The Supreme Court has held that the Clinical Director of the Central Mental Hospital was required to assess and put in place arrangements to support conditions proposed by the Mental Health (Criminal Law) Review Board for M.C.’s conditional discharge. The Court found that he wrongly refused to do so, but did not decide whether she should receive damages under the European Convention on Human Rights Act 2003. It invited further submissions on that question.
M.C. was committed to the Central Mental Hospital after being found guilty in 2006 of killing her infant son and attempting to kill her young daughter. Following the Criminal Law (Insanity) Act 2006, she was reclassified as not guilty by reason of insanity. The Review Board conditionally discharged her in August 2012, with her treating psychiatrist determining where she would live.
In December 2013, after hearing an application to vary that condition, the Board decided that M.C. could choose her residence after consulting her clinical team. It asked the Clinical Director to confirm that arrangements were in place to support compliance, supervision and return to the hospital if she materially breached the conditions. He declined, citing clinical concerns about the proposed change and risks associated with her living arrangements. The Board said it could not finalise the variation without his confirmation. M.C. began judicial review proceedings. The Board unconditionally discharged her in December 2014, before the judicial review hearing.
The Supreme Court rejected the view that the remaining claims were moot. It said that M.C.’s claims for declarations and damages concerned concrete allegations about fundamental personal and family rights, and could not be dismissed as insubstantial merely because any damages might be nominal. The Court did not decide whether her rights were in fact breached.
On the statutory issue, the Court held that the Review Board independently determines whether conditional discharge should be granted and what conditions should apply. Under section 13A, the Clinical Director must assess what arrangements are necessary and put them in place. The Court found that he had disagreed with the proposed conditions on clinical grounds, rather than established that arrangements were practically impossible. His response should have been to assess the necessary arrangements; if he considered the conditions needed changing, the Act provided a process to apply to the Board for a variation.
The judgment proposed a declaration that the Clinical Director failed to perform this statutory duty. It did not award damages for breach of constitutional rights: the Court said the facts did not establish the required elements of the relevant common-law claims, and it would not create a new constitutional tort on these facts. The judgment also did not resolve the claim for damages under the 2003 Act. It invited the parties to make further submissions, and, if necessary, present oral argument on the Convention rights said to be engaged and the availability and assessment of damages.