Legal Updates

(see below for second case)

First case:

A mental health review tribunal (MHRT) could revisit an order for the conditional discharge of a restricted patient if there was a change of circumstances or additional material before it. The court of appeal said that existing case law was unsatisfactory, and gave guidelines for MHRTs to follow when considering the conditional discharge of a restricted patient.

Mr IH, a patient under the Mental Health Act 1983 (MHA), appealed against a high court decision refusing his application for judicial review. He was a restricted patient detained at a special hospital. In June 1999, the MHRT found that he no longer suffered from mental illness requiring detention, and decided that it was appropriate for IH to be released subject to his being liable to be recalled for treatment. The MHRT stipulated that on conditional discharge IH should be supervised in the community by a forensic psychiatrist. The local health authority could not find a psychiatrist to supervise IH because the psychiatrists approached all thought that IH should spend time at a medium-secure unit before being released into the community.

In February 2000, the MHRT made a conditional discharge order, but deferred IH's discharge until supervision by a psychiatrist could be arranged. IH sought a declaration under section 4(2) of the Human Rights Act 1998 (HRA) that sections 73(2) and/or 73(7) of MHA were incompatible with Articles 5(1)(e) and/or 5(4) of the European Convention on Human Rights (ECHR) because MHRTs lacked the necessary power to ensure that conditions attached to a deferred conditional discharge order would be implemented within a reasonable time-frame.

The judge in the high court had held that although Articles 5(1)(e) and 5(4) had been breached, sections 73(2) and/or 73(7) of the MHA were not incompatible with Article 5 of the ECHR because an MHRT had the power to amend a deferred conditional discharge order in the light of any difficulties encountered.

Dismissing the appeal, the court of appeal held:

1. This case demonstrated that the existing case law was potentially in conflict with the terms of Article 5(4) of the ECHR. If a MHRT was unable to reconsider a decision that a patient was entitled to a conditional discharge on specified conditions, that patient might find himself in a state of limbo if it proved difficult to make the necessary arrangements. If that period lasted too long it could result in a violation of Article 5(4).

2. In future, MHRTs should not consider that they were unable to revisit a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there was a material change of circumstances.

3. The following procedure should be applied by MHRTs when considering the discharge of a restricted patient:

(a) The MHRT could, at the outset, adjourn the hearing to consider the possibility of imposing conditions

(b) It could make a provisional decision to make a conditional discharge on specified conditions, including submission to psychiatric supervision, but defer directing a conditional discharge while the authorities made the necessary arrangements to ensure such conditions were met

(c) It should meet after an appropriate interval to review progress

(d) Once the arrangements had been finalised, the MHRT could direct a conditional discharge without the need for a further hearing

(e) If problems arose with the making of the arrangements needed to comply with the conditions, the MHRT had a number of options open to it:

(i) it could defer for a further period (and, if it thought it appropriate, make suggestions on how to overcome the problems)

(ii) it could amend or vary the proposed conditions to seek to overcome the problems

(iii) it could order a conditional discharge without specific conditions, thereby making the patient subject to recall

(iv) it could decide that the patient had to remain detained in hospital for treatment and

(f) Ordinarily it would be inappropriate for a MHRT to direct a conditional discharge on conditions with which the patient would be unable to comply because it had not proved possible to make the necessary arrangements.

Comment: Now we have some procedures for the situation of what to do when resources cannot be found to accommodate the decisions of the MHRT. There is a tension between what the patient wants (freedom) and what society is expecting in terms of supervision and protection.

In the high court, Mr Justice Bell had taken the view that Section 3 of the HRA (bringing the ECHR into force in England) placed a duty on courts to strive to find a possible statutory interpretation compatible with convention rights. The MHA could be taken to mean that a MHRT could monitor a situation and take all necessary steps to ensure that unacceptable delays would not occur in the implementation of a conditional discharge order. The power to monitor attempts to abide by the reasonable conditions and to amend a deferred conditional discharge order in the light of any difficulties encountered, should be enough to ensure compliance with the ECHR.

Second case:

A decision by the home secretary to make a fresh referral to a mental health review tribunal (MHRT) in respect of its decision to discharge a restricted patient conditionally was unlawful. A MHRT's decision to direct a conditional discharge was provisional, and the correct course was for the secretary of state to have invited the MHRT to reconsider the decision, taking into account an additional report that should have been before it when the decision was originally made.

The secretary of state appealed against a high court decision granting C's application for judicial review of a decision to refer back to a MHRT a decision to discharge C conditionally.

C was detained at Broadmoor as a restricted patient. In November 1999, he applied for discharge, but his responsible medical officer concluded that C was not yet ready for a conditional discharge. However, a senior social worker produced a report supporting a conditional discharge order. A second social worker produced a statement of C's needs that concluded that, in order for C to be released, he would require a supervising psychiatrist in the community. The statement of C's needs was not made available to the MHRT, which determined that C should be conditionally discharged but that the discharge should be deferred until satisfactory arrangements had been made to meet certain conditions, including access to such psychiatric treatment that C might need, but not including that C should be supervised by a psychiatrist, as set out in the statement of needs.

The second social worker informed the MHRT that her assessment had not been included in the papers considered by the MHRT, and the home secretary referred the case back to the MHRT under section 71(1) of the Mental Health Act 1983 (MHA) on the ground that the MHRT might have been misled by not having all the documents before it when making its decision. The high court had held that the home secretary had not addressed satisfactorily the question of whether or not the inclusion of the omitted report would have affected the result of the hearing.

Dismissing the appeal, the court of appeal held:

1. The court of appeal decision in R.v Secretary of State for the Home Department & Another, ex parte IH (2002) EWCA Civ 646 was relevant to the outcome of this case. In that case, the court held that there were difficulties in reconciling past case law with Article 5(4) of the European Convention on Human Rights (ECHR), and that it was necessary to interpret section 73 of the MHA in a way that was compatible with the ECHR. The MHRT decision to direct a conditional discharge was provisional, and if there was a change of circumstances or additional material to consider, the MHRT was able to reconsider its decision.

2. Consequently, the home secretary should have invited the MHRT to reconsider its original decision, taking into account the additional report that should have been before it at the time of its original decision. He was not justified in making a fresh referral.

3. His decision to make a fresh referral was unlawful and would be quashed.

Comment: This consolidates the case heard immediately before this one, R. v The Home Secretary & Secretary of State for Health, ex parte IH & Mental Health Review Tribunal, Nottinghamshire NHS Trust & C in which C had been an interested party. That case laid down guidelines for MHRTs to consider when looking at whether a patient might be suitable for a discharge with conditions. Now it is clear that the home secretary should not make fresh referrals if he finds out that there has been a failure to provide complete information to a MHRT. Instead he should instead invite the MHRT to reconsider its decision in the light of the information it should have had.

Bernadette Livesey

Human Rights Solicitor

Walker Morris