View source for Transcript of R (RW) v SSJ (2012) EWHC 2082 (Admin), (2012) MHLO 87

Case No: CO/12482/2011

Neutral Citation Number: [2012] EWHC 2082 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Manchester Civil Justice Centre

1 Bridge Street West

Manchester

M3 3FX

Monday 30 April 2012

Before:

HIS HONOUR JUDGE PELLING QC

(SITTING AS A JUDGE OF THE HIGH COURT)

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Between:

 	 	 	 	 
 	
THE QUEEN
ON THE APPLICATION OF
RW
	

Claimant	 

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SECRETARY OF STATE FOR JUSTICE 	

Defendant	 
 	 	 	 	 

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(DAR Transcript of

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Mr Southey appeared on behalf of the Claimant.

Ms Wheeler appeared on behalf of the Defendant.

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Judgment

(As Approved)

Crown Copyright©

HH JUDGE PELLING QC:

1.     This is the oral hearing of an application by the claimant for permission to continue judicial review proceedings commenced by him by a claim form issued on 21 December 2011. Permission to continue was refused on paper by HHJ Raynor QC, sitting as a judge of this court, by an order made on 14 February 2012.

2.     The claimant was sentenced to life imprisonment on 14 February 2002 for wounding, contrary to section 18 of the Offences against the Person Act 1861. On 17 July 2006 he was admitted to Broadmoor Hospital pursuant to sections 47 and 49 of the Mental Health Act 1983. On 17 March 2011 the claimant's case was considered by the First-tier Tribunal (Health, Education and Social Care Chamber). The Determination of the First-tier Tribunal first of all identifies the legal grounds for the Tribunal's decision in paragraphs one to three in the first box [20] as being, first, that the Tribunal was satisfied that the claimant was suffering at the time of the decision from a mental disorder of a nature that made it appropriate for the patient to be liable to be detained in a hospital for medical treatment, secondly, that it was satisfied that it was necessary for the health of the patient or the protection of other persons that the patient – that is the claimant – should receive such treatment and that appropriate medical treatment was at that stage available. These conclusions established jurisdiction for an order to be made pursuant to section 72 of the 1983 Act.

3.     Reasons are recorded in the box entitled “Reasons for the Tribunal's decision, including brief history and analysis of key material”. It is relevant to note that at paragraph one of the reasoning it recorded that it was effectively common ground that the claimant should continue to be detained in hospital for treatment. The position adopted by the claimant and supported by the relevant medical practitioners appearing before the Tribunal was to request the Tribunal to make a non-statutory recommendation for his transfer to medium security from the high security conditions at Broadmoor Hospital.

4.     At paragraph five the Tribunal referred to a comprehensive medical report prepared by Dr Larkin whose opinion was that the claimant suffered from a dissocial personality disorder resulting in a gross disparity between behaviour and prevailing social norms, characterised by callous unconcern for the feelings of others, a gross and persistent attitude of irresponsibility and disregard for social norms and incapacity to maintain enduring relationships. The Tribunal agreed with Dr Larkin that the evidence of the patient's past behaviour as set out in the above described reports gave ample support for that diagnosis. The Tribunal therefore say:

“The tribunal also finds this evidence supports both the case for the patient's liability to detention in hospital for treatment and, in light particularly of his past violence and sexual misbehaviour, the necessity for such treatment in detention in hospital.”

This last conclusion is important from the claimant's perspective for reasons which will become apparent in a moment.

5.     The request that the Tribunal make a non-statutory recommendation that the claimant be discharged to a medium secure unit was on the basis “that he no longer requires the high security conditions at Broadmoor Hospital”. The conclusion reached by the Tribunal was set out at paragraph ten of its reasons in these terms:

“In conclusion the tribunal is satisfied that the detaining authority has proved the requisite statutory criteria for the patient's continued detention in hospital for treatment. Furthermore, given the favourable evidence advanced by the treating team for the patient's transfer from Broadmoor hospital to a suitable medium secure unit the tribunal has no hesitation in lending its support to this course.”

Thus the First-tier Tribunal decision recommended on a non-binding basis the treatment of the claimant on a continuing basis at a medium secure unit.

6.     On 1 September 2011 the claimant was transferred to a medium secure unit but the treatment or placement in that unit did not prove a success. Evidence emerged that following that transfer the claimant had made contact with an unidentified female. The medical staff requested that the claimant cooperate by explaining who the person was and the nature of the contact, but the claimant declined to do so. This resulted, on 16 September 2011, in the claimant being returned to Broadmoor Hospital. On 22 September 2011 Dr Larkin submitted to the Ministry of Justice a document entitled “Remission to prison of section 47 or section 48 patients”. The document is a form which identifies questions which have to be considered. Insofar as is material, Dr Larkin answered to the following questions as follows:

“4. Does the patient still require treatment in hospital for mental disorder?” [Answer: No.]

“5. Can effective treatment for the patient's disorder be given in the hospital to which he or she has been removed?” [Answer: Yes.]

Under the heading “Please provide brief information to support the response to questions 4 and 5”, Dr Larkin said this:

“Mr [RW] has been a patient at the DSPD Unit (Broadmoor Hospital) since 17.07.2006. He has successfully completed a cycle of psychological treatment and his risks to others were deemed to have significantly reduced for transfer to conditions of medium security. Unfortunately, recent placement at Ravenswood Medium Secure Unit was not successful as Mr [RW] declined to disclose relevant information (about contact he was receiving from a female) to his treating team. He was aware that full disclosure to his team was an integral part of having the opportunity to continue his rehabilitation through the healthcare system. He therefore requires transfer to prison for future rehabilitation through the criminal justice system. If his mental state deteriorated at any point in the future, transfer under Section 47/49 could be considered if Mr [RW] met the criteria for such.”

7.     On 22 September 2011 a meeting known as a section 117 meeting took place and the minutes for that meeting are in the bundle starting at page 35. Material for present purposes is the section of the minutes starting on page 36 of the bundle which is to the following effect:

“It was noted again that HMP Manchester do not have the facilities available for RW but he will need to negotiate with the Lifer Panel and wait until suitable facilities become available. It was agreed that Lars Luno will be informed of the outcome of the meeting and will be asked to contact HMP Manchester outlining treatment recommendations in writing. HMP Manchester again noted that although they do have to accept him back they will not be able to provide therapeutic input; there is no psychology within the Mental In-reach team. Dr Proctor will be the point of contact. The transition will be managed via an initial stay in healthcare.”

8.     On 26 September 2011 the defendant Secretary of State issued a warrant for the claimant's transfer back to HMP Manchester. These proceedings were issued, as I have said on 21 December 2011 challenging that decision.

9.     The terms of the claim form are worth noting in passing. The decision that is challenged is identified in section three as being “decision to return the claimant to prison” and the relief sought is identified in section six of the claim form as including “a quashing order quashing the decision challenged” in addition to claims for damages costs further and other relief. Thus it would appear that the effect of the challenge is to seek to quash the decision of the Secretary of State to return the claimant to prison and impliedly at least a mandatory order requiring the claimant to be returned either to Broadmoor Hospital or to another hospital capable of providing the sort of treatment that it is alleged the claimant continues to require.

10.     The claimant's case in these proceedings in essence is that although section 50 of the 1983 Act appears to permit the Secretary of State to transfer a patient to prison whenever the responsible clinician concludes that treatment is no longer required, section 50 has logically to be read with section 47 with the result that the section 50 power ought not to be exercised where, as the result of return, the Secretary of State will come under an almost immediate section 47 duty to consider returning the prisoner or patient to hospital. It is further submitted that to approach matters other than in this way would amount, at least potentially, to a breach of the prisoner's or the patient's Article 3 rights. The factual foundation for this appears to be that identified in the amended grounds at paragraph 4.2.2 which is to this effect:

“...the Claimant was transferred to conditions of medium security. That transfer failed when he failed to disclose details of telephone calls. It is accepted that non-disclosure might justify a conclusion that he was unsuitable for medium security. It is impossible to see how that is relevant to the issue of whether the Claimant needed treatment. If anything, a failure to cooperate suggested a greater need for treatment as there was more progress to be made;”

11.     The defendant submits in essence – reduced to its bare essentials – that section 50 is clear in its terms and that once the pre-conditions identified within the section have been satisfied by appropriate medical evidence or report, then the discretion can lawfully be exercised as it has been on this occasion and section 47 is in essence immaterial to that decision.

12.     Section 47 of the Mental Health Act 1983 provides insofar as is material as follows:

“1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners –

(a)     that the said person is suffering from mental disorder;

(b)     that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and

(c)     that appropriate medical treatment is available to him

the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital, as may be specified in the direction; and a direction under this section shall be known as 'a transfer direction'.”

Section 50 of the 1983 Act provides as follows:

“Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before his release date the Secretary of State is notified by the responsible clinician, any other approved clinician or the appropriate tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may-

(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; …

[…]

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.”

13.     In relation to relevant case law the claimant relies heavily on the decision in R (Von Brandenburg) v East London and the City Mental Health NHS Trust & Anr [2003] UKHL 58, [2004] 2 AC 280. The facts of that case are startlingly different from the facts of this because that case was concerned with a claimant in respect of whom a discharge order had been made by a tribunal under section 72 of the Act on the grounds that the claimant was not suffering from mental illness of a degree which justified detention. Discharge was deferred until 7 April for appropriate accommodation to be obtained but the day before that deadline was due to expire the claimant was further detained under section three of the 1983 Act on the application of an approved social worker supported by the recommendation of two doctors. The issue which arose in that case quite shortly was the degree to which, if at all, doctors and/or the approved social worker were entitled to depart from or seek to subvert the decision of the relevant tribunal.

14.     The relevant legal principles are identified in paragraph 8 of the lead judgment, being that of Lord Bingham of Cornhill who said:

“...the rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided … It is not therefore open to the nearest relative of a patient or an ASW to apply for the admission of the patient, even with the support of the required medical recommendations, simply because he or she or they disagree with a tribunal's decision to discharge. That would make a mockery of the decision.”

A little later at paragraph 10 Lord Bingham said this:

“Consistently with the principle identified in paragraph 8 above, an ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. It is impossible and undesirable to attempt to describe in advance the information which might justify such an opinion.”

15.     The principal authority to which my attention was drawn on behalf of the defendant was R (SP) v Secretary of State for Justice [2010] EWCA Civ 1590 where, at paragraph 23 Arden LJ, giving the judgment of the court, said this:

“Section 47 does not contain any express provision as to any particular level of reasoning. Not unnaturally, that is left to be dealt with by the general law but it is necessary to have regard to the context. The reports of the medical practitioners are written by those who are expert in medical practice and they are addressed to the Secretary of State and his officials, who are lay persons. The Secretary of State and his officials are not concerned to pursue medical reasoning. In my judgment, in principle the decision maker is only concerned to see whether the medical practitioners have given some reasons which they consider adequate and which, on what they have said, do not fail to take account of material issues or matters and do not conflict with the facts known to the Secretary of State or the statutory requirements.”

16.     The starting point so far as the claimant is concerned is the decision in Von Brandenburg because it is submitted that in effect what has happened amounts to a breach – or is very close to being a breach – of the principles identified in that case. In my judgment that is not an arguable proposition for these reasons. The decision of the House of Lords in Von Brandenburg made it abundantly clear that change of circumstances would entitle those coming to the affairs of the particular claimant after the decision of a tribunal had been arrived to take a different view if the circumstances justified it.

17.     It is entirely clear in my judgment that the circumstances that have occurred and which I have outlined above justified such a departure. The relevant facts for these purposes are those identified in paragraphs 18 and 19 of the summary grounds of resistance. At paragraph 18 a letter is referred to dated 30 June 2011 by which Dr Larkin applied to the MHCS for authorisation for the claimant's temporary transfer to Ravenswood House which was intended to last for six months. Then at paragraph 19 there appears this:

“The MoJ Form 'Assessment of patient by Medical Officer at proposed accepting hospital' which accompanied the application stated:
'Mr [RW] will be transferred on section 17 leave. This is due to the uncertainty about his ability to engage in and respond to psychological treatment. It will not be appropriate for him to remain in the hospital system following transfer to medium security if he is not able to use the psychological treatment available within the service. If he does not engage, then he will return at the end of leave and consideration will be given to other care pathways.'”

Thus it was that the scheme of the treatment contemplated involved transferring the claimant from a high security unit, namely Broadmoor Hospital, to a medium secure unit, on the basis that if that placement failed then it would be inappropriate to return him to hospital. This was the basis on which the first – tier Tribunal proceeded.

18.     That leads me then to what was said by Dr Larkin in the remission form submitted by him. He said that the claimant did not still require treatment in hospital for a mental disorder. He acknowledged, however, in line five that effective treatment could still be provided in hospital. In those circumstances the Secretary of State was entitled to accept at face value what was being said, that is to say that treatment was not required within a hospital though it could be provided there and in those circumstances was entitled in principle to take the steps that have been taken.

19.     The secondary point which is made, which to my mind is a more difficult one, concerns the availability of appropriate treatment within the prison estate. The point which is made is that if treatment is not immediately available within the prison estate then an issue might arise whereby the Article 3 rights of the claimant would be adversely affected and an obligation arise for the Secretary of State to apply section 47 on a duty basis in order to arrange a re-transfer to hospital. The duty point in relation to section 47 derives from the decision of Stanley Burnton J (as he then was) in R (D) v Secretary of State for the Home Department [2004] EWHC 2857 (Admin) (The Times, 27 December) when he said:

“...once the prison service have reasonable grounds to believe that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take reasonable steps to obtain appropriate medical advice, and if that advice confirms the need for transfer to a hospital, to take reasonable steps within a reasonable time to effect that transfer.”

20.     In the end I have come to the conclusion, however, that the appropriate way of examining these matters is to reach the conclusion, as the Secretary of State has consistently with the medical advice he had received, that this claimant, at the time of request for transfer back into the prison system was made, no longer required treatment in hospital even though such a treatment could have been provided, and that once such a transfer has taken place the question of whether and, if so, what treatment is required must be reviewed afresh, applying section 47 on the basis identified in R (D).

21.     In my judgment, for the reasons identified in the summary grounds of refusal and as expanded upon in the submissions I have heard, permission ought to be refused and in this regard I express my agreement with the conclusion of HHJ Raynor QC when refusing on the papers:

“In my view the Defendant was entitled to accept the opinion of Dr Larkin that the Claimant no longer required treatment in hospital for mental disorder and was thus entitled, and in my judgment acted lawfully, in directing that the Claimant be remitted to prison under s.50 of the MHA 1983.”

MR SOUTHEY: Can I raise two matters? One, I suspect, is not controversial and the other may be slightly more controversial. The not controversial issue is settling the claimant's publicly funded costs.

JUDGE PELLING: I am sure that is not opposed, is it?

MS WHEELER: No, sir.

MR SOUTHEY: The other issue is this. Obviously the claim was lodged four months ago. My Lord has identified the fact that there may be issues about section 47. My Lord has obviously heard a considerable amount of argument about that and has had an updated position. There are potentially two ways of dealing with that. One is that the claimant can start a fresh claim arguing about the continuing failure. The other is that this claim could potentially be amended.

JUDGE PELLING: What always worries me about an amended claim of course are the remarks made by Ouseley J in a fairly prominent case – I have forgotten the name of it – in which he said that it is undesirable unless the circumstances are very special to permit repeated amendments of grounds to attack decisions or, on this analysis, the failure to take decisions after the decision which was challenged originally.

MR SOUTHEY: It also needs to be read in the light of what was said by the Court of Appeal earlier in the case of Turget (?) where the Court of Appeal appeared to endorse the realities of judicial review at times which is that there can be because of the nature of --

JUDGE PELLING: A moving process.

MR SOUTHEY: Moving goalposts. My Lord, this is in the context obviously of a situation in which there is a degree of sensitivity.

JUDGE PELLING: So is your point that you want to amend your grounds so as to deal with the continuing failure to take ----

MR SOUTHEY: Absolutely, my Lord. In terms of practical use of court time we would suggest that that is insignificant given my Lord has heard arguments about the application of section 47 et cetera.

JUDGE PELLING: What are you contemplating? That I should give permission to amend it and then my judgment would what? Count as a refusal of that as well? Or are you talking about having a fresh hearing?

MR SOUTHEY: I would suggest the way forward is that the matter is reserved to my Lord, that we have permission to amend the claim form and we have a short period, say seven days, to amend the grounds to address that point.

JUDGE PELLING: What will this say?

MR SOUTHEY: Given the fact my Lord has heard the argument we would say that it would save on court time by allowing my Lord to make an informed but relatively quick decision on the continuing issues.

JUDGE PELLING: But does that not deprive the defendant of the opportunity to have it looked at on paper?

MR SOUTHEY: I started with “we have a short period to amend grounds”. I was of course not contemplating that there is not an opportunity to ----

JUDGE PELLING: So you were not contemplating moving straight to an oral hearing.

MR SOUTHEY: Effectively my Lord is making a decision based on this oral hearing on the basis of the exchange of pleadings that have taken place.

JUDGE PELLING: So I would decide it on paper.

MR SOUTHEY: Yes.

JUDGE PELLING: Then what? Would there be an opportunity for oral renewal? That would be quite unconventional. If I were to give permission to amend there would have to be an opportunity for the Secretary of State to address it on paper and I do not think it is open to me to preclude an oral renewal in those circumstances.

MR SOUTHEY: The point about it is that my Lord is well informed in relation to it. There is a degree of urgency about it.

JUDGE PELLING: Yes, Ms Wheeler?

MS WHEELER: My Lord, I do oppose that and I think it really is not the sort of case where it is appropriate to amend. It is an entirely new course of action that is being proposed. I did not address your Lordship at any length about that. I did not underline the fact that the cases relied on deal with extremely urgent medical conditions and individual self-harm et cetera.

JUDGE PELLING: All we are talking about is procedure. The procedural alternatives are to issue a new claim which, as far as I can see, has no particular advantage over what is proposed apart from the fact the court service receives another £60 or does not, depending on the circumstances. Really all we are talking about then are ways and means by which the claimant can move as speedily as possible to you having the opportunity to put in summary grounds of resistance focussing on this new section 47 point that can be considered on paper, coupled with a request that I reserve that to myself so that it can be done more quickly.

MS WHEELER: Yes.

JUDGE PELLING: Those are the choices: new claim form and me making an order or perhaps recording an indication in the body of the order of these proceedings that any subsequent challenge to any continued failure to take the decision under section 47 should be referred to me because I am familiar with it, although by the same token the longer things go on the less familiar I am going to become with it; or whether it is a pragmatic way forward simply to direct that further grounds, if any, be lodged within, say, 14 days. You have 21 days from date of service to respond and then the application can be referred to me for permission on paper.

MS WHEELER: Yes.

JUDGE PELLING: In other words, your substantive rights are not affected.

MS WHEELER: Yes. I am also concerned that it be a clear new issue. Your Lordship I think referred to it as a “continuing failure” under section 47 ----

JUDGE PELLING: I should have said “allegedly continuing failure”.

MS WHEELER: Yes, because that is not, of course, entirely new. I think what one does not want is to have the waters muddied by matters that have already been dealt with. The issue is an entirely fresh claim. My submission is that it is an entirely fresh claim and it ought to be put forward as an entirely fresh claim.

JUDGE PELLING: Because we are moving on?

MS WHEELER: Yes.

JUDGE PELLING: I presume you would have no objection to me saying that providing such an application is issued within, say, seven days of today that it be referred for permission to me.

MS WHEELER: I have no problem with that at all.

MR SOUTHEY: The problem would be getting a decision out of the Legal Services Commission within seven days.

JUDGE PELLING: Would your legal aid cover this proposed amendment?

MR SOUTHEY: It probably would because these are the existing judicial review proceedings. The defendant remains the same. Partly from a pragmatic point of view and partly also to keep the costs down for the Legal Services Commission, that is why we would be suggesting that the overall cost to the public purse we would say is likely to be less from taking this ----

JUDGE PELLING: Only by the cost of issuing the new claim form. The substantive grounds are going to be the same whichever route you settle on.

MR SOUTHEY: Yes.

MS WHEELER: Part of the point of making an application to the Legal Services Commission is that there is some kind of a merits review. As I say, I have not put forward any evidence or directly addressed the point, but our submission is that it would be an arguable case that section 47 has not been complied with.

JUDGE PELLING: There is always the point that if you are going to run a challenge to an alleged failure to comply with section 47 you would probably have to write a pre-action protocol letter.

JUDGE PELLING:

The application that I have before me, which is superficially attractive for pragmatic reasons, is for me to permit the claimant to file additional grounds, focussing on an alleged failure by the Secretary of State to carry out his section 47 duties and review, following upon the return of the claimant to prison in the circumstances outlined in my substantive judgment given a few moments ago. The pragmatic course advocated be Mr Southey on behalf of the claimant would enable additional grounds to be filed within a very short period and he recognises that the Secretary of State should not be deprived of the opportunity of having those grounds examined for permission purposes on paper, merely asking that I reserve to myself the determination of that question because of the information that I have acquired in dealing with this renewal application at rather greater detail than would normally be the case.

In answer to that a number of points are made, not the least of which is that confusion is likely to arise when additional grounds are filed in existing proceedings in relation to alleged breaches of duty which have occurred after the original decision challenged in the extant proceedings. Mr Southey says that it is likely that in the circumstances the public funding position of the claimant will be easier if I adopt the pragmatic course proposed by him and I have a degree of sympathy with that. However, it has been said on a number of occasions now – most recently by Ouseley J in case, the name of which I cannot at the moment recall – that it is in principle wrong to permit amendments and additions to existing grounds in circumstances where the amended or additional grounds seek to attack decisions which are taken – or in these circumstances not taken – following the decision originally challenged in the existing proceedings. That is undoubtedly the default position that must be adopted and in my judgment the savings to the public purse that would be achieved if the pragmatic course advocated by Mr Southey were adopted would be extremely limited because detailed grounds will have to be filed in any event; there will have to be a paper permission application stage in any event and it would not be possible or right to preclude the claimant from an oral renewal in the event that permission was refused.

In those circumstances it seems to me that, save in one particular, the appropriate course is to require the claimant, if he wishes to challenge the alleged failure of the Secretary of State to review his case under section 47, to issue fresh proceedings. The only qualification to that which I will make is that providing that application is issued within six weeks of today's date I will direct that the paper permission application should be referred to me. My reasons for making that direction are simply these: that this hearing has in the end lasted just short of two hours, there has been an extensive review of the relevant facts and of the case law and it would therefore take me materially less time to decide on paper the new permission application than another judge who had to assimilate all the information. Subject to that qualification I am not able to accede to the procedural proposal made.

MR SOUTHEY: Can I just raise one other point?

JUDGE PELLING: Yes.

MR SOUTHEY: I should have sought earlier the restriction on identifying the claimant.

JUDGE PELLING: Absolutely. That cannot be objected to, can it?

MS WHEELER: No.

JUDGE PELLING: It will be RW. Thank you both very much.