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Lee-Hirons v Secretary of State for Justice [2016] UKSC 46

Although the Secretary of State had breached the Department of Health's guidelines, that did not make the detention of a mental health patient…

Executive summary

The reasons provided to a mental health patient at the time of his recall were sufficient. Although the Secretary of State (SSJ) had breached the Department of Health's guidelines by failing to provide an explanation in writing within three days of the recall, that did not make the detention unlawful.

Background

The appellant had a history of admission to psychiatric hospitals.  In 2006 he was convicted of arson and burglary and in the light of his mental disorder he was made the subject of a “hospital order” and a “restriction order” under the Mental Health Act 1983 (MHA)and was detained in medium-secure hospitals. 

The claimant was conditionally discharged by a Mental Health Tribunal in April 2012. In July that year his supervisors invited the SSJ to consider recalling him to hospital due to a deterioration in his mental health and various other concerns. 

A warrant was issued and the claimant was recalled to hospital under s.42(3) MHA. Contrary to policy, the warrant did not detail the reasons for the appellant’s recall and when the appellant was informed he was being recalled, he was told only that it was because his mental health had deteriorated. Staff at the hospital were unable to explain the reasons for his recall and again, contrary to policy, the appellant was not provided with an adequate explanation for the recall until 15 days later, the policy having required an explanation to be given and provided in writing within three days of recall. 

The appellant complained there had been a failure to notify him of the reasons for his recall and that this affected the legality of his detention, or alternatively that it generated a right to a declaration and damages. His application for judicial review was dismissed at first instance and the Court of Appeal dismissed his appeal. The appellant appealed to the Supreme Court. 

As regards the failure to provide an explanation for the recall within three days, the SSJ conceded there had been a breach of the appellant’s common law right to have the policy applied properly, and his right under Article 5(2) of the European Convention on Human Rights (ECHR) to be informed promptly of the reasons for his recall. 

Decision

In dismissing his appeal, the Supreme Court held; 

(1)   the reason provided to the appellant at the time of his recall was legally sufficient in common law and under Article 5(2) ECHR; 

(2)   there was no link, let alone a “direct link” (as is required following R (Lumba) and R (Kambadzi))betweenthewrongful failure for 12 days to provide the appellant with an adequate explanation for his recall, and the lawfulness of his detention during that 12 day period: and 

(3)   the appellant was not entitled to damages for the breach of his common law right to receive an adequate explanation for his recall within the time set out by the policy as the breach did not amount to a tort and there was nothing to suggest that damages would have been available in an ordinary action. As for the claimant’s entitlement to damages for a violation of Article 5(2) ECHR; the appellant had failed to establish that the effects of the breach were sufficiently grave.  

Comment

This judgment reinforces the decision of the Supreme Court in R (oao Lumba) v Secretary of State for the Home Department [2011] UKSC, that a breach (in this case of the duty to provide reasons) must have a direct bearing on the decision to detain in order to impact on the lawfulness of detention.  Further, that evidence of pecuniary loss or significant non-pecuniary injury as a result of the breach is required for an award of damages. 

Lord Rees observed that the common law duty to provide reasons is“context-specific”.  Those involved in affecting the recall of patients to hospital often act in an emergency with little information available. The extent of the duty to provide reasons in these circumstances will be assessed by reference to the context in which detention occurs. 

For further information about Weightmans or any issues detailed in this update, please contact  Kate Riley, Solicitor on 0151 242 6868 or by email at kate.riley@weightmans.com