Mr Justice Stanley Burnton:
Introduction
- On 12 October 1998, the Claimant was convicted of offences of inflicting grievous bodily harm and unlawful wounding contrary to section 20 of the Offences against the Person Act 1861. Orders were made for his detention under sections 37 and 41 of the Mental Health Act 1983. He remained so detained until 2 July 2004, when he was conditionally discharged by a mental health review tribunal to reside at Holtwhites Villa in the London Borough of Enfield. The tribunal had previously, on 11 September 2003, made a deferred order for his conditional discharge, which depended, among other things, on the availability of suitable hostel accommodation. He contends that part at least of the delay between that date and his eventual conditional discharge was due to the breach of statutory duty by the Defendants, who were the authorities responsible for his after-care under section 117 of the Act.
- In these proceedings the Claimant, B, seeks damages against the Defendants for alleged infringements of his rights under Articles 5 and 8 of the European Convention on Human Rights that he contends were caused by the Defendants' breach of statutory duty.
- The Defendants were both section 117 authorities in relation to B. They are the local authority and mental health trust for the area where he resided before his arrest. They have sensibly joined forces to oppose his claim, and do not make any allegations against each other. It is accordingly unnecessary to distinguish between them, and I shall refer to them both as "Camden". They deny that they acted in breach of statutory duty or that B is entitled to any damages against them.
- The Secretary of State appeared by Mr Kovats in view of the contentions advanced by B as to the nature and extent of the duties of section 117 authorities and the remedies that are or should be available to a claimant who establishes a breach of their duties. In the event, however, Mr Kovats did not advance any different submissions to those of Mr Lewis.
The facts
- The facts set out below are taken from the contemporaneous documents in the trial bundle and the witness statements filed by the parties. I have replaced reference to B's name with his initial in all quotations. Save for a date (26 May 2004, when B started his overnight leaves to Holtwhites Villa) that does not prejudice the Defendants, I have not taken into account a letter of Carol Chester, to whom I refer below, dated 20 April 2005, produced by Mr Bowen during his reply. It is far too late then to introduce controversial evidence, which the Defendants have no opportunity to address. In any event, the letter was unspecific as to crucial dates, namely those when conditions B and C stipulated in the tribunal's decision of 11 September 2003 were satisfied.
- Following his arrest for the offences referred to above, B was admitted to Camlet Lodge Regional Secure Unit in Enfield on 6 May 1998. He continued to be detained there after the making of the section 37 and section 41 orders in October 1998. His offences were committed in Camden, where he had lived, and in order to avoid any possibility of contact with the victims the Home Office imposed an exclusion zone consisting of the London Borough of Camden on the unescorted leaves that he was permitted from August 2002.
- In October 2002, he was transferred to Avesbury House, a low secure unit in Edmonton. Camden Mental Health Service was notified of his transfer, but according to the witness statement of George Platts, the Assistant Director of the Second Defendant, due to the nature of his offences and his condition at the time, there was no need for their involvement.
- The next contact with the Defendants was in March 2003, when the social worker at Avesbury House wrote to Camden to ask for assistance in identifying a suitable community placement for B. According to Mr Platts, a care programme approach risk assessment was carried out which concluded, in a report of Avesbury House dated 19 May 2003, that he remained appropriately placed in Avesbury House. Camden therefore thought that there was no urgency in arranging a community placement. Nonetheless, Camden took steps to identify a suitable placement.
- In June 2003, Moti Villa in Enfield, which B was taken to see at Camden's instigation, rejected him.
- In July 2003, Camden Town CMHT received a request for a report for the tribunal. Camden were already considering suitable placements for B. He was offered a place at St Martin of Tours care home, which was the usual placement for persons leaving Avesbury House, but he rejected it.
- The Claimant's RMO produced a report dated 28 July 2003 for the tribunal hearing that was to take place on 11 September 2003. She stated that he was suffering from paranoid schizophrenia, but that it was difficult to say that his illness was of the nature or degree that warranted his detention in hospital. Her opinion was that the residual risks he posed in terms of his own health and safety and the safety of others could be managed with the requirement that he remain liable to recall to hospital in future. She stated that he had a number of vulnerabilities, which indicated that he might not be able fully to care for himself or to obtain the care he needed without appropriate support systems being in place. The RMO suggested that B could be conditionally discharged, but thought that he first required "further testing in the community through the use of overnight leaves to an appropriate hostel, once identified and vacancy is available". That hostel would have to be outside the London Borough of Camden, by reason of the exclusion zone. The RMO referred to the conditions that would need to be in place for his discharge:
"11. In my view, B will require a number of conditions to be in place if his discharge is to be effected successfully. Such conditions will need to include the identification of a suitably experienced consultant psychiatrist from the area in which a suitable hostel is located or a Consultant Forensic Psychiatrist with responsibility for one of the Forensic Outreach teams who is prepared to provide the role of the Responsible Medical Officer. This issue has been complicated by B's inability to return to his original catchment area. In addition, the identification of a social supervisor is required and B will require ongoing monitoring by an experienced Community Psychiatric Nurse. B should be subject to the condition that he resides in appropriate accommodation, such as a suitably staffed hostel, which is agreed by the current clinical team and the receiving community psychiatric team. Although there is limited evidence that illicit drugs played a role in the index offence or his subsequent hospitalisation, the requirement to comply with random urine drug screens would be appropriate, given the likelihood of him being under additional stressors once in the community. At present, a controlled regime of alcohol consumption has been permitted. A clear management plan, including continued compliance with antipsychotic medication, will need to be in place to ensure that should deterioration occur the appropriate course of action is implemented
- She concluded:
"12. As yet, therefore, given that a suitable hostel has not been identified, despite the endeavours of the clinical team, and other appropriate conditions are not in place, I would respectfully suggest that B is granted a deferred Conditional Discharge in order that the above conditions can be implemented. In addition, he will require overnight leaves to an identified hostel to further to test his stability in the community before it can be considered appropriate to complete his discharge."
- A social work report dated 29 July 2003 was prepared for the tribunal hearing by Carol Chester, an approved social worker of Barnet, Enfield and Haringey NHS Trust at Avesbury House. It stated that it would be more appropriate for B to reside in a 24-hour supported hostel or care home where the staff are accessible and experienced in monitoring any changes to his mental state, and to that end, hostel placements were being actively pursued. B had already been to view St Martin of Tours Hostel in Islington, but had declined any possibility of a place there because he thought it was too large a unit. Other, smaller, units in Enfield had been considered. One had rejected the Claimant after he had expressed objections to the restrictions and obligations expected of residents. The Claimant rejected a three-bedded care home in Waltham Forest because it operated a no-smoking policy, and he suffered from a weak bladder and required an ensuite room, which it did not have. In addition, he said that he was unable to tolerate noise, and feared that they would be excessive noise from one of the residents there and from a school next door. As a result, investigations into suitable hostels were still being pursued.
- The report summarised community resources, stating that the London Borough of Camden were responsible for B's aftercare and, should he be discharged, had a duty to provide accommodation. Bed and breakfast accommodation would be available only as an emergency measure, and, the clinical team agreed, this would not be appropriate having regard to the level of care and support that the Claimant required.
- A Camden community mental health nurse prepared a Community Care Assessment report dated 27 August 2003. The statement of need was:
"If discharge from hospital is considered, B would require the following to be in place prior to discharge:
- Adequately staff supported accommodation. On interviewing him, B stated that he would like a small hostel with ensuite facilities, a maximum of six other residents and low levels of noise.
In addition, he would prefer a placement that permits smoking.
- A discharge process with encouragement to develop and create normal patterns as well as positive social contacts other than professionals.
- Close monitoring of treatment plan with regular contact with allocated Community Consultant as well as Care Coordinator.
- A clear treatment management and crisis response plan."
Under the heading "List of Services/Support", the report stated:
" In view of the above needs B needs regular contact with a
- Community mental Health Team that would review and monitor treatment as per agreed care plan.
- Care manager who would continuously review placement needs.
- Meaningful daytime activities as well as attendants (sic) to a suitable community mental health resource centre such as day and a walk-in centres."
Curiously, the list of services and support did not include staff-supported accommodation.
- On 11 September 2003, the mental health review tribunal, notwithstanding the objections of the Home Secretary, made an order for B's conditional discharge, that is to say an order that he should be discharged subject to specified conditions, and that his discharge be deferred until the tribunal was satisfied that the necessary arrangements had been made to meet those conditions. The conditions were as follows:
"The establishment of a suitable care package as soon as possible, such a package to include:
A. Suitable hostel accommodation to be identified and willing and able to accept [the Claimant] within six months.
B. Identification of a Community Consultant Psychiatrist to act as RMO.
C. Appointment of CPN and Social Supervisor.
D. Patient's compliance with all proper requirements of the supervisory team.
E. Patient's continuing to take prescribed medication.
F. Patient's continuing to abide by restrictions on alcohol consumption and to comply with requests to submit to drug screening and alcohol testing if required."
In its reasons for its decision, the tribunal stated that the existing restraint against B's visiting Camden should remain. No date was fixed for a further hearing to review the satisfaction of those conditions that required to be complied with before B's discharge.
- The tribunal did not send a copy of its decision to Camden. Nor did anyone else.
- B remained at Avesbury House pending the satisfaction of the conditions referred to in the order of the tribunal and a further hearing at which the tribunal would consider whether they were satisfied.
- On 5 November 2003, Camden were informed of the result of the tribunal hearing when a social worker at Avesbury House telephoned to request a community care assessment. According to Mr Platts, because the previous assessment of needs was three months old, and the tribunal's decision had materially changed his circumstances, a further assessment of needs was undertaken. This began on 3 December 2003, when the care manager (presumably Richard Hutchinson) visited Avesbury House, and was completed by the social worker on 22 January 2004, and approved and signed by B on 18 February 2004.
- A ward round took place on 8 December 2003 at which a representative of Camden was present. The relevant part of the notes of the ward round read as follows:
"Richard Hutchinson, Camden Social Services, Camden Town CMHT completing comprehensive assessment regarding funding community placement. Attended ward round to obtain further details. I visited hostel with B, enjoyed visit. Allowed to smoke in room at hostel. Manager to contact Avesbury House to arrange an assessment of B. B met with Richard Hutchinson last week, dealt with some challenging questions. Information given to Richard Hutchinson at ward round regarding level of functioning and needs requirements. Brokerage team will assess Holtwhites Villa. To attend next CPA meeting."
- Patricia Shanahan from Holtwhites Villa assessed B and completed an assessment form dated 9 December 2003. She stated that he seemed to be very keen to live there, and had chosen a room that was provisionally allocated to him.
- On 14 January 2004, the placement at Holtwhites Villa was discussed with Camden's Care Trust Brokerage Manager, responsible for contracting with providers, and therefore also funding placements. According to Mr Platts:
"It was confirmed that Holtwhites Villa had de-registered in April 2003 and was now a housing service, funded by the London Borough of Enfield Supporting People Service. As such, it is no longer a service provided by social services, subject to registration and inspection which ensures standards of care. There was concern as to whether a social services department could purchase accommodation at such a place or whether it would be appropriate to do so. It was also agreed that a possible alternative registered care placement be identified."
- A CPA/section 117 meeting was held on 19 January 2004 "to review the progress made in relation to the discharge planning arrangements and to determine whether the conditions of his discharge have been met or whether further action is required …" It was attended by Mr Hutchinson of Camden's Community Mental Health Team and by Daniel Jackson, the manager of Holtwhites Villa. According to the minutes:
"… Mr Jackson confirmed that B had been assessed by the Adviser Patricia Shanahan. In broad terms that they have considered B to be a suitable candidate for their placement. There were a number of key areas which will need further work to address them. … Mr Jackson confirmed that B had been formally accepted by the hostel and all costings for his stay had been forwarded to the appropriate person at the London Borough of Camden.
It was noted, however, that Holtwhites Villa has not yet been recognised by Enfield Council as a supporting people provider placement. It would appear that this lack of recognition has been based on a technicality and that Enfield Council were due to visit in the very near future to address this issue and it was likely that they would recognise the hostel as an appropriate resource. It has also been noted, however, that Enfield Council are likely to want clients from the local area to access this resource in the first instance rather than clients from outside the Borough.
Mr Richard Hutchinson confirmed the position in relation to the social services in the London Borough of Camden. There was no disagreement that B will require out of area funding given his inability to return to the area of Camden as result of his index offence. Mr Hutchinson was shortly due to complete the community care assessment, but on the basis of the information he has obtained thus far and in discussions with B, it would appear that his needs could be appropriately met by a supporting people provider placement rather than a residential care home. If this was the case, placements for supporting people are generally required on a block contract and not individually which will have implications in relation to B's particular needs. Further liaison was required between the appropriate people in the Supporting People department in Camden to liaise with Enfield Council to solve the specific difficulties in relation to B's needs. Mr Hutchinson confirmed that he had spoken to Keesia Crew, the manager of the Supporting People department in Camden who was due to liaise with Pauline Ketlass in the Enfield Council department.
All those at the meeting agreed that B's needs could be appropriately met by the resources available at Holtwhite's Villa and that this was B's first choice in relation to a community placement. Some of the issues raised by Mr Jackson could be addressed during periods of increased day and overnight leaves to the hostel prior to his formal discharge. It was confirmed that further high level discussions between Camden and Enfield Council Offices needed to occur. The meeting agreed that specific time scales should operate in relation to these discussions to ensure that B was not kept waiting unnecessarily, and to adhere to the timescales imposed by the Tribunal which was next due to meet in approximately mid March 2004. It was, therefore, agreed that any information pertaining to B's case should be forwarded to the clinical team at Avesbury House by 16th February 2004.
CARE PLAN
1. Continue his current Care Plan to remain in place whilst he resides at Avesbury House, including monitoring of his mental state, compliance with medication, occupational therapy progress and community leaves.
2. Mr Richard Hutchinson to complete the community care assessment and forward it to the appropriate brokerage team, Camden Social Services.
3. Mr Hutchinson to communicate with the Manager of Supporting People Department in Camden, Keesia Crew, to ensure that she liaises with her opposite number in Enfield Council. Information regarding this to be fed back to the Avesbury House clinical team by 16th February 2004.
4. Ensure Camden Outreach have assessed B prior to reconvened Mental Health Review Tribunal in March 2004."
- Mr Hutchinson completed a draft Community Care Assessment Form on B on 22 January 2004. The information in it did not add materially to the other documents to which I have referred. It concluded that B required a supported housing setting, and not residential care. It did not specify Holtwhites Villa or any other placement as being an or the appropriate placement. It was sent to B for his consideration and agreement. He signed it on 18 February 2004. However, on the 27 January 2004, the care manager, Mr Hutchinson, went off on sick leave.
- On 5 February 2004, Mr Platts was informed that Enfield Supporting People would not fund the placement at Holtwhites Villa.
- Carol Chester, a forensic social worker at Avesbury House, wrote to Camden CMHT on 6 February 2004:
"… B was granted a conditional discharge in October 2003 and the clinical team at Amesbury house are currently pursuing accommodation for him. B cannot return to live in the Borough of Camden due to the Home Office imposing an exclusion zone and is therefore requested to reside in Enfield. A placement has been identified at Holtwhites Villa in Enfield and my colleague, Martin Pankhurst and I have visited this unit. The manager of the hostel has assessed and accepted B and all parties agree that this would be an appropriate placement in meeting B's care needs, however, we cannot proceed with this referral without the involvement from your department.
B had a Care Program Approach Meeting on the 19/1/04. Your colleague Richard Hutchinson attended and explained that funding had not yet been agreed. I am aware that Mr Hutchinson was due to visit the unit to assess its suitability in order to report back to Camden's brokerage department, but unfortunately has been on sick leave.
It would be helpful to know whether another social worker could be allocated to complete the work that Mr Hutchinson had started in the event he remains on leave."
- Between 5 February and 11 March 2004, Mr Platts discussed with Camden's brokerage manager the possibility of identifying a residential care placement which could be funded by social services. However, the assessment of need specifically stated that B did not need residential care.
- Ms Chester wrote again to Camden CMHT on the 24th of February 2004, advising them that Holtwhites Villa was keeping B's referral available until 14 March 2004, after which date it would need to consider other applicants. She said that, as Camden were aware, Avesbury regarded the placement as "most suitable for B's needs" and that they doubted that they would find something equivalent in the short-term. She offered to attend a funding panel in support of the application.
- On 8 March 2004, Holtwhites Villa was informed that the authority responsible for B was Camden, and that they had yet to visit Holtwhites Villa and determine funding.
- On 11 March, Mr Platts suggested to the Camden Town CMHT manager that a housing funded solution be identified and that advice from Camden's Housing Department be sought. On 15 March 2004, the housing support team manager at Camden advised that B could register for housing with Camden and then be referred to Enfield, or that he could register with Enfield. On 17 March 2004, the social worker at Avesbury House agreed to pursue an application to Enfield.
- B was concerned that he would lose the place that Holtwhites Villa was keeping available to him. In February his solicitors telephoned the office of the mental health review tribunal and asked for a date to be fixed for a further hearing of his application for discharge. On 19 March 2004, his solicitors wrote asking for an early date for that hearing. On the same date, they wrote to Camden Mental Health Management Unit, contending that Camden were under the duty to B under section 117 of the Mental Health Act 1983, stating that they understood that the place for him at Holtwhites Villa would be withdrawn unless Camden confirmed that it would fund it, and asking Camden urgently to clarify its position in relation to funding. His solicitors contended that Camden were in breach of section 117 and had infringed B's rights under Article 5 of the European Convention on Human Rights.
- Camden's Borough Solicitor replied by letter dated 26 March 2004. He pointed out that the London Borough of Camden had delegated all its mental health functions to the Camden and Islington Mental Health and Social Care Trust, on whose behalf he acted. He stated that the Barnet, Enfield and Haringey NHS Trust had carried out a care programme assessment of B, and the community care assessment carried out in January 2004 had identified a need for him to have supported housing accommodation. He stated that his instructions were that Holtwhites Villa had not been identified as the after-care service for B. He asserted that the question of funding was internal, and irrelevant to the Trust's duties under the relevant legislation.
- B's solicitors replied on 29 March 2004, threatening proceedings and asking the solicitor to make further inquiries as to the position in relation to Holtwhites Villa. Having ascertained that the placement there was at risk, they wrote again on 1 April 2004 asking that interim funding be approved immediately. The solicitor to Camden replied on the same date, again asserting that Holtwhites Villa had not been identified as an appropriate placement for B. B's solicitor spoke to Avesbury House. Carol Chester sent them a letter dated 2 April 2004, in which she confirmed that B had been assessed and accepted for a place there, that the clinical team at Avesbury House considered it to be suitable for his needs, that he wanted to go there, but that a decision on funding had yet to be agreed by Camden, the responsible authority under section 117. Her letter stated:
"In November 2003, the Community Mental Health Team in Camden were made aware that a potential hostel placement in Enfield had been identified. Since then, my colleague, Martin Pankhurst and I have been in liaison with both Camden and Enfield brokerage departments to ascertain who will be responsible for funding this placement. It is of concern to hear that the providers have now indicated their intention to withdraw the offer of a placement due to this funding not being resolved. Consequently, this will result in a further delay to B's discharge from hospital, as a new placement will need to be sought."
- Camden's care manager, Mr Hutchinson, was still on the sick leave. B's case was initially covered by the team manager, but on 29 March his case was re-allocated.
- Meanwhile, Mr Platts learnt of B's threatened judicial review proceedings. He decided that the most expeditious way of funding the placement would be to do so from the social services budget. A Camden care manager would have to visit Holtwhites Villa to confirm its suitability, and its management would have to agree to contract with Camden on its standard, or other agreed, terms.
- These proceedings were begun on 6 April 2004, seeking interim injunctive relief "requiring" the Defendant (sic) to approve funding for B on an interim basis or to provide the deposit of £3,000 required to secure his placement at Holtwhites Villa, a mandatory order that the Defendants fund the placement and compensation or damages under section 8 of the Human Rights Act 1998 on the grounds that the Defendants were in breach of the after-care duty owed to B under section 117, and had infringed his rights under Articles 5 and 8 of the European Convention on Human Rights. On the following day, Sullivan J directed an oral hearing of the application for interim relief.
- By letter dated 7 April 2004, Camden were informed that the reconvened tribunal hearing would take place on 26 April 2004, and the Community Mental Health Team was requested to send a representative to the hearing, or to submit a report.
- A social work report dated 7 April 2004 was prepared by Carol Chester and Martin Pankhurst of Barnet, Enfield and Haringey Mental Health NHS Trust. It stated that B had unescorted community leave of six hours on six days per week and of nine hours once a week. He utilised his unescorted community leave in the local area. The report contained further information as to the funding complications relating to the Claimant's placement at Holtwhites Villa. It stated:
"3.5 The Camden CMHT were notified about the suitability of the placement in November 2003. A further Community Care Assessment was made by Camden in December 2003, once again confirming that B requires a 'Supported Housing' placement (not residential care) and that in all likelihood, Holtswhite Villa could meet B's needs. A joint visit was arranged for Richard Hutchinson (Camden Care Manager) and Martin Pankhurst (NLFS Student Social Worker) to visit Holtswhite Villa for the purpose of Camden further assessing the placement suitability. However, this visit failed to occur due to Mr Hutchinson becoming ill.
3.6 The following three months has seen little progress in establishing further inroads into the Care Plan. This appears to be due mainly to a technicality over funding regulations.
3.7 To summarise, Holtswhite Villa is funded via 'Supporting People' monies (a government initiative to redirect housing benefit funds into Local Authority control as a way of funding and monitoring more appropriately the housing and support needs of vulnerable adults). B, if he were free to return to Camden, would have no difficulties accessing these monies and moving into a 'Supporting People' placement. However due to not being able to return to Camden, he has to seek accommodation elsewhere. Camden is unable to fund an 'SP' placement out of Borough as there are apparently no current protocols that would allow this. Camden has suggested that B register with Enfield Housing Department in the hope that he could then access LB Enfield 'SP' finances.
3.8 An application for housing registration in Enfield has been made and we are awaiting a response. There is however, a further complication in that Holtswhite Villa itself may not qualify for Enfield 'SP' funding support as it is a new project and missed a registration deadline with Enfield to access these monies.
3.9 All of this of course is of no help to B, who no longer needs to be residing in hospital. In trying to find a way round this, we have approached the Supporting People team (Pauline Ketlass) in Enfield who recognise that the Management Team at Holtswhite Villa (Patricia Shanahan) are "good providers with good outcomes". The Camden Brokerage Team (Trish Bonner who is responsible for out of borough placements) also recognise Holtswhite as having a track record of good quality care for this client group. The Camden Accommodation Team (Dave Fearon) have also advised us that Patricia Shanahan has a good reputation for providing care and support to this client group (severe and enduring mental illness).
3.10 We are in the frustrating position of having found a placement that the clinical team, the client and the representatives of Camden's specialist teams around housing needs, all find suitable, yet we are unable to move forward. Within the spirit of 'joined up thinking'. One would hope that his technicality could be resolved before the offer of the placement is withdrawn (a bed has been held since December 2003).
…
4.1 B has been very patient regarding the issues presented above and naturally at times has voiced his frustrations and anxieties regarding the process. B is aware of the potential for this placement offer to be withdrawn however; he is reluctant for the clinical team to consider exploring other options until a definite decision regarding funding has been given."
- A psychiatric report dated 16 April 2004 prepared by B's RMO for the tribunal also contains a history of developments since the previous tribunal hearing. His RMO stated:
"At (the CPA meeting held on 19 January 2004) it was confirmed that B had been accepted as a suitable candidate for Holtwhites Villa. The costing for his tenancy had been forwarded to the appropriate person in the London Borough of Camden. The hostel was undergoing some technical delays with regard to its formal recognition by the local council, although it was anticipated that this would be resolved in the very near future. Mr Hutchinson confirmed that B was entitled to funding in an out of borough placement, as a result of the exclusion zone, and that this would be met by the Camden services. The community needs assessment would be completed shortly. Mr Hutchinson confirmed he would liaise with the relevant people in his department and those at Enfield Social Services as necessary to facilitate the process. It was agreed that feedback would be given in the next month with regard to their progress.
At the ward round on 2nd February 2004, it was noted that the hostel had now been recognised as a supporting people placement by Enfield Council. At the ward round on 16th February 2004, at which it was agreed that feedback about the funding would be provided, it was noted that slow progress had been made and there remained an issue with the funding agreement. My social work colleagues have attempted to make regular contact with Camden Social Services to obtain details of the progress of the funding arrangements. At the ward round on 15th March 2004, it was noted that the vacancy at Holtwhites Villa was still available but clearly a decision was required soon, otherwise there was a possibility that the placement would be lost. No apparent resolution regarding the funding arrangements has yet been achieved.
In relation to community psychiatric supervision, internal discussions at NLFS were held with regard to the most appropriate forensic outreach team to provide supervision. Dr Bartlett, Enfield Outreach team is due to assess B's suitability for community supervision on 19th April 2004. Feedback regarding this meeting can hopefully be provided in oral evidence at the tribunal hearing.
- Under the heading "Opinion and Recommendations", the RMO said:
"I remain supportive of the Tribunal's decision in September 2003 that B fulfils the criteria for a deferred Conditional Discharge. However, I consider that B is appropriately detained in hospital at the current time, whilst the process of facilitating his discharge by meeting the conditions required for a community placement, as set out in the Tribunal decision, is completed. The imposition of the exclusion zone, necessitating B being found suitable hostel accommodation with a vacancy outside his original catchment area, has undoubtedly contributed to the time scales involved. At the current time, a suitable hostel placement, namely Holtwhites Villa, Enfield has been identified and a vacancy is available at present. There is, as yet, no agreement for the funding arrangements for this placement. B is due to be assessed by the Enfield Forensic Outreach team for his suitability for community supervision in the very near future. It is anticipated that should the team accept him, provision of a CPN and Social Supervisor can be facilitated. Should any additional information be forthcoming, this can be provided in oral evidence at the Tribunal hearing."
- Arrangements were made for a Camden social worker to visit Holtwhites Villa on 20 April 2004 to confirm its suitability. Between 21 and 23 April 2004, contractual terms were agreed between Camden and Holtwhites Villa.
- On 21 April 2004, Goldring J made an order requiring the First Defendant:
(1) to fund B's placement at Holtwhites Villa in the sum of £3,000 on the proviso that it was satisfied that it was suitable and it was willing to contract on Camden's standard terms; and
(2) to use its best endeavours to resolve those matters before the tribunal hearing fixed for 26 April 2004.
- The tribunal met again on 26 April 2004. According to Mr Platts, by the time of the hearing all of the arrangements for after-care services for which Camden were responsible were in place. The tribunal repeated its decision that B should be discharged on satisfaction of the conditions set out in its order dated the 11 September 2003, and ordered that it would reconvene on 21 June 2004 to review its decision and its implementation. It gave as its reasons the following:
"The Tribunal expressed its concern at the delay in implementing their decision of the 11th of September 2003 which was attributable to the absence of the funding agreement. And we note that suitable accommodation has been kept available since December 8, 2003 and will shortly be used for overnight leave following the authorisation of the Home Office. We hope that all conditions will have been complied with before the 21 June 2004."
- On the same day, 26 April 2004, B's RMO made a written request to the Home Office for a grant of overnight leave for B to spend initially 2 individual nights per week at Holtwhites Villa, progressing to up to 3 consecutive nights per week, "To facilitate his transfer and rehabilitation into a community placement". Leave was given by the Home Office by letter dated 14 May 2004.
- A CPA/section 117 meeting was held on 21 June 2004 to finalise the arrangements for B's discharge to Holtwhites Villa under the care of the Enfield Outreach Team. Final clarification was still required from Camden CMHT in relation to the funding arrangements for the hostel. It was reported that B had continued to utilise overnight leaves to the hostel, up to three nights per week, and that those had been completed successfully. He had initially stayed at the hostel for only 30 minutes at a time, but had progressively been able to spend increasing periods of time there, ultimately managing overnight leaves. His new general practitioner had been identified, and it was confirmed that the hostel were satisfied with his progress and pleased to accept him. Enfield Outreach Team had completed their assessment and were in agreement with his discharge to the hostel. A representative of Camden Town CMHT confirmed funding for B to remain at Holtwhites Villa. A care plan was agreed, which included obtaining written confirmation from the tribunal of its agreement to B's discharge.
- On 24 June 2004, Mitting J refused permission to apply for judicial review on the grounds that the claim had either become academic or was unsustainable: funding had been agreed for the placement of B at Holtwhites Villa, and the Defendants could not be held responsible for any breach of B's Convention rights.
- On 2 July 2004, the tribunal confirmed that the conditions specified in its decision of 11 September 2003 had been met to its satisfaction. B moved to Holtwhites Villa 10 days later, on 12 July 2004.
- On 2 August 2004, application was made to Newman J for reconsideration of the refusal of permission to apply for judicial review. Funding for the renewed application had been withdrawn, and counsel appeared on behalf of B to seek an adjournment. Newman J refused the adjournment and refused permission. So far as the claim for injunctive relief was concerned, it was no longer necessary because Camden had agreed funding and B had been conditionally discharged to reside at Holtwhites Villa. In relation to the claim for damages, he drew attention to the judgment of the Court of Appeal in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, [2004] 2 WLR 603, at [81], where the Court referred to the need, before an application for permission to apply for judicial review was made, to complain to the Parliamentary Commissioner or to the local government ombudsman. That had not been done.
- B appealed to the Court of Appeal against Newman J's refusal of permission. On 24 November 2004, Maurice Kay LJ granted permission to apply for judicial review, stating as his reasons:
"In the particular circumstances of this case I consider it to be arguable that the claim for damages should be allowed to keep the application for judicial review in being. It may be that Anufrijeva is not an impediment."
- The claim for judicial review was heard by me over two days, on 19 and 20 April 2005.
The Claimant's contentions
- On behalf of B, Mr Bowen put before the Court the following legal propositions:
(1) The duty under section 117(2) to provide aftercare services is a specific, as opposed to a target, duty.
(2) The duty includes the provision of accommodation, from residential accommodation through "supported housing" to ordinary housing.
(3) The duty to provide services under section 117(2) crystallises either (a) when an assessment of need under the CPA and/or section 47 NHSCCA identifies a need for section 117 after-care services; (b) when a condition placed upon a restricted patient's discharge by a Mental Health Review Tribunal requires the provision of a service under section 117.
(4) There is an ongoing duty to assess a detained patient's needs for after-care services under the CPA throughout a patient's admission to hospital. Moreover, a specific duty to make such an assessment under section 47 of the National Health Service and Community Care Act ("the NHSCCA") and the CPA crystallises (a) where a local authority is requested to make such an assessment by a member of the patient's multidisciplinary treating team and/or (b) where the patient's responsible medical officer has concluded that the patient no longer requires to be detained.
(5) The duty is owed by the section 117 authorities in the area in which the patient was 'resident', even if there is no prospect of his returning to that upon discharge.
(6) The extent of the duty under section 117 is to use "best endeavours"; it is not an "absolute" duty.
(7) An unreasonable delay in the discharge of either (a) the duty to assess for aftercare needs under section 47 NHSCCA and/or the CPA or (b) the provision of section 117 services, which a patient has been assessed as requiring, is an unlawful public law breach.
(8) Where the section 117 authority is in breach of its duties of assessment or to provide an after-care service under section 117, which has the foreseeable consequence of preventing a patient's release from detention, it acts incompatibly with the patient's rights under Article 5(1) and/or Article 8 and unlawfully for the purposes of section 6 Human Rights Act 1998. It follows that he is entitled to damages for the infringement of his Convention rights.
(9) The fact that the section 117 authority is not the detaining authority does not prevent its being liable for a breach of section 6 of the Human Rights Act 1998.
The proposition in (6) is well-established and was common ground.
- On the facts, Mr Bowen submitted:
(1) Camden had been under a duty to monitor B's after-care needs while he was at Avesbury House, and so could not excuse any delay in fulfilling its duty on the ground that it did not know of the tribunal's decision of 11 September 2003 until it was notified of that decision on 5 November 2003.
(2) On any basis, Camden owed a duty to B under section 117 to provide after-care, but had delayed in fulfilling its duty.
(3) Camden were not entitled to delay agreeing funding for Holtwhites Villa while it dealt with funding issues. Camden were unquestionably B's section 117 authority, and should have accepted its duty to fund the placement immediately, although it could of course have looked for reimbursement to central government or to the London Borough of Enfield.
(4) Camden's delay led to delay in B's conditional discharge. He was detained for longer than he should have been. The period of his unnecessary detention involved a breach of his rights under Arts 5 and 8 of the Convention, for which Camden is liable in damages.
- Mr Bowen's reliance on section 47 of the NHSCCA required an amendment to the claim form. At the hearing, I reserved the question whether permission to amend should be given. Because this allegation was late, it was not addressed in Camden's evidence, and I am reluctant to grant it. However, partly because it seems to me to make no difference to the result of this claim, and because it is not clear that additional evidence would have been filed by Camden, I have decided to grant permission, subject to the filing of a duly amended claim form.
The Defendants' contentions
- On behalf of the Defendants, Mr Lewis submitted:
(1) A section 117 authority owes no duty to a patient under that section before he is discharged from detention and leaves hospital.
(2) Before a patient is discharged and leaves hospital, a section 117 authority has a discretion to make arrangements for the provision of after-care services to be provided after his discharge and departure from hospital. That discretion must be exercised lawfully, and the exercise of the discretion may be challenged on ordinary public law principles, but it is not the same as the duty imposed by section 117.
(3) Nonetheless, in the circumstances of this case, Mr Lewis accepted that the lawful exercise of that discretion required Camden to use reasonable endeavours to take steps to enable them to fulfil their duty under section 117.
(4) There was no occasion for the exercise of that discretion before Camden were informed of the decision of the tribunal of 11 September 2003.
(5) (Subject to his objection to the amendment of the claim) the duty imposed on local authorities by section 47 of the NHSCCA arises only when it appears to a local authority that a person may be in need of community care services. A person who is detained in hospital under the Mental Health Act 1983 is not in need of such services.
(6) On the facts, Camden did use their best endeavours to provide suitable accommodation for B. There had been no unexplained or undue delay. Camden were entitled to a reasonable time to investigate and to arrange funding for his placement. Camden had not been in breach of its statutory or other duties.
(7) Any such delay as there was on Camden's part did not delay B's discharge, because other requirements for his discharge had not been met.
(8) Even if Camden did cause any period of B's detention, that detention was never unlawful and did not infringe his Article 5 rights. In any event, Camden were not the detaining authority and was not liable for damages for breach of Article 5 or Article 8.
(9) Even if there was a potential liability for damages, it was unnecessary and inappropriate to award damages on the facts of this case, where there was no evidence that B had suffered any significant distress as a result of his detention.
The obligation imposed by section 117
- So far as is relevant Section 117 as amended is as follows:
"(1) This section applies to persons who are detained under section 3 above, are admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and whether or not immediately after so ceasing leave hospital.
(2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject."
- It is common ground that B was a person detained under one of the statutory provisions mentioned in subsection (1), that Camden were in relation to B authorities referred to in subsection (2) (to which I have referred as section 117 authorities), that the provision of accommodation such as that at Holtwhites Villa is an after-care service within the meaning of subsection (2), and that the duty imposed by section 117 is not an absolute duty, but a duty to use best or reasonable endeavours. The issue between the parties as to the effect of section 117 is whether the duty imposed by subsection (2) arose before B's discharge, and if so when and why.
- In my judgment, the terms of section 117(1) are clear. The duty under subsection (2) is only owed to a person who ceases to be detained and leaves hospital. If so, in the present case, the duty could not have arisen until after the decision of the tribunal that the preconditions for B's discharge had been satisfied and that he was conditionally discharged, and as a result of that decision he left Avesbury House. Mr Bowen submitted that a patient who has been the subject of a provisional decision of a tribunal that he be conditionally discharged (i.e. a decision like that of 11 September 2003 in the present case) has ceased to be detained within the meaning of section 117. I am unable to accept that submission, which is inconsistent with the terms of the section.
- This conclusion, however, creates a practical problem. In the case of B, as in many other cases, his safe discharge into the community required there to be suitable supported accommodation and other community services immediately available. How can those services be identified and made available if a section 117 authority is under no duty to arrange or to provide them before discharge? Practicality requires section 117 authorities to be under a duty before discharge, at least in cases where a tribunal has provisionally decided that a conditional discharge is appropriate, as the tribunal did in respect of B on 11 September 2003.
- It is not surprising that these considerations have troubled the Courts. For present purposes, it is sufficient to refer to the judgment of Scott Baker LJ (with which the other members of the Court of Appeal agreed) in R (W) v Doncaster [2004] EWCA Civ 378, [2004] 1 MHLR 201. He cited paragraphs 20 and 29 of the judgment of Lord Phillips MR in R (K) v Camden & Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198, in which Lord Phillips endorsed the concession made by counsel for the defendant in that case as to the duty of a section 117 authority before the discharge of a patient that:
"(a) a health authority has the power to take preparatory steps before discharge of a patient; (b) it will normally be the case that, in the exercise of its discretionary power, an authority should give way to a tribunal decision, and should use reasonable endeavours to fulfil the conditions imposed by such a decision, in so far as they relate to medical care; (c) failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion."
- Neither Lord Phillips MR's endorsement of that concession, nor its citation with evident approval in W is authority binding on me: in K the point was not the subject of controversy, and in W Scott Baker LJ stated at [49] that the issue as to when the section 117 duty arises was irrelevant to the outcome of the appeal. However, their judgments were considered expressions of the law by the Court of Appeal, and in my judgment I should follow and apply them. Curiously, the practical effect of the concession in K is that a section 117 authority is under a similar duty to use reasonable endeavours in relation to the exercise of its discretion before discharge as it has under section 117 after discharge. This conclusion is consistent with what was said by Lord Bingham in H in the House of Lords [2003] UKHL 59, [2004] 2 AC 253, at [29].
- There is no authority on the issue whether a section 117 authority has a duty to monitor the progress in hospital of a patient for whom it would be responsible were he to be discharged or on the related question whether the detaining hospital or anyone else is under a duty to inform the section 117 authorities of the need for them to consider the exercise of their discretion to take preparatory steps for the fulfilment of their duty under that section. In this connection, I note that the duty imposed on hospital trusts by section 2 of the Community Care (Delayed Discharges etc.) Act 2003 does not normally apply to a patient detained under the Mental Health Act 1983 (and did not apply to B), by reason of regulation 3(3)(b) of the Delayed Discharges (England) Regulations 2003 and the definition of "mental health care" in the Delayed Discharges (Mental Health Care) (England) Order 2003.
- It seems to me that it is inconsistent with the lack of any express duty imposed by section 117 in respect of a detained patient that a section 117 authority should be under a duty to monitor the condition of such patients with a view to deciding whether there is occasion to exercise their discretion to arrange for the provision of such services in case he is discharged. Where a patient is represented, as B was before the tribunal, one can expect his solicitor to inform the section 117 authorities of the decision; and the hospital should do so too.
- Mr Bowen, in his comprehensive review of authority, referred me to a number of Department of Health circulars relating to the Care Programme Approach for patients suffering from mental illness. They state that social services authorities will consider the possible community care programme required for such patients while they are still in hospital: see, e.g. paragraph 5 of Joint Health/Social Services Circular HC(90)23/LASSL(90)11, and paragraphs 10 and 14 of LASSL(94)4HSG(94)27 entitled Guidance on the Discharge of Mentally Disordered People and their Continuing Care in the Community. None of them is clear as to the statutory basis for these statements. In the end, I do not think that the contents of these departmental circulars go beyond the effect of the concession made by Camden, based on that accepted in K, as to the exercise of its powers before B's discharge.
Section 47 of the NHSCCA
- Turning to section 47 of the NHSCCA, it is curious that it has not featured in any of the authorities on the effect of section 117 in circumstances such as the present. So far as I recall, it was not referred to at first instance in W, and it is not referred to in the judgments in the Court of Appeal in that case or in the judgments K. It would appear to have been overlooked in those cases, as it was when these proceedings were begun, even though it is referred to in the discussion of section 117 in Richard Jones's Mental Health Act Manual in both the 8th and 9th editions. It is noticeable that the Department of Health Circular HSC 2000/003, LAC (2000)3 "After-Care under the Mental Health Act 1983" does not refer to it. Services which a local authority may provide or arrange to be provided under section 117 are "community care services" within the meaning of section 47. Section 47(1) provides:
"(1) …, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority—
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
…
(5) Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency."
- Mr Lewis submitted that section 47(1) refers to immediate needs, and not to needs that may arise in the future. Mr Bowen submitted that section 47 is not so limited. In this connection, it must be borne in mind that section 47 is not restricted to services that may be provided under section 117. It applies also to services that may be provided under Part III of the National Assistance Act 1948, or section 45 of the Health Services and Public Health Act 1968 (arrangements for the benefit of old people) and section 21 of and Schedule 8 to the National Health Service Act 1977. Parliament could not have intended local authorities to have to devote their resources to making assessments of the possible future needs of persons for such services. Furthermore, subsection (2) requires a local authority, on completion of its assessment, to "then decide whether his needs as assessed call for the provision by them of such services". The words "then" and "call for" show that Parliament envisaged a need at the date of assessment. The words "may be in need" were used in subsection (1) because, necessarily when the assessment is carried out, it has not yet been ascertained whether the person in question has a need for services. They denote possibility, not futurity. They do not refer forward in time.
- In my judgment, the words "a person … may be in need of such services" refer to a person who may be in need at the time, or who may be about to be in need. A detained patient who is the subject of a deferred conditional discharge decision of a tribunal, which envisages his conditional discharge once section 117 after-care services are in place, is a person who "may be in need of such services", since if such services are available to him he will be discharged and immediately need them. Whether a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing is an issue I do not have to decide in the instant case, but I incline to the view that he is.
- However, the duty under section 47 does not arise until it "appears" to the local authority that a person may be in need, and it cannot appear to it that he may be in need unless it knows of his possible need. It is presumably for this reason that the Community Care (Delayed Discharges etc) Act 2003 was enacted. It follows that section 47 does not impose an obligation on a local authority to monitor a patient detained in hospital in case he should at some later time be in need. The decision of the local authority under section 47(1)(b) whether his needs call for the provision of services falls to be made by reference to the result of the assessment it has carried out. It follows that section 47 cannot require the local authority to monitor the situation of a patient to consider providing for his changed needs.
- Paragraph 30 of the Guidance issued by the Secretary of State under section 7(1) of the Local Authority Social Services Act 1970 ("LASSA") states that in exercising its judgment under section 47(1) as to whether a person appears to be in need of community care services councils should set a low threshold. It is directed at the threshold for an appearance of need, not with the question when there is an apparent need to which section 47 applies.
- Mr Bowen also relied on section 47(5). However, B was not in urgent need of community services before the second tribunal hearing. By that date, Camden had completed their second assessment, which had been signed by B on 18 February 2004.
The Claimant's allegations of the Defendants' delay: discussion
- I preface my findings by commenting that in a case that is correctly before the Court in which it is alleged that delay was unreasonable, unless the costs involved are disproportionate to the claim, the Court should have before it copies of the authority's relevant correspondence and memoranda. One can then better identify what delays occurred when (for example, in obtaining replies to correspondence) and who was responsible for it. Those documents were not produced in this case, and no order for disclosure was sought. The result is that the court must make a guesstimate.
- Camden carried out an assessment of B's need for after-care services before the tribunal hearing of 11 September 2003: I refer to the report dated 27 August 2003. During the summer of 2003, Camden took steps to identify a suitable placement for B in the community, but he either rejected them or was rejected by them: see paragraphs 8 and 9 above. There was no breach by Camden of its duties under section 117 or section 47 before the tribunal hearing of 11 September 2003.
- It follows from my conclusion that Camden were under no duty to monitor B's progress or the result of his tribunal hearing that they were under no duty take any steps in consequence of the decision of the tribunal of 11 September 2003 until they were informed of it, i.e. on 5 November 2003. It seems to me to be unreasonable to impose on section 117 authorities the duty to ascertain the result of a tribunal hearing at which they are not represented. Notification of the decision can and should be given by the hospital and by the solicitor acting for the patient, if he is represented. I understand that the written tribunal decision is only sent to parties who appear before it. Consideration should be given to including the section 117 authorities in any case in which a deferred conditional discharge is ordered.
- Until 5 November 2003, Camden did not know of B's need for after-care services to be arranged for him. At that point, as they accept, they were effectively under a duty to ascertain whether a suitable placement could be provided for him that would satisfy the condition A of the tribunal's order. Camden would themselves have to assess the suitability of a proposed hostel place. They were also entitled to have regard to the period of time envisaged by the tribunal for the satisfaction of the conditions of its order, i.e. 6 months from September 2003.
- On the face of it, the time available for Camden to identify a suitable placement and to arrange for it to be available to B, i.e., some 4 months from 5 November 2003, was adequate for that purpose. I therefore have to examine what reasons are put forward for the delay in Camden's agreeing to fund B's placement at Holtwhites Villa, which they subsequently accepted was suitable for B, until about 20 June 2004.
- In Carol Chester's letter of 2 April 2004 and in her report of 7 April 2004, she stated that Camden had been notified of the suitability of Holtwhites Villa in November 2003. The contemporaneous documents do not substantiate this, and I understand Camden to dispute it, but I do not think it matters. It is clear that by 8 December 2003 Camden knew that Holtwhites Villa was considered by the staff at Avesbury House to be a suitable placement, as a result of Mr Hutchinson's attendance at the ward round.
- A number of reasons are put forward for the delay, apart from the time-scale envisaged by the tribunal's decision of September 2003. First, there were the complications arising from the fact that the placement was out of area. That led to a question as to funding: whether the placement would be funded by Camden, the section 117 authority, or by Enfield, the local authority for the area in which Holtwhites Villa was situated and where B had lived since 1998, or from central government funds. Mr Bowen submitted that since Camden were the undisputed section 117 authority, it was not entitled to delay discharging its duty under that provision while it considered the source of funding: it could and should have immediately sought to fulfil its duty, and could have sought reimbursement, if available, subsequently.
- In my judgment, in circumstances such as those of the present case, it is unrealistic and wrong to require section 117 authorities to act without exploring funding issues. Resources are limited, and any authority is entitled to consider whether a suggested placement would involve an efficient use of its resources, and therefore whether there is a possibility of that placement being funded by central government or by another authority: see paragraph 59 of the judgments of the Court of Appeal in W. In this connection, I note that Joint Health/Social Services Circular HC(90)23/LASSL(90)11 states, at paragraph 6 (with italics added):
"It will be for relevant health and social services staff to decide whether the resources available to them can enable acceptable arrangements to be made for treating specific patients in the community."
To like effect is the statement of Lord Phillips MR in K at [29], again with italics added:
"In my judgment section 117 imposes on health authorities a duty to provide aftercare facilities for the benefit of patients who are discharged from mental hospitals. The nature and extent of those facilities must, to a degree, fall within the discretion of the health authority, which must have regard to other demands on its budget."
- Furthermore, it is to be noted that in Brand v The Netherlands (application 49902/99), paragraphs 64 and 65, the European Court of Human Rights accepted that funding is a relevant consideration in the determination of the issue whether there has been a breach of Article 5.
- At the relevant time, Holtwhites Villa was not the only possible placement for B; indeed, he had rejected one possible placement and his expressed views may well have led to his rejection by another. Moreover, the tribunal's order of 11 September 2003 indicated that adequate time was available to investigate funding issues. It is apparent that for a number of reasons the issue of the funding of B's placement at Holtwhites Villa was far from straightforward.
- That is not to say that an authority may drag its heels while considering questions of funding. They have to be considered and resolved with reasonable expedition, and, if reasonably possible, so as not to delay a patient's discharge.
- The second cause of delay was Mr Hutchinson's illness. I did not understand Mr Bowen to suggest that it was irrelevant to the issue whether Camden used reasonable endeavours (which involves acting with reasonable expedition). Again, some delay is explicable on this account; but an authority, particularly one as substantial as Camden, should be able to substitute one member of staff for another, particularly where a failure to do so may lead to the unnecessary detention of a patient.
- Mr Bowen criticised Camden's decision to carry out a second assessment of community care needs. I could only uphold that criticism if it were shown that Camden could not reasonably have made that decision. I do not have the material before me to justify such a conclusion. Moreover, the second assessment included a materially different statement of need for a residential placement.
- Some delay was caused by B's own delay in signing the second community care assessment form, which, having been sent to him on or presumably shortly after 22 January 2004 (Mr Hutchinson went off sick on 27 January), he did not do until 18 February 2004. That was perilously close to the expected date of the next tribunal hearing.
- Nonetheless, there was a lack of effective action on the part of Camden's brokerage team following the ward rounds of 8 December 2003 and 19 January 2004. In addition, there is no good explanation for the lack of reaction on the part of Camden to Carol Chester's letter of 6 February 2004, reinforced by her letter of 24 February. Neither letter is referred to in Mr Platts' witness statement of 2 February 2005. I can see no reason why Camden could not have visited and assessed the suitability of Holtwhites Villa and resolved funding and contractual issues by the middle to the end of March 2004. The speed with which such matters can be dealt with is demonstrated by the very short time taken to deal with the terms of the contract between Camden and Holtwhites Villa after Goldring J's order of 21 April 2004.
- As Mr Lewis pointed out, however, it does not follow that any such delay delayed B's discharge from detention. The other pre-conditions to his conditional discharge stipulated in the tribunal's decision of 11 September 2003 also had to be met, namely the identification of a Community Consultant Psychiatrist to act as RMO and the appointment of a CPN and Social Supervisor. In addition, the authorisation of the Home Office was required for overnight leave in order to assess B's experience of staying at Holtwhites Villa. Camden contend that by the date of the second tribunal hearing, on 26 April 2004, Camden had done all that it had to do. It had accepted Holtwhites Villa as suitable, and had assured funding. At that date, B's community supervision had not yet been identified, as shown by his (Avesbury House) RMO's report of 16 April 2004, according to which B was due to be assessed for suitability for community supervision by Enfield Outreach Team on 19 April 2004. Leave for overnight leave was not sought until the day of the second tribunal hearing (presumably, immediately after the decision) and not obtained until 14 May 2004. It followed that the delay after 26 April could not be laid at Camden's door.
- B's case implies that before 26 April 2004, the Home Office would have granted him overnight leave to enable him to stay at Holtwhites Villa in sufficient time for him to be able to visit for a period of at least 3 weeks, which was the period of assessment envisaged by it in its letter to B's solicitors of 2 April 2004. Only after completion of that period of assessment could Holtwhites Villa and therefore the tribunal be confident that the first condition of the order of 11 September 2003 was satisfied. The chronology after 26 April 2004 shows that it took some 3 weeks to obtain leave from the Home Office, and it was a further 12 days before overnight leaves began. There is no reason for me to assume that these matters would have been dealt with more expeditiously if Camden had assured funding earlier than it did. It follows that only if Camden had resolved funding and suitability issues some 2 months before 26 April 2004 would the tribunal been able to discharge B on that date. B has not shown that Camden should have approved Holtwhites Villa and assured funding at such an early date. It follows that Camden is not responsible for any delay before that date.
- Mr Lewis also relied on the fact that it appears that it was not until after 26 April 2004 that conditions B and C of the tribunal's order of 11 September 2003 were satisfied. However, there is an element of chicken and egg in this point. There would be little point in making the necessary arrangements for a community RMO, CPN and social supervisor convenient to Holtwhites Villa unless B were to reside there; and that was uncertain until Camden had approved it as suitable for B and had agreed to fund the placement. Thus it does not follow from the fact that the necessary arrangements had not been made by 26 April that they would not have been made earlier if Camden had acted more expeditiously. The difficulty here is that there has been no real exploration of the relevant facts, but I suspect that it was this consideration that led the tribunal on 26 April 2004 to attribute the delay in the implementation of its earlier decision to the absence of a funding agreement and not to delay in making the necessary arrangements for other aspects of community care.
- What of the period following the second tribunal hearing? The evidence before me does not show that, if funding for Holtwhites Villa had been in place well before 26 April 2004, but not long enough for it to be possible to demonstrate to the tribunal that the conditions of its first order had been satisfied, the adjourned hearing of 2 July 2004 would have been brought forward.
- It follows that B has not shown that Camden's delay led to any delay in his discharge from detention.
Damages for delay in discharge from detention
- I heard full argument on this issue, which in the event does not arise for decision, and I shall therefore set out my conclusions.
- In W, the Court of Appeal considered the question whether a social services authority which is in breach of its duty under section 117 prolonged the detention of a patient in hospital was liable to the patient for having caused a breach of his rights under Article 5. At [68] and [69], Scott Baker LJ said:
"68. Mr Jay submits that even if there was a breach of Article 5 on the facts Mr Gordon is shooting at the wrong target in seeking to recover damages from the Respondent. He submits that the hospital detaining W could not have acted differently under domestic law. It is not logical, he argues to be unable to proceed against the detaining authority and yet recover damages against a third party. The true remedy against a s.117 body is judicial review and not damages. He further submits that the Martin v Watson does not extend to false imprisonment: see Davidson v Chief Constable of Wales and another [1994] 2 All ER 597. Just as the claimant in that case was imprisoned without a remedy, so it would be with W.
69. I can see the force of these arguments. I do not think that W is able to identify the respondent as a public authority liable for his detention under Art 5. But I do not think the case ever gets as far as this because in my view the respondent did nothing to cause the unlawful detention of W. It neither knowingly tried to nullify the decision of the tribunal nor failed to use its best endeavours to implement the conditions it had directed."
Neither of the other members of the Court of Appeal specifically referred to this issue, but they both agreed with the judgment of Scott Baker LJ. The statement of the Scott Baker LJ was self-evidently obiter, and Mr Bowen submitted that I should not follow it. I consider that I should do so, not only because it was the considered opinion of the Court of Appeal but also because of the earlier consistent decision of Crane J in R (A) v Secretary of State for the Home Department [2003] 1 WLR 330, and the dictum of Buxton LJ K at [49].
- Furthermore, in the present case, B was never detained in circumstances in which the Winterwerp requirements (helpfully summarised in H in the Court of Appeal at [29]) were not satisfied. The judgments of Simon Brown LJ and Laws LJ in Cawser v Home Secretary [2003] EWCA Civ 1522, [2004] 1 PLR 166 are inconsistent with the proposition that Camden's breach of its duties under section 117 involves liability for an infringement of Article 5.
- It follows that, even if Camden had been in breach of its duties to B under section 117 or section 47, and that breach had prolonged his detention under the Mental Health Act 1983, Camden would not have been liable to damages under sections 6 and 8 of the Human Rights Act 1998.
- Mr Bowen sought to avoid the effect of Scott Baker LJ's judgment in W by contending that Camden's defaults had also caused an infringement of B's rights under Article 8. In his skeleton argument, he submitted:
"The detention of a person suffering mental disorder in a hospital constitutes an interference with the patient's right to respect for private life protected by Article 8(1), in that it may adversely affect his 'physical or psychological integrity', his right to personal development and his right to establish and develop relationships with other human beings and the outside world: see Pretty v United Kingdom, (2002) 35 EHRR 1, §61"
- Article 8 is the vaguest of the Convention rights, and is not necessarily engaged simply because another, specifically applicable right (here, that under Article 5) is unavailable. If only the detainor is liable under the Human Rights Act 1998 for infringement of Article 5, I do not see why any different rule should apply to an alleged infringement of Article 8 consisting of an infringement of liberty. I note that in W counsel for the claimant did not suggest that any different rule applies: see the judgment of Scott Baker LJ at [67]. It follows that Camden are not liable to B for any infringement of his rights under Article 8.
Damages
- In view of my above conclusions, it is strictly unnecessary for me to consider this issue, but since I heard argument on it I shall state my conclusions shortly.
- Mr Bowen submitted that if I found Camden liable to B, I should order it to pay damages to be assessed. If I had found it liable, I should not have made that order: I would have assessed damages on the evidence before me: c.f. the comments of Lord Bingham in R (Greenfield) v Home Secretary [2005] UKHL 14, [2005] 1 WLR 673 at [30], which mutatis mutandis apply equally to the present claim.
- There is no evidence that B suffered any significant distress as a result of the alleged prolongation of his detention in Avesbury House. The social report of 7 April 2004 states only that he had "been very patient and naturally at times has voiced his frustrations and anxieties regarding the process". From August 2002 he had had unescorted leaves, according to the social work report of 7 April 2004 of six hours on six days per week and of nine hours once a week, and after 26 May 2004 he had overnight leaves to Holtwhites Villa. I have no witness statement from him on the effect of events (or lack of action) during the period in question. I referred to the importance of contemporaneous evidence of distress or suffering in KB [2003] EWHC 193 (Admin), [2004] QB 936 at [73].
- In these circumstances, and bearing in mind the speech of Lord Bingham in Greenfield, especially at [19], as Mr Bowen sensibly conceded, any award of damages for the infringement of B's Convention rights would have been modest. So far as Article 5 is concerned, if any award of damages in addition to the finding of infringement was appropriate (which I doubt), I would not have awarded more than £1,500. I would not have awarded damages for the alleged infringement of B's Article 8 rights.
Conclusion
- For the reasons set out above, the claim for judicial review will be dismissed.
- There are a number of comments I wish to make about proceedings such as the present.
- First, if the events to be considered and their documentation are of any complexity, it is essential that the court be provided with a chronological bundle of contemporaneous documents. In the present case, the bundle provided by the Claimant distributed reports and memoranda in different places, so that it was at best confusing and at worst impossible to analyse events from those documents. Much time was wasted as a result of the lack of a simple comprehensive chronological bundle.
- Secondly, it is important that the legal and factual issues be identified in good time before the substantive hearing. In the present case, documents were added to the trial bundle by the Claimant at a late stage. They led to new factual issues being raised. The issues under section 47 were raised late, and in consequence were not addressed in Mr Lewis's skeleton argument. If I had reached the provisional conclusion that those issues were crucial to the result in these proceedings, I should have been far less willing to give leave for them to be raised. Counsel should consider whether the issues have been adequately identified, and if there is any doubt consideration should be given to their being pleaded.
- The prosecution of these proceedings after B's conditional discharge to Holtwhites Villa was costly in terms of legal fees and court time. If there had been the timely greater analysis and preparation that I have referred to, the costs would have been even greater. The legal and factual issues were complex, and this judgment has required considerable judge time. It has been apparent since July 2004 that any award of damages would be modest, and it could not have justified the costs of the continuation of the proceedings. A finding of breach of B's Convention rights would have given him some satisfaction, but at considerable cost to the public purse.
- These considerations amply confirm the wisdom of the observations of the Court of Appeal in Anufrijeva at [80] and [81], to which I referred above.
MR JUSTICE STANLEY BURTON: My judgment has been distributed and I am grateful to counsel for their suggested corrections. In particular, Mr Kovats's legal eye for typos.
For reasons set out in it, the claim is dismissed.
MR LEWIS: My Lord in that case I will, on this occasion, be asking for an order that the claimant pays the costs. As he is legally aided, if your Lordship should make an order your order will be that the claimant is to pay the defendant's costs with the determination of liability to pay such costs. If so, then there is no further application.
MR JUSTICE STANLEY BURTON: It is the appropriate order in such cases.
MR LEWIS: Given the way these proceedings have been conducted, in my submission, it is the appropriate order.
MS GERRY: I hope your Lordship has had an opportunity to see the note which Mr Bowen prepared, I apologise that it was e-mailed last night. Essentially, my Lord, obviously we cannot resist the defendant's costs in this case.
MR JUSTICE STANLEY BURTON: So be it.
MS GERRY: If I could hand up Mr Bowen's note (handed) we also seek permission to appeal in this case.
MR JUSTICE STANLEY BURTON: Have other counsel seen this?
MR LEWIS: Yes.
MS GERRY: If I can briefly highlight the grounds in which the claimant seeks permission to appeal. Essentially, the claimant seeks permission both on the real prospect of success and also for other compelling reasons; namely the wider public interest of this case. My Lord, the extent of the duty under section 117 of the Mental Health Acts and section 47 of the National Health Services Community Care Act, and the interaction of Article 5 is of fundamental importance to patients who are detained under the Mental Health Act. Your Lordship should see in the note that Mr Bowen has set out six grounds in which he seeks permission to appeal in this case.
The first thing that Mr Bowen does is highlight the fact that there have now been two decisions in the European Court of Human Rights. One is Stork v Germany(?) on 16th June 2005 and the other is Calarnis v United Kingdom(?). Both of those cases were so recent that unfortunately they were not able to be raised at the hearing in this case.
MR JUSTICE STANLEY BURTON: I do not know if I was sent details of them after the hearing, was I?
MS GERRY: My Lord, it is my understanding that there were no submissions made on the basis of either of those cases.
MR JUSTICE STANLEY BURTON: No, after the hearing and before the judgment was handed down. There was no reason why they could not have been brought to my attention.
MS GERRY: They were not available in time for submissions to be made on them and the claimant's submissions are that these cases are relevant and they now should be considered by the Court of Appeal. Essentially in Stork v Germany for the first time the European Court has recognised that there are positive obligations under Article 5.
MR JUSTICE STANLEY BURTON: There are what obligations?
MS GERRY: Positive obligations under Article 5 concerning the provision of treatment within the community. In Calarnis it was declared inadmissible, the court left open that the letter of obligation should arise in their provisions of treatment in the community.
MR JUSTICE STANLEY BURTON: If there are authorities, particularly European authorities which will not necessarily come to the attention of a judge before judgment is handed down, then counsel should inform the court of those authorities. It can then be taken into account as can any further submissions that are appropriate. They should be made in writing so they are then reflected in the judgment. I am not saying that that will make a difference on the question of leave, but that is the appropriate course to take.
MS GERRY: My Lord, yes. I can only apologise that that did not happen in this case and, as far as I am aware, their significance was not appreciated until after the judgment had been given. That is as far as I am aware in this situation.
MR JUSTICE STANLEY BURTON: Either they were relevant to the issues I had to determine or they were not.
MS GERRY: My Lord, yes. But as I say, these are very recent decisions.
MR JUSTICE STANLEY BURTON: 16th June is not so recent, is it?
MS GERRY: My Lord, yes. It may well be that that is not relevant to the issue of leave in this case. They merely highlight it. Mr Bowen also highlights in paragraph 5 of his notes the case of W v Doncaster; my Lord actually granted permission in that case to resolve matters that had arisen in this case and unfortunately they were not resolved, but it was envisaged they would be. My Lord, turning to the specific grounds; firstly it concerns where the order of section 117 duty arises.
MR JUSTICE STANLEY BURTON: I have read the notes.
MS GERRY: My Lord, yes.
MR JUSTICE STANLEY BURTON: If you want to add to the note by all means do.
MS GERRY: My Lord will see here that the analysis at paragraphs 59 to 60 is put in question by the defendant, secondly ground 2 concerns the ambit of the section 47 duty, and again there has been no authority on this. For that reason, we say that it is a basis on which to grant permission for it to go to the Court of Appeal, especially as the care programme approach does actually have statutory basis, the claimant would argue that an order under section 47(7) and the care programme approaches be taken together and it gives rise to a duty to monitor in this case.
My Lord, ground 3 concerns section 47(5) and it is just submitted there that where the patient has been conditionally discharged then there is urgent need. Section 4 concerns the authority's entitlement to seek alterative means of funding and it is submitted there that it is incompatible with the duty found on section 117 for them to be able to obtain funding from elsewhere so to delay discharge. Finally, my Lord, 5 and 6 essentially concerns the fact that the state, when considering the fundamental human rights, is indivisible and so to allow one authority to blame another authority for a failure to comply with conventional rights is, in this context, not permissible. The state should be seen as divisible and for that reason, the claimants consider that the approach was wrong in this case. For those reasons, we say permission should be granted to go to the Court of Appeal.
MR LEWIS: Before you decide whether or not to call me, can I draw your attention to one fact that should have been asserted. Paragraph 3 of the note; you will see in the third line Mr Bowen says:
"It is acknowledged, and always has been, that the significance of this case arises from the importance of the issues it raises, not from the level of compensation that then might be obtained."
If it were to go to the Court of Appeal with permission, I can see that being repeated. If all sides and your Lordship acknowledge that, you can ask myself and Mr Kovats for the Secretary of State; as we both said, this is not a tight case: it is ill-prepared, ill-thought-out and wrong. On that issue, I would invite your Lordship to correct that in your reasons.
Does your Lordship wish me to address you on the question of leave to appeal?
MR JUSTICE STANLEY BURTON: No. In my judgment, I pointed out that the costs in a case such as this are liable to be, and certainly were in this case, disproportionate to the practical benefits that the claimant might derive from the proceedings. The funds of local authorities and mental health trusts are, of course, limited and under pressure. In my judgment, it is undesirable where the claim is modest for the claim to be resolved in proceedings such as these unless, at least, alternative remedies have been considered.
In my judgment, this is not a case for permission to appeal as Mr Lewis just pointed out, and as is mentioned in my judgment, the facts were difficult to ascertain for a number of reasons, not least of which was the fact that the issues had not been properly identified at an early stage. Documents went into the trial bundle at a late stage; that resulted in issues of fact arising which had not properly been explored. Those issues of facts were all material to the issues of law that were raised. It seems to me it would be far better if these issues are to be considered by the Court of Appeal, for that to be done in a case which has some practical consequences for the parties beyond the elucidation of the law and where the facts have been properly ascertained. You can of course apply to the Court of Appeal.
