Djaba v West London Mental Health Trust & Anor

This is an appeal by Mr Jasmin Djaba from a decision of 19 July 2016 of the Upper Tribunal (Administrative Appeals Chamber) (Upper Tribunal Judge Jacobs) (“UT”), refusing to set aside a decision of 23 November 2015 of the First-tier Tribunal (Health, Education and Social Care Chamber) (Tribunal Judge Rickman, Dr M. Al-Yassiri and Mrs. R Sekhawat) (“FTT”) that the appellant should not be discharged from liability to be detained for medical treatment. The appellant appeals with permission given by Moore-Bick LJ by order of 10 November 2016 on the basis that this second appeal raises a point of principle and that it had sufficient prospect of success to warrant the grant of permission.

By my direction this case appeared in the court’s lists with the appellant’s name anonymised. However, at the hearing, we revoked that direction for the future, since we were informed by Ms Bretherton QC (for the appellant) that Mr Djaba, with the full concurrence of his litigation friend, wished his case to have normal publicity. Accordingly, the appellant’s full name appears in this judgment and will so appear in court documents, absent any further order to the contrary.

As appears in paragraph 3 of the Grounds of Appeal, the appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 (“MHA”) require a “proportionality assessment” to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms (“ECHR”) and the Human Rights Act 1998, taking into account the conditions of the appellant’s detention. Some limited summary of the background facts and procedural history of the case are necessary as follows.

The appellant was born in 1980 to a family of West African origin. It is said in the written decision of the FTT (para 1.1) that he was born in the United Kingdom but moved to Ghana with his mother at the age of 8. He returned to the UK when aged 21. He became unwell while living in Ghana and, it appears, he was admitted to psychiatric hospitals on more than one occasion while living there. He was first admitted to hospital in this country in 2002 and there followed a number of other admissions arising from his non-compliance with medication regimes. His current admission began in 2007. In 2008 he was transferred to medium security conditions because of his aggressive behaviour and he was detained in various hospitals until his transfer to Broadmoor Hospital in 2009.

On 26 July 2012, in the Crown Court at Reading, he was found to be unfit to plead to an indictment charging him with three offences, involving unlawful wounding and assault occasioning actual bodily harm, contrary to sections 20 and 47 (respectively) of the Offences against the Person Act 1861. Two of the offences were said to have occurred in July 2009. The first happened when he lost his temper when his mobile telephone ran out of credit and he repeatedly punched the victim, causing him severe bruising to the face and head, bleeding and whiplash. The second incident related to an occasion when he attacked members of the care team attempting to administer medication. The third offence alleged was in January 2011 when he attacked his victim while under escort from a shower room at the hospital; he punched the victim six times, causing injuries, including a fractured eye socket. He was found to have committed the acts underlying the offences charged and the court imposed a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 (“MHA”). He is, therefore, a “restricted patient” for the purposes of the MHA. He had no history of violence prior to his detention and all the recorded violence has been in hospital surroundings.

The appellant has been kept in secluded conditions since admission to Broadmoor and, since 2014, he has been accommodated in what is called “a super seclusion suite” built entirely for the purposes of his confinement. This suite consists of a small room divided into two parts, with a secure partition between the two sections. Save for reviews to assess his health, no one is permitted to enter the room without the partition being in place. Treating staff have to enter the room wearing personal protective equipment (including shields, helmets and visors), as the appellant is highly resistant to receiving his depot medication, which has to be administered forcibly. Limited interventions are made to enable visits by the appellant to communal areas of the hospital, but always with the use of mechanical restraints and accompaniment by several staff members. Until the intervention of his present solicitors, the appellant had not had face-to-face contact with his mother, other members of his family or with friends for a number of years.

The FTT decision records further incidents of varying seriousness and other occasions when the appellant himself has suffered injury, including a shoulder dislocation twice. At the hearing of the appeal, we were also taken to parts of the fuller medical evidence that was before the FTT dealing with the numerous incidents of extreme behaviour by the appellant that have led to the decisions as to his treatment and management in the secluded conditions described above. It is not for us on this appeal to review that material or the decisions of the clinicians that have been made on the basis of it. The appeal is concerned solely with the issue of principle which I have already outlined.

The appellant did not exercise his right of appeal to the FTT (under MHA s.70) in the first three years of detention, although it is accepted that he would have been reminded of his right to do so in accordance with normal statutory procedures. As a result, the Secretary of State, pursuant to his duty under MHA s.71(2), referred the case to the FTT, thus triggering a review of the detention.

The relevant sections of the MHA were sections 73 (power to discharge restricted patients) (applying by reference criteria set out in s.72) and 145 (interpretation) which provide as follows:

The hearing before the FTT was opened at the hospital on 14 November 2015 when directions were given; the case was heard substantively (again at the hospital) on 20 and 21 November 2015. The appellant was represented (as now) by Ms Bretherton QC and his solicitor, Ms Luscombe. He was then seeking either a conditional discharge or an extra-statutory recommendation by the FTT for his transfer to a different hospital.

The FTT decision records that the appellant attended the hearing wearing mechanical restraints throughout. It is stated that he interrupted proceedings frequently and was warned that he might be excluded. However, it appears from the record that he gave oral evidence.

The decision was announced at the end of the hearing and the reasons were given in the written decision of 23 November 2015. The formal grounds of the decision were:

It was found that the appellant was suffering from paranoid schizophrenia; a finding that had not been challenged by his legal team, although the appellant himself did not accept that diagnosis. The FTT found that he was delusional, thought disordered, with paranoid beliefs, irritable, prone to aggressive behaviour and totally lacking in insight. It was found that medication made the appellant calmer and less preoccupied with his beliefs and that there had been subtle improvements in his mental state as a result. It was not accepted by the FTT that he was only violent because of his restrictive setting; on the contrary, it was found that the violence was driven by his beliefs and that he constituted a danger to others. It was also found that appropriate treatment was available.

Neither conditional discharge, nor the extra-statutory recommendation sought on the appellant’s behalf, were considered appropriate. The significant restrictions on the appellant were acknowledged, but it was found expressly that these were necessary and proportionate to deal with the appellant’s violence. However, there was no express reference to Article 5 of the ECHR, although it had been submitted to the FTT by Ms Bretherton that the FTT was required to have regard to that Article.

We have seen Miss Bretherton’s skeleton argument for that stage of the proceedings, dated 5 November 2015. It appears from that document that Ms Bretherton’s argument engaged with issues both relating to the statutory criteria under the MHA (standing alone) and to the ECHR. While the latter took up a smaller element of the written document, Ms Bretherton told us that the argument was much expanded in submissions after the oral evidence had been given.

Permission to appeal to the Upper Tribunal was sought and was granted by the FTT, in the person of Tribunal Judge Fryall, on 7 January 2016, in particular in reliance upon the decision of Charles J in PJ v Local Health Board & ors. [2015] COPLR 756; [2015] UKUT 480 (AAC) (“PJ”) to which (together with this court’s judgment on appeal in that case) I return below.

In the UT, Ms Bretherton argued that the FTT had failed entirely to deal with her Article 5 arguments. It was submitted that the Article was clearly engaged and the FTT was obliged by it to apply the “least restrictive option” approach to the appellant’s detention. Accordingly, the FTT should have expressly considered the length and the severity of the detention. Any improvement by treatment, it was submitted, was so minimal as to be unworthy of regard. It should have found accordingly that treatment no longer had the necessary purpose set out in MHA s.145(4), i.e. treatment in the Act

It was also argued for the appellant that similar issues arose under Article 8 concerning the limited contact that the appellant had been allowed with his mother.

So far as protection was concerned, it was submitted, there were no adequate grounds for finding that detention was needed for the protection of others outside the hospital setting.

For the respondent it was argued that the FTT’s review had satisfied the Article 5 requirements by its application of the statutory criteria. The treatment given was working and the FTT had rejected the argument (as it was entitled to do on the evidence) that the violence by the appellant was simply referable to his treatment and/or to his detention.

The UT judge reviewed Articles 5 and 8 and some of the case law on the subject. He noted the decision of Charles J in PJ, that Article 5 governed the MHA provisions dealing with Community Treatment Orders (“CTOs”) (i.e. MHA ss. 17A and following) and he referred to his own previous decisions (differing from Charles J) that ECHR issues did not arise in the limited mental health jurisdiction of the FTT. Ms Bretherton had submitted to the judge that it was important for a decision to be made as to whether the approach of Charles J was to be applied to decisions made under MHA ss.72 and 73.

The judge referred to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 which provides that if the UT finds that the FTT has made an error of law it “may (but need not) set aside the decision”. To cut shortly to the point, without (I hope) doing disservice to the judge’s fuller reasons, he decided that the ground covered by the statutory analysis conducted by the FTT under the MHA covered the same ground as required on any application of the ECHR principles. He said at paragraph 32 of the decision:

At paragraph 29 of the decision he stated that he had put to Ms Bretherton that her argument could have been put just as well without reference to Article 5 or the human rights case law and that she had accepted that it could have been. The judge then reviewed the case under the headings of “Disorder”, “Treatment” and “Protection” and held that the Tribunal had been correct in its application of the evidence to the statutory criteria and thus the result

Ms Bretherton does not accept that she made any concession before the judge of the kind mentioned above and she referred us in that regard to her written application to the UT for permission to appeal to this court, in which she made that point. All I need to say, I think, is that it appears that Ms Bretherton and the judge appear to have been at cross-purposes about this aspect of the argument which had been presented.

As I hope is already apparent, Ms Bretherton’s primary argument on this appeal is that the Tribunals below have failed to have proper regard to, and to apply, the provisions of Articles 5 and/or 8 of the ECHR. She invites us to allow the appeal and to remit the case to a differently constituted FTT to rehear the case and, in the process, for the new Tribunal to review the lawfulness of the appellant’s detention, in the context of the conditions of that detention, under the relevant provisions of the ECHR.

Mr Sachdeva QC for the first respondent invites us to dismiss the appeal, to hold that the Tribunals below were correct in their approach and to find that the appellant’s other remedies (if any) under the ECHR have to be pursued in the civil courts. He submitted that the FTT was correct not to engage in the wider issues under the ECHR, as it had no jurisdiction to do so, and the UT had been correct in dismissing the appeal on the grounds that it did.

Before dealing, so far as is necessary, with the refinements of the arguments presented to us, I find it convenient to deal with the important decision in Secretary of State for Justice and Welsh Ministers v MM and PJ [2017] EWCA Civ 194, on appeal from the Upper Tribunal (Administrative Appeal Chamber) (Charles J) (reference given above). I shall continue to refer to the case in this court as “PJ” since it seems to me that it is the case of the respondent PJ that is more material to our present problem than that of MM; the case of MM was joined with that of PJ to deal with wider issues affecting both patients.

PJ was a middle-aged man who was the subject of a CTO under section 17A of the MHA. He had been discharged to a specialist care home and he was required to reside there and to abide by rules requiring him to be subject to 15 minute observations. His community access was required to be predominantly escorted. His capacity to consent to the conditions was not in issue. He sought discharge of the CTO on the basis that the conditions of the order’s implementation amounted to an unlawful deprivation of his liberty in breach of Article 5 of the ECHR.

The Mental Health Review Tribunal for Wales decided that PJ was not deprived of his liberty and that the CTO was a framework to enable monitoring and review of the risks posed to the public and that had to take precedence over issues of human rights under the ECHR.

On appeal to the UT, Charles J decided that, whether or not the arrangements under the CTO constituted a lawful deprivation of liberty or a deprivation of liberty that could not be authorised, PJ was not free to leave the care home. The tribunal could not ignore possible breaches of the ECHR or permit an unlawful state of affairs to continue. When construing the test set by MHA s.72(1)(c) (relating to the discharge of community patients), and in exercising any discretion to adjourn proceedings under s.72(1), the tribunal had to take into account whether the implementation of the conditions of a CTO would or might create a breach of Article 5 or any other Convention right and, where such a breach was established it had to exercise its powers to bring it to an end. Only where problems relating to the ECHR could not be resolved (e.g. by altering conditions) would a patient have to be discharged.

In reaching his conclusion as to the role of the tribunal with regard to rights under the ECHR, Charles J cited extensively from the speech of Baroness Hale of Richmond in R (H) v Secretary of State for Health [2005] UKHL 206; [2006] 1 AC 441.

The H case concerned a challenge to the compatibility of the regime for challenge to a patient’s detention under the MHA. The patient’s mother had given notice of her intention to discharge her under MHA s.23. Thereupon, an approved social worker applied to the County Court under s.29 for an order that the functions of the “nearest relative” be transferred from the mother to that social worker. As a result, the period of lawfulness of the patient’s detention was extended, by operation of the statute, until the application was disposed of, giving rise to potential delay in resolving any issue as to the lawfulness of the detention. At the mother’s request, the Secretary of State referred the case to a tribunal under s.67. The tribunal heard the reference and refused to order discharge. The patient sought (by judicial review) a declaration that the scheme under the MHA was incompatible with the right to take proceedings for the speedy decision of the lawfulness of detention under Article 5(4) of the ECHR. Silber J dismissed the claim; this court allowed an appeal, making a declaration that ss.2 and 29(4) were incompatible with article 5(4). The House of Lords allowed the Secretary of State’s appeal and reversed this court’s decision.

Having said (at [29]) that a time might come when a patient’s right under Article 5(4) will be violated unless some means of taking proceedings are available, Baroness Hale said this at [30] to [32]:

It was the passages from Baroness Hale’s speech upon which Charles J primarily relied in reaching his decision in PJ. After citing that passage. He said at [57] – [58] this:

At [96]- [98], the learned judge, referring to the language of the MHA, said:

Having played no part in the proceedings before Charles J, the Secretary of State and the Welsh Ministers (who had been the second and third respondents to the proceedings throughout) decided to appeal to this court. The grounds of appeal were that (i) the judge had erred in law in determining that the UT had jurisdiction to revise conditions under a CTO and/or to adjourn proceedings for such conditions to be revised and/or to take into account Article 5 when exercising its powers of discharge under MHA s.72; and (ii) he had also erred in law in holding that the tribunal had erred in its approach to the deprivation of liberty question. It is only the first ground which is material to the present case.

This court allowed the appeal. In the judgment of the court (Munby P, Gloster LJ and Ryder LJ (The Senior President of Tribunals)) the following salient paragraphs appear:

I should also direct attention to [62]-[63] as follows:

It is to be noted that in its judgment in PJ, this court did not refer at all to the H case and Baroness Hale’s speech which had figured so prominently in the decision of Charles J. Ms Bretherton argues that Charles J had been correct to focus upon the passages which he cited and to rely on them in reaching his conclusion in the case.

Ms Bretherton argues that the ratio of the court’s decision in PJ is narrowly confined to the issue of the power of the FTT to impose conditions under a CTO which objectively amount to a deprivation of liberty. The statutory provisions relating to such conditions, she points out, appear in a different part of the legislation from that with which we are concerned. She says the ratio was to be found paragraph [18] of the judgment where the court said:

For my part, I do not accept that that paragraph represents the ratio of the court’s decision in PJ, appearing as it does in the section of the judgment dealing with the case of the other respondent, MM. I do accept that the decision in both respondents’ cases was considering the position of both of these patients with regard to the statutory regime providing for, and regulating, CTOs. To that extent, it may be that Ms Bretherton is correct in saying that we are not strictly bound by the decision in all respects. However, it seems to me that the reasoning behind the paragraphs of the judgment in [54]-[59] and [62]-[63], which I have quoted above, is properly to be carried over directly into that part of the legislation applicable in this case.

If, as the court said in PJ at [55], the tribunal’s power is a “distinct and separate” one, namely that of discharge, and does not provide for intervention to regulate the conditions under a CTO made by the responsible clinician, then the same must, I think, apply under ss.72 and 73 which also confer a power of discharge. It seems to me that, applying this court’s decision, that power cannot also include power to regulate the conditions of detention. In the material part of the PJ judgment the court was considering directly the extent of the power under s.72.

It is perhaps unfortunate that the court did not address the passages from the speech of Baroness Hale in H and I confess that I had some difficulty in understanding why it had not done so. I can see force in Ms Bretherton’s point that it might be thought that specialist tribunals, rather than courts, were better suited to assessing conditions of a patient’s detention in a human rights context for the reasons expressed by Baroness Hale in her speech. It seems to me, however, that in the light of the court’s decision on the jurisdiction issue in PJ, it did not need to do so. In H, the House of Lords was concerned with the issue of the need for speedy resort to a court for the purpose of determining the lawfulness of detention under Article 5(4). It was not concerned with the wider issues of conditions of detention which Ms Bretherton argues are within the FTT’s jurisdiction. No issue arose in H as to the conditions of detention. The only point in issue was as to the compatibility of the regime for assessing lawfulness of detention which, it was held, were met by the reference to the tribunal under s.67 and could have been met by other alternative remedies such as judicial review.

Ms Bretherton addressed to us a number of further submissions as to how the criteria for the discharge of a patient under ss.72 and 73 could be read so as to require the FTT, in considering whether detention in a hospital was “appropriate”, whether detention was “necessary for protection purposes and whether “appropriate” treatment was “available”, could review whether discharge (absolute or conditional) was required in order to avoid breaches of a patient’s Convention rights. She also presented submissions as to the extent of the court’s ability to examine conditions of detention in the context of Articles 5 and 8 of the ECHR. However, having taken the view that I have of this court’s decision in PJ, it seems to me to be unnecessary to deal with these points.

In my judgment, Mr Sachdeva is correct in his submission that the decision in PJ is directly applicable to the issue in this case (even if not formally binding upon us) and that we must hold that the FTT did not have jurisdiction to conduct an assessment beyond that dictated by MHA ss.72 and 73. It carried out that assessment and no issues arise on this appeal as to the findings that it made in that respect within the confines of the MHA. Any further issue of the lawfulness of the appellant’s conditions of detention under the ECHR would have to be raised in proceedings in the civil courts. Thus, it was right for the appeal to the UT to be dismissed and, therefore, the appeal before us should also be dismissed.

I agree that the appeal should be dismissed for the reasons given by McCombe LJ. In view of the rather diffuse submissions we heard from Ms Bretherton, I make some observations of my own.

In the case of an application to the Tribunal by a restricted patient, the Tribunal’s powers are strictly defined by statute. By virtue of section 72(7) of the MHA, the Tribunal does not have the general power to direct that the patient be discharged which is conferred by the opening words of section 72(1) in relation to other patients, but only has a power and a duty to direct the absolute discharge of the patient if it is not satisfied of the matters mentioned in section 72(1)(b)(i), (ii) or (iia) and it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital: see section 73(1).

The FTT and UT in this case were therefore correct to focus their analysis upon the matters mentioned in section 72(1)(b)(i) (whether the appellant is suffering from a mental disorder which makes it appropriate for him to be liable to be detained in hospital for medical treatment), (b)(ii) (whether it is necessary for the health or safety of the appellant or for the protection of other persons that he should receive such treatment) and (b)(iia) (whether appropriate medical treatment is available for him). The decisions of the FTT and UT were clearly correct in relation to each of these matters. The appellant is suffering from a severe mental disorder which makes it appropriate for him to be detained in hospital for medical treatment; it is necessary for his health and safety and for the protection of others that he should receive such treatment; and appropriate medical treatment is available.

The matters identified in section 72(1)(b)(i), (ii) and (iia) and requiring to be considered by the Tribunal pursuant to section 73(1) do not include the conditions of detention of a restricted patient or things such as the availability of visiting rights for members of a patient’s family. These are aspects of the care of a restricted patient which are within the control of the hospital authorities, who will have to take account of a range of matters in organising his detention in their facility, including the resources available, the Convention rights of the patient and others and the safety of staff and visitors. The governing NHS Trust for Broadmoor Hospital is a public authority and is amenable to judicial review in the High Court in relation to any legal challenge which a restricted patient might wish to bring in relation to these matters. If a restricted patient needs access to a litigation friend in order to mount such a legal challenge, arrangements can be made to facilitate that. That is an appropriate and effective avenue for legal protection for a restricted patient who wishes to challenge what the hospital authorities have done in relation to his conditions of detention.

It could be argued that it would be better to confer jurisdiction on the Tribunal to deal with these matters as well. But Parliament has clearly decided in enacting the MHA to limit the jurisdiction of the Tribunal to dealing with claims for the absolute discharge of a restricted patient by reference to the matters identified in section 72(1)(b)(i), (ii) and (iia). The availability of recourse to the Tribunal for this purpose focuses on the requirement in Article 5(4) of the ECHR for an individual who is detained to be able to have access to a court or tribunal to seek release if his detention is not lawful. Parliament clearly intends that the Tribunal is not to be diverted into dealing with a wide range of matters apart from this, which might also jeopardise the speediness with which it would be able to act when challenges to detention are made. There is nothing in the ECHR which says that all matters arising in relation to a person’s detention must be capable of being determined by the same court or tribunal. In fact, it is well established in the field of ordinary imprisonment of convicted criminals that legal remedies in respect of some issues in relation to their detention will be determined by the Parole Board while remedies in respect of other issues in relation to their detention will be determined by the High Court in judicial review proceedings: see, e.g., R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331.

In reliance upon section 3(1) of the Human Rights Act 1998 (“the HRA”), Ms Bretherton submits that a special interpretation should be given to section 72(1)(i) and (iia), in respect of the phrases “appropriate for him to be detained in a hospital for medical treatment” and “appropriate medical treatment is available for him”, respectively, so that what is to be regarded as “appropriate” should also include the conditions of detention and the like, with the result that the Tribunal has jurisdiction to rule upon all aspects of the Convention rights of a restricted patient under Article 5 and Article 8. I cannot accept this submission.

Section 3(1) of the HRA provides that, “So far as it is possible to do so, primary legislation … must be read and given effect in a way which is compatible with the Convention rights”. However, interpreting section 72(1)(b)(i) and (iia) in accordance with the natural meaning of the words used, as set out above, does not produce any incompatibility with Convention rights. That is because aspects of Convention rights which are not covered by those sub-paragraphs are nonetheless capable of protection via judicial review proceedings in the High Court when they fall outside the jurisdiction of the Tribunal conferred by section 73(1) of the MHA. Section 3(1) of the HRA does not create a licence for a court to distort the ordinary meaning of primary legislation which is not incompatible with Convention rights, just because the court thinks that a better way to cater for protection of such rights might be to expand the jurisdiction conferred by statute on the Tribunal.

In the present case, therefore, the FTT and the UT were bound by section 73(1) of the MHA, read with section 72(1)(b)(i)-(iia), to focus on the question whether an absolute discharge of the appellant should be ordered and the particular matters set out in those sub-paragraphs of section 72(1)(b), and had no jurisdiction to rule upon the wider questions which Ms Bretherton wished to canvass before them. It was not incompatible with any Convention right of the appellant for the FTT and the UT to proceed in that way, and they had no obligation pursuant to any of sections 72 and 73 of the MHA and sections 3(1) and 6(1) of the HRA to act any differently.

I would add that, even if this analysis were wrong and there was a good argument that the Convention rights of the appellant indicated that the Tribunal ought to be empowered to consider the conditions of his detention, I do not consider that the interpretation of sections 72 and 73 of the MHA contended for by Ms Bretherton would be a “possible” interpretation of those provisions for the purposes of section 3(1) of the HRA. In my view, the meaning and effect of sections 72 and 73 of the MHA to limit the jurisdiction of the Tribunal are clear, and the alternative interpretation urged by Ms Bretherton would represent an illegitimate distortion or amendment of those provisions clearly going against the grain of the legislative scheme in the MHA: cf Ghaidan v Godin Mendoza[2004] UKHL 30; [2004] 2 AC 557, at [122] per Lord Rodger of Earlsferry.