Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate.
In 1995 IH was found not guilty by reason of insanity of GBH and made subject to orders under CPIA 1964 s5 equivalent to orders under s37/41 of the MHA 1983. He was detained in Rampton special hospital.
Neither the first MHRT in 1996 nor the second in 1998 directed discharged, although the latter recommended transfer to medium security. Several subsequent requests for permission for trial leave to an RSU were refused by the Home Office. The third MHRT in 1999 indicated that they intended to grant a conditional discharge and specified the likely conditions, which included psychiatric supervision. They adjourned and directed that a full care plan be drawn up. Subsequently, the local authority, despite reasonable endeavours, were unable to find a psychiatrist willing to supervise IH in the community. The MHRT reconvened in February 2000 and granted a deferred conditional discharge, one of the conditions being psychiatric supervision. Still no psychiatrist could be found.
In July 2001 the Court of Appeal granted permission for this judicial review and recommended that the SSHD refer the case to the MHRT under s71. The hearing of that reference was listed for a date after this judicial review hearing.
IH sought a declaration of incompatibility, that s73(2) and/or (7) were incompatible with Article 5(1)(e) and/or (4) in that MHRTs lack the power to guarantee that such conditions as they may attach to a deferred order for conditional discharge will be implemented within a reasonable period of time from the making of the order. The declaration was required because nothing less than a power to enforce conditions, in this case to order a psychiatrist to supervise the patient, would suffice to achieve compatibility.
A claim for damages against the Trust was abandoned on the basis that they could not have acted differently given the state of primary legislation as then interpreted by the courts (see section 6(1) Human Rights Act 1998). The SSHD (with powers over restricted patients) and Secretary of State for Health (responsible for mental health legislation) were the other defendants.
The defendants' case was that the Tribunal found that IH would continue lawfully to be detained until the conditions could be satisfied; in relation to delay, IH could make a new application in his current eligibility period; and that no declaration of incompatibility was necessary as s73(7) could be read compatibly, allowing the Tribunal to monitor, intervene, vary or remove conditions, or reconsider the conditional discharge decision, where necessary.
The criteria for justifying detention of persons of unsound mind under Article 5(1)(e) were set out in Winterwerp v Netherlands 6301/73  ECHR 4:
In Johnson v. United Kingdom (1997) 27 EHHR 296) the patient was found not to be suffering from any mental disorder at all but was given a deferred conditional discharge to facilitate his rehabilitation into the community. The condition of hostel residence could not be met and 3 ½ years later he was granted an absolute discharge. Johnson argued that he ought immediately and unconditionally to have been released, but this was rejected as too rigid an approach given the imprecise nature of psychiatry. However, his subsequent detention was not justified under Article 5(1)(e) as the hostel condition had effectively led to an indefinite deferral of release: the Tribunal had no power to ensure the conditions could be implemented in a reasonable time, nor could it monitor progress outside the annual reviews, nor could Johnson petition the Tribunal to reconsider the conditions.
The state of affairs mentioned in Johnston was a result of the House of Lords opinion in Campbell v SSHD (on appeal from R (SSHD) v Oxford Regional MHRT) (1988) which had stated that a deferred conditional discharge decision was final and that the Tribunal could therefore not reconsider the decision.
Similar facts to those in the present case were found in R (K) v Camden and Islington Health Authority (2001), where the patient was granted a deferred conditional discharge with a condition of psychiatric supervision but no supervising psychiatrist was willing to supervise her. K claimed that the local authority was under an absolute duty to implement the conditions, but the Court of Appeal (dismissing an appeal) held that there was only a duty, having regard to other demands on the budget, and in the absence of strong reasons to the contrary, to use all reasonable endeavours to fulfill the conditions. The doctors had been entitled to refuse on the basis of their professional judgement and the local authority was not in breach of its duty. This case closed off the one possible statutory power, s117, which might have been used to enforce Tribunal conditions.
For compliance with Article 5(1)(e) of the Convention, the patient must not be detained unless the three Winterwerp criteria (see above) are met. For compliance with Article 5(1)(e) and 5(4), MHRTs must be vested with sufficient powers to see that conditions, reasonably directed, can be implemented within a reasonable time. The Tribunal had not stated, and it could not be inferred, that the decision envisaged that IH would continue to be lawfully detained until such time as the conditions could be met: the essential purpose of a conditional discharge is to retain the power of recall to hospital whether there is a breach of any condition or not, and the presence of the condition or the deferral, particularly given the question over whether any mental illness existed, does not necessarily lead to that inference.
In breach of Article 5(1)(e) and 5(4), IH had been left in limbo for 21 months following the deferred conditional discharge decision. There was no need for a declaration of incompatibility as s73 could be read compatibly with the Convention (contrary to the Campbell/Oxford HL opinion). This is from a natural interpretation of s73(7) up to the semi-colon (the rest of the sub-section being free-standing). The Tribunal can thus monitor the situation, and use its rule 14 and rule 15 powers, to ensure that an unacceptable delay does not occur.
However, there had been no breach of Article 5 based on a lack of power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. Such a power is not necessary: (1) As a matter of policy, the court should not second-guess a medical practitioner's honest judgement and, in any event, it is difficult to see how such an order could be enforced. The issue of whether the psychiatrist is a hybrid public authority under the Human Rights Act 1998 was not argued. (2) Normally conditions will be reasonably achievable, and the Tribunal's power to monitor compliance and to amend decisions as necessary is sufficient.
Permission to appeal granted.
Mr Justice Bell
Mr Tim Owen Q.C. and Miss Aswini Weereratne, (instructed by David Mylan for the Claimants )
Miss Kristina Stern, (instructed by Hempsons, for the First Defendant NHS Trust )
Mr James Eadie, (instructed by the Treasury Solicitor, for the Second and Third Defendants)