FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17111/04 by I.H against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 June 2005 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr M. Pellonpää , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 6 May 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr I.H. , is a United Kingdom national, who was born in 1970 and lives in Chaste Field Hopsital, Enfield, Middlesex. He is represented before the Court by Mr M. David, a solicitor practising in Saxmundham, Suffolk .

A. The circumstances of the case

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

In March 1995, the applicant severely mutilated his three year old son by castrating him. He was charged with causing grievous bodily harm with intent to do so. On 4 May 1995 he was transferred to Rampton Hospital under section 28 of the Mental Health Act 1983 ( ' MHA ' ), diagnosed with paranoid psychosis. On 21 July 1995 he was found not guilty of that offence by reason of insanity and ordered to be admitted to a high security hospital ( Rampton ) under section 5 of the Criminal Procedure (Insanity) Act 1964. When an individual is admitted to hospital in this way, he becomes entitled to apply to a Mental Health Review Tribunal ( “ MHRT ” ) which is empowered to order his discharge either absolutely or conditionally.

On 18 July 1998 the applicant ' s detention was reviewed by the MHRT but no order for discharge was made.

On 7 September 1998 the MHRT, after reviewing the applicant ' s case again, recommended his transfer to a less secure unit. However the Secretary of State refused the transfer. In December 1998, Dr. Sagar , a psychiatrist, considered that the applicant was in a state of natural remission as he had not been taking medication for 18 months. On 31 May 1999 , Dr. Gandhi (a psychiatrist instructed by the applicant ' s solicitors) considered that the applicant was no longer suffering from a mental disability under the MHA and therefore his detention was unjustified.

On 7 June 1999 there was a third MHRT hearing which heard evidence from Doctors Sagar , Gandhi and Page as well as from a representative of the Secretary of State for the Home Department. Both Dr Page and the Secretary of State ' s representative opposed the proposed conditional discharge of the applicant. In spite of this opposition the MHRT held that:

“having considered all the medical evidence we have come to the conclusion that the applicant is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment.

We adjourn the hearing until 1 December 1999 at the latest for a full care plan to be drawn up. The terms which we consider should probably be attached to the Conditional Discharge are:-

1) Supervision by a named Social Worker

2) Supervision by a named forensic psychiatrist; the appellant to be subject to the directions of the Psychiatrist including any relating to drug monitoring

3) Residence at a suitable hostel, preferably staffed 24 hours a day.

If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed.

We require Haringey Council to provide full details of a suitable plan at the adjourned hearing.”

On 3 February 2000 the tribunal reconvened and decided that the applicant should be transferred to a medium security unit. A conditional discharge order was then made. The terms of the discharge were as follows:

“4. Decision of the tribunal:

(d) The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below. ...

6. Findings of the Tribunal concerning the statutory criteria

The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions (A) or (B) is ' yes ' and the answer to question (C) is also ' yes ' .

A. Is the tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or a degree which makes it appropriate for the patient to be detained in a hospital for medical treatment? Yes

B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment? Yes

C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment? No

7. Conditions imposed by the tribunal (conditional discharge only): And the reasons for the tribunal ' s decision.

Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and ha ving heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a conditional discharge order in the following terms: (1) There shall be supervision by a named social worker, (2) there shall be supervision by a named psychiatrist, preferably by a forensic psychiatrist; (3) the applicant shall be subject to the directions of the psychiatrist including any relating to drug monitoring; (4) the applicant shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day; (5) the applicant shall be excluded from Enfield, Harringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. The applicant ' s discharge shall be deferred until the arrangements listed have been made.”

At the time this order was made it was not challenged by the applicant. Unfortunately, the local authorities were unable to find a forensic psychiatrist to supervise the applicant. To find a psychiatrist required the cooperation of North London Forensic Service, who refused to provide a psychiatrist, basing their refusal on the fact that they considered the applicant ' s release into the general public to be premature and dangerous.

In 2001, the applicant applied for judicial review. He asked the court to consider whether the MHA ' s provisions governing conditional discharge and deferral were consistent with Article 5 of the Convention as interpreted in Winterwerp v. Netherlands ( judgment of 24 October 1979, Series A no. 33 ) and Johnson v. United Kingdom ( Johnson v. the United Kingdom , judgment of 24 October 1997, Reports of Judgments and Decisions 1997 ‑ VII ), in particular concerning the MHRT ' s lack of power to secure compliance with its conditions and , in the event of a failure of the health authority to secure compliance with its decision , its inability to reopen and reconsider the case. The applicant also made a claim for damages.

On 25 July 2001, the High Court, when granting permission for judicial review, suggested that meanwhile the Secretary of State refer the case back to the tribunal, which he did.

Further hearings were held by the MHRT in January and March 2002. On 25 March 2002 it was recommended that the applicant remain in hospital as it was satisfied, notwithstanding the earlier decisions, that the applicant was and always had been suffering from a mental illness which was in remission but with a significant risk of relapse, that it was appropriate for the applicant to be detained in hospital for the treatment of his illness and that the evidence of the need for hospital treatment was compelling.

On 5 December 2001, after a hearing at which the applicant was represented, the Administrative Court judge found that it was a least arguable that the applicant had been detained unlawfully for a period of a few months after February 2000 and that in breach of Article 5 §§ 1 and 4 he had been left in limbo for 21 months. He did not however consider that there was breach of these provisions based on a lack of power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. While he did not see how any order that a medical practitioner supervise a patient in the community could be enforced against his professional principles, he considered that the relevant legislation could be given effect to in a way compatible with the Convention, namely that an MHRT could make a deferred direction for conditional discharge enabling the tribunal to monitor attempts to comply with reasonable conditions and to amend the deferred conditional discharge in the light of difficulties encountered by the authorities.

The applicant was given permission to appeal to the Court of Appeal.

On 15 May 2002 , the Court of Appeal held concerning Article 5 § 4 :

“ ... we agree that Article 5 § 4 was infringed. If after a tribunals decides that it is appropriate to direct a conditional discharge of a patient, that patient remains detained without access to the tribunal for an unreasonably long period while unsuccessful attempts are made to make arrangements that will enable the conditions to be satisfied, Artic le 5 § 4 is clearly infringed. That is what happened on this occasion. ... no attempt was made ... to revert to the third tribunal, but no doubt this was because the decision in Campbell ' s case was believed to preclude this. In practice it would clearly have done so. In the light of that decision the tribunal would not have felt able to enterta in an application on behalf of [ the applica nt ] to reconsider the position.”

The Court of Appeal went on to review the Campbell authority, noting that no reference had been made to the provisions of the Convention or relevant case-law and that the Secretary of State accepted that it needed to be revisited in the light of the Human Rights Act 1998. Having given consideration to various cases, it proceeded to outline a new regime compatible with the requirements of the Convention and the legislative provisions as follows:

“1. The tribunal can at the outset, adjourn the hearing to investigate the possibility of imposing conditions.

2. The tribunal can make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under section 117 of the Act make the necessary arrangements to enable the patient to meet those conditions.

3. The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place.

4. Once the arrangements have been made, the tribunal can direct a conditional discharge without holding a further hearing.

5. If problems arise with making arrangements to meet the conditions, the tribunal has a number of options, depending on the circumstances (a) it can defer for a further period, perhaps with suggestions as to how any problems can be overcome; (b) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered; (c) it can order a conditional discharge without specific conditions, thereby making the patient subject to recall; (d) it can decide that the patient must remain detained in hospital for treatment.

6. It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements.”

The Court of Appeal considered that if despite best endeavours a health authority was unable to provide the necessary services or supervision, the tribunal would have to think again and it would be likely that it would conclude that it was necessary for the patient to remain detained in hospital in order to receive the treatment or care. If the health authority did not make best endeavours it could be subject to judicial review. If psychiatrists who foiled the intention of the tribunal were in breach of a public law duty the patient would also have a remedy under judicial review. If they were not in breach of duty, it was likely to follow that the Convention did not require psychiatrists to administer treatment or supervision in the community when, as a result of professional judgment made in good faith, they we re not prepared to undertake this responsibility.

On 13 November 2003 , the House of Lords dismissed the applicant ' s appeal and upheld the judgment of the Court of Appeal . In giving his judgment, Lord Bingham f ound a breach of Article 5 § 4 in that the MHRT , having made its order , was precluded from reconsidering the case leaving the applicant in limbo for a period longer tha n was acceptable under the Convention and endors ed the views o f the Court of Appeal o n the regime to be followed in future. However, Lord Bingham also concluded that there was no time between 3 February 2000 and 25 March 2002 in which the applicant was unlawfully detained or held in breach of Article 5 § 1(e). He found a categorical difference between the circumstances of Johnson (cited above) , where the Winterwerp criteria had not been found to be satisfied and the situation of the applicant, where there had never been a medical consensus or finding by the MHRT that the Winterwerp criteria were not satisfied . T he written statement of th e chairman of the MHRT dated 28 March 2002 made it clear that continued detention was not considered necessary as long as the conditions were fulfilled and that the removal of the condition for psychiatric supervision would have changed their view as to the possibility of his release :

“ The tribunal considered that the [ applicant ] could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. The [applicant] was never detained when there wer e no grounds for detaining him.”

In addition, it considered that the health authorities had done their best to comply with the conditions and had no power to require a psychiatrist to act against his conscientious professional judgment. It further concluded that the violation of Article 5 § 4 did not call for an award of compensation as the violation had been publicly acknowledged and the applicant ' s right thereby vindicated, the law had been amended in a way which should prevent similar violations in future and the applicant had not been the victim of unlawful detention which Article 5 was intended to avoid.

COMPLAINTS

1. The applicant complain s that he has suffered a violation of Article 5 § 1(e) of the Convention because of his continued detention beyond a reasonable time following the decision of the MHRT on 3 February 2000 to order a deferred conditional discharge.

2. The applicant complain s that he has suffered a violation of Article 5 § 4 of the Convention because the MHRT did not have the power to guarantee the discharge of the applicant pursuant to its decision on 3 February 2000 .

3. The applicant complain s that he has suffered a violation of Article 5(5) of the Convention by the failure of the domestic courts to award compensation despite a finding that the applicant ' s Article 5 rights had been violated.

4. The applicant further invoke s Article 13 of the Convention, alleging that he ha s been denied any effective remedy for breaches of his Article 5 rights.

THE LAW

The applicant complains that he was detained for an unreasonable time following the decision of the MHRT to order a conditional discharge, invoking Article 5 § 1 that provides as relevant:

“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 ... ”

Detention of a person as being of unsound mind depends, in Convention terms, on the Winterwerp crtieria , namely that :

- the patient must be reliably shown upon objective medical expertise, to be suffering from a true mental disorder;

- the di sorder must be of a “ kind or degree ” warranting compulsory confinement;

- the validity of any continued detention depends upon the persistence of a true mental disorder of a kind or degree warranting compulsory detention, established u pon objective medical expertise (see Winterwerp judgment, cited above, §39)

The applicant ' s argument is that the MHRT in ordering his conditional discharge found that he was entitled to live and be treated in the community and he was therefore n o longer suffering from a disorder warranting compulsory confinement. He submits that the reasoning in Johnson v. the United Kingdom ( cited above ) where the delay in achieving the applicant ' s conditional discharge applies to his case and rendered his continued detention arbitrary and contrary to Article 5.

The Court observes however that in Johnson the MHRT had found that the applicant was no longer suffering from a mental disorder, no longer had the symptoms and did not require any further medication or treatment. In the present case, the domestic courts noted that the applicant was in a different situation – he presented possible risks of relapse and continued to require treatment and medical supervision.

The Court is therefore unable to accept the applicant ' s contention that the MHRT ' s decision that he could be discharged subject to conditions was tantamount to a finding that the third Winterwerp criterion was no longer fulfilled, with the result that any subsequent undue delay in release wa s in breach of Article 5 § 1. As the statement from the MHRT quoted in the House of Lords showed, the discharge of the applicant was only regarded as appropriate if there was continued treatment or supervision necessary to protect his own health and the safety of the community. In the absence of that treatment, his detention continued to be necessary in line with the purpose of Article 5 § 1(e).

As events showed, the treatment considered necessary for such conditional discharges may not prove available, in which circumstances there can be no question of interpreting Article 5 § 1(e) as requiring the applicant ' s discharge without the conditions necessary for protecting himself and the public or as imposing an absolute obligation on the authorities to ensure that the conditions are fulfilled. A failure to use “ best efforts ” by the local authority or any breach of duty by a psychiatrist in refusing care in the community would be amenable to judicial review. It cannot therefore be argued that local authorities or doctors could wilfully or arbitrarily block the discharge of patients into the community without proper grounds or excuse.

The Court concludes in the present case that after the MHRT decision of 3 February 2002 the applicant continued to suffer from an illness which justified compulsory detention and that such detention fell within the exception of Article 5 § 1(e) (see also Kolanis v. the United Kingdom , no. 517/02, judgment of 21 June 2005) . Nonetheless, the unsatisfactory period of delay during which the applicant ' s position was “ in limbo ” raises issues under Article 5 § 4 which is examined below.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant complains that the MHRT was unable to direct his discharge, invoking Article 5 § 4 of the Convention which provides:

“ 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 dete ntion is not lawful.”

Here the applicant argues that the MHRT fail ed to meet the requirements of a tribunal in that it c ould not effectively order his release as its decisions on conditional discharge were not binding on local authorities and psychiatrists.

The Court would note that MHRT had the power to order an absolute discharge. It is not persuaded that that its inability to order a health authority to comply with the conditions that it considered appropriate to achieve the safe discharge into the community of a person who continued to present problems or potential problems deprived it of the character of a tribunal for the purposes of Article 5 § 4. The deadlock which arose however as it was unable to call the case back for reconsideration in the light of intervening events, namely, the inability to achieve the required conditions, left the applicant in a “limbo”. During this period of some 20 months, he was unable to have the issues arising from these events as they affected his continued detention examined. The Court would agree with the House of Lords that this disclosed a breach of Article 5 § 4 of the Convention.

The Court recalls that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress as appropriate ( see, amongst many authorities, Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, § 66). In the present case, the House of Lords express ly acknowledged the breach. C oncerning redress, it found that the applicant ' s rights had been vindicated and the courts ' interpretation of the relevant law adjusted to prevent similar breaches in future and that , as the applicant had not been subject to any arbitrary deprivation of liberty , no award of damages w as appropriate. The Court recalls that there is no absolute right to compensation in all circumstances, any award depending on the existence of pecuniary or non-pecuniary damage justifying monetary compensation (see, mutatis mutandis , Wassink v. the Netherlands , judgment of 27 September 1990, Series A no. 185 ‑ A, p. 14, § 38). The House of Lord ' s assessment was neither arbitrary nor unreasonable in the circumstances of this case.

The applicant, accordingly, may no longer claim to be a victim of a violation of Article 5 § 4 and this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

3. The applicant complains that he had no right to obtain compensation for his period of detention after the order of conditional discharge, invoking Article 5 § 5 and that he had no effective remedy, invoking Article 13 of the Convention.

Article 5 § 5 of the Convention provides:

“ Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that since the applicant is no longer a victim under Article 5 § 4 of the Convention and no unlawful or arbitrary detention was found under Article 5 § 1 no issues arise under Article 5 § 5 of the Convention. In any case, for the reasons given above, the lack of compensation does not in the circumstances of the case disclose any appearance of a violation of Article 5 § 5. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 and 4 of the Convention .

For these re asons, the Court unanimously

Declares the application inadmissible.

Michael O ' Boyle Josep Casadevall Registrar President