R (H) v Secretary of State for the Home Department

A tribunal which provisionally decides that a restricted patient should be conditionally discharged must retain power to revisit that decision before directing discharge. It must monitor arrangements for the proposed conditions and respond to material changes. It may vary conditions, direct discharge without particular conditions, or decide that continued hospital detention is necessary. This prevents a patient from remaining in detention without effective review for an unreasonable period, contrary to Article 5(4).

Where a patient has not reliably been shown to remain of unsound mind, discharge may be deferred only for a reasonable and finite period. The Convention does not, however, require the state to provide community psychiatric treatment where clinicians, acting in good-faith professional judgment, will not provide it and hospital treatment remains necessary.

IH was a restricted patient detained in Rampton Special Hospital. In 2000 a Mental Health Review Tribunal decided that he should be conditionally discharged, but deferred discharge pending arrangements for psychiatric and social-work supervision and suitable accommodation. No psychiatrist was willing to supervise him in the community. He remained detained for about two years.

Bell J in the Administrative Court held that the statutory scheme could be read compatibly with the Convention by permitting the tribunal to monitor and amend a deferred conditional discharge, notwithstanding Campbell. He also held that IH's detention had violated Articles 5(1) and 5(4). IH appealed, seeking a declaration of incompatibility under the Human Rights Act 1998. The central question was whether the statutory scheme gave the tribunal adequate powers to prevent an indefinite deferral of release.

1. Appeal dismissed. The court upheld Bell J's conclusion that the statutory scheme could be interpreted compatibly with the Convention. It agreed that IH had been denied the review required by Article 5(4), and that his prolonged detention under the former statutory criteria violated Article 5(1).
2. The court held that the construction of section 73 adopted in Campbell v Secretary of State for the Home Department [1988] 1 AC 120 could no longer govern. A tribunal making a deferred conditional-discharge decision remains seised of the matter until it gives the actual direction for discharge. Its initial decision is provisional. On material fresh information, including an inability to make the proposed arrangements, it may reconsider the conditions and whether discharge remains appropriate.
3. A tribunal must monitor progress so that a patient is not left in detention for an unreasonable time. It may defer for a further period, vary proposed conditions, direct conditional discharge without particular conditions, or decide that continued hospital detention is necessary. It will not normally be appropriate to direct conditional discharge on conditions which cannot be met.
4. Applying Winterwerp and Johnson, where a patient is not reliably shown to remain of unsound mind, discharge is required, although conditions and a reasonable finite deferment may be justified. If the preferred arrangements cannot be made, the tribunal must modify the conditions and direct discharge.
5. Where the patient remains mentally ill and community treatment is necessary to make discharge safe, the Mental Health Act 1983 does not impose an absolute duty to secure that treatment. The responsible health authority must use best endeavours under section 117. If those endeavours fail, the tribunal must reconsider whether hospital detention is necessary. That scheme is compatible with Article 5(1).

• Court of Appeal (Civil Division) — in [2002] EWCA Civ 646, dismissed IH's appeal and upheld the compatibility of the statutory scheme when read to permit reconsideration of a deferred conditional-discharge decision.
• Administrative Court (Bell J) — held that the scheme could be interpreted compatibly with the Convention, notwithstanding Campbell, and that IH's detention had infringed Articles 5(1) and 5(4). The citation of that decision was not stated in the judgment.