LINES v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24519/94

                      by Pauline LINES

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 25 April 1994 by

Pauline LINES against the United Kingdom and registered on 4 July 1994

under file No. 24519/94;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     22 December 1995 and the observations in reply submitted by the

     applicant on 2 May 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British national, born in 1939 and she is

currently resident in a group home in the United Kingdom following her

release in 1995 from a psychiatric hospital. She is represented before

the Commission by Sean Reynolds, a solicitor practising in Hampshire.

Particular circumstances of the case

     The facts as submitted by the parties may be summarised as

follows.

     Since the age of fifteen the applicant has spent substantial

periods of her life in psychiatric hospitals. Prior to 1958 the

applicant was admitted twice to a psychiatric hospital suffering from

schizophrenia. In 1958 she was again admitted to hospital suffering

from epilepsy associated with psychosis.

     In 1961 the applicant seriously assaulted a fellow patient. She

was remanded to prison, charged with wounding with intent and found

unfit to plead. An order was made under section 2 of the Criminal

Lunatics Act 1800 and on 14 March 1961 she was admitted to hospital by

warrant under section 71(2) of the Mental Health Act 1959. Following

the introduction of the Mental Health Act 1983 ("the 1983 Act") the

applicant's admittance under section 71(2) of the 1959 Act had the

effect of a hospital order together with a restriction order without

limit of time made under the 1983 Act.

     Between 1970 and 1984 the applicant spent most of her time in

psychiatric hospitals. During this period she was conditionally

discharged on two occasions, the last being on 29 June 1984 by warrant

of the Secretary of State.

     The applicant was subsequently admitted to hospital as an

informal patient on 27 April 1992 and on 21 July 1992 she was admitted

under section 3 of the 1983 Act. The Home Office was notified of the

applicant's admission and monthly reports on the applicant were

requested by the Home Office. In early 1993 the Home Office was

informed that the applicant had applied for a review by the Mental

Health Review Tribunal ("MHRT") and, although there was some

disagreement as to whether she was so entitled, the MHRT took the view

that she was entitled to a review and arrangements were made for a

hearing in April 1993. However, on 4 March 1993 the applicant was

recalled to hospital by warrant of the Secretary of State pursuant to

section 42(3) of the 1983 Act. Her case was referred to the MHRT, the

review took place on 5 April 1993 and the MHRT did not recommend her

discharge. However, the Secretary of State conditionally discharged the

applicant on 30 June 1993 and she left the hospital on 8 July 1993.

     Further to an attempted suicide, the applicant was then committed

to a psychiatric hospital under section 3 of the 1983 Act on

27 July 1993. Reports were received by the Home Office on the applicant

on 28 August 1993, 6 October 1993 (by telephone) and on

18 November 1993. On 3 December 1993 the applicant was formally

recalled pursuant to section 42(3) of the 1983 Act by warrant of

theSecretary of State on the grounds that whilst the applicant was

inhospital her condition had not sufficiently improved. On

7 December 1993 the Secretary of State referred the applicant's case

to the MHRT.

     On 23 February 1994 the applicant's case was considered by the

MHRT. The MHRT did not recommend her discharge it having been found

that the applicant continued to suffer from mental illness requiring

detention in hospital for medical treatment and continued to present

a danger to herself and the public.

     By letter dated 23 March 1994 the Home Office responded to

correspondence from the applicant's representative noting that:

     "The effect you describe as a lacuna in the provisions of the

     Mental Health Act 1983 is ... a factor which informs our decision

     whether to recall restricted patients in the situation

     experienced by your client.

     Section 41(3)(b) which ... prohibits restricted patients from

     applying to under sections 66

     or 69(1), deliberately maintains a distinction between the rights

     of patients liable to be detained under Parts II and III of the

     Act ...

     We should not wish to give up this distinction.

     An unrestricted patient detained under section 3 has the right

     to apply to a tribunal within the first six months of such

     detention ...

     Our policy on restricted patients who are readmitted under

     section 3 is to recall them well within this six months period,

     and so soon as it is clear that their detention will be of

     significant duration. A recall decision imposes on the Secretary

     of State an obligation to refer the case to a tribunal within one

     month ... We believe that a breach of section 5(4) of the ECHR

     is avoided, provided the result is reference to tribunal within

     six months of admission.

     In the early stages of your client's admission, we were inhibited

     from recall by evidence that her condition was likely to lead to

     her imminent discharge. A premature recall would have delayed

     such discharge.

     We recognise that there is a delicate balance to be maintained

     in such cases: to avoid curtailing a patient's right to apply for

     review on the one hand, while not delaying any discharge which

     may follow a recovery, on the other."

     The applicant was discharged by the Secretary of State on

14 March 1995 into a group home in the community and she continues to

receive pharmacological and psychiatric treatment for mental illness.

Relevant domestic law and practice

     Hospital order

     Section 37 of the Mental Health Act 1983 ("the 1983 Act")

empowers a Crown Court to order a person's admission to and detention

in a hospital specified in the order ("a hospital order"). The court

can only make a hospital order if it is satisfied on the evidence of

two registered medical practitioners that the offender is mentally

disordered and that -

     (a)   the disorder is of a nature or degree which makes it

           appropriate for him to be detained in a hospital for

           medical treatment and, in the case of psychopathic disorder

           ... that such treatment is likely to alleviate or prevent

           a deterioration of his condition, and

     (b)   the court is of the opinion ... that the most suitable

           method of disposing of the case is by [a hospital order].

     Restriction order

     Section 41 of the 1983 Act empowers a Crown Court, at the same

time as it makes a hospital order, to make a restriction order without

limit of time. A restriction order may be made if it appears to the

court, having regard to the nature of the offence, the antecedents of

the offender and the risk of his committing further offences if set at

large, that it is necessary for the protection of the public from

serious harm to make the order.

     Application to the Mental Health Review Tribunal ("MHRT")

     Under section 70 of the 1983 Act a person who is subject to a

hospital order and restriction order ("a restricted patient"), and who

is detained in hospital, can apply to the MHRT after he has been

detained for six months. After he has been detained for twelve months

he can re-apply annually. (Under section 71 of the 1983 Act the

Secretary of State may at any time refer the case of a restricted

patient to the MHRT and must do so when his case has not been

considered by the MHRT for three years.)

     Absolute and conditional discharge

     Under section 73(1) of the 1983 Act, read with section 72(1),

where an application is made to the MHRT by a restricted patient or

where his case is referred to the MHRT by the Secretary of State, the

MHRT is required to direct the absolute discharge of the patient if

satisfied -

     (a)   (i)   that he is not 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;

           or

           (ii)  that it is not necessary for the health or safety of

           the patient or for the protection of other persons that he

           should receive such treatment; and

     (b)   that it is not appropriate for the patient to remain liable

           to be recalled to hospital for further treatment.

     By virtue of section 73(3) of the 1983 Act, where a patient is

absolutely discharged he ceases to be liable to be detained by virtue

of the hospital order and the restriction order ceases to have effect.

     Under section 73(2) of the 1983 Act, where the MHRT is satisfied

as to either of the matters referred to at (a) above, but not as to the

matter referred to at (b) above, it is required to direct the

conditional discharge of the patient. The Secretary of State can also,

pursuant to section 42(2) of the 1983 Act, conditionally discharge a

patient. In contrast to the case of absolute discharge, a conditionally

discharged patient does not cease to be liable to be detained due to

the relevant hospital order.

     Recall by the Secretary of State and reference to the MHRT

     The Secretary of State has power to recall a patient whether the

patient has been conditionally discharged by the Secretary of State

(under section 42(2) of the 1983 Act) or by the MHRT (under section

73(2) of the 1983 Act). This power is contained in section 42(3) of the

1983 Act which reads as follows:

     "The Secretary of State may at any time during the continuance

     in force of a restriction order in respect of a patient who has

     been conditionally discharged under sub-section (2) above by

     warrant recall the patient to such hospital as may be specified

     in the warrant."

     Under section 75(1)(a) of the 1983 Act, when a restricted patient

who has been conditionally discharged is subsequently recalled to

hospital, the Secretary of State is required, within one month of the

day on which the patient returns or is returned to hospital, to refer

the case to a Tribunal.

     Involuntary Committal and restricted patients

     A conditionally discharged restricted patient may be

involuntarily re-committed to hospital independently of his restricted

patient status pursuant to the "normal" involuntary committal procedure

contained in section 3 of the 1983 Act which section, insofar as

relevant, reads as follows:

     "(1) A patient may be admitted to a hospital and detained there

     ... in pursuance of ... an application for admission for

     treatment ...

     (2) An application for admission for treatment may be made in

     respect of a patient on the grounds that -

           (a) he is suffering from mental illness, ... and his mental

           disorder is of a nature or degree which makes it

           appropriate for him to receive medical treatment in a

           hospital; ..."

     A conditionally discharged restricted patient who has been so

involuntarily committed to a psychiatric institution is excluded (by

section 41(3)(b) of the 1983 Act) from the review possibilities

outlined in section 66(1) of the 1983 Act which are normally available

to non-restricted patients who are involuntarily committed. However,

the entitlements of conditionally discharged patients who have not been

recalled are referred to in section 75 as follows:

     "(2) Where a restricted patient has been conditionally discharged

     ... but has not been recalled to hospital he may apply to a

     Mental Health Review Tribunal-

           (a) in the period between the expiration of twelve months

           and the expiration of two years beginning with the date on

           which he was conditionally discharged; and

           (b) in any subsequent period of two years ..."

COMPLAINTS

     The applicant complains that she was not entitled to apply to a

Mental Health Review Tribunal while she was detained under section 3

of the Mental Health Act 1983 between 27 July 1993 and 3 December 1993.

She also complains about the length of time it took for her to have a

review after her admission on 27 July 1993 under section 3 of the

1983 Act. She also refers to similar matters in relation to her

detention between 21 July 1992 and 8 July 1993 in her observations. The

applicant invokes Article 5 para. 4 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 25 April 1994 and was

registered on 4 July 1994.

     On 6 September 1995 the Commission decided to communicate the

application under Article 5 para. 4 of the Convention.

     The observations of the respondent Government were received by

letter dated 22 December 1995 and those of the applicant in response

were received on 6 May 1996.

THE LAW

     The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention that she was not entitled to apply to the Mental Health

Review Tribunal ("MHRT") while she was detained under section 3 of the

Mental Health Act 1983 ("the 1983 Act") between 27 July 1993 and 3

December 1993. She also complains about the length of time it took for

her to have a review after her committal on 27 July 1993 under section

3 of the 1983 Act. She also refers in her observations to her

detention, also pursuant to section 3 of the 1983 Act, between 21 July

1992 and 8 July 1993.

     The Government state that the applicant, as a conditionally

discharged patient re-admitted under section 3 of the 1983 Act, did not

have any entitlement to apply for a review before the MHRT. However,

section 3 of the 1983 Act is used in such cases in order to allow the

relevant health professionals to retain control over the patient's

treatment and thereby facilitate a possible early discharge.

Conversely, with the formal recall procedure, the patient has a sense

of failure and the control of the patient's management is taken away

from the health professionals which may not facilitate the patient's

early discharge. After re-committal under section 3 of the 1983 Act,

the case is reviewed by Home Office official's and health professionals

on a monthly basis and as soon as it becomes apparent that the

patient's discharge may not be imminent, the patient is formally

recalled and the case referred to the MHRT.

     The Government recognises that it is not desirable for patients

to be deprived of their entitlement to a review in such circumstances

even if the motives are good and, accordingly, guidance is in

preparation by the Department of Health to psychiatrists which will

request them not to use their powers under section 3 of the 1983 Act

in the case of conditionally discharged restricted patients but rather

to put in train the formal recall procedure to ensure that patients are

reviewed by the MHRT at an early date.

     However, the Government submit that there has been no violation

of Article 5 para. 4 (Art. 5-4) of the Convention since, prior to the

referral of the applicant's case to the MHRT, her case was kept under

constant review by both health professionals and Home Office officials.

Her right to apply for a review was only deferred because it was hoped

that her discharge was imminent and that the formal recall procedure

could have been avoided. In addition, the Government argue that the

applicant suffered no detriment as a result since the MHRT found that

her continued detention was, in fact, necessary. The Government

consider that her review was speedy - the applicant's case was

determined seven months after her detention and the delay was not

caused by a desire on the part of the authorities to prolong her

detention but rather to facilitate her early discharge.

     The applicant does not accept that the formal recall procedure

would have been necessarily any more complex or slower than the

procedure under section 3 of the 1983 Act. It would, on the other hand,

have accorded the applicant an entitlement to have an early MHRT review

which the Government accept she did not have prior to 3 December 1993.

In addition, the applicant argues that the health professionals and the

Home Office officials, to whom the Government refer, could not

constitute a "court" within the meaning of Article 5 para. 4 (Art. 5-4)

and it was not speedy since the MHRT review took place seven months

after the applicant's committal under section 3 of the 1983 Act in July

1993. It is irrelevant, according to the applicant, what the MHRT

decided in February 1994 when the issue is the applicant's entitlement

to a review and the speediness of the review that took place. Such an

argument would be equivalent, according to the applicant, to depriving

her of her entitlement to a speedy review simply because those

responsible for the detention considered that the review would not

result in the applicant being discharged.

     The Commission notes that the parties submissions refer, in the

first place, to the applicant's detention between 21 July 1992 and

8 July 1993 and, secondly, to her detention between 27 July 1993 and

23 February 1994.

     As regards the period of detention between 21 July 1992 and

8 July 1993 and even assuming that this complaint was introduced with

the main application as opposed to with the applicant's observations,

the Commission notes that the application was introduced on

25 April 1994 which is more than six months after the end of the

pertinent period of detention. Accordingly and insofar as the applicant

complains under Article 5 para. 4 (Art. 5-4) of the Convention in

respect of this period, the Commission considers that such complaint

has been introduced outside the time-limit set down by Article 26

(Art. 26) of the Convention and finds that the complaint is,

accordingly, inadmissible within the meaning of Article 27 para. 3

(Art. 27-3)  of the Convention.

     As regards the period of detention between 27 July 1993 and

23 February 1994, the Commission considers, in light of the parties

submissions, that this part of the application raises serious issues

under Article 5 para. 4 (Art. 5-4) of the Convention which require

determination on the merits. It follows that these complaints of the

applicant cannot be dismissed as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the convention. No other

ground for declaring them inadmissible has been established.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints about the lack of entitlement to take

     proceedings by which the lawfulness of her detention after

     27 July 1993 could be decided speedily by a court; and

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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