Regina v. Secretary of State for the Home Department and another (Respondents) ex parte IH (FC) (Appellant)

A mental health review tribunal may defer a restricted patient’s conditional discharge while necessary community arrangements are made. Its status as a court does not depend on possessing power to compel third parties to implement the conditions.

If the arrangements prove impracticable, article 5(4) requires the tribunal to reconsider its provisional decision promptly. Continued hospital detention remains lawful under article 5(1)(e) where the patient’s mental disorder still warrants confinement and community treatment is unavailable. Where the medical grounds for confinement have ceased, discharge cannot be deferred unreasonably.

An authority responsible for after-care must use its best endeavours to implement the conditions. It has no absolute duty to secure compliance.

The appellant was a restricted patient detained under sections 37 and 41 of the Mental Health Act 1983. A mental health review tribunal decided in February 2000 that he could be conditionally discharged if psychiatric supervision, social-work supervision and suitable accommodation were arranged. His discharge was deferred, but no psychiatrist was willing to supervise him in the community because of professional concerns about safety.

The appellant remained in hospital until another tribunal determined in March 2002 that his mental illness and need for treatment warranted detention. He sought judicial review, alleging that the intervening detention violated article 5 of the Convention.

Bell J found violations of articles 5(1)(e) and 5(4): [2001] EWHC Admin 1037. The Court of Appeal held that the tribunal must be able to reconsider a deferred conditional-discharge decision following a material change of circumstances, but found an article 5(1) violation on a separate statutory ground: [2002] EWCA Civ 646, [2003] QB 320. The central issues were whether the appellant’s detention was unlawful, whether the tribunal possessed adequate powers, and what duty the health authority owed in implementing the conditions.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading speech. Lord Steyn, Lord Hobhouse, Lord Scott and Lord Rodger agreed with it.

2. Per Lord Bingham, article 5(4) requires access to a court capable of deciding whether detention is lawful and ordering release where it is not. The tribunal possessed that power. It did not cease to be a court merely because it could not compel a health authority or psychiatrist to implement conditions attached to a proposed discharge. Conditional discharge is compatible with article 5 and enables the least restrictive safe treatment of restricted patients.

3. An article 5(4) violation arose when the conditions could not be implemented within a few months but the tribunal regarded itself as precluded from reconsidering its decision by R v Oxford Regional Mental Health Review Tribunal, Ex p Secretary of State for the Home Department [1988] AC 120. That ruling was displaced. A deferred conditional-discharge decision is provisional. The tribunal must monitor implementation and reconsider the case upon a material change of circumstances, including evidence that the conditions cannot be fulfilled. It may revise the conditions or decide that detention remains necessary.

4. There was no violation of article 5(1)(e). The Winterwerp requirements continued to be satisfied. Unlike the patient in Johnson v United Kingdom (1997) 27 EHRR 296, the appellant had never been found free of a mental disorder warranting confinement. The tribunal considered community treatment safe only if its conditions were met. When they could not be met, the lawful alternative was continued hospital detention rather than unconditional release. Lord Bingham preferred Lord Phillips MR’s analysis in R(K) v Camden and Islington Health Authority [2001] EWCA Civ 240 to the differing views of Buxton and Sedley LJJ.

5. The health authority’s duty under section 117 of the Mental Health Act 1983 was to use its best endeavours to implement the conditions. It was not absolutely obliged to secure a psychiatrist’s participation and could not require a clinician to act contrary to conscientious professional judgment. Whether the psychiatrists were hybrid public authorities was left open.

6. No compensation was awarded for the article 5(4) violation. Public acknowledgment had vindicated the right, the law had been amended, and the appellant had not suffered unlawful detention.

1. House of Lords: The appeal was dismissed unanimously: [2003] UKHL 59. The House affirmed the result below substantially, upheld the displacement of the Oxford ruling and found an article 5(4), but no article 5(1)(e), violation.

2. Court of Appeal: The court held that a tribunal could reconsider a provisional conditional-discharge decision following a material change of circumstances. It found an article 5(1) violation arising from the pre-2001 wording of section 73 of the Mental Health Act 1983: [2002] EWCA Civ 646, [2003] QB 320.

3. Administrative Court: Bell J found violations of articles 5(1)(e) and 5(4) because the appellant’s position had not been resolved sufficiently quickly. He construed section 73(7) as permitting tribunal monitoring and made no declaration of incompatibility: [2001] EWHC Admin 1037.