Lack of a Legally Sufficient Explanation to a Patient does not Invalidate Recall or Detention to a Mental Hospital.
September 16, 2016
Lack of a Legally Sufficient Explanation to a Patient does not Invalidate Recall or Detention to a Mental Hospital.
Lee-Hirons (Appellant) v Secretary of State for Justice (Respondent)
 UKSC 46 (On Appeal from:  EWCA Civ 553)
Supreme Court of the United Kingdom
Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Toulson
July 27, 2016
Reported by Linda Awuor & Faith Wanjiku
International Law-law of treaty- European Convention on Human Rights-Right to Liberty and Security-whether the explanation given on health deterioration to the Appellant’s recall was legally sufficient-European Convention on Human Rights, 2010, article 5(2)
International Law-law of treaty- European Convention on Human Rights- Right to Liberty and Security-whether the Court could formally declare that the Appellant’s detention was unlawful and, in particular if it could award him damages for it – European Convention on Human Rights, 2010, article 5(5)
Health Law-Mental Health-Information about Recall to Hospital whilst on Community Treatment Order- whether lack of the explanation being legally sufficient made the Appellant’s renewed detention unlawful-Mental Health Act, 1983: Code of Practice, 2015, para 4.19
The Appellant suffered from a personality disorder and chronic paranoid delusional disorder. He had a history of admission to psychiatric hospitals. In 2006 he was convicted of arson and burglary. In the light of his mental disorder, he was made the subject of a hospital order under the Mental Health Act 1983 (the Act), which authorised his admission to and detention in a secure hospital, and a restriction order under the Act, which vested the power to discharge him in the Respondent or the First-tier Tribunal (Health, Education and Social Care Chamber) (the Tribunal). The Appellant thereby became a restricted patient under the Act, and was detained in medium-secure hospitals.
In April 2012, the Tribunal directed that the Appellant be conditionally discharged from hospital and approved a plan that he should have been moved to a registered care home subject to conditions. The Appellant took up residence at a care home. On July 19, 2012 the carers responsible for the Appellant invited the Respondent to consider recalling the Appellant to hospital. That was for a number of reasons, including that the Appellant’s mental health had deteriorated, that he was likely to abscond, and that he was likely to breach the conditions of his discharge. The Respondent immediately issued a warrant for the Appellant’s recall and the warrant was executed on July 19, 2012. As required by the Act, the Respondent referred the Appellant’s case to the tribunal promptly on July 20, 2012.
The warrant set out no reasons for the Appellant’s recall. When the Appellant was informed that he was being recalled, he was told only that it was because his mental health had deteriorated. When the Appellant was taken into hospital, the staff was unable to explain the reasons for his recall. On July 24, 2012 the Respondent wrote a letter to the hospital which contained a number of errors, including the assertion that the recall warrant had not been executed, and the instruction that the Appellant should have been informed of the reasons for his recall within 72 hours of admission, even though that time limit had already expired. The letter also failed to state any reasons for the Appellant’s recall. On August 3, 2012, 15 days after the Appellant’s recall, he was provided orally with a fuller, adequate explanation for the recall, but was not provided with a written explanation.
The Appellant challenged the lawfulness of the decision to recall him. His application was dismissed at first instance. Before the Court of Appeal, his primary case was that there was an unlawful failure to explain the reasons for his recall and that (a) that failure affected the legality of his detention, or alternatively (b) that it generated a right to a declaration and damages. The Court of Appeal dismissed his appeal, and the Appellant appealed to the Supreme Court.
i.Whether lack of the explanation given to the Appellant on health deterioration being legally sufficient made his renewed detention unlawful.
ii.Whether the Court could formally declare that the Appellant’s detention was unlawful and, in particular if it could award him damages for it.
iii.Whether the breaches conceded by the Respondent made the Appellant’s detention between the third and the fifteenth days following his recall unlawful.
iv.Whether the Appellant was entitled to a declaration and award of damages on his detention between the third and the fifteenth days following his recall being unlawful.
v.Whether the Court could make the breaches the subject of a formal declaration and, in particular, award the Appellant damages for them.
Relevant Provisions of the Law
European Convention on Human Rights, 2010
Article 5(1) (e)-Right to Liberty and Security
The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
Article 5(2)-Right to Liberty and Security
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
Article 5(5)-Right to Liberty and Security
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.
Mental Health Act, 1983
Section 37(1)-Hospital and Guardianship Orders
Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or…
Section 41(1) – Restriction Orders
Where a hospital order is made in respect of an offender by the Crown Court, and 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 so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as ” a restriction order.”
Section 71 (1) -References by Secretary of State Concerning Restricted Patients
The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.
Mental Health Act, 1983: Code of Practice, 2015
Paragraph 4.19-Information about recall to hospital whilst on community treatment order (CTO)
Where a conditionally discharged patient is to be recalled to hospital, a brief verbal explanation of the Secretary of State’s reasons for recall must be provided to the patient at the time of recall unless there are exceptional reasons why this is not possible, eg the patient is violent or too distressed. The Secretary of State’s warrant will detail the reasons. The patient should alsoreceive a full explanation of the reasons for his or her recall within 72 hours after admission, and both written and oral explanations should be provided.
- When the Appellant’s proposed social supervisor told the Appellant that the ground for his recall was deterioration in his mental health, the Respondent’s duty about what to explain to him at that first stage was satisfied. It was an accurate summary of the ground. Deterioration in health was not the only permissible ground for recall. For example the commission of a crime or the breach of a condition could, if of sufficient significance as held in R (MM) v Secretary of State for the Home Department, have justified a recall. Just as in Christiev Leachinsky, the officers had to tell the Respondent only that the ground of his arrest was the suspected larceny of the cloth, without any need to refer to the grounds for their suspicion, so there was no need at that stage for the Appellant’s proposed social supervisor or anyone else to communicate to the Appellant the grounds for considering that his mental health had deteriorated. In any event, had he wanted to understand those grounds, the Appellant had only to recall his discussion with his social supervisor and the home’s psychologist that morning when, as the social supervisor’s written note made clear, they had ventilated their concerns with him.
- It was reasonable for the Department of Health, when introducing its guidelines, to have suggested both that, at the time of his recall, a restricted patient was likely to be under stress and probably not able to digest a detailed presentation of the reasons for it and that those, for example the police, deputed to effect the recall, often in an emergency, might well have known little or nothing about the background to it. Equally the effect of the Respondent’s immediate reference of the Appellant’s case to the First-tier Tribunal was that the failure to have provided him with detailed reasons for the recall at that stage did not delay his recourse to that facility for seeking renewed discharge.
- By virtue of paragraph (2) of article 5 of the European Convention on Human Rights (Convention), any person arrested had to be told, in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest, so that if he saw fit, he could apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst that information had to be conveyed promptly, it needed not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient was to be assessed in each case according to its special features.
- In relation to the explanation that was required to be provided to the Appellant at the time of his recall, the demands of article 5(2) of the Convention did not extend beyond the demands of the common law as they were met. The Court of Appeal was right to conclude that the Appellant’s proposed social supervisor’s explanation to him at that time was legally sufficient.
- There was no link, let alone a direct link, between, on the one hand, the Respondent’s wrongful failure for 12 days to provide to the Appellant an adequate explanation for his recall and, on the other, the lawfulness of his detention. The failure did not delay reference of his case to the First-tier Tribunal. Nor had the Appellant suggested that it delayed institution of the present proceedings.
- The House of Lords in R (Saadi) v Secretary of State for the Home Department held that the error of giving a different explanation for the Appellant’s detention did not affect the legality of his detention. The European Court of Human Rights (ECtHR) held that, in informing him only after three days of the true reason for his detention, the Secretary of State had failed to inform him of it promptly and so had breached his right under article 5(2) of the Convention; but there was no suggestion that the breach had affected the validity of his detention; and it followed that the issues of unlawful detention and award of damages for it were indeed not applicable.
- There was a clear departure from the 72-hour policy (of offering a sufficient explanation), in relation to which the Respondent could claim no extenuating circumstances. But it was easy to imagine lively arguments in other cases about either the adequacy of the reasons provided to the patient for the recall or the practicability of having provided them to him within that time-frame. It could have been a great concern if the right of a restricted patient to walk out of hospital or to seek to do so depended upon where the stronger of such an argument lay.
- The Court of Appeal was right to conclude, that the conceded breaches did not make the Appellant’s detention for those 12 days unlawful; and to conclude that the issues of entitlement to a declaration and award of damages were therefore inapplicable.
- As a result of the conceded breaches, the Appellant suffered no pecuniary loss. But in his evidence, unchallenged by the Respondent, he stated that in the months following his recall to hospital he suffered great distress. Nevertheless, as one could have expected, he attributed his distress to the recall itself. He did not identify the failure for 12 days to have provided him with the reasons for it as an additional cause of it and, although one could have inferred that to some extent it increased his level of frustration and anxiety, the time-span of only 12 days precluded any inference that it caused significant non-pecuniary injury.
- The Appellant was not entitled to damages for the breach of his right at common law to receive an adequate explanation for his recall within the time identified by published policy. The breach did not amount to a tort and there was nothing that suggested that damages could have been available to the Appellant in any ordinary action which he might have brought against the Respondent in that respect.
Held by Lord Reed (Concurring)
- At the hearing of the Appeal, the discussion of the effect of that failure focused primarily upon the Appellant’s Convention rights. So far as the legal consequences under the common law were concerned, the failure to comply with the policy did not render the decision to recall invalid, either ab initio or with effect from the expiry of the 72-hour period.
- That was so for three reasons. First, the duty was to provide reasons ex post facto. It remained capable of meaningful performance even after the 72-hour period had expired. Such performance could if necessary, be enforced. Delayed performance did not, in the situation, call into question the validity of the antecedent decision. Secondly, the duty to refer the case to the tribunal within a month provided a statutory mechanism for ensuring that an adequate justification was provided for the patient’s detention in hospital, failing which he could be discharged. It would be inconsistent with the statutory framework governing discharge if an entitlement to release arose under the common law as soon as there had been a failure to comply with the administrative policy. Thirdly, it could be perverse if the legal consequence of the breach of a duty imposed for the sake of good administration was one which itself created administrative chaos, such as could occur if patients whose condition could have required detention in hospital were entitled to walk out of the hospital as soon as the 72 hours had expired.
- For those reasons, in addition to those given by Lord Wilson, the failure to comply with the policy did not affect the validity of the decision to recall the Appellant, or therefore the lawfulness of his consequent detention.
Relevance to the Kenyan Situation
Kenya has also provided for laws that cater for persons with mental health problems. The Constitution of Kenya, 2010 provides in article 43(1) (a) that every person has the right to the highest attainable standard of health. Article 51 (1) provides that a person who is detained, under the law, retains all the rights and fundamental freedoms in the Bill of Rights, to the extent clearly compatible with the fact that the person is detained. Sub article 3 states that Parliament shall enact legislation to ensure humane treatment of persons detained while taking into account the relevant international human rights instruments.
It also goes ahead in article 54 (1) (a) to state that a person with any disability is entitled to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning.
The Mental Health Act, Chapter 248 of the Laws of Kenya, provides in section 3 that detention of persons for treatment in a mental hospital is only to be under the Act. In section 4, it also establishes the Kenya Board for Mental Health whose functions include receiving and investigating any matter referred to it by a patient or a relative of a patient concerning the treatment of the patient at a mental hospital and where necessary to take, or recommend to the Cabinet Secretary for health, any remedial action.
The above UK case has clearly emphasized on what amounts to a legally sufficient explanation to a mental patient on reasons for his recall to a mental hospital. This case will thus be a relevant modern precedent in the Kenyan situation.