FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34377/02
by Dean GREY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 7 January 2003 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrA. Pastor Ridruejo,
MrM. Fischbach,
MrJ. Casadevall,
MrR. Maruste,
MrS. Pavlovschi, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 9 September 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dean Grey, is a United Kingdom national, who was born in 1975 and is detained in Ashworth Hospital, Liverpool. He is represented before the Court by Alexander Harris Solicitors, lawyers practising in Altrincham, Cheshire.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 October 1993, the applicant, aged 18 was convicted of manslaughter, after he had killed his father with a screwdriver. From age 16, a change in personality had been noted and his family had sought a psychiatric assessment. During this period, he heard voices and thought that his life was at risk. As at trial the applicant was reported to be suffering from mental illness, the court made a hospital order under section 37 of the Mental Health Act 1983, together with a restriction order under section 41 of the 1983 Act restricting discharge without limit of time.
The applicant was detained in Ashworth Hospital. In January 2000, he was transferred to Reaside Clinic. While he was noted to be free of psychotic symptoms, he tested positive for cannabis on three occasions. Following abuse of alcohol on an escorted trip into the community when he was involved in an assault on another patient, he was transferred back to Ashworth Hospital in January 2001. The Clinic took the view that he was suffering from a personality disorder of the dissocial type.
On 15 February 2001, the applicant applied to the Mental Health Review Tribunal seeking discharge.
On 17 May 2001, Dr Hughes of the Ashworth Hospital issued a report in which stated that the applicant no longer showed signs of mental illness but that he should be reclassified as having a psychopathic disorder with a drug abuse history and should remain in hospital as he represented a danger to others and to himself.
On 20 June 2001, the Secretary of State expressed his view to the tribunal that the applicant should continue to be detained on the grounds of mental illness.
On 3 July 2001, Dr Lomax, a consultant psychiatrist, issued a report commissioned by the applicant’s solicitors in which he noted that it was the consistent view of all examiners that the applicant did not presently show symptoms of mental illness and that previous incidents had in retrospect been brief drug-induced periods of psychosis rather than schizophrenic illness. While there was some evidence of conduct disorder during childhood and a tendency to aggressiveness, he did not find on the basis of his examination that the information supported a classification of psychopathic disorder. He concluded that the applicant did not meet the criteria for detention in hospital either on grounds of mental illness or psychopathic disorder.
On 11 October 2001, the Tribunal, presided over by a circuit judge, held a hearing. It decided as follows:
“Dr Lomax believes that [the applicant] now suffers neither mental illness nor psychopathic disorder. The RMO agreed that he does not now suffer from mental illness and has not for some years. That means that the detaining authority must prove to us that [the applicant] is now suffering from psychopathic disorder in order to justify his detention. Dr Hughes relies on the following points to support his view:-
i) [The applicant’s] attitude to cannabis consumption;
ii) Non co-operation and anti-authoritarianism;
iii) A history of aggression in particular the assault on Christmas Eve 2000, which we think [the applicant] minimises;
iv) Lack of insight.
Bearing in mind where the burden of proof now lies, we are not satisfied that his personality problems and his resultant behaviour amount to psychopathic disorder as defined by section 1(2) of the Mental Health Act 1983. Therefore we are obliged to discharge him under the terms of sections 72-73.”
The tribunal did not give any reasons as to why it ordered an absolute as opposed to a conditional discharge.
The applicant was released from hospital.
On 16 October 2001, the Secretary of State applied for judicial review of the Tribunal’s decision, alleging inter alia that the burden of proof had been wrongly applied and that the tribunal had failed to give reasons for its decision to discharge absolutely.
On 25 October 2001, a hearing took place before the Divisional Court. In its decision of 29 October 2001, it quashed the Tribunal’s decision, with the Tribunal’s consent, on the ground that it had not expressly dealt with the question of whether the discharge should be absolute or conditional as required by the relevant part of the decision form. Lord Justice Pill stated:
“... the tribunal have entirely ignored the provisions of section 73(1)(b). The requirement in that paragraph must be satisfied before an absolute discharge can be directed. There is no finding of satisfaction that it is not appropriate for the patient to be liable to be recalled to hospital for further treatment. [The applicant’s counsel] submits that the decision is intended to be read by an informed audience. Having regard to the finding that there was no mental illness, there was no need expressly to consider a liability to be recalled. It followed from the finding under sub-paragraph a) and could be implied.
I do not accept that submission. The possible consequences for the safety of the members of the public and the patient, when an order of absolute discharge is made, are such that the question of liability to be recalled must be dealt with expressly. That is confirmed by section 73(2) which requires that a course different from absolute discharge is to be taken if the tribunal are not satisfied as to the matters referred to in paragraph b).”
He went on to indicate that if the applicant re-applied for discharge or the hospital sought to re-classify the grounds for detention:
“I would expect a reasoned decision upon the medical evidence in circumstances such as the present. A challenge has not been made in this case on the basis of lack of reasoning. Had it been made, it would have been given serious consideration. The fact that a well-qualified medical practitioner has expressed an opinion one way does not, of course, mean that the tribunal cannot be satisfied of an opposing opinion.”
The applicant was recalled to hospital. He applied for leave to appeal to the Court of Appeal. The application was refused by a single judge on 23 January 2002, who stated that he found the lower court’s reasoning compelling. The applicant’s solicitors intended to lodge a renewed application but submitted the wrong form.
On 7 March 2002, at a hearing at which fresh reports and test results were submitted concerning the applicant, the Tribunal considered the applicant’s application for discharge. It reclassified him as suffering from a psychopathic disorder and concluded that it was satisfied that he was still suffering from a disorder which made it appropriate for him to be detained in a hospital for treatment and that it was satisfied that it was necessary for the protection of other persons that he receive such treatment. It stated that it had carefully considered the view of Dr Lomax that the applicant had a series of unattractive personality traits which fell short of psychopathy, but had accepted instead the weight of evidence presented by the hospital, whose experts took the view, based on personal experience of the applicant, that he had a persistent disorder of the mind resulting in abnormally aggressive or seriously irresponsible behaviour.
The applicant’s new solicitors made an application to reinstate the appeal to the Court of Appeal with an extension of time to renew the application for permission to appeal at an oral hearing. On 3 July 2002, the Court of Appeal refused the application, without giving reasons.
B. Relevant domestic law and practice
Section 72 of the Mental Health Act 1983 provided at the relevant time:
“(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and -
(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied -
(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment...”
Section 73 provided at the relevant time:
“(1) Where an application to a Mental Health Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if satisfied –
(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(i) above; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order and the restriction order shall cease to have effect...”
COMPLAINTS
The applicant complains under Article 5 § 1 that his detention in hospital after 29 October 2001 did not fall within the exception permitted by Article 5 § 1(e). He had been found by the Tribunal on 11 October 2001 not to be suffering from a mental illness or from a psychopathic disorder yet the effect of the Divisional Court decision was to return him to detention without any basis of medical evidence justifying that detention. This was also in breach of Article 5 § 4 of the Convention. He invokes Article 5 § 5 in relation to the lack of availability of compensation for these breaches.
The applicant also complains under Article 6 § 1 that he was refused leave to appeal to the Court of Appeal.
THE LAW
1. The applicant complains that he was wrongfully detained after the Divisional Court decision of 29 October 2001, invoking Article 5 § 1 which provides as relevant:
“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 ...”
The Court notes that the applicant failed to renew his appeal against the Divisional Court’s quashing of his discharge after the refusal of the single judge of the Court of Appeal on 23 January 2001. The applicant states that this was due to a mistake in the forms submitted and explains that his new solicitors sought to remedy the mistake by making a renewed application for leave to appeal out of time, which was however refused without reasons being given. The Court does not consider it necessary to consider whether the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention by availing himself of the available appeals in accordance with the applicable procedure, since, for the reasons set out below, it finds his complaints inadmissible on other grounds.
The applicant argues that his detention was not in compliance with Article 5 § 1(e) after 11 October 2001 as he had been found by the Tribunal no longer to be suffering from a mental illness or from a psychopathic disorder and his recall to hospital after the quashing of the decision by the Divisional Court was not based on any medical evidence to the contrary.
The Court recalls that for the purposes of Article 5 § 1(e) an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 17, § 39; Johnson v. the United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII, p. 2409, § 60, and more recently, Varbanov v. Bulgaria, no. 31365/96, ECHR 2000-X, § 45).
The Court observes that the applicant does not dispute that his initial detention was based on proper grounds that he was suffering from mental illness. The question arises whether the reversal of the decision to give him an absolute discharge conforms with the above requirements. It is true that the Divisional Court made no findings concerning the existence of any mental disorder in quashing the Tribunal’s decision, though it expressed grave doubts as to the quality of the Tribunal’s reasoning on the medical evidence. The reason for quashing the discharge was that the Tribunal had failed to have regard to the necessary statutory criteria in addressing itself to the question whether the applicant should be discharged conditionally, in other words liable to be recalled to hospital for further treatment if that proved necessary. It considered that this element reflected a serious public interest in securing the safety of the community.
The Court recalls that it does not automatically follow from a finding by an expert authority that the mental disorder which justified a patient’s compulsory confinement no longer persists, that the latter must be immediately and unconditionally released into the community. In the above-mentioned Johnson case, it considered that:
“61. ... such a rigid approach to the interpretation of that condition would place an unacceptable degree of constraint on the responsible authority’s exercise of judgment to determine in particular cases and on the basis of all the relevant circumstances whether the interests of the patient and the community into which he is to be released would in fact be best served by this course of action. It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not recovery from an episode of mental illness which justified a patient’s confinement is complete and definitive or merely apparent cannot in all cases be measured with absolute certainty. It is the behaviour of the patient in the period spent outside the confines of the psychiatric institution which will be conclusive of this.
62. It is to be recalled in this respect that the Court in its Luberti judgment (cited above, pp. 13–15, § 29) accepted that the termination of the confinement of an individual who has previously been found by a court to be of unsound mind and to present a danger to society is a matter that concerns, as well as that individual, the community in which he will live if released. Having regard to the pressing nature of the interests at stake, and in particular the very serious nature of the offence committed by Mr Luberti when mentally ill, it was accepted in that case that the responsible authority was entitled to proceed with caution and needed some time to consider whether to terminate his confinement, even if the medical evidence pointed to his recovery.
...
64. In the view of the Court it must also be acknowledged that a responsible authority is entitled to exercise a similar measure of discretion in deciding whether in the light of all the relevant circumstances and the interests at stake it would in fact be appropriate to order the immediate and absolute discharge of a person who is no longer suffering from the mental disorder which led to his confinement. That authority should be able to retain some measure of supervision over the progress of the person once he is released into the community and to that end make his discharge subject to conditions. It cannot be excluded either that the imposition of a particular condition may in certain circumstances justify a deferral of discharge from detention, having regard to the nature of the condition and to the reasons for imposing it. It is, however, of paramount importance that appropriate safeguards are in place so as to ensure that any deferral of discharge is consonant with the purpose of Article 5 § 1 and with the aim of the restriction in sub-paragraph (e) (see paragraph 60 above) and, in particular, that discharge is not unreasonably delayed.”
Having regard to the above, the Court considers that the issue whether an absolute or conditional discharge was appropriate in the applicant’s case was a relevant factor to be taken into account by the authorities and that the procedure whereby the Divisional Court quashed the Tribunal decision so that the matter could be properly addressed in fresh proceedings was not incompatible with the requirements of Article 5 §1(e). The Tribunal proceeded to consider the applicant’s release at a new hearing on 7 March 2002, a period of a little over five months after the Divisional Court’s decision. During this period, medical reports were prepared and further examinations carried out, in particular concerning the issue of whether the applicant should be re-classified as suffering from a psychopathic disorder. This lapse of time was not, in the Court’s view, unreasonable and the applicant was not deprived thereby of the safeguards imposed by Article 5 § 1(e). The Court notes that the applicant does not contest that, following the Tribunal’s finding on 7 March 2002 that he was suffering from a psychopathic disorder and that it was still appropriate for him to be detained in hospital for treatment, his detention after that was justified.
The Court concludes therefore that the interim period of detention between the two Tribunal decisions did not disclose any violation of Article 5 § 1 and that it remained justified in terms of Article 5 § 1(e). It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. The applicant has also invoked Article 5 §§ 4 and 5 of the Convention which provide:
“4. 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.
5. 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.”
The Court notes that the applicant’s application for release was heard by the Tribunal and its decision reviewed by the Divisional Court which quashed the Tribunal’s decision which proceeded to hold a fresh hearing some five months later. It finds no indication that the applicant did not have access to the necessary procedures attended by the requisite safeguards for determining the lawfulness of his detention in hospital. The fact that he might have disagreed with the Divisional Court’s decision does not reflect on the conformity of those proceedings with the requirement of Article 5 § 4.
As there has been no finding of any detention incompatible with Article 5 of the Convention, no enforceable right to compensation can be derived under Article 5 § 5.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
3. Lastly, the applicant complains under Article 6 § 1 of the Convention that he was refused leave to appeal.
Article 6 § 1 provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Even assuming that Article 6 was applicable to the proceedings for release from mental hospital, in which context Article 5 § 4 may be regarded as the lex specialis, the Court’s case-law establishes that there is no right to appeal conferred by Article 6. There is no indication that any issue conceivably arises in this case from the refusal of the applicant’s application for permission to appeal, which the Court has had occasion to note above, was submitted out of time.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy