Mental health law briefing 249 – Powers and limitations of the First Tier Tribunal (Health Education and Social Care Chamber)
The Supreme Court has confirmed that the First Tier Tribunal has no power to direct any alteration to the conditions of detention including seclusion.
Review of Djaba’s detention
The case of Djaba (Appellant) v West London Mental Health Trust & Anor  began its journey in November 2015 when Mr Djaba appeared for a review of his detention before the First Tier Tribunal (FTT) under s73 of the MHA. The review was on the application of the Secretary of State as Mr Djaba had not applied for a review previously.
For three years Mr Djaba, a paranoid schizophrenic, had been detained in a ‘super seclusion suite’ built entirely for the purposes of his confinement at Broadmoor Hospital following imposition of hospital and restriction orders under ss 37 and 41 of the Mental Health Act 1983 (MHA).
Due to the violent nature of the offences for which he was charged in 2012 and the danger he presented to others there was a highly restricted regime in place as regards contact with staff. This included the wearing of personal protective equipment and mechanical restraints.
Conditional discharge or an extra statutory recommendation from the FTT for transfer to another hospital were sought.
The FTT did not discharge from detention finding that the conditions for detention continued to be met. The Tribunal Judge did not specifically address Convention rights.
Appeal to the Upper Tribunal
Mr Djaba appealed to the Upper Tribunal on the basis that the FTT should have considered breach of his human rights (Article 5 right to liberty and Article 8 right to private and family life).
In particular the FTT had failed to carry out a proportionality assessment in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms, and that this was required when considering the application of sections 72, 73 and 145 of the MHA and considering the conditions of his detention.
The Upper Tribunal Judge rejected his appeal confirming that such assessment was dealt with by the statutory analysis required by the MHA.
At paragraph 32 of the decision he said ‘…the outcome of this case would be the same whether I dealt with it under Ms Bretherton’s human rights analysis or under the normal interpretation of the Mental Health Act 1983’.
Permission to appeal was given by Moore – Bick LJ in November 2016 on the basis that the case raised a point of principle.
Court of Appeal
In May 2017 the Court of Appeal upheld the Upper Tribunal’s decision and dismissed the appeal. The cases of PJ and H were considered.
At paragraph 42 of the Court of Appeal judgement McCombe LJ considered the power of the FTT and stated that the power of discharge conferred by ss72 and 73 cannot also include power to regulate the conditions of detention. This was the same as the position in PJ where it was said that the tribunal could not intervene to regulate conditions attached to a Community Treatment Order. PJ was held to be directly applicable to this case.
He referred to the decision of H which was cited extensively by Charles J on appeal to the Upper Tribunal in PJ. McCombe LJ confirmed that the issue of the conditions of detention did not arise in H. The only point in issue in H was as to ‘the compatibility of the regime for assessing lawfulness of detention which, it was held, were met by the reference to the tribunal under s67 and could have been met by other alternative remedies such as judicial review.’
McCombe LJ agreed with the respondent’s submission as to the direct application of the decision in PJ 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 that the FTT had carried out the assessment dictated by the MHA 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.
Supreme Court – No permission to appeal
On 15 March 2018 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal. It was ordered that ‘whilst it cannot be ruled out that the conditions of a patient’s detention in hospital might be relevant to whether or not the statutory criteria for detention are met and therefore whether continued detention is compatible with the patient’s Article 5 rights…there is no doubt on the factual findings in this case that the statutory conditions for detention are met and therefore the patient’s Article 5 rights have not been violated’.
Further, any complaint or claim about ‘the most unusual conditions of his detention’ should be made in either judicial review proceedings or proceedings under the Human Rights Act 1998, ‘the tribunal has no power to direct that these be altered.’
Concerns have been expressed about the reference to PJ in the Court of Appeal decision in Djaba. PJ (which concerned conditions attached to a Community Treatment Order) referred in its Court of Appeal decision to the tribunal’s power to discharge from detention. A patient on a CTO is not detained in hospital but is liable to be recalled. This is an erroneous starting point for the deliberations in PJ.
It seems likely that any further challenge by Mr Djaba will be for the Administrative Court not the tribunal.
On 15 March the Supreme Court (Lady Hale,Lord Hodge and Lord Lloyd-Jones) granted MM permission to appeal the order made by the Court of Appeal on 29 March 2017.
How we can help
We advise and represent clients at Tribunal hearings. We can provide information and guidance for cases arising under the Mental Health Act, in relation to mental capacity and where human rights are challenged.
For more information or guidance please contact:
T. 020 7227 6758
 Djaba v West London Mental Health Trust & Anor  EWCA Civ 436
 The Secretary of State for Justice v MM and PJ  EWCA Civ 194
 R (H) v Secretary of State for Health  UKHL 60;  1 AC 441;  3 WLR 867
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.