Case Comment: Lee-Hirons v Secretary of State for Justice  UKSC 46
24 Wednesday Aug 2016
Failure to provide a conditionally discharged restricted patient with a full explanation of the decision to recall him into detention within 72 hours of the recall date will not render the detention unlawful, nor will it give rise to a claim for damages in common law or under section 8 of the Human Rights Act.
The Supreme Court dismissed an appeal brought by a detained patient who alleged that his detention, following recall to a secure hospital unit, had been unlawful because an insufficient explanation of the reason for the recall had been provided to him within 72 hours of his re-admission. The Supreme Court concluded that the administrative delay did not affect the validity of the detention itself. A consequential claim for damages in common law and for breach of Article 5(2) of the European Court of Human Rights was also dismissed.
A 49 year-old male (L) suffering with protracted mental disorder and possible paranoid schizophrenia was convicted of arson and burglary in 2006. The court issued a section 37/ 41 Mental Health Act Restriction Order. On 27 April 2012 L was granted conditional discharge by the First-tier Tribunal. L failed to adhere to his conditions and, on 19 July 2012, a warrant was issued recalling L for detention. The warrant did not give a reason for the recall but earlier email correspondence between responsible clinicians did. L was told orally, at the time of his recall, that it was because his “mental health had deteriorated”.
The Department of Health issued guidance to Local Authorities (LAC(93)9) and Health Bodies (HSG G(93)20) in 1993, which is still effective today. It is entitled “Recall of mentally disordered patients subject to Home Office restrictions on discharge.” The guidance set out a three stage process for notifying such a restricted patient of the reason for their recall, stating that:
- A person should be notified of the reason in simple terms at the time of their recall so far as possible.
- As soon as possible after re-admission to hospital and in any event no later than 72 hours a full explanation capable of being understood should be provided.
- Within 72 hours of his re-admission the patient should be provided with a written explanation of the reasons for his recall.
L launched judicial review proceedings on 19 October 2012 on grounds that his detention was unlawful because the steps set out above had not been complied with in breach:
- of the common law right of a person to expect process in published guidance to be followed,
- of his ECHR Article 5 right to liberty, specifically, Article 5(2), which requires any person deprived of their liberty to be notified “promptly” of the reason for the deprivation.
A unanimous Supreme Court decision dismissed the case on appeal. Lord Wilson stated in his judgment that stage one had been complied with, the oral explanation that the recall was a result of L’s mental health having deteriorated was sufficient to satisfy stage one of the process.
That there was a breach in common law and of L’s Article 5(2) rights was accepted by the respondent, who conceded that stage two and stage three had not been complied with and acknowledged that a full explanation had not been provided until 15 days after L’s re-admission, and that a written explanation had not followed for several months. However, Lord Wilson concluded that the conceded failures had no direct bearing on L’s detention so as to render it at any time unlawful. A significant factor in this respect was that less than 24 hours after L’s re-admission, he was referred to the FTT for review, with such a review being held within one month, the FTT upholding his detention and giving valid reasons for doing so.
Despite the breach at common law and of Article 5(2) the Supreme Court did not find L to be entitled to any damages. Lord Wilson stated that, in this instance, the impact of the breach of Article 5(2) had not been sufficiently grave to merit the award of damages, a significant consideration being the lack of any direct impact the breach had on the lawfulness of his detention.
This is a welcome affirmation that administrative errors in procedures will not automatically render detention unlawful or give rise to a claim for damages; a somewhat obvious public policy point perhaps, but welcome nonetheless.
This post first appeared on the Mills & Reeve website. Reproduced here with kind permission.
About the authors:
Jill Mason is a partner at Mills & Reeve, leading the healthcare and mental health law teams. Samuel Lindsay is a solicitor in the contentious healthcare team.
Mills & Reeve’s health and care team is top ranked and its client list consists of public and private sector organisations including providers, commissioners, ambulance services, regulators, investors and suppliers. The team’s size and experience provide for both breadth and depth of knowledge, with expertise in acute, mental health, community, home and specialised care. Jill Mason and Samuel Lindsay both contribute regularly to the Mills & Reeve Health Team Blog, which provides helpful client-focussed updates on legal matters affecting the health and care sector.