CASE OF JOHNSON v. THE UNITED KINGDOM
Violation of Art. 5-1;No separate issue under Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
John Freeland;N. Valticos
6. The applicant was born in Leicester, England, in 1947. 7. The applicant was convicted at Leicester Crown Court on 8 August 1984 of causing actual bodily harm to a woman passer-by in a random and unprovoked attack. He punched her in the head and in the abdomen and then walked off. Unbeknownst to the applicant, the woman was three months pregnant. The applicant had previous convictions for unprovoked assaults: in April 1974 he was sentenced to eighteen months’ imprisonment for an assault on his mother; in December 1977 he was sentenced to four years’ imprisonment for an assault in which he had struck a woman passer-by with a housebrick; in July 1981 he was sentenced to eighteen months’ imprisonment for assaulting two girls walking along a city street. He also had convictions for robbery, criminal damage and various driving offences. The maximum sentence which the court could have imposed under section 47 of the Offences against the Person Act 1861 in respect of the current offence was a term of imprisonment of five years. 8. While on remand in Leicester Prison the applicant was diagnosed as suffering from “mental illness”, manifested in delusions of conspiracy and victimisation and an obsession with astral projection. The precise diagnosis was of schizophrenia superimposed on a psychopathic personality. The applicant had a history of alcohol and drug abuse. He had never previously been diagnosed as mentally ill within the meaning of the Mental Health Act 1983 although, when on remand on a previous charge of actual bodily harm, he had been assessed for psychiatric treatment but had been found to be unsuitable. 9. The applicant’s diagnosis (see paragraph 8 above) was confirmed by two psychiatrists. The Crown Court accordingly imposed a hospital order on him under section 37 of the 1983 Act. He was also made subject to a restriction order without limit in time under section 41 of the same Act, the court being satisfied that this order was necessary for the protection of the public from serious harm. 10. On 15 August 1984 the applicant was admitted to Rampton Hospital, a maximum security psychiatric institution. Between the date of his admission and up to 2 November 1987 he remained under the supervision of Dr J. McConnell, the responsible medical officer (“RMO”). Dr I. Wilson acted as his RMO from 3 November 1987 until the date of his final discharge. 11. When the applicant was admitted to Rampton Hospital Dr McConnell recorded that he was suffering from schizophrenia superimposed on a psychopathic personality. Soon after his admission the applicant was administered antipsychotic drugs, and it would appear that he responded well to treatment to the extent that by 29 May 1985 he had developed full insight into his mental illness. The applicant ceased taking medication in March 1988 (see paragraph 33 below). 12. The applicant’s detention was reviewed on several occasions between December 1986 and January 1993 by a Mental Health Review Tribunal (“the Tribunal”) pursuant to the provisions of section 70 of the 1983 Act. 13. The first review was held in December 1986. The Tribunal had before it the psychiatric report of Dr McConnell, the applicant’s RMO at the time, as well as a similar report drawn up by Dr J.D. Earp, a consultant psychiatrist, at the request of the applicant’s solicitor. 14. While noting the applicant’s great progress since the date of his admission to Rampton Hospital (see paragraph 11 above), Dr McConnell stated that he was still suffering from schizophrenia, superimposed on a psychopathic personality. He was also reported to be devious in his attitude to the staff at the hospital. Dr McConnell concluded that the applicant continued to require treatment and was unfit to be discharged. Dr Earp expressed the opinion that the applicant showed ample signs of psychopathic disorder with superimposed mental illness and that the mental illness had the characteristics of a paranoid schizophrenic condition. He did not recommend any change in the applicant’s current status. 15. In its decision of 17 December 1986, the Tribunal stated that it was satisfied that the applicant was suffering from mental illness or a form of that disorder of a nature or degree which made it appropriate for him to be liable to be detained and that it was necessary for his health or safety and for the protection of other persons that he should receive medical treatment in Rampton Hospital. The applicant continued therefore to be detained after that date. 16. The applicant’s case came up for review on 14 August 1987 and again on 10 February 1988. On both occasions the Tribunal decided to make no direction for his discharge or reclassification of his illness, believing that it was necessary for his own health and safety as well as for the protection of other persons in the community at large that he continue to receive medical treatment for his condition in hospital. 17. A fourth review took place in June 1989. The Tribunal had before it a psychiatric report drawn up on 5 October 1988 by Dr Wilson who had taken over from Dr McConnell as the applicant’s RMO following her retirement; an assessment of the applicant’s condition prepared on 29 March 1989 by Dr D. Cameron, a consultant psychiatrist, based on, inter alia, an interview with the applicant on 16 March 1989; and a further assessment dated 5 May 1989 drawn up by Dr Earp, who had interviewed the applicant on 20 April 1989. Dr Wilson and Dr Earp both concluded that the applicant was free of symptoms of mental illness. Dr Earp’s view was that the applicant was no longer detainable under the 1983 Act. While recommending a discharge, Dr Earp noted that arrangements were being made by Dr Cameron (see below) to secure accommodation for the applicant in a hostel for persons suffering from drink-related problems. Dr Wilson for his part felt that the applicant still needed to undergo a period of rehabilitation and was not fit for discharge at that time. In his report Dr Cameron concluded that the applicant was best described as “a schizoid personality with a history of explosive anti-social behaviour induced by intoxication” and that he could benefit from a stay in a hostel for people with drink-related problems following his discharge from Rampton Hospital. Dr Cameron offered to facilitate the applicant’s transfer to a hostel which he had in mind and to act as his psychiatric supervisor. 18. The Tribunal ruled on 15 June 1989 as follows: “The Tribunal accepts the medical evidence that the patient is not now suffering from mental illness. The episode of mental illness from which he formerly suffered has come to an end. He is not now in receipt of any psychotropic medication.” However the Tribunal continued: “The [applicant] had an unrealistic opinion of his ability to live on his own in the community after nearly five years in Rampton Hospital and required rehabilitation under medical supervision and that such rehabilitation (and its associated support) can be provided only in a hostel environment. Further, the Tribunal is of the opinion that the recurrence of mental illness requiring recall to hospital cannot be excluded until after successful rehabilitation of that nature.” 19. On that basis, the Tribunal ordered the applicant’s conditional discharge, the conditions being that the applicant be subject to the psychiatric supervision of Dr Cameron and to the social-worker supervision of a nominated psychiatric social worker, and reside in a supervised hostel approved by Dr Cameron and the nominated psychiatric social worker. The applicant’s discharge was to be deferred until arrangements could be made for suitable accommodation. 20. Following the 1989 review, considerable efforts were made to secure hostel accommodation for the applicant, but to no great avail. In the report of a senior social worker dated 6 October 1989, it was noted that no progress had been made on account of, inter alia, the limited number of hostel placements in the area catering for the applicant’s specific needs. The applicant himself also seemed intent on portraying himself in a negative light when visiting hostels, with the result that he confirmed their initial anxieties about accepting him. 21. The nominated psychiatric social worker (see paragraph 19 above), Mr D. Patterson, contacted a number of hostels. In his report of 4 April 1990, Mr Patterson described how his search for hostel accommodation for the applicant had been “a time-consuming, lengthy and frustrating” experience both for himself and the applicant. One hostel visited had rejected the applicant almost immediately. Another rejected him without seeing him and the housing associations running hostels in conjunction with the Probation Service also felt unable to offer him accommodation for some time on account of staff composition. It would appear that all potential hostels expressed concern about the applicant’s drinking problem and his previous history of assaults on women which might present a threat to female residents and members of staff. Mr Patterson indicated that the applicant during this time had not always shown a realistic appreciation of the lifestyle needed to achieve a successful rehabilitation. However, one hostel, Ashcroft, did express interest in accepting the applicant on condition that he agree to and successfully complete an eight-week trial period in an open ward in a local hospital. Mr Patterson believed that Ashcroft was the only viable option, although the applicant remained rather ambivalent about exploring this possibility. 22. On 19 January 1990 the applicant applied to the Tribunal to have his detention reviewed, hoping for an absolute discharge. The Tribunal met in May 1990 and heard the applicant in person. It had before it Mr Patterson’s report on attempts to find suitable accommodation for the applicant (see paragraph 21 above), as well as his views on the applicant’s suitability for absolute discharge. Mr Patterson had concluded that he would be fearful of granting an absolute discharge since the applicant, if left to his own devices and without suitable support, could quickly find himself in trouble again. He was in favour of the applicant spending an eight-week trial period in a local hospital, which would provide the basis for acceptance by the Ashcroft hostel. 23. The Tribunal also considered a report prepared by Dr Wilson, dated 12 February 1990. Dr Wilson confirmed in this report that the applicant was no longer mentally ill. He stated that the terms of the earlier conditional discharge were still being pursued but that it had not yet been possible to find suitable accommodation. He recommended that the applicant be discharged as soon as appropriate arrangements could be made. 24. The Tribunal noted in its ruling of 9 May 1990 that the necessary arrangements for supervised accommodation had not been easy to make “probably because the patient is himself not easy to please”. The Tribunal accepted the reasoning of the 1989 Tribunal (see paragraph 18 above). Although acknowledging that the applicant’s clear preference was for an absolute discharge, the Tribunal considered that it was in the interests of the applicant and the public that “he remain liable to hospital recall and to have the support that is assured by a discharge that is conditional”. Accordingly, the Tribunal once again directed the applicant’s conditional discharge but deferred the discharge until suitable arrangements had been made for supervised accommodation. 25. On 10 September 1990 the applicant commenced trial leave at another hospital, Carlton Hayes, which was less secure than Rampton Hospital (see paragraph 22 above). He was allowed increasing freedom in the form of time away from the hospital. On 9 October 1990, after drinking in a local pub, he returned to the hospital late at night and assaulted a patient whom he alleged had provoked him. Thereafter the placement began to break down completely. In a report dated 12 December 1990, Dr Cameron, the supervising psychiatrist, noted that the applicant had terrorised the nursing staff and had began to reject the rehabilitation plans which had been foreseen for him. He was returned to Rampton Hospital on 22 October 1990. Back in Rampton Hospital, the applicant was given the choice to return to the pre-discharge unit there, where he could pursue other pre-discharge possibilities, or to go to another ward containing more long-term patients. The applicant chose the latter option. 26. A sixth review was carried out in April 1991. The Tribunal considered a progress report drawn up by Dr Wilson on 4 January 1991, the report prepared in December 1990 by Dr Cameron (see paragraph 25 above) and a report of Mr Patterson dated 22 January 1991. 27. Dr Wilson noted in his report the failure of the trial-leave period (see paragraph 25 above) and the difficulty in rekindling the applicant’s motivation. Dr Wilson concluded: “[the applicant] is not mentally ill and does not require to remain in Rampton Hospital. Since June 1989 attempts to obtain his conditional discharge have been foiled by his inability to cooperate with the arrangements made and it is now difficult to envisage any conditions of his discharge that would be acceptable to [the applicant].” 28. Dr Cameron’s report of 12 December 1990 expressed pessimism about the applicant’s future in the light of the failure of the trial-leave period. He indicated that the applicant suffered from an explosive disorder of personality which meant that “when he is not in the middle of an explosion he is not in the formal sense mentally ill”. Dr Cameron had no doubt that intoxication had played some part in the breakdown of the rehabilitation process and was convinced that the applicant’s intoxicated explosions would likely recur whenever he was granted freedom into the community with access to intoxicants. Dr Cameron also considered that any further attempt at rehabilitation through general psychiatric routes would be inappropriate and for this reason was reluctant to continue as his psychiatric supervisor. 29. In his report Mr Patterson noted that the applicant’s failure to complete successfully the trial-leave period ruled out any prospect of his acceptance by the Ashcroft hostel. 30. On 9 April 1991 the Tribunal found that the applicant was not suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment. However, the Tribunal was satisfied that it was appropriate for the applicant to remain liable to be recalled to hospital for further treatment. The reasons given were that the applicant did not accept sufficient responsibility for his own behaviour to be able to cope with the pressures of life in the community without a considerable degree of supervision and support. Hence the applicant was again ordered to be conditionally discharged, such discharge to be deferred until alternative supervised accommodation could be found. 31. The applicant’s final review took place in January 1993. He was assessed prior to this review by Dr Wilson, who indicated that the applicant had no symptoms of mental illness and, provided that the topic of rehabilitation was avoided, he was constantly pleasant, friendly and cooperative. Dr Wilson concluded: “There is no basis for [the applicant] continuing to be classified as suffering from mental illness and with the benefit of hindsight it appears unlikely that he ever experienced more than a drug-induced psychosis ... He does not require to remain in Rampton Hospital but it is difficult to envisage any conditions of his discharge that would be acceptable to him and his current application for an absolute discharge must now be considered on its merits.” 32. On 12 January 1993 the Tribunal ordered the applicant’s absolute discharge on the basis that the applicant “is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment”. 33. In reaching this conclusion the Tribunal had regard to Dr Wilson’s oral evidence. It noted from his evidence that the applicant had not suffered from mental illness since 1987 and was not suffering from any other form of mental disorder. Medication had been withdrawn in March 1988. The applicant had shown consideration and kindness to other patients in his ward and he was “often acting more like a member of staff than a patient”. Furthermore, the Tribunal noted that Dr Wilson considered that the index offence was not to be regarded as a result of mental illness but of a likely combination of drugs and alcohol. The applicant had suffered a psychotic episode whilst on remand which Dr Wilson attributed to the stress of prison and the withdrawal of drugs and alcohol. According to Dr Wilson there was no evidence that this illness was likely to recur and there was no medical basis to believe that the applicant would be dangerous if released. While having regard to the view of the Secretary of State that only a conditional discharge was appropriate at that stage, the Tribunal concluded that it was proper and in the interests of justice to grant the applicant an absolute discharge. 34. The applicant was released from Rampton Hospital on 21 January 1993. Since then, he has not relapsed into mental illness. At the hearing the Court was informed that the applicant had recently been given a conditional discharge following his conviction of a minor public-order offence arising out of an altercation with a neighbour. He was also facing a charge of cultivating cannabis. 35. Section 1 (2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. A personality disorder would not, of itself, justify detention unless it came within the definition of psychopathic disorder, namely “a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive behaviour or seriously irresponsible conduct on the part of the person concerned”. Under section 1 (3) of the Act, dependence on alcohol or drugs is not to be construed as a form of mental disorder. 36. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). 37. The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 35 above) and that “the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37 (2) (a) (i)) and “the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37 (2) (b) (ii)). Under section 37 (7) a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners. 38. Section 41 of the 1983 Act empowers a court to make a restriction order (with or without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if still at large, that it is necessary for the protection of the public from serious harm to make the order. A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of the Mental Health Review Tribunal (see paragraph 39 below) to order release more narrowly than in the case of an ordinary mental patient. 39. Under section 70 of the 1983 Act, a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, may apply to the Tribunal after six months’ detention for a review of his detention. After twelve months’ detention such applications may be made annually. The Secretary of State may at any time refer the case of a restricted patient to the Tribunal (section 71 of the 1983 Act). Tribunals are made up of a legally qualified member who sits as the chairperson, a medically qualified member who interviews the patient and a lay member. 40. Under section 73 (1) and (2) of the 1983 Act, read in conjunction with section 72 (1), where an application is made to the Tribunal by a restricted patient or where his case is referred to the Tribunal by the Secretary of State, the Tribunal is required to direct the absolute discharge of the patient if it is satisfied (a) (i) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment (section 73 (1) of the 1983 Act); and (b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73 (2) of the 1983 Act). 41. Pursuant to section 73 (3), where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect. 42. Under section 73 (2) of the 1983 Act, where the Tribunal is satisfied as to either of the matters referred to at (a) in paragraph 40 above but not as to the matter referred at (b) in paragraph 40 above, it is required to direct the conditional discharge of the patient. Lady Justice Butler-Ross, giving judgment in the case of R. v. Merseyside Mental Health Review Tribunal, ex parte K ([1990] 1 All England Law Reports, Court of Appeal), explained the nature of this power as follows: “Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.”(at pp. 699–700) 43. By virtue of section 73 (4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State and must comply with the conditions attached to his discharge. In contrast to absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order. 44. Under section 73 (7) of the 1983 Act, a tribunal can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to their satisfaction. However, in the case of restricted patients, whose discharge has been accordingly deferred, the Tribunal does not have the power to direct the discharge if the specified conditions are not fulfilled or to adjourn its consideration of the case to await further developments or to recommend that the patient be granted leave of absence or to specify a time within which the conditions are to be complied with and to reconvene the proceedings failing such compliance with the time fixed. However, once the case comes back before the Tribunal on an application by the patient (which at the earliest will be the following year) or on a reference from the Secretary of State (which may be at any time) the Tribunal must consider the case afresh. In Secretary of State for the Home Department v. Oxford Regional Mental Health Review Tribunal and another ([1987] 3 All England Law Reports, House of Lords), Lord Bridge noted that there was no basis in the 1983 Act or in the rules of the Mental Health Review Tribunal to defer a conditional discharge until a fixed date. He stated: “...it is impossible for a tribunal in making a deferred direction for conditional discharge to predict how long it will take to make the necessary arrangements. The decision should simply indicate that the direction is deferred until the necessary arrangements have been made to the satisfaction of the tribunal and specify what arrangements are required, which can normally be done, no doubt, simply by reference to the conditions to be imposed. Whoever is responsible for making the arrangements should then proceed with all reasonable expedition to do so and should bring the matter to the attention of the tribunal again as soon as practicable after it is thought that satisfactory arrangements have been made ...”(at p. 13) 45. The Secretary of State may also order a patient’s conditional or absolute discharge (section 42 of the 1983 Act).