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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rayner & Anor v Secretary of State for the Home Department & Ors [2007] EWHC 1028 (Admin) (23 April 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1028.html Cite as: [2007] EWHC 1028 (Admin), [2007] WLR 2239, (2007) 10 CCL Rep 464, [2007] 1 WLR 2239 |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
DANIEL RAYNER | ||
And | ||
DEREK MARSH | (CLAIMANTS) | |
-v- | ||
(1) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | ||
(2) THE MENTAL HEALTH REVIEW TRIBUNAL | ||
(3) WEST KENT NHS AND SOCIAL CARE TRUST | ||
(4) THE SECRETARY OF STATE FOR HEALTH | ||
(5) HER MAJESTY'S ATTORNEY-GENERAL | ||
(6) THE MENTAL HEALTH REVIEW TRIBUNAL OFFICE | (DEFENDANTS) |
____________________
WordWave International Limited
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190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR JEREMY HYAM (instructed by Treasury Solicitor) appeared on behalf of the 1st and 4th Defendants
MISS KATHERINE OLLEY (instructed by Treasury Solicitor) appeared on behalf of the 2nd Defendant
MISS MARINA WHEELER AND MISS CAROLINE CROSS (JUDGMENT ONLY) (instructed by Brachers) appeared on behalf of the 3rd DEFENDANT
____________________
HTML VERSION OF JUDGMENT
Crown Copyright ©
The case of Rayner
The facts
"Under section 75(1)(a) of the Mental Health Act 1983 the Home Secretary is obliged to refer Mr Rayner's case to a Mental Health Review Tribunal no later than one month from the date of his recall to hospital. When the case has been referred you will be notified by the Tribunal direct ... I should be grateful if this could be explained to Mr Rayner and if he could be given a copy of Mental Health Act 1983 leaflet No 9."
"75(1) Where a restricted patient has been conditionally discharged under section ... 73 ... above and is subsequently recalled to hospital-
(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; ..."
"Thank you for your letter of 4 August 2005 to Mr Pocock, who has now left this office.
I regret to inform you that, due to an oversight, a referral to the Mental Health Review Tribunal was not made following Mr Rayner's recall to hospital in June. Please accept my apologies for this error.
A referral letter has been sent to the Tribunal office today."
"Please forward six copies of each of the Authorities statement, medical and social circumstances reports as specified in the First Schedule to the Mental Health Review Tribunal Rules 1983. These documents must be submitted not later than three weeks from receipt of this letter."
"I am writing to confirm the arrangements which were agreed by telephone for the Mental Health Review Tribunal at Maidstone Hospital on Tuesday 27 September 2005 at 14.00 to consider the case of [Mr Rayner]."
"On 20th September 2005 Miss Stober of these offices telephoned the Mental Health Act Administrator for Priority House in order to chase the statutory reports for the Tribunal. Miss Stober was informed that the hospital were not aware of the Tribunal date of 27th September 2005. The hospital then requested an adjournment, which was granted."
"I refer to the above named and my telephone call today. I would like to inform you that I have just learnt today, from solicitors that Daniel Rayner has a Tribunal booked for 27 September 2005.
I have no record of this being booked and do not have a copy of a letter requesting reports. I have checked with both the consultant and social worker, and they do not have any record of this date either and, therefore, have not produced reports.
I have now requested reports as a matter of urgency and should be grateful if another date could be set."
"I would like to confirm that on my return from leave at the end of August 2005 there were no letters from the Tribunal office dated 16 August 2005 and 23 August 2005 regarding a Tribunal for Daniel Rayner. I only became aware of a Tribunal when I received a call from Mr Rayner's solicitor on 21 September 2005."
The claim against the second and third defendants
(i) The claim against the tribunal
"(cc) where a reference is made under section 75(1) of the Act, on receipt of the reference the tribunal shall-
(i) fix a date for the hearing being not later than eight weeks, nor earlier than five weeks, from the date on which the reference was received;
(ii) fix the time and place for the hearing; and
(iii) give notice of the date, time and place of the hearing to the patient, the responsible authority and the Secretary of State;"
"In any sensibly managed judicial system there are bound to be adjournments and cancelled hearings for a number of reasons ... The postponement of a hearing ... does not necessarily involve any infringement of the rights of a citizen party under Article 5 or Article 6 ..."
(ii) The claim against the hospital and Trust
The principal claims
Article 5(4)
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
"43. The Court notes that the cornerstone guarantee of Article 5 § 4 is that a detainee must have the right actively to seek judicial review of his detention (see, eg, Musial v Poland, judgment of 25 March 1999, Reports 1999-II, § 43).
44. The administration of the hospital, acting under section 33-2 of the Psychiatric Treatment Law, applied for the judicial review of the applicant's detention. The Law did not permit the applicant to apply to the court herself. Instead, the initiative lay solely with the medical staff. However, Article 5 § 4 requires in the first place an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the detention. When this remedy is available, the detainee's access to the judge should not depend on the good will of the detaining authority. Whilst the legal mechanism contained in sections 33-35 of the Psychiatric Treatment Law, ensuring that a mental patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it would still be deficient if it does not contain the basic guarantee of Article 5 § 4. Surplus guarantees do not eliminate the need for fundamental ones.
45. It does not appear that the Law on Psychiatric Treatment provided the applicant with a direct right of appeal in order to secure her release. Sections 47 and 48 of the Law referred to by the Government recognised a detainee's right to complain about the unlawful actions of medical staff in general, but Article 5 § 4 requires a specific remedy to protect the liberty of a detainee.
46. The Court therefore finds that the applicant was not entitled to take proceedings to test the lawfulness of her detention by a court, as required by Article 5 § 4 of the Convention. There has, accordingly, been a violation of that provision."
"39. The Court observes that, in accordance with its case law, the person subjected to compulsory medical treatment should have access to a court and the opportunity to be heard either in person or through some form of representation (see De Wilde, Ooms and Versyp v Belgium, judgment of 18 June 1971, Series A no. 12, §§ 73-76, and the Winterwerp judgment, cited above, §§ 60 and 61). The Article 5 § 4 review is not required to be automatic, but should rather be an opportunity for proceedings to be taken by the patient himself or herself (see, inter alia, De Wilde, Ooms and Versyp v Belgium, cited above; Keus v the Netherlands, judgment of 25 October 1990, Series A no. 185-C)."
"44. The Court reiterates that a key guarantee under Article 5 § 4 is that a patient compulsorily detained for psychiatric treatment must have the right to seek judicial review on his or her own motion (see, eg, Musial v Poland, judgment of 25 March 1999, Reports 1999-II, § 43; the aforementioned Rakevich v Russia judgment, § 45). Article 5 § 4 therefore requires, in the first place, an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the continued detention. The detainee's access to the judge should not depend on the good will of the detaining authority, activated at the discretion of the medical corps or the hospital administration.
45. Whilst the legal mechanism contained in sections 19-22 of the Psychiatric Medical Assistance Act and Chapter 34 of the Code of Criminal Procedure, in force at the material time (see paragraphs 30 and 31 above), ensuring that a mental health patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it is insufficient on its own. Such surplus guarantees do not eliminate the need for an independent right of individual application by the patient.
46. The Court concludes that the applicant was not entitled to take proceedings to test the lawfulness of his continued detention for compulsory medical treatment by a court, as required by Article 5 § 4 of the Convention. There has, accordingly, been a violation of this provision."
"Indeed, in Rakevich v Russia ... it was held that even the judicial review of every admission on the initiative of the detaining authorities is not enough if the patient does not herself have the direct right to apply for her release."
Mr Bowen submits that, by that passage, the House of Lords were implicitly, if not expressly, endorsing the correctness and effect of Rakevich.
"By virtue of Article 5(4), a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the 'lawfulness' (within the meaning of the Convention ...) of his detention, whether that detention was ordered by a civil or criminal court or by some other authority."
Mr Hyam there stresses the words "at any rate where there is no automatic ... review of a judicial character".
"Consideration of the Netherlands legal system as described above ... leads the court to conclude that the contested proceedings amounted to an 'automatic periodic review of a judicial character' within the meaning of the X v United Kingdom judgment of 5 November 1981."
Mr Hyam submits that the court thereby repeated and reinforced the sufficiency of an automatic review of a judicial character.
"22. The principles which emerge from the Court's case-law on Article 5(4) include the following.
(a) A person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings 'at reasonable intervals' before a court to put in issue the 'lawfulness' - within the meaning of the Convention - of his detention ..."
" ...
(c) The judicial proceedings referred to in Article 5(4) need not always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. None the less, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation ..."
"A reference to the tribunal must be considered in the same way as if there had been an application by the patient: see rule 29. Hence although the initiative is taken by someone else, the patient's rights are the same."
"As already seen, a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings. It can, of course, be objected that this solution depends upon the Secretary of State being willing to exercise her discretion to refer. But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention."
"32. Hence, while judicial review and/or habeas corpus may be one way of securing compliance with the patient's article 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State's reference under section 67. Either way, however, the means exist of operating section 29(4) in a way which is compatible with the patient's rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so."
" ... Article 5(4) requires in the first place an independent legal device by which the detainee may appear before a judge ... " [my emphasis]
"When this remedy [viz an independent legal device ...] is available, the detainee's access to the judge should not depend on the good will of the detaining authority."
In other words, provided there is an "independent legal device" the element of discretion, arbitrariness or good will is avoided. The requirement of "an independent legal device" is repeated in paragraph 44 of Gorshkov, where there is a very clear reference to the requirement that the detainee's access to the judge should not depend on the good will of the detaining authority "activated at the discretion of" the medical corps.
"Either way [viz one way being a Secretary of State's discretionary reference under section 67], however, the means exist of operating section 29(4) in a way which is compatible with the patient's rights."
If that was so in relation to discretionary reference in that case, then it seems to me that it must all the more be so in relation to mandatory reference under section 75 in the present case.
"It is our practice to refer such cases to the Mental Health Review Tribunal as soon as possible, which is usually within 72 hours of recall."
"There are circumstances, however, where it is not possible or practical to refer the case to the Tribunal immediately following recall. The most common situation is where the patient absconds from his accommodation before the recall warrant can be effected. In such cases there is little point in referring the case to the Mental Health Review Tribunal until the patient has been detained. Such cases are by no means uncommon. For example, in a recent case in December 2005 the patient was unlawfully at large for 14 days.
While it is the policy of Mental Health Unit to refer the cases of recalled restricted patients to the Mental Health Review Tribunal immediately, for the reasons set out ... above, the statutory time limit of one month is both necessary and appropriate, in order to provide the flexibility to deal with cases where the patient absconds and there is a delay between the date of recall and the date on which the patient is re-detained in hospital."
"The observation presupposes that medical evidence is in general required before every deprivation of liberty on grounds of unsoundness of mind. That, however, is not what Parliament intended in relation to section 42(3). Parliament's thinking, I apprehend, was that the time to consider such medical evidence as either party might wish to put forward was at the mental health review tribunal hearing provided for by section 75(1). In requiring the Secretary of State to refer the case to a mental health review tribunal within one month of the patient's recall, rather than sooner or later, Parliament was striking a balance between the need to have the question considered by a court at the earliest opportunity and the need to provide the tribunal with evidence of appropriate quality; such evidence would obviously include assessments made in hospital after recall."
"But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention. In this case this happened at the request of the patient's own lawyers. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so."
"The [Strasbourg] court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances."
Violation by the Secretary of State on the facts
The case of Marsh
The facts
" ... we were contacted by Mr Marsh's Responsible Medical Officer on 26 November 2004 ... The Responsible Medical Officer requested that Mr Marsh be admitted to the Dudley Venables Ward for assessment as a matter of urgency. It was unclear to us whether or not Mr Marsh had been conditionally discharged, as we had not received the MHRT decision or been informed in any other way of the Tribunal's decision. As we were uncertain of Mr Marsh's status we sent the fax of 26 November 2004, which gave our consent for Mr Marsh's admission to the Dudley Venables Ward whether he was a conditionally discharged or a detained patient.
We then telephoned the MHRT office and were informed that Mr Marsh had not been conditionally discharged. On the basis of that information, we therefore did not view our fax of 26 November 2004 as a recall to hospital, but instead as the authority to transfer a detained patient to a particular hospital. This remained the case until 31 January 2005 when, in the course of chasing the MHRT decision, we were informed that Mr Marsh had in fact been conditionally discharged. We then received the written MHRT decision on 1 February 2005. We referred Mr Marsh's case to the MHRT under section 75(1)(a) of the Mental Health Act 1983 on 3 February 2005.
The MHRT are under a statutory obligation (Rule 24 of the MHRT Rules 1983) to notify us of the Tribunal decision within 7 days of it having been made. The Home Office is under no statutory obligation to chase decisions, but nonetheless we routinely do so as a matter of good practice. We chased the decision in this case and were informed by telephone that Mr Marsh had not been conditionally discharged. It was only our continued endeavours to obtain the written decision that, in fact, brought to light the fact that Mr Marsh had been conditionally discharged in the first place.
In summary, the Home Office acted reasonably and in good faith on the information we had at the time. Following the decision to place Mr Marsh on the Dudley Venables Ward (26 November 2004), we sought clarification of Mr Marsh's status and acted in accordance with that information. As soon as we discovered that Mr Marsh had in fact been conditionally discharged and had that confirmed in writing we referred his case to the MHRT within 2 days."
The actual period between recall and release was 14 weeks.
Discretion
" ... but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
That limb cannot be outflanked by relying simply on the damages component of a claim.
"I have not granted permission because of the delay point ... I would have refused relief on delay grounds ..."
His observations do not, however, form any part of my own independent reasoning and judgment on the point.
Outcome