Djaba v West London Mental Health Trust & Anor  EWCA Civ 436, 28 June 2017 The appeal concerned the narrow issue of whether the statutory tests within ss 72, 73 and 145 of the MHA required a "proportionality assessment" to be conducted, pursuant to Articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms (ECHR) and the Human Rights Act 1998, taking into account the conditions of Mr Djaba's detention.
In dismissing Mr Djaba’s appeal against the Upper Tribunal’s decision to uphold the First-tier Tribunal’s (FtF) decision, the Court of Appeal found that where the appellant considered conditions of detention to be disproportionate and in breach of his rights under the Convention, an application for judicial review could be made to the Administrative Court. The Court of Appeal’s previous decision (MM & PJ) was applied to ss 72 and 73 of the Mental Health Act 1983 (MHA), namely that the FtT’s power of discharge did not include the power to regulate the conditions of detention.
The appeal concerned the narrow issue of whether the statutory tests within ss 72, 73 and 145 of the MHA required a "proportionality assessment" to be conducted, pursuant to Articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms (ECHR) and the Human Rights Act 1998, taking into account the conditions of Mr Djaba's detention.
In July 2012 the appellant was found unfit to plead to three charges including unlawful wounding and assault occasioning actual bodily harm and subsequently found to have committed the acts, which took place in hospital surroundings. The court imposed a hospital order with a restriction order under sections 37 and 41 MHA. The appellant is accommodated in Broadmoor Hospital in what was described as "a super seclusion suite", built for the appellant’s detention. The judgment sets out the extremely restricted contact the appellant has with staff and the safety measures deemed necessary which include staff wearing personal protective equipment.
At the hearing before the FtT, the appellant sought either a conditional discharge or an extra-statutory recommendation by the FtT for his transfer to a different hospital.
The FtT had found that the appellant was suffering from paranoid schizophrenia. It did not accept that his violence was due to his restrictive setting but instead that it was driven by his beliefs and he therefore constituted a danger to others and that there was appropriate treatment available. Neither conditional discharge, nor the extra-statutory recommendation sought on the appellant’s behalf, were considered appropriate. The significant restrictions on the appellant were acknowledged, but the FtT expressly found these were necessary and proportionate to deal with the appellant's violence. However, the decision made no express reference to Article 5 ECHR and the appellant was given permission to appeal to the UT (Upper Tribunal).
The UT considered the FtT’s failure to deal with the arguments relating to Article 5 and reviewed the relevant case law relating to Articles 5 and 8. The UT judge decided that the ground covered by the statutory analysis conducted by the FtT under the MHA covered the same ground as required on any application of the ECHR principles and the appeal was refused.
Before the Court of Appeal, the respondent repeated its argument made before the UT that the appeal should be dismissed. It contended that the Tribunals below were correct in their approach that the appellant's other remedies (if any) under the ECHR needed to be pursued in the civil courts and that the FtT had no jurisdiction to engage in the wider issues of the ECHR.
In considering the appeal, Lord Justice McCombe analysed the important decisions of The Secretary of State for Justice v MM  EWCA Civ 194 (29 March 2017) and MH v. Secretary of State for the Department of Health & Ors  UKHL 60 (20 October 2005). PJ was a case dealing with conditions attached to a Community Treatment Order (see ‘Deprivation of liberty and community treatment orders’ for further details) and McCombe LJ at paragraph 42 directly applied the decision of PJ to ss.72 and 73. He stated that the power of discharge cannot also include power to regulate the conditions of detention in the same way that it could not regulate conditions attached to a Community Treatment Order.
The decision of H did not consider the issue of the conditions of detention. The only point in issue in H was as to the compatibility of the regime for assessing lawfulness of detention which, it was held, was met by the reference to the tribunal under s.67 and could have been met by other alternative remedies such as judicial review.
McCombe LJ agreed with the respondent’s submission that the decision in PJ is directly applicable to the issue in this case and that the court must hold that the FtT did not have jurisdiction to conduct an assessment beyond that set out in ss 72 and 73 of the MHA. The Court held the FtT carried out that assessment and no issues arose on the appeal as to the findings it made in that respect within the remit of the MHA. Any further issue of the lawfulness of the appellant's conditions of detention under the ECHR would have to be raised in proceedings in the civil courts. Thus, it was right for the UT to dismiss the appeal.
The full judgment is available: Djaba v West London Mental Health Trust & Anor  EWCA Civ 436, 28 June 2017