L, R (on the application of) v Secretary of State for the Home Department & Anor

MR JUSTICE COLLINS: This was listed as a claim for interim relief and for permission to seek judicial review of a decision of the Secretary of State to recall the claimant to hospital. It developed into an application relating not to the recall itself but to the maintenance of detention once a report had been obtained from a psychiatrist following the recall which it was accepted was proper on the basis of an emergency having arisen. I will indicate in a moment what the factual basis for that was.

There was also a concurrent application for habeus corpus which attacked the continued detention. Since the defendant -- that is to say the Secretary of State for the Home Department -- was represented, and there was no further material which needed to be presented to the court to deal with the issues that arose, it seemed to me to be sensible that I should grant permission, remove the need for all subsequent procedural steps, and treat this as a hearing of the substantive claim for judicial review and that, with the agreement of counsel, I have done.

The factual background can be very shortly stated. In 1991 the claimant, who is now 36 years old, killed his then young girlfriend by beating her savagely about the head. He appeared before the Crown Court in September 1991 when he was found not guilty of the offence of murder by reason of insanity and he was in consequence admitted to hospital in pursuance of section 5(1)(a) of the Criminal Procedure (Insanity) Act 1964 as amended.

In due course the order was made that he be admitted to Ashworth Hospital and by virtue of the provisions of the Criminal Procedure (Insanity) Act, that was to be treated as an admission to hospital under sections 37 and 41 of the Mental Health Act 1983, that is to say as if it were a hospital order imposed without restriction of time. But that did not import the requirements to comply with the provisions of section 37 which included that the judge decide which was the appropriate mental disorder from which the defendant was suffering, so that that would be the disorder for which he would be given treatment. Rather, under section 5, the committal to hospital was on the basis of reports and it was a matter for the doctors to decide on the basis of those reports what was the appropriate disorder. In fact, in this case, the disorder in question was mental illness.

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

He made subsequent applications and in February 1997 a Tribunal ordered that there should be a conditional discharge. Unfortunately the conditions could not be fulfilled and so the discharge did not take place. There was a further application which was heard in April 1998. Again the Tribunal ordered a conditional discharge but again the conditions were not able to be met.

In due course a further hearing before yet another Tribunal took place in March 2000 and it was again ordered that there should be a conditional discharge, the Tribunal being satisfied that the claimant did not currently suffer from mental illness or any other disorder specified in section 72(1)(b)(i) of the 1983 Act. But the Tribunal went on to state that it had no doubt that it was appropriate and essential that his discharge should be supported by carefully constructed conditions and that he should remain liable to recall to hospital for treatment in the event of relapse or breach of condition such as to give rise to risk of relapse. They therefore directed that the discharge should be conditional.

In the course of some lengthy reasons, the Tribunal said this:

He was eventually discharged conditionally in March of 2001 and in February of this year he was recalled to hospital. The reason for the recall was eventually explained in a letter in March of 2004. The initial recall letter of 4th February did not explain why the recall had taken place. I am bound to say that it seems to me that it would be desirable that the reasons are given in the recall letter rather than the relevant person having to wait to find out later why the recall had been ordered. However that is not, as things have turned out, material in this application.

The reasons as set out in the letter of 26th March are as follows. The doctor who was supervising him whilst he was subject to the conditional discharge became, together with his social supervisor, very concerned about him. Information was given that he had formed a relationship with a vulnerable 17 year-old girl and had concealed this from his care team for some months. His engagement with his care team was partial at best and he was continuing to abuse drugs. His relationship with the vulnerable girl had only come to light through the actions of another restricted patient who had informed the girl of the claimant's past. He had thereupon threatened this other patient through a text message. There were concerns for the safety of the girl because there were reports that he had detained her against her will on at least one occasion, and there was real concern that a set of circumstances and a pattern of behaviour was developing that had mirrored those at the time that he had killed his girlfriend back in 1991.

Accordingly it was agreed that discussions should take place with the claimant about it and in fact as a result of that the decision was made to recall to hospital in accordance with section 42(3) of the Mental Health Act 1993. I ought, before going further, to refer, albeit without the need to cite in detail, to the relevant provisions of the Mental Health Act.

The powers of Mental Health Review Tribunals in relation to restricted patients are contained in section 73 of the Act. The Tribunal is to direct absolute discharge of a patient if the Tribunal are not satisfied that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, or from any of those forms of disorder of a nature or degree with makes it appropriate for him to be liable to be detained in a hospital for medical treatment or that it is necessary for the health or safety of the patient, or for the protection of other persons, that he should receive such treatment. The Tribunal must be satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. If they are satisfied as to the first matters to which I have referred but not as to the second, then they must direct a conditional discharge of the patient, and that is what happened here.

That is a combination of section 73 and section 72 of the Act. It is also to be noted that by virtue of section 72(5):

That is what can be loosely described as a reclassification power which is given to the Tribunal. The powers of the Secretary of State in respect of patients subject to restriction orders are set out in section 42. He has the power himself to discharge but by section 42(3) it is provided:

Section 73(4)(a) applies section 42 to cases where there has been a conditional discharge by the Mental Health Review Tribunal and thus enables there to be a recall by the Secretary of State. Section 75(1) provides that where there has been such a recall the Secretary of State must within one month of the day on which the patient is returned to hospital refer his case to a Mental Health Review Tribunal. The Mental Health Review Tribunal Rules 1983, paragraph 29(cc), provide that where a reference is made under section 75 the Tribunal must fix a date of hearing not later than eight nor earlier than five weeks from the date on which the reference was received.

There is thus provision that following a recall there must be a speedy referral to and hearing by a Mental Health Review Tribunal and that to an extent mirrors the position when a person who is not a restricted patient is taken into a mental hospital under section 2 of the Act on the basis that he may be suffering from a mental disorder which requires treatment. There is then a need for a speedy reference to a Tribunal. This is to conform to the provisions of the European Convention on Human Rights, in particular Article 5(4).

It is accepted by Mr Seligman, and inevitably rightly accepted, that the recall was properly based upon the view that there was an emergency created by the information which was received, and it is accepted that on the face of it there was very good reason for the concerns which led to that recall. But a report was obtained from Dr Croy, a psychiatrist, and that is an important document because based upon it is the submission that the detention thereafter, that is to say once that report was obtained, was unlawful.

The report itself is dated 4th March 2004. It sets out the history. I need not refer to any of that in detail. Towards the end it sets out her opinion and she states that she would not consider the claimant to be detainable under the classification of mental illness but that he did in her opinion have psychopathic disorder. She explains why and she says that the psychopathic disorder, which was a chronic disorder, was likely to persist, and his previous response to treatment had been limited in terms of addressing the underlying disorder but it had been possible to ameliorate the effects of it by in-patient hospital treatment.

Therefore she considered that his psychopathic disorder was currently of a nature and degree to warrant in-patient hospital treatment and that it was notable that whilst in the community his condition worsened as evidenced by his behaviour. She also considered that the risk to others as demonstrated by his behaviour increased while he was in the community and that it was therefore appropriate for him to remain detained in the interests of his own health and for the protection of others. She concludes in these words:

The reason why it is submitted that the receipt of that report should have led to discharge since it rendered continual detention unlawful, was because the claimant had been detained and was subject to recall on the basis of mental illness and that was the classification which was relied on to justify his continuing detention.

Dr Croy did not support that, albeit it is clear that she took the view that there was a psychopathic disorder which falls within the Act and that it was necessary in her view for the claimant to remain in hospital and to be treated for that disorder because otherwise he would be a risk to the public and to himself.

Nonetheless, submits Mr Seligman, it was unlawful to continue to detain him because, as I say, the basis upon which he had been detained, that is to say mental illness, no longer existed, certainly in the view of Dr Croy. He has referred me to relevant authority in the European Commission on Human Rights, in particular the case of Kay v United Kingdom 40 BMLR 20. I think all I need to say about that case is that it clearly establishes in the Commission's view that minimum conditions of lawfulness needed to be respected in order to justify a recall which otherwise would be in breach of article 5(1) of the Convention. Those minimum conditions are essentially the same as applied in the lead case of Winterwerp v The Netherlands, that is to say that there is a proper report from a doctor which justifies the detention in a hospital save and except where there is an emergency, but if there is such an emergency, there must be a report as soon as practicable which must fulfil the necessary obligations under the Winterwerp criteria.

That is uncontentious and does not determine the issue in this case because clearly there was an emergency and there was, in the form of the report from Dr Croy, a speedy provision of the necessary report. But the submission is that by domestic law that does not justify the continuing detention.

The whole argument that that is the position is based upon the decision of the Court of Appeal in R(B) v Ashworth Hospital Authority [2003] EWCA Civ 547, a decision of the court given on 15th April 2003. That case concerned the provision of compulsory treatment pursuant to section 63 of the 1983 Act which provided:

The issue was whether that provision sanctioned compulsory treatment of the detained patient for any mental disorder which had been diagnosed by the clinicians or whether it only authorised such treatment for the mental disorder specified by the court under section 37(7) or by the Mental Health Tribunal under section 72(5). Here the condition specified by the Tribunal was, as I have said, mental illness.

The Court of Appeal decided that section 63 covered only treatment for the condition which I will describe as the classified condition, that is to say the one which was specified by the Tribunal.

The submission is that the decision of the court was that classification extended to cover all the powers to detain, as well as powers to treat, contained in the Mental Health Act. In paragraph 49 Dyson LJ who gave the main judgment said this:

Dyson LJ then considered at some length the judgment of Waller LJ in R v Anglia and Oxfordshire Mental Health Review Tribunal ex p Hagan [2001] LLR Med 119. That was a case in which the Tribunal had decided that the person concerned was suffering from two forms of mental disorder, only one of which justified detention in hospital, and the argument was that in those circumstances there was an obligation upon the Tribunal to reclassify and to delete the condition which in its view did not require detention in hospital. I had decided at first instance that that argument should succeed but the Court of Appeal disagreed.

At paragraph 60 of the judgment Dyson LJ in B said this:

Mr Seligman submits that that is an observation which shows that classification applies in order to justify detention, and detention therefore can only be continued on the basis of the correct classification of the correct mental disorder for which treatment is to be provided.

As a general proposition that is no doubt correct when one is looking to continue detention. One must bear in mind that the only power to reclassify is contained in section 72(5) when one is dealing with restricted patients and it will inevitably take time for the matter to be referred to the Tribunal and for the necessary reclassification to take place in any ordinary case. It cannot be sensibly suggested, in my judgment, that there has to be an automatic discharge between the time that it becomes apparent that reclassification is needed and the time that that reclassification takes place. Indeed, Mr Seligman does not so submit and does not suggest that the argument he is presenting will justify that conclusion.

What he submits is that here the claimant was conditionally discharged and thus the hospital order was continuing against him but of course did not require his detention whilst he complied with the conditions and that therefore any continued detention under that order following recall had to be based upon the same mental disorder, in this case, mental illness. The contention therefore is that once Dr Croy's report was to hand it was plain that there was no longer any mental illness and that therefore the basis upon which the claimant had been detained fell away.

It seems to me that that is a reading of B which is not justified. The court in B was not concerned with the situation when an individual was initially detained on the basis of a need to discover what indeed was the mental disorder which required treatment. Nor was it concerned with recall where similar situation might arise. In this case it was plain, and indeed it was made clear by the reasons which I have already cited in the last Tribunal decision, that there was an element of psychopathic disorder but the Tribunal did not think it necessary to reclassify at that stage. Here the emergency, and indeed the subsequent report showed, that there was a real danger to the public and to the individual because of a worsening of the psychopathic disorder and it was the clear view of Dr Croy that hospitalisation was necessary in order to treat that condition.

That being so, since the only way in which reclassification could take place was before the Tribunal, and since there was a requirement in the statutory provisions that a Tribunal consider the matter as speedily as reasonably possible, it seems to me that the powers of detention in those circumstances were lawful.

The situation is, as I have said, very different from that which was considered in B and the general proposition that continuing detention must depend upon correct classification is clearly correct, but that does not, as I said, cover in my judgment initial detention with a view to discovering what is the particular disorder or recall where there may be a different mental disorder which has flared up and which has produced a situation where to permit the individual to remain at large would create an obvious danger to the public. In those circumstances, in my judgment this claim must fail.

I take it you have no --

MR WARD: I have no application but a note for your Lordship's transcript. I thought I heard your Lordship say that the reason that section 42(3) applies when a discharge is carried out by a Tribunal relates to 75.

MR JUSTICE COLLINS: That is wrong, is it?

MR WARD: It is actually section 73(4)(a).

MR JUSTICE COLLINS: Thank you very much. I will amend that in the transcript. Do you want me to order?

MR SELIGMAN: Yes, an order for anonymity was made.

MR JUSTICE COLLINS: That I have already indicated.

MR SELIGMAN: Can I also ask for permission to appeal?

MR JUSTICE COLLINS: You can ask for it but you will not get it. You will have to go to the Court of Appeal.

MR SELIGMAN: Shall we leave it at that, my Lord? It is hard to give reasons and I do not want sound sycophantic but it is a very comprehensive and eloquent judgment, your Lordship.

MR JUSTICE COLLINS: I do not know about that.

MR SELIGMAN: The point relates to B in a new area and I would ask for permission on the grounds of public importance.

MR JUSTICE COLLINS: It cannot be in your client's interests to delay the hearing before the Mental Health Review Tribunal. It is a point which may have technical interest to lawyers but can have no real merit so far as the public or indeed your client is concerned. At worst it may mean a few weeks in hospital. Now I appreciate any time detained is an imposition upon any individual. But it is very difficult to see how your argument can produce a sensible result when someone -- I am not suggesting necessarily this claimant -- who is highly dangerous, if your argument is correct, would have to be let at large, albeit for a short time, simply because he happened to be displaying a different form of mental disorder from that which he was displaying when he was conditionally discharged.

I do not think that many people would think that was a satisfactory state of affairs. True, if that is what the law requires, that is what the law requires, but I cannot see any court being particularly anxious to decide that is what the law requires.

MR SELIGMAN: I am grateful.

MR WARD: Forgive me, there is one further application. As your Lordship knows, Gage J put a stay on the hearing of the Tribunal.

MR JUSTICE COLLINS: That stay is now removed. That follows.

MR WARD: I think it follows automatically.

MR SELIGMAN: I thought it did.

MR JUSTICE COLLINS: I mean in a sense, with great respect and I can understand why it was done, it was rather a pity, it should have gone on in parallel. It would not have stuck the -- I suppose it would. Someone might have said it then became academic.

I am very sorry to those involved in Maksimovic but it does not look as if there is much point in starting that now and we had better say 2 o'clock.