Secretary Of State For Home Department, R (on the application of) v Mental Health Review Tribunal

The claimant seeks to quash a decision of the defendants dated 11 June 2004 which decided that ‘provisionally’ the patient MP should be discharged subject to various conditions but that his discharge should be deferred until the Tribunal was satisfied that the necessary arrangements had been made to meet these conditions. The claimant contends that the conditions in question are such as inevitably would amount to detention by reason of deprivation of liberty and so the tribunal would have no power to impose them. The tribunal, while adopting a neutral stance on the merits of the challenge, submits that it is premature. The tribunal’s decision is provisional and a further hearing has been fixed for 15 October 2004 at which the tribunal will consider whether it is in fact appropriate to direct MP’s conditional discharge. MP submits that the claim is premature but also that the conditions will not inevitably amount to a deprivation of liberty and so are not unlawful. In the alternative, he submits that, because he is prepared to consent to them, they are lawful even if they amount to a deprivation of liberty.

Henriques, J directed that the claim should be listed for a permission and substantive hearing at the same time. I granted permission and, with no objection from counsel for all parties, treated the hearing as the hearing of the claim for judicial review. The hearing took place on the day after that in R(G) v MHRT and counsel in both cases were the same. G’s case dealt with similar issues in that it concerned a refusal to direct conditional discharge in circumstances which the tribunal found would amount to a deprivation of liberty but in which the claimant contended that conditional discharge was open to the tribunal. The principles of law applicable are common to both claims and I have dealt with them at some length in my judgment in G’s case. I do not propose to do more than summarise them so far as material to this claim.

MP is now 69. In 1976 he was convicted of manslaughter. He had strangled an 11 year old boy whom he had invited into his house. He had a long history of sadistic paedophilic sexual fantasies and had been convicted of a number of indecent assaults on boys. The index offence had been committed at a time when he had been conditionally discharged from a hospital to which he had been committed following his last conviction for indecent assault and when he was under close supervision in the community. He was committed to hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 subject to a restriction order without limitation of time. The powers of a tribunal in dealing with a restricted patient are contained in Sections 72 and 73 of the 1983 Act. If the tribunal is not satisfied that a restricted patient is suffering 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 that it is necessary for his health or safety or for the protection of others that he should receive such treatment the tribunal must order his discharge. However, if the tribunal is satisfied that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment, the tribunal must direct a conditional discharge. A direction for a conditional discharge may be deferred until the tribunal is satisfied that arrangements necessary to meet the conditions are in place (s.73(7)).

A decision to defer is to be treated as a provisional decision which can be altered if there is a material change of circumstances: see R(H) v Secretary of State for the Home Department [2003] 3 W.L.R. 1278. Such a material change can arise if it proves impossible to put in place the arrangements needed to enable the conditions to be satisfied. It is common ground that a tribunal has no power to impose conditions which would amount in effect to a deprivation of liberty, subject to Mr Bowen’s argument that the consent of the patient can render such conditions lawful. In R(Secretary of State for the Home Department) v MHRT (the PH case) the Court of Appeal was concerned with a similar challenge to this and the principles were set out. Briefly, whether particular conditions amount to a deprivation of rather than a permissible restriction on liberty is a question of fact and degree and the purpose for which the conditions were imposed is a relevant consideration. If they were imposed for the benefit of and to assist the patient rather than for the protection of others it will be easier to regard them as restrictions on rather than deprivation of liberty.

Since a decision to defer discharge is to be regarded as provisional, for the tribunal to describe it as such is tautologous. In paragraph 32 of its reasons, the tribunal says; -

“Also not disputed on the patient’s behalf is that the conditional discharge which we direct shall be deferred to permit the necessary arrangements to be put in place. Once suitable accommodation has been identified, a detailed care plan is to be submitted to the tribunal and approved by it”.

I shall return to the details of what was required in the care plan in due course. The first sentence of paragraph 33 reads; -

“The Tribunal proposes to hold a further hearing on 15 October 2004 for the purpose of considering whether it is in fact appropriate to direct a conditional discharge of the patient”.

Strictly speaking, the Tribunal will then be deciding whether there has been such a material change of circumstances as makes its direction that there should be a conditional discharge impossible. However, I accept that there is probably no real difference in substance, albeit the language used by the tribunal does not exactly follow the correct legal route.

The tribunal’s reasons are admirably full. It considered written evidence from nine professionals who had been concerned with MP, who had been transferred from Broadmoor to Thornford Park hospital, where he was kept in secure conditions. It also heard oral evidence from five of those professionals and from MP. In addition, it considered statements from the Home Office. The tribunal summarises the evidence before reaching its conclusions upon it. MP suffers from psychopathic disorder. Both his previous and his current RMOs considered that he was still a danger to others because of his ‘deviant sadistic orientation’ aroused by strangling young boys. The treatment he was undergoing with an anti-libidinal drug Goserelin reduced his sexual desire, but did not eliminate it, and he remained a particular danger to young boys so that he should never be allowed to be unescorted in the community. His current RMO regarded proposals to transfer him to a hostel as ‘unsound, dangerous and against his best interests’. A psychiatrist who reported on MP’s behalf, while accepting that he posed a significant level of risk, thought he could be considered for deferred conditional discharge with the necessary high support. His psychologist noted that ‘his propensity for deception needs to be taken into account in considering the quality of supervision available to him’ and was concerned at the prospect of a community placement. MP’s social worker at the hospital and his locality social worker were both firmly of the view that he could not be safely managed in the community. A social worker called on MP’s behalf said that a conditional discharge was in his view appropriate with a ‘condition that he be escorted at all times when not at his (secure) place of residence’. The tribunal said that it was impressed with the social worker (a Mr Jackson), stating in paragraph 21; -

“Mr Jackson considers that there is no treatment available to the patient in hospital which could not be provided to at least the same standard in a community setting. In his oral evidence, he made what to us were a number of valid points. In particular, he stated his view that the way to make the patient less dangerous was to put external protection in place since it was unlikely that the patient would ever change internally. He was also unsure how much need there would be for social supervision in a case as the present where secure accommodation and a 24-hour escort would largely replace the monitoring function of a social supervisor. He also suggested a possible placement for the patient at a relatively new hostel called Tudor View, part of the Apna House Group, and was not satisfied that this was the only possibility of referral for the patient”.

I should set out the tribunal’s conclusions in paragraphs 24 to 29.

“24.

In the light of the psychiatric and psychological evidence of both the hospital and of Dr Somekh, we are satisfied that the patient is suffering from psychopathic disorder, that he poses a significant level of risk and that he is unlikely to progress psychologically.

25.

We are also satisfied based upon the same evidence that the nature and degree of the patient’s disorder makes it appropriate for him to be liable to be detained in hospital for medical treatment.

26.However, we are not satisfied that it is necessary for the patient’s health or safety or the protection of others that the patient should receive treatment in hospital.

27.The patient’s own health was not advanced by the hospital as a ground for the patient’s continued detention under section. In those circumstances, the evidence does not in our view support the Home Office’s statements insofar as they relate to the patient’s own health and, to that extent, we reject those statements.

28.

With regard to the protection of others, we also consider that the hospital has not established this ground for the patient’s continued detention under section. The Home Office’s statements to that effect are also therefore not borne out by the evidence. Our reasons for this conclusion are as follows:

(1)

Dr Driscoll accepts that the patient’s treatment with Goserelin has reduced one element of the risk, namely his sexual drive. We regard the taking of this anti-libidinal medication by the patient as an important distinguishing feature between now and the time of the index offence.

(2)

We accept and share the validity of Dr Driscoll’s other concerns, namely the patient’s deviant sadistic orientation and his manipulative and deceitful behaviour. However, those concerns can be addressed by stringent conditions to which any discharge would be subject.

(3)

Dr Pearson’s view, which we also share, that the patient continues to present an immediate danger to children of sexual abuse and sadistic violence is expressly premised upon the patient obtaining unsupervised access to a victim. If the patient is prevented by stringent conditions to which any discharge would be subject from obtaining such access, this concern is addressed. We note in particular that the patient’s escorted community leave has all been uneventful.

(4)

The patient’s need for a highly supported environment with experienced and trained staff adverted to by Dr Pearson is also capable of being addressed by the conditions to which any discharge would be subject.

(5)

The evidence, in particular that of Dr Pearson and Ms Rogue, was all to the effect that any treatment could be carried out as effectively in the community as in hospital.

(6)

Dr Driscoll expressed doubts about whether a suitable placement for the patient could be found. However, those doubts do not justify the continued detention of the patient in circumstances where we do not consider that we can reject Mr Jackson’s evidence to the effect that there is potentially a suitable placement. Dr Driscoll accepted that if such a facility existed, the patient could potentially be managed.

(7)

Dr Driscoll’s further concerns with regard to there being an incremental change in the risk involved can, in our view, be addressed by stringent conditions to which any discharge would be subject.

(8)

Dr Somekh is supportive of a deferred conditional discharge for the reasons given in his evidence, which we find compelling.

(9)

The significant increase in the risk of general violence which Ms Rogue believes would occur is premised upon the patient not being in a well supported and supervised environment. We repeat what we have concluded in (4) above.

(10)

We share her view that, given the opportunity, the patient would be likely to engage in further sexual offences. However, stringent conditions are capable of depriving the patient of that opportunity.

(11)

We accept Mr Jackson’s evidence summarised in paragraph 21 above. We are not satisfied in the light of his evidence that, as Ms Godfrey-Morris said, there are no suitable placements. In particular, Tudor View was mentioned by Mr Jackson as a possible placement and he made it clear that in his view this was not the only possibility.

29.

In short, whilst we share the hospital’s grave concerns about the risk which this patient poses, we have come to the provisional conclusion on the evidence adduced before us that a discharge is appropriate, on stringent conditions designed to ensure that he continues to take his anti-libidinal medication and does not have unsupervised access to a potential victim”.

The conditions which the Tribunal decided to impose were as follows: -

“(1)

The patient shall take medication, in particular anti-libidinal medication, as prescribed and comply with any other treatment as directed by his RMO.

(2)

The patient shall reside at accommodation with properly qualified round-the-clock staff experienced in working with violent sexual offenders and such that he is unable to leave it without an escort who is a member of the accommodation’s permanent staff.

(3)

The patient shall, when not in the accommodation, at all times be escorted by a member of the accommodation’s permanent staff.

(4)

The patient shall accept and comply with regular supervision by a consultant psychiatrist and by a social supervisor”.

The claimant attacks conditions (2) and (3). Mr Chamberlain submits that they necessarily and inevitably will involve a deprivation of liberty and cannot properly be regarded as mere restrictions.

I should return to the PH case. PH was 77 years old and had been detained in hospital since found unfit to plead having attempted to kill a child and her parents in 1958. He suffered from paranoid schizophrenia, but this was kept under control and any deterioration would be slow and could be detected by a trained person in good time. His physical health was poor and all the professionals supported a discharge provided that the conditions imposed ensured that his needs in the community could be met. The tribunal imposed four conditions. Two were unobjectionable, requiring him to continue to take and receive medication as prescribed and to accept and comply with regular supervision by a consultant psychiatrist and social supervisor. The two under attack were: -

The court had evidence from the President of the Tribunal, the effect of which was that the reference to appropriate security and the need for an escort was not for the protection of the public but was to facilitate rather than to restrict his freedom. In paragraphs 22 to 24, Keene LJ, who gave the only reasoned judgment, explains why in the circumstances of that case the two conditions under attack did not inevitably mean that he would be in a regime so restrictive that he would be deprived of liberty. The fact that they were to be imposed for his benefit and because of his age, having regard to the length of time he had been detained in hospital, and his physical condition, he would have real difficulties in coping in the community was regarded by the Court as being of central importance and indeed determinative.

In MP v Nottinghamshire Healthcare NHS Trust [2003] EWHC 1782 (Admin), Silber J considered inter alia whether a tribunal had power to defer a direction to discharge on the basis that the restricted patient be transferred to a medium from a high security hospital. Reliance was placed on the PH case. Silber J described it as a very unusual case which depended ‘entirely on its own unique facts’. I would not go quite that far, but it was indeed an unusual case and the crucial matter was that the restrictive conditions were imposed for PH’s own benefit and not for the protection of others.

It is clear that the tribunal in this case accepted that the claimant remained a real danger to young boys in particular if he was ever out in the community unescorted. The care plan which had to be put in place was required to: -

“deal in particular with security levels in the accommodation; the qualifications and level of staffing; the level of care and supervision on a 24 hour basis; the provision of escorts outside the accommodation; details of the accommodation policy in relation to children visiting it; and contingency plans in the event of an actual or anticipated breach of the conditions to which the discharge is subject”. (Paragraph 32).

The purpose of the restrictions was to ensure that the claimant could not get out into the community unsupervised or unescorted. Thus he had to be prevented from leaving the accommodation without an escort and could, if he was out, never be left on his own. He could never therefore be at liberty because, if he was, he would be a danger to young boys. It is in my view quite impossible to argue that what is proposed could amount to anything less than a deprivation of liberty. The fact that MP could be managed in accommodation outside a hospital is nothing to the point if there is a need, as there is in this case, for security which will prevent him from leaving that accommodation or ever being on his own in the community. In the PH case it was at least hoped that the need for an escort might reduce in time and in any event it would not have been a disaster if PH did get out since he was not a danger to others. The circumstances were very different and do not assist MP in this case, whatever weight can properly be attached to the purpose of any restrictions.

I have no doubt that the conditions imposed in this case would inevitably result in a deprivation of liberty. It follows that I agree with the claimant that this claim is not premature. Where, as here, the contention is that there will inevitably be a deprivation of liberty, it is sensible and, I think, desirable that the challenge be brought as soon as possible, if only to avoid unnecessary actions by those who would be responsible for drawing up the care plan.

The claimant has also submitted that the tribunal’s decision was irrational. I am bound to say that I regard it as surprising in the light of the evidence before it and its conclusions of fact. However, I do not think it is necessary to go so far as to find that the decision was irrational. If the proposed conditions had been lawful and somewhere prepared to accept them and ensure that they were complied with could have been found, the decision would not have been regarded as irrational. In reality, this ground adds nothing in the circumstances.

I dealt with the argument based on consent in G’s case. Suffice it to say that I do not accept it for the reasons therein stated.

It follows that the claimant is entitled to succeed. The precise nature of any relief I will determine having heard counsel.