IH, R (on the application of) v Secretary of State for the Home Department & Anor

The House held that a Mental Health Review Tribunal may make a provisional decision to direct conditional discharge under section 73 of the Mental Health Act 1983 and may reconsider that decision if arrangements to implement the conditions cannot be secured. The tribunal's lack of power to compel third parties to implement its conditions does not, by itself, render it lacking the court-like attributes required by Article 5(4) ECHR. The continued detention complained of did not breach Article 5(1)(e) because medical grounds for detention persisted; but the tribunal's inability, owing to earlier authority, to revisit its decision in a timely way gave rise to a breach of Article 5(4). The duty of the health authority under section 117 is to use its best endeavours to put in place after-care; it is not an absolute obligation to secure compliance.

This case concerned a restricted patient, IH, detained under a hospital order with a restriction order made under sections 37 and 41 of the Mental Health Act 1983 following a finding of not guilty by reason of insanity. The Mental Health Review Tribunal in February 2000 concluded that IH was not then suffering from mental illness requiring hospital detention but deferred directing a conditional discharge until specified conditions (including named psychiatric supervision and suitable residence) were in place. Health and social services were unable to secure a psychiatrist willing to supervise IH in the community and the Secretary of State withheld consent to transfer to a regional secure unit. Subsequent tribunal review in March 2002 found that IH was suffering from a current mental illness warranting continued detention.

The claimant sought judicial review, alleging breaches of Article 5(1)(e) and 5(4) of the European Convention on Human Rights arising from his continued detention between 3 February 2000 and 25 March 2002 and challenged the compatibility of the statutory scheme with the Convention.

• Nature of claim: application for judicial review alleging unlawful detention and Convention incompatibility; relief sought included a declaration of unlawfulness.
• Issues framed: (i) whether the tribunal's inability to secure implementation of its conditional discharge deprived it of court-like attributes under Article 5(4); (ii) whether continued detention after deferral of conditional discharge violated Article 5(1)(e) or 5(4); (iii) the scope of the duty on health authorities under section 117; and (iv) whether psychiatrists were hybrid public authorities under the Human Rights Act 1998.

The House analysed relevant provisions of the Mental Health Act 1983 (notably sections 37, 41, 70-73 and 117), the Human Rights Act 1998 (section 6) and European Court jurisprudence including Winterwerp, X v United Kingdom and Johnson v United Kingdom. The court distinguished Johnson as a case where the patient had been found not to be suffering from mental illness and thus entitled to release; by contrast, in IH the tribunal and medical opinion consistently found continuing medical grounds for detention unless community treatment could be provided. The House upheld the Court of Appeal's modification of the prior Oxford authority to permit tribunals to revisit provisional conditional discharge decisions where implementation proves impossible, thereby avoiding leaving patients 'in limbo'. It concluded that although there had been a procedural breach of Article 5(4) in consequence of the tribunal being precluded from reconsidering its order, there was no breach of Article 5(1)(e) because medical grounds for detention persisted and the health authority had used its best endeavours under section 117. The House dismissed the appeal and declined to award compensation.

Appeal dismissed. The House held that tribunals can make provisional conditional discharge orders under section 73 and must be able to revisit them if the required arrangements cannot be secured; the tribunal's lack of power to compel third parties to implement conditions did not render it lacking court-like attributes under Article 5(4). There was a breach of Article 5(4) because the tribunal was for a time precluded by earlier authority from reconsidering its order, but there was no breach of Article 5(1)(e) because medical grounds for detention remained and the health authority had used its best endeavours under section 117.

First instance: Administrative Court (Bell J) [2001] EWHC Admin 1037. Court of Appeal: [2002] EWCA Civ 646 (decision summarised and relied upon by the House). Appeal to the House of Lords: [2003] UKHL 59 (this judgment).