The Supreme Court considered what explanation must be given when the Secretary of State recalls a conditionally discharged restricted patient to hospital. Telling Mr Lee-Hirons only that his mental health had deteriorated was legally sufficient at the moment of recall. Later conceded failures to give a fuller explanation within three days, and in writing, breached published policy and article 5(2) of the European Convention on Human Rights, but they did not make his detention unlawful and did not lead to damages or a formal declaration.
Mr Lee-Hirons was a restricted patient who had been detained in hospital under the Mental Health Act 1983.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Recall after conditional discharge
A tribunal ordered his conditional discharge. He was subject to conditions and supervision in the community.
After concerns about his condition, a psychologist and his responsible clinician asked for him to be recalled. A caseworker authorised the recall.
The warrant stated no reason. Mr Hart told him that the reason was that his mental health had deteriorated. No fuller explanation was given that day. Police took him to Manchester that evening. He was unhappy but cooperative. The hospital knew nothing about him on arrival, and two days later the nursing staff still could not explain the recall. A Ministry letter of 24 July was, as Lord Wilson described it, profoundly unsatisfactory: it was misaddressed, assumed that the warrant had not been executed, and neither identified the reasons nor enclosed Mr Hart’s statement.
On 3 August, 15 days after recall, the Manchester clinician read Mr Hart’s statement aloud and discussed it, but did not provide a copy or any other written explanation. A written explanation came only months later, in response to the proceedings. The Secretary of State had, however, referred the case to the tribunal the day after recall.
The appeal concerned the duty to explain the recall. The clinical merits of the decision to recall him had been considered separately.
The explanation required at recall
Guidance issued in 1993, and still substantially operative, envisaged three stages. The person returning the patient should say in simple terms that the Secretary of State was recalling him and that a further explanation would follow. Within 72 hours, a clinician or other specified person should explain the reasons and seek to ensure that they were understood, and a written explanation should be provided.
Lord Wilson, with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agreed, treated a lawful published policy as something the person to whom it ostensibly applies can require to be applied, unless there is good reason not to do so. Article 5(2) of the Convention separately requires a person who is arrested to be told promptly, in a language he understands, of the reasons. There was no breach of article 5(4), the right to a speedy court decision on the lawfulness of detention: the tribunal was seised within a day, and solicitors had begun the challenge within 25 days. The Court left open whether using the full month allowed for a reference would breach article 5(4).
The Secretary of State conceded that an adequate explanation had been given after 15 days rather than three, and in writing only months later. He therefore conceded breaches both of the common-law right to have the policy applied and of article 5(2). He said that the words used at the moment of recall went slightly further than the first stage required.
Mr Lee-Hirons relied on the common-law principle that a person deprived of liberty must generally be told why, so that he can take steps to regain it. Lord Wilson held that the duty at that first stage was met. Deterioration in mental health was an accurate summary of the ground relied on. It is not the only permissible ground: a crime, or a breach of a condition of sufficient significance, may also justify recall. There was no need then to spell out why his health was thought to have deteriorated. He had discussed the concerns with Mr Hart and the psychologist that morning. A recalled patient may be under stress, and those effecting an urgent recall may know little of the background. The immediate tribunal reference also meant that the lack of detail did not delay his route to a further discharge decision.
Article 5(2) required no more. A remark by the European Commission of Human Rights in an earlier recall case, that reasons should be given at the latest on arrival at hospital, was too slight a basis for a breach on the day of recall. The Strasbourg court has assessed the content and promptness of the information according to the special features of the case, and has not required every detail at the instant of arrest. The explanation was therefore legally sufficient, and the questions whether it made the detention unlawful, and whether damages should follow, did not arise.
The delay after the first three days
The conceded failures concerned the period after 72 hours and before the fuller oral explanation. Lord Wilson started from the principle that not every public-law breach makes detention unlawful. The breach must bear on and be relevant to the decision to detain. It must be material to that decision and capable of affecting the result, and it has been described as needing a direct bearing on detention.
A wrong explanation lasting three days had previously been held not to affect the legality of detention, even where the failure to give the true reason promptly breached article 5(2). A failure to explain the deferral of access to a solicitor had likewise not made detention unlawful. Breach of the right to a speedy review of detention does not itself directly affect the lawfulness of the detention.
There was, in Lord Wilson’s view, no link, let alone a direct link, between the 12-day failure to give an adequate explanation and the lawfulness of this detention. It did not delay the tribunal reference, and it was not suggested that it delayed these proceedings. He was also concerned that a restricted patient’s ability to leave hospital should not depend on a close argument about whether reasons were adequate or could practicably have been given within 72 hours.
Lord Reed agreed and gave three further reasons why breach of the policy did not invalidate the recall, either from the outset or once 72 hours had passed. The duty was to give reasons after the decision. It could still be performed, and if necessary enforced, after that period; late performance did not undermine the earlier decision. The Act already required a tribunal reference within a month, which was the statutory means of ensuring that continued detention was justified. It would also be perverse if a duty imposed for good administration entitled a patient, whose condition might still require detention, to walk out of hospital as soon as 72 hours had expired.
Damages and a declaration
There was no financial loss. Mr Lee-Hirons described great distress in the months after recall, but he attributed it to the recall itself, not to the missing explanation. Some added frustration and anxiety might be inferred, but 12 days did not support an inference of significant non-pecuniary injury.
The common-law breach was not a tort, and there was nothing to suggest that damages would have been available in an ordinary action. Under the Human Rights Act 1998, damages for the article 5(2) breach were appropriate only if necessary to afford just satisfaction, taking account of the Strasbourg court’s approach. Lord Wilson held that the effects were not sufficiently grave. A formal declaration would add nothing to the recording of the concessions in the judgment. The Court of Appeal had not separately answered that question, but dismissing the appeal produced the correct negative answer.
Verdict: The Court unanimously dismissed the appeal. The explanation on recall was sufficient at that stage. The delay in providing fuller reasons breached the applicable duties but did not invalidate the detention. No damages or formal declaration were granted.
Source: Lee-Hirons v Secretary of State for Justice [2016] UKSC 46
