Judge: Arden, Sales, and McCombe LJJ
Citation:  EWCA Civ 436
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  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:
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:
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  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.”
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.