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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> IH, R (on the application of) v. Secretary of State for the Home Department & Anor [2003] UKHL 59 (13 November 2003)
URL: http://www.bailii.org/uk/cases/UKHL/2003/59.html
Cite as: (2004) 7 CCL Rep 147, [2004] 2 AC 253, [2003] UKHL 59, 15 BHRC 571, [2003] 3 WLR 1278, [2004] HRLR 5, (2004) 76 BMLR 179, [2004] 1 All ER 412, [2004] UKHRR 115

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    Judgments - Regina v. Secretary of State for the Home Department and another (Respondents) ex parte IH (FC) (Appellant)

    HOUSE OF LORDS

    SESSION 2002-03
    [2003] UKHL 59
    on appeal from: [2002] EWCA Civ 646

    OPINIONS

    OF THE LORDS OF APPEAL

    FOR JUDGMENT IN THE CAUSE

    Regina v. Secretary of State for the Home Department and another (Respondents) ex parte IH (FC) (Appellant)

    ON

    THURSDAY 13 NOVEMBER 2003

    The Appellate Committee comprised:

    Lord Bingham of Cornhill

    Lord Steyn

    Lord Hobhouse of Woodborough

    Lord Scott of Foscote

    Lord Rodger of Earlsferry


    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE

    Regina v. Secretary of State for the Home Department and another (Respondents) ex parte IH (FC) (Appellant)

    [2003] UKHL 59

    LORD BINGHAM OF CORNHILL

    My Lords,

  1. This appeal raises important questions of principle and practice concerning the conditional discharge from hospital of restricted patients.
  2. In March 1995 IH (the appellant) severely mutilated his three-year-old son. He was charged with causing grievous bodily harm with intent to do so. In July 1995, in the Crown Court at Wood Green, he was found not guilty of that offence by reason of insanity. An order was made under section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) authorising his admission to such hospital as might be specified by the Secretary of State for the Home Department. In September 1995 the Secretary of State issued a warrant authorising his transfer to and detention in Rampton Hospital, where he was already confined. Since that time the appellant has been a patient at Rampton. His status throughout has been that of a patient subject to a restriction order without limit of time made under sections 37 and 41 of the Mental Health Act 1983. The appellant does not challenge the lawfulness of his detention before 3 February 2000 or after 25 March 2002. But he contends that his detention between those dates was in breach of his rights guaranteed by article 5 of the European Convention on Human Rights and so unlawful.
  3. The appellant was diagnosed as suffering from paranoid psychosis. In July 1996, when his case was first considered by a mental health review tribunal, no order was made for his discharge. Dr Sagar, the appellant's responsible medical officer (RMO) at Rampton, reported to a second tribunal hearing in September 1998 that the appellant's condition had improved to a point which would permit his treatment in less secure conditions at a regional secure unit, but the tribunal made no direction for discharge or reclassification of the appellant's mental disorder. He was still judged to suffer from mental illness and his further detention for the protection of the public was found to be justified. The tribunal endorsed the view of the RMO that the appellant should be transferred to a regional secure unit, but such a transfer required the consent of the Secretary of State and this consent was withheld, so the appellant remained at Rampton. A third tribunal hearing took place on 7 June 1999. Dr Sagar remained of the view that the appellant was free of symptoms and that his mental illness was in a state of natural remission, and a psychiatrist instructed for the appellant recommended his conditional discharge. But Dr Page, by this time the appellant's RMO at Rampton, did not support his application for conditional discharge, which was resisted by the Secretary of State. As it was empowered to do under the Mental Health Review Tribunal Rules 1983 (SI 1983/942) the tribunal adjourned the hearing on these terms:
  4. This reference to Haringey Council embraced the Enfield and Haringey Health Authority, which owed the appellant a duty pursuant to section 117 of the 1983 Act to provide after-care services on his discharge.

  5. The health authority made extensive efforts to find forensic psychiatric supervision for the appellant upon any discharge, but it was unsuccessful. This was primarily because Dr Akinkunmi, consultant forensic psychiatrist of the North London Forensic Service, which provided psychiatric services on behalf of the authority, took the view, shared by all his colleagues, that "a proposed conditional discharge… direct into the community was clinically inappropriate, and unsafe". He was willing to admit the appellant to his medium secure unit, but he and his colleagues declined to supervise the appellant as named forensic psychiatrist on conditional discharge. Transfer to the regional secure unit in question was precluded by the Secretary of State's withholding of consent.
  6. The tribunal reconvened on 3 February 2000 under the chairmanship of Ms Recorder Cotton QC. Dr Page reported the opinion of Dr Akinkunmi. Her own view was that the appellant was making progress and remained free of psychotic symptoms but that further psychological work was required to address risk areas. She favoured transfer to a regional secure unit. The tribunal considered a body of material which included a letter from Dr Akinkunmi opposing conditional discharge. The decision of the tribunal, recorded on a prescribed form, was (so far as material) in these terms:
  7.   

      

    Question Decision of the tribunal
    A. Is the tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?Yes
    B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?Yes
    C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?No

    In a written statement dated 28 March 2002 Ms Cotton has helpfully expanded on the tribunal's thinking when it made this decision. Its view was that the appellant probably still suffered from an underlying mental illness but that this did not require continued detention in hospital. It considered that if a conditional discharge were ordered a psychiatric supervisor would be found for the appellant. She continued:

    Thus, it seems safe to infer that had the tribunal foreseen that the conditions which it laid down could not be fulfilled it would not have directed that he be discharged absolutely but that his detention be continued.

  8. Further attempts were made by the health authority to find a psychiatrist willing to supervise the appellant but without success and his detention continued. On 25 July 2001, at the suggestion of the court, the Secretary of State referred the case back to the tribunal and there was a further hearing in January and March 2002 under the chairmanship of Mr Macleod QC. In detailed written reasons dated 25 March 2002 this tribunal found that the appellant was and always had been suffering from a current mental illness which was in remission but with a significant risk of relapse; that it was appropriate for the appellant to be detained in hospital for treatment of his illness; that the evidence of the need for hospital treatment was compelling; and that while it had regard to the decision of the previous tribunal it was fully satisfied on the material before it that it was making the appropriate decision.
  9. In his submissions to the House on behalf of the appellant, Mr Owen QC made no criticisms of the efforts made by the health authority to secure compliance with the conditions indicated by the tribunal in its decisions of 7 June 1999 or 3 February 2000, nor did he impugn in any way the professional integrity or competence of Dr Akinkunmi or any of the other psychiatrists who shared his opinion. But he contended that the appellant's rights under article 5 of the Convention had been violated in four major respects: first, because the tribunal had lacked the power to secure compliance with its conditions and so had lacked the coercive power which is one of the essential attributes of a court; secondly, because, failing compliance with its conditions within a reasonable time (a matter of months), the tribunal failed to discharge the appellant absolutely, so rendering his continued detention unlawful; thirdly, because, on the health authority's failure to secure compliance with the tribunal's decisions, the tribunal had been unable to reopen and reconsider the case; and, fourthly, because the psychiatrists, as hybrid public authorities within the scope of section 6(3)(b) of the Human Rights Act 1998, had failed to act compatibly with the appellant's Convention rights by affording him psychiatric supervision and treatment in accordance with the conditions laid down by the tribunal. To put these submissions in context, reference must be made to the 1983 Act, to the Human Rights Act 1998 and to the Convention and the relevant Convention jurisprudence.
  10. The 1983 Act

  11. So far as relevant to this case, section 37 of the 1983 Act provides:
  12. Section 37 is reinforced by section 41, of which subsections (1)-(3) and (6) are relevant:

  13. Sections 70-73 of the Act, so far as relevant, and as recently amended, provide:
  14. Section 117(2) of the Act as amended provides:
  15. In R(K) v Camden and Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198, the Court of Appeal held that this section does not impose on health authorities an absolute obligation to implement the conditions for a patient's discharge from hospital required by a tribunal; the authorities' duty is, in general, to use reasonable endeavours to secure compliance with those conditions.

    The 1998 Act

  16. By section 6(1) of the 1998 Act, "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". The Convention rights referred to, scheduled to the Act, include article 5 of the Convention. Section 6(3) of the Act defines "public authority" as including
  17. A person falling within (b) has come to be called a hybrid public authority, bound to act compatibly with the Convention only when exercising public functions. By subsection (6), an act includes a failure to act. Section 2(1)(a) requires domestic tribunals, determining any question which has arisen in connection with a Convention right, to take into account any judgment or decision of the European Court of Human Rights.

    The Convention

  18. The provisions of article 5 which bear on this case are these:
  19. Article 5(4) was the subject of the European Court's decision in X v United Kingdom (1981) 4 EHRR 188, which concerned a restricted patient. Under the Mental Health Act 1959 then in force, a mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the discharge of the patient. The Court held in paragraph 61 of its judgment that this advisory power did not meet the Convention requirement:
  20. The legislation was amended to make good this deficiency. Under the sections of the 1983 Act quoted above, the tribunal has power to direct, and not merely recommend, the discharge of a restricted patient.

  21. In Winterwerp v The Netherlands (1979) 2 EHRR 387, paragraph 39, page 403, the European Court defined, in terms repeated and applied in many later cases, the conditions to be met before the detention of a person may be justified on grounds of mental illness:
  22. It is not suggested that there is any dissonance between these requirements and the provisions of the 1983 Act as it now stands.

  23. Detailed reference must be made to Johnson v United Kingdom (1997) 27 EHRR 296, since Mr Owen relied on this decision of the Court as the linch-pin of his case and the resolution of this appeal depends in large part on a correct understanding of it. Mr Johnson, who had a history of violence, was convicted of causing actual bodily harm to a passer-by. While in custody awaiting trial he was diagnosed as suffering from mental illness, and on appropriate medical evidence he was made subject on conviction to a hospital order under section 37 of the 1983 Act coupled with a restriction order without limit of time under section 41. He was admitted to Rampton in August 1984, and his case was reviewed by tribunals in 1986, 1987 and 1988 when it was reported that he had made great progress, but no direction was made for his discharge or for re-classification of his illness. At a fourth tribunal hearing in June 1989 the consensus of medical opinion was that he was no longer suffering from mental illness but that he would benefit from help and medical supervision to enable him to rehabilitate himself in the community after nearly five years at Rampton. The tribunal accordingly ordered Mr Johnson's conditional discharge. The conditions were that he should be subject to the psychiatric supervision of a named consultant psychiatrist and to the social work supervision of a nominated psychiatric social worker, and that he should reside in a supervised hostel approved by the psychiatrist and the social worker. His discharge was deferred until suitable accommodation could be arranged. Despite considerable efforts, no satisfactory hostel could be found, partly because of Mr Johnson's own conduct. So he remained at Rampton. At a further review in January 1990, when he sought an absolute discharge, the medical evidence was again that he was no longer mentally ill. But since suitable accommodation had not been found the tribunal again directed that he be conditionally discharged, deferring the discharge until suitable arrangements had been made for supervised accommodation. A period of trial leave in another hospital was then interposed, but this proved unsuccessful and Mr Johnson was returned to Rampton. A sixth tribunal review of the case in April 1991 was in all essentials a repeat of that in January 1990: he was not mentally ill, but he could not cope in the community without supervision and support, and the necessary arrangements could not be made. So the same order was made as in January 1990. At a final review in January 1993, the tribunal ordered Johnson's absolute discharge on the basis that he "is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled for further treatment". Mr Johnson was accordingly released from hospital.
  24. Before the Court, Mr Johnson's first contention was that, given the medical evidence and its own assessment in June 1989, the tribunal should then have ordered his immediate and unconditional release. The Court rejected this contention in paragraphs 61-64 of its judgment, as the Commission had done in paragraph 66 of its opinion: both bodies recognised the desirability of making arrangements to ease Mr Johnson's rehabilitation in the community and found no violation in the imposition of conditions to that end.
  25. Mr Johnson's alternative submission to the Court was that, while the discharge of a person found to be no longer of unsound mind may be made subject to conditions, such conditions must not hinder immediate or near immediate release and certainly not delay it excessively as had occurred in this case. This argument succeeded. The Commission concluded, in paragraph 67 of its opinion, that in circumstances such as these release may not be indefinitely deferred. The Court was of the same mind. It said, in paragraph 63 of its judgment:
  26. The Court drew attention, in paragraph 66 of its judgment, to the absence of power in the tribunal or the authorities to ensure that the conditions could be implemented within a reasonable time, and to the 12-monthly interval between tribunal reviews, and in paragraph 67 concluded:

    The Court did not address Mr Johnson's challenge to the lawfulness of the hostel condition (see paragraph 68), nor did it rule on his argument that it was for the authorities to ensure that a placement in a hostel could be guaranteed, if not immediately then within a matter of weeks (paragraph 53). It was argued for Mr Johnson that since the 1989 tribunal had had no power to ensure compliance with its conditions it had lacked a necessary attribute of a court in violation of article 5(4), but neither the Commission (paragraph 77) nor the Court (paragraph 72) regarded this complaint as giving rise to any separate issue.

  27. The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case.
  28. The Court of Appeal had occasion to consider Johnson, in a factual context very similar to that in the present case, in R(K) v Camden and Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198. The applicant, K, was a restricted patient detained pursuant to orders made under sections 37 and 41 of the 1983 Act. In August 1999, contrary to the advice of K's RMO, the tribunal directed her discharge under section 73 of the Act subject to conditions that she reside with her parents and co-operate with supervision to be provided by a consultant forensic psychiatrist. The respondent health authority did what it could to find a psychiatrist willing to assume responsibility for supervising K while she lived with her parents, but was unsuccessful and K applied for judicial review. The narrow issue in the appeal concerned the extent of the duty of a health authority under section 117 of the Act, and the court's ruling has been noted in paragraph 10 above. But the appeal touched on wider issues. One of these concerned the construction put on section 73(2) of the 1983 Act by the House of Lords in R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department [1988] AC 120. In its judgment in the present case ([2002] EWCA Civ 646, [2003] QB 320) the Court of Appeal neatly summarised the effect of this decision in paragraph 53:
  29. Another wider issue concerned the impact of Johnson in a case such as the present where discharge was ordered subject to a condition of psychiatric supervision which could not be met.

  30. With reference to these wider issues, Lord Phillips of Worth Matravers MR said, in paragraphs 32-36 of his judgment in K's case:
  31. Buxton LJ agreed with the Master of the Rolls on the result, but expressed differing views on the Convention issues. In paragraphs 39-42 of his judgment he said:
  32. In paragraphs 44-45 he continued:

    Sedley LJ (in paragraph 53 of his judgment) agreed with Buxton LJ that

    The present proceedings

  33. In his application for judicial review the appellant contended that he had been unlawfully detained, in violation of his rights under article 5 of the Convention, between 3 February 2000 and 25 March 2002 and that this came about because the relevant legislation was incompatible with the Convention. The application came before Bell J, who did not have the benefit of Ms Cotton's explanatory statement: [2001] EWHC Admin 1037. He thought it arguable that the appellant had been unlawfully detained once a few months after the tribunal's February 2000 order had passed, and could not conclude that the tribunal had then found that he would continue to be lawfully detained until such time as the conditions imposed by the tribunal could be satisfied. With more confidence, he found that the appellant's rights under article 5(1)(e) and (4) had been violated by the failure to resolve his position much more quickly: he had been left in limbo for some twenty-one months. The judge found no breach in the lack of a power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. He construed section 73(7) of the 1983 Act as permitting the tribunal to monitor the situation before making an order for discharge, and so found no incompatibility and made no declaration.
  34. The judgment of the Court of Appeal (Lord Phillips of Worth Matravers MR, Jonathan Parker and Dyson LJJ) was delivered by the Master of the Rolls. It held the decision in the Oxford case ([1988] AC 120) to be incompatible with the Convention and ruled (in paragraph 71 of the judgment):
  35. In paragraphs 90 and 91 of its judgment the court considered two different situations, in these terms:
  36. The Court of Appeal then turned (in paragraph 92) to the "critical impasse" which occurs

    The court resolved that impasse in paragraph 96 of its judgment:

    In paragraph 98 of its judgment the court made the following summary:

    In its conclusion (paragraph 100) the court held that the appellant's right under article 5(1) had been violated, but only because the wording of section 73, before its amendment in 2001 by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), permitted detention to be continued provided the tribunal was not satisfied that the patient was not suffering from a relevant mental disorder rather than where the tribunal was satisfied that the patient was suffering from such a disorder: see R(H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1.

    Conclusions

  37. This regrettably lengthy prologue enables me, I hope fairly, to review Mr Owen's main submissions summarised in paragraph 7 above more briefly than would otherwise have been possible.
  38. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court. What article 5(1)(e) and (4) require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in article 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised otherwise than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permits that possibility to be explored and, it may be, tried.
  39. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's article 5(4) right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in paragraph 71 of its judgment quoted above. Evidence before the House shows that that ruling is already yielding significant practical benefits. Mr Owen was, I think, right to submit that the tribunal could have achieved the same result, consistently with the Oxford case, by a judicious use of its power to adjourn and by proleptic indication of the conditions it had in mind to impose, but it is undesirable to restrict the procedural freedom of tribunals in a field as important and sensitive as this, where personal liberty and safety and public protection are all at stake: the outcome should not turn on procedural niceties.
  40. There was no time between 3 February 2000 and 25 March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of article 5(1)(e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards. While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. The appellant was never detained when there were no grounds for detaining him. To the extent that Buxton and Sedley LJJ differed from the Master of the Rolls on this point in K, the opinion of the latter is to be preferred.
  41. The duty of the health authority, whether under section 117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist. Thus the appellant can base no claim on the fact that the tribunal's conditions were not met. This conclusion makes it unnecessary, in my opinion, to address a question on which the House heard argument, but which was not considered below, whether in a context such as this psychiatrists were or could be a hybrid public authority. Determination of that question is best left to a case in which it is necessary to the decision. We are nonetheless grateful to the Royal College of Psychiatrists for its submissions on this point.
  42. I do not consider that the violation of article 5(4) which I have found calls for an award of compensation since (a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which article 5 is intended to avoid.
  43. For these reasons, and in very substantial agreement with the Court of Appeal, I would dismiss this appeal.
  44. LORD STEYN

    My Lords,

  45. I have had the advantage of reading the opinion of my noble and learned friend, Lord Bingham of Cornhill. I agree with it. For the reasons he gives I would also dismiss the appeal.
  46. LORD HOBHOUSE OF WOODBOROUGH

    My Lords,

  47. I agree that the appeal should be dismissed for the reasons given by my noble and learned friend Lord Bingham of Cornhill.
  48. LORD SCOTT OF FOSCOTE

    My Lords,

  49. I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Bingham of Cornhill. I am in agreement with the conclusions he has expressed and for the reasons he has given I, too, would dismiss this appeal.
  50.     LORD OF RODGER OF EARLSFERRY

        My Lords,

        

  51. I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Bingham of Cornhill. I agree with it and for the reasons he has given I, too, would dismiss this appeal.


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