Secretary of State for Justice v RB [2010] UKUT 454 (AAC)

UKUT-AAC
Secretary of State for Justice v RB
[2010] UKUT 454 (AAC) · 2010-12-20
[24]“I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty. Condition 3 is sufficiently broadly phrased as to allow for measures which would fall short of such a deprivation, and both it (where it deals with security) and condition 4 have as their purpose the protection of P.H. himself and would therefore be in his interests. I should add that there is some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable P.H. to go out with an escort whenever he chose to do so. On this principal issue, therefore, I conclude that the conditions would not involve his transfer from one state of detention to another state of detention. They are therefore not ultra vires.” (para 24)38. Four material points emerge from this review of the judgments in PH : 1) First, the “ PH principle”, that there could be no “discharge” while the patient remained deprived of liberty, does not appear to have been subject to argument at either level. 2) No doubt for this reason, the discussion of the principle in the judgment of Elias J was limited. The Court of Appeal simply proceeded on the basis that it was correct, without any discussion. 3) On the facts, it was held that even conditions as restrictive as in that case (for example, “not [to] leave the accommodation without an escort”) did not inevitably result in a deprivation of liberty. 4) A significant aspect of that conclusion was that they were imposed for the protection of the patient. (Mr Kellar drew our attention to JE v DE [2006] EWHC 3459 (Fam) in which Munby J doubted the continuing validity of this approach, but it is not necessary for us to comment on that.) Precedent39. There is no doubt that, when applying the law of England and Wales, the Upper Tribunal is bound by decisions of the Court of Appeal on issues of law in accordance with the ordinary rules of precedent. This follows from its status as a higher court, to which the statute provides a direct right of appeal.40. On the other hand, for the reasons given below, it seems to us equally clear that, where the Upper Tribunal is exercising a jurisdiction formerly exercised by the High Court, it need not regard itself as formally bound by decisions of the High Court. Subject to one qualification, we think the position should be the same as where the High Court is dealing with decisions of co-ordinate jurisdiction:
“that he will follow the decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity; but he is not bound to follow the decision of a judge of equal jurisdiction” (see e.g. Huddersfield Police Authority v. Watson [1947] K.B. 842, 848, per Lord Goddard C.J.) 41. The one qualification that we would suggest to this formulation arises from the particular nature of the Upper Tribunal’s jurisdiction, in line with the statement of Lady Hale in AH (Sudan) v Secretary of State [2007] UKHL 49 para [30] (repeating comments she had made in the Court of Appeal in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 , [2002] 3 All ER 279 ). She emphasised the highly specialised character of some legislation before the tribunals, and the need for the higher courts to respect their expertise. Consistently with that approach, where such specialised issues arise before the Upper Tribunal, it may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so. 42. For the general approach, we gain support from the Court of Appeal’s decision in respect of the jurisdiction of the former Social Security Commissioners in Chief Supplementary Benefit Officer v. Leary [1985] 1 All ER 1061. Having recorded that it was “not in dispute” that judgments given by the High Court “under its supervisory jurisdiction” were binding on the Commissioners, Lawton LJ said: “A distinction has to be drawn in decisions of the High Court exercising its supervisory jurisdiction which are, and always have been, binding on the Commissioners and the particular jurisdiction conferred on the High Court by the Act and the statutory instrument to which we have referred. The supervisory jurisdiction of the High Court is wide and discretionary. That given to the High Court between 1st January 1978 and 24th November 1980 was much narrower and was not discretionary. The effect of the 1980 Order was to transfer the narrow jurisdiction from the High Court to the Commissioners, probably for reasons of convenience. In these circumstances, it cannot, in our judgment, have been intended that when exercising this same jurisdiction the Commissioner should be bound by earlier decisions of the High Court.”
(p 1064-5) 43. The position seems to us even clearer in respect of the Upper Tribunal, which has been established by Parliament for the purpose of providing a specialist appeal jurisdiction on points of law, in many respects analogous to that of the High Court, and which is by statute made a “superior court of record” (section 3(5) of the 2007 Act). The Employment Appeal Tribunal,. which is also a “superior court of record” (Employment Tribunals Act 1996 s 20(3), has for many years (apparently without question) asserted a right to depart from High Court decisions, although treating them as “of great persuasive authority” (see Portec (UK) v Mogensen [1976] 3 All ER 565). 44. Mr Kellar relied on the general principle that “the decisions of higher courts are binding upon judges sitting in lower courts”, for which he referred us to Howard de Walden Estates v Aggio [2008] Ch 26 . There it was held that decisions of the Chancery Division were binding on the county court, even in a statutory context in which they were exercising the same first-instance jurisdiction. However, as the headnote makes clear, that decision turned on the relationship between the two courts as “superior court and inferior court” (see per Arden LJ, para 90). That in our view provides no assistance in a context in which Parliament has created a new “superior” jurisdiction. 45. Alternatively, Mr Kellar relied on the fact that the principle stated in Leary expressly excludes decisions of the High Court “in its supervisory capacity”, which he says covers the relevant decisions of the High Court applying the PH principle. However, we note that the exclusion in Leary was not part of the decision of the Court of Appeal, but appears to have rested on a concession by counsel, the basis of which is not clear from the report. In any event, the context is much changed. 46. To the extent that the Upper Tribunal itself may ultimately be held subject to the supervisory jurisdiction of the High Court (see, for the time-being, R (ex p Cart) v Upper Tribunal [2010] EWCA Civ 859 , as respects England and Wales), no doubt the High Court decisions will be treated as binding. However, in this case we are concerned with judgments of the High Court supervising, not the Upper Tribunal or its equivalent, but an inferior jurisdiction, that of the former Mental Health Review Tribunal. The Upper Tribunal is for practical purposes the successor to that supervisory role. It is true that the route of challenge in those days was by judicial review, rather than by appeal, but that was the consequence of the very narrow rights of appeal then available. The much wider powers now available to the Upper Tribunal are for all practical purposes equivalent to those exercised by the High Court in judicial review. In our view therefore there is no reason to accord such decisions special treatment merely because, for historical reasons, the procedural route was judicial review. 47. To conclude this section, it seems to us that we are not bound by the Court of Appeal decision in PH , because it did not purport to decide the relevant point. We are not formally bound by the successive decisions of the High Court, because we are exercising a jurisdiction of equivalent status for these purposes. On the other hand, we should of course be very cautious in questioning a proposition which has been accepted as correct by the Court of Appeal, and has been confirmed or applied by a series of High Court judges. For that reason, and on general principles, we should not depart from their approach unless satisfied that it is wrong. Should the PH principle be qualified? 48. We come back to the merits of the PH principle. Our reasons for questioning it are two-fold. First, we find it difficult to extract it from the statutory language. Secondly, it creates unnecessary problems for the tribunal, which serve no purpose consistent with the objectives of the Act. 49. As to the first, the section is in mandatory terms, depending on the tribunal’s conclusions on two issues, one of which is defined by section 72(1)(b). That depends, on the appropriateness not simply of “detention”, but of detention “in a hospital for medical treatment”. If that is not appropriate, but the “recall” condition is satisfied, then he must be “discharged” subject to conditions. There seems no room for any further pre-requirement. 50. The basis of Elias J’s reasoning, as we understand it, is that the word “discharge” itself necessarily connotes release from detention to a state of liberty; and that accordingly, while the patient remains deprived of his liberty, there can be no “proper and lawful discharge”. With respect, we do not think that the word “discharge”, in its ordinary sense, bears that interpretation. The dictionary definitions show that, depending on context, the word may mean “release from custody”, but may also connote release in the more general sense of “dismiss” or “send away”. Thus, in ordinary language, a patient may be “discharged” from hospital, without any connotation that he is being released from deprivation of liberty in the legal sense. In the context of section 72, it seems more natural to read the word “discharge” as meaning simply release from the state there mentioned, that is from “detention in a hospital for treatment.” 51. Mr Kellar does not, as we understand it, dispute this view of the natural meaning of the words of section 73. However, he argues that such a result cannot have been intended by Parliament because it would be inconsistent with the general framework of the legislation, which, he submits, enables a tribunal to rule on whether a patient should be detained at all but gives the Secretary of State the sole responsibility for determining where, and under what conditions, a person is to be detained. Discharge from hospital may be effected by either the Secretary of State (under section 42) or a tribunal (under section 73). Transfer from one hospital to another is a matter for administrative decision but, in the case of a restricted patient, can be effected only with the consent of the Secretary of State for Justice (see section 41(3)(c)(ii) and also Sch.1, Pt II, paras. 2 and 5). The role of a tribunal in respect of transfers is limited to making recommendations (only on a non-statutory basis in relation to restricted patients, but also under section 72(3) in relation to other patients). 52. We do not accept that other provisions relating to the special role of the Secretary of State in respect of restricted patients are a reason for reading section 73 in other than its ordinary sense. If anything, we think that a “purposive” approach supports our view. We agree respectfully with Bean J that is “curious” to find the Secretary of State praying in aid Article 5 of the ECHR to deny the patient a conditional discharge. We note the similar comments of Dr McKenna, from his “perspective as a clinician”, as to the use of the “unusual lever” of cases on human rights to restrict the liberty of a man who “has capacity and who consents (enthusiastically) to the proposed transfer” (bundle p A31). 53. The premise for exercise of the tribunal’s powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. The next step is to devise the conditions. At that stage, it is hard to see why the question whether the conditions would amount to detention for the purposes of article 5 should come into it. Even if they do amount to such detention, there will be no breach of Article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by Article 5. The tribunal’s concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. We see no reason why Parliament should have wished them to concern with themselves with the fine distinctions which may arise under the Strasbourg case-law on detention. The PH decision itself shows how narrow the dividing-line may be, and indeed that the issue may not be capable of final decision at that stage. It is surprising that a matter going to the jurisdiction of the tribunal to make an order should depend, not solely on the terms of the conditions, but on how they are implemented. 54. In conclusion on this point, we do not think that we are bound by the Court of Appeal decision in PH or the High Court cases which followed it, to hold (contrary to our clear view as to the effect of section 73) that the validity of the conditions proposed by the First-tier Tribunal depended solely on whether or not they amounted to detention. A tribunal’s finding that a care home, not being a hospital, is an appropriate place for a patient’s accommodation, subject to conditions, is enough to give them jurisdiction (and indeed require them) to direct conditional discharge. 55. On the other hand, a qualified PH principle holds good. A tribunal cannot conditionally discharge a person with conditions that amount to detention in a hospital for treatment. That is not because the detention would be an assault on the patient’s human rights but because a finding that such conditions are necessary would be inconsistent with the premise upon which any conditional discharge under section 73 must be based which is that the tribunal is not satisfied as to the matters mentioned in section 72(b)(i), (ii) or (iia). 56. In the present case, we do not understand the Secretary of State to suggest that the care home is, or would if RB were to move there become, a hospital within the relevant definition. As we have made clear, where the proposed alternative establishment is itself a hospital, then we accept that the tribunal may need to satisfy itself that what is proposed does not involve a deprivation of liberty. However, that does not arise in this case. Did the conditions involve deprivation of liberty? 57. The conclusion in the previous section makes it unnecessary to decide whether the tribunal were entitled to conclude that there would be no deprivation of liberty. However, the Upper Tribunal having expressed some views on the issue in the judicial review decision, and we having heard detailed argument on it, we shall comment briefly. (The observations on this aspect in the earlier decision should be taken as having been superseded.) 58. The leading Strasbourg authority relating to mental patients is Ashingdane v. UK (1985) 7 EHRR 528 (affirmed in HL v. UK (2004) 40 EHRR 314). The issue was an alleged breach of article 5 arising from the refusal of transfer from Broadmoor Hospital to a more relaxed regime in a local hospital. It was held that there was no breach because even at the local hospital he would still have been deprived of his liberty under Article 5. It is of interest to note the description of the regime to which the Appellant was subject at the hospital:
“There is no surrounding wall and neither the main entrance nor the reception area is locked... With effect from December 1980, he was allowed freedom, unescorted, in the hospital grounds for two hours a day. In the summer of 1981, he was moved to an open ward. Since then, regular, unescorted leave to visit his family has become a feature of his life at Oakwood. As at November 1984, he was going home every weekend from Thursday till Sunday and was free to leave the hospital as he pleased on Monday to Wednesday, provided only that he returned to his ward at night.”
This was one of the authorities considered by the Court of Appeal in PH . As already noted, one of the main factors leading it to uphold the conditions in that case was that they were imposed for the protection of the patient rather than the public. 59. In the present case, the reasoning in PH does not apply, since the tribunal found in terms that the conditions were imposed for the protection of the public. In deciding that there was no detention, the tribunal noted that there would be a “substantial increase in community leave”, that at RB’s age (75) this would “adequately provide for his desire to access the community”, and that although accompanied he would usually be able to choose to travel. However, we note that the tribunal does not seem to have been referred to Ashingdane of the other Strasbourg cases except Stork v Germany 43 (2005) EHRR 96; or if it was it did not attempt to compare RB’s prospective situation with the regimes which have been held to amount to detention in those cases. Had it done so, we do not consider it could have reached the same conclusion, and for that reason, if it mattered, the decision would have had to be set aside. 60. The tribunal raised a separate point that RB’s “valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his interests)” would prevent the deprivation of his liberty amounting to a breach of Article 5. It relied on comments in Stork , para 73 that:
“...A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question...” 61. We cannot accept this line of reasoning. (As already noted, a similar line of argument was rejected by Collins J in G [2004] EWHC 2193 ). In Stork the Court found that the Appellant had for part of her stay in a psychiatric institution (from January to April 1981) come to the clinic voluntarily, at a time when she could be assumed to have had capacity and had stayed there voluntarily owing to her need for psychiatric treatment (see paragraphs 122 – 128). 62. By contrast, in the present case it cannot be suggested that RB consented to his initial psychiatric detention. He has at all material times been detained by virtue of an order imposed by the Court under the Mental Health Act 1983. He has never been offered the option of absolute discharge nor is there any prospect of such an offer being made in the foreseeable future. The only alternative presented to RB is to agree to a continuation of his detention within his present regime or to agree the alternative regime contemplated in the Tribunal’s order. This very limited choice cannot be equated to a free and unfettered consent to psychiatric detention or to the conditions proposed by the Tribunal. A person’s consent to alternative conditions of his detention regime is not the same as his consent to the existence the regime itself. Conclusion 63. For these reasons, we consider that the appeal fails and the decision of the First-tier Tribunal should in principle be upheld. 64. We note however that since the date of the decision (April 2009) RB’s circumstances have changed. After the hearing before us, it was drawn to our attention that in April 2010 RB had been moved by direction of the Secretary of State from the “long term medium secure service” to a “newly built low secure ward”
. This, and the arrangements made for RB, are described in a letter dated 8 th October 2010 from a consultant psychiatrist at the hospital. The letter also refers to RB’s likely eligibility for a new “step-down service” due to open in November 2011. 65. We were surprised that this change had not drawn to our attention before the hearing. In a direction dated 14 th October, we called for further skeleton arguments, dealing not only with the judgment of Elias J in PH , but also with the “practical issue” arising from that letter, and whether in the light of it a conditional discharge was still sought. The responses have not told us anything about RB’s view of the transfer, but we understand that he still seeks to uphold the original conditional discharge. Mr Kellar submits that it has been rendered “unnecessary by subsequent developments”. However, not having found any legal reason to upset the April 2009 decision, we do not think it is open to us to revisit that issue (see section 12 of the 2007 Act). 66. We note Judge Rowland's comments in his concurring judgment on the implications for the extended definition of "hospital". However since this raises issues which do not arise in this case, and have not been fully explored in argument, we prefer not to express a view at this stage. We trust that the Secretary of State will be able to assist the First-tier tribunal with appropriate submissions if and when these issues become relevant in a particular case. Postscript - Participation of the Secretary of State in proceedings 67. In the judicial review decision of 28th May 2010 the Upper Tribunal observed (paragraph 14) that it was unfortunate that the Secretary of State was not represented in the proceedings then before us and we expressed the hope that in future cases raising issues of general significance before the Upper Tribunal we would be able to look for appropriate assistance from the relevant Government Department. We do not suggest that the Secretary of State should as matter of course be represented in all restricted patient cases. In particular, we recognise that in many such cases before the First-tier Tribunal the Secretary of State is not routinely represented and is generally content to rely on written representations made on his behalf. 68. We observe, nevertheless, that there are cases in which the First–tier Tribunal would be greatly assisted by such representation. This case is a good example. There was a clear difference of opinion between the Secretary of State and the responsible clinician. The only party who was legally represented was the patient. When we asked Mr. Kellar about this he readily conceded, on instructions, that the lack of representation for the Secretary of State before the First-tier Tribunal had been a mistake. 69. We hope that in future careful consideration will be given to ensuring that the Secretary of State is represented before the First-tier Tribunal in appropriate cases. We do not seek to lay down any precise guidelines. However, in situations in which there is a clear difference of opinion between the Secretary of State and those responsible for the care of the patient, or where the case is particularly complex, sensitive, or high profile, careful consideration should be given to the need for representation. JUDGE ROWLAND 70. I agree that this appeal should be dismissed for the reasons given by Lord Justice Carnwath and Judge Sycamore. 71. I wish merely to add a few words about the extended definition of “hospital”, applied by section 79(6) to section 72, because it seems to me that it limits the practical effect of our decision. Although we have rejected Mr Kellar’s broad submission that the scheme of the legislation is that only the Secretary of State may authorise a patient’s move from one regime of detention to another, in my judgment the legislation does have the effect that only the Secretary of State may authorise a patient’s move from one regime of detention for treatment to another. At the time of the First-tier Tribunal’s decision, this was achieved through a particularly complicated route that still applies in Wales, but there is now a simpler route in England. 72. By virtue of section 34(2), the extended definition of hospital includes a “registered establishment”, which, at the material time, was defined by section 34(1) as – “… an establishment – (a) which would not, apart from subsection (2) below, be a hospital for the purposes of this Part; and (b) in respect of which a person is registered under Part II of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under this Act”. Paragraph (b) cannot be read literally because a person obviously cannot be registered as a hospital. What was plainly meant is that the establishment had to be one where the person carrying on the establishment was registered under Part II of the Care Standards Act 2000 (“the 2000 Act”) on the basis that the establishment was an independent hospital. 73. The 2000 Act, the material provisions of which still apply in Wales, provides for the registration of persons carrying on various types of establishment, including both independent hospitals and care homes. By virtue of section 2, an independent hospital includes any establishment, other than a health service hospital, “in which treatment or nursing (or both) are provided for persons liable to be detained under the Mental Health Act 1983”. This language was echoed in section 34(1) of the 1983 Act. By virtue of section 3(3) of the 2000 Act, a hospital cannot also be a care home. 74. A person conditionally discharged under the 1983 Act remains “liable to be detained under the Mental Health Act 1983”, as Elias J held in PH (at para 28). This is clear both from section 41(3)(a) to which Elias J referred and from section 73(6), which provides – “Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the restriction order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.” 75. Therefore, any establishment where a conditionally discharged patient receives treatment or nursing will inevitably be an independent hospital under the 2000 Act if it is not a health service hospital – at least if the treatment or nursing is in connection with his mental disorder. It is unlawful to carry on an establishment without being appropriately registered (section 11(1) of the 2000 Act) and it would therefore be improper to discharge a person with a condition that he reside at an establishment where the proprietor was not appropriately registered. Accordingly, if a care home wishes to offer accommodation to a patient on the basis that he will receive treatment there while subject to a conditional discharge, it will be incumbent on the proprietor first to apply for an amendment to his registration on the basis that the care home is to become a hospital so that the patient may be transferred to it. 76. Much the same position is now reached rather more directly in England, where the material provisions of the 2000 Act have been replaced by Part 1 of the Health and Social Care Act 2008 (“the 2008 Act”). Section 34(1) of the 1983 Act has been amended so that, in England, a “registered establishment” is an establishment which would not, apart from subsection (2), be a hospital but – “… is a hospital as defined by section 275 of the National Health Service Act 2006 that is used for the carrying on of a regulated activity, within the meaning of Part I of the Health and Social Care Act 2008, which relates to the assessment or medical treatment of mental disorder and in respect of which a person is registered under Chapter 2 of that Part”. “Medical treatment” under the 1983 Act appears to be a wider concept than “treatment or nursing” in the 2000 Act. Section 275 of the 2006 Act defines “hospital” so that it includes “any institution for the reception and treatment of persons suffering from illness” and it defines “illness” so as to include “mental disorder within the meaning of the Mental Health Act 1983”. 77. It seems to me that it must follow in both England and Wales that, if proposed conditions on a conditional discharge would amount to detention in an establishment where “medical treatment” (in England) or “treatment or nursing” (in Wales) for mental illness or mental disorder is to be provided, the tribunal will not be entitled to discharge the patient because a finding that the conditions are required will imply a finding that the patient is currently “suffering from mental illness or mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment” and the qualified PH principle will apply. In such circumstances, the patient can be moved to the establishment only by way of a transfer by the Secretary of State. 78. The overall effect appears to be that, if it is necessary for a patient to be detained in an establishment for treatment that is to be provided in that establishment, it is for the Secretary of State to determine in which establishment the person should be detained. However, if the patient can be adequately treated at a hospital on an out-patient basis and can safely be accommodated elsewhere in the community, the tribunal must discharge the patient, subject to conditions if the tribunal is of the view that he should be liable to be recalled. Lord Justice Carnwath Senior President of Tribunals HH Judge Phillip Sycamore President of the Health, Education and Social Care Chamber of the First-tier Tribunal Upper Tribunal Judge Rowland 20 December 2010

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