View source for ICLR (2017) WLR(D) 429

Court of Appeal

'''Djaba v West London Mental Health Trust and another'''

'''[2017] EWCA Civ 436'''

2017 May 25; June 28	 	

Arden , McCombe , Sales LJJ

''Mental disorder — Tribunal — Discharge of patient — Secretary of State triggering review of detention of restricted patient — Tribunal determining not to discharge patient — Whether conditions of detention within tribunal’s jurisdiction — Mental Health Act 1983 (c 20), ss 72, 73, 145 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5''

The patient was subject to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983. Pursuant to section 71(2) of the 1983 Act the Secretary of State referred the patient’s case to the First-tier Tribunal thereby triggering a review of his detention. The First-tier Tribunal was satisfied that the patient was suffering from a mental disorder of a nature and degree that made it appropriate for him to be detained in a hospital for medical treatment and that neither conditional discharge nor a transfer to another hospital, as sought by the patient, were appropriate. The patient appealed, contending that, inter alia, the tribunal had failed entirely to deal with his argument that the statutory tests in sections 72, 73 and 145 of the 1983 Act required a proportionality assessment to be conducted, pursuant to article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, taking into account the conditions of his detention. The Upper Tribunal dismissed the appeal, determining that the ground covered by the statutory analysis conducted by the tribunal under the 1983 Act covered the same ground as required on any application of the Convention principles.

On the patient’s appeal—

Held, appeal dismissed. Section 72 and 73 of the Mental Health Act 1983 conferred a power of discharge on the First-tier Tribunal and did not also include power to regulate the conditions of detention under the Convention. If the patient thought the conditions of his detention were disproportionate and did not comply with the Convention he would have to apply for judicial review. The Upper Tribunal was right to dismiss the appeal (paras 42, 45, 46, 54, 55).

MM v Secretary of State for Justice [2017] EWCA Civ 194, CA applied.

B v Secretary of State for Justice [2006] 1 AC 441, HL(E) considered.

Decision of the Upper Tribunal (Administrative Appeals Chamber) affirmed.

'''Appearances:''' 
 
Kerry Bretherton QC and Fiona Paterson (instructed by Abbotscombe Law) for the patient.
 
Vikram Sachdeva QC (instructed by Bevan Brittan) for the mental health trust.
 
The Secretary of State did not appear and was not represented.

Reported by: Nicola Berridge, Solicitor