Practice and Procedure


PUBLISHED November 13, 2003

The appellant had not been detained in breach of Art.5(1)(e) European Convention on Human Rights and although there had been a breach of his right under Art.5(4) to have the lawfulness of his detention considered speedily he was not entitled to compensation. The conditional discharge regime under s.73 Mental Health Act 1983 was not incompatible with Art.5.Appeal by the applicant ('IH') from the decision of the Court of Appeal that the conditional discharge regime under s.73 Mental Health Act 1983 was not incompatible with the European Convention on Human Rights. In 1995 IH had severely mutilated his three-year old son but was found not guilty of causing grievous bodily harm with intent to do so by reason of insanity. An order was made under s.5 Criminal Procedure (Insanity) Act 1964, as substituted by s.3 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 authorising his admission to hospital. Since 1995 he had been detained in Rampton Hospital as a patient subject to a restriction order, without limit of time, made under ss.37 and 41 of the 1983 Act. He was diagnosed as suffering from paranoid psychosis. A Mental Health Review Tribunal ('MHRT') in 1999 concluded that IH was not then suffering from mental illness of a nature or degree that necessitated his detention in hospital and adjourned the hearing for a care plan to be drawn up with a view to a conditional discharge. The relevant health authority could not arrange forensic psychiatric supervision for IH because the local forensic psychiatry service refused to supervise his discharge into the community as clinically inappropriate and unsafe. The MHRT reconvened in February 2000 and directed that IH should be discharged but that the discharge should be deferred until the conditions imposed were met. However, the condition for psychiatric supervision could not be met and a further MHRT in March 2002 concluded that it was appropriate for IH to be detained in hospital despite the decision of the previous MHRT. IH claimed that: (i) his detention between February 2000 and March 2002 was in breach of his rights under Art.5 of the Convention; (ii) the conditional discharge regime under s.73 of the 1983 Act was incompatible with the Convention. Bell J found that IH's rights under Art.5(1)(e) and (4) had been violated by the failure to resolve his position more quickly, but refused to make a declaration of incompatibility. The Court of Appeal dismissed IH's appeal, holding that the decision of the House of Lords in Campbell v Secretary of State for the Home Department (1988) AC 120 was incompatible with the Convention and that the MHRT was able, under s.73, to reconsider a decision to direct a conditional discharge on specified conditions where there was a material change of circumstances. IH appealed.HELD: (1) There was no breach of IH's Art.5 rights by virtue of the fact that the MHRT lacked the power to secure compliance with the conditions set out in its order. Article 5(1)(e) and (4) required that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention was lawful and if not to order his release. The MHRT had such power. Nothing in Art.5 suggested that discharge subject to conditions was impermissible in principle. (2) When it proved impossible to secure compliance with the conditions in the MHRT's order of February 2000 within a a few months, a violation of IH's Art.5(4) right did occur. IH was left in limbo because the MHRT was prevented by the authority of Campbell (supra) from reconsidering its decision. The Court of Appeal was right that Campbell should not be followed and that the MHRT could and should review its decision on conditional discharge if there was a material change of circumstances. (3) There was no time between February 2000 and March 2002 when IH was unlawfully detained and there was thus no breach of Art.5(1)(e). There was a categorical difference between cases like Johnson v UK (1997) 27 EHRR 296, where a patient was no longer suffering from mental illness so that if the conditions of discharge could not be met he had to be released, and cases of this kind, where if the conditions could not be met continued detention was necessary (R v Camden & Islington Health Authority, ex parte K (2001) EWCA Civ 240 considered). (4) The duty of the health authority, whether under s.117 of the 1983 Act or in response to the MHRT's order of February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the MHRT, and it had done so. (5) The violation of Art.5(4) did not call for an award of compensation since it had been publicly acknowledged and IH's right thereby vindicated. The law had since been changed in a way that should prevent similar violations in future. IH had not been unlawfully detained.Appeal dismissed.

[2003] UKHL 59