The Secretary of State for Justice v RB & Anor

The respondent, RB, is 75 years old. RB suffers from a persistent delusional disorder. On the medical evidence, his condition is ongoing and it is still appropriate for him to be detained. He is in detention in a mental hospital. He is a “restricted patient” for the purposes of the Mental Health Act 1983 (“the MHA”), that is to say, on his conviction in 1999 for indecent assault, the Crown Court imposed a “restriction order”. One of the effects of that order is that he is liable to be detained indefinitely until he is discharged either by the Secretary of State for Justice or a mental health review tribunal, now the First Tier Tribunal (see MHA, section 41, set out in paragraph 20 below).

The issue on this appeal arises out of the following development relating to the care of RB. The medical experts are satisfied that he could be cared for in a location with less security than a mental hospital, but that his transfer to that institution would need to be subject to conditions, including a condition that he should have only escorted access to the community. So the most he can hope for is a conditional discharge. Before the Upper Tribunal (Carnwath SPT, HHJ Sycamore CP and UTJ Rowland), RB succeeded in obtaining an order pursuant to section 73 of the Mental Health Act 1983 ("the MHA”) that he should be conditionally discharged into the community to reside in a care home. However, the conditions imposed on him would inevitably still amount to a deprivation of his liberty. Nonetheless, RB is agreeable to that course and the medical practitioners caring for him support it also. No doubt his quality and enjoyment of life would improve as a care home would be a more pleasant and congenial place to live than a mental hospital. The Secretary of State for Justice, however, appeals against that order and contends that section 73 confers no power to make an order of this kind. I set out section 73 in paragraph 23 below.

One of the purposes of the MHA was to give effect to the rights guaranteed by the European Convention on Human Rights (“the Convention”) for the benefit of a person subject to compulsory detention on the grounds of his mental disorder. As the Senior President and HHJ Sycamore held at paragraph 15 of their joint judgment:

“Until the 1983 Act, tribunals only had an advisory role in relation to restricted patients. Although a patient was entitled to have his case referred to a tribunal, the role of the tribunal was limited to providing advice to the Secretary State. The ultimate decision as to whether or not to discharge rested with the Secretary of State. ”

Even if this were not its purpose, the MHA would, in any event, have to be interpreted so far as possible so as to be compatible with Convention rights, there being no contrary indication: see Human Rights Act 1998, section 3 and see generally the leading case of Ghaidan v Godin-Mendoza [2004] 2 AC 557.

The relevant Convention rights include the right to security and liberty guaranteed by article 5 of the Convention, and the starting point for any discussion in this case is, therefore, article 5, which so far as relevant provides as follows:

“Article 5
Right to liberty and security

1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(e)

the lawful detention … of persons of unsound mind…

…

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

RB is entitled to the full benefit of article 5. It has not been suggested that the mental illness suffered by RB is not such as to render him “of unsound mind” for the purposes of article 5.

In the case of detention of persons in the position of RB, compliance with article 5 entails extensive procedural guarantees. In the landmark case of Winterwerp v The Netherlands (1979-1980) 2 EHRR 387, the Strasbourg Court held that the arbitrary detention of a person of unsound mind would be unlawful. This, in effect, is the organising principle and accordingly, detention had to be justified by objective medical evidence warranting compulsory detention. Moreover, the detention had to be in accordance with domestic law, as interpreted by the national court, but the Strasbourg court could review the domestic law for compliance with the Convention. That was an application of the Strasbourg court’s doctrine of subsidiarity. Under this doctrine, which underlies the whole of the Convention, the contracting states have primary responsibility for enforcing Convention rights (see article 1 of the Convention). The jurisdiction of the Strasbourg court is supervisory, and applies where a contracting state has failed to fulfil its obligations. Consistently with its supervisory role and as one of the ways open to it of applying the doctrine of subsidiarity, the Court may, save of course in the case of the absolute rights (such as the right to life), discharge its role by defining what needs to be done by the contracting state in order to fulfil a Convention right within its own jurisdiction by laying down minimum safeguards applicable to all the contracting states. The methods of implementation of those minimum guarantees is then left to the contracting states. Winterwerp is an example of such a case.

In particular, in order to comply with article 5(4), the Strasbourg court held that:

“The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals”. (paragraph 55)

Moreover, this review had to be a suitable judicial procedure. As to the nature of that procedure the Court held:

“The judicial proceedings referred to in Article 5 para. 4 (art. 5-4) need not, it is true, always be attended by the same guarantees as those required under Article 6 para. 1 (art. 6-1) for civil or criminal litigation (see the above-mentioned De Wilde, Ooms and Versyp judgment, p. 42, para. 78 in fine). Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty" (see the last-mentioned judgment, p. 41, para. 76). Mental illness may entail restricting or modifying the manner of exercise of such a right (see, as regards Article 6 para. 1 (art. 6-1), the above-mentioned Golder judgment, p. 19, para. 39), but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.” (emphasis added)

The Strasbourg court, therefore, in harmony with the doctrine of subsidiarity, permitted national law to derogate from the right of access to court in the light of the patient’s mental illness, provided that the very essence of the right was not destroyed. As it said at the end of its judgment:

“While, as has been indicated above in connection with article 5(4) (see paragraphs 60 and 63), mental illness may render legitimate certain limitations upon the exercise of the "right to a court", it cannot warrant the total absence of the right as embodied in article 6 (1)”. (paragraph 75)

In the subsequent case of HL v United Kingdom (2005) 40 EHRR 32, a person was detained informally as a voluntary mental patient, and he later complained that his detention had violated article 5(4) of the Convention because he had not had any right to test the legality of his detention as the statutory right of review did not apply to a person in his position. His complaint was upheld. The Strasbourg court emphasised that it was not enough that these conditions were in fact observed. It held that these conditions had to be clearly laid down in domestic law. It therefore rejected the argument of the United Kingdom government that:

“Consensual non-imposed treatment was considered more likely to attract a degree of co-operation from the patient and to be beneficial. Furthermore, informal admission and treatment were in the incapacitated patient’s best interests and treated that person with the required dignity.” (paragraph 80).

The requirement that the procedures be enshrined in the law are a practical safeguard against arbitrary conduct by any arm of the state. Moreover the high value which the Strasbourg court attaches to the procedural guarantees secured by article 5(4), and to strict compliance with legal certainty as to the existence of those guarantees, can be clearly seen from the Strasbourg Court’s judgment in HL, and in particular from the following observations:

“90… The Court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action….

120.

In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act (see paragraphs 36 and 54 above) is, in the Court’s view, significant.

In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The appointment of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities.”

The process of determining whether a person has been deprived of his liberty, which was a point which was accorded great weight below, is highly fact-sensitive. The Strasbourg court noted in HL that:

“The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.” (paragraph 89)

The decisions in Winterwerp and HL demonstrate that under Strasbourg jurisprudence the following four conditions, at the least, must be satisfied in order for the detention of a person of unsound mind to be lawful and his discharge refused:

Leaving aside the arguments on section 73 which lie at the heart of this case, this court has not been shown any instance of a departure in the MHA from these requirements. Additional conditions were added, in particular that the treatment should be available. I would add that there have been various minor amendments to the MHA since its enactment. In this judgment, unless otherwise indicated, references to the provisions of the MHA are to those provisions as now in force.

The main power to detain those with mental disorders is contained in section 3 of the MHA. This specifies the criteria to be fulfilled as follows:

“3  Admission for treatment

(1)

A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2)

An application for admission for treatment may be made in respect of a patient on the grounds that—

(a)

he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b)

. . .

(c)

it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and

(d)

appropriate medical treatment is available for him.

(3)

An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a)

such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and

(b)

a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

(4)

In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.”

The term “hospital” is widely defined in the MHA and includes certain independent hospitals (see sections 34(2) and 79(6) of the MHA). The requirement in the MHA that the patient’s condition must be capable of treatment extends the Winterwerp conditions and thus further limits the basis of detention permitted by the MHA.

Section 17 deals with leave of absence and section 19 with transfers by the Secretary of State to other institutions. Section 17(1) provides:

“17  Leave of absence from hospital

(1)

The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons.”

Section 19 provides:

“19  Regulations as to transfer of patients

(1)

In such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State—

(a)

a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may be transferred to another hospital or into the guardianship of a local social services authority or of any person approved by such an authority;

(b)

a patient who is for the time being subject to the guardianship of a local social services authority or other person by virtue of an application under this Part of this Act may be transferred into the guardianship of another local social services authority or person, or be transferred to a hospital.

(2)

Where a patient is transferred in pursuance of regulations under this section, the provisions of this Part of this Act (including this subsection) shall apply to him as follows, that is to say—

(a)

in the case of a patient who is liable to be detained in a hospital by virtue of an application for admission for assessment or for treatment and is transferred to another hospital, as if the application were an application for admission to that other hospital and as if the patient had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application;

(b)

in the case of a patient who is liable to be detained in a hospital by virtue of such an application and is transferred into guardianship, as if the application were a guardianship application duly accepted at the said time;

(c)

in the case of a patient who is subject to guardianship by virtue of a guardianship application and is transferred into the guardianship of another authority or person, as if the application were for his reception into the guardianship of that authority or person and had been accepted at the time when it was originally accepted;

(d)

in the case of a patient who is subject to guardianship by virtue of a guardianship application and is transferred to a hospital, as if the guardianship application were an application for admission to that hospital for treatment and as if the patient had been admitted to the hospital at the time when the application was originally accepted.

(3)

Without prejudice to subsections (1) and (2) above, any patient who is for the time being liable to be detained under this Part of this Act in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006, in a hospital vested in the Welsh Ministers for the purposes of their functions under the National Health Service (Wales) Act 2006, in any accommodation used under either of those Acts] by the managers of such a hospital or in a hospital vested in a National Health Service trust, NHS foundation trust, Local Health Board or Primary Care Trust, may at any time be removed to any other such hospital or accommodation which is managed by the managers of, or is vested in the National Health Service trust, NHS foundation trust, Local Health Board or Primary Care Trust for, the first-mentioned hospital; and paragraph (a) of subsection (2) above shall apply in relation to a patient so removed as it applies in relation to a patient transferred in pursuance of regulations made under this section….”

Where, as in this case, a person has committed a serious criminal offence, the court sentencing him may, if the Winterwerp conditions are fulfilled, make a hospital order under section 37 of the MHA. Section 37, so far as material, provides:

“37  Powers of courts to order hospital admission or guardianship

(1)

Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law [. . .. . .], or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

…

(2)

The conditions referred to in subsection (1) above are that—

(a)

the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—

(i)

the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or

(ii)

in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b)

the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”

The Crown Court can, at the same time, make a restriction order under section 41, which provides:

“41  Power of higher courts to restrict discharge from hospital

(1)

Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section. . .; and an order under this section shall be known as “a restriction order”.

(2)

A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

(3)

The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—

(a)

none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;

…

(c)

the following powers shall be exercisable only with the consent of the Secretary of State, namely—

(i)

power to grant leave of absence to the patient under section 17 above;

(ii)

power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection (3) of that section; and

(iii)

power to order the discharge of the patient under section 23 above;

and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and

(d)

the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.

(4)

A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time.

(5)

Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.

(6)

While a person is subject to a restriction order the responsible clinician shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.”

If a restriction order is made, the Secretary of State has the extensive powers conferred by section 42 of the MHA:

“42 Powers of Secretary of State in respect of patients subject to restriction orders

(1)

If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.

(2)

At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(3)

The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant.

(4)

Where a patient is recalled as mentioned in subsection (3) above—

(a)

if the hospital specified in the warrant is not the hospital from which the patient was conditionally discharged, the hospital order and the restriction order shall have effect as if the hospital specified in the warrant were substituted for the hospital specified in the hospital order;

(b)

in any case, the patient shall be treated for the purposes of section 18 above as if he had absented himself without leave from the hospital specified in the warrant. . ..

(5)

If a restriction order in respect of a patient ceases to have effect after the patient has been conditionally discharged under this section, the patient shall, unless previously recalled under subsection (3) above, be deemed to be absolutely discharged on the date when the order ceases to have effect, and shall cease to be liable to be detained by virtue of the relevant hospital order accordingly….”

A person detained under section 3 of the MHA may be given leave of absence (MHA, section 17) or he may be discharged on medical advice. Alternatively, an application may be made to a tribunal which, under section 72 of the MHA, must order a discharge if the conditions for admission to hospital under section 3 are no longer satisfied:

“72  Powers of tribunals

(1)

Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—

(a)

the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied—

(i)

that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii)

that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

(b)

the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—

(i)

that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(ii)

that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or

(iia)     that appropriate medical treatment is available for him; or

(iii)

in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself;

…

(3)

A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—

(a)

with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

(b)

further consider his case in the event of any such recommendation not being complied with.”

Section 72(3) enables the tribunal to make recommendations for a transfer to another hospital. By contrast, where a restriction order has been made under section 41, the consent of the Secretary of State is needed for matters such as the grant of leave of absence and the patient can only be discharged by the Secretary of State or the tribunal under section 73 of the MHA. Section 73 provides in material part:

“73  Power to discharge restricted patients

(1)

Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—

(a)

the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and

(b)

the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2)

Where in the case of any such patient as is mentioned in subsection (1) above—

(a)

paragraph (a) of that subsection applies; but

(b)

paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient.

(3)

Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4)

Where a patient is conditionally discharged under this section—

(a)

he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and

(b)

the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.

(5)

The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.

(6)

Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.

(7)

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 its 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 before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.

(8)

This section is without prejudice to section 42 above.”

The conditions referred to in section 73(1)(a) mirror the detention criteria in section 3 MHA. As Roch LJ put it in his dissenting judgment in Reg. v. Canons Park Mental Health Review Tribunal, Ex parte A [1995] QB 60 at 77, cited with approval by Lord Hope in Reid v Secretary of State for Scotland [1999] 2 AC 512 at 528, it is evident from section 72 that:

“The policy of the Act, in relation to patients with psychopathic disorders, is treatment not containment.”

The same would apply to other types of mental disorder. Under section 72(3)(a), a tribunal may choose to make recommendations for the transfer of a patient not subject to a restriction order to another hospital, but there is no provision for it to do so under section 73 in the case of a restricted patient.

The effect of an absolute discharge is that the hospital order ceases to have effect: section 42(2) (in the case of an absolute discharge granted by the Secretary of State) and section 73(3) (in the case of an absolute discharge ordered by the tribunal). However, a person who is conditionally discharged remains liable to recall: section 42(3) (in the case of a conditional discharge granted by the Secretary of State) and section 73(4) (in the case of a conditional discharge ordered by the tribunal). Sections 42 and 73 make no reference to detention otherwise than in a hospital, and this would indicate that Parliament did not contemplate that on discharge a patient should be detained in an institution which was not a hospital. Had it been intended that there should be detention in an institution other than a hospital (as defined), the proper inference from the statutory scheme and its background is that Parliament would have ensured that the Winterwerp conditions were satisfied in relation to that detention also.

The MHA contains further provisions for the protection of mental patients, including restricted patients, specifically during their detention. The MHA provides for detained patients to have a right of review once a year. When a patient has been conditionally discharged, however, he can only approach the tribunal for a review of his conditional discharge every two years (section 75(2)). If the decision of the Upper Tribunal (set out at paragraphs 33 to 37 below) stands, then conditions can be imposed which continue to deprive him of his liberty, and yet he has an inferior right of review. Judicial review may well not be available because there is an alternative route provided by the MHA (namely review under the MHA, which could occur only at two yearly intervals). Furthermore the provisions for leave of absence in section 17 apply only where the patient is detained in a hospital. In addition, there are provisions that certain medical treatment (such as the removal of brain tissue or electro-convulsive therapy) may not be carried out without the patient’s consent (sections 57 and 58A of the MHA) during his detention but not after a conditional discharge unless he has been recalled. These provisions, however, are likely to be less important for restricted patients seeking conditional discharge to an institution that is not a hospital as defined by the MHA than for those detained in a hospital.

One of the questions to be resolved in determining the extent of the tribunal’s powers of conditional discharge under section 73 is the meaning of the word “discharge” in this context. There is authority on the meaning of discharge for the purposes of section 73, which, as the Upper Tribunal pointed out, was not binding authority of this court.

In Secretary of State for the Home Department v Mental Health Review Tribunal for Mersey Regional Health Authority [1986] 1 WLR 1170, Mann J took the view that a patient could not lawfully be conditionally discharged to another hospital even for the temporary purpose of rehabilitation prior to discharge into the community. He held:

“The word 'discharge', as employed in sections 72 to 75 of the Act of 1983, means, and in my judgment can only mean, release from hospital. The release may be absolute or it may be conditional. It will be conditional in the case of a restricted patient where the tribunal is not satisfied as to the matter in section 73(1)(b), but is satisfied as to the matters in section 72(1)(b)(i) or (ii). A condition requiring that a patient, who is conditionally discharged, should remain in hospital is, in my judgment, inconsistent with the duty to discharge albeit conditionally. Section 73(4)(a), with its reference to 'recall', strongly supports the inconsistency of such a condition with the concept of discharge.” (page 1178)

However, in R(o/a PH) v the Secretary of State for the Home Department [2002] EWHC 1128 (Admin), Elias J doubted whether this was correct. He considered that the test of whether there was a discharge was whether a patient was given back his liberty. On this view, a patient could be discharged within the same hospital provided he ceased to be held on terms that amounted to a deprivation of liberty. It followed that he could be released to another institution that was a hospital on those terms. He held:

“30.

I confess that I am not convinced by the reasoning in this case [the Mersey Regional Health Authority case above], with great respect to the learned judge. In my view, the fallacy is to treat release from discharge as meaning release from hospital. It seems to me that it means release from detention in hospital or sometimes, as I have indicated, from liability to be detained. Release from hospital is neither a sufficient nor a necessary condition for constituting the discharge. If there is such a release but it is to another institution where the patient is detained in the sense that he is deprived of his liberty, then that would not, in my judgment, constitute a proper and lawful discharge. By the same token, in my judgment, if the patient is discharged from detention in a hospital such that he is no longer deprived of his liberty, then there is still an effective discharge notwithstanding that the conditions are such that he is required to reside in another hospital pending further consideration of his absolute discharge. The central issue, it seems to me, is whether or not the conditions constitute a continuing detention. If they do not, it is irrelevant where the patient resides thereafter. Indeed, if it were thought by the tribunal that the only appropriate institution to which a conditional discharge could properly be made was another hospital, it would seem to me to infringe Article 5 of the Convention to refuse that discharge simply because the only available alternative institution was another hospital. Of course, the nature of the conditions imposed requiring discharge to that other hospital may well be such that they do not in fact constitute a release from the deprivation of liberty, but that will be because of the overall effect of the conditions, not because the discharge is from one hospital to another.”

As explained by the Upper Tribunal, this court ([2002] EWCA CIV 1868) took a different view in PH from that taken by the judge on the question whether the patient would, on the facts, inevitably be deprived of his liberty upon transfer. It accepted that there was no power to transfer him from one detaining institution to another. However, Keene LJ, with whom Kay LJ and Sir Anthony Evans agreed, expressly endorsed the view that it would not be possible conditionally to discharge a patient to a hospital unless he was no longer detained (see paragraph 25).

I do not propose to refer to the other decisions of the High Court cited to us as they do not shed further light on the question of the scope of the power of conditional discharge. I merely note the comment of Bean J in IT v the Secretary of State for the Home Department [2008] EWHC 1707 (Admin) that the position in which the Secretary of State prayed article 5 of the Convention in aid of an argument that a patient should be detained in hospital appeared to him to be:

“a curious area of human rights jurisprudence” (paragraph 17).

The decision of the Upper Tribunal is comprehensive and clear and the reasoning has greatly assisted my analysis of the issue in this case. The joint judgment of the Senior President and HHJ Sycamore proceeded on the relevant issue by the following steps. After a very detailed and helpful explanation of the statutory provisions and summary of the domestic case law, the joint judgment observed at paragraph 47 that the Upper Tribunal was not bound by the decision of this court in PH on the meaning of “discharge” in section 73. At paragraph 50, the Senior President and HHJ Sycamore turned to consider that question and held that the natural meaning of “discharge” does not mandate a conclusion that it means a release from a state of detention to one of liberty. They hold:

“50.

The basis of Elias J’s reasoning, as we understand it, is that the word “discharge” itself necessarily connotes release from detention to a state of liberty; and that accordingly, while the patient remains deprived of his liberty, there can be no “proper and lawful discharge”. With respect, we do not think that the word “discharge”, in its ordinary sense, bears that interpretation. The dictionary definitions show that, depending on context, the word may mean “release from custody”, but may also connote release in the more general sense of “dismiss” or “send away”. Thus, in ordinary language, a patient may be “discharged” from hospital, without any connotation that he is being released from deprivation of liberty in the legal sense. In the context of section 72, it seems more natural to read the word “discharge” as meaning simply release from the state there mentioned, that is from “detention in a hospital for treatment.”

The Senior President and HHJ Sycamore agreed with the comment of Bean J, which I have quoted. They then came to the conclusion that Parliament was unlikely to have intended that tribunals should make the fine distinctions necessary to determine whether particular conditions led to a deprivation of liberty:

“53.

The premise for exercise of the tribunal’s powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. The next step is to devise the conditions. At that stage, it is hard to see why the question whether the conditions would amount to detention for the purposes of article 5 should come into it. Even if they do amount to such detention, there will be no breach of Article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by Article 5. The tribunal’s concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. We see no reason why Parliament should have concerned themselves with the fine distinctions which may arise under the Strasbourg case-law on detention. The PH decision itself shows how narrow the dividing-line may be, and indeed that the issue may not be capable of final decision at that stage. It is surprising that a matter going to the jurisdiction of the tribunal to make an order should depend, not solely on the terms of the conditions, but on how they are implemented.”

The Senior President and HHJ Sycamore accordingly came to the view that it should be sufficient that the tribunal could see that the discharge was to an institution, such as a care home, which was not a hospital.

“55.

On the other hand, a qualified PH principle holds good. A tribunal cannot conditionally discharge a person with conditions that amount to detention in a hospital for treatment. That is not because the detention would be an assault on the patient’s human rights but because a finding that such conditions are necessary would be inconsistent with the premise upon which any conditional discharge under section 73 must be based which is that the tribunal is not satisfied as to the matters mentioned in section 72(b)(i), (ii) or (iia).”

The Senior President and HHJ Sycamore thus concluded that the tribunal had power, under section 73, to order a conditional discharge on the terms sought, if it was satisfied that that was in RB’s best interests. They also hold that it was not precluded from making that order by virtue of the fact that (contrary to the First Tier Tribunal’s finding on this question) he would continue to be deprived of his liberty, since he would be discharged to a care home and not a hospital. In fact the Senior President and HHJ Sycamore considered that there was a deprivation of liberty in this case, and they concluded that RB had not (as the First Tier Tribunal had held) given valid and unfettered consent to that course. Accordingly, the Upper Tribunal dismissed the appeal, holding that the tribunal could grant a conditional discharge in RB’s case. They noted that in fact since the hearing before the Upper Tribunal, RB had been moved to a less secure environment. I would merely add that this move formed no part of the argument before this court and has had no influence on my decision.

The concurring judgment of UTJ Rowland discussed the meaning of “hospital”, a question that the joint judgment of the Senior President and HHJ Sycamore left open. UTJ Rowland noted that the term was a very wide one, and that it would cover any institution providing treatment. UTJ Rowland expressed the view that a conditional discharge could not be to another hospital. While it was possible for a patient detained in a hospital to which he was discharged to receive treatment from a source outside the institution, UTJ Rowland clearly contemplated that a conditional discharge could also be to another detaining institution without there being any treatment whatsoever (see paragraph 75). It will be noted that this is inconsistent with the detention criteria in section 3 of the MHA.

The crux of the argument of the Secretary of State on this appeal, for whom Mr Martin Chamberlain appears, is that the decision of the Upper Tribunal cannot be correct because it contemplates a species of detention which is very different from detention for the purposes of the MHA. It is detention in an institution other than a hospital and may be for purposes other than treatment. Mr Chamberlain submits that, when considering an application for discharge, the tribunal must consider whether the detention criteria are still satisfied. If it is not so satisfied, the patient must be absolutely discharged. It cannot in the case of a restricted patient make an order for the transfer of that person from one state of detention to another state of detention although it can make non-statutory recommendations if it wishes to do so, for the Secretary of State to take into account.

Mr Chamberlain adopts the reasoning of Elias J in PH. He submits that references in the MHA to detention are to detention in a hospital, and this is apparent from several sections, such as sections 3, 17, 19 and 37. If there is a new species of detention, the circumstances in which it can be imposed or removed are not set out in the MHA, and so in that respect the MHA does not satisfy the fourth of the Winterwerp conditions. Furthermore, on Mr Chamberlain's submission, there is, on the reasoning of the Senior President and HHJ Sycamore, no requirement to provide medical treatment for the benefit of the patient while conditionally discharged.

Furthermore, submits Mr Chamberlain, there is no logical reason, if detention was capable of being continued through a conditional discharge, why Parliament should have thought it appropriate to have a different minimum time period to elapse between applications to the tribunal: one year in the case of a patient detained in hospital, but two years for a patient who has been conditionally discharged. There would be a violation of article 14 of the Convention taken with article 5. Article 14 provides:

There is, moreover, on Mr Chamberlain’s submission, another procedure available in the case of a restricted patient, namely that of the transfer by the Secretary of State. If the Secretary of State acted unreasonably in refusing to transfer a patient, he could be judicially reviewed.

Mr Chamberlain further submits that it cannot be said that the original hospital order justifies the further detention that would take place during the period of a conditional discharge because the detention authorised by the hospital order was detention in hospital, and it is proposed in this case that RB should be resident in a hostel and not a hospital.

In answer to these submissions, Mr Simon Burrows, for RB, analyses the questions to be answered as (1) whether conditional discharge would satisfy the requirement of legality and (2) whether there would be procedural safeguards in place. As to (1), Mr Burrows submits that the requirements of the Strasbourg jurisprudence derived from article 5 are really about preventing the arbitrary deprivation of liberty. He submits that detention in the circumstances of this case falls far short of that. Moreover, the conditional discharge had to be granted by the tribunal or a judge and the powers of the tribunal are “prescribed by law”. As to (2), Mr Burrows submits that there are adequate safeguards. The patient has a right to have his detention reviewed, albeit on a less frequent basis than that available if he had still been detained in the hospital. Two years is adequate, if he is not confined in a hospital. RB would have a better quality of life in an institution other than a hospital. If his condition deteriorates, he can always be recalled. Mr Burrows further submits that the power to grant leave of absence is not really necessary for those in the community since the conditions imposed by the order for a conditional discharge could be adapted so as to accommodate any need for them to have leave of absence. As to the lack of safeguards attaching to treatment without consent, if RB refused to take his medication, that in itself would be a ground for recall to hospital. Mr Burrows respectfully submits that little weight should be given to the judgment of UTJ Rowland on the new points in his judgment as the Senior President makes it clear that these points were not fully argued.

Mr Burrows further submits that the Senior President and HHJ Sycamore were correct in their approach that tribunals should see as the most important point the question of the best interests of the patient and, in the present case, the best interests of RB are undoubtedly to be conditionally discharged to another institution within the community that supervises his activities when he is in the community outside the institution but allows him a better quality of life.

Mr Burrows is prepared to accept that, in deference to the view of the majority of the Upper Tribunal at paragraph 55, Convention rights require consideration when the order of conditional discharge is made to another hospital, which involves a continued loss of liberty. However, he submits that the requirements of article 5 are satisfied in the present case for the reasons given above.

Mr Burrows leaves open the question whether the original hospital order continues in existence but is suspended during the period of conditional discharge. Mr Burrows has not suggested that RB’s consent could confer jurisdiction on the tribunal to make an order which it does not have jurisdiction to make. Finally, Mr Burrows has not submitted to us that there is any basis on which the period of two years in section 75(2) could be reduced to one year.

In my judgment, the core issue in this case is whether there is any statutory authority for a deprivation of liberty once an order for a conditional discharge has been made. The Strasbourg court has made it clear that such an important matter must be “prescribed by law” (the fourth Winterwerp condition), and that includes a requirement that the grounds on which a person may be deprived of his liberty when an order for conditional discharge is to be made and the grounds on which he is entitled to be released from the conditions imposing a deprivation of liberty must be found in legislation. I call this “the “prescribed by law” issue”.

If the fourth Winterwerp condition is not satisfied, then the question must be asked whether the MHA can nonetheless be read as conferring that authority in a manner which is not compatible with article 5 of the Convention. I will call this “the incompatibility issue”.

If there is authority in the MHA for a conditional discharge to an institution other than a hospital on terms that continue to deprive a patient of his liberty, the further question for determination by this court is whether there is justification for the fact (if it be the case) of the different procedural guarantees given to restricted patients detained in hospitals and those detained in other institutions. I call this “the justification issue”.

I now take each of those issues in turn.

This is the most difficult issue. No person could fail to have sympathy with the decision of the Upper Tribunal in the circumstances of this case. The proposed conditional discharge would no doubt be more beneficial to RB than his continued detention in hospital. There is also the point made by Bean J in the IT case about this being a “curious area of human rights jurisprudence” (paragraph 32 above). The Secretary of State is in the unusual position of seeking to argue against a conditional discharge on the terms sought on the basis of human rights jurisprudence when (a) those terms would produce a more humane result and (b) RB is content with those terms.

At the end of the day, however, I accept the submission of Mr Chamberlain that the original order made against RB authorised, and authorised only, detention in a hospital (see section 37 and section 41(3)(a) of the MHA, set out above). That conclusion seems to me to be the starting point. The consequence of that conclusion is that Mr Burrows is driven to rely for the authority to deprive RB of his liberty on the wording of section 73(2), which is wholly silent on that important point. The right to liberty of the person is a fundamental right. It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the Convention. A person cannot have his right to liberty taken away unless that is the clear effect of a statute: see per Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131:

“Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

It is not enough that the patient is given a right to apply to the court (under section 73) if he does not know the legal basis on which he could lawfully be subjected to an order for conditional discharge to an institution other than a hospital on terms that he continued to be deprived of his liberty: see HL (paragraph 11 above). In this case, section 73(2) would not assist him because the only operative provision would be paragraph (b) of that subsection. The effect of this provision would be, for instance, that a patient who did not need to be detained in hospital for the purposes of any treatment, could be conditionally discharged on terms that involved a deprivation of liberty simply on the basis that the tribunal was not satisfied that it was not appropriate that he should not be liable to be recalled to hospital for further treatment. That provision simply does not address the reasons why in any particular case there is a need for him also to be deprived of his liberty.

The aim of the Strasbourg jurisprudence is, of course, to protect the individual against arbitrary action by the state. But that statement demonstrates important limitations on the jurisprudence. There is no Convention right to a particular type of treatment or care in detention. I would, therefore, dispute the conclusion of Bean J on that basis. If his comment (see paragraph 32 above) were carried to its logical conclusion, Strasbourg jurisprudence would require the UK to provide a particular form of care for a person in RB’s decision. The thrust of that jurisprudence is, however, the provision of certain procedural guarantees as a bulwark against arbitrary detention by the State.

As I have already pointed out, in fact the relevant jurisprudence of the Strasbourg court on this point is moulded by the doctrine of subsidiarity. It has been left to the UK Parliament to decide what is the right place for a person in the position of RB to be detained. That means that, if there is dissatisfaction with the statutory scheme, that is a matter to be taken up in Parliament unless RB can succeed under the next issue. Although a conclusion adverse to that of the Upper Tribunal is less liberal towards the individual, that result (again, unless RB succeeds under the next issue) is in law simply a function of human rights protection based on a international human rights instrument which adopts a principle of subsidiarity.

The points made by Mr Chamberlain underline this point because they show that Parliament could not have intended to create, as he puts it, a new species of detention that is potentially more detrimental to personal liberty than detention under the MHA. This is because the MHA does not specify the circumstances in which a tribunal can order a conditional discharge on terms that there is a deprivation of liberty. Moreover, section 73 appears, on its face, to be wide enough, on the Upper Tribunal’s interpretation, to authorise detention for the purposes of containment rather than treatment, which is contrary to the policy of the MHA (see paragraph 24 above).

If I could have interpreted the power of conditional discharge as authorising the release to another institution (not being a hospital) on terms that there is a continued deprivation of liberty, I would not have treated the absence of conditions “prescribed by law” as required by article 5 as preventing me from reaching that conclusion. That aspect of the matter would merely lead to the conclusion that section 73(2) of the MHA was in those circumstances non-Convention compliant. That leads to the next point.

Although this issue has not been directly raised, I have asked myself whether this court could reach the conclusion that strict compliance with the Winterwerp conditions was not necessary in the circumstances of this case, where RB would benefit from one of the safeguards being abandoned. Under section 2 of the Human Rights Act 1998 this court is bound to take account of Strasbourg jurisprudence. On the face of it that does not mean that this court is bound to follow that jurisprudence unless of course it has been followed in some domestic authority, which is binding on this court. There is some force in the argument that this is just such a case where the courts of the United Kingdom should go their own way and not consider that they are constrained by Strasbourg jurisprudence.

However, the Strasbourg jurisprudence with which this case is concerned is settled jurisprudence: this is not one of those

“rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course.” (R v Horncastle [2010] 2 AC 373 at [11] per Lord Phillips giving the judgment of the Supreme Court)

Although Lord Phillips was speaking of “this court” as the Supreme Court, I see no reason why the same should not apply to this court. But the real answer to this point is, as I see it, that in this case it is quite clear that Parliament intended that the MHA should comply with Convention rights. True there is no expression of Parliament’s intention as regards the situation which we have to consider, but so is it true that there is no indication that in this respect Parliament wished to depart from that in the situation with which we are concerned and nor is it suggested to us that there would be any particular reason to do so. Indeed, the fact that Parliament gave the Secretary of State power to consent to a transfer of the patient to other accommodation (see section 41(3)(c) read with section 19(3) of the MHA) is a strong indication that Parliament did consider the situation that has arisen in this case and intended it to be dealt with by the Secretary of State (subject to the court’s supervisory jurisdiction) and not by the tribunal.

Moreover, an interpretation of section 73(2) which permits (a) detention in an institution which is not a hospital, (b) detention other than for the purposes of treatment and (c) detention without appropriate medical treatment being available for the patient would be inconsistent with the criteria for admission and for a hospital order set out in sections 3 and 37 of the MHA respectively. That interpretation would therefore run counter to the scheme of the MHA, which would in my judgment be a further ground why it should not be accepted.

The rights of a restricted patient discharged conditionally to an institution other than a hospital on terms that he continues to be deprived of his liberty are inferior to those of a restricted patient who continues to be detained in a hospital, in particular with reference to the right to a review of his detention by the tribunal: see paragraph 27 above. In my judgment, there is no apparent reason for that disparity of rights and accordingly it weighs in the balance against the interpretation placed on section 73 by the Upper Tribunal.

I accept the submission of Mr Chamberlain that article 14, taken with article 5, is in point as regards this disparity. The words “other status” in article 14 (see paragraph 41 above) would cover a patient’s status when detained in an institution which is not a hospital following their conditional discharge. In those circumstances, the Secretary of State would have had the burden of showing why, if he was wrong on the meaning of section 73, there are differences between the procedural rights given to the restricted patients detained in hospital and those detained in another institution to which they have been conditionally discharged. The onus is not on RB. Mr Burrows, however, submits that the two year period would be adequate for the latter group. That may or may not be so, but it does not really explain why they are not given the same privileges as the former group. Mr Chamberlain did not seek to support these differences.

Accordingly I respectfully disagree with the statement in paragraph 53 of the judgment of the Upper Tribunal that there would be no breach of article 5 by reason of the order for conditional discharge which it made because the 1983 Act makes provision for the procedural safeguards guaranteed by article 5. The impact of article 14 has also to be considered.

I am of course mindful that I am differing from the very careful and comprehensive judgment of the Upper Tribunal. The Upper Tribunal was very concerned with the position of RB and with his best interests. But, as I see it, the difficulties of interpretation cannot be overcome in the way that the Upper Tribunal sought to resolve them. In those circumstances, differing from the Upper Tribunal, I conclude a tribunal cannot rely on the patient’s best interests as a ground for ordering conditional discharge on terms that involve a deprivation of liberty. This is more particularly so if the detention would not be for the purpose of any treatment. However, the position is to some degree mitigated by the fact that the Secretary of State has powers of transfer in an appropriate case. The Secretary of State could well be at risk of judicial review if he does not make an appropriate decision to exercise his powers of transfer. A tribunal may be able to express some helpful non-statutory recommendation for a transfer in an appropriate case.

The Upper Tribunal was also very concerned with the position of a First Tier Tribunal (see paragraph 53 quoted at paragraph 34 above). Thus a point that weighed heavily with it was the difficulty for tribunals if there had to be factual inquiries to determine whether the terms of a conditional discharge involved an inevitable deprivation of liberty, especially if the conclusion was likely to be finely balanced. This is an important point since the Upper Tribunal is well placed to judge this. However, I respectfully venture to suggest that it is unlikely to be a difficult issue in every case and in any event tribunals often need to determine complex questions of fact. It is established by authority that it is only necessary to determine whether the deprivation of liberty will be the inevitable result of the order, so that the inquiry need not fully explore every possible outcome.

In the circumstances, for the reasons given above, I would allow the appeal.

I agree.

I also agree.