W v Doncaster Metropolitan Borough Council

The appellant, W, is a mental patient. He claims that for seven or more months he was detained in a medium secure hospital when he should have been living in the community pursuant to a conditional discharge ordered by a Mental Health Review Tribunal (MHRT). He claims that the respondent, the Doncaster Metropolitan Borough Council, was responsible for this state of affairs and claims damages for false imprisonment and under the Human Rights Act 1998. Stanley Burnton J dismissed his claim but gave permission to appeal because the case involved points of principle on which the ruling or guidance of the Court of Appeal is required.

W is now aged 30. In April 1994 he was detained with a restriction order under Sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). He had attacked with a knife a fellow resident in bed and breakfast accommodation where he was staying. He had had previous involvement with the psychiatric services and was suffering from mental illness at the time.

He was placed first at Arnold Lodge, Leicester, a medium secure hospital. In 1996 he was transferred to Wathwood Hospital, Rotherham. In mid 1998, following a change of medication, his condition improved, but on Christmas Day 1998 he savagely attacked a fellow patient. Dr Mendelson, his responsible medical officer (“RMO”) felt he constituted a grave and immediate danger to the public and he was assessed for admission to Rampton, a high security hospital. However, he made a dramatic improvement to the extent that by January 2000 he was described as “remarkably stable”. The Secretary of State agreed that he should have periods of unescorted leave in the community and these were successful.

A move to Loversall Hospital in Doncaster was considered as the next stage in his rehabilitation, but when he was there on a period of leave he met the victim of his 1998 attack. Nothing untoward happened but, because W felt he could not cope with the proximity of his victim, the proposed move to Loversall did not take place.

On 12 March 2001 W’s case was referred to a MHRT. A restricted patient’s case must be referred to a tribunal once every 3 years even if the patient does not himself apply.

The respondent was the local authority responsible for after-care services for W because he had last lived in its area before he was detained. Ms Arnell-Smith (now Mrs Richardson) has at all material times been his caseworker.

W’s case was considered by the MHRT on 9 July 2001. The material it considered included:

The view of Doncaster Social Services was that discharge was inappropriate and that W’s discharge into the community should be preceded by a move to a non-secure hospital.

The tribunal accepted Dr Soliman’s opinion. It was not satisfied W was suffering from a mental condition of the kind specified in section 72(1)(b)(i) of the 1983 Act. It was satisfied it was not necessary for his health or safety, or the protection of others, for him to receive medical treatment, but it was not satisfied it was not appropriate for him to remain liable to be recalled to hospital for further treatment. It imposed the following conditions and deferred his conditional discharge under section 73(7) of the 1983 Act.

“1.

He shall receive psychiatric supervision from Dr A H Soliman or his successor.

2.

He shall receive social supervision from a named social worker.

3.

He shall reside at appropriate accommodation as approved by Dr Soliman and the named social worker.”

The tribunal said in expressing its reasons that W appeared to have a clear insight into his condition and an understanding of the need for continued medication and continued:

“Though he has enjoyed generous unescorted leave in recent months there is still a concern as to how (W) may react if left unsupervised and his previous mental history of violence, absconding, substance abuse and frank mental illness means that he must remain liable to recall.

For some time it has been recognised both within the unit and by the designated social workers that the patient is ready to move on. However, a transfer to a less secure hospital accommodation has not taken place, in part because of understandable concerns on (W’s) part about a return to the Doncaster area and renewed acquaintance with the victim of the index offence. In fact it seems to us that though such may have been appropriate as a ‘test exercise’ the statutory criteria did not demand such.

In the last few weeks real progress has been made to identify a suitable hostel placement. No formal assessment (at Westfield House) has yet taken place and thus, though we hope such may be (W’s) next move the conditions we impose are necessarily more general than would otherwise have been the case.”

Ms Arnell-Smith was the named social worker for the purposes of the tribunal’s decision. What happened was this. I recount the events as described in the judgment of the judge. On 16 July 2001, Dr Mendelson wrote to her asking her to make an application for W’s placement to Westfield House Hostel in Rotherham. She replied on 19 July 2001, stating that she was required to produce a current, comprehensive assessment of his needs before pursuing a formal application for placement. She requested a recent psychiatric/medical assessment of W, a risk assessment summary, a recent occupational therapy assessment and a psychological/nurse therapist assessment summary identifying W’s perceived psychological support needs. On the following day, she wrote to the principal social worker at Wathwood asking for her opinion regarding W’s “future needs with specific reference to the suitability of a placement at Westfield House and the availability of appropriate after care provision within the Rotherham area.” The principal social worker replied on 6 August 2001. She stated:

“It is my view that (W) requires 24 hour care provided by staff who are experienced not only in mental health but if possible forensic issues. I understand that you have visited Westfield House to carry out your own assessment regarding the suitability of the unit. It is my view that Westfield may not have adequate staffing levels and staff are not social work or RMN trained. (W) can be dependent on a service and will require a comprehensive care package on discharge, this will include day care. If (W) resettles in an area outside of Doncaster then there will be funding implications for Day Care.”

She suggested a meeting to discuss the options.

Ms Arnell-Smith herself visited Westfield House on 31 July 2001. She attended a clinical team meeting at Wathwood Hospital on 16 August 2001, when the principal social worker practitioner at Wathwood expressed serious reservations as to the suitability of Westfield House for W.

Ms Arnell-Smith did not receive all of the reports she had requested in her letter of 19 July 2001. She nonetheless produced a detailed Community Mental Health Team Assessment Document dated 6 September 2001. She concluded:

“Westfield House is a privately managed residential facility providing primary rehabilitation but also continuing care to clients from 18-65 years. However, this facility would appear to have had limited experience of providing support to clients with a forensic history and/or dual multiple diagnosis. Further, there are no nurse or social work qualified professionals currently employed within the staff team. Concerns have been identified by local agencies and the social services department in Rotherham with regard to the possibility of a placement at Westfield House specifically with respect to the ability of this facility to adequately address the level and complexity of (W’s) perceived needs.

If such a placement were to be pursued then proactive, assertive in reach from community based mental health professionals would be perceived to be necessary to ensure (W) is adequately supported in this placement and any risk management or relapse prevention strategies are effectively implemented. The social services department in Rotherham has clearly stated it would not be prepared to provide social work support or intervention should (W) seek a placement in the area, as he would not fulfil the criteria of ordinary residence.

The manager of the community mental health team covering the area where Westfield House is situated has been approached regarding the possibility of CPN intervention. However, I am advised they are not in a position to offer this service to a client in residential provision. Assistance with ongoing monitoring and assessment might be facilitated through access to structured rehabilitative day care. However, I am advised this provision is limited in availability in the Rotherham area. Further, there remain issues regarding registration under the Care Programme Approach which will need to be addressed and systems would need to be established to facilitate effective interagency working across agency boundaries.

In sum, given the issues identified regarding the suitability of Westfield House as a placement and the limited availability of formal community mental health services or support I would have serious reservations about pursuing a plan for (W’s) rehabilitation in the Rotherham area at the present time and the local authority assuming responsibility for his social supervision in this context. Further discussion between the relevant agencies is strongly recommended with a view to reconsideration of available options and addressing concerns identified.”

Her report was countersigned by her care manager. The head of service for community care commissioning in Doncaster responded to her report in a memorandum dated 12 September 2001:

“…I am writing to confirm that I share your reservations about the suitability of Westfield House as a placement for (W) at this time. I am particularly concerned that the care available at the Home and in the community is not sufficient to meet the identified risks. Consequently, I am not at this stage prepared to fund the placement at Westfield House.”

A CPA review meeting took place on 13 September 2001. Those present included W himself, his mother, Dr Mendelson’s specialist registrar, and Dr Soliman. The note of that meeting produced by Dr Kennedy, Dr Mendelson’s specialist registrar, stated:

“The team at Wathwood feel that (W) does not require the current high level of inpatient care and had agreed that placement in Westfield House on a trial leave basis for up to three months, during which time structured day care could be introduced, would be a good way forward. Dr Soliman had agreed to act as RMO.

However, it was not clear where the additional community nursing support would come from. Mike Goss explained that Rotherham CPN service is so stretched that it is unable to offer ongoing supervision.

Helen Arnell-Smith stated that on the basis of her needs assessment, the head of service commissioning would not fund Westfield House as it is not considered an acceptable placement on the grounds of poor staff training in mental health matters. This situation has been explained to (W) and he is now prepared to consider all the possible alternatives.

There has been discussion today about Swallownest. This is not felt to be suitable as it is an inpatient placement and (W) requires a community placement. The only option at present is Jubilee Gardens in Barnsley. We would require an RMO. It has been agreed that Helen Arnell-Smith will liaise with Jubilee Gardens to investigate further the timescale for admission and suitability. Dr Kennedy/Dr Mendelson will investigate with Barnsley’s RMO if any are prepared to take on (W’s) case. If it appears that the conditions of the Tribunal cannot be met within a reasonable time frame we will have to contact the Tribunal Clerk.

All are in agreement as to the investigation of a Jubilee Gardens placement as the most appropriate way forward.”

Jubilee Gardens is a hostel.

In a letter dated 17 October 2001, Dr Mendelson cast doubt on the possibility of W being accepted at Jubilee Gardens and stated:

“…The only reasonable way forward is to support (W’s) wish for a placement at Westfield House Hostel and then to arrange the necessary community support.”

However, in a letter dated 25 October 2001, the consultant in public health of Doncaster NHS Health Authority stated:

“Westfield House is a relatively new unit and appears to have limited experience with forensic patients. There are no nurse or social work qualified professionals employed within the staff team. Local mental health professionals who know Mr (W) well are unhappy about the levels of risk, which would accompany a placement at Westfield House at this stage although it may be suitable in the long term.”

She suggested a transfer to a hospital.

Ms Arnell-Smith produced a risk assessment dated 20 December 2001. In it she stated:

“There has been a consensus view this package should include accommodation with support available 24 hours to help promote his skills, confidence in relation to daily living and also assist with the monitoring of his mental health needs and related risk issues. Close supervision and monitoring have been identified as integral and necessary to any risk management or relapse prevention plan in (W’s) case given the propensity identified for unpredictable behaviour and rapid relapse combined with his risk history.

…………..

The staff team at Westfield House have had very limited experience of providing support to service users with forensic histories and multiple diagnoses, associated complexity of need. Further, there are no staff members with formal or relevant clinical qualifications and this is a relatively new facility having previously catered for older adults. Concerns have been identified by local agencies and social services professionals in Rotherham with regard to the suitability of this placement – specifically, serious questions have been raised as to the ability of this facility to adequately or safely address the complex needs and potential risks defining (W’s) situation.

………

Whilst Dr Soliman Consultant Psychiatrist (Rotherham) had agreed to accept responsibility for (W’s) ongoing medical care and supervision prior to the Tribunal hearing in July, a subsequent request was made reportedly on his behalf for this responsibility to be assumed by Dr O’Leary Consultant Psychiatrist (Doncaster) – concerns having been identified at the time with regard to the potential difficulties of coordinating an effective multidisciplinary response across different authority and agency boundaries. Dr O’Leary declined the responsibility.

The concerns identified by the department and the principal social work practitioner at Wathwood RSU were communicated and discussed fully with other members of the inpatient clinical team and (W) in person prior to the S117/CPA Meeting held on 13 September. At this planning meeting these issues were discussed at further length with Dr Soliman who appeared to fully acknowledge our concerns. It appeared Dr Soliman may have anticipated full transfer of responsibility to the Rotherham area.

Given the identified deficits of a placement at Westfield House specifically in relation to (W’s) documented needs and the absence of supportive intervention from community mental health services in Rotherham, related concerns identified by Dr Soliman about effective coordination of supervision, it was concluded at this S117/CPA. Meeting alternative possible placements should be investigated.”

In a letter to Dr Mendelson dated 7 December 2001, Ms Arnell-Smith asked for a further section 117 CPA meeting “at the earliest opportunity”. It seems that the social worker at Wathwood also considered Westfield to be inappropriate for W: see Ms Arnell-Smith’s fax of 11 December 2001 to Dr O’Leary of Loversall Hospital.

Dissatisfied with the lack of progress, on 3 January 2002 W’s solicitors made a fresh application to the tribunal. Dr O’Leary prepared a report for it emphasising the need for caution in moving W out of secure facilities. Ms Arnell-Smith also produced a report dated 29 January 2002 pointing out that a number of serious concerns had been identified as regards the suitability of Westfield House, which was W’s preferred placement, and that these had been compounded by lack of support from community mental health services in the Rotherham area. Other possible placements had been explored without success. A further meeting between all agencies was scheduled for February 2002 to try and achieve agreement as to how W’s needs could best be met.

The tribunal met on 6 March 2002. It directed W’s discharge subject to the following conditions:

The tribunal said:

“He is fully compliant with treatment has good insight and demonstrates no risks, either to himself or others, and he has extensive unescorted leave with which he complies appropriately.

The sticking point in the implementation of the discharge of 9 July 2001 has been the concern about appropriateness of Westfield House, the accommodation preferred by (W), but not seen as ideal by Social Services either in Rotherham (where the facility is) or in Doncaster (who have S117 responsibility for (W)). Social Services feel that Westfield House did not have the specialist staff skilled in the management of patients with a forensic history, although we note that the other ex-Wathwood patients currently reside there and are provided with CMHT support there. We decided because of this, and given the long-term stability shown by (W), that Westfield House was an adequate placement.

We heard that Rotherham had some current staffing difficulties but that Doncaster social services accept their S117 responsibility and would put in place CPN and social supervision for the initial period until Rotherham could take over.”

The period of detention about which W complains is that between the first tribunal hearing on 9 July 2001 and the second on 6 March 2002. However, it seems to me that on any view a part of this period would have been occupied in implementing the July tribunal’s decision, even if the respondent had been successful in doing so. Inevitably these things cannot be achieved overnight.

The statutory provision in focus in the present appeal is section 117 of the 1983 Act. The section is headed “After-care”. It provides:

“(1)

This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under Section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.

(2)

It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject.”

The remainder of the section is of no relevance to the issues in this case.

The lawfulness of W’s original and continuing detention was established under sections 37 and 41 of the 1983 Act. He was a restricted patient within the meaning of the 1983 Act, and the power to discharge restricted patients is to be found in section 73. The power lies with a MHRT. The tribunal is required to direct the patient’s absolute discharge in the following circumstances namely if it is not satisfied:

The tribunal is required to direct the patient’s conditional discharge where (i) or (ii) above apply but it is not satisfied that it is not appropriate for him to be liable to be recalled to hospital for further treatment.

Section 73(7) gives the tribunal power to defer a direction for the conditional discharge of a patient in these terms:

“A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes back before the tribunal on a subsequent application or referral, the previous application or referral shall be treated as one on which no direction under this section can be given.”

At the July 2001 hearing the tribunal was not satisfied about the matters set out in (i) and (ii) above but it felt W should remain liable to recall for further treatment. It therefore directed, as it was obliged to, that W should be discharged subject to conditions but deferred the discharge until satisfactory arrangements were made to meet the conditions i.e. it directed a deferred conditional discharge.

Before the judge the argument was advanced on the following lines. The respondent had a duty to provide a care plan in advance of the hearing on 9 July 2001 and was in breach of duty in failing to have arranged any care in the community to be available on W’s discharge. The respondent was also under a duty to make the arrangements necessary for the after-care services necessary to implement the tribunal’s decision within a reasonable time of the decision. The respondent had failed to do so and had frustrated the decision of the tribunal by unreasonably objecting to Westfield House and failing to make the necessary resources available. It was therefore in breach of its section 117 duty. W’s detention in hospital had been prolonged as a result. He had been detained when his mental condition did not require it. There were breaches of article 5 & 8 of the ECHR and the respondent was liable in damages for these as well and for the tort of false imprisonment.

Before us the case was put rather differently. Mr Richard Gordon Q.C, who has appeared for W, has focused on the respondent’s failure to put in place the conditions directed by the tribunal. He submitted that the bottom line was that the tribunal had decided W’s condition did not warrant detention. It did not meet the statutory criteria enabling him to be compulsorily detained. Accordingly, when the tribunal made its order, W was entitled, in consequence of the order, to be discharged within a reasonable time thereafter. Failure by the respondent to take action to ensure his discharge within a reasonable time was a breach of article 5(1)(e) and 5(4) of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) as well as amounting to a wrongful detention in domestic law. The defendant was therefore liable to W in damages.

In my judgment the fundamental flaw in Mr Gordon’s argument is that the conditions imposed by the tribunal in this case were inextricably linked with W’s release. It is not a correct analysis of the situation that the tribunal decided W should be released, and, absent the implementation of the conditions within a reasonable period of time his continued detention necessarily became unlawful. This case cannot be categorised with a situation where, for example, the tribunal has directed that a patient be discharged subject to a condition that he reside at a particular place where accommodation is known to be available, and yet the local authority refuses to let him live there i.e the tribunal’s decision is deliberated thwarted. As Lord Bingham pointed out in R (Von Brandenberg) v East London and City NHS Trust [2003] 3WLR 1265, 1272H no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of a MHRT. But that is not this case.

The core of the submissions of Mr Robert Jay QC who has appeared for the respondent, is that on the true construction of the MHRT’s July 2001 decision W could appropriately and safely be discharged provided that the conditions were fulfilled. The appropriateness of the discharge and the fulfilment of the conditions cannot be separated.

In my judgment it is important in analysing the circumstances of this case not to lose sight of the underlying essentials. There is a middle group between on the one hand those restricted patients who cannot safely be discharged from hospital and on the other those who can be returned unconditionally to live in the community. The middle group can live safely in the community provided the necessary support is in place and they co-operate. No one wishes to retain a member of this group in hospital longer than is necessary if the appropriate arrangements can be put in place to ensure that he is not a danger to himself or others. It is to this group that the conditional discharge is directed, with the additional weapon in the tribunal’s armoury that the discharge can be deferred until the necessary conditions have been implemented. Frequently the question whether a person can live safely in the community will depend on compliance with conditions, for example, living under supervision or taking appropriate drugs to prevent a relapse. To accept Mr Gordon’s analysis seems to me to be liable to lead to a situation where some individuals will be regarded by the law as unlawfully detained when, for one reason or another, they cannot for the time being be safely accommodated in the community.

Winterwerp v the Netherlands (1979) 2EHRR 387 was a case where the applicant had been compulsorily detained under Netherlands legislation dealing with mentally ill persons. The European Court of Human Rights held that his inability to have his detention reviewed by a court constituted a violation of article 5(4) of the ECHR. The court said:

“In the court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.”

These words follow very closely the wording of the criteria in our Mental Health Act.

The other relevant European Court decision is Johnson v United Kingdom (1997) 27EHRR 296. In that case the applicant complained about the lawfulness and judicial control of his continued detention in Rampton Hospital from June 1989, when a MHRT found that he was no longer suffering from mental illness, to January 1993 when his absolute discharge was ordered. It was held that there had been a breach of article 5(1). The court noted that it had not been contested that the applicant’s continued detention was lawful under domestic law having regard to the tribunal’s powers under section 73(2) and (7) of the 1983 Act to impose conditions as to the discharge of patients who are no longer mentally ill within the meaning of section 73(2) of that Act, and to defer discharge until those conditions have been fulfilled. It went on to stress, however, that the lawfulness of the applicant’s continued detention under domestic law was not in itself decisive. It had also to be established that his detention after June 1989 was in conformity with the purpose of article 5(1) of the ECHR, which is to prevent persons being deprived of their liberty in an arbitrary fashion and with the aim of the restriction contained in sub paragraph 5(1)(e).

The court said it did not automatically follow from a finding by an expert authority that the mental disorder which justified the patient’s compulsory confinement no longer persisted that he must be immediately and unconditionally released. The court made the valid point that disappearance of the symptoms of mental illness did not necessarily equate with the patient’s complete recovery. It is the behaviour of the patient in the period outside the confines of the psychiatric institution, which will be conclusive of this. The court went on to say this:

“(The) authority should be able to retain some measure of supervision over the progress over the person once he is released into the community and to that end make his discharge subject to conditions. It cannot be excluded either that the imposition of a particular condition may in certain circumstances justify a deferral of discharge from detention having regard to the nature of the condition and to the reasons for imposing it. It is however of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of article 5(1) and with the aim of the restriction in sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed.”

The court went on that the tribunal was in principle justified in deferring the applicant’s release in order to enable the authorities to locate a hostel which best suited his needs and provided him with the most appropriate conditions for his successful rehabilitation. The onus was on the authorities to secure a hostel willing to admit him. However, in the circumstances, the imposition of a hostel residence condition by the 1989 Tribunal led to the indefinite deferral of the applicant’s release from Rampton Hospital. In the absence of adequate safeguards to ensure the applicant’s detention would not be unreasonably delayed there was violation of article 5(1) of the Convention, but the applicant’s complaint under article 5(4) gave rise to no separate issues.

Mr Jay submits that there are two types of case, the first category being the Johnson type of case which covers only those patients who are not found to be suffering from mental illness and whose condition does not warrant detention in hospital. The second, more common, category covers patients whom the tribunal considers to be mentally ill, but require treatment and where such treatment can be provided in the community. He says support for this division is found in the speech of Lord Bingham in R (IH) v Secretary of State for the Home Department and Another [2003] 3WLR 1278 who said, at para 18, that the key to a correct and 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 and onwards was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The court’s reasoning was not applicable to any other case.

Mr Gordon submits that Mr Jay’s distinction is wrong and that the true distinction is between the patient (whether or not he is currently suffering from mental disorder) who no longer meets the Winterwerp criteria, and the patient who may or may not meet those criteria depending on whether particular arrangements can be made. In short, he says, the question is whether the patient no longer suffers from mental disorder or whether he no longer suffers from mental disorder of a nature or degree that warrants compulsory detention. He submits that support is to be found for this in IH in the Court of Appeal [2002] 3WLR 967, 993 at para 91 where Lord Phillips MR said:

“It is possible that a tribunal may conclude that a patient is still suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, that this is no longer of a nature or degree that makes it necessary that the patient should be detained in hospital for treatment, even if he cannot receive treatment in the community, but that it is appropriate that the patient should be subject to recall. In such a situation the tribunal may defer discharge for a reasonably limited period to enable arrangements to be put in place for a conditional discharge. If, however, the preferred arrangements prove impossible, the tribunal must make appropriate modifications to the conditions and direct the discharge of the patient. Such a course is necessary because in this situation the second and third requirements in Winterwerp’s case will not be satisfied.”

And also from Lord Bingham in the House of Lords at para 28:

“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…...the present case is quite different. There never was a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied.”

On this aspect of the case I prefer the analysis of Mr Gordon. It seems to me that the fundamental distinction is between those individuals who meet and those who do not the three Winterwerp criteria namely (i) a true mental disorder (ii) of a kind or degree warranting compulsory confinement and (iii) (in order to justify continued confinement) that it persists. I am not, however, persuaded that the categorical distinction is relevant to the outcome of the present case. It seems to me that however one approaches the categorisation of W, the respondent’s obligation was to use its best endeavours to implement the conditions envisaged by the tribunal, which is on analysis what the respondent did.

A patient who is no longer suffering from mental disorder does not necessarily have to be absolutely discharged, see section 73(1)(b) of the 1983 Act and e.g Johnson. As Lord Bingham observed in IH 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, properly used, should be viewed with disfavour. The conditional discharge regime is a benefit to both patients and the public and conducive to the Convention objective of restricting the curtailment of personal liberty to the maximum. 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 otherwise than in hospital.

IH was important because it set aside the ruling in R v Oxford Mental Health Review Tribunal Ex p the Secretary of State for the Home Department [1988] AC 120 that once a tribunal was satisfied the patient should be conditionally discharged it could only defer the order under section 73(7) for the necessary arrangements for the discharge to be made; it had no power to reconsider its decision. Whilst in IH there had been a breach of article 5(4) because of the perceived inability due to the Oxford decision for the tribunal to reconsider the case, in the event IH was not unlawfully detained and there was no breach of article 5(1)(e). The case was in a different category from Johnson.

The problem that arose in IH was that the health authority was unable to obtain the requisite psychiatric supervision. The court was assisted by a statement from the tribunal chair, Ms Cotton QC, expanding on the tribunal’s reasons for ordering a conditional discharge. She explained that on the basis that the conditions imposed by the tribunal were fulfilled continued detention of IH was not necessary. The requirement for supervision of a patient by a psychiatrist was a commonly imposed condition on conditional discharge from which the power to recall a patient to hospital could not be divorced. Lord Bingham said it seemed safe to infer that had the tribunal foreseen that the condition which it laid down could not be fulfilled it would not have directed IH to be discharged absolutely, but that his detention should be continued. In my judgment there are similarities between IH and the present case. In both cases the patients could be discharged provided the conditions were fulfilled. The conditions and the discharge were in both cases inextricably interlinked.

In IH in the Court of Appeal Lord Phillips MR said at para 76 that when a MHRT is considering the case of a restricted patient it may conclude he was suffering from a mental disorder of a nature or degree which make it essential for his safety or that of others that he be detained in hospital for treatment but that there were a number of other conclusions it could reach, namely:

Mr Gordon’s position is that W’s case qualified for a conditional discharge but that the discharge had to be effected within a reasonable period of time; otherwise there would be a breach of domestic law and breaches of the ECHR in particular articles 5(1)(e), 5(4) and 8. The argument runs as follows. The tribunal was satisfied that W’s mental disorder was not of a nature or degree that required him to be compulsorily detained. The Winterwerp criteria were not met and it was unlawful for him to be detained other than for a short time in order to implement the conditions. If the conditions could not be implemented within a reasonable period, too bad. He had a right to be free. The one qualification accepted by Mr Gordon is that if the health or social care professionals became aware of information not known to the tribunal that put a materially different complexion on the case the patient could be referred back to the tribunal for the case to be reconsidered. But that was not this case.

If Mr Gordon’s submission is correct it seems to me to be liable to lead to a very unsatisfactory state of affairs. Where, for some reason, it has not proved possible to implement conditions that make it safe for a patient to live in the community, the patient nevertheless has to be discharged without the safeguards necessary to protect him and the public. Not so, submits Mr Gordon, because W is not one of those patients who needs to be detained unless suitable arrangements can be made to place them in the community. The conditions were imposed in the present case because it was necessary for him to be monitored in the community, and if his condition deteriorates to the extent that he once again qualifies for detention in hospital he can be recalled. What underpins Mr Gordon’s case is, he submits, a clear finding on unanimous medical evidence that the patient’s condition does not, at the date of July order, meet the statutory criteria for compulsory detention. His liability to detention did not depend on the nature of the arrangements to be made for him in the community.

I turn therefore to consider W’s mental condition as it appeared to the tribunal and the conditions required to be implemented for his discharge.

W’s underlying mental illness was schizophrenia, but his illness appeared to be effectively controlled whilst he remained on medication. His was not a Johnson type situation where at the material time he was free from mental illness and no longer in receipt of psychotropic medication. Dr Mendleson expressed his opinion that:

“W suffers from a mental illness within the Mental Health Act 1983, namely schizophrenia. He also has a history of personality problems since early childhood and mental illness since the age of ten.”

He said that W accepted he was suffering from a mental illness and the need for medication. He set out the five drugs he was prescribed.

The tribunal did not suggest there was any significant difference between the doctors and referred to concern about W’s behaviour if he was left unsupervised. In my judgment this is a case where the underlying mental illness, schizophrenia, was in remission (or dormant) because it was being controlled by drugs, and W was being properly looked after. The illness would only remain of a nature or degree not to warrant detention if W remained properly looked after and continued to take the appropriate drugs. It was to that end that the conditions were imposed. They were an integral part of the decision to release him into the community. If he did not (i) receive psychiatric supervision from Dr Soliman or his successor (ii) receive social supervision from named social worker and (iii) reside at appropriate accommodation as approved by Dr Soliman and the named social worker, the clear inference is that his schizophrenia would once again be lit up to the point where his illness was of a nature or degree to warrant detention. I agree with the submission of Mr Jay that IH is directly in point.

The respondent’s involvement in this case arises solely out of section 117 of the 1983 Act. It is to be noted that the title of the section is ‘after-care’, and also, that it applies to persons who are detained and then cease to be detained and leave hospital. Section 117(2) places a duty on the primary health care trust or heath authority and local social services authority, in co-operation with others, to provide after-care services to such persons until they are satisfied that the person concerned no longer needs them. It is easy to envisage a chicken and egg situation arising. The tribunal will not discharge the patient until appropriate arrangements are in place, the health authority/social services authority will not make the arrangements until the patient is discharged. That was the type of situation that arose in R v Mental Review Tribunal and Others Ex parte Hall [2000] 1WLR 1323. However, it is not this case. The deferred conditional discharge under section 73(7) is designed to assist in overcoming this problem, and the situation is much alleviated now that it is recognised that tribunals can revisit their decisions (see Lord Bingham’s speech in IH at para 27).

There has been some debate about when the section 117 duty arises. Mr Gordon says the issue is irrelevant to the outcome of this appeal as W’s case is now advanced and this is plainly correct. However, the issue was very much in focus before Stanley Burnton J. He did not think the duty arose to put in place after-case arrangements before the tribunal’s decision. He expressly did not follow observations of Otton J. in R v Ealing District Health Authority Ex parte Fox [1993] 1WLR 373, 385 and observations that I had made in Hall at 1335. In my judgment he was right not to do so. Section 117 was considered by the Court of Appeal in R (K) v Camden and Islington Health Authority [2002] QB198. Lord Phillips MR said at 225 para 20:

“The relevant provisions of section 117(2) are set out at paragraph 19 of Burton J’s judgment. On their face they require the health authority to provide after-care services for persons who cease to be detained and leave hospital. Decisions at first instance, to which I am about to refer, (he was referring to Fox and Hall) have held that the duty of a health authority extends to making arrangements for the care of a patient before that patient is discharged. Before Burton J, the respondent authority reserved its position as to whether these decisions were correct. Before us it has made the following limited concessions: (a) a health authority has the power to take preparatory steps before discharge of a patient; (b) it will normally be the case that, in the exercise of this discretionary power, an authority should give way to a tribunal decision, and should use reasonable endeavours to fulfil the conditions imposed by a such a decision, in so far as they relate to medical care; (c) failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion. ”

He went on to say, at para 28, that nothing in the Court of Appeal decision in Hall suggests health authorities are under an absolute obligation to comply with whatever conditions may be imposed by a tribunal, whether reasonably practicable or not. He went on:

“In judgment section 117 imposes on health authorities a duty to provide after-care facilities for the benefit of patients who are discharged from mental hospitals. The nature and extent of those facilities, must, to a degree, fall within the discretion of the health authority, which must have regard to other demands on its budget. In relation to the duty to satisfy conditions imposed by a tribunal, I would endorse for concession made by the respondent authority as to the extent of its duty.”

Buxton L.J agreed that section 117 did not impose an absolute duty, and Sedley L.J did not suggest otherwise. Mr Gordon accepts that the duty is not absolute. It has been described as best endeavours, or reasonable endeavours. Like Stanley Burnton J I do not see any material distinction between the two. In my judgment this situation in the present case is aptly covered by the words of Lord Phillips MR in IH at paras 96 and 97:

“We consider that in a case such as the present the provision of section 73 of the Act operate as follows. Where a tribunal decides (i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of others and (ii) that detention in hospital for that treatment is not necessary if, but only if psychiatric treatment is provided in the community, the tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangements to be made for providing psychiatric treatment in the community. The health authority subject to the section 117 duty will then be bound to use its best endeavours to put in place the necessary after-care. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours the health authority is unable to provide the necessary services, the tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment it should record that decision.

We do not consider that this scheme is incompatible with article 5(1). If, as Mr Owen wished to argue, psychiatrists who foil the intention of the tribunal in this way are in a breach of a public law duty, the patient will have a remedy under judicial review. If they are not in breach of duty, it is likely to follow that the Convention does not require psychiatrists to administer treatment or supervision in the community when, as a result of professional judgment made in good faith, they are not prepared to undertake this responsibility.”

It is therefore necessary to focus on the after-care the respondent was expected to put into place and see why it did not happen. Although the section 117 duty does not bite on local authorities or health authorities until after the tribunal decision, they do not at that point start entirely from scratch. Most such authorities will be faced fairly frequently with circumstances in which they are expected to exercise their section 117 duty to help to rehabilitate mental patients within the community. It is reasonable to suppose therefore that they have procedures in place for coping with situations of this kind. Also, they certainly have the power, in appropriate cases, to start making plans before the tribunal sits. Kennedy L.J in Hall referred to them as plans in embryo. Once the tribunal has made its decision it will be a case of tailoring their procedures to meet the needs of the particular case.

It is pertinent that in the present case the tribunal recognised that the conditions they imposed were more general in nature then would otherwise have been the case because it was only in recent weeks that real progress had been made in identifying a suitable hostel placement (Westfield House) and that no formal assessment had taken place. The conditions required that the accommodation in which W was to reside (and no specific accommodation was named in the condition) was to be approved by both Dr Soliman and the named social worker. There were thus still real questions to be resolved before W could in practice be released. These questions involved the exercise of professional judgment on the part of Dr Soliman and Ms Arnell-Smith the approved social worker. It is important to keep in mind that the tribunal had not decided that W would be discharged toWestfield House. The position is to be distinguished from the tribunal’s decision on the 5 March 2002. There the conditions were more precise. W was to reside at Westfield House and would be under the supervision of a named psychiatrist and social worker. There was no question of Westfield House being approved by Dr Soliman or Ms Arnell-Smith or any one else; it was where W was to live. Nor was the conditional discharge ordered in March 2002 to be deferred. Because of the risks associated with relapse W was to be liable to recall but, as the tribunal expressly stated, an immediate conditional discharge was then both possible and appropriate.

The question that needs to be examined is why the conditional discharge directed by the tribunal in July 2001 did not take place. The March 2002 tribunal identified the reason as being concern about the appropriateness of Westfield House which was not seen as ideal by either Rotherham or Doncaster Social Services because it did not have the specialist staff skilled in the management of patients with a forensic history. I dare say the position had been made no easier by the fact that Doncaster were the local authority with section 117 responsibility but W was, for understandable reasons, not going to be accommodated in the Doncaster area because of the risk of meeting the victim of the indexed offence. Thus it was a matter of trying to accommodate him in a different (Rotherham) area.

As is apparent both from the tribunal’s decision on 9 July 2001 and Dr Soliman’s report dated just five days before, the possibility of discharging W to Westfield House was something that had only relatively recently come to the fore. The first mention of it appears to be in Dr Mendleson’s letter of 24 May 2001 to Ms Arnell-Smith. Dr Soliman highlighted the need to manage the risk of a relapse of his illness by having staff available 24 hours a day to monitor his medication. Westfield House was mentioned in Dr Soliman’s report on the basis that W had visited a friend there and liked it. In fact the first time W visited Westfield House was just two weeks before the tribunal hearing. He told Dr Soliman he wanted to make a fresh start in Rotherham. This was in the context that plans to move to the Nottingham area had come to nought. According to W’s witness statement the manager of Westfield House, Ms Ravenshall, attended the tribunal hearing and told the tribunal she thought W would benefit by going there.

It is unsurprising that the tribunal imposed conditions of a more general nature than normal because no assessment had been undertaken to see whether Westfield House was suitable to meet W’s needs. It was at this point that difficulties were foreseen. Westfield House did not appear to have the staff or experience to address the level and complexity of W’s needs. It was a recently established private home; there was no nurse or social work qualified professional in the staff team, and the manager had no care qualifications at all. There was concern over the actual staffing levels with no managerial personal on the staff. Rotherham Social Services also had concerns and were not prepared to provide social work support or intervention as W did not fulfil the ordinary residence criteria.

Ms Arnell-Smith prepared a comprehensive Community Mental Health Team Assessment on 6 September 2001. She expressed serious reservation about recommending W for Westfield House. Also, Dr Soliman was no longer supportive of the placement. He was concerned about continuity and co-ordination of care across boundaries in the absence of support from Rotherham. The respondent began to explore other options. On 23 October 2001 the joint conclusion was that the respondent did not have confidence in Westfield House. There was a fundamental difficulty in that there were good reasons why W did not wish to be placed in Doncaster, but it is always difficult to secure a placement in a hostel outside the area concerned. Naturally, local authorities tend to give priority to those who live in their own area and are their own immediate responsibility.

The difficulties with which the respondent was faced can, I think, be summarised as follows.

Like the judge, I consider these were perfectly genuine difficulties. This is not a case where it can possibly be said that the respondent was trying to torpedo the tribunal’s decision, and indeed Mr Gordon expressly makes no such submission. On any fair reading of the evidence it is in my judgment impossible to say that the respondent did not use its best endeavours to implement the decision of the July tribunal which, I emphasise, did not specify a condition of residence at Westfield House. The professionals had to exercise their professional judgment to the best of their ability and this, in my opinion, they did.

Unfortunately there is neither a bottomless pit of funds nor an adequate supply of suitable accommodation and support to cope with these difficult cases. Stretched local authorities and health care providers have to make do as best they can with the facilities and resources that are available. Local authorities face especial difficulties when trying to fund a placement outside their own area.

I turn next to consider whether the non-implementation of the July tribunal’s order was allowed to continue for too long. There was a meeting on 23 October 2001 at which all options were considered and from which point it was pretty clear that the respondent was not going to accept Westfield House as a suitable solution. The respondent continued to explore other possibilities. Matters appeared to have drifted a little before W’s solicitors referred his case back to the MHRT on 3 January 2002 but, like the judge, I do not think the respondent is open to significant criticism for not having brought the case back before the tribunal at some earlier date. It was, as the judge pointed out, open to W’s solicitors to have done so. Also, in late 2001 there was still the obstacle of the Oxford case.

I reject Mr Gordon’s argument that the respondent in not implementing the conditional discharge was in reality doing more than going over ground that had already been covered by the tribunal. True, the possibility was ventilated that W might go to a secure hospital, Swallownest, which was not ideal but had facilities to accommodate W’s needs, and W rejected it. However, it seems to me, that Swallownest was put forward in good faith as a stepping-stone when the option of finding a suitable hostel appeared to have failed. Nor in my judgment does it undermine the respondent’s argument that there was a body of opinion pre-tribunal (see e.g. Dr O’Leary’s letter of 11 January 2001) that a gradual transition from secure hospital, to local open hospital, to rehabilitation hostel, to his own accommodation, was the best option for W. What the tribunal decided, having considered all the material before it, was that W had reached the point where he could live in the community provided suitable support arrangements could be made. Critical among those arrangements was the accommodation and the professional oversight there provided. It was this that the respondent was left to try and implement. Mr Gordon argues that the respondent should have funded Westfield House within a few months. He points out that in the end the respondent did fund it following the decision of the March 2002 tribunal. The underlying trend of his argument is that the July 2001 tribunal had closed down the issue whether W should be moved to a less secure hospital before being discharged into the community. To an extent it had, but (and this is the important point) only provided satisfactory arrangements could be made either for him to stay at Westfield House or somewhere similar. I cannot therefore accept Mr Gordon’s argument.

The final point on this aspect to the case is whether any conclusion can be reached or inference be drawn from the fact that the March 2002 tribunal directed W’s discharge on condition that he reside at Westfield House under the supervision of Dr Soliman. In my view it cannot. Time had then moved on, a new tribunal made its decision on the basis of the evidence then available to it. Unfortunately W had to be readmitted to Wathwood Hospital in the summer of 2002, but this was due to a deterioration in his mental state for reasons that are not relevant to the issues in this appeal.

Accordingly I conclude that the respondent was not in breach of its duty under section 117 of the 1983 Act to provide after-care for W. It did its best in difficult circumstances.

The Master of the Rolls said in K at para 34 that if a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a tribunal considers to be a prerequisite to the discharge of the patient from hospital, he did not consider that the continued detention of the patient in hospital would violate the right to liberty conferred by article 5. Those words seem apt to the present case.

A breach of the section 117 duty does not of itself give rise to a cause of action on the part of the aggrieved patient. See Clunis v Camden and Islington Health Authority [1998] QB 978. It was in these circumstance that Mr Gordon’s directed his sights on article 5(5) of the ECHR which provides that everyone who has been the victim of detention in breach of article 5 has an enforceable right to compensation. He referred us to section 8 of the Human Right Act 1998 giving a right to bringsuch a claim in the English Courts and reminded us that it is not necessary to identify a tort. In the lower court it was nevertheless suggested that the respondent had committed the tort of false imprisonment. The reason for putting the claim in this way was, it was frankly admitted, because of the perception that damages under the Human Rights Act 1998 might be of a lower order than those for a tortious award. Following the decision of the Court of Appeal in Anufrijeva and anor v London Borough of Southwark and ors [2004] 1 ALL ER 833 I do not regard such a perception as well-founded.

There was no unlawful imprisonment, as seen through the eyes of domestic law, in this case and, like the judge, I agree that such a claim does not reach first base. Mr Gordon’s argument, however, focused on the Human Rights Act. He submitted that if the respondent was responsible for W’s continuing detention it did not matter that it was not the detaining authority. He referred to Martin v Watson [1990] AC 74.

Mr Gordon submits that the respondent was in breach of its obligations under articles 5(1)(e), 5(4) and 8 of the ECHR (although he did not suggest article 8 added anything to article 5) as well as its domestic law duty under section 117 of the 1983 Act. In my judgment the ECHR places no greater obligations upon a section 117 after-care authority than domestic legislation. Provided the authority uses its best endeavours to fulfil the conditions imposed by the tribunal it will meet its obligations both under section117 and the Convention. The respondent’s involvement in this case arose solely because it was the section 117 authority and for no other reason. It was neither the detaining authority nor the body to whom W could look for review of the lawfulness of his detention. The former was Wathwood Hospital; the later the MHRT. There is an interesting discussion by Buxton and Sedley L.JJ In K about the ambit of the article 5 duties in mental health cases (see especially paragraphs 47-55) but it does not in my judgment bear on the outcome of the present appeal. A section 117 authority is not concerned with whether the Winterwerp criteria are established and whether it is appropriate to detain a person in a mental hospital. That is the job of the tribunal. The section 117 authority’s obligation is no more than to use its best endeavours loyally to give effect to the tribunal’s decision. The article 5(4) obligation rests not on the section 117 authority but on the tribunal itself: see for example R (KB) v Mental Health Review Tribunal (2002) 5CCLR 458.

Mr Jay submits that even if there was a breach of article 5 on the facts Mr Gordon is shooting at the wrong target in seeking to recover damages from the respondent. He submits that the hospital detaining W could not have acted differently under domestic law. It is not logical, he argues, to be unable to proceed against the detaining authority and yet recover damages against a third party. The true remedy against a section 117 body is judicial review and not damages. He further submits that the Martin v Watson does not extend to false imprisonment: see Davidson v Chief Constable of Wales and another [1994] 2 ALL ER 597. Just as the claimant in that case was imprisoned without a remedy, so it would be with W.

I can see the force of these arguments. I do not think that W is able to identify the respondent as a public authority liable for his detention under article 5. But I do not think the case ever gets as far as this because in my view the respondent did nothing to cause the unlawful detention of W. It neither knowingly tried to nullify the decision of the tribunal nor failed to use its best endeavours to implement the conditions it had directed.

Conclusion

Mance LJ: I agree with Scott Baker LJ in his reasoning and conclusions, and add only a few words of my own. Scott Baker LJ has outlined in paragraphs 36 and 37 the rival submissions about the relevant categories into which a Tribunal's order may be placed. I confess that I do not find the way in which either side sought to categorise the possibilities as entirely helpful. But the key lies in careful reading of R(IH) v. Home Secretary [2002] EWCA Civ 646, approved in the House of Lords as [2003] UKHL 1278.

The central question is whether the Winterwerp criteria for detention are satisfied. If a person is no longer suffering from any mental illness, these criteria are clearly not met. If someone is still suffering from mental illness, they may or may not be met. It may still be possible to release the person in question into the community, either unconditionally or in the expectation that he or she will receive treatment there under appropriate conditions. In the latter case, there are two alternative possibilities. Upon true analysis, the provision of the expected treatment either may or may not be regarded by the Tribunal as an essential pre-requisite of discharge from detention: contrast paragraphs 91 and 96 of the Master of the Rolls' judgment in R(IH) v. Home Secretary [2002] EWCA Civ 646, quoted in and approved in the House of Lords at [2003] UKHL 59, paragraphs 24 and 28.

If such treatment is an essential pre-requisite of discharge (as it was in IH), but it proves impossible to provide, then continuing detention is lawful, although the impossibility of providing the treatment envisaged by the Tribunal means that the matter will have to return to the Tribunal for reconsideration: [2003] UKHL 59, paragraph 27. If such treatment is not an essential pre-requisite to discharge, then, although discharge may be delayed for a period while efforts are made to arrange the expected treatment, discharge cannot be unreasonably delayed, even if it proves impossible to arrange it: see Johnson v. UK (1997) 27 EHRR 296.

I agree with Scott Baker LJ, that, although we do not have the benefit of any amplification of the present Tribunal's thinking along the lines provided by the Chairman, Miss Diana Cotton QC, of the Tribunal in IH, the better analysis is that the Tribunal in its decision dated 9th July 2001 was treating residence at appropriate accommodation approved by Dr Soliman and Ms Arnell-Smith as an essential pre-requisite to release; and that the respondent used its best endeavours under s.117 of the Mental Health Act 1983 to provide this.

I also agree with Scott Baker LJ that, even if this were wrong, the respondent is not shown to have been in breach of its duty under s.117 to use best endeavours to identify and arrange such accommodation with reasonable speed.

Judge LJ: I agree with both judgments.

Under CPR 39.2 reporting restrictions apply prohibiting the publication of the appellant’s name or any other information that would lead to the identification of the appellant.

Appeal dismissed.

Costs of the appeal to be subject to detailed assessment if not agreed and paid by the appellant to the respondent, but determination of the appellant’s liability for the payment of such costs to be postponed pending further application.

Costs of the appellant to be subject to a detailed Community Legal Services funding assessment.