Can release from hospital be a deprivation of liberty?

19 January 2011 by

Secretary of State for Justice v RB [2010] UKUT 454 – Read judgment

In a fascinating recent case, the Upper Tribunal has departed from a line of court authority to decide that where a patient has been detained under the Mental Health Act 1983, conditionally discharging that patient from hospital subject to conditions which might themselves amount to a form of detention is compatible with Article 5 of the European Convention of Human Rights, the right to liberty .

RB, who was aged 75, had been detained under the Mental Health Act on 30 June 1999 following a conviction for indecent assault on a boy aged under 16. He suffered from a persistent delusional disorder, which rendered him a “strongly misogynistic”, lifelong paedophile.

Following a failed application for discharge from hospital in 2007, on 24 April 2009 the Mental Health Review Tribunal decided that under sections 72 and 73 of the Act, RB could be discharged subject to conditions, including a condition that he reside at a specified care home, and that he did not leave the grounds of that care home except when supervised. If he breached any of these conditions he could be recalled to hospital. RB was keen for the discharge to occur and willing to comply with those conditions.

The Secretary of State sought to oppose the release of RB, and appealed this decision to the Upper Tribunal.

The unusual aspect of the appeal was that the Secretary of State relied in part on Art 5, which enshrines the right to liberty and freedom from arbitrary detention. He argued that according to authority, a discharge to a care home as ordered in the case of RB, having regard to the conditions imposed upon him, amounted to a continuing deprivation of liberty, and was contrary to Art 5 and ultra vires (outside of his powers).

The upshot of this argument was that the discharge order was unlawful, and RB should have remained detained in hospital. It appears that the Secretary of State was motivated by the view that if a patient is not sufficiently safe to be discharged without restrictive conditions placed upon his movement, he should not be released at all.

The authority relied on by the Government included a Court of Appeal decision (R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2002] EWCA Civ 1868 – “the PH case”) and three High Court decisions (R (G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin), R v Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 2194 (Admin) and IT v Secretary of State for the Home Department [2008] EWHC 1707).

The Secretary of State argued that these cases bound the Upper Tribunal to apply the “PH principle”, which provided that the concept of “discharge” under section 73 of the Mental Health Act entailed a release from actual detention, so that when a conditional discharge had such stringent conditions attached that it did not constitute a release from detention, it was unlawful.

The Upper Tribunal declined to follow this line of authority. It said that it was not bound by the Court of Appeal decision in the PH case, since that case had not definitively decided that a discharge required a release from detention (that principle had been addressed in the court below; the CA had simply proceeded on the basis that it was correct). It also said that it was not bound by the more forthright High Court authorities because, pursuant to changes made by the the Tribunals, Courts and Enforcement Act 2007, it was exercising a jurisdiction equivalent to what the High Court had exercised in the past – it was therefore dealing with decisions of a court of co-ordinate jurisdiction, and was not bound to follow its decisions if it considered them to be wrong.

On the substantive issue before it, the view of the Upper Tribunal itself was that the word “discharge” did not necessarily entail a release from detention to a state of liberty. It preferred what it considered to be a more natural approach to the word; it noted that dictionary definitions showed that, depending on context, the word could mean “release from custody”, but could also mean release in the more general sense of “dismiss” or “send away”:

Thus, in ordinary language, a patient may be “discharged” from hospital, without any connotation that he is being released from the deprivation of liberty in the legal sense. In relation to section 72, it seems more natural to read the word “discharge” as meaning simply release from the state there mentioned, that is from “detention in a hospital for treatment”.

This resulted in a much narrower PH principle: a tribunal could not conditionally discharge a person with conditions that amount to detention in a hospital for treatment. Continuing detention in some other environment, however (or presumably a shift to another hospital under conditions which did not amount to detention), would not be ultra vires or a breach of Art 5.

In reaching this decision, the Upper Tribunal appeared perturbed by the invocation of Art 5 as a means of requiring the continued hospital detention of a patient, rather than facilitating his discharge. In paragraph 52 of its judgment it said:

We agree respectfully…that it is “curious” to find the Secretary of State praying in aid Article 5 of the ECHR to deny the patient a conditional discharge. We note the similar comments of Dr. McKenna, from his “perspective as a clinician”, as to the use of the “unusual lever” of cases on human rights to restrict the liberty of a man who “has capacity and who consents (enthusiastically) to the proposed transfer”.

It is perhaps this unease which motivated its reasoning, and its clear desire to avoid following case law which, even if not binding, was to have strong persuasive value. It might be asked why, when the dictionary offers “release from custody” as one of the natural meanings of “discharge”, this was not the most natural interpretation to choose in context. After all, RB’s detention did amount to a form of custody, and as the Upper Tribunal itself noted, the powers of the Mental Health Review Tribunal to order discharge under sections 72 and 73 of the Mental Health Act 1983 were enacted as a direct result of the Strasbourg decision in X v United Kingdom (1981) 4 EHRR 188, which held in relation to Art 5(4) that compulsorily detained patients were entitled to periodic review of their detention by a court with power to direct, rather than simply to recommend, discharge. They were thus enacted to ensure that a prisoner could challenge their detention; discharge was perceived as a means of securing liberty.

On the other hand, it might be argued that if the Government is concerned that dangerous patients are being inappropriately released, the proper means of addressing that issue is a change in the criteria upon which discharge may be ordered, rather than the counter-intuitive invocation of a right to liberty. Further, as the Upper Tribunal pointed out:

The premise for exercise of the tribunal’s powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. The next step is to devise the conditions. At that stage, it is hard to see why the question of whether the conditions would amount to detention for the purposes of article 5 should come into it. Even if they do amount to such detention, there will be no breach of article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by article 5.

It concluded that “[t]he tribunal’s concern [when considering to discharge a patient] should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is wiling to comply with the conditions and to that extent consents to them”. A tribunal should not have to preoccupy itself with fine distinctions involved in the question of whether or not the conditions it deems necessary would amount to a deprivation of liberty, undermining its own power to act in the first place.

1 Crown Office Row’s Robert Kellar appeared for the Secretary of State for Justice in this case.

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