AL, R (on the application of) v Secretary of State for the Home Department

The issues in this case concern the legality of the recall to hospital by the Secretary of State under section 42(3) of the Mental Health Act 1983 (“MHA”) of a person who was the subject of an order under section 5(1)(a) of the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”) and the legality of the detention of that person in hospital between recall and the subsequent determination by a Mental Health Review Tribunal (“MHRT”) under section 72 of the MHA. The case came before this court initially as an adjourned application for permission to appeal, on notice to the respondent, but such permission was granted at the hearing which then dealt with the substantive appeal. The appellant had failed before Collins J to obtain judicial review of the decisions of the Secretary of State to recall and detain.

The facts are not complicated. In March 1991 the appellant, who was then aged 23, killed his 17 year old girlfriend by beating her savagely about the head with an iron bar. He appeared before the Crown Court in September 1991, charged with murder, but a verdict was returned by the jury of not guilty by reason of insanity. As a result the court was required by section 5(1)(a) of the 1964 Act (which at that time had not been amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) to make an order that he be admitted to hospital. By paragraph 2(1) of Schedule 1 of the 1964 Act in its unamended form, such a person

Since then the Mental Health Act 1959 has been replaced by the MHA and the 1964 Act has been amended to give the court somewhat wider powers, but it is not suggested that either of these statutory changes has any real significance for the purposes of this case. The upshot is that the appellant was to be treated for the purposes of the MHA “as if he had been … admitted” in pursuance of a section 37 hospital order together with a section 41 restriction order without limitation of time.

As was his right, the claimant made applications from time to time to a Mental Health Review Tribunal. The first such application was considered in July of 1994 and the Tribunal then decided that he should not be discharged because he continued to suffer from mental illness of a nature and degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment, the evidence from the RMO then being that he suffered from a schizophreniform illness which led to the commission of the murder. But it was also noted that there were some psychopathic features in his personality.

In April 1995, another MHRT concluded that it was not satisfied that he was not suffering from “mental illness or psychopathic disorder” of the requisite nature and degree and refused to direct his discharge. In March 1996 an MHRT again refused to direct his discharge because of his “mental illness”. In 1997 an MHRT ordered that there should be a conditional discharge. Unfortunately the conditions could not be fulfilled and so the discharge did not take place. There was a further application which was heard in April 1998. Again the Tribunal ordered a conditional discharge but again the conditions were not able to be met.

Then on 28 March 2000, after a further hearing, there was a further order for his conditional discharge, deferred until arrangements had been made to meet the conditions. The MHRT in its decision stated:

All then seemed to go reasonably well until early 2004, when the doctor who was supervising the appellant became very concerned. It came to light that the appellant had formed a relationship with a vulnerable 17 year old girl and had concealed this from his care team for some months. His engagement with his care team was partial at best and he was continuing to abuse drugs. His relationship with the vulnerable girl had only come to light through the actions of another restricted patient who had informed the girl of the claimant’s past. He had thereupon threatened this other patient through a text message. There were concerns for the safety of the girl because there were reports that he had detained her against her will on at least one occasion, and there was real concern that a set of circumstances and a pattern of behaviour was developing that mirrored those at the time that he had killed his girlfriend back in 1991. As a result on 4 February 2004 the Secretary of State issued a warrant for the recall of the appellant under section 42(3) of the MHA to Ashworth Hospital. A subsequent letter from the Home Office to the appellant’s solicitors stated that the decision to recall had been taken on the basis that there was an emergency, because of a potentially very serious and imminent risk to others.

Once a patient has been recalled, the Secretary of State must refer the case to an MHRT within one month: section 75(1)(a) of the MHA. In fact, the Secretary of State in the present case referred the matter on 11 February 2004, seven days after recall. There is then an eight week time limit within which the MHRT must fix a date for hearing. A hearing fixed for 1 April 2004 was stayed at the appellant’s request and, unhappily, due to the present proceedings it had not taken place at the time of the hearing before us.

There is in fact no challenge by the appellant to the recall to hospital on an emergency basis. It is accepted that there was evidence supporting the concerns which gave rise to that recall. But that was on an emergency basis pending the obtaining of a medical report about his up-to-date mental condition. A medical report was produced for the Secretary of State on 3 March 2004 by the appellant’s RMO, Dr Croy. In that report, Dr Croy gave it as her opinion that there were no symptoms of mental illness and that the appellant was not detainable under the classification of mental illness. However, she also concluded that he had psychopathic disorder, which was chronic and likely to persist. She considered that his psychopathic disorder was currently of a nature and degree to warrant in-patient hospital treatment and the risk to others made it appropriate for him to remain detained in the interests of his own health and for the protection of others.

That report forms the linch-pin of the appellant’s case. It is contended on his behalf that his continued detention under Part III of the MHA became unlawful once the Secretary of State had received that report, indicating that the appellant no longer suffered from mental illness. This is not because there is any suggestion that there would be a breach of Article 5 of the European Convention on Human Rights: Miss Foster, Q.C., who appears on behalf of the appellant, accepts that the criteria for lawful detention of a person of “unsound mind” under Article 5(1)(e), as spelt out in Winterwerp v. The Netherlands [1979] 2 E.H.R.R. 387 and summarised in Kay v. United Kingdom 40 BMLR 20, paragraph 47, were met. There was clear evidence from Dr Croy of a mental disorder of a kind or degree warranting compulsory confinement.

The case for the appellant turns upon the provisions of domestic law and in particular upon the MHA itself. In essence the argument is that, save in an emergency and then only for a limited time, the Secretary of State’s power to recall and detain a restricted patient can only be used where the patient is found to be suffering from the same form of mental disorder which was the foundation of his original detention in hospital. Miss Foster draws attention to the provisions of section 37 of the MHA, which gives to the courts the power in certain circumstances to make a hospital order, after a person has been convicted of an offence punishable with imprisonment. By section 37(2)(a), a hospital order may only be made where

Thus, where a section 37 order is made, the patient will have a “classified” mental disorder, which is the disorder justifying his detention. It is pointed out that such a classification concept is followed through in those provisions of the MHA dealing with the powers of MHRT’s, such as section 72(1), and in particular it can be seen in section 72(5). That is the provision which empowers an MHRT to” reclassify” a patient. Section 72(5) provides as follows:

Reliance is placed by the appellant on the decision of this court in R (on the application of B) v. Ashworth Hospital Authority [2003] EWCA Civ 547. That was a case where B had been convicted of manslaughter and had been made the subject of a section 37 hospital order and a section 41 restriction order. The court specified “mental illness” in the hospital order as the form of mental disorder from which B was suffering. At no time did the court specify “psychopathic disorder” as the form of mental disorder, nor was he reclassified to that effect by an MHRT. The issue which arose was whether B could be compulsorily treated under section 63 for psychopathetic disorder which the clinicians subsequently diagnosed. There is no restriction in the wording of section 63, which merely refers to the patient’s consent not being required for any treatment “for the mental disorder from which he is suffering”, but this court concluded that the statutory context was such that the patient could only be treated compulsorily for the form of mental disorder for which he was being detained.

In the course of his leading judgment, Dyson LJ stated that

The same approach, submits Miss Foster, should be adopted towards the Secretary of State’s recall powers contained in section 42(3) of the MHA, which provides

It seems to me that this whole line of argument meets an immediate and formidable obstacle in a case where the patient was originally admitted to and detained in hospital as the result of an order made under section 5(1)(a) of the 1964 Act, after a jury has returned a special verdict of “not guilty by reason of insanity”. In such a case, there is no process of identifying the particular form of mental disorder which exists, unlike the situation where a section 37 hospital order is actually made. Section 37(7), requiring the form or forms of mental disorder to be specified in the order, does not apply. Nor is it a requirement that the accused’s mental disorder be one which treatment in hospital is likely to alleviate or prevent from deterioration. There has to be medical evidence that the accused was labouring under

Miss Foster’s response to this problem was to point to the words “as if” in paragraph 2(1) of Schedule 1 to the 1964 Act, in the passage stating that a person admitted in pursuance of a section 5 order shall be treated for the purposes of the MHA “as if he had been so admitted in pursuance of a hospital order within the meaning of that Act”. In other words, he is to be treated as if a hospital order had been made under section 37, and it is contended that this implies that some classification of his mental disorder must have been or must be made. When pressed as to who makes this classification and under what power, Miss Foster’s reply was that it is made by the doctors in the hospital, though she was unable to point to any legal power conferred on them to carry out such a classification.

I find this argument unpersuasive. This is a statutory scheme, and if doctors in the mental hospital were to have the power to make a classification of the importance contended for by the appellant, one would expect to find it in the statute. Yet the MHA gives them no such power. Moreover, if they did have such a power, the case of B would have been decided the other way. The whole point of that case was that it was not enough for the clinicians to have diagnosed a particular form of mental disorder: it is for a court or an MHRT to classify a patient’s form of mental disorder. Yet in the present case Miss Foster expressly disclaims any argument based upon any possible classification or re-classification by an MHRT. In the circumstances, it is scarcely surprising that she cannot point to any official document containing a classification of the appellant’s form of mental disorder. I would therefore reject any argument to the effect that there can be a classification merely through conclusions reached at some particular point in time by the hospital doctors.

This means that there was no classification of the appellant’s form of mental disorder, and in that situation the appellant’s case must fail. It is, furthermore, a misinterpretation of the case of B to read it as saying that in every case of a patient detained under Part III of the MHA there must be a classification of a particular form of mental disorder. The decision in B is entirely understandable, given the statutory requirement in a normal section 37 case for there to be agreement between two medical practitioners as to the particular form of mental disorder from which the offender is suffering: see section 37(7) ante. That requirement would have been rendered of little importance if a clinician’s subsequent diagnosis could have allowed the compulsory treatment of the offender for some different form of mental disorder. But it is quite clear from reading Dyson LJ’s judgment in that case that he was not seeking to deal with the position of those who had been made the subject of an order under section 5 of the 1964 Act because they had been found not guilty by reason of insanity. The judgments in B contain not a single reference to section 5 or those detained under it. It simply was not concerned with such cases.

Merely because the 1964 Act, Schedule 1, paragraph 2(1) speaks of section 5 detainees being treated “as if” admitted in pursuance of a section 37 order cannot overcome these problems in the appellant’s argument. The purpose of those words is to apply the safeguards of the MHRT regime to such persons, so that they can apply to have their case considered by such a tribunal. The words also mean that the Secretary of State’s powers in respect of recall after conditional discharge operate. But they cannot somehow imply a classification of the detainee’s mental disorder which has not otherwise been made.

It seems to me, therefore, that in the case of someone like the appellant who is detained under section 5 of the 1964 Act, this argument based upon the classification of a particular form of mental disorder cannot succeed. It falls at the first fence. For that reason alone I would dismiss this appeal.

However, we have been addressed by the parties, particularly by Mr Ward for the Secretary of State, on a wider issue relevant to the Secretary of State’s powers of recall under section 42(3) in respect of all those detained in a mental hospital on a restricted basis, whether under section 5 of the 1964 Act or because there is a restriction order in force under section 41 of the MHA. The Secretary of State’s contention is that his powers of recall are not confined to the situation where a patient who has been conditionally discharged is then found to be suffering from the same particular form of mental disorder that he was classified as having before discharge. Since we have heard extensive argument on this wider issue, I propose to address it briefly, even though to do so is not strictly necessary for a decision in this case.

Section 42(3) is expressed in wide terms, as can be seen from paragraph 15 above. It contains no express limit on the Secretary of State’s power of recall. Mr Ward argues that the width of that power of recall is not cut down by the principle set out in the case of B, which is concerned with the situation of a patient while he is in hospital. Someone who has been conditionally discharged may well have been found by an MHRT in its most recent decision not to be suffering from any form of mental disorder at all at the time of the tribunal’s decision, and to have been suffering prior to that time from different forms of disorder from time to time. His classification, in other words, may have changed over time and then finally have disappeared in effect on discharge. What then, asks Mr Ward, is to be seen as his classified form of disorder?

Reference is also made on behalf of the Secretary of State to the purpose of a restriction order, which is relevant because conditional discharge only operates in cases of restricted patients. It is emphasised that such orders are intended to protect the public from serious harm. If a patient conditionally discharged is found to be suffering from a mental disorder, the danger to the public may exist whether that disorder is of the particular kind originally classified in his case or of another kind. Mental disorders are not always capable of being neatly put into one classification or another. Sometimes a disorder may sit on the boundaries of two particulars forms and the diagnosis may alter over time. None of that reduces the potential danger to the public. Mr Ward submits that, if the appellant were right, there would be a dangerous lacuna in the Secretary of State’s powers.

I agree. A restricted patient may, before being conditionally discharged, have gone through several classifications/re-classifications of his mental disorder as a result of MHRT decisions. While in the community after having been conditionally discharged, he may suffer a recurrence not of the form most recently diagnosed but of an earlier classified form of mental disorder. I can see no reason why the Secretary of State’s powers of recall should not operate in such circumstances. There is a significant safeguard of the patient’s rights in the requirement that the Secretary of State must refer the case to an MHRT within one month: see section 75(1)(a).

The decision in B has no bearing on the power of recall. It was solely concerned with the power of compulsory treatment of a person while detained in hospital. It does not require the discharge of a recalled patient in the period between a medical diagnosis and any formal classification of the patient by an MHRT. The dangers to the public, were discharge to be required in such circumstances, are self-evident. Those dangers may be reduced by the existence of the “civil” procedures for admission to hospital contained in Part II of the MHA, but if the patient is not detained under the authority of the warrant of recall but only under those civil powers, a very different regime applies. In particular, the Secretary of State’s powers are very much more limited: see Dlodlo v. MHRT for South Thames Region [1996] 36 BMLR 145, per Sir Thomas Bingham, MR, paragraph 2. In any event, the mere fact that such civil procedures exist provides no grounds for arguing that the Secretary of State’s powers of recall are limited in the way contended for by the appellant. Consequently, even if the appellant had been the subject of express section 37 and section 41 orders, I would have held that his appeal should fail.

It follows that I would dismiss this appeal.

I agree.

I also agree.