R (AL) v SSHD [2005] EWCA Civ 2
The Secretary of State's powers to continue the recall of a patient who had originally been detained following an acquittal of murder on grounds of insanity and pursuant to s 5(1)(a) of the 1964 Act, but was recalled pursuant to s 42(3) of the 1983 Act, differed from such powers as were granted under s 37 of the 1983 Act.
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Headnote
Mental Disorder — Accused acquitted of murder on grounds of insanity — Detention in hospital — Subsequent conditional discharge — Recall to hospital on grounds of emergency — Continuation of recall following further medical advice — Whether requirement for continued detention to be founded on same form of mental disorder as underlay original detention — Criminal Procedure (Insanity) Act 1964, s 5(1)(a) — Mental Health Act 1983, ss 37, 42(3).
Summary
The Secretary of State's powers to continue the recall of a patient who had originally been detained following an acquittal of murder on grounds of insanity and pursuant to s 5(1)(a) of the 1964 Act, but was recalled pursuant to s 42(3) of the 1983 Act, differed from such powers as were granted under s 37 of the 1983 Act.
The Court of Appeal so held in dismissing L's appeal from Collins J who, in the Administrative Court on 23 April 2004, refused L's claim for judicial review and for interim relief founded on a decision of the Secretary of State for the Home Department to recall L to detention at a secure hospital, initially as a matter of "emergency", but subsequently in reliance on a doctor's further report.
In 1991 L was found not guilty of murder by reason of insanity. As a result, pursuant to s 5(1)(a) of the 1964 Act, the court was required to make an order that L be admitted to hospital. In 2001, a conditional discharge took place and no relevant difficulties arose until 2004, when the claimant was recalled to hospital by way of a warrant issued under s 42(3) of the 1983 Act on the grounds of "emergency", as being a potentially serious and imminent risk to others. That recall was based on medical evidence; but a later medical report found that L was not showing the symptoms of any mental illness and was therefore not detainable under the classification of mental illness. However, the same doctor concluded that L had a psychopathic disorder which was likely to persist, and was of such a nature and degree as to warrant in-patient hospital treatment, and also that the risk to others made it appropriate for L to remain detained in the interests of his own health and for the protection of others.
KEENE LJ said that L did not challenge the emergency recall, but, in reliance on R (B) v Ashworth Hospital Authority [2003] EWCA Civ 547, [2003] 1 WLR 1886B,[1] where it was held that the patient could only be treated compulsorily for the form of mental disorder for which he was being detained, L submitted that the same approach should apply to recall under s 42(3) of the 1983 Act, and that, save in an emergency, and then only for a limited time, the Secretary of State's power to recall and then detain a restricted patient could only be used where the patient was found to be suffering from the same form of mental disorder which was the foundation of his original detention in hospital. That submission was to be rejected. In particular, B's case was distinguishable, because if the patient was admitted under s 5(1)(a) of the 1964 Act after a jury had returned a special verdict of not guilty of murder by reason of insanity there was no process of identifying the particular form of mental disorder which existed, unlike the situation where a hospital order was made under s 37 of the 1983 Act. Furthermore, in the latter case, s 37(7) of the 1983 Act required the form, or forms, of mental disorder to be specified in the order, but that provision did not apply to L's case, and nor was it a requirement that the accused's mental disorder be one which treatment in hospital was likely to alleviate or prevent from deterioration. It followed, since there was no classification of L's form of mental disorder, that L's case must fail
BROOKE and JONATHAN PARKER LJJ agreed.
Other
R (L) v Secretary of State for the Home Department [2005] EWCA Civ 2B
CA: Brooke, Jonathan Parker and Keene LJJ: 20 January 2005
Alison Foster QC and Matthew Seligman (Peter Edwards, Hoylake) for the claimant. Tim Ward (Treasury Solicitor) for the Secretary of State.
Reported by: Matthew Brotherton, barrister.
Notes
Obiter - the recall would have been lawful even if the claimant had been subject to s37/41 (in which case he would have had a legal classifaction.
Update
A change made by the Mental Health Act 2007 is relevant to this case. See Mental disorder no longer split into separate classifications 3/11/08
Footnote
- ↑ The Ashworth decision relied upon was subsequently overturned: R (B) v Ashworth Hospital Authority [2005] UKHL 20