John McKendrick (instructed by CVC Solicitors) for the claimant; Marina Wheeler (instructed by Treasury Solicitors) for the Secretary of State; Susanna Rickard (instructed by Partnerships in Care Ltd in house lawyers) for the interested party.
The case raised issues about whether reasons for a restricted patient's recall to detention in a hospital had to be provided orally or in writing. The judicial review claimant, Mr Dale Lee-Hirons, claimed that the decision of the Secretary of State for Justice to recall him, pursuant to section 42(3) of the Mental Health Act 1983, to be detained in a hospital was unlawful. The claimant sought a declaration to that effect and damages for false imprisonment, or pursuant to the Human Rights Act 1998. The Secretary of State and the interested party, Partnerships in Care Ltd, which operated the hospital where the claimant was detained, resisted the claim. The claimant was born in 1966 and had 61 convictions for a variety of offences. The majority involved theft, fraud and offences against property. He had two convictions for arson. In December 2003 he had been informally admitted to hospital. He was discharged in February 2004 with a diagnosis of mania with possible schizophrenic features. In March 2004 he was admitted to hospital again. He was then reported to have had a chronic fixed delusion of a snake being in his spine because of his past sins. He showed aggression towards staff and other patients. On discharge his diagnosis was chronic paranoid delusional disorder, amphetamine and cocaine misuse, and a socio-pathic personality disorder. A number of different psychiatrists had come to different conclusions at different times about the type of mental disorder suffered by the claimant. Diagnoses had included delusions of a religious and grandiose nature, paranoid schizophrenia, polysubstance dependence and dis-social personality disorder. On 18 March 2008, after hearing evidence, the First-tier Tribunal decided that the claimant was suffering from a mental disorder which made it appropriate for him to be liable to be detained in a hospital for medical treatment and that it was necessary that the claimant should receive such treatment. The tribunal was satisfied that appropriate medical treatment was available and that it was appropriate for the claimant to remain liable to be recalled. The claimant was conditionally discharged from hospital on 11 June 2012 but recalled to hospital by the Secretary of State on 19 July 2012.
The decision to recall a person subject to conditional release back to detention, was a decision of such importance that fairness requires that reasons be provided to the person being recalled. That was because the decision involved the removal of the (albeit part conditional) liberty enjoyed by that person. It might be noted that article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms was to the same general effect. The Convention provided at article 5.1(e) for the lawful detention of persons of unsound mind. Article 5.2, which applied to all the reasons for detention provided for in article 5.1, provided that "everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charge against him". His Lordship agreed that a failure to provide reasons would render the subsequent detention unlawful. This is because the giving of reasons was a condition precedent to the lawful recall of the person to be detained, in the same way that the giving of reasons for arrest was a condition precedent to lawful arrest by the police. It was submitted on behalf of the claimant that the reasons should be in writing, and provided to the person to be detained. His Lordship rejected the submission that the provision of written reasons, either immediately, or as soon as reasonably practicable after detention, was a condition precedent to the lawful recall of the person being detained. Very often it would be desirable to provide the patient with written reasons. That would enable those helping the patient (and in this case the claimant had been given assistance over a long period of time by his solicitor) to know how best to provide assistance to the patient. His Lordship found that oral reasons had been given to the claimant for the recall, and therefore the detention of the claimant was not unlawful for a failure to give reasons. There was also no infringement of rights protected by article 5 of the Convention. The claim was therefore dismissed.