19.94R v Camden and Islington Health Authority ex p K (2001) 4 CCLR 170, CA
A patient remains lawfully detained when she continues to suffer from a mental disorder that warrants hospital detention and treatment unless psychiatric supervision in the community can be provided and, despite the authorities using reasonable endeavours, psychiatric supervision in the community cannot be provided because no psychiatrist can be found willing to provide it
Facts: disagreeing with K’s responsible medical officer, the MHRT ordered that K (a restricted patient) be discharged conditionally, to live at home under psychiatric supervision. No doctor could be found in K’s home area, willing to supervise her. Wider enquiries proved fruitless. On the invitation of K’s RMO, the Secretary of State referred her case back to the MHRT. K sought a judicial review, submitted that the health authority’s failure to arrange psychiatric supervision was in breach of section 117 of the MHA 1983.
Judgment: the Court of Appeal (Lord Phillips MR, Buxton and Sedley LJJ) held that the health authority had not acted unlawfully. It had acted with reasonable diligence to make appropriate arrangements, but did not have the power to compel consultants to act in a manner that consultants were unable to reconcile with the exercise of their professional judgment:
20. The relevant provisions of section 117(2) are set out at paragraph 19 of Burton J’s judgment. On their face they require the Health Authority to provide after care services for persons who cease to be detained and leave hospital. Decisions at first instance, to which I am about to refer, have held that the duty of a Health Authority extends to making arrangements for the care of a patient before that patient is discharged. Before Burton J, the respondent Authority reserved its position as to whether these decisions were correct. Before us it has made the following limited concessions:
(a) A Health Authority has power to take preparatory steps before discharge of a patient;(b) It will normally be the case that, in the exercise of this discretionary power, an authority should give way to a tribunal decision, and should use reasonable endeavours to fulfill the conditions imposed by such a decision, insofar as they relate to medical care;(c) Failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion.
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29. In my judgment section 117 imposes on Health Authorities a duty to provide after care facilities for the benefit of patients who are discharged from mental hospitals. The nature and extent of those facilities must, to a degree, fall within the discretion of the Health Authority which must have regard to other demands on its budget. In relation to the duty to satisfy conditions imposed by a tribunal, I would endorse the concession made by the respondent Authority as to the extent of its duty.
There was, moreover, no breach of Article 5 ECHR, given that K still suffered from a mental disorder for which treatment was necessary, in hospital if community services were not available.