CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 18 July 1986, the following members being present:                       MM. J.A. FROWEIN, Acting President                         C.A. NØRGAARD                         F. ERMACORA                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         J. CAMPINOS                         H. VANDENBERGHE                     Sir Basil HALL                       Mr. H.C. KRÜGER Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 31 October 1985 by P.R. against the United Kingdom and registered on 10 March 1986 under file No. 12039/86;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a French citizen, born in 1945 in London.   He is detained at Park Lane Hospital on Merseyside and is represented before the Commission by Mr. E. Rex Makin of Messrs. E. Rex Makin & Co., Solicitors, Liverpool.   On 12 September 1975 the applicant was placed in Broadmoor Special Hospital under a Hospital Order made under Section 60 of the Mental Health Act 1959.   A Restriction Order under Section 65 of that Act was also made.   On 23 March 1984 the applicant appeared before a Mental Health Review Tribunal created by the Mental Health Act 1983, which provides, so far as relevant, as follows:   "72 (1)   Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and -           ...   (b)   the tribunal shall direct the discharge of a patient liable to be detained otherwise ... if they are satisfied -   (i)   that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or   (ii)   that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment ; or ...           ...   (3)   A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may -   (a)   with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and   (b)   further consider his case in the event of any such recommendation not being complied with. ...           ...   (5)   Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged, the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.   (7)   Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.           ...   73 (1)   Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if satisfied -   (a)   as to the matters mentioned in paragraph (b)(i) or (ii) of section 72 (1) above; and   (b)   that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.   (2)   Where in the case of any such patient as is mentioned in subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.   (3)   Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.   (4)   Where a patient is conditionally discharged under this section -   (a)   he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and   (b)   the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.   (5)   The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or him) under subsection (4) above.   (6)   Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.   (7)   A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.   (8)   This section is without prejudice to section 42 above.   <Section 42 provides for release (by the Home Secretary), in certain circumstances and subject to certain conditions, of patients subject to "restriction orders".>           ...   (78) (8)   A Mental Health Review Tribunal may, and if so required by the High Court shall, state in the form of a special case for determination by the High Court any question of law which may arise before them."   The Tribunal directed that the applicant should not be discharged either conditionally or unconditionally.   It was unable to accept that the applicant constituted no danger to others, but it did accept that he was by then less dangerous than on his arrival at the hospital and it thought that the time was appropriate for escorted leave and, if that worked well, unescorted leave, particularly to his sister and brother-in-law.   On 28 February 1985, the applicant appeared before a further Tribunal. That Tribunal considered that the applicant did not require further detention in a special hospital, although it was not satisfied that he was not suffering from a psychopathic disorder and considered that hospital treatment was necessary.   The Tribunal considered that a conditional discharge, even deferred, would be premature, and it adjourned the hearing for a period of unescorted leave to be arranged. The necessary leave from the Home Office for such unescorted leave was refused.   The Home Secretary submitted supplementary observations to the Mental Health Review Tribunal which were received on 6 June 1985. The Home Secretary gave as his reasons for refusing leave that there could be an unacceptable risk to public safety if the applicant was released.   The Tribunal reconvened on 11 June 1985, when it found that it could not evaluate the degree to which the applicant presented a risk to the public without the evidence of unescorted leave and he was accordingly not discharged.   COMPLAINTS   The applicant complains of a violation of Article 5 para. 4 (art. 5-4) of the Convention because the Mental Health Act 1983 failed to give the Mental Health Review Tribunal sufficient power to meet the reasonable needs of a "court" within the meaning of Article 5 para. 4 (art. 5-4). They claim that it is not sufficient for the Tribunal to be able to discharge, conditionally or unconditionally, but that it must also have ancillary powers, such as the ability to give brief trial leave of absence.   The applicant's representatives state that it is difficult to reconcile the exclusive power of the Home Secretary to authorise even one day's escorted leave with the Tribunal's power to give an absolute discharge because the power to grant brief trial leave is clearly less drastic than a power to order an absolute discharge.   In correspondence, the applicant's representatives have stated that there appear also to be violations of Articles 3, 5 para. 1 (e), 6 para. 1, 8 and 13 (art. 3, 5-1-e, 6-1, 8, 13) of the Convention, although no further details have been submitted.   THE LAW   1.       The applicant alleges a violation of Article 5 para. 4 (art. 5-4) of the Convention because, although the Mental Health Review Tribunal which considered the applicant's case on 28 February 1985 felt that the applicant should be granted unescorted leave, the Tribunal itself was unable to provide such leave.   As a result, when the Secretary of State refused to give unescorted leave, the Tribunal declined to discharge the applicant, either conditionally or absolutely.   The essence of this complaint is that the inability of the Tribunal to provide for unescorted leave prevented the Tribunal from having sufficient powers to be able to function as a "court" within the meaning of Article 5 para. 4 (art. 5-4) of the Convention, which provides as follows:   "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."   The Commission notes that the criteria for continued detention of a restricted patient such as the applicant under the Mental Health Act 1983 or review by the Mental Health Appeal Tribunal can be summarised as follows:   (i)      That he is suffering from such mental illness as to make it appropriate that he be detained in hospital; or   (ii)     That it is necessary for the health or safety of the applicant or for the protection of others that he receive hospital treatment.   If neither of these conditions is met, the Tribunal must order a patient's discharge, which may be conditional or absolute depending on whether the patient should or should not be liable to recall to hospital.   The Commission recalls that in the Winterwerp case (Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33) the Court found three criteria for determining whether a person of unsound mind is lawfully detained, namely:   (i)      that it should be reliably shown that the individual concerned is of "unsound mind";   (ii)     that the mental disorder be of a kind or degree warranting compulsory confinement; and   (iii)    that the disorder is of a continuing nature (Winterwerp judgment para. 39).   In the case of X. v. the United Kingdom (Eur. Court H.R., 5 November 1981, Series A no. 46), the Court considered (at para. 57) that there was no reason "to suppose that in relation to one and the same deprivation of liberty the significance of 'lawfulness' differs from para. 1 (e) to para. 4".   In the present case the Mental Health Review Tribunal had jurisdiction to decide on the substantive lawfulness of the applicant's detention and it had the power (indeed the duty) to release the applicant if the conditions for continued detention were not satisfied.   In this respect the present Mental Health Review Tribunal is different from that considered by the Court in the case of X. the United Kingdom.   The Commission notes that the applicant's representatives make no complaint about the reliability of evidence before or the criticism recorded by the Tribunal as to the applicant's state of mind, but that the complaint is restricted to the question of whether the Tribunal should have been empowered to release on unescorted leave.   The Commission considers that Article 5 para. 4 of (art. 5-4) the Convention does not require any control of detention beyond that of "the lawfulness of his detention" and in the present case the Mental Health Review Tribunal was able to make such a review.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   2.       The applicant's representatives in correspondence have referred to possible violations of Articles 3, 5 para. 1 (e), 6, 8 and 13 (art. 3, art. 5-1-e, art. 6, art. 8, art. 13) of the Convention. No submissions have been made in respect of these Articles and accordingly, in the absence of any evidence to support this allegation, the remainder of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission           Acting President of the Commission         (H.C. KRÜGER)                            (J.A. FROWEIN)