MHLR 2014

The following MHLO case pages contain extracts from this page:

Summaries supplied by Kris Gledhill, Editor of the Mental Health Law Reports.

1

Whether conditions in detention breached Art 3 ECHR in light of the disabilities of the detainee; whether there was a breach of the duty to provide reasons for detention as set out in Art 5.2 - ZH v Hungary – [2014] MHLR 1

Points Arising: (1) If a person with disabilities is detained, special care is needed to ensure that his or her needs are met and that effective protection is provided, including against ill-treatment of which the authorities knew or ought to have known. The government has to prove that reasonable measures are taken to prevent a situation that is likely to result in inhuman and degrading treatment in breach of Art 3. (2) The duty to provide reasons for detention, under Art 5(2), means that the person be told in a way they can understand the essential legal and factual grounds for detention, so as to allow them to challenge the lawfulness of detention; as such, it is an integral part of protecting liberty. (3) The needs of a person with intellectual disability require reasonable steps to be taken (a notion akin to the reasonable accommodation concept in the Convention on the Rights of Persons with Disabilities 2006), which will entail informing a lawyer or other authorised person in their stead.

Facts and Outcome: The ECtHR found breaches of Arts 3 and 5(2) ECHR for which €16,000 was awarded as just satisfaction. The case involved a man who was deaf, dumb, intellectually disabled and illiterate, including in relation to sign language, such that he could only really communicate with his mother. He spent 3 months on remand, receiving additional protective measures only part-way through his detention (such as placement in a cell with a relative and next to the warden). Although allegations he made of significant mistreatment by other prisoners were not proved, the government had not demonstrated that adequate measures were taken in light of his vulnerability, and what was done was not done immediately. Accordingly, as ZH’s disabilities will have caused anguish from feeling isolated, and fear from being exposed to abuse and not being able to report it, the threshold for Art 3 was met and was inhuman and degrading. Further, inadequate steps were taken to explain the reasons for detention, so Art 5(2) was breached. Just satisfaction was necessary in light of the non-pecuniary damage that must have been suffered.

8

Whether natural justice was breached by the medical member expressing a concluded view on an element of the test for detention at an early stage of proceedings - GB v SW London & St George’s MH NHS Trust and others – [2014] MHLR 8

Points Arising: A natural justice challenge has to be assessed in all the circumstances.

Facts and Outcome: The Upper Tribunal found that a fair-minded and informed observer would have decided that the Tribunal medical member’s comment during questioning the Responsible Clinician that the medical member had “no issue with nature” as it was “chronic and relapsing” was not a concluded view but was exploring the evidence at an early stage of the proceedings and before the independent expert evidence which put the question of the nature of the disorder into issue had been heard. As such, there was no real possibility of bias.

12

The impact of mental disorder on the mens rea elements of the offences of rape, common assault and criminal damage - R v B – [2014] MHLR 12

Points Arising: (1) The reasonableness of a belief in consent, if raised as a defence to rape, is to be assessed without reference to the defendant’s mental disorder (subject to the possibility that limited ability to recognise social signals might be relevant); similarly, mental disorder reducing the ability of self-control is not relevant to the partial defence to murder of loss of control, as introduced by the Coroners and Justice Act 2009. (2) At the sentencing stage, there might be mitigation from mental disorder, but it might also provide a basis for concluding that someone was dangerous. (3) An assault has to be “hostile”, and so there is implied consent to unexpected touching motivated by affection: but touching motivated by misdirected affection will be an assault if it occurs after a person has indicated that they do not wish to be touched. (4) An honest belief in consent, even if mistaken and delusional, provides a defence to criminal damage.

Facts and Outcome: The Court of Appeal dismissed an appeal in relation to convictions for rape, assault and criminal damage, in relation to a man with a delusional mental illness, holding that the judge’s directions to the jury had been accurate.

20

Whether Imprisonment for Public Protection should be replaced by a disposal under the Mental Health Act 1983 - R v Ioaannis Marinos – [2014] MHLR 20

Points Arising: A hybrid order of imprisonment and a hospital direction under s45A Mental Health Act 1983 might be considered a more serious sentence than a prison sentence and so could not be imposed instead of imprisonment, and was inappropriate if the medical evidence was that a condition was treatable.

Facts and Outcome: IM admitted a serious and unprovoked stabbing; there was a difference of view as to whether he had a mental disorder at the time of the offence. The judge imposed imprisonment for public protection. IM was transferred to a psychiatric hospital, and further medical evidence supported the view that he had paranoid schizophrenia. The further evidence, including the evidence as to the care that would be taken before leave or discharge, supported the making of hospital and limitation orders under ss37/41 Mental Health Act 1983 in place of the indeterminate sentence.

23

Whether there was a legitimate expectation that a Tribunal would make an extra-statutory recommendation as to transfer or leave in the case of a restricted patient; whether leave or transfer had to be considered as part of the appropriate treatment test - C and F v Birmingham and Solihull Mental Health NHS Trust – [2014] MHLR 23

Points Arising: (1) The practice of the Secretary of State considering Tribunal recommendations as to leave or transfer in the case of restricted patients did not create a legitimate expectation that the Tribunal would exercise that non-statutory power, but was limited to a legitimate expectation as to how they would be considered if made. (2) However, a submission that leave or transfer is part of treatment has to be considered by a Tribunal; discharge must follow if appropriate treatment is not available.

Facts and Outcome: The Court of Appeal upheld decisions of the Upper Tribunal ([2012] MHLR 292) that the failure of a Tribunal to consider making recommendations in the case of restricted patients could not be judicially reviewed because, in contrast to the position in relation to non-restricted patients, there was no power to make them and an analaogue could not be created through judicial review. An argument that leave and transfer were part of treatment and so had to be considered had not been raised before the Tribunal, did not have to be considered by the Tribunal on its own motion, and so could not be raised on appeal: however, it was noted that a submission to the Tribunal that leave or transfer is a part of treatment of the patient had to be considered as part of the application of ss72 and 73. It was also noted by Beatson LJ that If appropriate treatment is not available, discharge must follow.

27

The relevance of a refusal to consent to treatment under a CTO to the discretionary power of discharge under s72 Mental Health Act 1983 - GA v Betsi Caowaladr University LHB – [2014] MHLR 27

Points Arising: (1) An oral hearing before the Upper Tribunal is not necessary if the issues are clear and explored adequately in the papers. (2) The residual discretion to discharge even though the criteria for detention are made out can only be exercised if the relevant needs for treatment and protection were met, which would require exceptional circumstances. (3) Issues of consent to treatment are outside the jurisdiction of the Tribunal, which considers whether the criteria for detention are made out (and so have to be challenged in court proceedings); however, they are relevant to the exercise of the discretion to dischage

Facts and Outcome: GA, who had been released from detention under s3 Mental Health Act 1983 and placed on a Community Treatment Order under 17Aff with a condition to take depot injections. He argued that his lack of consent to the treatment should lead to the discharge of the CTO. The Tribunal determined that there was consent to treatment, albeit just to remain out of hospital. The central point on appeal was that there could be no condition to accept treatment and so the discretionary power of discharge should be exercised. The Upper Tribunal, which determined the case without an oral hearing as the issues were clear and explored adequately in the papers, dismissed the appeal on the basis that the criteria for a discretionary discharge were not made out: it noted that any such discharge would be perverse if the needs for treatment and protection (present because the criteria for detention would be made out) were met, which would only be in exceptional cases; it also added that consent to treatment, whilst not relevant to whether the criteria for detention were made out, could be relevant to the exercise of the discretion to discharge.

32

Whether accommodation was provided under s117 Mental Health Act 1983 or s21 National Assistance Act 1948; whether judicial review should be refused as a matter of discretion - R (Tewodros Afework) v LB Camden – [2014] MHLR 32

Points Arising: Services were only “after-care” under s117 Mental Health Act 1983 if they were provided as the direct result of the reason for detention under the Act; ordinary accommodation could not meet this test, which required enhanced accommodation that was a substitute for or extension of the hospital environment.

Facts and Outcome: TA had schizophrenia, leading to admissions under the Mental Health Act 1983 in the 1990s, following which he was placed in accommodation and then provided with tenancies. Then, following a serious assault involving brain injuries, he moved into specialist accommodation. After he received a payment under the Criminal Injuries Compensation scheme, the question arose as to whether the accommodation was provided under s117 of the 1983 Act, for which no charge could be made. The High Court determined that TA’s accommodation prior to the assault, being ordinary accommodation, had not been provided under s117; and that the accommodation since the assault had arisen from the brain injury rather than the mental disorder. Permission to seek judicial review was refused.

38

Whether a decision to recall a conditionally discharged patient was lawful; whether written reasons for recall are necessary at common law and under Art 5(2) ECHR - R (Dale Lee-Hirons) v Secretary of State for Justice – [2014] MHLR 38 (High Court)

Points Arising: (1) Recall following a Tribunal decision to release a patient requires a change in circumstances such that the Secretary of State can reasonably form a view that the criteria for detention are made out; this does not need a written medical report. (2) At common law and in accordance with Art 5(2) ECHR, and to be fair, reasons have to be given so that the person knows why they have been detained, which need only be oral, or the detention is unlawful.

Facts and Outcome: DL-H was recalled from a conditional discharge only shortly after it had been put into effect on the basis that a change in his presentation indicated an increased risk. He was told when the warrant was executed that it was because his health had deteriorated. A Tribunal upheld detention. D-LH sought damages for false imprisonment or breach of the Human Rights Act for the period from recall to the Tribunal decision, arguing that the decision to recall was inconsistent with the Tribunal decision, took into account an irrational consideration (being a view as to the grandiosity of his poetry), and was made without a full medical report; and was illegally executed as written reasons were required. The irrationality claim was dismissed, and it was noted that there had been a change in circumstances since the Tribunal decision (namely the deterioration) which allowed the view to be formed that detention was necessary, which did not need a formal medical report as a psychologist and the supervising psychiatrist had been consulted. It was found that the oral indication that recall was due to a deterioration in health met the duty to give reasons. As such, the claim was dismissed.

Note: an appeal was dismissed, though part of the reasoning was different: [2015] MHLR 1.

46

Whether conditions imposed on a conditional discharge were unlawful because they amounted to detention - Secretary of State for Justice v SB – [2014] MHLR 46

Points Arising: Detention, which could only occur in a hospital, depended on the intensity of restrictions, such as their type, duration, effects, manner of implementation and purpose (ie whether they were designed to protect the patient or others).

Facts and Outcome: SB received life sentences in 1983, but had been in hospital under ss47/49 Mental Health Act 1983 since June 1985; in 1998, he was given “technical lifer” status, such that release would normally follow from a Tribunal recommendation under s74 of the 1983 Act. In January 2012, a Tribunal recommended discharge from a medium secure hospital; the conditions included residence at a hostel, leaving the hostel only under guidance of staff (and not at all in the first 13 weeks unless under the direction of staff), no alcohol, and compliance with what was required by various bodies (responsible clinician, social supervisor, care plan, Multi-Agency Public Protection Agency, Child Care Services). This was set aside on the basis that the cumulative effect of the conditions, imposed largely to protect the public, was detention; the rationale for this included the power in the hands of various people whose directions did not have to be reasonable or lawful.

51

Whether the Secretary of State acted unlawfully in declining to make a reference to the Tribunal when the Tribunal had wrongly concluded that an application was out of time - R (Elham Modaresi) v Secretary of State for Health – [2014] MHLR 51 (SC)

Points Arising: When a patient had a right to apply to a Tribunal in any event, even though they had lost a previous right to apply because of an error of law by the Tribunal, the Secretary of State did not act unlawfully in declining to make a reference to the Tribunal. (If was left open whether the Secretary of State would have been obliged to take steps to correct an error by the Trust, an agent of the state, if EM had remained detained under s2 and so had not acquired the further right to apply; Lady Hale also suggested that Trusts should have procedures that ensure that arguable breaches of Art 5 ECHR do not occur.)

Facts and Outcome: The Supreme Court dismissed an appeal from the Court of Appeal by EM. She was detained under s2 Mental Health Act 1983 on 20 December 2010, sought to apply for a Tribunal hearing, giving the relevant form to Trust staff on 31 December 2010; when received by the Tribunal on 4 January 2011, it was rejected as being out of time (there being a 14-day time limit for an application in relation to a section 2 detention). On 6 January 2011, EM was placed under s3 of the Act; her solicitors then asked the Secretary of State to refer the case to the Tribunal under s67 of the Act, which was declined on the basis that she could make a fresh application in relation to the s3 detention (though the Secretary of State would consider making a reference at a later stage if the application failed). Proceedings were commenced against the Tribunal, the Trust and the Secretary of State. The judge ([2011] MHLR 300) held that the application to the Tribunal was out of time, the Secretary of State had not acted unreasonably, and the Trust had not failed to have an adequate system; on appeal, the Court of Appeal ([2011] MHLR 311) held that the application had been in time (as time limits that expire on a non-business day are extended to the next business day), such that the claim against the Tribunal succeeded, but upheld the decision in relation to the Secretary of State and found that there was no point in considering the claim against the Trust any further. The claim against the Secretary of State was appealed further but dismissed on the basis that EM still had access to the Tribunal through her right to apply in relation to the s3 detention, and the loss of the right to apply pursuant to the s2 detention as a result of the failure of the Tribunal did not oblige the Secretary of State to make a referral. The question of whether the Secretary of State would have had to correct an error by the Trust, an agent of the state, if EM had remained under s2 and so had not acquired a further right of application, was left open; and Lade Hale left open whether proceedings against the Trust should have been dismissed, commenting that the safest course was for Trusts to have systems to ensure that arguable breaches of Art 5 did not occur.

58

Whether a sentence of detention for public protection should be replaced with hospital and restriction orders under ss37/41 Mental Health Act 1983 in light of further medical evidence - R v Mohammed Mokshud Ahmed – [2014] MHLR 58

Points Arising: An application to challenge a custodial sentence on the basis that a hospital disposal should have been put in place rests on showing that the criteria for such a disposal were present at the time of sentence.

Facts and Outcome: MMA admitted stabbing a stranger in the street; there was dispute as to whether he had a mental illness as well as a personality disorder, and the judge imposed a sentence of detention for public protection in light of the dangerousness of MMA. As a result of transfers to hospital during his sentence, 2 psychiatrists formed the view that he had paranoid schizophrenia and had at the timoe of the offence, but another psychiatrist formed the view that he was malingering, though might have had a transient drug-induced psychosis at the time of the offence. The Court of Appeal an appeal, finding that MMA had not shown that he met the criteria for a hospital order at the time of sentence such that the opinions expressed to the sentencing judge were in error, and preferring the evidence that he was malingering; it was noted that if he had developed paranoid schizophrenia since the sentence was imposed, he could be transferred to hospital.

67

Whether a conviction should be quashed on the basis of fresh evidence that a defendant had been unfit to stand trial - R v Robert Walls – [2014] MHLR 67

Points Arising: The test for fitness to plead, which remains that set out in Pritchard (1836) 7 C&P 303 and must be addressed by the expert evidence, relies largely on contemporaneous evidence, and trial lawyers are best placed to decide whether to raise the issue. A defendant can be assisted by an intermediary; if found unfit to stand trial, he or she loses the right to give evidence in the trial of the facts, and the courts powers to protect the public or assist the defendant are limited. On an appeal, expert views are to be considered with such matters as the nature of the account given by the defendant in interview, the prosecution decision to proceed in the public interest, any lack of intervention by the trial judge, and any failure to waive privilege so as to allow the Court to consider the views of the trial advocate or the instructions given at trial.

Facts and Outcome: RW was convicted of indecent assault on a child and a related offence; the judge had raised concerns about the conduct of the defence. After sentence, reports on RW suggested that he was unfit to stand trial, but the Court of Appeal determined that it was not shown that the Pritchard criteria were made out in light of the proper approach to the relevant evidence, which included accounts given in interview, decisions made by the prosecution, defence and judge to proceed with the case, and any disadvantage in assessment from the failure to waive privilege. In assessing the question, it should be noted that (i) a finding of unfitness meant the defendant lost the right to give evidence in the trial of the facts; (ii) an intermediary can be appointed to assist; (iii) the court’s powers of disposal to protect the public or assist the defendant are limited under the trial of the facts process.

72

Whether detention in a psychiatric hospital complied with Art 5(1) ECHR; the adequacy of the expert evidence; the approach to predicted deterioration in a condition that did not involve an imminent danger - Plesó v Hungary – [2014] MHLR 72

Points Arising: (1) To comply with Art 5(1) ECHR, domestic law must involve a fair and proper procedure that prevents arbitrariness. The latter will arise from bad faith, deception by the authorities, if detention is not for a purpose within Art 5(1), and if the there is no proper relationship between the ground for detention and the place and conditions of detention. (2) To comply with Art 5(1)(e), detention on the basis of “unsound mind”, a true mental disorder must be established on the basis of objective medical expert evidence, be of a kind or degree to warrant compulsory confinement and persist; weighty reasons are necessary to intervene with rights through detention, including the autonomy rights of a vulnerable group; and where the issue is not imminent danger but a future deterioration in health, proportionality requires a fair balance beween the responsibility to secure the best possible health care for those with diminished faculties and the right to self-determination (including to be ill); more caution is required if a person has not been subject to compulsion before and does not have a history of posing a risk. (3) Although the national authorities have a margin of appreciation in assessing whether the criteria are met on the evidence, this is limited in light of the core right of personal liberty, such that other less severe measures must have been found inadequate, and the ECtHR will assess whether there was adequate evidence revealing true health benefits that do not impose a disproportionate burden on the person involved.

Facts and Outcome: Dr M, the psychiatrist for TP’s mother, applied to have TP subject to compulsory treatment in light of his unemployment, social isolation and an incident when his mother moved out from their flat because he was threatening. Additional evidence to the court was given by Dr H, who saw TP during a 40-minute break in proceedings, and concluded that he had delusional schizophrenia, could not take care of himself and presented a danger to others. After an adjournment, the court ordered detention for treatment, finding that he had delusional schizophrenia and posed a “significant danger” to his own health by not seeking treatment or looking after himself (the “significant danger” test being set out in the domestic statute). TP was released on a court review after 4 weeks as an in-patient, a hospital psychiatrist noting that he presented no direct danger and was willing to accept treatment. The ECtHR found a breach of Art 5(1) as it had not been shown that TP had a mental disorder of a kind or degree warranting compulsory confinement and awarded €10,000 for non-pecuniary damage (plus costs). In particular, the Court noted the need for domestic law to prevent arbitrariness, which would arise if there was bad faith, deception by the authorities, if detention is not for a purpose within Art 5(1), and if the there is no proper relationship between the ground for detention and the place and conditions of detention. In relation to detention on the basis of mental disorder (“unsound mind”), it must be shown reliably to exist, ie be established through objective medical expert evidence, be of a kind or degree to warrant compulsory confinement and persist. Sufficiently weighty reasons have to justify the intervention with the rights of a vulnerable group, which the national authorities have a margin of appreciation in assessing: the ECtHR will assess the adequacy of the evidence. If the issue is not imminent danger but a future deterioration in a person’s health, proportionality requires a fair balance between securing the best possible health care for those with diminished faculties and their right to self-determination (including to be ill): less severe measures must have been found insufficient, and there must be true health benefits not involving a disproportionate burden on the person involved.

The breach on the facts arose because the domestic procedure was not devoid of the risk of arbitrariness, as there was no definition of a “significant danger”; and the basis for detention was a predicted future deterioration in the case of someone who had not been subject to psychiatric treatment previously and had no history of presenting a risk to others, which required a more cautious approach. The deference to medical evidence undermined the importance of independent and impartial decision-making about liberty; and there was no consideration of proportionality, assessing the rationality of TP’s choice, the benefits of treatment and the benefits of observation and out-patient treatment.

87

Whether there was a deprivation of liberty for the purposes of Art 5(1) ECHR; whether there were adequate protections against the risk of arbitrariness; whether Art 5(4) was breached in the absence of court reviews of detention; whether Art 8 was breached as a result of the placement under guardianship - Mihailovs v Latvia – [2014] MHLR 87

Points Arising: (1) Whether there is a deprivation of liberty in breach of Art 5 turns on the type, duration, effects and manner of implementation of the measure in question; it requires confinement in a restricted space for a non-negligible period of time (which is objective), a lack of valid consent (which is subjective), and imputation to the state. (2) An objection revealing a lack of consent can be made by a person who understands their position even if they have no de jure capacity. Hence, there may be a deprivation of liberty if a person declared legally incompetent tries to leave where they have been placed, or where consent is withdrawn, or the person is incapable of consenting, or where a person can only leave with permission. (3) Domestic law regulating detention must contain adequate safeguards against arbitrariness. (4) Mental disorder has to be reliably established by objective medical opinion, and be of a nature or degree that warrants compulsory confinement and persist; the ECtHR reviews the decisions of the domestic authorities and may assess the sufficiency of the evidence. (5) Whilst welfare may be a relevant factor in the necessity of a placement in an institution, the need for accommodation and social assistance cannot cause detention. (6) Protective measures must reflect the expressed wishes of the individual so far as possible, and so close scrutiny will be had if there has been no consultation in light of the risk of an abuse of rights. Very weighty reasons are required to encroach on the rights of particularly vulnerable groups such as persons with disabilities. (7) Detention on the basis of unsound mind for an indefinite or lengthy period requires a right to test the lawfulness of detention at reasonable intervals before a court, at least when there is no automatic periodic review. Any such review must have a judicial character and appropriate procedural guarantees, involving hearing the person or their representative. This applies when detention is authorised by a court, and a fortiori if no court was involved at the outset.

Facts and Outcome: This case involved the placement of a man deprived of capacity (in light of epilepsy and various psychological traits) in a state social care institution on the application of his wife (as his guardian) with the support of doctors from a psychiatric hospital where he had been placed for a report on his condition in the capacity proceedings. It focussed on the conditions at the places where he had been accommodated. The ECtHR determined that, on the relevant principles, one of the placements (but not another one) involved 8 years of constant supervision and not being able to leave without permission, such that it amounted to detention (objective), to which GM did not consent (subjective) and which was in a state-run institution (so leading to state responsibility). It complied with domestic law (based on the consent of the guardian), but there was no objective medical evidence that justified detention on the basis of mental disorder, and no evidence of danger to self or others, that treatment would not be accepted voluntarily, that other measures had been tried and found wanting. In addition, there was no process for assessing whether the condition persisted. As such, the legal structure breached Arts 5(1) and (4). The placement of 8 years led to an award of €15,000 as just satisfaction.

109

Whether the inability of the applicant to seek a court order to restore his capacity breached Art 8 ECHR; whether detention in a psychiatric hospital on the basis of a provisional court order and then with the consent of a guardian breached Art 5 - Lashin v Russia – [2014] MHLR 109

Points Arising: (1) To comply with Art 8 ECHR, decisions as to the removal or restoration of legal capacity must strike a fair balance between competing interests, in relation to which the national authorities have a margin of appreciation, which will be reviewed by the ECtHR, more strictly if the measure has a drastic effect. A mental disorder must be of a kind or degree to warrant a loss of capacity. (2) There must be procedural fairness in the decision-making process as to capacity; this includes ensuring equality of arms in relation to expert evidence. (3) The trend in law is to allow those without capacity direct access to seek to restore capacity; if the person is entirely dependent on the guardian, that is incompatible with Art 8. (4) To comply with Art 5(1), detention must comply with domestic law and be necessary, ie not be arbitrary. (5) Detention on the basis of mental disorder requires a reliable demonstation of unsound mind, the disorder has to be of a kind or degree that warrants compulsory confinement (for treatment or to prevent harm to others), and it must persist. (6) Appointing a guardian who will consent to detention is a breach of Art 5(1); and if there are reasons to doubt the neutrality of a guardian, the ECtHR will review the validity of the evidence.

Facts and Outcome: The case involved a man, APL, diagnosed as having schizophrenia; he was hospitalised several times, and an order was made in June 2000 on the basis of an April 2000 medical report that he lose his capacity (which had to be total rather than partial if mental disorder was involved). An application by his daughter (supported by his father as guardian) to have capacity restored led to the confirmation of the guardianship in March 2001, though without fresh medical evidence because APL did not trust local doctors and would only be examined by them if it was recorded, which the court did not order.

A further application to restore capacity was made by the guardian in July 2001. The court rejected an application to order a report from a non-state psychiatrists, ruling in February 2002 that only reports from state hospitals could be used, and that the April 2000 report remained valid; the hearing was held without APL on the basis that he could not participate and his presence would be prejudicial to his health. The ECtHR found that this breached Art 8 ECHR because (i) there was no fresh assessment of his condition, either through a fresh medical report or an examination of him by the court, even though there was nothing to indicate that his medical condition was irreversible or too short a time had passed for a re-examination and there was no medical evidence to indicate that he could not attend, (ii) it seemed that there was an error in the court’s view that only state-employed experts could give evidence, and the neutrality of an expert is important to ensure equality of arms when basic rights are at stake. As such, the conclusion that the test for incapacitation was still met was not reliable. In addition, it was doubtful that full incapacitation was justified: the presence of a mental disorder does not by itself justify a loss of capacity, since the disorder must be of a kind or degree to warrant such a measure; the absence of evidence of violence, self-harming or grossly irresponsible behaviour, meant that deprivation of capacity – which domestic law required to be total - was disproportionate.

In December 2002, he was admitted to hospital, leading to an application for a court order for further detention: during that process, when time limits in domestic law were not complied with, the hospital was made his guardian and so detention continued with their consent. This left APL without any way to seek to restore capacity, which was incompatible with Art 8; it was noted that the trend across Europe is to allow those without capacity to have direct access to a court. There were also a breach of Art 5(1) in that detention during the court proceedings was in breach of domestic procedural requirements and so not in accordance with domestic law (and so in breach of Art 5(1)); and detention on the basis of the consent of the guardian, by-passing the legal process, breached Art 5(1); in addition, there were reasons to doubt the impartiality of the guardian, and so it was appropriate to review the medical evidence, which on the facts did not support detention. The lack of a court review also breached Art 5(4).

There was also a complaint that APL and his fiancée had not been allowed to marry: it was decided that this did not need separate consideration under Art 12 because the loss of the ability to marry was one of the consequences of the loss of capacity. The lack of an effective remedy was also part of the reasoning under Art 8 and so was not considered separately under Art 13.

The breaches of Arts 5 and 8 ECHR led to €25,000 being awarded as just satisfaction.

127

Whether a decision to detain under s2 Mental Health Act 1983 was unreasonable; whether the failure to hold a managers’ hearing in light of the proximity of a Tribunal hearing was unreasonable - R (Zhang) v Whittington Hospital – [2014] MHLR 127

Points Arising: It was not unreasonable to detain under section 2 Mental Health Act 1983 even though further evidence showed the decision to be unduly cautious; nor was it unreasonable to not hold a managers review when a Tribunal hearing was to be held soon.

Facts and Outcome: Ms Zhang was refused permission to challenge a decision to detain her under section 2 Mental Health Act 1983. She had been discharged by a Tribunal on the basis her disorder was not of the relevant nature or degree, but the High Court determined that whilst the further evidence before the Tribunal might have revealed the detesntion to be overly cautious, it was not shown to be unreasonable. She was also refused permission to challenge the failure of the hospital to organise a review by the hospital managers under s23 of the 1983 Act: the fact that there was an impending Tribunal meant that is was not unreasonable not to have the managers hearing.

129

Whether a hospital and restriction order should be set aside in light of further medical evidence - R v Kelly Marie Caress – [2014] MHLR 129

Points Arising: Doubt as to whether a restricted patient in fact had a particular mental disorder that was part of the diagnosis at the time of sentence was for the Tribunal; evidence based on a contemporaneous examination was of more value.

Facts and Outcome: KMC was sentenced to hospital and restriction orders (ss37/41 Mental Health Act 1983), the diagnosis being schizophrenia and a personality disorder; the Tribunal had upheld detention on various occasions, but when one psychiatrist instructed in Tribunal proceedings formed the view that she did not have schizophrenia and had not at the time of the offence (and questioned whether her personality disorder would have justified making the orders), she sought to appeal. Leave was refused as there was agreement as to the existence of a personality disorder, the sentence was not shown to be wrong when it was imposed, and any change was for the Tribunal. Those who supported the view that KMC did not have schizophrenia had not examined her at the time of the sentencing hearing.

130

Whether the extradition of someone wanted in the USA on terrorist charges whose mental health had led to his transfer from prison to hospital in the UK risked breaching Art 3 ECHR - Aswat v UK – [2014] MHLR 130

Points Arising: (1) Extradition may give rise to issues under Art 3 ECHR irrespective of the allegations made in the underlying criminal proceedings, including in relation to the adequacy of health care; increased vigilance is required in light of the feeling of inferiority and powerlessness typical of those with mental disorder. (2) Lack of clarity as to what would happen to an extradited defendant who had an enduring mental illness, and the absence of a guarantee that he would not be placed in high secure conditions involving significant solitary confinement, in which there was a clear risk that his health would deteriorate, meant that there was a risk of a breach of Art 3 ECHR from extradition.

Facts and Outcome: The extradition of HA to the US for terrorism-related offences was sought, and there was a likelihood that he and co-defendants would be placed in high secure conditions involving solitary confinement. The ECtHR determined in relation to his co-accused that these conditions alone would not risk breaching Art 3 ECHR (and that the process of assignment there would follow adequate procedures), and that the sentence if convicted would not be grossly disproportionate. By then, HA had been transferred to a psychiatric hospital, and a Tribunal supported his ongoing detention there because of the risk of a relapse in his paranoid schizophrenia if he was returned to prison, and the Court sought further evidence. On the basis of that evidence, the absence of a guarantee that he would not be placed in high secure conditions involving significant solitary confinement, in which there was a clear risk that his health would deteriorate, meant that there was a risk of a breach of Art 3 ECHR from extradition

140

Whether the extradition of someone wanted in the USA on terrorist charges whose mental health had led to his transfer from prison to hospital in the UK risked breaching Art 3 ECHR; the approach to fresh information following a decision of the European Court of Human Rights - R (Haroon Aswat) v Home Secretary – [2014] MHLR 140

Points Arising: For a case following from a ECtHR and involving fresh evidence, the question was whether the new evidence would have changed the ECtHR’s conclusion (namely a real risk that extradition would breach Art 3).

Facts and Outcome: See Aswat v UK: the ECtHR determined that extradition to the US involved a real risk of a breach of Art 3 because of the lack of clarity as to whether he would be placed in conditions that might cause his mental health to deteriorate. The Secretary of State decided to proceed with extradition on the basis of further information from the US authorities. The High Court determined that the question was whether the new information would have caused the ECtHR to reach a different decision, which required an undertaking that he be placed in a psychiatric institution unless and until a treating psychiatrist determined that it was safe for him to be held in a prison setting. The decision of the Secretary of State was quashed, subject to allowing time for the USA to decide whether to give the necessary undertaking.

148

Whether an adverse inference direction from the defendant not giving evidence had been proper in light of his mental health; whether fresh evidence was admissible; whether the defendant had been able to participate in the trial; whether the minimum term fixed under an indeterminate detention sentence was too high - R v Jordan Dixon – [2014] MHLR 148

Points Arising: (1) Whilst there does not have to be an adverse effect on the mental health of a defendant to make it undesirable for them to give evidence so as to avoid an adverse inference direction from their failure to give evidence (by reason of s35 Criminal Justice and Public Order Act 1994), difficulty in giving evidence does not make it unjust to give the adverse inference direction. Relevant factors include the potential significance of the evidence, the defendant’s behaviour after the event, the availability of an intermediary and the anticipated approach of a fair-minded jury. (2) Further evidence that merely amplified material available at the trial was not admissible under s23 Criminal Appeal Act 1968.

Facts and Outcome: JD faced trial for murder with 2 co-defendants based on a joint-venture attack on the victim; he raised self-defence. He had an intermediary during the trial in light of low IQ, and problems with attention and language. The judge allowed an adverse inference to be drawn from JD’s failure to give evidence (though not from his failure to answer police questions), taking into account his conduct at the time of the offence, the potential significance of the evidence (which was self-evident when the defence was self-defence), that the test was not met by difficulty in giving evidence, which was mitigated by the use of an intermediary, and that a jury would take into account his condition (which was in evidence). This was challenged on appeal, which was supported by further evidence that put his IQ lower (though the 2 experts had different views on whether JD had been able to participate). The Court of Appeal declined to admit the fresh evidence on the basis that it did not support a ground of appeal because it amplified evidence at the trial and the experts disagreed on the impact of the evidence; they also determined that on the facts the arrangements had enabled JD to participate, and the judge had reached a decision that was open to him in relation to the adverse inference direction. The Court of Appeal did, however, reduce the minimum term for 13 to 12 years on the basis that the trial judge had wrongly concluded that JD had a greater role in the attack.