Analysis of two cases involving discharge of patients by mental health tribunals

May 30, 2002 in Legal, Mental Health

(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

(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