JD v West London Mental Health NHS Trust and Secretary of State for Justice: [2016] UKUT 496 (AAC): [2018] AACR 24
Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 19 July 2016.
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Judicial Summary
Reported as [2018] AACR 24
Mental Health – Administration of Justice - Patient subject to hospital and restriction orders - Tribunal declining to discharge patient - Whether tribunal required to consider conditions of detention — Mental Health Act 1983 - Whether statutory tests require proportionality assessment
The appellant was a “restricted patient” for the purposes of the Mental Health Act 1983 (MHA). He had been detained in a super seclusion suite at a secure hospital following his convictions for unlawful wounding and assault occasioning actual bodily harm. He did not exercise his right of appeal, but a review of his detention was triggered by the secretary of state under section 71(2). The First-tier Tribunal (F-tT) found that neither a conditional discharge nor a transfer to a different hospital was appropriate, and that the significant restrictions placed upon him were necessary and proportionate to deal with his levels of violence. The appellant appealed to the Upper Tribunal (UT) on the ground that there had been no express reference to ECHR Article 5. The UT dismissed the appeal.
The issue on the instant appeal was whether the statutory tests within section 72, section 73 and section 145 of the MHA required a “proportionality assessment” to be conducted, pursuant to Article 5, taking into account the conditions of the appellant’s detention.
The appellant submitted that (1) the decision in PJ (A Patient) v Local Health Board [2017] EWCA Civ 194 was narrowly confined to the power of the tribunal to impose conditions under a community treatment order; (2) a special interpretation should be given to sections 72(1)(b)(i) and (iia) in respect of the phrases “appropriate for him to be detained in a hospital for medical treatment” and “appropriate medical treatment is available for him”, so that what was to be regarded as ‘appropriate” should include the conditions of detention, with the result that the tribunal had jurisdiction to rule upon all aspects of the Convention rights of a restricted patient.
Held, dismissing the appeal, that:
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the F-tT did not have the jurisdiction to carry out an assessment beyond that set out in sections 72 to 73 of the MHA. The decision in PJ is directly applicable to the issue in this case (even if not formally binding). Thus, it was right for the appeal to the UT to be dismissed.
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the matters identified in section 72(1)(b)(i), (ii) and (iia) requiring to be considered by the tribunal pursuant to section 73(1) do not include the conditions of detention of a restricted patient or things such as the availability of visiting rights for members of a patient’s family. These are aspects of the care of a restricted patient which are within the control of the hospital authorities, who will have to take account of a range of matters in organising his detention in their facility, including the resources available, the Convention rights of the patient and others and the safety of staff and visitors.
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in the case of an application to the tribunal by a restricted patient, the tribunal’s powers are strictly defined by statute. By virtue of section 72(7) of the MHA, the tribunal does not have the general power to direct that the patient be discharged which is conferred by the opening words of section 72(1) in relation to other patients, but only has a power and a duty to direct the absolute discharge of the patient if it is not satisfied of the matters mentioned in section 72(1)(b)(i), (ii) or (iia) and it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital: see section 73(1).
The Supreme Court has confirmed that the F-tT has no power to direct any alteration to the conditions of detention including seclusion.
Updates to this page
Last updated 9 January 2020 + show all updates
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The Court of Appeal decision selected for reporting as [2018] AACR 24
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The Court of Appeal has dismissed the appeal.
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First published.