R (K) v Camden and Islington Health Authority

A health authority’s duty under section 117 of the Mental Health Act 1983 does not require it to secure, regardless of practicability, the services needed to fulfil conditions imposed by a Mental Health Review Tribunal. The authority must use all reasonable endeavours, with reasonable expedition and diligence, to make the necessary after-care arrangements.

Article 5 of the Convention does not convert that duty into an obligation to perform the impossible. If the arrangements remain impracticable despite reasonable efforts, the appropriate response may include a fresh tribunal reference. Any domestic public law claim must be directed against the public authority responsible for the alleged unlawful act or omission.

A restricted patient detained under the Mental Health Act 1983 was granted a conditional discharge by a Mental Health Review Tribunal. Her discharge depended upon residence with her parents and supervision by a forensic consultant psychiatrist. No psychiatrist was willing to undertake that supervision because the proposed arrangement was considered clinically unviable.

The responsible health authority unsuccessfully used reasonable endeavours to obtain the required supervision. Burton J held that section 117 required those endeavours but did not impose an absolute duty to implement the tribunal’s conditions. The patient appealed.

The principal issue was whether section 117 imposed an absolute duty to provide the services required by the conditional discharge. The court also considered the consequences of articles 5(1) and 5(4) of the Convention where a tribunal’s discharge conditions cannot be implemented.

1. The appeal was dismissed unanimously. Section 117 of the Mental Health Act 1983 did not impose an absolute obligation upon the health authority to secure forensic psychiatric supervision meeting the tribunal’s condition. The authority had taken every reasonable step available to it, and the condition remained impracticable.

2. Lord Phillips MR held that section 117 imposed a duty to provide after-care services, but the nature and extent of those services remained to a degree within the authority’s discretion. The authority had to consider competing demands on its budget. In relation to tribunal conditions concerning medical care, it should normally use reasonable endeavours to implement them. A failure to do so without strong reasons would probably be unlawful. An interpretation imposing an obligation which might be impossible to perform would be manifestly unreasonable.

3. The decision in R v Ealing District Health Authority, Ex p Fox [1993] 3 All ER 170 supported a duty to act with reasonable expedition and diligence, rather than an absolute duty to achieve the required result. The decisions concerning R v Mental Health Review Tribunal, Ex p Hall did not establish any wider obligation.

4. Lord Phillips MR considered that continued hospital detention would not violate article 5 where the patient remained mentally ill, treatment was necessary for the patient’s health or the protection of others, and appropriate community treatment could not practicably be arranged despite all reasonable endeavours. Where the patient was no longer of unsound mind, however, any deferral of discharge had to remain proportionate and could not become indefinite. The rigidity resulting from Campbell v Secretary of State for the Home Department [1988] 1 AC 120 might require reconsideration in such a case.

5. Buxton LJ agreed that neither article 5 nor section 117 imposed an impossible duty upon the health authority. He considered that an article 5 remedy for unlawful detention would have to be sought against the authority responsible for the detention, not an authority unable to provide the desired treatment. Sedley LJ likewise held that the State must use reasonable means to fulfil conditions upon which liberty depends. Judicial review could control a professional decision which was dishonest, irrational or based upon irrelevant considerations, but it could not substitute judicial opinion for an honest clinical judgment.

• Court of Appeal (Civil Division): The court unanimously dismissed the patient’s appeal and upheld Burton J’s construction of section 117 of the Mental Health Act 1983. Leave to appeal to the House of Lords was refused.
• Queen’s Bench Division (Administrative Court): Burton J dismissed the judicial review claim. He held that the health authority was required to take all reasonable steps to satisfy the tribunal’s conditions, but was not subject to an absolute duty to achieve their implementation. No separate citation is stated.