Court of Appeal hearing 25th May 2017

How do the Human Rights Act 1998 and the Mental Health Act 1983 fit together?

Should a Mental Health Tribunal (or First Tier Tribunal) limit its deliberations to whether a patient meets the statutory criteria for detention, or should it also consider whether the patient’s Convention rights have been or would be breached by the detention and/or the circumstances of the detention?

That was the question faced by the Court of Appeal when it heard the appeal of one of the most restricted patients in the United Kingdom, JD, on 25th May.

 JD is a young man who suffers from paranoid schizophrenia. Before his detention, he had no criminal convictions. He had briefly studied social sciences in London and worked in a local supermarket to supplement his income. The deterioration in his mental health, which resulted in his detention in a medium secure ward, had no obvious trigger.

Sadly, JD’s deterioration continued after his detention; culminating in his transfer to Broadmoor and a subsequent conviction for 3 assaults. Eventually, he was moved to a “super-seclusion suite” within Broadmoor, consisting of a single room with bathroom facilities. Generally, only nursing staff in protective clothing are allowed to enter the suite to administer medication. Visitors speak to JD through a glass screen. He has been rarely allowed to leave the suite and only in mechanical restraints.

In November 2015 JD appeared before a Tribunal, for a review of his detention under s73 of the Mental Health Act, having been referred by the Secretary of State. He had not sought a review of his detention himself in the preceding three years. It was argued on JD’s behalf that his detention and its conditions infringed his Article 5 and 8 rights. Furthermore, as there had been no improvement in his mental health, he should be transferred to a medium secure unit or the Tribunal should make an extra-statutory recommendation regarding his further treatment. The Tribunal Judge found that the statutory criteria under s73 for JD’s detention were met and made no further orders or recommendations. Critically, she did not address JD’s Convention rights and whether there had been any breaches of those rights in her decision.

On appeal from the First Tier Tribunal, Upper Tier Tribunal Jacobs agreed with JD, that the Tribunal Judge had fallen into error by failing to address his Convention rights, a cogent submission having been made by his counsel. However, he refused to remit the case for a further hearing before the First Tier Tribunal, on the basis that an analysis of whether any infringement of JD’s Article 5 and 8 rights was proportionate could be achieved through the proper application of s73 to the factual evidence.

Leave to appeal was granted by Lord- Justice Moore –Bick who concluded that the case “raised an important point of principle.”

Shortly before the hearing, the Court of Appeal handed down judgment in a case in which the respondent only claimed there were arguable parallels with JD’s; Secretary of State for Justice v MM and Welsh Ministers v PJ [2017] EWCA Civ 194 (“the MM/PJ appeal”). The issue in those appeals was whether a Mental Health Tribunal could authorise a deprivation of liberty under the Community Treatment Order [“CTO”] framework under s17A-E or, put more simply, could the Tribunal authorise a detention in circumstances, which fell outside the powers conferred on it pursuant to the Mental Health Act? Over-turning Charles J’s decision in the Upper Tier Tribunal, the Court of Appeal held that it could not.

That, the respondent argued, was precisely the result for which JD was arguing. If a First Tier Tribunal conducted an assessment of a patient’s Convention rights, it was, in effect, creating an extra-statutory checklist, for which Parliament had not provided. The remedies for any breaches of Convention rights, submitted the respondent, lay within civil courts either through an application for judicial review and/or a damages claim.

During the appeal hearing, submissions were made on JD’s behalf that judicial review could not provide such a vulnerable cohort of patients, some of whom lack litigation capacity, with an effective remedy. That had been recognised by Lady Hale in R(H) [2006] 1 AC 441. Furthermore, what should a Tribunal Judge do, if during the course of hearing evidence about the patient’s detention it became apparent that his Convention rights were being breached by the circumstances of his detention? Should (as Charles J had asked) the judge simply ignore the breach? That could not be right.

Unsurprisingly, the focus of the Court’s questions during submissions was on first, whether PJ’s appeal could be distinguished from MM/PJ and second, the current relevance of Lady Hale’s comments in R (H), now that the Administrative Court regularly resolves factual disputes and sits outside London. The judgment in the MM/PJ appeal had not, in the Court’s view, addressed this.

The Court of Appeal has indicated that judgment may be handed down during July. It will be interesting to see how it addresses this tricky area in which law remains apparently unsettled, but in which swift and effective remedies are vital to those concerned.

JD was represented in the Court of Appeal by Kerry Bretherton QC and Fiona Paterson, instructed by Kate Luscombe of Abbotstone Law.