Lee-Hirons v Secretary of State for Justice [2016] UKSC 46

Mr Lee-Hirons, a restricted mental health patient conditionally discharged, was recalled to hospital by the Minister but only told his mental health had deteriorated. Full reasons came 15 days later, breaching policy and Article 5(2) ECHR. The Supreme Court held the breaches did not render his detention unlawful.

Facts

The appellant, aged 49, suffered from longstanding mental disorder including personality and chronic paranoid delusional disorder. Following convictions for arson and burglary in 2006, the court made a hospital order under section 37 of the Mental Health Act 1983, together with a restriction order under section 41. On 27 April 2012, the First-tier Tribunal directed his conditional discharge under section 73(2), and he moved to a care home in Lancaster on 11 June 2012.

On 19 July 2012, following concerns from his social supervisor (Mr Hart), psychologist (Ms Weldon) and responsible clinician (Dr Omar) about his deteriorating mental state, alcohol craving, threats and refusal of medication, the Minister, acting through Mr Elliott, issued a warrant recalling him to a secure hospital in Manchester. Mr Hart told the appellant that he was being recalled because his mental health had deteriorated. The warrant gave no reasons. Upon arrival the hospital knew nothing about him. A profoundly unsatisfactory letter sent on 24 July by the Ministry to the wrong clinician identified no reasons. Only on 3 August 2012 (15 days post-recall) did Dr Kasmi read out Mr Hart’s statement to him; written reasons were provided only months later in response to litigation.

Issues

The Supreme Court identified six questions:

(1) Was the explanation provided at the time of recall (deterioration of mental health) legally sufficient? (2) If not, was the renewed detention unlawful? (3) If unlawful, should declaration/damages be granted? (4) Did the conceded breaches (failure to provide adequate reasons within 72 hours per Department of Health policy LAC (93)9/HSG (93)20, and in writing) render detention between days 3 and 15 unlawful? (5) If so, what relief? (6) If not unlawful, should the breaches nonetheless attract a declaration or damages?

Conceded Breaches

The Minister conceded breach of (i) the appellant’s common law right to receive reasons within three days in accordance with published policy, and (ii) his analogous right under Article 5(2) ECHR to be informed promptly. Departmental guidance contemplated a three-stage procedure: simple notification at recall; explanation within 72 hours by the responsible clinician; and written reasons within 72 hours.

Arguments

The appellant argued that the explanation at recall was insufficient at common law (relying on Christie v Leachinsky [1947] AC 573) and under Article 5(2), invoking the European Commission’s statement in X v United Kingdom (1982) 4 EHRR 188 that detailed reasons must be provided “at the latest on arrival at the hospital”. He further contended that the conceded breaches rendered his subsequent detention unlawful, attracting declaration and damages.

The Minister submitted that Mr Hart’s explanation satisfied stage one duties, that any further breaches did not bear directly on the decision to detain, and that damages were not warranted.

Judgment

Context

Lord Wilson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agreed) emphasised the gravity of recall: it deprives a person of liberty by executive rather than judicial action, often shortly after a tribunal has ordered conditional liberty, affects a particularly vulnerable group requiring strict scrutiny (citing Zagidulina v Russia), and exposes the patient to compulsory treatment.

Question 1: Sufficiency at common law

Applying Christie v Leachinsky, Lord Wilson held the explanation that mental health had deteriorated was an accurate summary of the ground; just as in Christie the underlying grounds for suspicion need not be detailed at arrest, the underlying reasons for the recall decision did not require communication at stage one. The appellant had in any event discussed the concerns with Mr Hart and Ms Weldon that morning.

Article 5(2) at point of recall

The Commission’s remark in X v United Kingdom was “far too slender a thread” to support a violation, particularly given the recall was often effected in an emergency. The court preferred the flexible analysis in Fox, Campbell and Hartley v United Kingdom (1991) 13 EHRR 157, holding Article 5(2) was satisfied. Questions 2 and 3 therefore did not arise.

Questions 4 and 5: Effect of conceded breaches on lawfulness

Applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, and R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, the breach must bear directly on the decision to detain. The 12-day failure to provide adequate reasons did not delay tribunal reference or judicial review proceedings. The case was analogous to Saadi v United Kingdom, differing only in degree. The breaches therefore did not render detention unlawful.

Lord Reed’s additional reasoning

Lord Reed added three reasons why the failure did not invalidate the recall decision: the duty to give reasons was ex post facto and could be performed late; the statutory tribunal reference within one month provided the mechanism for justifying detention; and it would be perverse if administrative non-compliance triggered automatic release leading to administrative chaos.

Question 6: Declaration and damages

No pecuniary loss arose, and the appellant attributed his distress to recall itself rather than the delay in reasons. At common law, the breach was not tortious. Under section 8 of the Human Rights Act 1998, applying R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14 and R (Faulkner)/R (Sturnham) [2013] UKSC 23 and 47, the effects on the appellant were not sufficiently grave to warrant damages. A formal declaration would add nothing to recording the Minister’s concessions in the judgment.

Implications

The decision confirms that the common law and Article 5(2) duty to give reasons for recalling a restricted mental health patient is context-sensitive. At the moment of recall, a brief accurate summary of the ground (such as deterioration of mental health) suffices; detailed grounds need not be communicated until later under the three-stage administrative procedure.

The case reinforces that not every breach of public law touching on detention renders detention unlawful: the breach must bear directly on the decision to detain (the Lumba/Kambadzi principle). Delays in providing post-recall reasons, while serious breaches of common law and Article 5(2) rights, do not invalidate the recall decision itself, particularly where statutory tribunal review remains available and is promptly invoked.

The judgment also clarifies that damages under section 8 HRA 1998 for Article 5(2) breaches require demonstrable significant non-pecuniary harm; a 12-day delay generating limited additional anxiety does not meet that threshold. Lord Wilson noted that since 2012 it has become Ministry practice to include brief reasons within the recall warrant, and that the 2015 Code of Practice now requires a brief verbal explanation at recall absent exceptional circumstances.

The decision matters to Ministry officials, mental health practitioners, restricted patients and their legal representatives. It signals strong judicial disapproval of the administrative incompetence revealed (Lord Wilson described the Ministry’s 24 July letter as “profoundly unsatisfactory”) whilst preserving the integrity of the recall regime against challenges based purely on procedural delay in giving reasons.

Verdict: Appeal dismissed. The explanation given at the time of recall was legally sufficient at common law and under Article 5(2) ECHR. The conceded breaches of the duty to provide adequate reasons within 72 hours (under published policy and Article 5(2)) did not render the appellant’s detention unlawful, and neither a formal declaration nor damages were warranted.

Source: Lee-Hirons v Secretary of State for Justice [2016] UKSC 46