SH, R (on the application of) v Mental Health Review Tribunal [2007] EWHC 884 (Admin)

Case No CO/3360/2006[2007] EWHC 884 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 3rd April 2007
Strand
London WC2A 2LL
B E F O R E:
MR JUSTICE HOLMAN
Between
THE QUEEN ON THE APPLICATION OF SHClaimant-v-
Between
MENTAL HEALTH REVIEW TRIBUNALDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR HUGH SOUTHEY (instructed by Messrs Campbell Law Solicitors) appeared for CLAIMANTMS NATHALIE LIEVEN QC (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T

The Facts

[1]The facts of this case are of more significance than may have been first apparent. The claimant, SH, is aged 37. He had a period of mental ill health in 1997, after which he had some treatment, described in one report as "sporadic". In 2000 there was a deterioration in his mental health and on 4th June 2000, while living at home, he strangled his wife. His plea of diminished responsibility was accepted and on 27th October 2000 he was convicted of manslaughter. The Crown Court made hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983 ("the Act"). The hospital order authorised his admission and detention, and the restriction order restricted his discharge.[2]In due course SH applied, as was his right, for discharge. On 2nd June 2003 the Mental Health Tribunal directed his conditional discharge pursuant to section 73(2) of the Act. Pursuant to section 73(4), the tribunal attached certain conditions, namely:
"1. That the patient shall comply with medication prescribed by [a named doctor] or his successor, which is likely to by depot for several years. 2. That the patient shall reside at [a named hostel] as directed by his RMO and social supervisor or their successors. 3. That the patient shall receive visits and attend appointments as required by his RMO and social supervisor or their successors."
RMO means "Responsible Medical Officer", a status defined in the Act.[3]Following that decision, SH was released into the community. He went to live, and still does live, at the specified hostel. He has regularly and, so far as I am aware, punctiliously complied with the medication prescribed by his RMO. He did not in any way at all question, protest at, or still less, challenge the legality of condition 1.[4]In 2005, as was his right, SH made a further application to the tribunal pursuant to section 75(2) of the Act, seeking that he be absolutely discharged. In relation to such an application, section 75(3) provides that:
"(3) Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may-- (a) vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or (b) direct that the restriction order or restriction direction to which he is subject shall cease to have effect; and if the tribunal give a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order or transfer direction."
[5]A considerable body of evidence was assembled for the hearing. This included a report by the RMO dated 23rd December 2005, in which he said, amongst over things:
"Even if we consider that SH has been free of symptoms for the past two years, he is compliant with his regime of treatment and generally compliant with the supervision, I am convinced that SH does not have full insight into his illness. He has mentioned on several occasions to his CPN that he wanted the medication to be reduced."
And that:
"If discharged off section 37/41, I am not completely sure that the patient will adhere to his care plan and will remain compliant with the medication."
When the RMO said in that passage "if discharged off section 37/41" he meant if the tribunal were to direct, pursuant to section 75(3)(b) that the restriction order shall cease to have effect -- ie absolute discharge.[6]SH himself made a statement dated 25th January 2006. In relation to taking medication he said, on page 2, that:
"I am very fortunate in that the medication I take (the injectable form of Risperidone) controls my illness and yet I do not suffer any side-effects from the medication. I understand that I need to take medication indefinitely and perhaps for the rest of my life. I know I need the medication and have never asked to come off it. In fact if the doctors suggested that I stop the medication I would be concerned about this. As I have no side-effects I cannot see a reason not to take the medication... The index offence is something that I have to live with for the rest of my life. I cannot imagine anything worse happening. I want to do everything to ensure that anything similar [viz the killing] never happens again. For this reason, I would always take my medication and see all the professionals involved in my care. I am aware of the signs that I could be coming ill again. These include: not sleeping properly, worries that will not go away and feeling scared of my life."
On page 3 he again said:
"I realise that the most important protection against me becoming unwell again is to continue to have my fortnightly injection. I am pleased that my chance of becoming unwell again is very small."
There was thus not the slightest suggestion by him that he was anything other than willing, and indeed eager, to continue with his fortnightly injected medication.[7]In relation to accommodation, however, the position of SH was different. At page 6 of his statement, he said that he had now lived at the specified hostel for more than two years and that he no longer required or needed the supported accommodation there. He said:
"I do not require supported accommodation ... I believe that the residence condition should be changed to reflect my needs now. That is to say, that I should now be able to reside at my own independent accommodation (either private or public sector). My legal representative at the Mental Health Review Tribunal hearing will put forward, I understand, a suitable form of wording for this varied condition of residence."
[8]In the final section of his statement, on page 8, under a heading "Absolute discharge", SH said:
"I do not now believe that the power of recall is necessary for my own well-being or for the protection of others. I am mentally well, insightful, compliant with medication, living effectively independently, working full-time and doing the things I would do if I were absolutely discharged. I will continue with my medication indefinitely and continue to see my doctor, CPN and social worker. My family are very much more knowledgeable about my condition, the early warning signs, etc. I have proved I can live safely and well in the community... If the Mental Health Review Tribunal do not discharge my restriction order, I would like for the condition of residence to be varied so that I can live independently. Thank you."
[9]Thus the express position of SH himself in a full and clear statement was clearly to seek absolute discharge; but, if that was not granted, then, as the last sentence of his statement quoted above spelt out, that the condition of residence be varied. Nowhere in his statement did he seek or even suggest that, if his discharge were to remain conditional at all, condition 1, as to complying with medication prescribed, should be varied.[10]The tribunal hearing finally took place on 14th February 2006. They heard quite considerable oral evidence, including from SH himself, and he was represented by his solicitor. The tribunal were concerned about certain conduct which they considered to have been deceitful and manipulative and continued:
"Although SH has managed successfully in the hostel placement, has employment in the community and complies with his medication, we are satisfied that he does not have full insight into his mental illness or the implications of his index offence and his mental illness on his children or on his new wife. Nor is SH in full remission."
They said, further:
"For all the reasons outlined above we agree with Dr Boast and the treating team that the nature of SH's illness is such that it is not appropriate that he is absolutely discharged and we are satisfied that he should remain liable to recall. We are satisfied that the present hostel condition is proportionate in all the circumstances having regard to the nature of SH's illness and the risks which that illness presents to him and to others, particularly his children. We have considered the conditions which presently apply and modify these as stated [see below]. We consider that the modifications are necessary to reflect the evidence which we have heard today in particular as to SH's non-engagement with the treating team."
[11]The conditions to which he was already subject were varied in exercise of the power under section 75(3)(a). Condition 1 was varied to delete the previous reference to the named doctor or his successor, that doctor having passed from the scene, and to substitute a reference to "his RMO". That variation was purely mechanical and is, as such, irrelevant to the case. The thrust of condition 1 remained, namely:
"That the patient shall comply with medication prescribed by his RMO, which is likely to be by depot for several years."
The claimant was unsuccessful in his bid to have condition 2, as to residing at the named hostel, revoked or varied and conditions 2 and 3 continued unvaried at all. The tribunal added a new condition 4, namely:
"That the patient shall comply and engage with the recommendations of the treating team as to his treatment including any recommendations for psychotherapeutic interventions."
[12]The pleaded challenge in this case is, in form, solely to condition 1, although it seems to me that the new condition 4 is in fact in wider terms than condition 1. Both conditions employ the words "shall comply with"; "the treating team" must include within it "his RMO"; and "recommendations as to his treatment" must include within it "medication prescribed". However, the challenge relates specifically to the requirement to comply with depot medication, which is specifically the subject of condition 1, and it appears that, insofar as the new condition 4 imposes any obligations greater than condition 1, neither the claimant nor his lawyers seem to be concerned about it. I will thus ignore condition 4 in the remainder of this judgment.[13]The outcome of the hearing was accordingly that, subject to the minor variation to substitute the reference to his RMO for the named doctor, condition 1 remained in place as the condition actually imposed in 2003 to which he was already subject and which was not otherwise varied in exercise of the power under section 75(3)(a). Condition 4 was added in exercise of the power under section 75(3)(a) to "impose any condition which might have been the imposed in connection therewith." Properly speaking, the challenge to condition 1 must be to the decision in 2003 originally to impose the condition under section 73(4) or, alternatively, to a decision in 2006 not to vary it so as to delete it. The case was argued before me in the context of section 73(4) and the scope of conditions which may lawfully be imposed under that subsection, and I propose therefore to approach the point of law in the same way. The question of law is: can a Mental Health Review Tribunal lawfully impose a condition in the terms of condition 1 in exercise of its power under section 73(4)(b) to impose conditions? (If it can, then it may also impose such a condition at a later hearing under section 75(3) as being "any condition which might have been imposed in connection therewith". If it cannot, at a first hearing, under section 73, then it cannot at a later hearing under section 75(3).)[14]The full-time regional chairman of the southern region of the tribunal, Professor Jeremy Cooper, was present in court throughout the hearing. Ms Nathalie Lieven QC, for the tribunal, took instructions from him and told me, and I accept, that a condition in, or substantially in, the terms of condition 1 is frequently imposed in the case of restricted patients who, like SH, suffer from controlled schizophrenia and require regular depot injections. So the case may have an importance going beyond the position of SH alone. The Reason for the Challenge[15]Notwithstanding what SH had said in his written statement to the tribunal, the factual basis of challenge is now set out in paragraph 2.8 of the grounds in support of the claim. I mention that there is in fact no further statement or other evidence from the claimant himself but, as his solicitor has made a statement of truth as to the pleaded grounds, I proceed as if the facts now are indeed as follows. "2.8. The Claimant does not wish to cease taking his medication. He acknowledges that it brings benefits to him. However, he wishes to be free of a condition requiring him to take medication so that he can demonstrate his willingness to take medication. That will enable him to demonstrate that he will comply with his clinical team without legal compulsion. That will assist him to establish that he can be absolutely discharged. He will be able to argue that his willingness to comply with treatment means that there is no need for him to be liable to recall." The Law[16]So far as is material, section 73 of the Act provides as follows:
"73 -(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order ... the tribunal shall direct the absolute discharge of the patient if -- (a) the tribunal are not satisfied [in summary paraphrase, that he is still ill and his detention for assessment or treatment is warranted or justified]; and (b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. (2) Where in the case of any such patient as is mentioned in subsection (1) above -- (a) paragraph (a) of that subsection applies; but (b) paragraph (b) of that subsection does not apply, the tribunal shall direct the conditional discharge of the patient. (3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly. (4) Where a patient is conditionly 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 conditionly 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. (5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above..."
[17]The general effect of section 73 is, accordingly, that the tribunal must direct the absolute discharge of a patient if they(a) are not satisfied, in paraphrase, that he is still ill and his detention for assessment or treatment is warranted or justified; and(b) are satisfied that it is not appropriate for him to remain liable to be recalled. But, if only the first but not the second limb applies, then the tribunal must direct conditional discharge. The critical difference between absolute and conditional discharge is that if the patient is only conditionally discharged, he may be recalled by the Secretary of State. The tribunal themselves do not necessarily have to impose any actual condition (see words "(if any)" in subsection 4(b)) but may do so. The Secretary of State has a wide power himself to impose conditions at any subsequent time, and from time to time vary any condition whether imposed by the tribunal or by himself.[18]The references to conditions are entirely general and open ended and there are no express words in sections 73, 75 or elsewhere limiting the scope or effect of any condition which may be attached. Clearly, however, the law imports or requires some limitations. A condition could not lawfully be capricious and must be relevant and for a proper purpose within the scope of the statute. It is not suggested that condition 1 is not relevant and for a proper purpose.[19]Mr Hugh Southey, on behalf of the claimant, submits that section 73(4)(b) is subject also to the principle of legality as described by Lord Hoffmann in R v Secretary of State for the Home Department ex parte Simms [2004] 2 AC 115 at 131E to G, where he said:
"... the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
[20]I fully accept that that principle applies to this case and operates as a limitation to the scope of a condition which may lawfully be imposed. The question in issue, however, is whether condition 1, properly understood and applied, does override any fundamental right of SH.[21]The essential submission of Mr Southey focuses on the words "shall comply" where they appear both in section 73(4)(b) and in the language of condition 1 itself. I agree that the word "shall", where it appears in both the statute and the condition, means "must". He submits that the words accordingly import or require an element of compulsion which is in conflict with the absolute and very fundamental right of a person of full capacity (which SH is) to give or refuse consent to medical treatment. The classic statement of that right remains the judgments of the Court of Appeal in In re T (Adult: Refusal of Treatment) [1993] Fam 95. On its facts, that case was concerned with the issue of capacity and the circumstances in which doctors may lawfully treat despite a refusal or apparent refusal of consent to the treatment. However, the judgments contain clear statements about the requirement of consent and the patient's absolute right to give or withhold it. At page 102D, Lord Donaldson of Lymington MR said:
"An adult patient who ... suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered ... This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent."
At page 113E to G, under a heading "The vitiating effect of outside influence", Lord Donaldson said:
"A special problem may arise if at the time the decision is made the patient has been subjected to the influence of some third party. This is by no means to say that the patient is not entitled to receive and indeed invite advice and assistance from others in reaching a decision, particularly from members of the family. But the doctors have to consider whether the decision is really that of the patient. It is wholly acceptable that the patient should have been persuaded by others of the merits of such a decision and have decided accordingly. It matters not how strong the persuasion was, so long as it did not overbear the independence of the patient's decision. The real question in each such case is 'Does the patient really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself?' In other words 'Is it a decision expressed in form only, not in reality?'"
[22]Mr Southey fastens on the references to "persuade" and "persuasion" in that passage and submits that although, as Lord Donaldson said, persuasion is wholly acceptable so long as it does not overbear the independence of the patient's decision, a compulsion or mandate by statute or by a condition imposed pursuant to statute ("shall comply") is not. I, for my part, would emphasise in that passage that the key question for the doctor is whether "the decision is really that of the patient" and whether the independence of the patient's decision is overborne.[23]At pages 115 to 116 under a heading "Summary", Lord Donaldson said:
"1. Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death..."
I then read his proposition 5, but substituting the words "consent" or "consent to" for the word "refuse":
"5. In some cases doctors will not only have to consider the capacity of the patient to [consent to] treatment but also whether the [consent] has been vitiated because it resulted not from the patient's will, but from the will of others. It matters not that those others sought, however strongly, to persuade the patient to [consent], so long as in the end the [consent] represented the patient's independent decision. If, however, his will was overborne, the [consent] will not have represented a true decision."
[24]Butler-Sloss LJ expressly agreed with the general propositions of law laid down by Lord Donaldson. Staughton LJ gave a judgment to substantially the same effect and, at page 121, referred to the concept of "true consent". He said that an apparent consent may be "inoperative in law" for one of three reasons. Only the first is relevant for the present case. He said, at page 121E to F:
"The first reason is that the apparent consent ... was given as a result of undue influence. It is, I think, misleading to ask whether it was made of a patient's own free will, or even whether it was voluntary. Every decision is made of a person's free will and is voluntary, unless it is effected by compulsion. Likewise, every decision is made as a result of some influence: a patient's decision to consent to an operation will normally be influenced by the surgeon's advice as to what will happen if the operation does not take place. In order for an apparent consent ... to be less than a true consent ... there must be such a degree of external influence as to persuade the patient to depart from her own wishes, to an extent that the law regards it as undue. I can suggest no more precise test than that."
[25]Mr Southey stresses the phrase "unless it is effected by compulsion" and submits that the statutory imperative that the claimant "shall comply" with the prescribed medication amounts to compulsion and goes beyond medical advice in strong terms or any form of mere influence, even if undue.[26]A case closer to the situation in the present case was the earlier case of Freeman v Home Office (No 2) [1984] 1 QB 524. There, the plaintiff was a life prisoner and the issue was whether he had validly consented to an injection or whether, as he argued, the power or authority of a prison doctor overbore or negated his consent. That issue was summarised by Stephen Brown LJ at page 553G:
"[Leading counsel for the plaintiff] submits ... that it is impossible within the prison context as between a prisoner and a prison medical officer for free and voluntary consent to exist, at least, he added, in the absence of any written consent form. The prison medical officer is not merely a doctor, he is, submits [counsel], a prison officer within the meaning of the Prison Rules and accordingly is a person who can influence a prisoner's life and his prospects of release on licence. There must inevitably be an atmosphere of constraint upon an inmate in such circumstances."
[27]However, at page 555D Stephen Brown LJ said that the sole issue, that is to say whether the plaintiff had consented ... was essentially one of fact.

The judge had said:

"The right approach, in my judgment, is to say that, where, in a prison setting, a doctor has the power to influence a prisoner's situation and prospects a court must be alive to the risk that what may appear on the face of it to be real consent is not in fact so ..."
Stephen Brown LJ commented:
"Essentially, however, the matter is one of fact. The judge made the positive finding that the plaintiff consented. He rejected [leading counsel's] submission that the plaintiff was entitled to judgment because he was incapable in law of giving his consent to the treatment by [the doctor] in question. In my judgment he was right to do so."
At page 557C Sir John Donaldson MR also quoted the above passage from the trial

judge and said:

"I would accept that as a wholly accurate statement of the law. The judge said that he had borne this in mind throughout the case. The sole question is therefore whether, on the evidence, there was a real consent."
[28]Freeman thus anticipated In re T and identified the issue as being whether there was "a real consent" and made plain that that is ultimately always a question of fact.[29]Within the context of the European Convention on Human Rights, Mr Southey relied upon the admissibility decision of the Commission in JR and others v Switzerland Application Number 22398/93, in which the Commission declared inadmissible a claim that a requirement of Swiss law for compulsory dental control and treatment of children, enforceable against parents by the sanction of a fine, violated the Article 8 rights both of the children and of their parents. Unsurprisingly, the Commission recalled its case law according to which even minor medical treatment, as long as it is compulsory, constitutes an interference with a person's right to respect for private life, and accordingly held that:
"Compulsory dental treatment, as in the present case ... amounts to an interference with the applicants' right to respect for their private life within the meaning of Article 8 of the Convention."
However, the application was declared inadmissible as, in the opinion of the Commission, the interference with Article 8(1) could reasonably be considered justified within Article 8(2).[30]The essential submission of Mr Southey is that the imperative "shall comply" in the condition, underpinned as it is by the imperative in the Act itself, interferes with the common law "absolute right to choose" described by Lord Donaldson in In re T and with the Convention right of SH under Article 8(1) and is unlawful.[31]Mr Southey reinforces this submission by reference to the statutory regime under Part IV of the Act. Part IV is headed "Consent to treatment" and, by section 56, applies to any person liable to be detained under the Act except, amongst others, "a patient who has been conditionally discharged under ... section 73 below and has not been recalled to hospital". Accordingly, it does not apply to SH. However, in relation to those to whom it does apply, sections 57 and 58 contain very important safeguards. Section 57 concerns the most serious forms of treatment and provides, in summary, that such treatment must not be given unless the patient has consented to it, and an independent doctor and two other persons have certified the patient's capacity and the fact of his consent, and the independent doctor, after additional consultation, has certified that the treatment should be given. Section 58 concerns less serious forms of treatment and provides, in summary, that those forms of treatment must not be given unless the patient has consented (with safeguards as to capacity and the fact of consent) or an independent doctor, after additional consultation, has certified that the patient lacks capacity but that the treatment should be given.[32]These are very important safeguards which must be satisfied before any form of treatment falling within the respective sections is actually given. Mr Southey submits that the effect of condition 1 is to deny to SH similar important safeguards. Further, that the existence of those sections shows that Parliament expressly legislates where it intends to permit a patient with capacity to be treated without consent. Further, that in the case of treatment falling within section 57, that it can never be performed without consent and that, if the tribunal can require patients to comply with all forms of medical treatment, a conditionally discharged patient would be in a less protected position than a detained patient.[33]Mr Southey makes a similar point by reference to the regime of statutory after-care under supervision under sections 25A to 25E within Part II of the Act. By section 41(3)(aa) these provisions do not apply to a patient such as SH in respect of whom a restriction order is in force.

(b) :

"that the patient attend at specified places and times for the purpose of medical treatment, occupation, education or training"
. As quoted at paragraph 1-334 on page 173 of the current, 10th edition of the Mental Health Act Manual by Richard Jones, the government made plain when that section was before Parliament that the power under that section "cannot be used to require the patient to accept medication in the community, and compulsory medication is no part of the Bill's provisions..."[34]Mr Southey thus submits, first, that the fact that Parliament regarded it as necessary in section 25D to specify the requirements that can be imposed regarding treatment supports his submission that there is need for an express statutory power before treatment can be imposed. Secondly, that the absence of a power in section 25D to require a patient to accept compulsory medication shows the seriousness of a condition to that effect. Discussion and outcome[35]In my view, this claim fails both on the law and on the facts. The law with regard to consent to treatment is clear and I have already quoted extensively from In re T. An adult of full capacity has an absolute right to choose whether to consent to medical treatment. That applies to every aspect of treatment and every occasion of treatment. Thus in this case, on each occasion that SH attends, or should attend, for his fortnightly depot injection he has an absolute right to choose whether to consent to it or not. The treating doctor or nurse must, on each occasion, satisfy himself that the apparent consent is a real consent and that the independence of the patient's decision or his will has not been overborne (see the language of Lord Donaldson in In re T). As Freeman makes clear, that is in every case and on every occasion a question of fact for the doctor and, in the event of legal challenge, the court. That is the law and Parliament has not derogated from it save by such express provisions as section 58. The tribunal must be presumed to know the law and, in my view, condition 1 is intended to be, and should be, read as subject to the general law.[36]In marked contrast to JR v Switzerland, where the parents were liable to a fine, section 73 does not attach, or empower the attachment of, any sanction for failure to comply with a condition and the tribunal did not attach or purport to attach any sanction. The Secretary of State has a general power of recall under section 73(4)(a), but there is nothing to make recall an automatic sanction for non-compliance as such with a specific condition. As the decision of the European Commission of Human Rights in Kay v United Kingdom, 1st March 1994, 40 BMLR 20 at paragraph 50, made clear, the Secretary of State cannot (save in an emergency) exercise the power of recall without up to date medical evidence. This has now been confirmed by Scott Baker J in B v Mental Health Review Tribunal and Secretary of State for the Home Department [2002] EWHC 1553 (Admin), where he said, at paragraph 11:
"Since Kay v United Kingdom 40 BMLR 20 it has been necessary for the Secretary of State, in order to justify recall, to have up to date medical evidence showing that the criteria for detention are met."
Accordingly, the Secretary of State could not lawfully recall simply because of, or as a sanction for, non-compliance with a condition. He could only recall on the basis of up-to-date medical evidence as to risk to the patient or others. I agree with Ms Lieven QC in paragraph 23 of her skeleton argument, where she said:
"The fact that the patient did not comply with the condition would not itself warrant a recall to hospital. It is possible to imagine many breaches of condition which would be most unlikely to lead to a recall. Equally, on the facts of this case it may be quite possible that if the claimant ceased to take his medication he would be recalled. But that would not be because he had broken a condition of discharge. It would be because there was clear medical evidence that if he ceased to take his medication he would pose a serious risk to the safety of others."
[37]It thus follows, in my view, that condition 1 should clearly be read as importing and subject to the absolute right of SH to choose whether to consent as described by Lord Donaldson. In deciding whether actually to consent SH may take into account the imperative of the condition, just as he might take into account strong medical advice or the persuasion of a relative. But the condition must be read as respecting and being subject to his own final choice, which must be his real or true choice.[38]On the facts of this particular case, the report of the RMO, which I have already quoted, did not stress a need for a condition in the terms of condition 1 as such. Rather, he stressed the need for the discharge to remain conditional:
"If discharged off section 37/41 [viz if absolutely discharged], I am not completely sure that the patient ... will remain compliant with the medication."
Any pressure upon SH is from the continuing conditional nature of his discharge, not from condition 1 itself.[39]This approach no doubt requires that a tribunal should not attach a condition in, or similar to, the terms of condition 1 unless there is a proper basis for anticipating that the patient does, and will, consent to the treatment. This is where the claim in this case must in my view fail on its facts. In passages which I have already quoted, SH has made clear from first to last and still today (see paragraph 2.8 of the grounds quoted above) that he does wish to take the medication, is indeed eager to do so, and does consent to it on every occasion. Further, save that he hoped to achieve absolute discharge, there was no discrete challenge at all in 2005/2006 to a continuation of condition 1 if his discharge was to remain conditional. In those circumstances, it seems to me that there was, and is, no infringement at all of his absolute right to choose. It was eminently justifiable to attach the condition, or continue to attach it, and the decisions of the tribunal, both in 2003 and 2006, were not unlawful or in violation of the rights of SH under Article 8(1).[40]If, contrary to my above view, imposition of a condition does interfere with any Article 8(1) right, then, on the facts of the case,(1) that interference is plainly justifiable and proportionate in terms of Article 8(2); and(2) adequate procedural safeguards are provided by the tribunal hearing before the condition was imposed and the availability of judicial review or a further tribunal hearing if, contrary to the submission of Ms Lieven which I have quoted and accepted above, the Secretary of State were arbitrarily to recall SH merely for breach of the condition.[41]For these reasons, the decisions of the tribunal in 2003 and 2006 were not unlawful or otherwise irrational and this application for judicial review is dismissed.[42]I make the concluding comment that in my view it would be preferable for a tribunal, when imposing a condition similar to condition 1, to make express what I have held to be necessarily implicit. It would be better if there were added to condition 1 some such words as "subject always to his right to give or withhold consent to treatment or medication on any given occasion". But that does not affect my decision and conclusion.[43]That is the end of the judgment. Now, so far as outcome is concerned, there was in fact a discussion about necessary orders, depending on which way I decided this, and, in light of that discussion and subject to anything, Ms Hirst or Ms Ward, which you may later say, I propose to make an order in the following terms. First, dismissing the claim for judicial review. Second, providing for costs as follows:(1) there be detailed assessment of the publicly funded costs of the claimant;(2) the claimant must pay the defendant's reasonable costs, subject to section 11 of the Access to Justice Act 1999.[44]Then the following provision in relation to time for appealing. Any application to myself for permission to appeal must be made by written submissions, limited to two sides of A4, and any such application must be lodged with myself within 14 days from today. The time for any notice of appeal or renewed application to the Court of Appeal for permission to appeal will run from the date when a written decision from myself as to the grant or refusal of permission to appeal is received by the applicant for permission.[45]Now, Ms Hirst, is there any additional or alternative order that, from your limited acquaintance with the case, you wish to suggest?[46]MS HIRST: Not so far as I am aware, my Lord. I was under the impression the order was agreed.[47]MR JUSTICE HOLMAN: Well, it had been and that is what I have just said but I have just nevertheless formally asked you. Ms Ward, any additional or alternative order?[48]MS WARD: My Lord, I am sure it is agreed. I have not actually had the benefit of speaking to Ms Lieven about the precise terms. I just wondered that the application of permission to be sent to yourself obviously ought to be copied to the defendant in case of any observations that would be made as would be made in open court.[49]MR JUSTICE HOLMAN: Well, relations between Ms Lieven and Mr Southey could not have been more harmonious and I am quite sure you can work out that it is dealt with in that way.[50]MS WARD: Thank you, my Lord.[51]MR JUSTICE HOLMAN: Anything else? It is extremely nice to see you two here today and I thank you very much for coming, especially at short notice.

Cited in 5 later judgments