Mental Health – tribunal – conditional discharge – human rights – article 5 – compatibility
A Mental Health Review Tribunal had ordered the discharge of IH, who was a restricted patient, on the condition that he received psychiatric supervision. No psychiatrist willing to supervise IH could be found, with the result that he continued to be detained for a further 2 years, between February 2000 and March 2002. IH claimed that his continued detention was a breach of the right to liberty in article 5 and that s73 (2) and/or (7) MHA 1983 were incompatible with article 5 in that MHRTs lacked the power to guarantee that such conditions as they may attach to a deferred order for conditional discharge would be implemented within a reasonable period of time from the making of the order.
The Court of Appeal held that the conclusion in Campbell v Secretary of State for the Home Department, that a tribunal should be compelled to discharge a patient whose condition had deteriorated since the tribunal first considered the matter, was unsatisfactory. The scheme for conditional discharge under ss73 (2) and (7) was compatible with the Convention on the following interpretation:
The tribunal could make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under s117 of the Act made the necessary arrangements to enable the patient to meet those conditions;
The tribunal should meet after an appropriate interval to monitor progress in making those arrangements if they had not by then been put in place.
Once the arrangements had been made, the tribunal could direct a conditional discharge without holding a further hearing.
If problems arose with making arrangements to meet the conditions, the tribunal had a number of options, depending on the circumstances:
- a) It could defer for a further period, perhaps with suggestions as to how any problems can be overcome;
- b) It could amend or vary the proposed conditions to seek to overcome the difficulties that had been encountered;
- c) It could order a conditional discharge without specific conditions, thereby making the patient subject to recall;
- d) It could decide that the patient must remain detained in hospital for treatment.
It would not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient would be unable to comply because it had not proved possible to make the necessary arrangements.
IH appealed to the House of Lords, which upheld the Court of Appeal’s decision. The Lords ruled that there was no breach of IH’s art 5 rights by virtue of the fact that the MHRT lacked the power to secure compliance with the conditions set out in its order. Article 5(1)(e) and (4) required that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention was lawful and if not to order his release. The MHRT had such power. Nothing in art 5 suggested that discharge subject to conditions was impermissible in principle.
When it proved impossible to secure compliance with the conditions in the MHRT’s order of February 2000 within a few months, a violation of IH’s art 5(4) right did occur. IH was left in limbo because the MHRT was prevented by the authority of Campbell from reconsidering its decision. The Court of Appeal was right that Campbell should not be followed and that the MHRT could and should review its decision on conditional discharge if there was a material change of circumstances.
There was no time between February 2000 and March 2002 when IH was unlawfully detained and there was thus no breach of art 5(1)(e). There was a categorical difference between cases like Johnson v UK, where a patient was no longer suffering from mental illness so that if the conditions of discharge could not be met he had to be released, and cases of this kind, where if the conditions could not be met continued detention was necessary: R v Camden & Islington Health Authority, ex parte K.
The duty of the health authority, whether under s117 of the 1983 Act or in response to the MHRT’s order of February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the MHRT, and it had done so. The violation of art 5(4) did not call for an award of compensation since it had been publicly acknowledged and IH’s right thereby vindicated. The law had since been changed (by the Mental Health Act 1983 (Remedial Order) 2001) in a way that should prevent similar violations in future.