Secretary of State for the Home Department v Mental Health Review Tribunal

A tribunal may impose conditions on the conditional discharge of a restricted patient under the Mental Health Act 1983 where those conditions do not inevitably amount to a continuing deprivation of liberty. The question under article 5 is one of degree and must be assessed by reference to the actual proposed regime, its cumulative effect and its purpose.

Restrictions directed principally to the patient’s welfare, including supervision, accommodation and escorted outings, need not constitute detention. A discharge from detention remains effective even if the patient must reside in an institution falling within the statutory definition of hospital, provided that the patient is not detained there.

P.H., a restricted patient detained at Broadmoor, applied for discharge. The Mental Health Review Tribunal directed a conditional discharge, deferred until suitable arrangements were in place. Its conditions required medication, psychiatric and social supervision, specialist accommodation with care and security, and an escort whenever P.H. left that accommodation.

The Secretary of State sought judicial review, contending that the accommodation and escort conditions would continue P.H.’s detention and therefore exceeded the Tribunal’s powers. Elias J dismissed the claim: [2002] EWHC 1128 (Admin). The Secretary of State appealed. P.H. cross-appealed on delay and sought to challenge the refusal to award him his costs below.

The central issue was whether the conditions necessarily created an article 5 deprivation of liberty rather than permissible restrictions on movement.

1. The Court unanimously dismissed the Secretary of State’s appeal. Lord Justice Keene, with whom Sir Anthony Evans and Lord Justice Kay agreed, held that conditions attached to a conditional discharge are unlawful only if their necessary effect is a continuing deprivation of liberty. The Secretary of State accepted the burden of showing that result, despite the absence of a final care plan.

2. The article 5 inquiry distinguishes restrictions on movement from deprivation of liberty by degree and intensity. It requires attention to the individual’s concrete situation, including the type, duration, effects and implementation of the restrictions, their cumulative effect, and their purpose. The proposed conditions did not inevitably deprive P.H. of liberty. The Tribunal retained control over the detailed care plan, and the terms used allowed measures short of detention.

3. The security and escort requirements were directed to P.H.’s physical welfare and his ability to manage outside an institution after prolonged detention. They were not shown to be measures for public protection. Welfare-based restrictions could facilitate, rather than prevent, his ability to go out. The Tribunal had therefore not directed an impermissible transfer from one place of detention to another.

4. The Court also rejected the proposition in Secretary of State for the Home Department v Mental Health Review Tribunal for Mersey Regional Health Authority [1986] 1 WLR 1170 that residence in an institution qualifying as a hospital prevented an effective discharge. Discharge from detention is effective if the patient is not detained at the new institution.

5. P.H.’s cross-appeal on delay was dismissed. Article 5(4) requires a context-specific assessment of speed. The 11-week period before judicial review was commenced did not materially extend P.H.’s detention, because discharge remained deferred pending arrangements and approval of a care plan.

6. The costs cross-appeal was allowed. A patient whose personal liberty is directly in issue has an interest requiring separate representation. In the absence of an exceptional reason, a successful patient should recover costs from the losing party. The refusal to award P.H. his costs below was clearly wrong.

• Court of Appeal (Civil Division) — dismissed the Secretary of State’s appeal, dismissed P.H.’s delay cross-appeal, and allowed P.H.’s costs cross-appeal: [2002] EWCA Civ 1868.
• High Court (Queen’s Bench Division, Administrative Court) — Elias J refused to quash the Tribunal’s conditional-discharge decision, but declined to award P.H. his costs: [2002] EWHC 1128 (Admin).