No power for Mental Health Tribunals to consider conditions of detention

The Court of Appeal has dismissed the appeal by Jasmin Djaba (referred to as JD in the Upper Tribunal) that the First Tier Tribunal (Mental Health) did not need to consider the conditions of his detention in order to comply with the HRA 1998.

Mr Djaba was detained under s37/41 Mental Health Act 1983 at Broadmoor Hospital.  He had a history of  serious violence within hospital settings and was being cared for in what was described as a "super-seclusion" suite.  This suite 

"Consists of a small room divided into two parts, with a secure partition between the two sections. Save for reviews to assess his health, no one is permitted to enter the room without the partition being in place. Treating staff have to enter the room wearing personal protective equipment (including shields, helmets and visors), as the appellant is highly resistant to receiving his depot medication, which has to be administered forcibly. Limited interventions are made to enable visits by the appellant to communal areas of the hospital, but always with the use of mechanical restraints and accompaniment by several staff members. Until the intervention of his present solicitors, the appellant had not had face-to-face contact with his mother, other members of his family or with friends for a number of years."

His case was referred to the First Tier Tribunal (FTT) which was asked to consider whether the conditions of his detention were such as to violate Articles 5 and 8 of the European Convention on Human Rights.  The Tribunal did not discharge Mr Djaba or make an extra -statutory recommendation and expressed their reasoning simply by reference to the statutory criteria in s72-73 MHA 1983.  The Upper Tribunal upheld this, noting that the FTT should have at least referred to the Convention arguments but that these could all be answered with reference to the statutory criteria in the MHA.  

The Court of Appeal upheld the decision of both Tribunals.  Unsurprisingly the Court of Appeal gave weight to the decision reached by the same court in PJ.  In that case the Court of Appeal had dismissed the suggestion that the FTT needed to consider an "extra-statutory checklist" in order to comply with the HRA 1998.  All that was needed was for the FTT to apply the statutory criteria which contain all the safeguards required and can be read compatibly with Convention rights.  Any challenge to the conditions (in PJ's case) imposed via a community treatment order (CTO) could be via judicial review.

In Mr Djaba's case the Court of Appeal reached a similar conclusion.  It  held that 

"The matters identified in section 72(1)(b)(i), (ii) and (iia) and 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. The governing NHS Trust for Broadmoor Hospital is a public authority and is amenable to judicial review in the High Court in relation to any legal challenge which a restricted patient might wish to bring in relation to these matters. If a restricted patient needs access to a litigation friend in order to mount such a legal challenge, arrangements can be made to facilitate that. That is an appropriate and effective avenue for legal protection for a restricted patient who wishes to challenge what the hospital authorities have done in relation to his conditions of detention."

As long as there is a forum where the extra -statutory factors such as the conditions of detention or the availability of family visits can be litigated there will be compliance with the Convention.

Comment:  It is interesting that the Court of Appeal was - understandably- troubled by the lack of any reference in the PJ case to the decision of the then House of Lords in R (H) v Secretary of State for Health [2005] UKHL 206.  Baroness Hale had commented on the unsatisfactory nature of judicial review as a means of enforcing some of the rights of detained patients noting that

"It may well be that, as the Administrative Court must now itself act compatibly with the patient's rights, it would be obliged to conduct a sufficient review of the merits to satisfy itself that the requirements of article 5(1)(e) were indeed made out. But it is not well equipped to do so. First, it is not used to hearing oral evidence and cross examination. It will therefore take some persuading that this is necessary: cf R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 and R (N) v M [2003] 1 WLR 562. Second, it is not readily accessible to the patient, who is the one person whose participation in the proceedings must be assured. It sits in London, whereas tribunals sit in the hospital. How would the patient's transport to London be arranged? Third, it is not itself an expert tribunal and will therefore need more argument and evidence than a mental health review tribunal will need to decide exactly the same case. All of this takes time, thus increasing the risk that the determination will not be as speedy as article 5(4) requires."

The Court of Appeal however reconciled Baroness Hale's comments with its own judgment, holding that the House of Lords in H was only concerned with the discrete issue of the need for a speedy resort to determine detention for the purpose of Article 5(4).  

Plainly this judgment buttresses the emphasis in the PJ judgment on the FTT restricting itself to the language of the statutory criteria only.