Djaba v West London Mental Health Trust & Anor

A tribunal reviewing a restricted patient’s detention under the Mental Health Act 1983 has jurisdiction only to apply the statutory discharge criteria. It cannot import an assessment of detention conditions, proportionality or family visiting arrangements into that inquiry under Articles 5 or 8 ECHR. Convention challenges to conditions must be pursued by judicial review, where effective protection is available. Section 3 of the Human Rights Act 1998 does not authorise a distorted reading of clear statutory language to enlarge the tribunal’s jurisdiction.

Jasmin Djaba was a restricted patient detained in hospital under the Mental Health Act 1983. The First-tier Tribunal refused his application for discharge on 23 November 2015, finding that the statutory detention criteria remained satisfied. The Upper Tribunal refused to set aside that decision on 19 July 2016. On a second appeal, the central issue was whether the tribunal had to assess the proportionality and Convention compliance of the appellant’s conditions of detention, including restrictions on family contact, under Articles 5 and 8 ECHR, or whether its jurisdiction was confined to the statutory discharge tests.

The appeal was dismissed.

1. For a restricted patient subject to a restriction order, the Tribunal’s powers under sections 72 and 73 of the Mental Health Act 1983 are confined to the statutory questions governing discharge. They do not include a power to scrutinise or regulate the conditions of detention.
2. The relevant questions were whether the appellant’s mental disorder made detention for medical treatment appropriate, whether treatment was necessary for his health or safety or the protection of others, and whether appropriate treatment was available. The FTT and UT were correct that each question was answered affirmatively. Conditions of detention and family visiting arrangements fell outside those questions.
3. McCombe LJ treated the reasoning in Secretary of State for Justice and Welsh Ministers v MM and PJ [2017] EWCA Civ 194 as directly applicable. The tribunal’s discharge power was distinct from any power to regulate detention conditions. A challenge to Convention illegality or disproportionality had to be brought by judicial review. The reliance on the narrower passage in that authority as its ratio was rejected.
4. The reliance on R (H) v Secretary of State for Health [2005] UKHL 206 was misplaced. That decision concerned speedy review of the lawfulness of detention under Article 5(4), not the wider legality of detention conditions. The Convention did not require every issue arising from detention to be determined by the same tribunal.
5. Sales LJ added that section 3 of the Human Rights Act 1998 could not be used to distort the clear statutory allocation of jurisdiction where judicial review provided an effective remedy. Arden LJ agreed with both judgments and emphasised that a patient challenging detention conditions should apply for judicial review in the Administrative Court.

• Court of Appeal (Civil Division): [2017] EWCA Civ 436 — appeal dismissed.
• Upper Tribunal (Administrative Appeals Chamber): decision dated 19 July 2016 — refused to set aside the First-tier Tribunal’s decision.
• First-tier Tribunal (Health, Education and Social Care Chamber): decision dated 23 November 2015 — refused discharge.