W, R (on the application of) v Doncaster Metropolitan Borough Council [2003] EWHC 192 (Admin)

Case No CO/2325/02

Neutral Citation No.: [2003] EWHC 192 (Admin.)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday 13 February 2003

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE STANLEY BURNTON

Between

WClaimant

Doncaster Metropolitan Borough CouncilDefendant

The Queen on the application of

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Kris Gledhill (instructed by Howells) for Claimant

Robert Weir (instructed by Halliwell Landau) for Defendant

Judgment

Introduction

[1]In these proceedings the Claimant claims damages for false imprisonment and under the Human Rights Act 1998 (“the HRA”) against the Defendant for its alleged failure to take steps required by the decision of a Mental Health Review Tribunal on 9 July 2001 to direct his conditional discharge conditional on his residence in suitable hostel accommodation. He alleges that the Defendant Council unlawfully failed to take the steps required by that decision which would have secured his release from detention under the Mental Health Act 1983 (“the MHA”): in essence, that the Defendant’s social workers frustrated the decision of the Tribunal.

[2]W’s claims raise questions as to the duty of a local services authority under section 117 of the MHA, the application of the tort of false imprisonment to cases where the release of a detained mental patient is delayed due to the default of a public authority, and the ambit of the protection afforded to such authorities by section 139(1) in the light of the HRA.

[3]It was agreed by the parties that the hearing before me should be restricted to the question of liability, leaving issues as to the amount of any damages to be paid by the Defendant, if not agreed, to be determined by the Court subsequently.

The facts

[4]The Claimant is aged 29. He has a long history of mental illness: he first reported hearing voices telling him what to do at aged 10. In April 1994 he was convicted of affray. He stabbed at a woman who lived in the same hostel repeatedly with a knife. He reported that he had heard voices telling him to kill her. He suffered from schizophrenia. The Crown Court made a hospital order under section 37 of the MHA and a restriction order under section 41. In 1996 he was transferred from Arnold Lodge in Leicester to Wathwood Regional Secure Unit in Rotherham. On Christmas Day 1998 he savagely attacked a fellow patient. Dr Mendelson, his RMO, considered that he constituted a grave and immediate danger to the general public, and he was assessed for admission to Rampton Hospital, a high security unit. However, he subsequently and dramatically improved. By January 2000 he was described as remarkably stable and was responsibly using his unescorted community leave. A move to Loversall Hospital in Doncaster for his further rehabilitation was considered, but during a period of leave there he met the victim of the 1998 attack. Although nothing adverse happened, W felt that he could not cope with the proximity of his victim, and the proposed move to Loversall did not take place.

[5]The Defendant was the local social services authority responsible for W under section 117 because he had last lived in its area before his detention. Ms Helen Arnell-Smith (she is now Mrs Richardson) became his caseworker in January 2001.

[6]A care programme approach (“CPA”) meeting was held on 1 March 2001. It was agreed that W should be transferred to Loversall Hospital. Later that month, W’s case was referred to the Mental Health Review Tribunal. In May 2001, Ms Arnell-Smith asked for a further section 117/CPA meeting. A meeting was arranged for 21 June 2001, but was cancelled owing to Dr Mendelson’s unavailability. Ms Arnell-Smith prepared a report dated 2 July 2001, necessarily without the benefit of a meeting between all of the responsible agencies. She stated that there was a general consensus that W no longer required detention in a secure hospital environment. She was of the view that a transfer to local non-secure hospital services was appropriate. She concluded:

“1.2 At the previous s. 117/CPA Meeting it was unanimously agreed, a period of assessment in a less secure hospital environment would be necessary and appropriate to determine (W’s) ability to manage this significant transition prior to transfer to a community placement and consideration of his suitability for conditional discharge. In my view there have not been any significant developments which might warrant a radical departure from a plan which was previously agreed to be necessarily in the best interests of Mr W and the general public.”

[7]Thus the view of Doncaster Social Services was that W’s discharge was inappropriate, and that a move to a non-secure hospital should precede his discharge into the community.

[8]Dr Soliman, a psychiatrist instructed by W’s solicitors, prepared a report for the tribunal dated 4 July 2001. He advised against putting pressure on him to return to Doncaster. He was of the opinion that his conditional discharge was appropriate, and that W should be discharged to a hostel. He said:

“The main risk factors in Mr W’s case is the likelihood that he might stop taking his medication with the consequent relapse of his illness, causing him to become irritable and aggressive towards himself or others. This risk could be significantly diminished if he is offered a community place where there is staff available 24 hours who could also monitor his medication, in addition to the continuous involvement of the community team, including his CPN, Social Worker and Community Support Workers. Given the stability of Mr W’s mental state over the past 2 years or so and the encouraging degree of insight he has gained, I would consider him to present a low risk to the community at large, and hence fit to be discharged from hospital on a conditional discharge. Should the panel agree to grant him a conditional discharge, I would be prepared to provide psychiatric supervision for him in the community. However, this offer would be subject to 2 conditions: Firstly, during his first year in the community, should his mental condition deteriorate to such an extent that hospital admission is required, Wathwood Hospital will undertake to admit him. Secondly, provision should be made available to ensure that full community support in Rotherham, including a CPN, Social Worker, and Community Support Worker are in place prior to his discharge from Wathwood Hospital.”

[9]The tribunal on 9 July 2001 accepted Dr Soliman’s opinion. They found that W was no longer suffering from a mental condition of the kind specified in section 72(1)(b)(i) of the MHA, were satisfied that it was not necessary for him to receive medical treatment but were not satisfied that it was not appropriate for him to be liable to be recalled. Pursuant to section 73(7), the tribunal imposed the following conditions on his discharge:

“1. He shall receive psychiatric treatment from Dr A H Soliman or his successor. 2. He shall receive social supervision from a named social worker. 3. He shall reside at appropriate accommodation as approved by Dr Soliman and the named social worker.”

[10]The tribunal gave clear reasons for their decision. They stated:

“Though he has enjoyed generous unescorted leave in recent months there is a still a concern as to how (W) may react if left unsupervised and his previous mental history of violence, absconding, substance abuse and frank mental illness means that he must remain liable to recall. For some time it has been recognised, both within the unit and by the designated social workers, that the patient is ready to move on. However, a transfer to a less secure hospital accommodation has not taken place, in part because of understandable concerns on (W)’s part about a return to the Doncaster area and renewed acquaintance with the victim of the index offence. In fact it seems to us that though such may have been appropriate as a ‘test exercise’ the statutory criteria did not demand such. In the last few weeks real progress has been made to identify a suitable hostel placement. No formal assessment (at Westfield House) has yet taken place and thus, though we hope such may be (W)’s next move the conditions we impose are necessarily more general than would otherwise have been the case.”

[11]Ms Arnell-Smith was the named social worker for the purposes of the tribunal’s decision. On 16 July 2001, Dr Mendelson wrote to her asking her to make an application for W’s placement to Westfield House Hostel in Rotherham. She replied on 19 July 2001, stating that she was required to produce a current, comprehensive assessment of his needs before pursuing a formal application for placement. She requested a recent psychiatric/medical assessment of W, a risk assessment summary, a recent occupational therapy assessment and a psychological/nurse therapist assessment summary identifying W’s perceived psychological support needs. On the following day, she wrote to the principal social worker at Wathwood asking for her opinion regarding W’s “future needs with specific reference to the suitability of a placement at Westfield House and the availability of appropriate aftercare provision within the Rotherham area”. The principal social worker replied on 6 August 2001. She stated:

“It is my view that (W) requires 24 hour care provided by staff who are experienced not only in mental health but if possible forensic issues. I understand that you have visited Westfield House to carry out your own assessment regarding the suitability of the unit. It is my view that Westfield may not have adequate staffing levels and staff are not social work or RMN trained. (W) can be dependant on a service and will require a comprehensive care package on discharge, this will include day care. If (W) resettles in an area outside of Doncaster then there will be funding implications for Day Care.”

She suggested a meeting to discuss the options.

[12]Ms Arnell-Smith herself visited Westfield House on 31 July 2001. She attended a clinical team meeting at Wathwood Hospital on 16 August 2001, when the principal social worker practitioner at Wathwood expressed serious reservations as to the suitability of Westfield for W.

[13]Ms Arnell-Smith did not receive all of the reports she had requested in her letter of 19 July 2001. She nonetheless produced a detailed Community Mental Health Team Assessment Document dated 6 September 2001. She concluded:

“Westfield House is a privately managed residential facility providing primarily rehabilitation but also continuing care to clients from 18-65 years. However, this facility would appear to have had limited experience of providing support to clients with a forensic history and/or dual, multiple diagnosis. Further, there are no nurse or social work qualified professionals currently employed within the staff team. Concerns have been identified by local agencies and the social services department in Rotherham with regard to the possibility of a placement at Westfield House specifically with respect to the ability of this facility to adequately address the level and complexity of (W)’s perceived needs. If such a placement were to be pursued then proactive, assertive in reach from community based mental health professionals would be perceived to be necessary to ensure (W) is adequately supported in this placement and any risk management or relapse prevention strategies are effectively implemented. The social services department in Rotherham has clearly stated it would not be prepared to provide social work support or intervention should (W) seek a placement in the area as he would not fulfil the criteria of ordinary residence. The manager of the community mental health team covering the area where Westfield House is situated has been approached regarding the possibility of CPN intervention. However, I am advised they are not in a position to offer this service to a client in residential provision. Assistance with ongoing monitoring and assessment might be facilitated through access to structured rehabilitative day care. However, I am advised this provision is limited in availability in the Rotherham area. Further, there remain issues regarding registration under the Care Programme Approach which will need to be addressed and systems would need to be established to facilitate effective interagency working across agency boundaries. In sum, given the issues identified regarding the suitability of Westfield House as a placement and the limited availability of formal community mental health services or support I would have serious reservations about pursuing a plan for (W) rehabilitation in the Rotherham area at the present time and the local authority assuming responsibility for his social supervision in this context. Further discussion between the relevant agencies is strongly recommended with a view to reconsideration of available options and addressing concerns identified.”

Her report was countersigned by her Care Manager. The Head of Service for Community Care Commissioning in Doncaster responded to her report in a memorandum dated 12 September 2001:

“… I am writing to confirm that I share your reservations around the suitability of Westfield House as a placement for (W) at this time. I am particularly concerned that the care available at the Home and in the community is not sufficient to meet the identified risks. Consequently, I am not at this stage prepared to fund the placement at Westfield House.” (Emphasis in the original)

[14]A CPA review meeting took place on 13 September 2001. Those present included W himself, his mother, Dr Mendelson’s specialist registrar and Dr Soliman. The note of that meeting, produced by Dr Kennedy, Dr Mendelson’s specialist registrar, stated:

“The team at Wathwood feel that (W) does not require the current high level of inpatient care and had agreed that placement in Westfield House on a trial leave basis for up to three months, during which time structured day care could be introduced, would be a good way forward. Dr Soliman had agreed to act as RMO. However, it was not clear where the additional community nursing support would come from. Mike Goss explained that Rotherham CPN Service is so stretched that it is unable to offer ongoing supervision. Helen Arnell-Smith stated that on the basis of her needs assessment, the head of service commissioning would not fund Westfield House as it is not considered an acceptable placement on the grounds of poor staff training in mental health matters. This situation has been explained to (W) and he is now prepared to consider all the possible alternatives. There has been discussion today about Swallownest. This is not felt to be suitable as it is an inpatient placement and (W) requires a community placement. The only other option at present is Jubilee Gardens in Barnsley. We would require an RMO. It has been agreed that Helen Arnell-Smith will liaise with Jubilee Gardens to investigate further the timescale for admission and suitability. Dr Kennedy/Dr Mendelson will investigate with Barnsley RMO’s if any are prepared to take on (W)’s case. If it appears that the conditions of the Tribunal cannot be met within a reasonable time frame we will have to contact the Tribunal Clerk.”

The note records that:

“All are in agreement as to the investigation of a Jubilee Gardens placement as the most appropriate way forward.”

Jubilee Gardens is a hostel.

[15]Dr Mendelson did not agree with Mrs Johnson’s views. In a letter dated 17 October 2001, he cast doubt on the possibility of W being accepted at Jubilee Gardens and stated:

“… The only reasonable way forward is to support (W)’s wish for a placement at Westfield House Hostel and then to arrange the necessary community support.”

[16]However, in a letter dated 25 October 2001, the consultant in public health of Doncaster NHS Health Authority stated:

“Westfield House is a relatively new unit and appears to have limited experience with forensic patients. There are no nurse or social work qualified professionals employed within the staff team. Local mental health professionals who know Mr (W) well are unhappy about the levels of risk, which would accompany placement at Westfield House at this stage, although it may be suitable in the long term.”

She suggested a transfer to a hospital.

[17]Ms Arnell-Smith produced a risk assessment dated December 2001. In it she stated:

“There has been a consensus view this package should include accommodation with support available 24 hours to help promote his skills, confidence in relation to daily living and also assist with the monitoring of his mental health needs and related risk issues. Close supervision and monitoring have been identified as integral and necessary to any risk management or relapse prevention plan in (W)’s case given the propensity identified for unpredictable behaviour and rapid relapse combined with his risk history. … The staff team at Westfield House have had very limited experience of providing support to service users with forensic histories and multiple diagnoses, associated complexity of need. Further, there are no staff members with formal or relevant clinical qualifications and this is a relatively new facility having previously catered for older adults. Concerns have been identified by local agencies and social services professionals in Rotherham with regard to the suitability of this placement – specifically, serious questions have been raised as to the ability of this facility to adequately or safely address the complex needs and potential risks defining (W)’s situation. … Whilst Dr Soliman, Consultant Psychiatrist (Rotherham) had agreed to accept responsibility for (W)’s ongoing medical care and supervision prior to the Tribunal Hearing in July, a subsequent request was made reportedly on his behalf for this responsibility to be assumed by Dr O’Leary, Consultant Psychiatrist (Doncaster) – concerns having been identified at the time with regard to the potential difficulties of coordinating an effective multidisciplinary response across different authority and agency boundaries. Dr O’Leary declined this responsibility. The concerns identified by the department and the principal social work practitioner at Wathwood RSU were communicated and discussed fully with other members of the inpatient clinical team and (W) in person prior to the s.117/CPA Meeting held on 13 September. At this planning meeting these issues were discussed at further length with Dr Soliman who appeared to fully acknowledge our concerns. It appeared Dr Soliman may have anticipated full transfer of responsibility to the Rotherham area. Given the identified deficits of a placement at Westfield House specifically in relation to (W)’s documented needs and the absence of supportive intervention from community mental health services in Rotherham, related concerns identified by Dr Soliman about effective coordination of supervision, it was concluded at this s.117/CPA Meeting alternative possible placements should be investigated.”

[18]In a letter to Dr Mendelson dated 7 December 2001, Ms Arnell-Smith asked for a further section 117/CPA meeting “at the earliest opportunity”. It seems that the social worker at Wathwood also considered Westfield to be inappropriate for W: see Ms Arnell-Smith’s fax of 11 December 2001 to Dr O’Leary of Loversall Hospital.

[19]Ultimately, W’s case was referred back by his solicitors to the tribunal. Dr O’Leary prepared a report for the tribunal emphasising the need for caution in moving W out of secure facilities. Ms Arnell-Smith also produced a report, dated 29 January 2002. She concluded:

“5.3 A number of serious concerns have been identified regarding the suitability of Westfield House in Rotherham which has been identified as Mr W’s preferred placement. These concerns have been compounded by the lack of support from community mental health services in the Rotherham area. A number of possible alternative placements across the region have been explored but without success. It is anticipated the s.117/CPA meeting scheduled for February will involve all agencies who have been concerned with Mr W’s case in some way and thus facilitate further discussion and negotiation relating to his needs with a view to achieving agreement as to how these needs may be will be best met.”

[20]On 6 March 2002, the tribunal effectively varied the terms of W’s conditional discharge by specifying his residence at Westfield House or elsewhere as directed. In their reasons, the tribunal stated:

“The sticking point in the implementation of the conditional discharge of 9 July ’01 has been a concern about inappropriateness of Westfield House, the accommodation preferred by (W), but not seen as ideal by Social Services either in Rotherham (where the facility is) or in Doncaster (who have S.117 responsibility for (W)). Social Services feel that Westfield House did not have the specialist staff skilled in the management of patients with a forensic history although we note that the other x-Wathwood patients currently reside there and are provided with CMHT support there. We decided because of this, and given the long term stability shown by (W), that Westfield House was an adequate placement. We heard that Rotherham has some current staffing difficulties but that Doncaster Social Services accept their S.117 responsibility and would put in place CPN and social supervision for the initial period until Rotherham could take over.”

[21]In consequence, W was formally admitted to Westfield House on 8 March 2001. Regrettably, and possibly in consequence of the suicide of another resident there, his mental state deteriorated, and later in the summer he was readmitted to hospital.

The legal background

[22]The powers of Mental Health Review Tribunals in relation to restricted patients are set out in sections 72 and 73 of the MHA.

[23]In Johnson v UK

(1997) 27 EHRR 296

, the European Court of Human Rights held that

Article 5 of the European Convention on Human Rights

did not require the immediate and unconditional release of a mental patient when the mental disorder that had justified his detention no longer persists. However, the imposition of suitable conditions does not justify unreasonable delay in his release.

The parties’ submissions

[24]Mr Gledhill submitted:(i) The Defendant had a duty under section 117 to provide a care plan for W in advance of the tribunal hearing of 9 July 2001.

(ii) It was in breach of that duty, having failed to arrange any care in the community to be available on W’s conditional discharge.

(iii) The Defendant was under a duty to make the arrangements for the after-care services necessary to implement the decision of the tribunal of 9 July 2001 within a reasonable time of that decision.

(iv) The Defendant had failed to do so. Instead, it had acted so as to frustrate the decision of the tribunal, by unreasonably objecting to Westfield House and failing to provide the resources necessary (because of the inadequacy of Rotherham’s resources and the inadequacy as perceived by the Defendant of Westfield’s own resources) to permit W to reside there until it was effectively ordered to do so by the second tribunal. It had thus failed to comply with its section 117 duty.

(v) The above breaches of duty by the Defendant prolonged W’s detention. Although lawful under domestic law, his continued detention after the decision of the first tribunal infringed his rights under Article 5 not to be detained when his mental condition did not make his detention necessary and his right to respect for his private and family life under Article 8. The Defendant had committed the tort of false imprisonment and was also liable in damages under section 6 and section 8 of the HRA.

(vi) The Defendant was not protected by section 139(1) of the MHA, because it did not apply to judicial review proceedings: Ex parte Waldron

[1986] QB 824

. Furthermore, properly construed it does not protect an authority whose liability arises from an omission rather than an act.

[25]Mr Weir submitted:(i) No duty under section 117 arose until the decision of the tribunal of 9 July 2001 to direct W’s conditional discharge.

(ii) If any duty arose before the decision of the tribunal, the Defendant had complied with it.

(iii) The Defendant was not under an absolute duty to provide after-care: its duty was one to use its best endeavours. It had done so.

(iv) The Defendant’s objections to Westfield House were reasonable and genuine, and did not cause it to be in breach of its duty under section 117.

(v) The Defendant had no liability for Ms Arnell-Smith’s exercise of the power conferred on her by the first tribunal’s decision until it was endorsed by her superior.

(vi) The Defendant’s refusal prior to the decision of the second tribunal to put in place resources to supplement those of Rotherham and of Westfield House was justified and did not involve a breach of duty under section 117.

(vii) It followed that the Defendant had not unlawfully caused the prolongation of W’s detention.

(viii) Any responsibility of the Defendant for the continuation of W’s detention at Wathwood Hospital came to an end in September 2001, when Dr Soliman withdrew his approval of Westfield House.

(ix) Even if the allegations of W were well-founded, the tort of false imprisonment had no application where there had not been a breach of UK domestic law.

(x) In the circumstances, D had not caused any breach of W’s rights under Article 5 or Article 8.

(xi) In any event, D was protected by section 139(1) of the MHA from liability in damages.

(xii) An award of damages was not “necessary” within the meaning of section 8(3) of the HRA.

Liability for false imprisonment

[26]Mr Gledhill candidly admitted that the claim for damages for the domestic tort of false imprisonment was being pursued in addition to the claim for damages under the HRA because of the view expressed by Lord Woolf CJ in Liber Amicorum Slynn that damages under that Act should be “on the low side by comparison with tortious awards”. He also explained that no claim had been made against Wathwood Hospital (or rather its NHS Trust) because it was protected by section 6(2) of the HRA: provisions of primary legislation, namely the MHA, precluded it from releasing W unless and until the pre-conditions to his conditional discharge stipulated by the first tribunal had been met.

[27]The tort of false imprisonment is established on proof of imprisonment without lawful authority. Lawful authority in this context has until now meant lawful authority under English law.

[28]There will be cases where a public authority both commits the tort of false imprisonment and infringes the victim’s Convention right under Article 5. Indeed, most if not all cases of false imprisonment will also involve infringement of Article 5.1. In such cases, the victim will have remedies in tort and under the HRA. But not all infringements of Article 5 involve a breach of domestic law.

[29]The HRA does not expressly or by implication require the extension of this domestic tort to breaches of Article 5.1. To the extent that the HRA expressly provides for remedies for breach of Convention rights, such an extension is unnecessary; to the extent that the remedies provided by that Act are different from those applicable to a domestic tort, it would be inconsistent with the Act to equate a breach of a Convention right with a domestic tort. Section 8(3) of the HRA applies restrictions on the award of damages for breach of Convention rights that are not applicable to domestic torts, and section 8(4) requires the Court, in determining whether to award damages and their amount, to take account of the principles applied by the European Court of Human Rights in relation to the award of compensation under

Article 41 of the Convention

. To hold that a detention that infringes Article 5, but is not unlawful under domestic law, constitutes the tort of false imprisonment would circumvent these provisions.

[30]The remedies for breach of Article 5 are those required by Article 5.5 of the Convention (i.e. an enforceable right to compensation) and section 6 and section 8 of the HRA. These remedies will by definition include those necessary to afford just satisfaction to the victim. I do not therefore see that there is any need to widen the scope of the tort of false imprisonment. In my judgment, the domestic tort of false imprisonment is not committed unless the imprisonment is unlawful under our domestic law. W’s detention was never unlawful under our domestic law. It follows that the Defendant did not commit the tort of false imprisonment.

[31]In the circumstances, it is unnecessary for me to consider Mr Gledhill’s premise that damages awarded for unlawful detention in breach of Article 5 will necessarily be less than damages for false imprisonment in a comparable case. The claim for false imprisonment faced the further difficulty, which I do not think Mr Gledhill could overcome, that the tort is one of intention rather than negligence. It was not the Defendant’s intention to detain W and it never itself detained him: W’s case is that the prolongation of his detention was the effect of the Defendant’s negligent failure to perform its section 117 duty.

When does an authority come under the section 117 duty?

[32]Section 117(1) and (2) are as follows:

“(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital. (2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority 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 Primary Care Trust or 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.”

[33]Subsection (1) in terms requires three conditions to be satisfied for the application of the section: the person in question must have been in hospital under one or other of the statutory provisions specified. That condition was satisfied in the case of W: he had been admitted to a hospital pursuant to a hospital order under section 37. The second condition is that he or she ceases to be detained. An order of a tribunal for the immediate unconditional discharge of a patient will satisfy this condition, even if he or she remains in hospital. The third condition is that the patient leaves hospital. It is therefore difficult to see that the legal duty imposed by section 117 can arise before these three conditions are satisfied.

[34]Practical considerations reinforce this literal construction of the section. It would be wasteful of the limited resources of (in this case) a local social services authority for it to have to plan and make arrangements for the after-care of all patients whose applications come before Mental Health Review Tribunals. Most applications are contested, and a relatively small proportion of contested applications succeed. Where there are issues as to whether the discharge, if ordered, should be conditional, and if conditional as to where the patient should be required to reside, the authority would have to anticipate the decision of the tribunal. The authority might have to make arrangements that in the view of its professional staff were inappropriate and, in an extreme case, might involve risk to the patient or to the public. Furthermore, it seems to me to be undesirable for the professional staff of an authority to have to anticipate the decision of a tribunal in a contested case.

[35]The practical considerations to which I have referred in the preceding paragraph are reflected in the revised Code of Practice, issued under section 118 of the MHA, that came into force on 1 April 1999. Paragraph 27.7 is as follows:

“27.7 The courts have ruled that in order to fulfil their obligations under section 117 Health Authorities and Local Authority Social Services Authorities must take reasonable steps to identify appropriate after-care facilities for a patient before his or her actual discharge from hospital. In view of this, some discussion of after-care needs, including social services and other relevant professionals and agencies, should take place before a patient has a Mental Health Review Tribunal or managers’ hearing, so that suitable after-care arrangements can be implemented in the event of his or her being discharged (see para 22.12).”

I consider the first sentence of this paragraph below. The vague prescription of “some discussion” before a tribunal hearing is telling, indicating an unwillingness or inability on the part of the Secretaries of State for Health and for Wales to specify the practical content of the section 117 obligation before the tribunal had made its decision. Paragraph 22.12 of the Code is no more specific as to what is required.

[36]The first sentence of paragraph 27.7 of the Code is based on the decision of Otton J in R v Ealing District Health Authority, ex parte Fox

[1993] 1 WLR 373

. That case concerned a patient whose conditional discharge had been ordered by a tribunal. One of the conditions imposed by the tribunal was the appointment by the health authority of a responsible medical officer to provide psychiatric supervision of the patient in the community. The authority refused to make the appointment. Otton J said, at 385:

“I reject the submission that this duty (under section 117) only comes into existence when the applicant is discharged from Broadmoor. I consider a proper interpretation of this section to be that it is a continuing duty in respect of any patient who may be discharged and falls within section 117, although the duty to any particular patient is only triggered at the moment of discharge.”

With the greatest of respect to Otton J, I have to admit to some difficulty in understanding this statement if it was intended to be of general application. If the duty to a particular patient is triggered at the moment of discharge, he is not owed a duty before discharge. I suspect that the reference to “any patient who may be discharged” was intended to refer to a patient whose discharge had been ordered by a tribunal, which was the case he was considering. If so, the above statement does not create the practical difficulties to which I have referred. It is to be noted that Otton J gave an alternative basis for his decision. He said:

“If I am wrong in that interpretation, I am satisfied that such a duty can be spelt out from the general statutory framework and requires district health authorities to provide a comprehensive range of hospital and community psychiatric services, including appropriate services to meet the needs of mentally disordered offenders: see section 3(1) of the Act of 1977 and also Regulation 5 of and Schedule I to the National Health Service Functions (directions to authorities and administration arrangements) Regulations 1989 (S.I. 1989 No. 51).”

[37]It is pertinent to note that the declaration made by Otton J (at page 387) was in narrower, and in my judgment more appropriate, terms:

“(1) that the authority has erred in law in not attempting with all reasonable expedition and diligence to make arrangements so as to enable the applicant to comply with the conditions imposed by the mental health review tribunal; (2) that a district health authority is under a duty under section 117 of the Mental Health Act 1983 to provide aftercare services when patient leaves hospital, and acts unlawfully in failing to seek to make practical arrangements for after-care prior to that patient’s discharge from hospital where such arrangements are required by mental health review tribunal in order to enable the patient to be conditionally discharged from hospital.”

[38]The decision in Fox was followed by Scott Baker J (as he then was) in R v Mental Health Review Tribunal, ex parte Hall

[2000] 1 WLR 1323

. It is important to note that that too was a case in which the tribunal had ordered the conditional discharge of the patient, subject to conditions to be satisfied by the local health authority. The authority had failed to make the arrangements which would have satisfied the relevant conditions, and as a result the patient remained in detention in hospital. Scott Baker J expressly rejected the submission that the duty under section 117 only arose on discharge from hospital. He summarised the law at 1335 as follows:

“In my judgment Ex parte Fox supports the following propositions which I accept to be the law: (i) an authority’s duty to provide aftercare services includes a duty to set up the arrangements that will be required on discharge; it is not a duty that arises for the first time at the moment of discharge; (ii) an authority with a duty to provide aftercare arrangements acts unlawfully by failing to seek to make arrangements for the fulfilment of conditions imposed by a mental health review tribunal under section 73(1); (iii) if such an authority is unable to make the necessary arrangements it must try to obtain them from another authority; (iv) if arrangements still cannot be made an impasse should not be allowed to continue, the case must be referred back to a mental health review tribunal through the Secretary of State.”

[39]Having regard to the facts of Ex parte Hall and the wording of section 117, the first of those propositions must I think be confined to cases in which the tribunal has decided on the discharge of the patient, and the arrangements to which Scott Baker J referred in that proposition were those specified by the tribunal. The local authority did not appeal against Scott Baker J’s judgment that they were in breach of their duty under section 117. The tribunal appealed to the Court of Appeal. The scope of the duty under section 117 was not directly in issue before the Court of Appeal, but it is noteworthy that Kennedy LJ referred to paragraph 27.7 of the 1999 Code of Practice and stated, at 1353:

“That suggests that today, at least in embryo, plans should be available before a tribunal hearing takes place …”

The italics are mine. The italicised words reflect, I think, the practical considerations to which I have referred above militating against the formulation of defined plans before a tribunal hearing. Furthermore, at 1352 Kennedy LJ accepted the submission on behalf of the tribunal that:

“… once the tribunal has stipulated its conditions the burden is passed to the local authority and the health authority to make the necessary arrangements within a reasonable time (see section 117 of the Act) …”

Again, the italics are mine. I infer that Kennedy LJ did not consider that an authority was under a duty to put the after-care plan in place before a hearing.

[40]Both Ex parte Fox and Ex parte Hall were considered in R (K) v Camden and Islington Health Authority

[2001] EWCA Civ 240

[2002] QB 198

. That case too concerned the duty of an authority to provide the after-care required by a tribunal decision. At first instance, Burton J held that the duty of the respondent health authority was as set out in the declarations made by Otton J in Ex parte Fox. In the Court of Appeal Lord Phillips MR said:

“20. The relevant provisions of section 117(2) are set out at paragraph 19 of Burton J’s judgment. On their face they require the health authority to provide aftercare services for persons who cease to be detained and leave hospital. Decisions at first instance, to which I am about to refer, have held that the duty of a health authority extends to making arrangements for the care of a patient before that patient is discharged. Before Burton J, the respondent authority reserved its position as to whether these decisions were correct. Before us it has made the following limited concessions: (a) a health authority has power to take preparatory steps before discharge of a patient; (b) it will normally be the case that, in the exercise of this discretionary power, an authority should give way to a tribunal decision, and should use reasonable endeavours to fulfil the conditions imposed by such a decision, in so far as they relate to medical care; (c) failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion. … 29. In my judgment section 117 imposes on health authorities a duty to provide aftercare facilities for the benefit of patients who are discharged from mental hospitals. The nature and extent of those facilities must, to a degree, fall within the discretion of the health authority, which must have regard to other demands on its budget. In relation to the duty to satisfy conditions imposed by a tribunal, I would endorse the concession made by the respondent authority as to the extent of its duty.”

[41]Thus, while not expressly overruling Ex parte Fox or Ex parte Hall, Lord Phillips MR endorsed as statement of the health authority’s duties in terms of a power and discretion rather than a duty. Neither Buxton nor Sedley LJJ expressly addressed this issue.

[42]In R (IH) v Secretary of State

[2002] EWCA Civ 646

[2002] 3 WLR 967

the Court of Appeal referred to the section 117 duty in similar terms:

“96. … 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 arrangement to be made for providing psychiatric treatment in the community. The Health Authority subject to the section 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.”

There is a difference between the judgments in K and IH in the formulation of the standard of duty, the former referring to reasonable endeavours and the latter to best endeavours. On the view I take of the facts of the present case, that difference is immaterial.

[43]In my judgment, neither Ex parte Fox nor Ex parte Hall is authority for the proposition that in a contested case a local social services authority is under a duty under section 117 to put in place after-care arrangements before the tribunal’s decision. Neither case concerned the duty owed by an authority before the tribunal makes its decision. The effect of K is that the authority is normally bound before actual discharge to endeavour to put in place the arrangements required by the tribunal as conditions of a conditional discharge, or which the tribunal requires to be satisfied before a deferred discharge takes effect, or which the tribunal (in accordance with the judgment in IH) provisionally decides should be put in place. Similarly, where discharge is not contentious, an authority should if practicable plan after-care before a tribunal hearing in order for it to be able to comply with its section 117 duty on the patient’s discharge. Similar considerations apply where the discharge of a non-restricted patient is anticipated.

Did the Defendant breach its section 117 duty in this case?

[44]In the present case, before the first tribunal hearing the conditional discharge of W was contentious. In my judgment, at that stage the Defendant authority was under no duty under section 117 to make arrangements for his after-care. If it did have any such duty, it was no more than to use the endeavours appropriate in the situation in which the decision that will be made by the tribunal cannot be known. Through Ms Arnell-Smith it fulfilled that duty. She reported on W (I refer to the report of 19 Feb 2001) and attended the CPA meeting of 1 March 2001. At that time, the agreed proposal was for W to transfer to Loversall Hospital. She met the RMO on 10 May, and in her letter proposed a further section 117/CPA meeting before the tribunal hearing that was cancelled due to the RMO’s unavailability. She reported again on 2 July 2001. No more could reasonably have been required. Furthermore, it was only after Dr Soliman reported on 4 July 2001 that the possibility of discharge to a hostel was seriously raised.

[45]The decision of the tribunal of 9 July 2001 required Ms Arnell-Smith to use her professional judgment in deciding whether to approve the accommodation at which W was to reside. She was not required to accept Dr Soliman’s views: her separate approval was required. In K, Sedley LJ said, at 233-4:

“No judge can realistically sit as a court of appeal from a psychiatrist on a question of professional judgment. What a judge must be able to do is to ensure that such judgment, to the extent that its exercise is a public law function, is made honestly, rationally and with due regard only to what is relevant. Within this boundary more than one legitimate judgment – that of the community psychiatrist as well as of the mental health review tribunal – may have to be accommodated for the purposes of article 5(4), at least to the extent that the decision of the mental health review tribunal is explicitly dependent on the collaboration of the psychiatrist.”

Similar considerations apply to the exercise of professional judgment by a qualified social worker.

[46]Ms Arnell-Smith’s objections to Westfield House were rational and reasoned. She visited it and discussed it with Rotherham social services department. She had reasonable and lawful grounds for her conclusion. There were good reasons for caution, having regard to the seriousness of W’s index offence and his history. Furthermore, because Westfield House was considered inappropriate, the Defendant considered other placements: see the note of the section 117/CPA meeting of 13 September 2001. I see no basis for a finding that in objecting to Westfield she failed to use reasonable professional care, or that she did not use reasonable or best endeavours to arrange an appropriate placement for W. It is significant that when W’s solicitors wrote to the Defendant on 5 November 2001 their assertion was “the weight of opinion supports the move to Westfield”. Furthermore, there is no basis for a finding that she deliberately sought to frustrate the decision of the first tribunal.

[47]Mr Gledhill submitted that in arriving at her decision not to approve Westfield House, Ms Arnell-Smith erred in law in that she failed to have regard to the duty of Doncaster to provide resources (in particular trained and experienced staff) to supplement those that were lacking at Westfield and could not be provided by Rotherham. I do not think that Doncaster could reasonably have been expected to pay for or to install staff in Westfield House itself (and indeed this was never suggested): at most, it could be expected to provide community support. Doncaster’s objections to Westfield House were not confined to the lack of community support: they were concerned at the lack of experience of the staff. In addition, there were difficulties in providing cross-authority assistance, referred to by Ms Arnell-Smith in her risk assessment of December 2001.

[48]Mr Gledhill submitted that the Defendant’s objection to Westfield was rooted in the view that the appropriate placement for W was in a hospital. But this ignores the fact that there are hostels that do have staff with the experience and qualifications that Ms Arnell-Smith thought necessary. None of the other professionals involved made this point at the time.

[49]The resolution of the concerns raised in relation to Westfield House took 8 months: in retrospect, a surprisingly long time. To some extent, this was due to the inevitable delay between W’s solicitors’ application to the tribunal of 3 January 2002 and the hearing on 6 March 2002. It was open to them to have brought the matter back to the tribunal earlier, and I do not think that the Defendant can be liable in damages because it did not do so. Given the number of authorities involved, the investigations necessary (in particular the assessment of Westfield House, and the differences of view of those concerned), some delay was inevitable. The fundamental problem was the lack of hostel accommodation fulfilling the requirements of W as reasonably perceived by the Defendant. Counsel for the Claimant has not been able to identify a failure on the part of the Defendant to seek to progress his discharge or a lack of care or failure to use reasonable or best endeavours. In my judgment, the Defendant complied with its duty under section 117, notwithstanding that the second tribunal resolved the situation by making an order that Ms Arnell-Smith had thought inappropriate.

Liability under section 117 and under Articles 5 and 8

[50]In K Buxton LJ considered which organ of the state is liable to a victim of an infringement of Article 5.1 in a case such as the present. He considered that where the organs of the state have unreasonably failed to secure the release of a patient, it is the detaining hospital that is liable in damages: see paragraph 49 of his judgment. However, it appears that his attention had not been drawn to the effect of section 6(2) of the HRA, which precludes such liability where by reason of the provisions of primary legislation (specifically, the restrictions in the MHA on the discharge of a patient subject to a restriction order) the hospital could not have acted differently.

[51]Breach by a local health authority of the duty imposed by section 117 does not of itself give rise to a cause of action for damages for breach of statutory duty on the part of the patient concerned: Clunis v Camden and Islington Health Authority

[1998] QB 978

[52]However, an authority whose breach of its duties under section 117 causes the detention (or prolongs the detention) of a patient who would otherwise be discharged will normally cause an infringement of his rights under Article 5.1 of the Convention. Subject to the effect of section 139(1) of the MHA, the authority may be liable to the patient in damages for the infringement of his Convention right by virtue of section 6(1) and section 8 of the HRA, provided he can show that the award of damages is necessary to afford just satisfaction to him. In this connection, it must be borne in mind that the primary remedy of the patient will usually be to bring his application back before the tribunal: c.f. R (IH) v Nottinghamshire Healthcare NHS Trust

[2002] EWHC Civ 646

at paragraph 98. But if the authority has acted reasonably and has not acted in breach of its domestic law duties, there is no basis for an award of damages against it. In the present case, for example, it may be that the prolongation of W’s detention was due to a lack of resources, specifically a lack of suitable hostel accommodation in Doncaster and in the areas around it. Such a lack of resources may be attributable to the state under the Convention, but it is not necessarily the responsibility of the Defendant.

[53]In the circumstances of the present case, the claim under Article 8 gives rise to no separate considerations from the claim under Article 5.

[54]If I had held that W’s detention had been prolonged by the Defendant’s breach of its duty under section 117, I should have held that it is not protected by section 139(1) of the MHA. This is not because the present proceedings are proceedings for judicial review. Ex parte Waldron, on which Mr Gledhill relied for the proposition that section 139(1) of the MHA does not apply to judicial review proceedings, was concerned with proceedings for the old order of certiorari and for declarations, not with claims for damages. Ackner LJ said, at 840C:

“[Counsel for the applicant] … emphasises that the applicant is not interested in or seeking to claim damages against the doctors. He submits that the proceedings for judicial review which he is seeking to initiate do not constitute ‘civil proceedings’ within the meaning of section 139 of the Act of 1983. That section is concerned with private law, for example claims in tort brought against doctors. Proceedings under R.S.C., Ord. 53 are concerned with public law. Judicial review involves an inquiry into a decision - in this case whether there has been a plain excess of jurisdiction or not. The proceedings are not an action against the decision-maker.”

In my judgment, section 139(1) does apply to claims for damages made in judicial review proceedings. The scope of the statutory protection does not depend on the form of proceedings or the forum in which they are heard. This conclusion is fortified by the inclusion in these proceedings of a claim for damages for the private law tort of false imprisonment. The Defendant is entitled to the protection of section 139(1) in relation to its liability under our domestic law.

[55]I should also have been reluctant to accept Mr Gledhill’s submission that section 139(1) does not apply to an omission or failure to act, and is confined to positive acts. I do not think that Parliament intended there to be any such illogical and unmeritorious distinction in the application of that section.

[56]However, I doubt whether liability for the unlawful infringement of the rights of a patient under Article 5.1 is precluded by section 139(1) of the MHA. In such a case, the patient has a Convention right to compensation under Article 5.5. Section 3 of the HRA requires the Court to construe legislation in a way that is compatible with that right. Moreover, Parliament did not have breach of the Convention in mind when it enacted section 139(1) of the MHA. Despite the general words of that section, I should have been disposed to read it down so as not to apply to breaches of Convention rights. The interpretation of general words so as to exclude specific cases that Parliament could not have intended to be included in them is a standard mode of statutory interpretation: see Millett J (as he then was) in Re International Tin Council

[1987] 1 Ch 419

, 450.

[57]Similarly, if I had concluded that Ms Arnell-Smith had acted unreasonably in refusing to approve Westfield House, or had failed to use her best endeavours, I should have held the Defendant in breach of its section 117 duty. She was at all times acting as the employee of the Defendant and in the course of her employment, albeit that she had a duty imposed on her by the order of the first tribunal in relation to the approval of W’s accommodation.

[58]However, in the light of my above conclusions W’s claim will be dismissed.

Cited in 1 later judgment

Hickmott , R (on the application of) v Brighton and Hove Council & Anor 2004