THE QUEEN ON THE APPLICATION OF ‘C’ v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 647

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Collins
[2002] EWCA Civ 647Case No Case No: C/2001/1478Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
THE QUEEN ON THE APPLICATION OF ‘C’RespondentSECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant
Before
Lord Phillips MrLord Justice Jonathan ParkerLord Justice DysonMr Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair for the Respondant)Ms Nathalie Lieven (instructed by The Treasury Solicitor for the Appellant)Date 15 May 2002
[1]Introduction This is the judgment of the Court in an appeal from the judgment of Collins J. which was delivered on 19 June 2001. The appeal first came before us on 10 December 2001. It was adjourned for further argument in the circumstances that we shall describe. The issue that it raises concerns the interpretation of s.71(1) of the Mental Health Act 1983 (“The Act”), which provides:
“The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.”
The question is what restrictions, if any, there are on the apparently unfettered discretion conferred by this provision. The Facts[2]C is a patient in Broadmoor high secure hospital who is subject to a hospital order made pursuant to ss.37 and 41 of the Act following his conviction for various offences in 1988. In November 1999, he applied to the Mental Health Review Tribunal (“the Tribunal”) for a discharge from hospital under s.70 of the Act. On 10 February 2000, the Tribunal adjourned the application for three months, inter alia, for a possible care plan to be prepared and for the production of a further report by Dr Isweran, C’s responsible medical officer.[3]On 14 April 2000 Dr Isweran produced an addendum to his report saying that C continued to suffer from a psychopathic disorder and was not ready for a conditional discharge. That view was not, however, shared by the senior hospital social worker, Mr Jackson. In his report of 5 May 2000, Mr Jackson recommended that there should be a conditional discharge. He advised that it would be desirable that C should be placed in a hostel and have ready access to a psychiatrist or general practitioner with significant experience in psychiatric matters. His final recommendation was that C should be “conditionally discharged, deferred until such time as the conditions can be met”.[4]C’s case had also been considered by a Ms Roden, who is a social worker at Islington Borough Council. She formed the view, which she recorded in a manuscript document dated 7 February 2000, that if he were released into the community, C would require that there should be, as she put it, a “registered medical officer”. By this she meant that C needed a supervising psychiatrist. On 4 May, Ms Roden produced a further report in which she listed thirteen needs that would have to be met if C were to be discharged conditionally. These included that C needed a “consultant psychiatrist in the community”.[5]On 21 September, Mr Jackson produced an updated report in which he repeated his earlier views, and made it clear that C only needed to have access to a psychiatrist: he did not require supervision by a psychiatrist. He said:
“Access to a psychiatrist and supervision by a psychiatrist are quite different matters. If both were freely available, I would happily see [C] discharged to both. However, it appears – particularly in the light of the recent K case ( R v Camden and Islington Health Authority, ex parte K, 9 June 2000) – that it will be difficult to impossible to locate a psychiatric supervisor from the Camden and Islington Area.”
[6]There were a number of enclosures to Mr Jackson’s report. One of these was described as an “amended statement of need”. In his report, Mr Jackson described this as “amended statement of Need Roden/[C]/Jackson Sep OO”. The document set out eleven needs, including at number 5 “needs easy access to a psychiatrist or suitable qualified GP”. In addition, Mr Jackson produced a typed copy of the original manuscript assessment made by Ms Roden on 7 February 2000. However, he omitted the list of needs that had been attached to that report and the somewhat revised version of the list of needs contained in Ms Roden’s report of May.[7]The hearing before the Tribunal took place on 11 and 12 October 2000. Oral evidence was given by Mr Jackson and Dr Isweran. Dr Isweran was of the opinion that if there were to be a conditional discharge, it should be subject to a condition of supervision by a psychiatrist. Mr Jackson maintained his position that a condition of access to a psychiatrist would be sufficient. The Tribunal was not made aware of the fact that Ms Roden shared Dr Isweran’s view that the condition should be of supervision by a psychiatrist. The decision of the Tribunal was given on 13 October. It decided: “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”.[8]At paragraph 6 of its decision, the Tribunal made the following findings:
“ 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) is “YES”, but the answer to 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 or 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”[9]At paragraph 7 the Tribunal imposed the following conditions:
“1. That the patient be transferred to a hostel operated by the Langley House Trust which shall observe the regime as outlined at pages 15-19 of the report prepared by Mr W. R. Jackson dated 21 September 2000. We assume that the patient will go to the hostel in South London (Balham) which has been described to us, and decline to make any restriction upon the area in which such a hostel may be situated. We bear in mind that it would be in the patient’s best interests to continue to receive the care and support of Miss Rogue and or Mr Jackson. 2. The patient will comply with the rules of the hostel, examples of which were read to us. 3. The patient will be overseen by a Social Supervisor and have access to such psychiatric treatment as he may need from time to time. 4. The patient will make no attempt to contact Helen Bailey or any members of her family in any way.”
[10]It will be seen, therefore, that the Tribunal accepted the recommendations made by Mr Jackson in relation to psychiatric treatment, and rejected the evidence of Dr Isweran. Shortly thereafter, Ms Roden learnt that the statement of needs that she had prepared had not been shown to the Tribunal. On 30 October, she wrote to the Tribunal enclosing a copy of her statement of need of May, highlighting the crucial differences to which we have referred. It was the fact that Ms Roden’s report was not placed before the Tribunal that led the Secretary of State on 29 November to write referring C’s case back for consideration by the Tribunal under s.71(1) of the Act.[11]In a witness statement dated 20 March 2001, Pamela Lutterloch, a civil servant in the Mental Health Unit of the Home Office, explains why the reference was made. She states (paragraph 9) that the “apparent confusion over the documentation was very important because of the extreme rarity of a restricted patient being discharged without a condition of psychiatric supervision and the problems that this presents”. She goes on to identify the difficulties presented by a patient not having a supervising psychiatrist:
“10. There are approximately 1200 conditionally discharged patients in England and Wales subject to a restriction order under the 1983 Act. So far as colleagues currently in the Mental Health Unit and I are aware, there has only been one patient discharged into the community without the benefit of a named supervising psychiatrist. In that case, the Tribunal did not impose such a condition. This was because, having heard evidence from the Health Authority and social services department that they had made every effort but had been unable to find a psychiatrist in order to comply with conditions imposed in previous years i.e. both in 1997 and 1998, the Tribunal took the view that it would be wrong to impose such a condition. In the Claimant’s case however, although there was no psychiatrist available in his catchment area who was prepared to supervise him, the possibility of a psychiatrist acting as supervisor from another area of the country, as had happened on the previous occasion that he was discharged, had not been explored. This was particularly because in Dr Isweran’s view the Claimant was not yet ready for discharge as a hostel placement had not been identified. This is confirmed by Dr Isweran’s report of 13 th September 2000 at page 218 of the bundle in which Dr Isweran states that ‘It is not possible to arrange a package of care that will meet the above needs without knowing the possible placement’, having identified that supervision by a psychiatrist was a need. At that stage, therefore, it was not possible to say that imposing a condition that the Claimant should have a supervising psychiatrist would negate the effect of the conditional discharge. A social worker would normally expect to work as part of a team with a nominated supervising psychiatrist (quite commonly referred to as a Responsible Medical Officer (RMO) in the community. A condition specifying easy access to a psychiatrist or suitably qualified GP has a very different effect and would not provide the same level of specialist support which a conditionally discharged patient would normally require, and would leave the social worker somewhat isolated in the management of the case, particularly at times of crisis where urgent specialist intervention is required. Further, the Defendant would not be able to request reports on the patient’s progress from a doctor who was not nominated to supervise the patient as a condition of discharge. Deterioration in the patient’s mental state is a ground on which a patient may be recalled to hospital, however without a nominated supervising psychiatrist who would be expected to have regular meetings with the patient and submit regular reports to the Defendant, a recommendation for recall would be very difficult to make. 11. Given the Claimant’s background and needs (as referred to above) and the difficulties set out above where the patient does not have a supervising psychiatrist, we considered it important that the Tribunal should have been aware of Ms Roden’s views. It would of course be a matter for the Tribunal whether they chose to accept those views and provide a condition for a supervising psychiatrist, but the Tribunal were not given the opportunity to consider her up to date statement of need. 12. It is also the case that the Defendant may add conditions for the patient’s discharge under section 73(4)(b) of the 1983 Act. However these would commonly be such conditions as the patient not having contact with a victim or not entering a certain area. The Defendant cannot direct a psychiatrist to act as a nominated supervisor in the case of a conditionally discharged patient.”
The legislative provisions[12]The power in a Tribunal to discharge restricted patients is given by s.73 of the Act, which until 26 November 2001, so far as material, provided:
“(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, 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 matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient. ….. (4) Where a patient is conditionally discharged under this section – (a) he may be recalled by the Secretary of State under subsection (3) of section 42 above, as if he had been conditionally discharged under subsection (2) of that section; and (b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State. ….. (7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.”
[13]Until 26 November 2001, so far as material, s.72(1) provided:
“(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 – ….. (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 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; or (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself. ”
[14]In R(H) v London North and East Region Mental Health Review Tribunal [2001] 3 WLR 512 (‘ H’) , this Court held that, in so far as ss.72 and 73 imposed on a patient applying to a Tribunal to be discharged from detention in hospital the burden to establish that at least one of the criteria for his continued detention was no longer satisfied, and thus to disprove the lawfulness of his continued detention, they infringed his rights to liberty under Article 5(1) and (4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The Court granted a declaration of incompatibility under s.4 of the Human Rights Act 1998.[15]In consequence of that declaration, on 16 November 2001, the Secretary of State for Health made the Mental Health Act 1983 (Remedial) Order 2001. The order came into force on 26 November. It is unnecessary to set out the terms of the order. Its effect is to reverse the burden of proof in ss.72 and 73, so that a Tribunal is now obliged to direct the discharge of a patient unless satisfied that the relevant criteria for detention have been proved. The effect of the remedial order is to make ss.72 and 73 compatible with the Convention, at least in relation to the question of where the burden of proof lies.[16]Notwithstanding the remedial order, Article 5(1) and (4) of the Convention are highly relevant to the issues that arise on this appeal. They provide:
“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… 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 the detention is not lawful.”
The effect of the Tribunal’s Decision[17]The decision of the Tribunal of 13 October was made in the exercise of the powers conferred by s.73(2) and (7). The decision was that the patient should be conditionally discharged, but that the direction for conditional discharge should be deferred until the necessary arrangements had been made. When the decision was made all concerned, including the Tribunal, the Secretary of State and those advising C, would have believed that it was not one that the Tribunal would be able to reconsider. This was because of the decision of the House of Lords in Campbell v Secretary of State for the Home Department [1988] 1 AC 120. In that case the House of Lords held that, once a Tribunal had determined that a patient was entitled to be conditionally discharged, albeit that the direction should be deferred under s.73(7), the only function that remained to the Tribunal was to direct the conditional discharge if and when the necessary arrangements for this purpose had been made. The Tribunal had no power to reconsider the decision that the patient was entitled to a conditional discharge in the light of subsequent events or additional information. The effect of the Secretary of State’s referral[18]The effect of the referral of C under s.71(1) was to set aside the decision of the Tribunal. This was because of the provisions of the last part of s.73(7):
‘the previous application or reference shall be treated as one under which no direction under this section can be given’
. The Tribunal was thus deprived of its jurisdiction to give any direction. The position of C had to be considered anew by a fresh Tribunal.[19]The objections made on behalf of C to the Secretary of State’s action can be summarised as follows. Under the Act the role of a Tribunal is to decide the lawfulness of a patient’s detention in accordance with Article 5(4) of the Convention. The Tribunal had decided that C’s detention was unlawful and that C was entitled to be discharged, albeit subject to conditions. The Secretary of State was bound to observe that decision. It was not open to him to abrogate it by making a fresh reference without good reason. The fact that the Tribunal had reached its decision without knowledge of Ms Roden’s views did not constitute a good reason. The judgment[20]Before the Judge, it was conceded by Mr Bowen on behalf of C that the power to refer under s.71(1) could be exercised following a decision by a Tribunal, if there were circumstances unknown to the Tribunal, which “invalidated” its decision. But the judge identified two factors that were relevant to the exercise of the s.71(1) power in such circumstances. He was, of course, considering the matter after the decision of this Court in H , but before the remedial order had been made. First, he said that the Secretary of State had to be aware that, if he made a reference, he was requiring the fresh Tribunal “to go through an exercise which may produce a breach of the patient’s rights under Article 5 of the European Convention on Human Rights because of the burden of proof that is placed upon him”.[21]Secondly, the Secretary of State must also be aware that the imposition of a more onerous condition, which is likely to be more difficult and will therefore take longer to satisfy, is likely to have the effect of lengthening the period during which the patient is restricted: “that, again, is capable of constituting a breach of Article 5 unless it is properly justified”.[22]These two considerations led

the Judge to this conclusion at paragraph 60 of his judgment:

“… That means, in my judgment, that the Secretary of State must form the view that it is probable that the material in question would have affected the result in that it would have decided either that a more onerous condition be imposed or that a conditional discharge would not have been ordered. To put it lower than that would seem to me to produce a decision which would breach the applicant’s human rights. Provided the Secretary of State approaches the matter on the basis that the onus is on him to satisfy the need for continuing detention, whether because of the remaining danger of the individual so that he should not be discharged at all or because a more onerous condition is to be imposed which would lead to a longer time in detention, he can use his powers under section 71. The question then arises as to whether the Secretary of State in the circumstances of this case was able to meet that necessary precondition for the exercise of his power under section 71.”
[23]The Judge then considered what effect Mr Jackson’s failure to notify the Tribunal of Ms Roden’s views on the access/supervision issue had on the Tribunal’s decision. He concluded at paragraph 67:
“I take the view that it is quite plain that the failure to indicate Ms Roden’s true views might have affected the result. If one was simply approaching this by asking the question: “Could it have affected the result”?, the answer would be: “Yes, it could”
. But that is not, for the reasons that I have given, in my judgment, the correct approach. The correct approach is for the Secretary of State to ask himself whether it probably would have affected the result, and I do not feel that it is possible to say that it would, even on the balance of probabilities.”[24]When deciding to refer under s.71(1), the Secretary of State did not direct himself that he had to establish that if the Tribunal had known of Ms Roden’s views the result would probably have been different. Accordingly, the Judge held that the decision to refer was unlawful and had to be quashed.[25]We have not found it easy to follow all of the reasoning of the Judge. In particular, we question whether the declaration of incompatibility made by this Court in H had any relevance to the question of whether the reference by the Secretary of State was lawful. In the unusual circumstances of this case, however, as we are about to explain them, we do not consider that it would be profitable to conduct a detailed analysis of the judgment below. Campbell revisited[26]The effect of the decision of the House of Lords in Campbell proved unfortunate in a situation which was not envisaged by the House when it reached that decision. Sometimes, when a Tribunal decides to direct a conditional discharge but defers giving the direction so that arrangements can be made for the purpose of the conditional discharge, it proves impossible to make the arrangements in question. In those circumstances the patient can be left ‘in limbo’ if the Tribunal has no jurisdiction to reconsider its decision. In R(K) v Camden and Islington Health Authority [2001] 3 WLR 553 this Court questioned whether the decision in Campbell gave s.73(7) of the Act an interpretation that was compatible with Article 5(4) of the Convention. In that case it was not necessary to resolve that issue.[27]On 5 December 2001 Bell J. delivered judgment in R(IH) v Nottinghamshire Healthcare NHS Trust and Others [2001] EWHC Admin 1037 (‘ IH’ ). In that case he departed from the decision in Campbell in order to arrive at an interpretation of ss.72 and 73 of the Act which was compatible with the Convention. Despite this, both Counsel in the present appeal initially made their submissions on the premise that Campbell remained good law. Having reserved judgment, we learned that Bell J’s decision in IH was to be the subject of appeal. Because of the obvious impact that this appeal might have on the present case, we arranged for the appeal in IH to come before us and directed that this appeal should be restored for further argument at the same time.[28]We delivered our judgment in IH immediately before this one, and reference should be made to it for our summary of the submissions made by the Counsel in this case and our detailed reasoning. In short, we held that the decision in Campbell could not stand with Article 5(4) and that, in order to arrive at an interpretation of s.73 of the Act that was compatible with the Convention, it was necessary to depart from that decision. We held that where a Tribunal decides to direct a conditional discharge, but defers giving that direction pursuant to s.73(7), the Tribunal remains fully seised of the case. The decision to direct a conditional discharge is provisional. If, prior to directing a conditional discharge, there is a change of circumstances or additional material is brought to the attention of the Tribunal, the Tribunal can reconsider its decision.[29]This departure from the decision in Campbell leaves no doubt as to what the Secretary of State should have done on the facts of this case. He should have invited the Tribunal to reconsider its decision, taking into account the views of Ms Roden, which should have been before it at the time of its original decision. There was no justification for his making a fresh referral and, thereby, removing the matter from the jurisdiction of the Tribunal altogether.[30]Ms Lieven, on behalf of the Secretary of State, urged that we should nonetheless allow the appeal. She argued that, at the time of his referral, the Secretary of State had no option but to proceed on the basis that Campbell was good law, so that it was not open to him to ask the Tribunal to reconsider its decision in the light of Ms Roden’s views. We do not accept this submission. What is in issue is not whether the Secretary of State is to be criticised for the course that he took, but whether his decision was lawful. For the reasons that we have given, we have held that it was not. It follows that the decision fell to be quashed. Quashed it has been by Collins J, albeit for different reasons. Accordingly, this appeal must be dismissed. Order:[1]Appeal dismissed with costs.[2]Detailed assessment of the appellant’s community service funding. (Order does not form part of the approved judgment)

Cited in 1 later judgment