In the recent case of Jasmin Djaba v West London Mental Health Trust and Secretary of State for Justice [2017], the Court of Appeal followed the decision in PJ (discussed in a previous blog).
Mr Djaba was detained in Broadmoor hospital under very severe conditions. He lived in a “super seclusion suiteâ€; his medication was administered by force by members of staff wearing personal protective equipment; he was only allowed in communal areas of the hospital with the use of mechanical restraints and accompanied by several staff members; and he had not had face-to-face contact with his family or friends for several years.
Decision of the Tribunal
Mr Djaba had not challenged his detention under sections 37 and 41 of the Mental Health Act (‘MHA’) for 3 years and was therefore referred to the First-tier Tribunal (‘FTT’) by the Secretary of State for Justice.
The FTT declined to discharge Mr Djaba from his detention on the basis that:
“1. The Tribunal is satisfied that the patient is suffering from mental disorder of a nature and degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment.
2. The Tribunal is satisfied that it is necessary for the health and safety of the patient and for the protection of other persons that the patient should receive such treatment.
3. The Tribunal is satisfied that appropriate medical treatment is available for the patient."
They did not consider a conditional discharge or a recommendation to be appropriate either.
Appeal on human rights grounds
Mr Djaba appealed on the basis that the FTT should consider whether his detention is in breach of his human rights (in this case, his article 5 right to liberty and his article 8 right to private and family life). The Upper Tribunal and then the Court of Appeal both rejected his appeal, on the basis that:
- A.The FTT has been given very limited powers; to decide whether a patient meets the criteria for detention or not and, on this basis, to discharge the patient or not. These powers are granted by sections 72 and 73 of the MHA.
- B.This power is compliant with article 5(4) of the European Convention on Human Rights (‘ECHR’) because it allows the detained patient “to have access to a court or tribunal to seek release if his detention is not lawful†[50].
- C.The FTT does not have further powers to consider the conditions of detention.
- D.The conditions of detention are within the control of the hospital authorities. The hospital authority is a public body and can be challenged in the civil courts by the procedure of judicial review.
- E.The possibility of challenging potential breaches of human rights via judicial review is enough to make it compatible with the ECHR.
Conroys Solicitors LLP has experience with representing people, both before the First-tier Tribunal and in judicial review cases. Should you require any advice on this matter, please call 01872 272 457.