Mental Health Tribunals don’t have the power to look at conditions of detention for example seclusion.
Mr Djaba is a restricted patient detained under s37/41 in Broadmoor Hospital. He has a diagnosis of paranoid schizophrenia. Since 2014 he has been accommodated in a "super seclusion suite" which is a small room divided into two parts with a secure partition between them. No-one is able to enter the room without the partition unless they are reviewing his health. He does not want depot medication so staff wear protective equipment including shields, helmets and visors to administer it forcibly. He rarely gets out of the suite but when he does it is in mechanical restraint and escorted by several staff. He also hadn’t seen his family or friends for a number of years until his current solicitor got involved.
He was referred for a mental health tribunal as he had not applied within the last three years. He asked for either a conditional discharge or an extra-statutory recommendation for a transfer to a different hospital but the tribunal didn’t consider either of them appropriate. Mr Djaba argued that the tribunal should consider whether the hospital had breached his human rights, i.e. are the restrictions necessary and proportionate, which is the test set out in Article 5 - Right to Liberty and Article 8 - Right to respect for private and family life.
The tribunal said that the restrictions were necessary and proportionate to deal with his violence. However, they did not refer directly to Articles 5 and 8 ECHR in their decision.
The case went to the Court of Appeal to consider whether the tribunal was required to do a proportionality assessment to take into consideration the conditions of his detention. The Court of Appeal said that they don’t. The court said that a previous case, (Secretary of State for Justice and Welsh Ministers v MM and PJ  EWCA Civ 194), had decided that the Tribunal only had the power to consider whether a person meets the criteria to be detained so they are unable to look at the conditions of a community treatment order. Therefore they followed that decision and the conditions of detention are out of remit. The court also said that there hadn’t been a breach of his human rights because the powers under the Mental Health Act complies with the Human Rights Act and if Mr Djaba is unhappy with the conditions of his detention, he can challenge it using judicial review which also complies.
We are concerned that the Court of Appeal has referred to the MM & PJ case which is based on incorrect law. The case said that the tribunal’s power is to discharge the patient from detention. However, a patient on a CTO is not detained in hospital but are liable to be recalled to hospital which is different.
The judgment can be found here.