CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1997

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 24519/94                       by Pauline LINES                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 25 April 1994 by Pauline LINES against the United Kingdom and registered on 4 July 1994 under file No. 24519/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      22 December 1995 and the observations in reply submitted by the      applicant on 2 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British national, born in 1939 and she is currently resident in a group home in the United Kingdom following her release in 1995 from a psychiatric hospital. She is represented before the Commission by Sean Reynolds, a solicitor practising in Hampshire.   Particular circumstances of the case        The facts as submitted by the parties may be summarised as follows.        Since the age of fifteen the applicant has spent substantial periods of her life in psychiatric hospitals. Prior to 1958 the applicant was admitted twice to a psychiatric hospital suffering from schizophrenia. In 1958 she was again admitted to hospital suffering from epilepsy associated with psychosis.        In 1961 the applicant seriously assaulted a fellow patient. She was remanded to prison, charged with wounding with intent and found unfit to plead. An order was made under section 2 of the Criminal Lunatics Act 1800 and on 14 March 1961 she was admitted to hospital by warrant under section 71(2) of the Mental Health Act 1959. Following the introduction of the Mental Health Act 1983 ("the 1983 Act") the applicant's admittance under section 71(2) of the 1959 Act had the effect of a hospital order together with a restriction order without limit of time made under the 1983 Act.        Between 1970 and 1984 the applicant spent most of her time in psychiatric hospitals. During this period she was conditionally discharged on two occasions, the last being on 29 June 1984 by warrant of the Secretary of State.        The applicant was subsequently admitted to hospital as an informal patient on 27 April 1992 and on 21 July 1992 she was admitted under section 3 of the 1983 Act. The Home Office was notified of the applicant's admission and monthly reports on the applicant were requested by the Home Office. In early 1993 the Home Office was informed that the applicant had applied for a review by the Mental Health Review Tribunal ("MHRT") and, although there was some disagreement as to whether she was so entitled, the MHRT took the view that she was entitled to a review and arrangements were made for a hearing in April 1993. However, on 4 March 1993 the applicant was recalled to hospital by warrant of the Secretary of State pursuant to section 42(3) of the 1983 Act. Her case was referred to the MHRT, the review took place on 5 April 1993 and the MHRT did not recommend her discharge. However, the Secretary of State conditionally discharged the applicant on 30 June 1993 and she left the hospital on 8 July 1993.        Further to an attempted suicide, the applicant was then committed to a psychiatric hospital under section 3 of the 1983 Act on 27 July 1993. Reports were received by the Home Office on the applicant on 28 August 1993, 6 October 1993 (by telephone) and on 18 November 1993. On 3 December 1993 the applicant was formally recalled pursuant to section 42(3) of the 1983 Act by warrant of theSecretary of State on the grounds that whilst the applicant was inhospital her condition had not sufficiently improved. On 7 December 1993 the Secretary of State referred the applicant's case to the MHRT.        On 23 February 1994 the applicant's case was considered by the MHRT. The MHRT did not recommend her discharge it having been found that the applicant continued to suffer from mental illness requiring detention in hospital for medical treatment and continued to present a danger to herself and the public.        By letter dated 23 March 1994 the Home Office responded to correspondence from the applicant's representative noting that:        "The effect you describe as a lacuna in the provisions of the      Mental Health Act 1983 is ... a factor which informs our decision      whether to recall restricted patients in the situation      experienced by your client.        Section 41(3)(b) which ... prohibits restricted patients from      applying to <Mental Health Review Tribunals> under sections 66      or 69(1), deliberately maintains a distinction between the rights      of patients liable to be detained under Parts II and III of the      Act ...        We should not wish to give up this distinction.        An unrestricted patient detained under section 3 has the right      to apply to a tribunal within the first six months of such      detention ...        Our policy on restricted patients who are readmitted under      section 3 is to recall them well within this six months period,      and so soon as it is clear that their detention will be of      significant duration. A recall decision imposes on the Secretary      of State an obligation to refer the case to a tribunal within one      month ... We believe that a breach of section 5(4) of the ECHR      is avoided, provided the result is reference to tribunal within      six months of admission.        In the early stages of your client's admission, we were inhibited      from recall by evidence that her condition was likely to lead to      her imminent discharge. A premature recall would have delayed      such discharge.        We recognise that there is a delicate balance to be maintained      in such cases: to avoid curtailing a patient's right to apply for      review on the one hand, while not delaying any discharge which      may follow a recovery, on the other."        The applicant was discharged by the Secretary of State on 14 March 1995 into a group home in the community and she continues to receive pharmacological and psychiatric treatment for mental illness.   Relevant domestic law and practice        Hospital order        Section 37 of the Mental Health Act 1983 ("the 1983 Act") empowers a Crown Court to order a person's admission to and detention in a hospital specified in the order ("a hospital order"). The court can only make a hospital order if it is satisfied on the evidence of two registered medical practitioners that the offender is mentally disordered and that -        (a)    the disorder is of a nature or degree which makes it            appropriate for him to be detained in a hospital for            medical treatment and, in the case of psychopathic disorder            ... that such treatment is likely to alleviate or prevent            a deterioration of his condition, and        (b)    the court is of the opinion ... that the most suitable            method of disposing of the case is by [a hospital order].        Restriction order        Section 41 of the 1983 Act empowers a Crown Court, at the same time as it makes a hospital order, to make a restriction order without limit of time. A restriction order may be made if it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to make the order.        Application to the Mental Health Review Tribunal ("MHRT")        Under section 70 of the 1983 Act a person who is subject to a hospital order and restriction order ("a restricted patient"), and who is detained in hospital, can apply to the MHRT after he has been detained for six months. After he has been detained for twelve months he can re-apply annually. (Under section 71 of the 1983 Act the Secretary of State may at any time refer the case of a restricted patient to the MHRT and must do so when his case has not been considered by the MHRT for three years.)        Absolute and conditional discharge        Under section 73(1) of the 1983 Act, read with section 72(1), where an application is made to the MHRT by a restricted patient or where his case is referred to the MHRT by the Secretary of State, the MHRT is required to direct the absolute discharge of the patient if satisfied -        (a)    (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; and        (b)    that it is not appropriate for the patient to remain liable            to be recalled to hospital for further treatment.        By virtue of section 73(3) of the 1983 Act, where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.        Under section 73(2) of the 1983 Act, where the MHRT is satisfied as to either of the matters referred to at (a) above, but not as to the matter referred to at (b) above, it is required to direct the conditional discharge of the patient. The Secretary of State can also, pursuant to section 42(2) of the 1983 Act, conditionally discharge a patient. In contrast to the case of absolute discharge, a conditionally discharged patient does not cease to be liable to be detained due to the relevant hospital order.        Recall by the Secretary of State and reference to the MHRT        The Secretary of State has power to recall a patient whether the patient has been conditionally discharged by the Secretary of State (under section 42(2) of the 1983 Act) or by the MHRT (under section 73(2) of the 1983 Act). This power is contained in section 42(3) of the 1983 Act which reads as follows:        "The Secretary of State may at any time during the continuance      in force of a restriction order in respect of a patient who has      been conditionally discharged under sub-section (2) above by      warrant recall the patient to such hospital as may be specified      in the warrant."        Under section 75(1)(a) of the 1983 Act, when a restricted patient who has been conditionally discharged is subsequently recalled to hospital, the Secretary of State is required, within one month of the day on which the patient returns or is returned to hospital, to refer the case to a Tribunal.        Involuntary Committal and restricted patients        A conditionally discharged restricted patient may be involuntarily re-committed to hospital independently of his restricted patient status pursuant to the "normal" involuntary committal procedure contained in section 3 of the 1983 Act which section, insofar as relevant, reads as follows:        "(1) A patient may be admitted to a hospital and detained there      ... in pursuance of ... an application for admission for      treatment ...      (2) An application for admission for treatment may be made in      respect of a patient on the grounds that -              (a) he is suffering from mental illness, ... and his mental            disorder is of a nature or degree which makes it            appropriate for him to receive medical treatment in a            hospital; ..."        A conditionally discharged restricted patient who has been so involuntarily committed to a psychiatric institution is excluded (by section 41(3)(b) of the 1983 Act) from the review possibilities outlined in section 66(1) of the 1983 Act which are normally available to non-restricted patients who are involuntarily committed. However, the entitlements of conditionally discharged patients who have not been recalled are referred to in section 75 as follows:        "(2) Where a restricted patient has been conditionally discharged      ... but has not been recalled to hospital he may apply to a      Mental Health Review Tribunal-              (a) in the period between the expiration of twelve months            and the expiration of two years beginning with the date on            which he was conditionally discharged; and              (b) in any subsequent period of two years ..."     COMPLAINTS        The applicant complains that she was not entitled to apply to a Mental Health Review Tribunal while she was detained under section 3 of the Mental Health Act 1983 between 27 July 1993 and 3 December 1993. She also complains about the length of time it took for her to have a review after her admission on 27 July 1993 under section 3 of the 1983 Act. She also refers to similar matters in relation to her detention between 21 July 1992 and 8 July 1993 in her observations. The applicant invokes Article 5 para. 4 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 25 April 1994 and was registered on 4 July 1994.        On 6 September 1995 the Commission decided to communicate the application under Article 5 para. 4 of the Convention.        The observations of the respondent Government were received by letter dated 22 December 1995 and those of the applicant in response were received on 6 May 1996.   THE LAW        The applicant complains under Article 5 para. 4 (Art. 5-4) of the Convention that she was not entitled to apply to the Mental Health Review Tribunal ("MHRT") while she was detained under section 3 of the Mental Health Act 1983 ("the 1983 Act") between 27 July 1993 and 3 December 1993. She also complains about the length of time it took for her to have a review after her committal on 27 July 1993 under section 3 of the 1983 Act. She also refers in her observations to her detention, also pursuant to section 3 of the 1983 Act, between 21 July 1992 and 8 July 1993.        The Government state that the applicant, as a conditionally discharged patient re-admitted under section 3 of the 1983 Act, did not have any entitlement to apply for a review before the MHRT. However, section 3 of the 1983 Act is used in such cases in order to allow the relevant health professionals to retain control over the patient's treatment and thereby facilitate a possible early discharge. Conversely, with the formal recall procedure, the patient has a sense of failure and the control of the patient's management is taken away from the health professionals which may not facilitate the patient's early discharge. After re-committal under section 3 of the 1983 Act, the case is reviewed by Home Office official's and health professionals on a monthly basis and as soon as it becomes apparent that the patient's discharge may not be imminent, the patient is formally recalled and the case referred to the MHRT.        The Government recognises that it is not desirable for patients to be deprived of their entitlement to a review in such circumstances even if the motives are good and, accordingly, guidance is in preparation by the Department of Health to psychiatrists which will request them not to use their powers under section 3 of the 1983 Act in the case of conditionally discharged restricted patients but rather to put in train the formal recall procedure to ensure that patients are reviewed by the MHRT at an early date.        However, the Government submit that there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention since, prior to the referral of the applicant's case to the MHRT, her case was kept under constant review by both health professionals and Home Office officials. Her right to apply for a review was only deferred because it was hoped that her discharge was imminent and that the formal recall procedure could have been avoided. In addition, the Government argue that the applicant suffered no detriment as a result since the MHRT found that her continued detention was, in fact, necessary. The Government consider that her review was speedy - the applicant's case was determined seven months after her detention and the delay was not caused by a desire on the part of the authorities to prolong her detention but rather to facilitate her early discharge.        The applicant does not accept that the formal recall procedure would have been necessarily any more complex or slower than the procedure under section 3 of the 1983 Act. It would, on the other hand, have accorded the applicant an entitlement to have an early MHRT review which the Government accept she did not have prior to 3 December 1993. In addition, the applicant argues that the health professionals and the Home Office officials, to whom the Government refer, could not constitute a "court" within the meaning of Article 5 para. 4 (Art. 5-4) and it was not speedy since the MHRT review took place seven months after the applicant's committal under section 3 of the 1983 Act in July 1993. It is irrelevant, according to the applicant, what the MHRT decided in February 1994 when the issue is the applicant's entitlement to a review and the speediness of the review that took place. Such an argument would be equivalent, according to the applicant, to depriving her of her entitlement to a speedy review simply because those responsible for the detention considered that the review would not result in the applicant being discharged.        The Commission notes that the parties submissions refer, in the first place, to the applicant's detention between 21 July 1992 and 8 July 1993 and, secondly, to her detention between 27 July 1993 and 23 February 1994.        As regards the period of detention between 21 July 1992 and 8 July 1993 and even assuming that this complaint was introduced with the main application as opposed to with the applicant's observations, the Commission notes that the application was introduced on 25 April 1994 which is more than six months after the end of the pertinent period of detention. Accordingly and insofar as the applicant complains under Article 5 para. 4 (Art. 5-4) of the Convention in respect of this period, the Commission considers that such complaint has been introduced outside the time-limit set down by Article 26 (Art. 26) of the Convention and finds that the complaint is, accordingly, inadmissible within the meaning of Article 27 para. 3 (Art. 27-3)   of the Convention.        As regards the period of detention between 27 July 1993 and 23 February 1994, the Commission considers, in light of the parties submissions, that this part of the application raises serious issues under Article 5 para. 4 (Art. 5-4) of the Convention which require determination on the merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the convention. No other ground for declaring them inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints about the lack of entitlement to take      proceedings by which the lawfulness of her detention after      27 July 1993 could be decided speedily by a court; and        DECLARES INADMISSIBLE the remainder of the application.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber