"[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Appeal
Djaba v West London Mental Health Trust and another
2017 May 25; June 28
Arden , McCombe , Sales LJJ
Mental disorder — Tribunal — Discharge of patient — Secretary of State triggering review of detention of restricted patient — Tribunal determining not to discharge patient — Whether conditions of detention within tribunal’s jurisdiction — Mental Health Act 1983 (c 20), ss 72, 73, 145 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
The patient was subject to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983. Pursuant to section 71(2) of the 1983 Act the Secretary of State referred the patient’s case to the First-tier Tribunal thereby triggering a review of his detention. The First-tier Tribunal was satisfied that the patient was suffering from a mental disorder of a nature and degree that made it appropriate for him to be detained in a hospital for medical treatment and that neither conditional discharge nor a transfer to another hospital, as sought by the patient, were appropriate. The patient appealed, contending that, inter alia, the tribunal had failed entirely to deal with his argument that the statutory tests in sections 72, 73 and 145 of the 1983 Act required a proportionality assessment to be conducted, pursuant to article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, taking into account the conditions of his detention. The Upper Tribunal dismissed the appeal, determining that the ground covered by the statutory analysis conducted by the tribunal under the 1983 Act covered the same ground as required on any application of the Convention principles.
On the patient’s appeal—
Held, appeal dismissed. Section 72 and 73 of the Mental Health Act 1983 conferred a power of discharge on the First-tier Tribunal and did not also include power to regulate the conditions of detention under the Convention. If the patient thought the conditions of his detention were disproportionate and did not comply with the Convention he would have to apply for judicial review. The Upper Tribunal was right to dismiss the appeal (paras 42, 45, 46, 54, 55).
MM v Secretary of State for Justice, CA applied.
B v Secretary of State for Justice, HL(E) considered.
Decision of the Upper Tribunal (Administrative Appeals Chamber) affirmed.
Kerry Bretherton QC and Fiona Paterson (instructed by Abbotscombe Law) for the patient.
Vikram Sachdeva QC (instructed by Bevan Brittan) for the mental health trust.
The Secretary of State did not appear and was not represented.
Reported by: Nicola Berridge, Solicitor