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Written by: Sean Clement

Category: Healthcare Features

Published: 19 January 2011

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Can release from hospital be a deprivation of liberty? Matthew Flinn examines an important ruling in the Upper Tribunal.

In Secretary of State for Justice v RB [2010] UKUT 454, 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 Article 5 of the European Convention on Human Rights, 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 Article 5.

In reaching this decision, the Upper Tribunal appeared perturbed by the invocation of Article 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 Article 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.

Matthew Flinn is a barrister at 1 Crown Office Row (www.1cor.com). For more articles on human rights, go to the set’s dedicated human rights blog. http://ukhumanrightsblog.com/

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

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Written by: Sean Clement

Category: Healthcare Features

Published: 18 January 2011

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The private finance initiative may have delivered many new hospitals and homes which might otherwise not have been delivered, but there is no clear evidence of whether PFI is any better or worse value for money than other procurement routes, MPs have said.

In a report on the use of PFI in hospitals and social housing, the influential Public Accounts Committee said that by April 2009, there were 76 operational PFI hospitals in England and more than 13,000 homes had been built or refurbished through PFI, “representing a small but significant part of investment in social housing”.

It said: “As with previous reports, we again found no clear and explicit justification and evaluation for the use of PFI in terms of its value for money. However, we accept that the then government gave the Departments (the Department of Health and the DCLG) no realistic alternatives to PFI as the procurement route to use for these capital programmes.”

The committee said its other concerns revolved around central government's failure to use the market leverage that comes from overseeing multiple contracts, and the lack of robust central data to support effective programme management.

The MPs suggested that there were cases where PFI was used where there was no evidence it was the best procurement route.

They called on the government to do more to:

• identify the circumstances where PFI works best
• capture the lessons learned from PFI procurements, and
• apply clear criteria to future decisions over identifying the best route for particular public infrastructure investments.

The committee said it expected any procurement decisions on the housing projects whose future is now being reconsidered in the context of the Comprehensive Spending Review “to be made using clear value for money criteria”.

The report claimed that it was clear that implementation of PFI projects could be improved. “Many PFI housing procurements have taken very much longer, and cost a great deal more, than originally planned,” the MPs said. “On hospitals, most are receiving the services expected at the point contracts were signed and are generally being well managed. There are, however, wide and unexplained variations in the cost of hospital support services, such as cleaning, catering and portering.”

The report accused the government of “missing a trick” in failing to take advantage of market developments such as the bundling of projects together and making use of economies of scale.

The DH should exploit the commercial weight and buying power that comes from letting substantial contracts, the committee said, “but at present neither central government nor the local bodies benefit from this”.

A lack of good quality central data is undermining the two departments’ ability to monitor performance and drive efficiency savings, the report added.

It also claimed that the central team at the DH was “already under-resourced and unable to secure proper value for money from these contracts”, suggesting it would be a false economy to have weak central teams that are unable to implement the committee’s recommendations.

The PAC’s other conclusions and recommendations included:

• The Departments should prepare and publish whole-programme evaluations which assess PFI against alternative procurement routes using clear value for money criteria
• PFI housing contracts have “cost considerably more than originally planned and, on average, have been let two and a half years late”. The DCLG must ensure that the actions it has been taking to address previous programme failings will result in future projects being delivered to time and within cost
• In taking forward plans for delivering new and improved housing, the DCLG should ensure that the choice of procurement route, PFI or otherwise, is based on clear and transparent value for money criteria
• The DH and other departments with PFI programmes should negotiate with major PFI investors and contractors to secure better deals for the taxpayer
• Both departments should “define minimum data requirements and then take responsibility for ensuring that information collected from and distributed to local projects is complete, accurate and consistent”. The Department of Health and the Foundation Trust regulator Monitor should embed these data requirements in Foundation Trusts' terms of authorisation so that they are mandatory
• There are no mechanisms built into generic PFI contracts to test the continued value for money of maintenance work during the contract period. “The Treasury, in consultation with departments, should identify how value for money tests and incentives to improve maintenance could be built into the life of PFI contracts”
• Local procuring authorities will be at a disadvantage compared to the private sector if the departments do not provide sufficient central support. “It would be very disappointing if the public sector as a whole lost value for money from its PFI contracts because the departments were losing their capability through reducing the costs of central administration,” the MPs said.
• The DCLG should deliver on its commitment to keep its support capacity at an appropriate level, while the PAC also expects the DH to “firm up plans for the future of its PFI Unit and for Trusts to contribute to a club to procure contract management support. Trusts should confirm that they will actively engage with the club”
• The committee’s recommendations are directed at the programmes for housing and hospital projects but are also relevant to other PFI programmes across government. The Treasury should “outline its plans to support all departments in maximising value for money from their PFI programmes in the current economic climate.”

A copy of the report can be downloaded here.

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Written by: Sean Clement

Category: Healthcare Features

Published: 17 January 2011

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The Court of Appeal has ordered a local authority to pay compensation following a man’s unlawful detention in hospital under the Mental Health Act 1983.

In TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4, the appellant M had been detained at Homerton Hospital between 30 January and 11 February 2009.

His detention followed an acceptance by East London NHS Foundation Trust, which manages the hospital, of an application for his admission under s.3 of the 1983 Act. The application had been completed by an approved mental health professional (AMHP), for whose conduct Hackney had accepted responsibility.

M challenged the lawfulness of his detention through a writ of habeas corpus against the NHS trust. The London Borough of Hackney was joined as an interested party.

On 11 February 2009 Burton J gave judgement for M and ordered his release. The judge concluded that although the AMHP honestly believed the brother (M’s nearest relative) had agreed to his sectioning, it was not reasonable for her to have believed that this was the case.

On the first day of the hearing M also issued a claim for judicial review against the local authority and the hospital trust, seeking damages for his detention or – if his claim was barred by the 1983 Act – a declaration of incompatibility with Article 5 of the European Convention on Human Rights. Burton J said the judicial review proceedings – rather than the habeas corpus proceedings – were a more suitable route for addressing the issue of damages.

Mr Justice Collins dismissed the claim for judicial review at a hearing on 11 June. The judge said M’s detention during the period up to Burton J’s order was not unlawful as a matter of domestic law and that there was no incompatibility as suggested. However, he gave leave to appeal on limited grounds.

M argued before the Court of Appeal that his admission for treatment under s. 3 and detention was unlawful on two grounds. The first was that his brother had objected to the application.

The second was that neither of the doctors who provided the medical assessment on which the application was founded had previous acquaintance with M. His counsel therefore argued that the application failed to conform with the requirements of s. 12(2) of the 1983 Act.

In the case M asserted a number of grounds for judicial review. These were claims for unlawful detention and/or trespass to the person, negligence, breach of statutory duty under the MHA and breach of duty under s. 6 of the Human Rights Act 1998 coupled with Article 5.

The Court of Appeal allowed the appeal. Giving the lead judgement, Lord Justice Toulson suggested that Collins J should have held that M was unlawfully detained both as a matter of domestic law and within Article 5 (the right to liberty).

The appeal court judge rejected Hackney and the Health Secretary’s argument that M was not unlawfully deprived of his liberty by the conduct of the AMHP since the conduct of the hospital trust was lawful. Following Sir Thomas Bingham in Re S-C (Mental Patient Habeas Corpus) [1996] QB 599, the fact that the hospital trust’s actions were lawful did not cure the underlying unlawfulness, he said.

Lord Justice Toulson ruled that M had been deprived of his liberty as a direct consequence of the AMHP’s unlawful act in applying for his admission in breach of the Act. “The only matter which protects the local authority from liability for false imprisonment is the statutory defence provided by s. 139(1),” he added. “That subsection does not stop the AMHP’s conduct from being unlawful. The application was an undoubted breach of the Act.”

Lord Justice Toulson explained what s. 139(1) does is limit the civil liability of the AMHP (and the local authority) for the AMHP’s unlawful act to cases where the act was done in bad faith or without reasonable care. “That restriction, however, is subject to the provisions of the Human Rights Act,” he added.

The judge ruled that M’s rights under Article 5 had been infringed and that he was entitled to compensation. “The correct starting point is to examine the nature of the conduct and whether it conformed with the safeguards for the patient’s liberty prescribed by Parliament, which it did not,” he said. “The next question is whether that conduct was the direct cause of the claimant’s loss of liberty, which it was.”

He said: “This is a case of detention by the state under a statutory scheme involving two agents of the state, between whom the scheme provides for an internal division of responsibility. The first agent has responsibility for ensuring that any application which it makes for a patient's detention is lawfully made. The second agent has responsibility for carrying out the detention on the application of the first agent, provided that the application appears to be in order.

“Things went wrong in the present case when the first agent made an application for M's detention which was prohibited by law. It cannot be right, because of the division of responsibility, to regard the resulting state detention as consistent with Article 5, when the fundamental cause of the detention was an application made in contravention of the Act.”

Lord Justice Toulson said he was not persuaded by Hackney’s submission that in cases of wrongful detention where everyone acted in good faith, it would be more appropriate for compensation to be paid by the party which detained M (i.e. the hospital).

The judge said: “Although the AMHP acted in good faith, the unfortunate fact remains that she acted in contravention of s. 11(4), whereas the hospital trust acted lawfully.”

He added: “S. 6(3) serves a positive purpose….it is in the public interest that a hospital trust should act promptly on receipt of an application for admission which appears to be in proper form, and that it should not think it necessary for its own legal protection to incur time and expense in checking the accuracy of the various matters which s. 6(3) entitles it to accept as correct.”

In conclusion, Lord Justice Toulson said he had “considerable” sympathy with the local authority’s position.

“The AMHP was clearly conscientious, and it may be that if she had not been mistaken in supposing that M’s brother no longer objected to the application, the ultimate result would have been the same, but by a different route,” he said.

“However, while that may affect the amount of any compensation, it cannot affect the legality of what occurred. Our system of law is rightly scrupulous to ensure that in matters affecting individual liberty the law is strictly applied. It is a hallmark of a constitutional democracy.”

The judge said he echoed the President of the Queen's Bench Division's "strong hope" that the parties could agree compensation without the need for further proceedings.

Philip Hoult