Mental health

R (on the application of Lee-Hirons) v Secretary of State for Justice: Court of Appeal, Civil Division: 1 May 2014

Recall to hospital – Claimant having mental health problems – Crown Court ordering claimant be detained in hospital – Claimant being conditionally discharged – Defendant secretary of state recalling claimant to hospital

The claimant had been admitted to hospital on two occasions. On his second discharge he had been diagnosed with chronic paranoid delusional disorder, drug misuse and a sociopathic personality disorder. Subsequently, he was convicted of burglary and arson. When sentenced, a hospital order and a restriction order were made pursuant to sections 37 and 41 of the Mental Health Act 1983 (the 1983 act).

Fifteen months later, the claimant applied to the First-tier Tribunal (Health, Education and Social Care Chamber) (the FTT) for discharge from hospital. The FTT decided that, notwithstanding earlier diagnoses, it was not satisfied that the claimant had paranoid schizophrenia but found that he did have an antisocial personality disorder. It was satisfied that treatment could be provided and it was possible that such treatment could be provided in the community. The claimant was conditionally discharged.

The following month, the claimant’s social supervisor requested a formal recall as the claimant’s mental health had deteriorated and because he presented an increased risk to the public. The same day, the decision was taken on behalf of the defendant secretary of state to recall the claimant pursuant to the power conferred by section 42(3) of the 1983 act. A formal signed recall warrant was sent which stated the hospital to which the claimant was to be recalled. The warrant did not give reasons for the recall.

At the time the warrant was executed, the social supervisor informed the claimant that he was being recalled because of the deterioration in his mental health. Five days later, the secretary of state wrote to the doctor who had been the claimant’s responsible clinician while he had been on conditional discharge and stated that he should inform the claimant as soon as possible, and in any event within 72 hours, of the reasons for his recall.

Two weeks after his recall, the claimant met with his new responsible clinician and the social supervisor’s report was read to him.

On a reference to the FTT, it determined that the claimant had been properly detained. The claimant issued proceedings seeking judicial review of the decision to recall him. He contended that his recall had been effected unlawfully and that his subsequent detention had been unlawful. He sought damages for false imprisonment or pursuant to article 5 of the European Convention on Human Rights. His application was dismissed.

The judge held that the secretary of state had not been bound, under a duty either at common law or under article 5, to provide his reasons for recalling a patient in writing at the time of recall. He further found that the reason given to the claimant when he had been detained had simply been that his mental health had deteriorated. The claimant appealed.

He submitted, inter alia, that: (i) the secretary of state had been under a duty to provide his written reasons for the recall when the warrant was executed but had failed to do so; and (ii) the oral reasons that had been given to him when the warrant was exercised had been inadequate.

The appeal would be dismissed.

(1) Practical considerations in cases of decisions to recall, which might be made as a matter of urgency, militated against a requirement of written reasons as opposed to an oral explanation. Further, the advent of email and word processors did not justify a stricter rule requiring writing. Article 5 of the Convention required that the patient had to be promptly and adequately informed of the facts and legal authority relied on to deprive him of his liberty, but it did not require that information to be given to the patient immediately when he was detained.

Article 5.1 did not require the reasons for the detention of a patient to be given to him when he was detained; a fortiori it did not require those reasons to be given in writing when the patient was detained. Article 5.2 required those reasons to be adequately and promptly given to him following his detention. Furthermore, it was significant that article 5.2 did not require written reasons for apprehension and did not distinguish between arrest on suspicion of a criminal offence and detention in circumstances of conditional discharge and recall to hospital (see [28], [29], [32], [36], [55], [57] of the judgment).

The absence of written reasons had not, therefore, rendered the claimant’s detention unlawful (see [55] of the judgment).

Christie v Leachinsky [1947] 1 All ER 567 considered; X v United Kingdom (Application 7215/75) [1981] ECHR 7215/75 considered; Van der Leer v Netherlands (Application 11509/85) (1990) 12 EHRR 567 considered; R (on the application of Wooder) v Feggetter [2002] All ER (D) 243 (Apr) considered.

(2) The secretary of state’s policy for informing restricted mentally disordered patients recalled to hospital under section 42(3) of the 1983 act, which included an obligation that the patient be provided with an explanation for the recall as soon as possible after re-admission and in any event within 72 hours, and a written explanation within 72 hours, satisfied the requirements of article 5.2 of the Convention.

If that obligation was complied with, it ensured that the patient understood the full reasons for his recall, was able to instruct a solicitor if he wished, could discuss those reasons with his responsible clinician and could prepare for the tribunal hearing that resulted from the secretary of state’s duty to refer the patient’s detention to the tribunal. So far as article 5 of the Convention was concerned, adequate reasons did not have to be given when a person was detained. A failure to provide adequate reasons promptly thereafter would result in a breach of article 5.2, but not of article 5.1 (see [39], [41], [42], [54], [57] of the judgment).

Common law did not require more to be given to a patient when a recall warrant was executed than had been given to the claimant in the instant case. The brief reason that had been given to him when he had been recalled had sufficed to enable him to instruct his solicitor to challenge the detention. However, the secretary of state had not complied with his duty to provide adequate reasons within 72 hours. The reasons for that failure had not been good ones.

There had, therefore, been a clear and admitted breach by the secretary of state of his policy to provide an adequate explanation of recall within 72 hours at most, and similarly a breach of article 5.2 of the Convention. However, those breaches had not rendered unlawful what had originally been a lawful recall. A failure to comply with article 5.2 did not of itself constitute a breach of article 5.1. At common law, a breach of a public law duty rendered a detention unlawful if it affected the decision to detain.

Under established law, a failure timeously to provide full reasons for a lawful detention did not of itself affect the decision to detain or to continue to detain. Therefore, it had not rendered the detention in the instant case unlawful at common law (see [42]-[45], [47], [54], [57] of the judgment).

R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same [2011] 4 All ER 1 applied; R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 4 All ER 975 applied; Fox, Campbell and Hartley v United Kingdom (Applications 12244/86, 12245/86 and 12383/86) [1990] ECHR 12244/86 considered.

Decision of Dingemans J (2013) 134 BMLR 187 affirmed.

John McKendrick (instructed by Stephens Scown LLP, Exeter) for the claimant; Martin Chamberlain QC (instructed by the Treasury Solicitor) for the secretary of state; Sonia Hayes for Partnerships in Care Ltd as interested party.