W v Doncaster Metropolitan Borough Council

Where a restricted patient’s conditional discharge depends on community treatment, supervision or accommodation which the tribunal treats as an essential prerequisite, the conditions and release are inseparable. If the necessary arrangements cannot be made despite best endeavours, continued detention may remain lawful, although the tribunal must reconsider the case.

Under Mental Health Act 1983, section 117 does not impose an absolute duty to deliver every proposed after-care arrangement. The responsible authority must use best, or reasonable, endeavours loyally to implement the tribunal’s conditions. A failure to secure a placement is not unlawful where genuine professional concerns and unavailable support prevent implementation despite those endeavours.

W was a restricted mental-health patient. In July 2001 a Mental Health Review Tribunal ordered a deferred conditional discharge. It required psychiatric supervision, social supervision and residence in accommodation approved by the psychiatrist and named social worker.

The local authority did not approve W’s preferred hostel. It identified concerns about staffing, risk management and the absence of community support in the proposed area. A further tribunal in March 2002 directed an immediate conditional discharge to that hostel.

W claimed that his detention between the two tribunal hearings resulted from the authority’s breach of its after-care duty under section 117 of the Mental Health Act 1983. He claimed false imprisonment and damages under the Human Rights Act 1998. Stanley Burnton J dismissed the claim. The central issue was whether the authority had unlawfully failed to implement the deferred conditional discharge.

1. Appeal dismissed. Scott Baker LJ, with whom Mance LJ and Judge LJ agreed, held that W’s continued detention was lawful. The relevant question was whether the three Winterwerp criteria remained satisfied: true mental disorder, a kind or degree warranting confinement, and persistence of that disorder for continued confinement.

2. W remained affected by schizophrenia, controlled by medication and supervision. The July 2001 tribunal had treated approved accommodation, psychiatric supervision and social supervision as integral to safe release. The discharge was therefore conditional upon arrangements which were an essential prerequisite, rather than an unconditional entitlement to release delayed only for administrative implementation.

3. The court applied the distinction recognised in R (IH) v Secretary of State for the Home Department [2003] UKHL 59. If expected community treatment is an essential prerequisite and cannot be provided, continued detention is lawful pending reconsideration by the tribunal. By contrast, where such arrangements are not essential, discharge cannot be unreasonably delayed merely because preferred arrangements cannot be made. The latter was the position considered in Johnson v United Kingdom (1997) 27 EHRR 296, not this case.

4. Section 117 imposed a duty to use best, or reasonable, endeavours to provide the necessary after-care; it did not impose an absolute duty to achieve every condition irrespective of practicability. The authority made genuine professional assessments, explored alternatives and faced unavailable support outside its area. It neither nullified the tribunal’s decision nor failed in its section 117 duty.

5. There was consequently no false imprisonment or breach of article 5 of the European Convention. A section 117 authority was not the detaining authority or the body responsible for article 5(4) review. The court added that tribunals should state expressly when continuing mental illness can be safely managed in the community only if the specified conditions are implemented.

• Court of Appeal (Civil Division): Appeal dismissed: [2004] EWCA Civ 378.
• High Court (Administrative Court): Stanley Burnton J dismissed W’s claim. The citation is not stated in the judgment.