MP v Nottinghamshire Healthcare NHS Trust & Ors

Article 5 of the Convention does not generally confer a right to judicial control over the location, security category or conditions of detention, provided detention remains lawful in an appropriate hospital or institution. A Mental Health Review Tribunal has no statutory power under the Mental Health Act 1983 to order or recommend the transfer of a restricted patient between hospitals. Where the statutory detention criteria remain satisfied, the Tribunal cannot grant an absolute, conditional or deferred discharge. If those criteria are not satisfied, the Tribunal must consider conditional discharge, but cannot impose conditions requiring continued detention. Non-binding recommendations may be made, but they create no enforceable right to transfer.

The claimant was detained in high-security conditions under a hospital order and restriction order following a manslaughter conviction. Earlier Mental Health Review Tribunals had concluded that he did not require high-security conditions and recommended transfer to medium security, but no transfer had occurred.

The Tribunal stated a special case under section 78(8) of the Mental Health Act 1983. It asked about the effect of Article 5, its statutory powers concerning transfer and deferred conditional discharge, and whether the absence of enforcement powers made sections 72 and 73 incompatible with the Convention.

1. Convention. The reasoning in Ashingdane v UK (1985) 7 EHRR 528 was binding and applied. Article 5(1)(e) requires a relationship between the ground of detention and the place and conditions of detention, but is not generally concerned with suitable treatment or conditions where the patient is detained in an appropriate hospital. Article 5(4) does not guarantee judicial control over every detail of detention. Aerts v Belgium (1999) 29 EHRR 50 was distinguishable because the detention there was in a prison wing lacking regular medical attention and a therapeutic environment.
2. Transfer powers. Section 72(3) gives a transfer-recommendation power for non-restricted patients, but no equivalent power exists in section 73. Following Grant v Mental Health Review Tribunal of Trent (The Times, 26 April 1986) and R v Oxford Mental Health Authority Review Tribunal, ex parte Smith 25 January 1995, the Tribunal could neither order nor recommend transfer of a restricted patient as an enforceable statutory act. It could make a non-binding recommendation.
3. Discharge. The Tribunal had first to decide whether the section 72(1)(b) criteria, applied by section 73(1), were satisfied. If they were, no form of discharge, including a deferred conditional discharge, was available. R (IH) v Nottinghamshire NHS Healthcare Trust [2002] EWCA Civ 646 and Secretary of State for the Home Department v Mental Health Review Tribunal [2002] EWCA Civ 1868 concerned patients who satisfied the discharge requirements and did not assist the claimant.
4. Tribunal rules and procedure. Rules 13 to 15 could not be used to achieve substantively what the Act prohibited. Rule 13 was procedural, while transfer decisions were entrusted to the Secretary of State. The Tribunal had asked theoretical questions without determining the relevant facts; fact-finding should ordinarily precede a case stated.
5. The Convention-compatibility questions were answered in the negative. The case was a request for answers to the stated questions rather than a claim requiring dismissal. Costs were subject to detailed assessment.