HOUSE OF LORDS
 UKHL 59
on appeal from:  EWCA Civ 646
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Secretary of State for the Home Department and another (Respondents) ex parte IH (FC) (Appellant)
THURSDAY 13 NOVEMBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department and another (Respondents) ex parte IH (FC) (Appellant)
 UKHL 59
LORD BINGHAM OF CORNHILL
1. This appeal raises important questions of principle and practice concerning the conditional discharge from hospital of restricted patients.
2. In March 1995 IH (the appellant) severely mutilated his three-year-old son. He was charged with causing grievous bodily harm with intent to do so. In July 1995, in the Crown Court at Wood Green, he was found not guilty of that offence by reason of insanity. An order was made under section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) authorising his admission to such hospital as might be specified by the Secretary of State for the Home Department. In September 1995 the Secretary of State issued a warrant authorising his transfer to and detention in Rampton Hospital, where he was already confined. Since that time the appellant has been a patient at Rampton. His status throughout has been that of a patient subject to a restriction order without limit of time made under sections 37 and 41 of the Mental Health Act 1983. The appellant does not challenge the lawfulness of his detention before 3 February 2000 or after 25 March 2002. But he contends that his detention between those dates was in breach of his rights guaranteed by article 5 of the European Convention on Human Rights and so unlawful.
3. The appellant was diagnosed as suffering from paranoid psychosis. In July 1996, when his case was first considered by a mental health review tribunal, no order was made for his discharge. Dr Sagar, the appellant's responsible medical officer (RMO) at Rampton, reported to a second tribunal hearing in September 1998 that the appellant's condition had improved to a point which would permit his treatment in less secure conditions at a regional secure unit, but the tribunal made no direction for discharge or reclassification of the appellant's mental disorder. He was still judged to suffer from mental illness and his further detention for the protection of the public was found to be justified. The tribunal endorsed the view of the RMO that the appellant should be transferred to a regional secure unit, but such a transfer required the consent of the Secretary of State and this consent was withheld, so the appellant remained at Rampton. A third tribunal hearing took place on 7 June 1999. Dr Sagar remained of the view that the appellant was free of symptoms and that his mental illness was in a state of natural remission, and a psychiatrist instructed for the appellant recommended his conditional discharge. But Dr Page, by this time the appellant's RMO at Rampton, did not support his application for conditional discharge, which was resisted by the Secretary of State. As it was empowered to do under the Mental Health Review Tribunal Rules 1983 (SI 1983/942) the tribunal adjourned the hearing on these terms:
"Having considered all the medical evidence we have come to the conclusion that [the appellant] is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment.
We adjourn the hearing until 1st Dec 1999 at the latest for a full care plan to be drawn up. The Terms which we consider should probably be attached to the Conditional Discharge are:-
(1) Supervision by a named Social Worker;
(2) Supervision by a named forensic psychiatrist; [the appellant] to be subject to the directions of the Psychiatrist including any relating to drug monitoring;
(3) Residence at a suitable hostel, preferably staffed 24 hours a day.
If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed.
We require Haringey Council to provide full details of a suitable plan at the adjourned hearing."
This reference to Haringey Council embraced the Enfield and Haringey Health Authority, which owed the appellant a duty pursuant to section 117 of the 1983 Act to provide after-care services on his discharge.
4. The health authority made extensive efforts to find forensic psychiatric supervision for the appellant upon any discharge, but it was unsuccessful. This was primarily because Dr Akinkunmi, consultant forensic psychiatrist of the North London Forensic Service, which provided psychiatric services on behalf of the authority, took the view, shared by all his colleagues, that "a proposed conditional discharge
direct into the community was clinically inappropriate, and unsafe". He was willing to admit the appellant to his medium secure unit, but he and his colleagues declined to supervise the appellant as named forensic psychiatrist on conditional discharge. Transfer to the regional secure unit in question was precluded by the Secretary of State's withholding of consent.
5. The tribunal reconvened on 3 February 2000 under the chairmanship of Ms Recorder Cotton QC. Dr Page reported the opinion of Dr Akinkunmi. Her own view was that the appellant was making progress and remained free of psychotic symptoms but that further psychological work was required to address risk areas. She favoured transfer to a regional secure unit. The tribunal considered a body of material which included a letter from Dr Akinkunmi opposing conditional discharge. The decision of the tribunal, recorded on a prescribed form, was (so far as material) in these terms:
"4. Decision of the tribunal:
(d) The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below.
6. Findings of the tribunal concerning the statutory criteria:
The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions (A) or (B) is 'Yes', and the answer to question (C) is also 'Yes'.
The tribunal is obliged to direct the conditional discharge of the patient if the answer to either of the questions (A) or (B) below is 'Yes', but the answer to question (C) is 'No'.
||Decision of the tribunal|
|A. Is the tribunal satisfied that the patient is not now 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 which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?||Yes|
|B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?||Yes|
|C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?||No|
7. Conditions imposed by the tribunal (conditional discharge only): And the reasons for the tribunal's decision
Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a conditional discharge order in the following terms: (1) there shall be supervision by a named social worker; (2) there shall be supervision by a named psychiatrist, preferably by a forensic psychiatrist; (3) [the appellant] shall be subject to the directions of the psychiatrist including any relating to drug monitoring; (4) [the appellant] shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day; (5) [the appellant] shall be excluded from Enfield, Haringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. [The appellant's] discharge shall be deferred until the arrangements listed have been made."
In a written statement dated 28 March 2002 Ms Cotton has helpfully expanded on the tribunal's thinking when it made this decision. Its view was that the appellant probably still suffered from an underlying mental illness but that this did not require continued detention in hospital. It considered that if a conditional discharge were ordered a psychiatric supervisor would be found for the appellant. She continued:
"We found that continued detention of [the appellant] was not necessary, on the basis that the conditions we imposed were to be fulfilled. The imposition of conditions is a very important factor in determining whether a patient can safely be discharged. The requirement for supervision of a patient by a psychiatrist is a standard condition imposed in conditional discharge - that is to say that it is one commonly imposed. It has an important function, however, and I do not consider that the power to recall a patient to hospital can be divorced from the condition of psychiatric supervision. In the case of [the appellant], the ability to recall [the appellant] and the requirement of psychiatric supervision were inseparable as, in practice, without the supervision of a psychiatrist, the power to recall would have been an inadequate safeguard. If one accepts, as I do, that these two are usually inseparable, then the removal of the condition for psychiatric supervision would normally change the Tribunal's answer to the statutory question - otherwise the Tribunal should be granting the patient an absolute discharge."
Thus, it seems safe to infer that had the tribunal foreseen that the conditions which it laid down could not be fulfilled it would not have directed that he be discharged absolutely but that his detention be continued.
6. Further attempts were made by the health authority to find a psychiatrist willing to supervise the appellant but without success and his detention continued. On 25 July 2001, at the suggestion of the court, the Secretary of State referred the case back to the tribunal and there was a further hearing in January and March 2002 under the chairmanship of Mr Macleod QC. In detailed written reasons dated 25 March 2002 this tribunal found that the appellant was and always had been suffering from a current mental illness which was in remission but with a significant risk of relapse; that it was appropriate for the appellant to be detained in hospital for treatment of his illness; that the evidence of the need for hospital treatment was compelling; and that while it had regard to the decision of the previous tribunal it was fully satisfied on the material before it that it was making the appropriate decision.
7. In his submissions to the House on behalf of the appellant, Mr Owen QC made no criticisms of the efforts made by the health authority to secure compliance with the conditions indicated by the tribunal in its decisions of 7 June 1999 or 3 February 2000, nor did he impugn in any way the professional integrity or competence of Dr Akinkunmi or any of the other psychiatrists who shared his opinion. But he contended that the appellant's rights under article 5 of the Convention had been violated in four major respects: first, because the tribunal had lacked the power to secure compliance with its conditions and so had lacked the coercive power which is one of the essential attributes of a court; secondly, because, failing compliance with its conditions within a reasonable time (a matter of months), the tribunal failed to discharge the appellant absolutely, so rendering his continued detention unlawful; thirdly, because, on the health authority's failure to secure compliance with the tribunal's conditions, the tribunal had been unable to reopen and reconsider the case; and, fourthly, because the psychiatrists, as hybrid public authorities within the scope of section 6(3)(b) of the Human Rights Act 1998, had failed to act compatibly with the appellant's Convention rights by affording him psychiatric supervision and treatment in accordance with the conditions laid down by the tribunal. To put these submissions in context, reference must be made to the 1983 Act, to the Human Rights Act 1998 and to the Convention and the relevant Convention jurisprudence.
The 1983 Act
8. So far as relevant to this case, section 37 of the 1983 Act provides:
"Powers of courts to order hospital admission or guardianship
37(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 illness, psychopathic disorder, severe mental impairment or mental impairment 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, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or . . .; 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."
Section 37 is reinforced by section 41, of which subsections (1)-(3) and (6) are relevant:
"Power of higher courts to restrict discharge from hospital
41(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, either without limit of time or during such period as may be specified in the order; 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;
(aa): none of the provisions of Part II of this Act relating to after-care under supervision shall apply;
(b) no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) 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 medical officer; 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.
(6) While a person is subject to a restriction order the responsible medical officer 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."
9. Sections 70-73 of the Act, so far as relevant, and as recently amended, provide:
"Applications to tribunals concerning restricted patients
70. A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to a Mental Health Review Tribunal -
(a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order, hospital direction or transfer direction; and
(b) in any subsequent period of 12 months
References by Secretary of State concerning restricted patients
71(1) The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.
(2) The Secretary of State shall refer to a Mental Health Review Tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.
72(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, 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 they are 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 they are not satisfied -
(i) 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 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 or safety of the patient or for the protection of other persons that he should receive such treatment; 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.
(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard -
(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and
(b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.
(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 do 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.
(5) Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject), the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.
(6) Subsections (1) to (5) above apply in relation to references to a Mental Health Review Tribunal as they apply in relation to applications made to such a tribunal by or in respect of a patient.
(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.
Power to discharge restricted patients
73(1) Where an application to a Mental Health Review 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 such a tribunal, the tribunal shall direct the absolute discharge of the patient if -
(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) the tribunal are 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.
(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 their 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."
10. Section 117(2) of the Act as amended provides:
"(2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject."
In R(K) v Camden and Islington Health Authority  EWCA Civ 240,  QB 198, the Court of Appeal held that this section does not impose on health authorities an absolute obligation to implement the conditions for a patient's discharge from hospital required by a tribunal; the authorities' duty is, in general, to use reasonable endeavours to secure compliance with those conditions.
The 1998 Act