FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45508/99 by H.L. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 10 September 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 21 December 1998,

Having regard to the observations submitted by the respondent Government and those in reply submitted by the applicant,

Having regard to the further observations of the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant is a United Kingdom national, born in 1949 and living in Surrey, the United Kingdom. He is represented before the Court by Mr Robert Robinson, a lawyer practising in London who has been instructed by one of the applicant’s carers, Mr E.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant has suffered from autism since birth. He is unable to speak and his level of understanding is limited. He lacks the capacity to consent or object to medical treatment. He is frequently agitated and has a history of self-harming behaviour. For over 30 years approximately he was a resident at Bournewood Hospital (“the hospital”), a National Health Service Trust hospital. He was an in-patient at the Intensive Behavioural Unit (“IBU”) of the hospital from its inception in or around 1987.

In March 1994 he was discharged on a trial basis to carers, Mr and Mrs E, with whom he successfully resided until 22 July 1997. The applicant’s responsible medical officer was Dr M (Clinical Director of Learning Disabilities, Deputy Medical Director and Consultant Psychiatrist for Psychiatry of Learning Disabilities). The applicant was never formally discharged and the hospital remained responsible for his care and treatment. Since 1995 the applicant attended on a weekly basis a day-care centre run by the local authority.

1. Admission to Bournewood Hospital – 22 July to 5 December 1997

On 22 July 1997 the applicant was at the day-care centre when he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact Mr and Mrs E and got in touch with a local doctor who administered a sedative. The applicant remained agitated and, on the recommendation of the social worker with overall responsibility for the applicant, he was taken by ambulance to the accident and emergency unit at the hospital.

At the hospital, the applicant remained agitated and anxious and was received and assessed by Dr P (Acting Consultant Psychiatrist – Learning Disabilities Services) as being in need of in-patient treatment. The applicant was transferred, with the physical support of two nursing assistants, to the IBU of the hospital. The applicant was recorded as making no attempt to leave. Dr P and Dr M considered that the best interests of the applicant required his admission for in-patient treatment. Dr M did consider his admission under the Mental Health Act 1983 (“the 1983 Act”) but concluded that that was not necessary as the applicant was compliant and did not resist admission. The applicant was therefore admitted as an “informal patient”. Dr M later confirmed (in her submissions in the judicial review proceedings referred to below) that if the applicant had resisted admission, she would have detained him compulsorily under the 1983 Act as she was firmly of the view that he required in-patient treatment.

In its letter dated 23 July 1997 to the applicant’s social worker (copied to Dr P), the day-care centre enclosed a detailed report of the incident the previous day and outlined serious behavioural issues to be considered by the applicant’s case professionals before the applicant could be allowed to return to the day-care centre. It was noted that the applicant’s outbursts had increased over the previous few months and that he had been finding it increasingly difficult to cope with his environment and group. A summary of the applicant’s behaviour and attendance at the day-care centre between January and July 1997 was also included.

On 18 August 1997 Dr M prepared a detailed report on the applicant’s history, care and progress for the Manager (Learning Disabilities) of the local health authority as a follow-up to their recent discussions about the applicant. Dr M indicated that the hospital was coming to the conclusion that the applicant, as well as being autistic, suffered from a mood disorder and noted that his discharge at that time would be against medical opinion.

On 22 August 1997 a Consultant Psychiatrist in Learning Disabilities assessed the applicant at the initiative of Mr and Mrs E. His subsequent report described the applicant as a man with a diagnosis of a severe learning disability, autistic traits together with a cyclical mood disorder. That psychiatrist recommended further assessment of the applicant in the IBU and better co-operation between the hospital’s professional team, the day-care centre and Mr and Mrs E.

On 29 October 1997 the Court of Appeal indicated (see the proceedings detailed below) that the applicant’s appeal would be decided in his favour. Accordingly, on that day the applicant was detained in the hospital on an emergency basis under section 5(2) of the 1983 Act and, on 31 October 1997, he was admitted for treatment as an involuntary patient under section 3 of the 1983 Act.

Since the applicant was detained under the 1983 Act, on 4 November 1997 the applicant’s legal representatives applied for a review of his detention by a Mental Health Review Tribunal (“MHRT”). Legal aid was granted to instruct an independent psychiatrist to prepare a report. The psychiatric report, dated 27 November 1997, was prepared jointly by a Consultant Psychiatrist and a Registrar in the Psychiatry of Learning Disability, both attached to the Department of Psychiatry at the University of Cambridge. The psychiatrists recommended the applicant’s discharge because they were of the opinion that his mental disorder was “currently neither of a nature or degree to warrant continued detention in hospital, nor is it necessary for his health or safety or for the protection of others”.

On 4 December 1997 the applicant’s legal representatives applied to the hospital managers for his release under section 23 of the 1983 Act, a meeting of the managers taking less time to convene than a meeting of the MHRT.

The multidisciplinary team responsible for the applicant’s care and treatment decided that the applicant had settled enough to be managed at home and on 5 December 1997 he was released on leave of absence (under section 17 of the 1983 Act) to the care of Mr and Mrs E.

On 9 December 1997 Dr P prepared a report for the forthcoming managers’ review meeting. He noted that the applicant’s discharge on 5 December 1997 under section 17 of the 1983 Act was to be complemented by weekly psychiatric outpatient follow-up appointments, continued medication and monitoring by a community nurse. Dr P was hopeful that the community team and their consultant psychiatrist could take over the applicant’s care and that the applicant could be formally discharged from the hospital.

On 12 December 1997 the hospital managers unanimously decided, pursuant to section 23 of the 1983 Act, to discharge the applicant to the care of Mr and Mrs E with immediate effect.

2. The proceedings

In or around September 1997, the applicant, represented by his cousin and “next friend”, applied for leave to apply for judicial review of the hospital’s decision to admit him on 22 July 1997, for a writ of habeas corpus and for damages for false imprisonment and assault (technical assault associated with his admission).

(a) the High Court judgment of 9 October 1997

The High Court refused the application. It found that, although the 1983 Act provided a comprehensive statutory regime for those formally admitted to psychiatric care, section 131(1) of the 1986 Act preserved the common law jurisdiction in respect of informal patients. Since the applicant had not been “detained” but had been informally admitted and since the requirements of the common law principle of necessity had been satisfied, his application was rejected.

(b) the Court of Appeal judgment of 2 December 1997 ( R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 2 WLR 764 ).

Lord Woolf MR delivered the principal judgment . On the question of whether the applicant was “detained”, he noted that it was agreed that this was a question of objective fact which did not depend on the presence or absence of consent or knowledge. He considered that a person was detained in law if those who had control over the premises in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so. He went on:

“We do not consider that the [High Court] judge was correct to conclude that [the applicant] was “free to leave”. We think it is plain that, had he attempted to leave the hospital, those in charge of him would not have permitted him to do so. ... Mr and Mrs E had looked after [the applicant], as one of the family, for over three years. They had made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release [the applicant] into the custody of his carers, they were not prepared to let him leave the hospital at all. He was and is detained there.”

Lord Woolf MR also found that the right to detain a patient for treatment for mental disorder was to be found only in the 1983 Act, the provisions of which applied to the exclusion of the common law principle of necessity. Section 131 which preserved the right to admit a patient informally applied only to a patient who had the capacity to and did consent to his admission. Since the applicant had been admitted for treatment without his consent and the other formalities required by the 1983 Act, his detention was unlawful:

“It follows from our judgment that the whole approach of the [hospital] in this case was based on a false premise. It was based on the belief that they were entitled to treat [the applicant] as an in-patient without his consent as long as he did not dissent. That was a wrong approach. They were only allowed to admit him for treatment if they complied with the statutory requirements. ... [W]here [the 1983 Act] covers the situation, no necessity to act outside the statute can arise. The [hospital’s] powers to act under the common law doctrine of necessity can arise only in relation to situations not catered for by [the 1983 Act].”

The Court of Appeal awarded nominal damages (one pound sterling) and granted leave to appeal to the House of Lords.

(c) The House of Lords judgment of 25 June 1998 ( R v Bournewood Community and Mental Health NHS Trust, ex parte [1998] 3 WLR 107 ).

The House of Lords granted leave to, inter alia , the Mental Health Act Commission [1] to intervene in the proceedings. In their submissions to the House of Lords, the Commission outlined the beneficial consequences to patients of the Court of Appeal’s conclusion that persons in the applicant’s position were “detained” for the purposes of the 1983 Act. Amongst the benefits such patients would acquire were: the substantive and procedural safeguards for admission to hospital (Part II of the 1983 Act); the provisions and safeguards relating to consent to treatment (section 58); the opportunity to apply or be automatically referred to the MHRT (Part V of the 1983 Act); an entitlement to aftercare services (section 117); the guidance contained in the Mental Health Code of Practice (section 118); the oversight of that same Commission (sections 120-121), and the right to receive relevant information about their detention from the hospital managers (section 132).

The Commission also described the survey it had completed since the Court of Appeal judgment by sending a questionnaire to all National Health Service Trust hospitals (and registered nursing homes). 62% of those establishments responded from which the Commission was in a position to submit that, if the Court of Appeal judgment was applied to patients such as the applicant, there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act.

The House of Lords gave judgment on 25 June 1998 and unanimously allowed the appeal. Lord Goff (with whom Lords Lloyd and Hope agreed) delivered the principal judgment . Lords Nolan and Steyn agreed that the appeal should be dismissed but for reasons different from those of Lord Goff .

Having considered the drafting history of section 131 of the 1983 Act, Lord Goff concluded that section 131 applied to patients who consented as well as to those who, lacking the legal capacity to consent, did not manifest any objection. As to the basis upon which the hospital was entitled to treat informal patients admitted pursuant to section 131:

“It was plainly the statutory intention that such patients would indeed be cared for, and receive such treatment for their condition as might be prescribed for them in their best interests. Moreover the doctors in charge would, of course, owe a duty of care to such a patient in their care. Such treatment and care can, in my opinion, be justified on the basis of the common law doctrine of necessity ...” ( In re. F (Mental Patient: Sterilisation) [1990] 2 A.C. 1 ).

Lord Goff then considered whether the applicant’s admission to hospital was lawful on this basis and he accepted the following evidence of Dr M:

“As [the applicant] is an informal patient there has never been any attempt to detain him against his will or carry out any tests, observations or assessments to which he indicated a dislike or with which he refused to co-operate. ... [The applicant] is accommodated on an unlocked ward and has never attempted to leave the hospital but has accepted the change in his environment very well and is not distressed by it ... It was, in my professional opinion, in [the applicant’s] best interests to be admitted on 22 July 1997 and it is also in his best interests to continue with in-patient treatment to prevent further deterioration of his mental health. His discharge at this point in time would therefore be against medical advice. At the time of and since admission, [the applicant] has been fully compliant with treatment and never indicated that he wishes to leave the hospital. In view of this it has not been necessary to detain him under the Act. ... If [the applicant] stopped co-operating or indicated a wish to leave then I would have to consider at that time whether his condition warranted detention under section 3 of the Act of 1983. As these circumstances have not so far arisen, detention has not been necessary.”

He went on to conclude that the hospital had acted on 22 July 1997 in discharge of its continuing responsibility for the applicant’s care. In any event, an emergency situation had arisen requiring the hospital’s intervention in the applicant’s best interests. Moreover, all of the steps taken by Dr M were in the applicant’s best interests and, in so far as those steps might otherwise have constituted an invasion of his civil rights (a short period of detention in the ambulance from the day-care centre and any touching of his person), they were justified on the basis of the common law doctrine of necessity. Lord Goff was satisfied that the applicant’s re-admission to hospital under section 131(1) of the 1983 Act did not constitute a deprivation of liberty. He had not been kept in a locked ward and the fact that Dr M had the option of compulsory detention under the 1983 Act in mind, did not mean that the applicant had already been, in fact, detained.

Lord Nolan, for his part, agreed with the Court of Appeal that the applicant had been detained: he referred to the contents of Dr M’s lengthy letter of 6 August 1997 and to the additional matters on which the Court of Appeal had relied in this respect (and quoted above). Nevertheless, he allowed the appeal as he was satisfied that:

“... the trust and its medical staff behaved throughout not only in what they judged to be the best interests of [the applicant], but in strict accordance with their common law duty of care and the common law principle of necessity.”

Lord Steyn also allowed the appeal. He recognised that to uphold the decision of the Court of Appeal would be to ensure that a number of important protections applied to the applicant and that to allow the appeal would result in an indefensible gap in mental health law. However, he considered that it was possible, on a contextual interpretation of the 1983 Act, to allow the appeal.

In the first place, he found that the applicant had been detained. The argument that the applicant was always free to leave the hospital:

“... stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of [the applicant], any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital. And if [the applicant] had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that [the applicant] was free to go is a fairy tale. ... In my view [the applicant] was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty”.

Secondly, he found that detention justified under the common law doctrine of necessity:

“The starting point of the common law is that when a person lacks capacity, for whatever reason, to take decisions about medical treatment, it is necessary for other persons, with appropriate qualifications, to take such decisions for him: In re F. ... 2 A.C. 1) ... The principle of necessity may apply. For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that (1) there must be a “necessity to act when it is not practicable to communicate with the assisted person” and (2) “that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person”: In re F . ... 2 A.C. 1. There was not unanimity on this point in In re F. But I am content to approach the matter in the same way as counsel did.”

The common law principle of necessity had been preserved by section 131(1) of the 1983 Act and that the detention and treatment was justified on that basis.

Lord Steyn went on to note that the effect of the House of Lords’ judgment was to leave compliant and incapacitated patients without the safeguards of the enshrined in the 1983 Act:

“The common law principle of necessity is a useful concept, but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reasons to withhold the specific and effective protections of [the 1983 Act] from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.”

3. Relevant correspondence between Dr M and the applicant’s carers concerning the applicant’s care during his stay in the hospital

The first letter to Mr and Mrs E after the applicant’s admission to Bournewood Hospital from Dr M was dated 23 July 1997. Having noted the attempts made to contact Mr and Mrs E during and after the incident on 22 July 1997, Dr M outlined in detail what had happened and how the applicant was progressing. Dr M indicated that, while the aim was to discharge the applicant to the care of Mr and Mrs E as soon as possible, she was unable to predict the length of the applicant’s stay as it depended on the completion of all necessary investigations and assessments. Dr M indicated that visits would be unwise until the hospital staff felt that it would be appropriate in order to avoid the applicant thinking that he could go home with Mr and Mrs E following each visit at a time when he was “not clinically fit for discharge”. Dr M invited Mr and Mrs E to contact her about meeting with her the following week.

Dr M sent a further detailed update on the applicant’s care, assessments and progress to Mr and Mrs E on 31 July 1997. Having noted Mr and Mrs E’s requests to staff to visit the applicant, Dr M indicated that the current serious observational assessment would be prejudiced by such visits and suggested that the situation be reviewed the following week. Dr M pointed out that the applicant was not clinically fit for discharge.

Since Mr and Mrs E had expressed concerns to staff at the hospital about the applicant’s care and treatment, Dr M sent a lengthy letter to Mr and Mrs E on 6 August 1997 in which she explained the clinical team’s responsibility to provide the applicant with the care and clinical input he required. It was further explained that the views of the multidisciplinary clinical professionals following assessment and work would decide the question of the applicant’s discharge from the IBU, that such matters took time and that the hospital had the applicant’s best interests in mind. Given the ongoing treatment and assessments, it was not possible to specify a discharge date. Dr M repeated her offer to meet with Mr and Mrs E to discuss the applicant’s care.

In a further letter of 2 September 1997, Dr M confirmed to Mr and Mrs E that the conclusions drawn from the assessments to date meant, and the recent clinical professionals meeting had decided, that the applicant was to be “fully” referred for care and treatment to the IBU and that his stay was likely to be a long one. She invited Mr and Mrs E to attend a clinical meeting about the applicant’s care and treatment on 18 September 1997 and offered to meet separately with Mr and Mrs E to discuss, inter alia , the question of visits with the applicant.

Mr and Mrs E responded in a letter of 5 September 1997, stating that they could not agree with the suggested plan for the applicant and would be in touch again prior to the relevant meeting. By letter dated 16 September 1997, Mr and Mrs E confirmed that they could not attend the meeting on 18 September 1997 as they were currently seeking legal advice. Dr M responded by letter dated 19 September 1997 expressing regret that Mr and Mrs E felt that their attendance at the clinical meeting could jeopardise the applicant’s position. By separate letter of the same date, Dr M outlined the results of the clinical meeting including a recommendation that Mr and Mrs E visit the applicant once a week, and requested them to contact her to arrange this.

Detailed Behaviour Management guidelines were issued on 27 November 1997 by the Psychology Service of the hospital to, among others, Dr M, Mr and Mrs E, the applicant’s social worker and other therapeutic services to be involved in the applicant’s future care. Appendix 1 was a detailed clinical formulation of the applicant’s mental state (autism and a cynical mood disorder), needs and reactions prepared on the basis of extended psychiatric and behavioural observations and assessments, with a view to assisting a global approach to his condition, treatment and care. Appendix 2 contained an extremely detailed “communication dictionary” which was designed to enhance communication with the applicant through voice, action and routines. Appendix 3 contained recording charts.

By letter of 2 December 1997 to the applicant’s legal representatives, Dr M acknowledged receipt of the guidelines of 27 November 1997 (described above) and explained the plans of the clinical team for the applicant’s release in the near future on leave of absence with a view to a possible full discharge thereafter.

Both Lord Woolf M.R. in the Court of Appeal and Lord Goff in the House of Lords noted that Dr M’s correspondence after 22 July 1997 had explained to Mr and Mrs E what was proposed in relation to the applicant and had discussed meetings and visits between Mr and Mrs E and the applicant but that no programme of visits had been established. It was further noted by both judges that Mr and Mrs E were not satisfied as to the hospital’s motives and preferred to clarify the applicant’s legal position.

4. Complaints of Mr and Mrs E about the applicant’s care and treatment in Bournewood Hospital

Mr and Mrs E first visited the applicant in Bournewood Hospital on 2 November 1997 and they prepared detailed notes of their impressions of the applicant during that and subsequent (almost daily) visits with him.

On the applicant’s release to Mr and Mrs E on 5 December 1997, they took photographs of certain marks of injuries on his body. They also brought him to a dentist who, in his report dated 6 December 1997, gave the opinion that the applicant had received no dental care at all in the previous months. The report of a chiropodist dated 11 December 1997 referred to the applicant’s painful and blackened toe-nails.

By letter dated 13 February 1998 to the Director of Mental Health and Specialist Services of Bournewood Hospital, the applicant’s social worker referred to her visit with the applicant at Mr and Mrs E’s home on 5 December 1997. She expressed her concerns about the applicant’s physical condition including certain marks of injuries on his body and suggested that his teeth, feet and clothing had been neglected in the hospital. She referred to having raised these matters during a review meeting with that Director on 13 January 1998.

In response, the Mental Health Services Manager of the hospital carried out a detailed internal investigation. Her report dated 30 March 1998 concluded that the social worker had raised issues which were collectively a cause for concern. Whilst a number of concerns had been satisfactorily answered, there appeared to have been some shortcomings in relation to basic nursing care, record keeping and follow-up of appointments. It was considered that a number of factors could explain but could not excuse this, and the report outlined the relevant improvements being implemented. The report was provided to the applicant’s social worker on 15 April 1998.

A detailed complaint dated 17 September 1998 was then submitted by Mr and Mrs E to the hospital. They took issue with the applicant’s care and treatment in the hospital, they alleged that they had been undermined in their role as carers and that the hospital had failed to protect the applicant from harm. They also raised certain “good practice issues”. The Chief Executive, by letter dated 16 October 1998, provided a detailed response to those complaints. In her concluding remarks she accepted that the hospital had failed to satisfactorily address the difficult relationship between Mr and Mrs E and the key management and professional staff at the hospital. She also accepted that there had been some shortcomings in the provision of basic personal care to the applicant, but maintained that the hospital had provided a reasonable standard of care.

Mr and Mrs E responded by memorandum dated 31 October 1998, taking issue with the Chief Executive’s comments.

5. The Health Service Commissioner (“the Commissioner”)

In March 2000 Mr and Mrs E complained to the Commissioner. The complaints subjected to investigation were that the clinical decision to admit the applicant on 22 July 1997 was unreasonable and that the clinical management of his admission was inadequate.

The Commissioner’s independent assessors investigated. In their report they considered that it was probably unavoidable that the applicant be admitted to the IBU on 22 July 1997. However, serious consideration should have been given to sending him home on the same day when Mr and Mrs E were located or, at least, on the following day: the assessors considered that it was difficult to see why, even if it was necessary to certain him overnight, he was not discharged the following day and his subsequent evaluation would have been better conducted on an out-patient basis. Thereafter, more consideration should have been given to his life with his carers and there appeared no compelling reasons for his continued absence from their home. The process of assessment of the applicant was too long and resources should have been available to speed up that process. In this latter respect, the assessors did not believe that any of the clinicians were acting irresponsibly or maliciously and their main recommendation for the future was that admissions to the IBU should be “strictly time-limited” and that adequate resources should be made available to enable multi -disciplinary assessment to be carried out if at all possible on an out-patient basis and, if not, as speedily as possible.

The Commissioner’s report dated 15 November 2001 agreed with the assessors’ conclusions and he conveyed the hospital’s apologies to Mr and Mrs E for the shortcomings identified. The hospital had also informed the Commissioner that, through the Intensive Assessment and Treatment Service, the assessors’ recommendations for out-patient assessment had been implemented.

B. Relevant domestic law and practice

1. Informal psychiatric patients

The majority of persons who receive in-patient psychiatric care are treated without resort to the compulsory powers under Part II of the Mental Health Act 1983 (“the 1983 Act”) and these are called “informal patients”. Such patients are either “voluntary patients” namely, those persons with legal capacity to consent and who have consented to admission for treatment, or persons who do not have the legal capacity to consent to treatment but who are admitted for treatment on an “informal basis” as they do not object to that admission.

Section 131(1) of the 1983 Act provides as follows:

“Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained.”

2. Remedies for psychiatric patients in respect of their care

(a) Criminal proceedings

All persons, including mentally disordered patients, are protected by the criminal law relating to assault, battery and false imprisonment.

In addition, section 127 of the Mental Health Act 1983 (“the 1983 Act”) creates certain offences which specifically protect psychiatric patients. It provides:

“(1) It shall be an offence for any person who is an officer on the staff of or otherwise employed in, or who is one of the managers of, a hospital or mental nursing home –

(a) to ill-treat or wilfully neglect a patient for the time being receiving treatment for mental disorder as an in-patient in that hospital or home; or

(b) to ill-treat or wilfully to neglect, on the premises of which the hospital or home forms part, a patient for the time being receiving such treatment there as an out-patient.

...

(3) Any person guilty of an offence under this section shall be liable –

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding to the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine of any amount, or to both;

(4) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”

By virtue of section 130 of the 1983 Act a local social services authority has power to bring criminal proceedings for those offences with, as section 127(4) provides, the consent of the Director of Public Prosecutions (“DPP”). The Court of Appeal has found that “ill-treatment” and “wilful neglect” are distinct offences ( R v. Newington (1990) 91 Cr. App. R 247).

(b) Civil proceedings

Assault, battery and false imprisonment are torts, for which civil proceedings will also lie.

A mentally disordered patient may also have a cause of action for negligence in respect of the manner in which he is cared for in hospital. Doctors and others who have assumed responsibility for the patient will owe a duty of care to that patient and, in particular, must act in that patient’s best interests ( In re. F (Mental Patient: Sterlisation ) [1990] 2 A.C. 1 as applied in R v Bournewood Community and Mental Health NHS Trust, ex parte [1998] 3 WLR 107). A person who suffers injury, whether physical or psychiatric, in consequence of the negligence of another may bring an action in common law for damages for that injury.

(c) Limitation on liability

Section 139 of the 1983 Act provides, in so far as relevant, as follows:

“(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act ... unless the act was done in bad faith or without reasonable care.

(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.

(3) This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.

(4) This section does not apply to proceedings against the Secretary of State or against a Health Authority or a Special Health Authority or against a National Health Service Trust established under the National Health Service and Community Care Act 1990.

... .”

The equivalent section in the former Mental Health Act 1959 has been found not to apply to informal patients ( R v. Runighian [1977] Crim . L R 361).

(d) Health Service Commissioners Act 1993 (“the 1993 Act”)

Sections 4 and 5 of this Act read, in so far as relevant, as follows:

“4. (1) A Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had –

(a) a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative, or

(b) a remedy by way of proceedings in any court of law, unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.

(2) A Commissioner shall not conduct an investigation in respect of action which has been, or is, the subject of an inquiry under section 84 of the National Health Service Act 1977 ... .

5. (1) A Commissioner shall not conduct an investigation in respect of action taken in connection with –

(a) the diagnosis of illness, or

(b) the care or treatment of a patient, which, in the opinion of the Commissioner, was taken solely in consequence of the exercise of clinical judgment , whether formed by the person taking the action or any other person.

(2) In subsection (1), “illness” includes a mental disorder within the meaning of the Mental Health Act 1983 ... and any injury or disability requiring medical ... treatment or nursing.”

Pursuant to section 14 of the 1993 Act, a Commissioner shall send a report of the results of an investigation by him to, inter alia , the complainant, to the health service body concerned and, if the body concerned is not a District Health Authority for a district in England, to the Secretary of State. If after conducting an investigation it appears to a Commissioner that the person aggrieved has sustained injustice or hardship and the injustice or hardship has not been and will not be remedied, he may if he thinks fit make a special report to the Secretary of State who shall, as soon as is reasonably practicable, lay a copy of the report before each House of Parliament. The Commissioner shall also make an annual report to the Secretary of State on the performance of his functions under this Act who, in turn, lays the report before each House of Parliament.

COMPLAINTS

The applicant complains under Article 3 of the Convention alleging physical and psychological harm from his care and treatment in the hospital.

He also complains under Article 5 § 1 of the Convention that his detention between 22 July and 29 October 1997 was neither “in accordance with a procedure prescribed by law” or “lawful”. In addition, he argues that his detention between 22 July and 12 December 1997 (when his release was formally approved) was not justified under Article 5 § 1(e) because he was not of unsound mind. He further complains under Article 5 § 4 that the procedures available to him, as an informal patient between 22 July and 29 October 1997, for the review of the legality of his detention did not satisfy the requirements of Article 5 § 4 of the Convention.

In addition, the applicant complains under Article 8 that his right to respect for his private and family life and his home has been violated by his involuntary detention or, alternatively, by the failure of the State to protect him from arbitrary detention. He also alleges that he suffered from physical and psychological harm as a result of his neglectful care and treatment in hospital. He further claims that he was denied access to family and friends while in detention or, in the alternative, that the State failed to protect his right of access to family and friends while he was in detention. In addition, he argues that the State failed to afford him sufficient safeguards against unnecessary treatment.

He further complains under Article 13 that he was denied an effective remedy for these violations of Articles 3 and 8 of the Convention. Finally, he complains under Article 14 in conjunction with Article 5 of the Convention that he was discriminated against on the ground of his status as an “informal” patient.

THE LAW

A. Articles 3, 8 and 13 of the Convention: allegations concerning the applicant’s treatment and conditions of detention

1. The parties’ submissions

The applicant complains under Articles 3, 8 and 13 of the Convention about his care and treatment in hospital. In particular, he alleges that he suffered physical and psychological harm mainly as a result of the denial of visits during his hospitalisation, the State’s failure to protect him from other patients, the unnecessary clinical decision to detain him for treatment and assessment, the medication and other treatment administered and the sanitary and other conditions in the hospital.

While he also complains under Article 8 about his removal from his carers’ home without his consent and about an alleged failure by the State to protect him from an arbitrary removal, the Court considers it appropriate to examine this complaint under Article 5 § 1 of the Convention.

The Government point out that, while the applicant pursued judicial review proceedings combined with a request for habeas corpus, he has not pursued or attempted to pursue any existing criminal or civil remedies in respect of these allegations. As a result, serious allegations are now made to the Court about his care and treatment none of which has been tested in domestic judicial proceedings.

Section 127 of the 1983 Act applies, the Government argue, to all patients receiving treatment for mental disorder and not just those patients compulsorily detained under the 1983 Act. Section 139 of the 1983 Act does not exclude liability for offences under the 1983 Act for which the consent of the DPP is required: a prosecution for ill-treatment or wilful neglect would, therefore, have been possible under section 127 § 1 of the 1983 Act. In addition, section 139 of the 1983 Act does not exclude the liability of the public authority which administered the relevant hospital and that authority would be vicariously liable for any torts committed by hospital staff employed by it. Even if section 139 § 1 of the 1983 Act applied to informal patients, it does not confer an absolute immunity from criminal or civil proceedings: it does not exclude the liability of a person who acts in “bad faith” or without “reasonable care” so that a person guilty of negligence would be liable to, for example, proceedings, subject to leave of the High Court.

While the applicant included assault in his judicial review proceedings, that was a technical and limited assault relating only to the touching of his person in the process of bringing him to the hospital in July 1997 and did not relate to his current allegations of ill-treatment.

As to his reliance on the Commissioner’s report and his submission that the Commissioner will not investigate unless other effective remedies have been exhausted, the Government point out that the Commissioner did not investigate the allegations he now makes about his care and treatment in the hospital. Moreover, they argue that the applicant’s carers were the complainants before the Commissioner and not the applicant himself.

Furthermore, the Government consider as circular the applicant’s argument that this Court puts the burden of proof on a State when a detained person is found to have been injured: the very question under Article 5 is whether the applicant was so detained, a matter not decided by the Commissioner, and there is no finding or evidence that the applicant was so injured. In any event, the doctrine of res ipsa loquitur means that where a person has suffered injury while under the control of the defendant, it will be considered that the defendant is more likely to know what happened and, in the absence of a satisfactory explanation from the defendant, a “finding of negligence will be considered to speak for itself”. This doctrine is not therefore significantly different from the reversal of the onus of proof by this Court to which the applicant refers.

The applicant considers that he had no effective remedies to exhaust. He points out that section 4 of the 1993 Act provides that a Commissioner cannot investigate unless a complainant has exhausted all available remedies or unless the Commissioner is satisfied that in the circumstances it was not reasonable to expect the complainant to resort or have resorted to that remedy.

As to why the criminal remedies allegedly available were not effective, the applicant submits as follows. Section 127 of the 1983 Act is ineffective as it requires a finding of inexcusable ill-treatment or neglect whereas Article 3 does not require proof of such subjective intent. A criminal court has no power to award damages in respect of a finding of ill-treatment or neglect. The burden of proof is on the patient to prove ill-treatment or neglect to the criminal standard of proof (beyond all reasonable doubt) whereas in the Convention context the burden shifts to the detaining authority to demonstrate that it was not responsible for injuries sustained by a detainee. The Human Rights Act 1998 did not come into effect until 2 October 2000 so that a criminal court could not examine the substance of complaints under Articles 3 and 8. Prosecutions under section 127 are very rare. Since the United Kingdom authorities can be said to be on notice of his allegations as a result of his complaints to the hospital and to the Commissioner, the onus was not on him but on the authorities to initiate a criminal investigation under section 127 of the 1983 Act.

As to the effectiveness of a civil action for negligence, any such action could not have brought an end to the alleged violations while he was still in detention as he was barred from contact with the only persons who could have taken proceedings on his behalf. The burden would have been on him to prove negligence whereas in a Convention context the burden shifts to the detaining authority to demonstrate that it was not responsible for injuries sustained in detention. Damages are payable for recognisable psychiatric injury only and not for anguish, fear and hopelessness. In addition, there is a real doubt whether in 1997-1999 he could have taken an action against the hospital: he considers that there is much doubt and uncertainty as to whether the Court would have considered it fair, just and reasonable to impose a duty of care on the relevant professionals. Any claim in negligence would give rise to additional “uncertainties” such as the applicant being incapable of giving an account of the treatment received in hospital and the availability of legal aid.

He agrees that complaints to the hospital and to the Commissioner would not constitute effective remedies for the purposes of Articles 13 or 35 of the Convention.

Finally, he suggests that no remedy was available to him by which he could have challenged the decisions on visits: there was no right to privacy in common law and judicial review would not have been effective given the high threshold required to establish “unreasonableness” and the fact that no compensation would be payable in any event. Nor was any remedy available to him in relation to treatment to which he was subjected and did not consent.

2. The Court’s assessment

The Court recalls that Article 35 § 1 of the Convention requires those seeking to bring their case against a State to use first those remedies provided by the national legal system, including available and effective appeals, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law and, further, any procedural means that might prevent a breach of the Convention should have been used ( Cardot v. France judgment of 19 March 1991, Series A no. 200, § 34).

The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success ( T. v. the United Kingdom [GC], no. 24724/94, § 55, 16 December 1999, unpublished). However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ( Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, § 68).

The Court also recalls that the possibility of obtaining compensation for ill-treatment will generally, and in normal circumstances, constitute an adequate and sufficient remedy for a complaint under Article 3 of the Convention ( Z.W. v. the United Kingdom (dec.), no. 34962/97, 27 November 2001, unpublished).

The Court further notes that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (the above-cited Akdivar and Others v. Turkey judgment , at § 69, and McKerr v. the United Kingdom (dec.), no. 28883/95, ECHR 2001-III).

The Court recalls that the applicant complains about negligent care, treatment, assessment and decision-making while he was in hospital as a result of which he suffered physical and psychological harm. In the Court’s opinion, his specific allegations in this respect (clinical decisions concerning the impact of visits, a failure to properly protect him from other patients, an incorrect clinical decision to detain him for assessment and treatment, unnecessary treatment and medication together with unsuitable and unsanitary conditions in hospital) all arguably fall within the scope of a general allegation of negligence by the staff of the hospital either on the basis of their failure to act or on the basis of action taken by them.

The Government have detailed the availability of an action in common law against the hospital and its staff for damages for physical or psychological injury suffered as a result of such negligence. The Court does not consider, for the reasons detailed below, that the applicant has discharged the burden on him to show that that remedy was “inadequate and ineffective in the particular circumstances”.

Even assuming that section 139 of the 1983 Act applies despite section 139(4), it has not been demonstrated that section 139 would exclude a negligence action which included a claim of a lack of “reasonable care” once the consent of the High Court was obtained. A “reasonable care” requirement has not been shown to be incompatible with proceedings about allegations of negligent care and treatment. In addition, this Court found a similar reasonable care requirement and the need to obtain the consent of the High Court to issue such proceedings to constitute a reasonable limitation on access to court by psychiatric patients ( Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, § 59). At worst, the applicant would have obtained reasons from the High Court as to why its consent would not be given. However, the applicant did not even seek the High Court’s consent to issue any such negligence proceedings or take any steps towards informing himself, for example by way of a specialist counsel’s opinion, as to the chances of success of any such action.

As to his submission concerning the effectiveness of the remedy while he was in the hospital, it is noted that as early as September 1997 the applicant had issued and subsequently pursued complex judicial review proceedings with the assistance of his “next friend” and legal representatives. In contrast, there is no evidence of any attempt to pursue with those representatives any proceedings concerning his treatment and care concerns, despite the fact that the applicant’s carers had expressed some concern in this respect as early as August 1997. It is insufficient to rely on uncertainty as to legal aid being granted when the applicant did not even apply for such legal aid, or even for legal aid limited to obtaining counsel’s opinion. The fact that the civil burden of proof would be on the applicant to prove his allegations would not render the remedy ineffective and, in any event, the Court has noted the Government’s submission concerning the application of the doctrine of res ipsa loquitur to such a case. While the applicant points out that damages would not be awarded for anguish, fear and hopelessness, the Court notes that a substantial part of the applicant’s complaints relate to negligent care leading to physical and psychological harm.

As to his “real doubts” about whether he could have brought a successful action in negligence against the hospital and “much doubt” as to whether the domestic courts would have considered it was fair, just and reasonable to impose a duty of care upon the relevant professionals, the Court recalls that the existence of mere doubts as to the prospects of success of a remedy does not, without more, absolve an applicant from exhausting it ( McElhinney v. Ireland and the United Kingdom, (dec.) no. 31253/96, 9 February 2000). The Court also notes that, while he submits that he would have had difficulty in recounting his treatment in hospital, he now makes detailed factual submissions as regards his alleged ill-treatment to this Court. Moreover, the applicant’s failure to pursue negligence proceedings meant that any evidential gap could not be filled by way of discovery from the hospital of relevant medical and psychiatric records. As to the argument that the Commissioner would not have investigated had another remedy been available, the Court notes, as pointed at by the Government, that only certain allegations to this Court were before the Commissioner and, further, that his carers were the complainants before the Commissioner and not the applicant himself. The applicant does not assert that the complaint to the Commissioner was itself an effective remedy and the Court notes that such proceedings are not judicial and do not form part of the normal judicial process. The Commissioner has no power to render a binding decision granting redress and can, at most, submit a report to Parliament if he considers there has been injustice to an individual which has not been remedied.

In such circumstances, the Court does not consider that the applicant has demonstrated that he has exhausted all effective domestic remedies available to him as required by Article 35 § 1. In such circumstances, his complaints under Articles 3 and 8 of the Convention concerning his care and treatment in hospital, and consequently his connected complaint under Article 13 of the Convention, must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Article 5 § 1 of the Convention

The applicant complains that he was detained in violation of Article 5 § 1 of the Convention. He maintains that his detention as an informal patient from 22 July to 29 October 1997 was neither “in accordance with a procedure prescribed by law” or “lawful”. He also argues that his detention between 22 July and 12 December 1997 was not justified under Article 5 § 1(e) because he was not of unsound mind, this latter date being the date when the hospital managers formally discharged him (section 23 of the 1983 Act).

Article 5 § 1 of the Convention, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(e) the lawful detention ... of persons of unsound mind, ...;

...”

1. A deprivation of liberty

The Government deny, referring to the majority of the House of Lords, that the applicant was detained within the meaning of Article 5 § 1(e) of the Convention. The Government reason that, if one takes the case of a person who plainly has the capacity to consent to medical and psychiatric treatment, the regime applied in the hospital was clearly one which did not amount to a deprivation of liberty. The regime applied to the applicant was not materially different and cannot be considered to amount to a deprivation of liberty simply because he lacked capacity. He did not object to being in hospital. While he might have been detained if he attempted to leave hospital, an intention to detain someone in the future does not amount to a present detention. Indeed since the lucidity of an individual with a psychiatric disorder may change from time to time, one cannot base a finding of detention merely on the basis of the person’s mental state, so long as the regime applied remains the same.

In the Government’s view, none of the factors to which the applicant refers amount, alone or taken together, to a deprivation of liberty. With regard to the doors of the relevant unit being locked, the Government note that this allegation was not made in the domestic proceedings. In any event, this factor needs to be carefully considered in the context of mentally disordered patients. All involved in the applicant’s care agreed that the applicant was incapable of looking after himself or of consenting to any particular form of treatment. The degree of disability and dependence on others means that those caring from him, whether his carers, the day-care centre or the hospital, would need to take the necessary steps to ensure that the applicant was protected from foreseeable harm. Such steps may inevitably include locking doors temporarily as a precaution so as to prevent the applicant from harming himself.

The applicant maintains that he was deprived of his liberty for the purposes of Article 5 § 1 of the Convention.

The doors of the hospital were locked for some, if not most, of his stay in hospital. The finding that the doors were locked was made after the judicial review proceedings by the Commissioner who based his conclusion on the evidence of the care manager and of the community nurse, submissions accepted by the hospital before the Commissioner. He would distinguish the case of Nielsen v. Denmark ( judgment of 28 November 1988, Series A no. 144). The applicant in that case was a child admitted by his parents whereas the applicant was an adult for whom no one could make a decision of committal without his consent; the applicant could not have been removed at any time from the hospital, whereas the Nielsen child could have been removed by his parents; and the applicant was medicated and his visits were restricted, whereas the Nielsen child was not medicated and could be visited regularly.

In their further observations, the Government submit that a proper reading of the Commissioner’s report shows that he did not find that the doors were locked and that his findings were not at odds with those of the domestic courts: the Commissioner found the facility “lockable” as opposed to “locked”. The applicant considers that the report indicates that the Commissioner specifically asked whether the ward was locked and that the evidence gathered and referred to in his report confirms that it was.

2. Was any such deprivation of liberty in accordance with Article 5 § 1(e) of the Convention?

The Government consider that, even if the applicant could be considered to have been detained, such detention was justified by the common law doctrine of necessity and was, thus, in accordance with domestic law.

It is not for this Court to review the domestic courts’ interpretation of domestic law. In addition, the doctrine of necessity was sufficiently certain to constitute “law” within the meaning of the Convention. It is a well established doctrine, which had been the subject of a thorough and authoritative examination in 1990 by the House of Lords ( Re F (Mental Patient: Sterilisation) cited above). It is impossible, especially in a common law system, for there to be absolute certainty in the formulation and application of rules of law and the Court has already accepted that unwritten law, so long as it is sufficiently precise, can satisfy the requirements of Article 5 § 1 of the Convention.

The Government go on to underline that the Court has accepted that a person may be detained under Article 5 § 1(e) to protect his own interests. While the doctrine of necessity includes this objective, it is not so broad as to be satisfied whenever a doctor simply acts in the best interests of the patient: the doctrine requires that the applicant has been shown not to have capacity to take the relevant decision and what is done is such that a reasonable person would so decide in the detainee’s best interests. It would be wrong, and inconsistent with the Court’s case-law, to characterise concepts of “best interests” and “reasonableness” as too uncertain for the purposes of the lawfulness requirements of Article 5 § 1, not least because concepts of necessity are used by the Convention system itself in the context, inter alia , of Articles 8-11 of the Convention.

In addition, there are sufficient safeguards: there is no reason why a patient or his representative cannot bring a judicial review action combined with a writ of habeas corpus before the domestic courts to require the authorities to demonstrate that the facts justify the detention of the patient under the common law doctrine of necessity and, where it is common law as opposed to legislation which provides the basis for detention, there is no reason why the domestic courts, with due regard to clinical opinions submitted, could not review whether the facts of the case justified detention. Indeed, in the present case, the domestic courts had detailed facts before them as to whether it was necessary, in accordance with the common law doctrine of necessity, to detain the applicant. The risk of arbitrary detention is prevented by this adequate judicial guarantee and safeguard.

As to the applicant’s allegation that he was not of unsound mind during his stay in hospital, the Government maintain that, given its subsidiary function, it is not for the Court to substitute its own judgment for that of relevant medical experts but rather to ensure that those expert opinions had an objective and reliable basis. According to the Government, the authorities clearly acted in the applicant’s best interests and in accordance with the doctrine of necessity and they refer, in this respect, to the various expert reports completed on the applicant. As outlined above, there was no reason why the domestic courts could not have reviewed whether the facts of the case justified detention: a review which could have included an examination of whether what was done in the interests of the applicant was reasonably done.

The applicant makes a number of submissions supporting his view that his detention was not “in accordance with the law” or “prescribed by law”.

In the first place, he argues that the doctrine of necessity was too imprecise to satisfy the foreseeability test. The case-law at the time of the applicant’s detention ( Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 and Re F (Mental Patient: Sterilisation cited above) had established that the question of whether treatment was in a patient’s best interests was initially considered to be a purely clinical decision to be judged by a narrow “not negligent” test. This test came under much criticism by the Law Commission and by the Select Committee on Medical Ethics which led to a consultation paper which was, in turn, adopted by the Government in large part in its Green Paper “Making Decisions” in October 1999. The proposals therein were not put into effect in legislation and the test was not expanded until the case of Re A (Medical treatment: Male Sterilisation) ([2000] 1 FCR 193 ) when the Court of Appeal ruled that the concept of best interests required compliance with two duties: not to act negligently and to act in the individual’s best interests.

Secondly, the applicant maintains that the doctrine of necessity contains insufficient safeguards to protect against arbitrary or mistaken detentions and to satisfy the rule of law. Interference with one’s rights should be subject to effective control and this is especially so when the law in question bestows a wide discretionary power, the application of which is as a matter of practice susceptible to modification and not to any parliamentary scrutiny (Silver v. the United Kingdom judgment of 25 March 1983, Series A no. 61, § 90). While such safeguards do not need to be enshrined in the very text which confers the power to interfere, those safeguards simply do not exist and, in this respect, the applicant refers to the above-quoted remarks of Lord Steyn in the House of Lords. In particular, habeas corpus does not allow a re-consideration of the merits of the necessity of an informal patient’s detention as it is only concerned with whether power to detain is shown on the face of the record, subject to the “best interests” declaratory power of the High Court expanded on below in the context of Article 5 § 4 of the Convention.

Thirdly, he maintains his submission that he was not of “unsound mind”. While the domestic courts may have concluded that the hospital had acted in good faith and reasonably in the best interests of the applicant and the Commissioner did not find that the hospital acted irresponsibly or maliciously, the Commissioner did find that it was difficult to understand why the applicant had not been released to his carers on 22 July 1997 or at least the following day. The latter finding establishes that the applicant did not require detention for treatment after his initial admission after 22 July 1997. The Court should prefer the Commissioner’s conclusion to that of the House of Lords, as the habeas corpus proceedings were not apt to question whether the hospital’s continuing detention of the applicant was justified on the merits whereas the Commissioner had full jurisdiction and the necessary powers to examine whether there had been a failure on the facts in a service provided by a health service body (section 3(1)(a) of the Health Service Commissioner’s Act 1993). The applicant notes that the Commissioner cannot review clinical decisions, but maintains that the decision to detain him was not purely clinical. Accordingly, the Court is not being requested to overturn the findings of domestic courts but rather invited to adopt the assessment of the only national body to have made findings on his state of mind after a proper assessment of the evidence.

In their further observations, the Government contest that the Commissioner’s conclusion amounted to a finding that the applicant was not of “unsound mind”: there was no express finding to that effect and such a conclusion cannot be drawn from the contents of his report. The applicant considers that a fair a full reading of the Commissioner’s report will demonstrate that he was not suffering from a mental condition requiring detention for treatment or assessment.

3. The Court’s decision on the admissibility of this complaint

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under Article 5 § 1 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. Article 5 § 4 of the Convention

The applicant further complains under Article 5 § 4 that the procedures available to him as an informal patient (22 July and 29 October 1997) for the review of the legality of his detention (judicial review combined with a writ of habeas corpus) were insufficient to comply with the requirements of Article 5 § 4 of the Convention, which provision reads as follows:

“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.”

The Government consider this complaint to be surprising and wrong. The applicant brought proceedings before the domestic courts to challenge the lawfulness of his detention and those proceedings complied with the requirements of Article 5 § 4 of the Convention. Relying on domestic jurisprudence which in turn relied on the domestic judgment of Reg. v. the Ministry of Defence, ex parte Smith [1996] Q.B. 517, the Government argue that at the relevant time the courts could interfere with an executive decision where it was satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision maker. The human rights’ context was important and the more substantial the interference with human rights, the more the court would require by way of justification before it would find the interference to be reasonable (“the super- Wednesbury principle”). While this review may not allow the courts to substitute its views for the clinical expert views expressed, Article 5 § 4 does not require this (E v. Norway judgment of 29 August 1990, Series A no. 181-A).

In addition, the Court’s judgment in the case of X v. the United Kingdom ( judgment of 5 November 1981, Series A no. 46), can be distinguished, in that the relevant review therein was of a decision to detain taken on the basis of legislative provisions, whereas the present case concerns the review of a decision to detain taken on the basis of the common-law doctrine of necessity. In the latter case, the domestic courts can review on a more intrusive basis. Indeed, the principles upon which judicial review is exercised in cases concerning human rights have developed considerably since the Court’s judgment in X v. the United Kingdom and, in particular, prior to the incorporation into domestic law of the Convention provisions by the Human Rights Act 1998.

The applicant disputes that the judicial review and habeas corpus proceedings are sufficient to satisfy the requirements of Article 5 § 4 of the Convention because in such proceedings the courts would not examine whether the conditions justifying a detention under Article 5 § 1 exist.

He contends that the reliance by the Government on the so-called “super- Wednesbury principle” is misconceived: this Court has found that the principles of judicial review applied in the case of R v. the Ministry of Defence, ex parte Smith were such that the proceedings did not constitute an effective remedy under Article 13 in conjunction with Article 8 of the Convention. This ineffectiveness is even more marked in the context of Article 5 § 4 of the Convention.

As to the Government’s attempt to distinguish the X v. the United Kingdom judgment and their claim of a more intrusive examination by the courts when reviewing detention in accordance with the doctrine of necessity, the applicant points out that the Government have not referred to a single case where the domestic courts have examined on the merits the lawfulness of a patient’s detention under the doctrine of necessity: indeed, in his own domestic proceedings there was much affidavit evidence untested in cross-examination and no independent psychiatric evidence obtained for the court as to whether detention was appropriate. The applicant again refers to the closing comments in the judgment of Lord Steyn in the House of Lords quoted above.

The applicant recognises that subsequent jurisprudence ( Re F. (Adult: Court’s Jurisdiction) [2001] Fam . 38 ) has developed the High Court’s jurisdiction to make “best interests” declarations, including authorisation of long-term detention of incapacitated adults, and he accepts that that possibility might go some way to satisfying the requirements of Article 5 § 4 of the Convention. However, those developments were subsequent to the applicant’s detention and proceedings. In any event, a “best interests” application would still not satisfy Article 5 § 4 because the onus is on the patient to bring the application as a hospital is not obliged to do so.

Moreover, no domestic proceedings were apt to consider the question whether the doctrine of necessity was sufficiently precise, or contained sufficient safeguards against arbitrary or mistaken detention, so as to be “in accordance with a procedure prescribed by law”.

In their further observations, the Government point out that the above-cited case of Re. F (Adult: Court’s Jurisdiction) did not break new ground in the High Court’s “best interests” declaratory powers but simply applied the House of Lords’ decision in the present case. In any event, the Court has long recognised that the common law is flexible and evolves. The fact that the Court of Appeal applied the doctrine of necessity in a particular context in 2000 does not mean that proceedings could not have been brought to test the same point in earlier years.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under Article 5 § 4 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D. Article 14 of the Convention

The applicant further complains under Article 14 in conjunction with Article 5 of the Convention that he was discriminated against on the ground of his status as an “informal” patient. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

While the Government accept that the applicant’s complaints fall within the scope of Article 5, they argue that he has not suffered a discriminatory difference in treatment. In their opinion there is an objective and reasonable difference between an informal and formal patient and there is a reasonable relationship of proportionality between the means chosen to regulate both situations and the legitimate aims sought to be achieved. In particular, the means chosen in the mental health legislation are based on the idea that compulsion and detention were unnecessary for the great majority of mental patients. Given, in addition, the stigma attaching to involuntary committal, the level of intrusion into an individual’s private life and the loss of rights associated with such committal, Parliament took the view that as far as possible treatment for a mental disorder should be equated to treatment for a physical illness without any procedures for compulsion and detention. Parliament’s choice to regulate by legislation the committal of those who actively dissent but require detention for treatment and not to provide for such procedures for those who do not so dissent was a reasonable and justified difference in treatment which fell within the State’s margin of appreciation.

The applicant maintains his complaint that he has been the subject of a discriminatory difference in treatment on the basis of his status as an informal patient, namely one who is considered a “compliant incapacitated mentally disordered patient”. Mentally disordered compulsorily detained patients have the full breadth of the safeguards for which the 1983 Act provides and those safeguards are not, strictly speaking, necessary for voluntary patients, as they can in principle dissent from any action proposed. However, the “compliant incapacitated mentally disordered patient” cannot so dissent and has none of the protections of the 1983 Act. This denial of safeguards and protections to this latter category of person is unjustifiable.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under Articles 14 and 5 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning breaches of Article 5 of the Convention, taken alone and in conjunction with Article 14;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti P ellonpää , Registrar President

[1] 1. The Mental Health Act Commission was established by the 1983 Act and its main functions are to protect the rights of persons who are detained and to ensure the proper performance of the various powers and duties exercisable under the Act.