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There will be political costs in both the drafting and enactment of new legislation and the legislative time it will occupy. PRE |
The incompatibility having been established, the declaration under section 4 should be made. PRE |
In this context, it is salutary to recall that a declaration of incompatibility does not oblige the government or Parliament to do anything. PRE |
This point was made in para 343 of Nicklinson: An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. PRE |
By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. PRE |
A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. PRE |
In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. PRE |
And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing. PRE |
In my view, there is no reason that this court should feel in any way reticent about the making of a declaration of incompatibility. Ratio |
To the contrary, I consider that we have been given the power under section 4 of HRA to do so and that, in the circumstances of this case, it would be wrong not to have recourse to that power. Ratio |
Conclusion RPC |
I would allow the appeal and make a declaration that sections 1 and 3 of CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention. RPC |
Under the Mental Health Act 1983 (the MHA), the Crown Court may impose a hospital order together with a restriction order upon a mentally disordered offender, if this is considered necessary to protect the public from serious harm. STA |
This means that the patient is liable to indefinite detention in hospital for medical treatment and can only be discharged by the Secretary of State for Justice or the First-tier Tribunal (the FtT). STA |
Such a discharge can be conditional, which means that the patient remains subject to recall to hospital, as well as to whatever conditions are imposed by the Secretary of State or the FtT. STA |
The question in this case is whether the conditions imposed can, if the patient consents, be such as would amount to a deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights (ECHR). Ratio |
The patient in this case is anxious to get out of hospital and is willing to consent to a very restrictive regime in the community in order that this can happen. ARG |
The Secretary of State argues that this is not legally permissible. ARG |
The factual background FAC |
The patient was born on 11 July 1983 and so is now aged 35. FAC |
He has a diagnosis of mild learning disabilities, autistic spectrum disorder, and pathological fire setting. FAC |
On 27 April 2001, when aged 17, he was convicted of arson, being reckless as to whether life would be endangered, and arson. FAC |
He was made the subject of a hospital order under section 37 of the MHA, together with a restriction order under section 41. FAC |
Apart from a brief period from December 2006 to April 2007, when he was conditionally discharged, he has been detained in hospital ever since. FAC |
He is considered to represent a serious risk of fire setting and of behaving in a sexually inappropriate way towards women. FAC |
His current application to the FtT for a conditional discharge was heard on 15 May 2015. FAC |
His responsible clinician and the treating clinical team opposed his discharge but considered that he would benefit from a change of environment and a transfer to another low secure forensic unit. FAC |
Two external experts considered that he could be safely managed in the community under a conditional discharge, provided that a suitable care plan was in place. FAC |
There was no plan at that stage, but it was envisaged that a suitable plan would involve a level of restriction, supervision and monitoring which would amount to a deprivation of liberty within the meaning of article 5 of the ECHR, as explained by this court in Surrey County Council v P; Cheshire West and Chester Counc... |
In short, he would be required to live at a particular place, which he would not be free to leave, and would not be allowed out without an escort. FAC |
He was prepared to consent to such a placement and it was agreed that he had the capacity to do so. FAC |
No such placement had yet been identified, and so it was not possible for the FtT to discharge him then. FAC |
But the FtT was invited to rule upon whether, as a matter of principle, it would be lawful to discharge him on condition that he complied with a care plan which would amount to a deprivation of liberty. FAC |
The FtT ruled that it had no such power. FAC |
In doing so, it followed the decision of the Court of Appeal in B v Secretary of State for Justice [2011] EWCA Civ 1608; [2012] 1 WLR 2043 that the FtT had no power to impose conditions which in themselves amounted to a deprivation of liberty. FAC |
It rejected an argument that this could be circumvented by a condition of compliance with a care plan, because the conditions in the care plan would be imposed by the authority which devised and implemented the care plan, and not by the hospital or the FtT. It also found that any consent which the patient purported to ... |
It made no decision as to whether such a discharge would be appropriate in his case. FAC |
On the patients appeal to the Upper Tribunal, Charles J decided that there was power to impose a condition of compliance with a care package, provided that the patient had the capacity to consent to it and did consent: [2015] UKUT 644 (AAC); [2016] MHLR 198. RLC |
On the Secretary of States appeal to the Court of Appeal, the court held that it was bound by the ratio of B, which was clear: there was no power to impose conditions which amounted to a deprivation of liberty, even with the consent of a patient with the capacity to do so, and the appeal was allowed: [2017] EWCA Civ 19... |
The patient now appeals to this court. FAC |
The legal background STA |
Restriction orders have their origin in the Mental Health Act 1959, which is the foundation of the modern mental health law, now contained in the 1983 Act (as later amended, principally by the Mental Health Act 2007). Ratio |
Under an ordinary hospital order, the patient was admitted to hospital for treatment for a defined period, which could be renewed from time to time by his responsible medical officer (now his responsible clinician). Ratio |
He could be discharged by his responsible medical officer, the hospital managers or a Mental Health Review Tribunal (now the FtT). Ratio |
In other words, the length of time he spent in hospital was in the hands of the medical authorities or the tribunal. Ratio |
There was no power to recall him to hospital after discharge, although he could be admitted afresh if the grounds existed. Ratio |
Under what is now called a restriction order, on the other hand, the patients detention lasted indefinitely, and the powers of the responsible medical officer to discharge him or even to grant him leave of absence, could only be exercised with the consent of the Home Secretary (now the Secretary of State for Justice). ... |
The Home Secretary had an independent power to grant a discharge, which could be either absolute or conditional; if conditional, the patient could be recalled to hospital at any time. Ratio |
Those powers survive unchanged into what is now section 42(2) and (3) of the MHA 1983. Ratio |
It is not express, but must be implicit, that the Secretary of State has power to vary the conditions from time to time. Ratio |
Other than that, neither the 1959 Act or its successor the 1983 Act said anything about the kinds of condition which might be imposed and they provided no sanctions for their breach, other than the possibility of recall to hospital. Ratio |
Under the 1959 Act, the Mental Health Review Tribunal could review the case periodically, but could only make recommendations to the Home Secretary and had no power itself to grant a discharge. Ratio |
Thus, from the states point of view, a restriction order combined the advantages of a hospital order with the advantages of indefinite preventive detention and a power of instant recall to hospital after a conditional discharge. Ratio |
All of this was enacted before the United Kingdom recognised the right of individual petition to the European Court of Human Rights in 1966. FAC |
In X v United Kingdom (1981) 4 EHRR 181, a conditionally discharged restricted patient complained that he had been recalled to hospital after three years in the community, without any grounds having to be shown and without immediate recourse to a tribunal which could direct his release. PRE |
The court held that, under article 5(1)(e) of the ECHR, he could only be detained as a person of unsound mind if the criteria laid down in Winterwerp v The Netherlands (1979) 2 EHRR 387 were fulfilled: he must reliably be shown to be suffering from a true mental disorder, established on the basis of objective medical e... |
In Xs case, the court saw no reason to doubt the medical opinion that these criteria did exist when he was recalled to hospital. PRE |
On the other hand, the court did find a breach of article 5(4), which requires that every person deprived of his liberty by 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. PRE |
The result of this (and other developments) was that the 1959 Act was amended in 1982 and then consolidated in the MHA 1983. FAC |
Restricted patients detained in hospital were given the right to apply to a Mental Health Review Tribunal within the same periods that ordinary hospital order patients could apply: that is, once within the second six months after detention and once within every 12 months thereafter (section 70). STA |
A conditionally discharged patient could apply once within the second 12 months after his discharge and within every two-year period thereafter (section 75(2)). STA |
If a conditionally discharged patient is recalled to hospital, his case must be referred to a tribunal within one month of the recall (section 75(1)(a)). STA |
He himself can also apply within the same periods after his recall as he could after his initial detention (section 75(1)(b)). STA |
Allied to that, the tribunal was itself given the power to discharge a restricted patient, either absolutely or conditionally. FAC |
Originally, the tribunal had to be satisfied that the grounds for detention did not exist; but this was amended, following a declaration of incompatibility, by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712). FAC |
As the MHA now stands, the patient must be discharged if the tribunal is not satisfied that all the grounds for his detention continue to exist: ie that he is suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for med... |
If the tribunal is (a) not so satisfied and (b) is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for medical treatment, it must direct his absolute discharge (section 73(1)). STA |
Where (a) applies but (b) does not, the tribunal must direct his conditional discharge (section 73(2)). STA |
Where a tribunal directs a conditional discharge, the Secretary of State may recall the patient to hospital at any time under section 42(3) (section 73(4)(a)). STA |
The patient must also comply with the conditions imposed by the tribunal at the time or by the Secretary of State at any later time (section 73(4)(b)). STA |
The Secretary of State may vary the conditions set either by the tribunal or by himself at any time (section 73(5)). STA |
Thus the Secretary of State is in complete charge of what the conditions are and whether the patient should be recalled to hospital. STA |
There are no sanctions for breach of the conditions other than recall to hospital, which may be at any time. STA |
No criteria for recall are laid down in the MHA. STA |
However, the logic of X v United Kingdom is that at least the Winterwerp criteria must be satisfied; and in any event, the tribunal will have to discharge the patient once more if not satisfied that the MHA criteria are met (and see R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687, (2007) 98 BMLR... |
However, the MHA says nothing, and has never said anything, about what the conditions may be. FAC |
In practice, the Secretary of State will usually impose conditions of residence at a stated address and for both clinical and social supervision. FAC |
The social supervisor provides practical support, for example in accessing the aftercare services to which the patient is entitled under section 117 of the MHA, and is expected to have regular meetings with the patient (Ministry of Justice, Guidance for social supervisors, 18 March 2009). FAC |
The clinical supervisor is responsible for the regular assessment of the patients mental health and monitoring his medication (Ministry of Justice, Guidance for clinical supervisors, 18 March 2009). FAC |
The Ministry expects reports from both supervisors after the first month and every three months thereafter. FAC |
It is usually a condition that the patient shall comply with treatment as directed by the clinical supervisor (para 23 of the Guidance for clinical supervisors). STA |
However, the power to impose treatment without consent upon hospital patients, by force if need be, contained in section 63 of the MHA, does not apply to conditionally discharged restricted patients (section 56(3)(c), as substituted by section 34(2) of the 2007 Act). STA |
A patient is entitled to refuse treatment unless he lacks the capacity to make the decision, in which case the Mental Capacity Act 2005 (MCA) may permit treatment which is in his best interests, but will only permit coercion in order to impose treatment in very limited circumstances (MCA, sections 5 and 6). STA |
Hence, in R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin); (2007) 10 CCLR 306, Holman J rejected a challenge to the legality of a condition to comply with treatment as being contrary both to the common law right to choose what medical treatment to have and to the right to respect for private life in arti... |
Although the condition said shall comply, the patient remained free to choose whether or not to have the treatment at each and every time when he was required to do so. PRE |
That refusal would not, by itself, necessarily lead to his recall to hospital. PRE |
Nevertheless, the Secretary of States policy on recall states that failure to comply with medication will usually trigger consideration of whether the patient should be recalled, as would non-compliance with other conditions. PRE |
Whether the patient is in fact recalled depends on a range of factors (Ministry of Justice, The recall of conditionally discharged restricted patients, 4 February 2009, paras 5 and 7). PRE |
The arguments ARG |
The purpose of conditional discharge is to enable the patient to make a safe transition from the more institutional setting of a hospital to a less institutional setting in the community. ARG |
Transition through progressively less secure hospital conditions before discharge into the community is common and conditional discharge is part of the same continuum. ARG |
As Lord Bingham put it in R (H) v Secretary of State for the Home Department [2003] UKHL 59; [2004] 2 AC 253, at para 26: the conditional discharge regime, properly used, is of great benefit to patients and the public and conducive to the Convention object of restricting the curtailment of personal liberty. ARG |
If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permits that possibility to be explored and, it may be, tried. ARG |
So why, in an appropriate case, asks Mr David Lock QC on behalf of the patient, should that purpose not be served by a transition into a community setting which is different from a hospital but nevertheless amounts to a deprivation of liberty, because the patient is under continuous supervision and control and not free... |
He argues that there is nothing in either the common law interpretation of section 73(2) (or for that matter section 42(2)) or in article 5 of the ECHR to prevent the imposition of such a condition where the patient consents to it and has the capacity so to do. ARG |
As to the common law, the interpretation of section 73(2) (and section 42(2)) may depend, in part at least, on what is meant by discharge. ARG |
Does it mean, as the patient argues, discharge from detention in the hospital where he is currently detained or, as the Secretary of State argues, discharge from the liability to be detained? If it means the latter, then a condition of continued detention, albeit not in a hospital, would not amount to a discharge. ARG |
If it means the former, then that obstacle at least is removed. ARG |
In Secretary of State for the Home Department v Mental Health Review Tribunal for Mersey Regional Health Authority [1986] 1 WLR 1170, Mann J held that it meant discharge from hospital, so that a condition could not be imposed that the patient reside in another hospital, even if not under conditions of detention. ARG |
In R (Secretary of State for the Home Department) v Mental Health Review Tribunal, PH as interested party [2002] EWHC 1128 (Admin); [2002] MHLR 241, known as PH, Elias J held that it meant discharge from detention in hospital, so that there could be a discharge on condition of residence in another hospital: but he also... |
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