Djaba v West London MH Trust and others

Judge: Arden, Sales, and McCombe LJJ

Citation: [2017] EWCA Civ 436

Summary

Since 2014, Mr Djaba had been accommodated in a “super seclusion suite” at Broadmoor under a restricted hospital order (Mental Health Act 1983 ss37/41). Built entirely for his confinement, it was a small room divided into two parts with a secure partition between them. Except to review his health, no one was permitted to enter the room without the partition being in place. Diagnosed with paranoid schizophrenia, he was highly resistant to receiving depot medication which had to be given forcibly by treating staff wearing protective equipment, including shields, helmets, and visors. The central issue was whether the First-Tier Tribunal (Mental Health) (‘FTT’) was required to conduct a proportionality assessment pursuant to articles 5 and/or 8 ECHR taking into account the conditions of his detention. In short, it was not.

The Court of Appeal decided that the decision in Secretary of State for Justice and Welsh Ministers v MM and PJ [2017] EWCA Civ 194 was “properly to be carried over directly into that part of the legislation applicable in this case.” Giving the leading judgment, Lord Justice McCombe held:

42. If, as the court said in PJ at [55], the tribunal’s power is a “distinct and separate” one, namely that of discharge, and does not provide for intervention to regulate the conditions under a CTO made by the responsible clinician, then the same must, I think, apply under ss.72 and 73 which also confer a power of discharge. It seems to me that, applying this court’s decision, that power cannot also include power to regulate the conditions of detention. In the material part of the PJ judgment the court was considering directly the extent of the power under s.72.
43. It is perhaps unfortunate that the court did not address the passages from the speech of Baroness Hale in H and I confess that I had some difficulty in understanding why it had not done so. I can see force in Ms Bretherton’s point that it might be thought that specialist tribunals, rather than courts, were better suited to assessing conditions of a patient’s detention in a human rights context for the reasons expressed by Baroness Hale in her speech. It seems to me, however, that in the light of the court’s decision on the jurisdiction issue in PJ, it did not need to do so… (emphasis added)

Thus, McCombe LJ concluded, the tribunal lacked the jurisdiction to conduct as assessment beyond that dictated by the detention criteria in MHA ss72-73. Any challenge to the conditions of detention would have to be brought in the civil courts. Agreeing with McCombe LJ, Lord Justice Sales added:

49. The matters identified in section 72(1)(b)(i), (ii) and (iia) and requiring to be considered by the Tribunal pursuant to section 73(1) do not include the conditions of detention of a restricted patient or things such as the availability of visiting rights for members of a patient’s family. These are aspects of the care of a restricted patient which are within the control of the hospital authorities, who will have to take account of a range of matters in organising his detention in their facility, including the resources available, the Convention rights of the patient and others and the safety of staff and visitors. The governing NHS Trust for Broadmoor Hospital is a public authority and is amenable to judicial review in the High Court in relation to any legal challenge which a restricted patient might wish to bring in relation to these matters. If a restricted patient needs access to a litigation friend in order to mount such a legal challenge, arrangements can be made to facilitate that. That is an appropriate and effective avenue for legal protection for a restricted patient who wishes to challenge what the hospital authorities have done in relation to his conditions of detention.

Parallels were drawn with the imprisonment of convicted criminals whereby legal remedies in respect of some detention issues are determined by the Parole Board while remedies in respect of other detention issues are determined by the High Court in judicial review proceedings: see, e.g., R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331. His Lordship specifically rejected the submission that the reference to ‘appropriate’ in the detention criteria included conditions of detention and other ECHR issues (para 51). For good measure, Lady Justice Arden agreed with both judgments and reinforced that the Administrative Court “is able to carry out a sufficient review on the merits to meet the requirements of the Convention.”

Comment

Both PJ and Djaba concentrate on the jurisdiction of the Mental Health Tribunal/MHRT for Wales and are therefore hugely significant. As we have noted previously, it is concerning that the Court of Appeal in PJ started from a false premise, holding at para 55 that: “[t]he power exercisable by the tribunal is to discharge the patient from detention not to ‘discharge the CTO.’” This is wrong because MHA s72(1)(c) contains no reference to detention. A patient on a CTO is not liable to be detained in hospital; they are merely liable to be recalled to hospital which is very different. Accordingly, the tribunal has no power to review the legality of detention of community patients.

There is an interesting contrast between tribunals and the Court of Protection. Following Djaba, a tribunal has no jurisdiction to review the conditions of detention or, for example, access to family members. And it has long been established that the tribunal lacks jurisdiction to review the legality of psychiatric treatment. These are all matters for judicial review. Whereas the Court of Protection can, albeit within certain parameters, conduct a proportionality assessment pursuant to articles 5 and 8 ECHR which take the detention conditions (eg see North Yorkshire County Council v MAG). Indeed, that the court has the jurisdiction to determine HRA claims was not disapproved of by the Supreme Court in N v ACCG.

Mr Djaba now finds himself in a similar position to Colonel Munjaz. Challenging his seclusion – which could conceptually be a deprivation of his residual liberty – will be a matter for the Administrative Court, not the Tribunal.

Article 8 ECHR - Contact, Article 5 ECHR - Deprivation of liberty, Mental Health Act 1983 - Interface with MCA 28th June 2017