(back to preceding text)
11. By section 6(1) of the 1998 Act, "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". The Convention rights referred to, scheduled to the Act, include article 5 of the Convention. Section 6(3) of the Act defines "public authority" as including
"(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature."
A person falling within (b) has come to be called a hybrid public authority, bound to act compatibly with the Convention only when exercising public functions. By subsection (6), an act includes a failure to act. Section 2(1)(a) requires domestic tribunals, determining any question which has arisen in connection with a Convention right, to take into account any judgment or decision of the European Court of Human Rights.
12. The provisions of article 5 which bear on this case are these:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention . . . of persons of unsound mind . . ."
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
13. Article 5(4) was the subject of the European Court's decision in X v United Kingdom (1981) 4 EHRR 188, which concerned a restricted patient. Under the Mental Health Act 1959 then in force, a mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the discharge of the patient. The Court held in paragraph 61 of its judgment that this advisory power did not meet the Convention requirement:
"Nonetheless, even supposing Mental Health Review Tribunals fulfilled these conditions, they lack the competence to decide 'the lawfulness of [the] detention' and to order release if the detention is unlawful, as they have advisory functions only . . ."
The legislation was amended to make good this deficiency. Under the sections of the 1983 Act quoted above, the tribunal has power to direct, and not merely recommend, the discharge of a restricted patient.
14. In Winterwerp v The Netherlands (1979) 2 EHRR 387, paragraph 39, page 403, the European Court defined, in terms repeated and applied in many later cases, the conditions to be met before the detention of a person may be justified on grounds of mental illness:
"In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
It is not suggested that there is any dissonance between these requirements and the provisions of the 1983 Act as it now stands.
15. Detailed reference must be made to Johnson v United Kingdom (1997) 27 EHRR 296, since Mr Owen relied on this decision of the Court as the linch-pin of his case and the resolution of this appeal depends in large part on a correct understanding of it. Mr Johnson, who had a history of violence, was convicted of causing actual bodily harm to a passer-by. While in custody awaiting trial he was diagnosed as suffering from mental illness, and on appropriate medical evidence he was made subject on conviction to a hospital order under section 37 of the 1983 Act coupled with a restriction order without limit of time under section 41. He was admitted to Rampton in August 1984, and his case was reviewed by tribunals in 1986, 1987 and 1988 when it was reported that he had made great progress, but no direction was made for his discharge or for re-classification of his illness. At a fourth tribunal hearing in June 1989 the consensus of medical opinion was that he was no longer suffering from mental illness but that he would benefit from help and medical supervision to enable him to rehabilitate himself in the community after nearly five years at Rampton. The tribunal accordingly ordered Mr Johnson's conditional discharge. The conditions were that he should be subject to the psychiatric supervision of a named consultant psychiatrist and to the social work supervision of a nominated psychiatric social worker, and that he should reside in a supervised hostel approved by the psychiatrist and the social worker. His discharge was deferred until suitable accommodation could be arranged. Despite considerable efforts, no satisfactory hostel could be found, partly because of Mr Johnson's own conduct. So he remained at Rampton. At a further review in January 1990, when he sought an absolute discharge, the medical evidence was again that he was no longer mentally ill. But since suitable accommodation had not been found the tribunal again directed that he be conditionally discharged, deferring the discharge until suitable arrangements had been made for supervised accommodation. A period of trial leave in another hospital was then interposed, but this proved unsuccessful and Mr Johnson was returned to Rampton. A sixth tribunal review of the case in April 1991 was in all essentials a repeat of that in January 1990: he was not mentally ill, but he could not cope in the community without supervision and support, and the necessary arrangements could not be made. So the same order was made as in January 1990. At a final review in January 1993, the tribunal ordered Johnson's absolute discharge on the basis that he "is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled for further treatment". Mr Johnson was accordingly released from hospital.
16. Before the Court, Mr Johnson's first contention was that, given the medical evidence and its own assessment in June 1989, the tribunal should then have ordered his immediate and unconditional release. The Court rejected this contention in paragraphs 61-64 of its judgment, as the Commission had done in paragraph 66 of its opinion: both bodies recognised the desirability of making arrangements to ease Mr Johnson's rehabilitation in the community and found no violation in the imposition of conditions to that end.
17. Mr Johnson's alternative submission to the Court was that, while the discharge of a person found to be no longer of unsound mind may be made subject to conditions, such conditions must not hinder immediate or near immediate release and certainly not delay it excessively as had occurred in this case. This argument succeeded. The Commission concluded, in paragraph 67 of its opinion, that in circumstances such as these release may not be indefinitely deferred. The Court was of the same mind. It said, in paragraph 63 of its judgment:
"It is however of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of Article 5(1) and with the aim of the restriction in [Article 5(1)] sub-paragraph (e) and, in particular, that discharge is not unreasonably delayed."
The Court drew attention, in paragraph 66 of its judgment, to the absence of power in the tribunal or the authorities to ensure that the conditions could be implemented within a reasonable time, and to the 12-monthly interval between tribunal reviews, and in paragraph 67 concluded:
"67. In these circumstances it must be concluded that the imposition of the hostel residence condition by the June 1989 Tribunal led to the indefinite deferral of the applicant's release from Rampton Hospital especially since the applicant was unwilling after October 1990 to co-operate further with the authorities in their efforts to secure a hostel, thereby excluding any possibility that the condition could be satisfied. While the 1990 and 1991 Tribunals considered the applicant's case afresh, they were obliged to order his continued detention since he had not yet fulfilled the terms of the conditional discharge imposed by the June 1989 Tribunal.
Having regard to the situation which resulted from the decision taken by the latter Tribunal and to the lack of adequate safeguards including provision for judicial review to ensure that the applicant's release from detention would not be unreasonably delayed, it must be considered that his continued confinement after 15 June 1989 cannot be justified on the basis of Article 5(1)(e) of the Convention.
For these reasons the Court concludes that the applicant's continued detention after 15 June 1989 constituted a violation of Article 5(1) of the Convention."
The Court did not address Mr Johnson's challenge to the lawfulness of the hostel condition (see paragraph 68), nor did it rule on his argument that it was for the authorities to ensure that a placement in a hostel could be guaranteed, if not immediately then within a matter of weeks (paragraph 53). It was argued for Mr Johnson that since the 1989 tribunal had had no power to ensure compliance with its conditions it had lacked a necessary attribute of a court in violation of article 5(4), but neither the Commission (paragraph 77) nor the Court (paragraph 72) regarded this complaint as giving rise to any separate issue.
18. The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case.
19. The Court of Appeal had occasion to consider Johnson, in a factual context very similar to that in the present case, in R(K) v Camden and Islington Health Authority  EWCA Civ 240,  QB 198. The applicant, K, was a restricted patient detained pursuant to orders made under sections 37 and 41 of the 1983 Act. In August 1999, contrary to the advice of K's RMO, the tribunal directed her discharge under section 73 of the Act subject to conditions that she reside with her parents and co-operate with supervision to be provided by a consultant forensic psychiatrist. The respondent health authority did what it could to find a psychiatrist willing to assume responsibility for supervising K while she lived with her parents, but was unsuccessful and K applied for judicial review. The narrow issue in the appeal concerned the extent of the duty of a health authority under section 117 of the Act, and the court's ruling has been noted in paragraph 10 above. But the appeal touched on wider issues. One of these concerned the construction put on section 73(2) of the 1983 Act by the House of Lords in R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department  AC 120. In its judgment in the present case ( EWCA Civ 646,  QB 320) the Court of Appeal neatly summarised the effect of this decision in paragraph 53:
"Section 73 provides for a two-stage process in relation to a conditional discharge. At the first stage the tribunal decides that it will direct the patient's discharge subject to conditions, but defers giving the direction so that arrangements may be made to enable the patient to comply with the conditions. The second stage is reached if and when the tribunal is satisfied that those arrangements have been made, whereupon it directs the conditional discharge. The tribunal is not obliged, or even entitled, to reconsider its earlier decision in order to accommodate any new facts that might cause it to alter that decision."
Another wider issue concerned the impact of Johnson in a case such as the present where discharge was ordered subject to a condition of psychiatric supervision which could not be met.
20. With reference to these wider issues, Lord Phillips of Worth Matravers MR said, in paragraphs 32-36 of his judgment in K's case:
"32 Does the legislative scheme, as interpreted in the Oxford case  AC 120, violate the right to liberty conferred by article 5 of the Convention? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in Johnson's case 27 EHRR 296, the tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur.
33 Where (i) a patient is suffering from mental illness, and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others, and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court of Human Rights in Winterwerp's case 2 EHRR 387 are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither article 5 nor European Court of Human Rights jurisprudence lays down any criteria as to the extent to which member states must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital.
34 If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by article 5.
35 Very different considerations apply to a factual situation such as that considered by the European Court of Human Rights in Johnson's case 27 EHRR 296. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by article 5(1)(e) does not apply. In Johnson's case the court has recognised that, in such circumstances, it may none the less be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson's case suggests that the statutory regime as interpreted in the Oxford case  AC 120, may not be consistent with article 5. If the tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.
36 The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in the Oxford case. If section 73 were to be interpreted in the manner proposed by Woolf J in the Oxford case, the tribunal would be in a position to deal speedily with any contingency and, in particular, to ensure that where proposed conditions proved not to be viable this did not prevent the discharge of a patient entitled to liberty.
21. Buxton LJ agreed with the Master of the Rolls on the result, but expressed differing views on the Convention issues. In paragraphs 39-42 of his judgment he said:
"39 The effect of article 5(4) of the Convention is to entitle a person in the situation of the applicant to have the lawfulness of her detention decided by a body, within the system of the state that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the mental health review tribunal. One necessary characteristic of such a body, if it is to meet the requirements of article 5(4), is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see the passage from the judgment in X v United Kingdom 4 EHRR 188 that is set out in paragraph 12 of the judgment of Lord Phillips of Worth Matravers MR.
40 In the present case, the mental health review tribunal concluded that the detention of the applicant would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included co-operation by the applicant with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the state. If that order were to be effective, as article 5(4) requires, such supervision had to be provided.
41 Johnson v United Kingdom 27 EHRR 296, 324-325, paras 66-67 seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of article 5(1) is committed by the state if, once the mental health review tribunal has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the state.
42 In applying that part of the court's jurisprudence, I would not make the distinction drawn by Lord Phillips of Worth Matravers MR, in paragraph 32 of his judgment, and based on the approach of the European Court of Human Rights in Winterwerp's case 2 EHRR 387, between cases where the mental health review tribunal concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson's case 27 EHRR 296 itself) where the mental health review tribunal finds that the patient is no longer suffering from mental illness but none the less needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson's case, to the prospect of recurrence. In both cases, there is continued detention; the role of the mental health review tribunal in both cases is to exercise the court-like functions required by article 5(4), and under the jurisprudence of article 5(4) the national authorities are equally bound to respect and act on the determination of the mental health review tribunal in either case."
In paragraphs 44-45 he continued:
"44 However that may be, under the Convention jurisprudence referred to in paragraph 5 above, once the mental health review tribunal made a decision as to the applicant's release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the state to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson's case 27 EHRR 296, of indefinite deferral of the release that had been ordered by the mental health review tribunal. That deferral would arguably entail a breach of the Convention. The issue would depend on whether, once the mental health review tribunal had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp's case 2 EHRR 387, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here.
45 In raising the possibility that the applicant's detention became unlawful I have not overlooked Lord Phillips of Worth Matravers MR's view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in Convention terms is the ruling of the mental health review tribunal, the determining body created by article 5(4). If the ruling of the mental health review tribunal is frustrated, in a case where under the Convention jurisprudence the subject should no longer be detained, then the subject is deprived of her article 5(4) protection, as (I think it to be clear) the court would have held in Johnson's case 27 EHRR 296, had the issue not been determined already under article 5(1): see pp 325-326, paras 69-72 of the judgment."
Sedley LJ (in paragraph 53 of his judgment) agreed with Buxton LJ that
"the difference between the Winterwerp class of case and the Johnson class of case is one of degree, not of kind."
The present proceedings
22. In his application for judicial review the appellant contended that he had been unlawfully detained, in violation of his rights under article 5 of the Convention, between 3 February 2000 and 25 March 2002 and that this came about because the relevant legislation was incompatible with the Convention. The application came before Bell J, who did not have the benefit of Ms Cotton's explanatory statement:  EWHC Admin 1037. He thought it arguable that the appellant had been unlawfully detained once a few months after the tribunal's February 2000 order had passed, and could not conclude that the tribunal had then found that he would continue to be lawfully detained until such time as the conditions imposed by the tribunal could be satisfied. With more confidence, he found that the appellant's rights under article 5(1)(e) and (4) had been violated by the failure to resolve his position much more quickly: he had been left in limbo for some twenty-one months. The judge found no breach in the lack of a power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. He construed section 73(7) of the 1983 Act as permitting the tribunal to monitor the situation before making an order for discharge, and so found no incompatibility and made no declaration.
23. The judgment of the Court of Appeal (Lord Phillips of Worth Matravers MR, Jonathan Parker and Dyson LJJ) was delivered by the Master of the Rolls. It held the decision in the Oxford case ( AC 120) to be incompatible with the Convention and ruled (in paragraph 71 of the judgment):
"71 Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the tribunal. Such material may, for instance, show that the patient's condition has relapsed. It may show that the patient's condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a provisional decision, and the tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time."
24. In paragraphs 90 and 91 of its judgment the court considered two different situations, in these terms:
"90 Where the tribunal is not satisfied that a restricted patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, the tribunal must discharge the patient, either absolutely or conditionally. That is the effect of section 73(1) and (2) when read together with section 72(1)(b)(i). The effect of those provisions reflects the first of the three requirements in Winterwerp's case 2 EHRR 387. In order to comply with Winterwerp's case and Johnson's case 27 EHRR 296 a conditional discharge must not be deferred under section 73(7) beyond a reasonable limited period. After that the tribunal must discharge the patient whether or not it has proved possible to put in place arrangements to accommodate the conditions that the tribunal originally wished to impose. If it has not, then the tribunal should make appropriate modification to the conditions so that it will be possible for the patient to comply with them. Thus far there is no incompatibility between the Act and the Convention.
91 It is possible that a tribunal may conclude that a patient is still suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, that this is no longer of a nature or degree that makes it necessary that the patient should be detained in hospital for treatment, even if he cannot receive treatment in the community, but that it is appropriate that the patient should be subject to recall. In such a situation the tribunal may defer discharge for a reasonably limited period to enable arrangements to be put in place for a conditional discharge. If, however, the preferred arrangements prove impossible, the tribunal must make appropriate modifications to the conditions and direct the discharge of the patient. Such a course is necessary because in this situation the second and third requirements in Winterwerp's case will not be satisfied."
The Court of Appeal then turned (in paragraph 92) to the "critical impasse" which occurs
"where a tribunal considers that it is necessary for the health or safety of the patient or the safety of others that the patient continues to receive psychiatric treatment, and that it is reasonable for such treatment to be provided in the community, but the psychiatrists who would have to provide such treatment refuse to do so because they disagree with the tribunal's view that the patient can safely be treated in the community."
The court resolved that impasse in paragraph 96 of its judgment:
"96 We consider that in a case such as the present the provisions of section 73 of the Act operate as follows. Where a tribunal decides (i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of other persons and (ii) that detention in hospital for that treatment is not necessary if, but only if, psychiatric treatment is provided in the community, the tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangements to be made for providing psychiatric treatment in the community. The health authority subject to the section 117 duty will then be bound to use its best endeavours to put in place the necessary after-care. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the health authority is unable to provide the necessary services, the tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision."
In paragraph 98 of its judgment the court made the following summary:
"The following summary of the position of a tribunal considering the conditional discharge of a restricted patient substantially accords with submissions made to us on behalf of the Secretaries of State.
(i) The tribunal can, at the outset, adjourn the hearing to investigate the possibility of imposing conditions.
(ii) The tribunal can 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 section 117 of the Act make the necessary arrangements to enable the patient to meet those conditions.
(iii) The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place.
(iv) Once the arrangements have been made, the tribunal can direct a conditional discharge without holding a further hearing.
(v) If problems arise with making arrangements to meet the conditions, the tribunal has a number of options, depending upon the circumstances; (a) it can defer for a further period, perhaps with suggestions as to how any problems can be overcome; (b) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered; (c) it can order a conditional discharge without specific conditions, thereby making the patient subject to recall; (d) it can decide that the patient must remain detained in hospital for treatment.
(vi) It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements."
In its conclusion (paragraph 100) the court held that the appellant's right under article 5(1) had been violated, but only because the wording of section 73, before its amendment in 2001 by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), permitted detention to be continued provided the tribunal was not satisfied that the patient was not suffering from a relevant mental disorder rather than where the tribunal was satisfied that the patient was suffering from such a disorder: see R(H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening)  EWCA Civ 415,  QB 1.