B e f o r e :
The Hon. Mr Justice Collins ____________________
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Mr Paul Bowen (instructed by Scott-Moncieff, Harbour & Sinclair, Solicitors) for the Claimant Miss Kristina Stern (instructed by the Treasury Solicitor for the Defendants Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department (Interested Party). Hearing dates: 25 August 2004 ____________________
HTML VERSION OF JUDGMENT ____________________
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Mr Justice Collins:
The claimant, who is now 67, attempted to strangle his 10 year old niece and raped her mother in 1966. He was found unfit to plead when he appeared at court in early 1967 and was admitted to Broadmoor Hospital in accordance with the provisions of Section 5 of the Criminal Procedure (Insanity) Act 1964. He is treated as if he were committed to hospital under Sections 37 and 41 of the Mental Health Act 1983, that is to say, subject to a hospital order and a restriction order without limitation of time.
He suffers from paranoid schizophrenia. He has been treated over the years so that by 15 July 2003 a Mental Health Review Tribunal felt able to decide that he could be discharged conditionally. An absolute discharge was not considered appropriate since the claimant should remain liable to be recalled to hospital for further treatment. Furthermore, the tribunal was not prepared to order an immediate conditional discharge since it was satisfied that there should be a deferment until the conditions which it considered necessary were able to be fulfilled by means of a discharge plan which the clinical team having charge of him thought must be put in place. The conditions were as follows: -
Unfortunately, the hostel which it was believed would accommodate the claimant decided after all that it could not. Efforts to find an alternative placement have proved unsuccessful. A tribunal has reconsidered his case on three subsequent occasions, namely 14 October 2003, 5 January 2004 and 9 March 2004. At the first two of those the tribunal adjourned the matter in the hope that suitable arrangements could be made and a hostel prepared to accept the claimant could be found. It is the decision of the tribunal of 9 March 2004 which is the subject of this claim since it was and remains clear that it is unlikely that it will be possible to fulfil the conditions imposed in July 2003 in that no hostel can be found. That being so, the tribunal will have no option but to revoke the conditional discharge. That is because the deferment means that the order is regarded as provisional (see R(H) v Secretary of State for the Home Department [2003] 3 WLR 1278 ) and so can be reconsidered if circumstances change. In R(H) v Secretary of State for the Home Department Lord Bingham approved what had been said by Lord Phillips M.R. in the Court of Appeal (see [2003] 3 W.L.R. at p.1295 Paragraph 23): -
In the 1980s the claimant had been discharged conditionally but it had not worked out and in 1987 he was recalled to Broadmoor following a serious assault on a pregnant nurse at the Maudsley Hospital to which he had been transferred. In 1995 he assaulted a male nurse and tried to strangle him at a hospital to which he had been transferred from Broadmoor and so he was again recalled. There were several serious assaults in Broadmoor in 1995 but since then his condition has improved and he has remained symptom free. In March 2000 he was transferred to Thornford Park Hospital, a private sector psychiatric hospital. He has worked through the rehabilitation service at the hospital and his present situation was described by the defendants as follows: -
He attended the hearing of his claim on unescorted leave.
The defendants' view was that he remained ready for conditional discharge provided that he resided at accommodation which could give him an appropriate level of medical and nursing support and supervision. This was necessary to minimise the risk of relapse and to manage it if it occurred particularly having regard to his limited insight. Any signs of a deterioration had to be detected as early as possible because a relapse would be likely to increase the risk of sexually inappropriate or violent behaviour. The defendants accepted the evidence of the claimant's RMO, which was in any event not in dispute. They record it as follows in paragraphs 8 to 10 of their very full reasons: -
A tribunal's powers in relation to a restricted patient are to be found in Sections 72 and 73 of the 1983 Act, as amended. Section 72 deals with its general powers in relation to patients. Section 72(1)(b) provides, so far as material, that a tribunal shall direct the discharge of a patient if not satisfied: -
Section 73 deals with restricted patients. So far as material it provides; -
A tribunal has no power to order a patient's transfer from one place of detention to another. Thus a tribunal could not, for example, direct that a restricted patient be moved from a high security hospital to one which was less secure. It follows that if the effect of the conditions which a tribunal regard as appropriate would be to maintain the patient's detention they would be unlawful and the tribunal would be acting ultra vires. The defendants in this case took the view that to require the claimant to remain at Thornford Park under the same regime as he was subject to at present would be to deprive him of his liberty. They record their conclusions in Paragraph 13 of their reasons as follows; -
I should add that they felt unable to attach much weight to G's evidence that conditional discharge would be important to him as a sign of his increased freedom since the effect of the restrictions which would apply was the main consideration.
The only other legislation to which I need refer is first Section 117 of the 1983 Act which deals with after-care of patients who "cease to be detained and (whether or not immediately after so ceasing) leave hospital". A duty is imposed on the relevant Health and Social Services authorities to provide after-care services. Secondly, s.131(1) provides; -
In his grounds, Mr Bowen contended that the defendants erred in regarding the condition of residence at Thornford Park as a deprivation of liberty. It was, submitted Mr Bowen, a restriction on his movements and so was permissible. The correct approach to this issue has recently been considered by the Court of Appeal in R(Secretary of State for the Home Department) v MHRT [2002] EWCA Civ 1868 (the PH case). That case concerned a similar sort of situation to this. The restricted patient was 77 and had been detained in Broadmoor for 44 years. His mental state was liable to deteriorate, but that happened slowly, and, provided that he was subject to a regime which ensured that he was observed and monitored by properly trained and briefed staff, he could be discharged conditionally. The conditions which were in issue were that he should reside at a suitable specialist establishment which provided 24 hour trained nursing care and appropriate security and that he should not leave the accommodation without an escort. The SSHD challenged these proposed conditions, accepting that he had to establish that they would inevitably, whatever precise measures were in the end considered possible, involve the patient's continued detention. The Court had evidence from the President of the Tribunal, which made it clear that one of the major factors underpinning the tribunal's approach to the conditions was their awareness of the patient's need for assistance and care in respect of his physical needs, particularly because of his long incarceration. The need for security and that he be escorted was for his benefit and protection since he would be likely to be unable to cope on his own in the outside world. As the court emphasised, nothing in the evidence indicated that the reference to 'appropriate security' and the requirements as to escorts were included for the protection of the public. The risk of relapse could be guarded against by supervision since the signs of deterioration would be noticed before problems arose. In the circumstances, the Court was not persuaded that the proposed conditions would inevitably result in continued detention.
It was common ground and the Court accepted that a patient is to be regarded as being detained within the meaning of the 1983 Act if he is in terms of Article 5 of the European Convention on Human Rights deprived of his liberty. Article 5(1)(e) provides, as far as material; -
The principles established by the jurisprudence of the ECtHR are not in dispute and were helpfully set out by Keene LJ, who gave the only reasoned judgment, in paragraphs 14 to 17. He said; -
Mr Bowen relies particularly on H.M. v Switzerland since it establishes the importance of the purpose of restrictions which might otherwise be regarded as a deprivation of liberty. But it is also to be noted that the Court in H.M. records in Paragraphs 45 and 46 of the judgment that H.M. was not placed in a secure Ward in the nursing home but had freedom of movement and the ability to maintain social contact with the outside world. Further, the Swiss Court had found as a fact that H.M. was hardly aware of the effects of her stay in the nursing home which were mainly felt by her son who did not wish to leave his mother. She was undecided as to which solution she preferred and indicated that she had no reason to be unhappy at the nursing home. The court's conclusion in 48 is in these terms; -
I have referred in more detail to H.M. v Switzerland because it is, I think, important to bear in mind that the purpose of any measure of restriction, while a relevant consideration, must not be given too much weight. Nielsen's case concerned a 12 year old boy whose parents had split up and whose father had been guilty of kidnapping him. He did not want to live with his mother but could not live with his father, who was in custody. In those circumstances and on medical advice, he was admitted to the child psychiatric Ward in the State hospital. The court's findings, are set out in Paragraphs 69 and 70 of the judgment of the majority as follows; -
The conclusions of the majority in Paragraph 72 read; -
It is to be noted that the minority (the decision was by 9 to 7) took the view that there was a deprivation of liberty in that a 12 year old who was not mentally ill had been placed in a psychiatric ward against his will for several months.
Any detention of a mentally ill person for treatment may be regarded as in his best interests, but that cannot prevent such detention being a deprivation of liberty within the meaning of Article 5. It seems that the Court in the PH case was very much influenced by the evidence that the restrictions proposed by the tribunal were in the patient's interests and for his benefit to enable him to be discharged and were not primarily imposed because otherwise there would be a risk of danger to the public. In the present case, there is a similar concern about the possibility of relapse, but it is to be noted that the claimant already enjoys unescorted leave for up to 6 hours a day and no problems have resulted from it. The reality in this case is that, because no hostel can be found (and such hostel placement would have involved compulsory supervision), the only way forward is, it is submitted, a conditional discharge to Thornford Park, if that is lawful.
An important decision of the ECtHR in the context of patients suffering from mental disorder is Ashingdane v United Kingdom (1985) 7 EHRR 528 . The applicant had been placed in Broadmoor following his conviction for a number of offences. His condition improved and so the Secretary of State authorised his transfer to a local psychiatric hospital. The Health Authority was in dispute with the staff of the local hospital and so refused to accept the transfer. The applicant suffered from paranoid schizophrenia which was controlled by medication and supervision but he was unwilling or unable to comply with his treatment voluntarily and so, if released, might be dangerous. The applicant was eventually transferred to the local hospital. The regime to which he was subject is described thus (Paragraph 24 on p.536)-
The restrictions are far fewer than those which will continue to apply to the claimant. Nonetheless, the court took the view that he remained detained and deprived of his liberty at the local hospital. The courts' reasons are contained in Paragraphs 40 to 42 of its judgment at pp541-542. It said; -
Miss Stern and Mr Chamberlain emphasise the court's observations in Paragraph 42 that the applicant had remained a detained patient in that his liberty had been circumscribed both in fact and in law. But the words in parenthesis are important and show that the Court was influenced by the fact that he remained subject to a restriction order. Section 73(4) and (6) makes clear that a conditional discharge does not bring a restriction order to an end and the patient remains subject to recall, although it may be that actual recall will depend on evidence that he is then suffering from a mental disorder and possibly one which justifies his detention (see Kay v United Kingdom (1998) 40 BMLR 20 ). This will probably not be difficult to establish in the case of one such as the claimant who is a paranoid schizophrenic.
As the Court makes clear in Ashingdane , all the circumstances of a particular case have to be taken into account in deciding whether there is a deprivation of or a restriction on liberty, the latter of which would fall within Article 2 of the Fourth Protocol (which is not included in the Schedule to the Human Rights Act 1998). The purpose of the restrictions will not change: they remain primarily for the protection of the public by ensuring that the claimant is kept under supervision. The only material change will be in his legal status. He becomes a conditionally discharged patient instead of one detained in pursuance of his restriction order. But he remains subject to the restriction order and so liable to detention: see s.73(3) and (6) of the 1983 Act.
While I accept that it is possible for a patient to cease to be detained if discharged with a condition that he receive and is subject to supervision at the same hospital in which he is detained, it is difficult to see that that could occur when the regime and the purpose of the restrictions remain the same. There is no doubt that conditions can impose restrictions which do not constitute deprivation of liberty: were it otherwise, the possibility of conditional discharge would be drastically curtailed. But such conditions are normally imposed upon release from the hospital where the patient is detained to a hostel or some other supervised residential accommodation with a view to a staged discharge into the community. Whether or not the conditions are so restrictive as to be regarded as a deprivation of liberty will depend on the circumstances of the individual case. In any event, the purpose of all treatment of those suffering from mental disorder is to try to effect a cure or to control the problem by means of medication so that the individual is able to live in the community and does not need to be detained in a hospital. Whether or not the claimant is discharged conditionally now, steps will (indeed, must) continue to be taken to try to find a hostel to achieve his release.
Mr Bowen referred me to R v Bournewood Mental Health NHS ex parte L [1999] AC 558. That case involved a claim for damages for false imprisonment by an autistic and profoundly mentally retarded man. He had, following an episode when he became particularly agitated (he had a history of self-injurious behaviour), been admitted to hospital. He was not placed in a locked ward because he was compliant and showed no desire to leave, but he would have been detained compulsorily if he had tried to leave. The majority of the House of Lords decided that he had not been unlawfully detained, primarily because he had never been kept in a locked ward. There was a powerful dissent by Lord Steyn (see p.495A-D) drawing attention to the control exercised by supervision and medication and the evidence that if he had tried to leave he would have been prevented from doing so. That is yet another example of the difficulty of deciding in an individual case on which side of the line it should fall between deprivation of liberty and restrictions on liberty.
That difficulty has been referred to by the ECtHR. Thus in Guzzardi v Italy (1980) 3 E.H.R.R. 33 the Court observed (Paragraph 93 on p.363): -
Guzzardi concerned an Act which enabled a variety of preventive measures to be taken against 'persons presenting a danger for security and public morality'. Such persons included those 'whose outward conduct gives good reason to believe that they have criminal tendencies'. If a warning from the Chief of Police was not heeded, the person could be placed under special police supervision and, if regarded as specially dangerous, required to reside in a specified district. The applicant, who was suspected of involvement in a kidnapping, was required to live on the Island of Asinara off Sardinia. There was an overnight curfew and a requirement to report twice a day to the authorities. The island itself had an area of about 50 square kilometres but he was restricted to some 2.5 square kilometres. The bulk of the rest of the island was occupied by a prison. The Court decided that special supervision under the Act accompanied by an order for compulsory residence in a specified district did not of itself come within the scope of Article 5. It was the manner of implementation in the circumstances of the applicant's case upon which the Court had to focus. The Court took the view that in certain respects the treatment complained of resembled detention in an open prison. It decided by a majority of 10 to 8 that on balance there was a deprivation of liberty and a breach of Article 5.
Mr Bowen submitted that my approach should not be to apply the Wednesbury principles to the defendant's decision. I should treat the question whether on the facts there has been a deprivation of liberty as one to be answered by myself. In my view, whether the facts found show deprivation or not is indeed a question of law which I should determine. That approach is entirely consistent with that applied by the ECtHR. But the observations I have already cited in Paragraph 93 of Guzzardi show that there will be borderline cases when a decision either way cannot be said to be wrong in law. The court must be careful not to interfere unless persuaded that the decision was wrong in law. This is not in my view the same test as irrationality since the threshold is lower and perversity does not need to be established.
In all the circumstances, I am not persuaded that there will be other than a deprivation of liberty if the condition of residence at Thornford Park is imposed. The defendant's conclusion as summarised in Paragraph 14 of their reasons that the restrictions would mean that in reality the claimant would continue to reside in circumstances which would amount to the continued detention is correct. It is not in my view a borderline case and so the correct approach is not material.
In the course of argument, largely as a result of a suggestion made by me, Mr Bowen raised an alternative submission. This was that, even if the claimant remained deprived of his liberty, the defendants could make the desired order because he would consent to the deprivation and should thus be regarded as a voluntary patient. 'Discharge' within the meaning of section 72(1)(b) means discharge from liability to be detained, not discharge from a hospital. Reliance is placed on s.131(1).
This argument is, I am satisfied, ill-founded. A conditional discharge does not operate as a discharge from a liability to be detained. So much is clear from the provisions of s.73 which I have already cited. Furthermore, there is a contradiction between the concept of remaining in hospital as a voluntary patient and being required by a condition imposed by a tribunal so to remain. Section 131(1) only applies where there is no 'order or direction rendering him liable to be detained under this Act'. In any event, I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal. A deprivation remains since the consent cannot convert into something else.
I recognise that the claimant will be disappointed by my decision. It is certainly to be hoped that efforts to find an appropriate hostel placement will be pursued and will succeed. The situation he is now in would (subject to the change of status, which, as I have said, is not substantial) have continued in any event. While s.117 will not strictly apply, in a case such as this it would be wrong for efforts not to be made by those who would otherwise have been responsible. But I am satisfied that the lack of any changes in regime or accommodation leaves inexorably to the conclusion that there will be a deprivation of liberty so that the defendants' decision was correct.
It follows that this claim must be dismissed.