and 5(4) of the Convention. This could not be avoided under the legislative scheme, which was incompatible with the Convention. To reverse Campbell , thereby enabling the Tribunal to review the position in the light of the problems experienced, would still leave the possibility of an impasse, should the Tribunal conclude that no alternative condition to psychiatric supervision was acceptable.

[38]Mr Owen said that he was not in a position to aver any breach of domestic law. The Tribunal had committed no breach of duty in imposing what appeared to be a reasonable condition. The Nottinghamshire Trust was not in breach of duty in deferring discharge until that condition could be satisfied. The decision of this Court in K precluded him from arguing that the Enfield Health Authority was in breach of duty in failing to procure psychiatric supervision, for it had used its best endeavours. Nor was it open to him, at first instance, to advance the argument that the individual psychiatrists, as public authorities, owed a duty to provide their services in order to comply with Article 5.

[39]Mr Owen argued that in order to render the legislative scheme compatible with the Convention, the Tribunal needed the power to ensure that the conditions that it imposed were implemented within a reasonable time. Without that power, the Tribunal did not satisfy the requirement that it should have the qualities of a Court which Article 5(4) demanded.

[40]Bell J. held that it had not been demonstrated that the legislative scheme was incompatible with the Convention. He held in paragraph 57:

“If a deferred direction for conditional discharge is made, the power to monitor attempts to comply with reasonable conditions, and to amend a deferred conditional discharge order in the light of difficulties encountered by the authorities, should be sufficient for compliance with the Convention.”

[41]Although he did not so state expressly, this observation assumed a departure from the decision of the House of Lords in Campbell. Bell J. went on to hold that, on the facts of this case, IH had been detained ‘in limbo’ for so long that his rights under Articles 5(1) and 5(4) were violated. Developments prior to the Court of Appeal Hearing

[42]Although they had taken no part in the proceedings before Bell J., the Tribunal decided to be represented at the hearing before us. This may well be because of the developments which we are about to recount.

[43]On 30 January 2002 the Solicitors acting for IH wrote to the Solicitors for the Barnet, Enfield, Haringey NHS Trust which is responsible for the North London Forensic Service. They referred to Bell J’s decision and stated:

“An MHRT has no power to compel compliance with its orders. In particular it has no power to compel a psychiatrist so to comply. On this issue the learned Judge was bound by Court of Appeal authority and acknowledged that, as a result, argument that existing law fails to take account of the fact that any psychiatrist who is asked to supervise a conditionally discharged patient is a “public authority” for the purpose of section 6 of the Human Rights Act 1998 – and therefore obliged to act compatibly with convention rights – was precluded before him and had to be reserved to the Court of Appeal.”

[44]They referred in support of this proposition to the decision of this Court in K and continued:

“In the light of these decisions it was considered inappropriate to join the Trust as a party at first instance. That the issue of compelling compliance with the order of an MHRT, including by a forensic psychiatrist, is for further argument in the Court of Appeal.”

[45]IH’s solicitors went on to say that in the light of these considerations they were applying to join the Enfield Health Trust to the proceedings. After further correspondence, however, in which the Enfield Health Trust said that they did not wish to become party to the proceedings, this application was not pursued.

[46]On Friday 12 April the solicitors instructed by the Nottinghamshire Trust wrote to the Court stating that they had been informed by IH’s counsel that they intended to argue that community psychiatrists should be required to comply with supervision or treatment directions given by a Mental Health Review Tribunal. They commented that this argument had substantial implications for the practice of psychiatry in England and Wales. They commented that the most appropriate body to provide argument to the Court on this point would be the North London Forensic Service, which had refused to accept community supervision of IH. If, however, no other body was willing to appear, the Nottinghamshire Trust would be prepared to do so, but would need time to prepare its submissions.

[47]At the invitation of the Court the Nottinghamshire Healthcare NHS Trust was present at the start of the hearing on 15 April, through their counsel, Miss Stern, and the Court is grateful to the Trust for their offer of assistance. After hearing submissions, however, we ruled that we would not permit Mr Owen to advance the argument that the psychiatrists who declined to supervise IH in the community were public authorities with a duty to comply with the Convention and, in consequence, to provide the services that the Tribunal had stipulated IH should receive as a condition of his discharge. There were a number of reasons for our decision. First, this argument, if correct, would seem to lead to the conclusion that the psychiatrists, the North London Forensic Psychiatric Service and, probably, the Enfield Health Authority were in breach of duty, and that the legislative framework was compatible with the Convention. This case should have been advanced at first instance, and those alleged to be in breach of duty should have been joined. Second, if the decision of this Court in K precluded Bell J. from entertaining such an argument, then it seemed to us that we would also be precluded from entertaining it. Third, the argument raised a point of general importance – can a psychiatrist be ordered to provide services to a patient in circumstances where, in his professional judgment, this is not appropriate? It is likely that the Royal College of Psychiatrists, or some other body representing psychiatrists, would wish to be heard on this matter. The issues raised

[48]Having ruled out this argument, we shall proceed on the following basis, which is the basis on which the case was presented before Bell J. The Tribunal acted reasonably in concluding that IH’s discharge should be made on the condition that he should receive psychiatric supervision in the community. The Enfield Health Authority did their best to make arrangements for IH to receive psychiatric supervision in the community. The Nottinghamshire Trust committed no breach of duty in continuing to detain IH pending a direction from the Tribunal that he should be discharged. The following questions arise on these facts: Was IH detained in violation of

Article 5(1) of the Convention

? Was IH denied access to an authority with the qualities of a Court, contrary to

Article 5(4) of the Convention

? Is the legislative scheme incompatible with the Convention? Article 5(4)

[49]It is convenient to start with Article 5(4). Bell J. remarked at paragraph 54 of his judgment that IH was left ‘in limbo’ for 21 months, this being the period between the Tribunal’s decision to make a deferred direction for conditional discharge and the new referral made by the Secretary of State in July 2001. He held that this infringed Article 5(1)(e) and 5(4). The basis on which he held that Article 5(1)(e) was infringed is not clear to us, but we agree that Article 5(4) was infringed. If, after a Tribunal decides that it is appropriate to direct a conditional discharge of a patient, that patient remains detained without access to the Tribunal for an unreasonably long period while unsuccessful attempts are made to make arrangements that will enable the conditions in question to be satisfied, Article 5(4) is clearly infringed. That is what happened on this occasion. The evidence suggests that no attempt was made on behalf of IH to revert to the third Tribunal, but no doubt this was because the decision in Campbell was believed to preclude this. In practice it would clearly have done so. In the light of that decision the Tribunal would not have felt able to entertain an application on behalf of IH to reconsider the position.

[50]It is time to review Campbell , a possibility that the Court foresaw in K. The following summary of the facts and the extracts from the report of Campbell that formed part of the judgment of the Master of the Rolls in K is equally pertinent to the present appeal.

[51]In Campbell the House of Lords had to consider the interrelationship of s.73(2) and s.73(7) of the Act. The Oxford Regional Tribunal had decided that a restricted patient was entitled to be conditionally discharged, but deferred directing the discharge to enable necessary arrangements to be put in place. This decision was open to objection in that the Secretary of State had not been afforded an opportunity to be represented at the hearing. He applied by way of judicial review to have it quashed. At first instance Woolf J (unreported) 8 November 1985 rejected his application. He held that the Tribunal’s decision was provisional so that, until they actually directed the patients’ discharge, they could reconsider the position if exceptional circumstances made it necessary. The correct remedy for the Secretary of State would have been to apply to the Tribunal to reconsider their decision. The Court of Appeal,

[1986] 1 WLR 1180

, reversed this decision and was upheld by the House of Lords.

[52]The sole speech was that of Lord Bridge of Harwich, with which the other four members of the committee agreed. The reasoning of Lord Bridge was as follows, at pp.127-128:

“The first issue which a mental health review tribunal must address on an application falling for determination under section 73 is whether they are satisfied as to one or other of the matters referred to in paragraph (a) of subsection (1). If they are so satisfied and also satisfied that the patient need not remain liable to recall it is mandatory under subsection (1) that they shall direct his absolute discharge. If the tribunal think the patient should remain liable to recall, they can only contemplate a conditional discharge under subsection (2). Here the tribunal’s satisfaction or lack of satisfaction as to one or other of the paragraph (a) matters will, I think, inevitably be coloured by the conditions they have in mind to impose. Thus the answers to the question (a)(i) whether or not the patient’s disorder is ‘of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment’, or (a)(ii) whether or not it is necessary for his own health or safety or for the protection of others ‘that he should receive such treatment’, which must here mean treatment under detention, may be vitally influenced by the conditions which are to be imposed to regulate his life style upon release into the community. To take obvious examples suggested by the decision of the tribunal in this case, the tribunal may perfectly properly be satisfied that hospital detention is no longer necessary provided that the patient can be placed in a suitable hostel and required to submit to treatment as an outpatient by a suitable psychiatrist. These are matters to be secured by imposing appropriate conditions. Once satisfied under subsection (2) as to one or other of the matters referred to in paragraph (a) of subsection (1), it is mandatory that the tribunal ‘shall direct the conditional discharge of the patient’. But if the tribunal are only able to be so satisfied by the imposition of conditions to which the patient will be subject on release, it is obvious that in many, perhaps most, cases some time must elapse between the decision that conditional discharge is appropriate and the effective order directing discharge of the patient, for the purpose of making the necessary practical arrangements to enable the patient to comply with the conditions, e.g. securing a suitable hostel placement for him and finding a suitable psychiatrist who is prepared to undertake his treatment as an outpatient. This seems to me to be the common sense of the matter and it is, I think, precisely for this purpose that the tribunal, being satisfied as required by subsection (2), are given the option either to direct the immediate discharge of the patient under subsection (2) or to defer that direction under subsection (7). Unless a decision has first been reached under subsection (2) that discharge on certain conditions is appropriate, I find it difficult to see what is envisaged by the words in subsection (7) ‘such arrangements as appear to the tribunal to be necessary for that purpose’. The purpose contemplated must surely be that of enabling the patient to comply with the conditions which the tribunal have already decided to impose. Conversely, when the tribunal have deferred a direction for the conditional discharge of the patient, the words of subsection (7) which reserve to the tribunal the further decision as to whether the necessary arrangements ‘have been made to their satisfaction’ are wholly inapt to indicate a deferment of the decision as to whether the tribunal can be satisfied, as required under subsection (2), of the matters on which a decision in favour of conditional discharge depends. The contrary argument is that no direction for the conditional discharge of the patient can ever be given unless the tribunal is satisfied as required by subsection (2) at the moment when the direction is given. Having deferred a direction under subsection (7) the tribunal, it is submitted, not only may, but must, examine the whole issue afresh before the direction for discharge is given. If this were right, the two stage procedure, which seems to be contemplated by subsections (2) and (7) and which, as it appears to me, is designed to serve the purpose I have suggested in the foregoing paragraph, would not seem to serve any useful purpose at all. Moreover, for reasons indicated earlier in this opinion this construction of section 73 would not avail the appellant in resisting an order to quash the decision of the tribunal in this case. But, to my mind, the conclusive refutation of this suggested construction is to be found in the second part of subsection (7) following the semicolon. This provision contemplates: (1) an application or reference leading to a deferred direction for conditional discharge; (2) a further application or reference relating to the same patient coming before the tribunal any direction for his conditional discharge has actually been given. In this situation it is provided that no direction may be given pursuant to the first application or reference. The effect of this is that the whole issue must be reopened pursuant to the second application or reference. If, as submitted on behalf of the appellant, the whole issue always remains at large following a deferred direction for conditional discharge, this provision would be otiose. Its evident purpose is to ensure that, in the situation to which it applies, it will not be open to the tribunal when the second application or reference comes before them to say: “We decided on the first application or reference in favour of conditional discharge but deferred giving the direction; being now satisfied that the necessary arrangements have been made for the purpose we now direct the conditional discharge of the patient pursuant to that application or reference and there is no necessity for us to consider the matter afresh pursuant to the new application or reference’. I think this provision, so interpreted, also meets the point, of which much was made in the argument, that if the tribunal, having deferred a direction under subsection (7) have no power to reopen the issue under subsection (2), they may be compelled to discharge a patient whose condition has deteriorated since the tribunal first considered the matter and made a deferred direction for conditional discharge. It may well be, I think, that the second part of subsection (7) is designed to meet this very contingency. But, whether that is so or not, it certainly enables the Secretary of State, when a deterioration in the condition of the patient is brought to his attention, to forestall the patient’s discharge by exercising his power under section 71 of the 1983 Act to refer the patient’s case to the tribunal afresh.”

[53]Lord Bridge’s conclusions can be summarised as follows. S.73 provides for a two stage process in relation to a conditional discharge. At the first stage the Tribunal decides that it will direct the patient’s discharge subject to conditions, but defers giving the direction so that arrangements may be made to enable the patient to comply with the conditions. The second stage is reached if and when the Tribunal is satisfied that those arrangements have been made, whereupon it directs the conditional discharge. The Tribunal is not obliged, or even entitled, to reconsider its earlier decision in order to accommodate any new facts that might cause it to alter that decision.

[54]We repeat the comment, made in K, that Lord Bridge’s speech made no reference to the Convention, which had led to the enactment of the sections that he had to interpret. That is no doubt because the facts of Campbell did not raise any issue under the Convention. The facts of this case demonstrate, however, that the decision in Campbell is in potential conflict with the requirements of Article 5(4). If, having made a decision that a patient is entitled to a conditional discharge, subject to specific conditions which necessitate deferral of the discharge, the Tribunal cannot revisit its decision, the patient is liable to find himself ‘in limbo’ should it prove impossible to put in place the arrangements necessary to enable him to comply with the proposed conditions. That period ‘in limbo’ may last too long to be compatible with Article 5(4) and may result in the patient being detained in violation of Article 5(1). The decision of the Strasbourg Court in Johnson demonstrates that this is so.

[55]In Johnson a Tribunal decided that a restricted patient was entitled to a conditional discharge, subject to conditions which included residence at a hostel. The following reasons were given by the Tribunal for its decision 27 EHRR 296, 302:

“The Tribunal accepts the medical evidence that the patient is not now suffering from mental illness. The episode of mental illness from which he formerly suffered has come to an end. He is not now in receipt of any psychotropic medication”

. However, the Tribunal continued, at pp.302-303:

“The [applicant] had an unrealistic opinion of his ability to live on his own in the community after nearly five years in Rampton Hospital and required rehabilitation under medical supervision and that such rehabilitation (and its associated support) can be provided only in a hostel environment. Further, the tribunal is of the opinion that the recurrence of mental illness requiring recall to hospital cannot be excluded until after successful rehabilitation of that nature.”

[56]No hostel could be found which was prepared to take the patient, Mr Johnson, largely as a consequence of his own refusal to co-operate in the attempts to place him. He remained detained for several years until ultimately, on an annual review, a Tribunal ordered his absolute discharge.

[57]Before the Strasbourg Court Mr Johnson argued that he should have been discharged immediately and unconditionally when the Tribunal found that he was no longer suffering from mental illness. The Court rejected this contention, holding at paragraph 61:

“In its view it does not automatically follow from a finding by an expert authority that the mental disorder which justified a patient’s compulsory confinement no longer persists, that the latter must be immediately and unconditionally released. Such a rigid approach to the interpretation of that condition would place an unacceptable degree of constraint on the responsible authority’s exercise of judgment to determine in particular cases and on the basis of all the relevant circumstances whether the interests of the patient and the community into which he is to be released would in fact be best served by this course of action. It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not recovery from an episode of mental illness which justified a patient’s confinement is complete and definitive or merely apparent cannot in all cases be measured with absolute certainty. It is the behaviour of the patient in the period spent outside the confines of the psychiatric institution which will be conclusive of this.”

[58]After reference to one of its earlier decisions, the Court continued at paragraph 63:

“In the view of the court it must also be acknowledged that a responsible authority is entitled to exercise a similar measure of discretion in deciding whether in the light of all the relevant circumstances and the interests at stake it would in fact be appropriate to order the immediate and absolute discharge of a person who is no longer suffering from the mental disorder which led to his confinement. That authority should be able to retain some measure of supervision over the progress of the person once he is released into the community and to that end make his discharge subject to conditions. It cannot be excluded either that the imposition of a particular condition may in certain circumstances justify a deferral of discharge from detention having regard to the nature of the condition and to the reasons for imposing it. It is however of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of article 5(1) and with the aim of the restriction in sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed.”

[59]The Court went on to hold, however, that the appropriate safeguards were not in place to ensure that Mr Johnson’s discharge was not unreasonably delayed. At paragraph 66 it analysed the position as follows:

“However in imposing the hostel residence requirement on the applicant and deferring his release until the arrangements had been made to its satisfaction, the tribunal lacked the power to guarantee that the applicant would be relocated to a suitable post-discharge hostel within a reasonable period of time. The onus was on the authorities to secure a hostel willing to admit the applicant. It is to be observed that they were expected to proceed with all reasonable expedition in finalising the arrangements for a placement. While the authorities made considerable efforts to this end these efforts were frustrated by the reluctance of certain hostels to accept the applicant as well as by the latter’s negative attitude with respect to the options available. They were also constrained by the limited number of available placements. Admittedly a suitable hostel may have been located within a reasonable period of time had the applicant adopted a more positive approach to his rehabilitation. However, this cannot refute the conclusion that neither the tribunal nor the authorities possessed the necessary powers to ensure that the condition could be implemented within a reasonable time. Furthermore, the earliest date on which the applicant could have had his continued detention reviewed was 12 months after the review conducted by the June 1989 tribunal. In between reviews the applicant could not petition the tribunal to have the terms of the hostel residence condition reconsidered; nor was the tribunal empowered to monitor periodically outside the annual reviews the progress made in the search for a hostel and to amend the deferred conditional discharge order in the light of the difficulties encountered by the authorities. While the Secretary of State could have referred the applicant’s case to the tribunal at any time it is to be noted that this possibility was unlikely to be effected in practice since even at the date of the January 1993 tribunal the authorities maintained their opposition to the applicant’s release from detention until he had fulfilled the hostel condition. In these circumstances it must be concluded that the imposition of the hostel residence condition by the June 1989 tribunal led to the indefinite deferral of the applicant’s release from Rampton Hospital.”

[60]The Court concluded that, as a result of the lack of adequate safeguards to ensure that Mr Johnson’s release from detention was not unduly delayed, his continued detention infringed

Article 5(1) of the Convention

in that it could not be justified under Article 5(1)(e). In accordance with its customary approach, the Court then found that there was no need to deal separately with the complaint that there had been a breach of Article 5(4). It seems to us, however, that it was plainly implicit in the Court’s reasoning that the delay resulting from the fact that, having decided on a conditional discharge, the Tribunal could not review the position, was incompatible with the requirements of Article 5(4). Reaction to the decision in Campbel l

[61]In accordance with the decision in Campbell Tribunals have adopted a practice of giving what is, in effect, a direction for a deferred conditional discharge rather than deferring giving the direction. Furthermore, the conditions specified have not been restricted to conditions to be observed by the patient after discharge, but have included arrangements to be made by third parties. Thus in the present case the Tribunal’s decision directed that ‘the patient SHALL be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions’ specified, and those conditions included: ‘1. There shall be supervision by a named social worker; 2. There shall be supervision by a named psychiatrist, preferably by a Forensic Psychiatrist’.

[62]In order to circumvent the effect of Campbell, some Tribunals have adopted the stratagem of indicating that they are minded to direct a conditional discharge, but adjourning the hearing in order to see whether suitable arrangements can be put in place to that end. That, indeed, was the initial action taken by the Tribunal in the present case. Campbell reviewed

[63]Counsel for the Secretaries of State in this appeal and in C , and Counsel for C agreed that the decision in Campbell required to be revisited in the light of the Human Rights Act 1998. Mr Owen suggested that this was not necessary, essentially on the ground that the decision could be accommodated by the stratagem of adjournment. Counsel for the Secretaries of State and Counsel for C did not agree, however, as to the manner in which the legislative provisions in relation to a deferred direction for a conditional discharge should operate. Counsel for the Secretaries of State submitted that, up to the moment when the Tribunal directed that a patient should be discharged on conditions, the Tribunal remained seised of the matter and could either vary the conditions, or even decide that a conditional discharge was not the appropriate direction, in the light of changed circumstances or additional information.

[64]On behalf of C , Mr Bowen submitted that the Human Rights Act only required a modest adjustment to the two stage process envisaged by Lord Bridge. Indeed, he suggested that this adjustment amounted to refining rather than varying the scheme envisaged by Lord Bridge. The first stage involved a decision that the patient was entitled to a conditional discharge. Once that decision had been taken it was irrevocable – the Tribunal was ‘functus’ in relation to that issue. At the second stage, after deferral of the discharge, the Tribunal could reconsider the conditions that it considered appropriate in the light of any practical problems experienced, to the extent, if considered appropriate, of directing the conditional discharge of the patient without any specific conditions. What it could not do was to remove the patient’s vested entitlement to a conditional discharge. If an impasse developed, because the Tribunal considered a condition to be essential which proved impossible of performance, the Tribunal could request the Secretary of State to make a fresh reference under s.71.

[65]Mr Bowen argued that his proposal accorded with the natural meaning of the statutory provisions. He further submitted that chaos would ensue if the Tribunal had jurisdiction to reconsider whether the patient was entitled to a conditional discharge. This would necessitate a fresh hearing after the period of deferral at which expert evidence would have to be adduced anew.

[66]This submission echoes the argument that the appellant advanced before the House of Lords in Campbell – see p.128:

“Having deferred a direction under subsection (7) the Tribunal, it is submitted, not only may, but must, examine the whole issue afresh before the direction for discharge is given.”

[67]One can well understand why the House of Lords was reluctant to accept that this was the effect of the provisions and why Lord Bridge considered that such effect was at odds with the need for the last part of subsection (7). We do not accept, however, that this is a realistic scenario.

[68]Lord Bridge observed that a Tribunal’s decision on whether a patient could be discharged was likely to be vitally affected by the conditions under which he would be discharged. “The Tribunal may perfectly properly be satisfied that hospital detention is no longer necessary provided that the patient can be placed in a suitable hostel and required to submit to treatment as an out-patient by a suitable psychiatrist.” (emphasis ours).

[69]Lord Bridge did not consider the situation that would arise should the proviso prove impossible of attainment. In such an event, if the Tribunal has jurisdiction to view its decision afresh, it does not follow that the Tribunal will have to ignore the evidence that it has already received and start all over again. Unless there are reasons for believing that the expert evidence received about a patient’s condition is no longer valid, the Tribunal will not need to receive evidence on that matter again. The Tribunal submitted to us that the proposed difficulties in the way of reversing Campbell were not valid. In an impasse situation, the Tribunal would have no difficulty in obtaining any further evidence that the situation required. They suggested:

“It may be that discussions between the Tribunal and the various individuals or bodies concerned lead to the conclusion that the conditions imposed should be varied. There may be cases where the relevant individual or body is persuaded to comply with the condition after hearing from the Tribunal. Alternatively, there may be occasions where the Tribunal, having heard further evidence, and in the light of the new material, decides to rescind the direction for conditional discharge.”

[70]We can see no reason for the half-way house suggested by Mr Bowen. If the Tribunal remains seised of the matter until the actual direction for conditional discharge is given, it seems to us highly desirable that the Tribunal should be able to have regard to relevant fresh material, should there be any. We view as unsatisfactory the conclusion of Lord Bridge at p.128 that a Tribunal should be compelled to discharge a patient whose condition has deteriorated since the Tribunal first considered the matter. The new regime

[71]Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the Tribunal. Such material may, for instance, show that the patient’s condition has relapsed. It may show that the patient’s condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the Tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a provisional decision, and the Tribunal should monitor progress towards implementing it so as to ensure that the patient is not left ‘in limbo’ for an unreasonable length of time. The impasse

[72]Having concluded our review of Campbell , we turn to consider the implications of the impasse situation, to which Mr Owen directed the majority of his submissions.

[73]The impasse arises where the Tribunal is minded to direct discharge subject to conditions which require facilities to be provided in the community, but the authorities expected to provide those facilities prove unable or unwilling to do so.

[74]Mr Owen argued that, inasmuch as the Tribunal has no power to ensure that its conditions are implemented, it lacks an essential quality of a Court and, in consequence, fails to satisfy the requirements of Article 5(4). We would put the matter somewhat differently. Under the legislative scheme it is no part of a Tribunal’s function to enforce conditions imposed on a patient, let alone to enforce arrangements that other authorities must put in place if a patient is to be able to comply with such conditions. The Tribunal is, however, intended to perform the function of directing the discharge of a patient whose detention is not lawful under the terms of the Convention. If our domestic law does not enable a Tribunal to do this, then our law does not comply with the Convention.

[75]The provisions of s.73 of the Act differ from those of s.72 in order to cater for the special position of restricted patients. Restricted patients pose, potentially, a high degree of risk in that their mental disorder will have led them to commit a criminal offence and they will have been judged to be at risk of committing further offences involving serious harm to the public if at large - see s.41 of the Act. S.42(3) of the Act gives the Secretary of State the power to recall to hospital a restricted patient who has been conditionally discharged. S.73 makes special provision for the conditional discharge of restricted patients in circumstances where, were they unrestricted, they would be entitled to be discharged but the Tribunal considers it appropriate that they should remain liable to recall. Lord Bridge held in Campbell, that when defining the obligation that arises under both ss.72 and 73 to release a patient ‘where 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’, ‘such treatment’ means treatment in hospital. He observed that the conditions that a Tribunal decides to impose when directing a conditional discharge will be material in reaching the decision that it is not necessary for the patient to receive treatment in hospital. The impasse situation arises in an acute form where the Tribunal considers that essential treatment can satisfactorily be provided in the community, but those who are asked to provide that treatment do not agree.

[76]Where a Tribunal is considering the case of a restricted patient it may conclude that the patient is suffering from a mental disorder of a nature or degree which makes it essential for his safety or that of others that he be detained in hospital for treatment. It may, however, come to one of a number of other conclusions, namely: i) The patient is clearly no longer suffering from mental disorder and there is no risk of a relapse or renewed outbreak of illness such as to make it appropriate for him to be subject to any further treatment or supervision. ii) The patient is probably no longer suffering from mental disorder, but there is a risk that this diagnosis may be wrong and that the patient is merely in remission. Supervision or treatment is appropriate to guard against this risk. iii) The patient is still suffering from mental disorder which requires treatment or supervision for his own health and safety or the protection of others. This can be provided satisfactorily either in hospital or in the community.

[77]In K the Court of Appeal was unanimous in concluding that the defendant, the Camden and Islington Health Authority, was not in breach of public duty in that such duty did not extend beyond using all reasonable endeavours to accommodate the conditions of discharge decided upon by the Tribunal. The members of the Court expressed differing views, however, on the implications under the Convention of the impasse situation. The Master of the Rolls at p.582 drew a distinction between the case where the Tribunal concluded that the patient still suffered from mental illness and the case where it concluded that he had been cured. In the former case there would be no violation of Article 5 if the patient remained detained because a health authority could not provide the facilities required for a conditional discharge. In the latter, deferral of discharge could only be justified for a limited period. Both Buxton LJ at p.583 and Sedley LJ at p.587 suggested that the question under Article 5(1)(e) of whether continued detention of a patient was justified could not turn on such a distinction.

[78]Buxton LJ, at p.584 held that ‘once the mental health review tribunal made a decision as to the applicant’s release that was contingent upon the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision’. Sedley LJ held at p.586 that ‘if a person detained against her will becomes entitled to her liberty provided that certain conditions are met by the state, then it is incumbent on the State to meet them if it reasonably can’. This was a proposition of public law informed by Article 5(1)(e) of the Convention.

[79]These propositions were reflected in the submissions to us of Mr Owen. He submitted that if the Tribunal stipulated conditions that were reasonable for the discharge of a patient, the Convention would be breached if arrangements were not made to enable compliance with those conditions. That is what had happened in the present case.

[80]We propose to consider first the requirements of the Convention when a Tribunal is considering whether to direct the discharge of a restricted patient and then the requirements of the Act. This will disclose whether there is incompatibility between the two. The requirements of the Convention

[81]The first of the conditions necessary to justify detention under Article 5(1)(e) as identified by the Strasbourg Court in Winterwerp at paragraph 39 appears unequivocal:

“The individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – that is a true mental disorder – calls for objective medical expertise.”

[82]Yet it is not so easy to apply this test, for ‘true mental disorder’ is not readily defined. As the Court pointed out at paragraph 37, ‘persons of unsound mind’ is a term ‘whose meaning is continually evolving as research in psychiatry progresses’. The definitions of various types of mental disorder in s.1 of the Mental Health Act identify these by their effect on mental capacity and the conduct with which they are associated. Yet symptoms and behaviour can be influenced by therapy, drugs and environmental conditions, and an absence of symptoms does not necessarily mean that the patient no longer suffers from mental disorder. The mental disorder may, for instance, be attributable to physical or chemical abnormalities in the brain which persist.

[83]We have carefully considered the decisions of the Commission and the Court in Johnson in the light of the comments made in K . Mr Johnson had originally been diagnosed as suffering from schizophrenia. The relevant Tribunal found that he was no longer suffering from mental illness and that the episode of mental illness from which he had formerly suffered had come to an end. It further found, however, that the recurrence of mental illness requiring recall to hospital could not be excluded until he had been rehabilitated in a hostel under medical supervision. The Commission noted at paragraph 59 that the Tribunal accepted that ‘not only did the applicant not suffer from mental illness warranting confinement, but that he did not suffer from mental illness at all’. The Commission expressed the opinion nonetheless that a phased discharge was justifiable even if this involved some deferment of Mr Johnson’s release, but that his release could not be indefinitely deferred. The margin of appreciation afforded to the national authorities, allowing the deferral of the discharge of a person who had been found to have recovered from mental illness, had to be limited and subject to strict procedural safeguards to ensure his discharge at the earliest opportunity. The necessary safeguards were lacking.

[84]We have already quoted extensively from the judgment of the Court. It accorded with the opinion of the Commission. Where the responsible authority had concluded that a person was no longer suffering from mental disorder, deferral of discharge could be justified provided that there were adequate safeguards to ensure that the discharge was not unreasonably delayed. These safeguards did not exist because the conditions imposed by the Tribunal could neither be enforced nor reviewed by it.

[85]Johnson demonstrates that, under Strasbourg jurisprudence, where the first of the Winterwerp requirements is not satisfied, a patient must be discharged, although a limited deferral may be justified. Thus it follows from Johnson that a Tribunal, when considering the case of a patient falling within the first or the second category of those that we have identified at paragraph 76 above must direct the discharge of the patient, if Article 5(1) is not to be violated. A limited deferral in order to enable arrangements to be made for rehabilitation and supervision may be justifiable, but this must be finite.

[86]The judgment in Johnson does not address the case of a patient who the Tribunal finds is still suffering from mental disorder. The second requirement in Winterwerp means that in such a case continued detention can only be justified if the mental disorder is of a kind or degree that warrants compulsory confinement. That requirement is only likely to be satisfied if release of the patient into the community will pose a threat to his own health and safety or to other persons. That question may, itself, depend upon whether a controlled regime, including supervision and psychiatric treatment, will be available to the patient in the community.

[87]We are not aware of any Strasbourg jurisprudence that indicates that a Member State owes a duty under the Convention to put in place facilities for the treatment in the community of those suffering from mental disorders so as to render it unnecessary to detain them in hospital. In these circumstances we think that it must be a matter for the individual Member State to decide what resources to devote to the provision of mental care in the community. Available resources may make it possible for essential treatment to be provided to a mental patient in the community in circumstances which will not place in jeopardy either his own health or safety or the safety of others. In that event it will be a breach of Article 5(1) to detain the patient in hospital. If the law of a Member State requires the authorities of that state to provide facilities in the community so as to obviate the need to detain in hospital those with mental disorders, a breach of that domestic law, which results in the detention of a mental patient in hospital, is likely also to constitute a violation of Article 5(1). This is because under Article 5(1)(e) detention of a person of unsound mind can only be justified if it is lawful according to the law of the Member State concerned. The position under the Act

[88]In interpreting the Act the Court must have regard to the Convention, for it is required to reach an interpretation which is compatible with the Convention if this can be achieved.

[89]The provisions of the Act with which this appeal is concerned were amended in November 2001 in an attempt to render them compatible with the Convention. We propose first to consider whether the provisions in their amended form are compatible with the Convention. We will then consider whether the actions taken in relation to IH under the provisions before they were amended resulted in a breach of Article 5(1).

[90]Where the Tribunal is not satisfied that a restricted patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, the Tribunal must discharge the patient, either absolutely or conditionally. That is the effect of s.73(1) and (2) when read together with s.72(1)(b)(i). The effect of those provisions reflects the first of the three requirements in Winterwerp. In order to comply with Winterwerp and Johnson a conditional discharge must not be deferred under section 73(7) beyond a reasonable limited period. After that the Tribunal must discharge the patient whether or not it has proved possible to put in place arrangements to accommodate the conditions that the Tribunal originally wished to impose. If it has not, then the Tribunal should make appropriate modification to the conditions so that it will be possible for the patient to comply with them. Thus far there is no incompatibility between the Act and the Convention.

[91]It is possible that a Tribunal may conclude that a patient is still suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, that this is no longer of a nature or degree that makes it necessary that the patient should be detained in hospital for treatment, even if he cannot receive treatment in the community, but that it is appropriate that the patient should be subject to recall. In such a situation the Tribunal may defer discharge for a reasonable limited period to enable arrangements to be put in place for a conditional discharge. If, however, the preferred arrangements prove impossible, the Tribunal must make appropriate modifications to the conditions and direct the discharge of the patient. Such a course is necessary because in this situation the second and third requirements in Winterwerp will not be satisfied. The critical impasse

[92]The critical impasse arises where a Tribunal considers that it is necessary for the health or safety of the patient or the safety of others that the patient continues to receive psychiatric treatment, and that it is reasonable for such treatment to be provided in the community, but the psychiatrists who would have to provide such treatment refuse to do so because they disagree with the Tribunal’s view that the patient can safely be treated in the community. We think that it is unlikely that this impasse will arise in circumstances where the Tribunal has concluded that it is not satisfied that the patient is any longer suffering from a mental illness, although the present may be such a rare case. The impasse in question will classically arise in the case of a patient who, while of unsound mind, can be expected to remain free of symptoms provided that he continues to receive treatment. In such a situation there is more scope for disagreement between a Tribunal and the psychiatrists called upon to provide such treatment as to whether it can be safely be provided in the community or only under detention in hospital.

[93]Mr Owen’s submissions in relation to this impasse situation can be summarised, we believe, as follows. It is contrary to Article 5(1) to detain a patient in hospital for treatment if that treatment can safely be provided in the community. Article 5(4) requires that there should be a Court-like authority able to ensure that Article 5(1) is complied with. Under the Act the Tribunal has that function. The decision by a Tribunal that a case is a suitable one for a discharge on condition that the patient receives psychiatric treatment in the community is, or should be, conclusive on that issue. If our law is to comply with Article 5(1) it must require that psychiatric treatment be provided in the community when a Tribunal has determined that this should be a condition of discharge. Originally it was Mr Owen’s case that our law is incompatible with the Convention because(i) the Tribunal has no power to enforce a requirement of psychiatric supervision and

(ii) the authorities with responsibility under s.117 of the Act for aftercare are not under an absolute duty to provide the requisite psychiatric supervision – see the decision of this court in K.

[94]Had we permitted it, Mr Owen would have advanced the alternative argument that psychiatrists, as public authorities, will be in breach of duty under public law if they do not provide the supervision required by a Tribunal to enable a conditional discharge to take place.

[95]The extent of any public law duty on the part of psychiatrists may impact upon the services that the appropriate authorities are obliged to provide in the performance of their duties under s.117 of the Act. We have not permitted these matters to be raised on this appeal. Before the trial Judge the case was advanced on the basis that the responsible authorities had done all that they reasonably could to arrange for IH to receive psychiatric supervision in the community. It was conceded that the Tribunal had no power to enforce a requirement for psychiatric supervision in the community. It was accepted that the Tribunal was not in breach of duty in failing to order IH’s discharge in these circumstances. The issue raised is whether this state of affairs reflects incompatibility between the legislative scheme and the requirement of Article 5(1).

[96]We consider that in a case such as the present the provisions of s.73 of the Act operate as follows. Where a Tribunal decides(i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of other persons and

(ii) that detention in hospital for that treatment is not necessary if, but only if, psychiatric treatment is provided in the community, the Tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangements to be made for providing psychiatric treatment in the community. The Health Authority subject to the s.117 duty will then be bound to use its best endeavours to put in place the necessary aftercare. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the Health Authority is unable to provide the necessary services, the Tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision.

[97]We do not consider that this scheme is incompatible with Article 5(1). If, as Mr Owen wished to argue, psychiatrists who foil the intention of the Tribunal in this way are in breach of a public law duty, the patient will have a remedy under judicial review. If they are not in breach of duty, it is likely to follow that the Convention does not require psychiatrists to administer treatment or supervision in the community when, as a result of professional judgment made in good faith, they are not prepared to undertake this responsibility. Summary

[98]The following summary of the position of a Tribunal considering the conditional discharge of a restricted patient substantially accords with submissions made to us on behalf of the Secretaries of State: i) The Tribunal can, at the outset, adjourn the hearing to investigate the possibility of imposing conditions. ii) The Tribunal can make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under s.117 of the Act make the necessary arrangements to enable the patient to meet those conditions. iii) The Tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place. iv) Once the arrangements have been made, the Tribunal can direct a conditional discharge without holding a further hearing. v) If problems arise with making arrangements to meet the conditions, the Tribunal has a number of options, depending upon the circumstances. a) It can defer for a further period, perhaps with suggestions as to how any problems can be overcome. b) It can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered. c) It can order a conditional discharge without specific conditions, thereby making the patient subject to recall. d) It can decide that the patient must remain detained in hospital for treatment. vi) It will not normally be appropriate for a Tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements. Was IH unlawfully detained?

[99]At the time with which this appeal is concerned, the criteria under s.73 that justified the continued detention of IH did not include a requirement that the Tribunal should be satisfied that he was suffering from a mental disorder. Detention could lawfully be continued provided that the Tribunal was not satisfied that he was not suffering from such a disorder. Such a test did not satisfy the first and third requirements of Winterwerp, which is why the relevant provisions were amended in November 2001.

[100]Ms Cotton’s statement explains that the Tribunal were not certain whether IH’s psychosis had been drug induced, in which case all the evidence suggested that he had totally recovered, or was not drug induced, with the possibility that the underlying mental illness persisted, though in remission. Under the Convention and the principles to be derived from Johnson, this uncertainty could not justify the continued detention of IH for more than a reasonable period to enable arrangements to be put in place for his discharge. His prolonged detention, in these circumstances, was in violation of Article 5(1). This was a consequence of the incompatibility that this Court identified in H, which has now been cured.

[101]It has not been alleged that the Tribunal was in breach of duty under s.6(1) of the Human Rights Act, no doubt because of the provisions of sub-section (2) of that section. We should add, however, that the decision of the fourth Tribunal puts in question the third Tribunal’s finding that IH was no longer suffering from mental illness. Mental Health Review Tribunals are not infallible. The facts of this case lend force to the recommendation of the Leggatt Report that there should be a second-tier tribunal to hear appeals from Mental Health Review Tribunals.

[102]IH has failed to demonstrate that the judgment of Bell J was wrong, and accordingly this appeal must be dismissed. Order:

[1]Appeal dismissed

[2]No order as to costs

[3]Leave to appeal to the House of Lords refused. (Order does not form part of the approved judgment)

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