R (F) v SSJ  EWHC 2912 (Admin)
The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.]
R (TF) v SSJ  EWCA Civ 1457 (appeal allowed in part)
On the final day of his 30 month sentence for robbery (he had been released on licence and shortly recalled) F was nutted off under s47 with the legal classification of psychopathic disorder. He argued that this decision was (1) irrational and in violation of Article 5, and (2) ultra vires.
Various reports had been prepared during his prison sentence. At the time of making the decision to issue the warrant, the Ministry of Justice caseworker had before her evidence from three doctors: (a) two form 1305 medical report forms from Dr Isweran and Dr Morris, both of which were based on months-old assessments and reports, and at best were ambigious as to the treatability test; and (b) a report from Dr Ijomah, who did not complete the necessary form but who did clearly state the belief that F's disorder was treatable. The caseworker did not mention treatability in her decision to recommend transfer.
Since neither Dr Isweran nor Dr Morris had seen F for many months and had not prepared up to date reports, the Secretary of State could not reasonably be satisfied as the the s47 criteria. Even if he could, there was no evidence on which he could be satisfied by reports from at least two registered medical practitioners as to the treatability test. It was therefore Wednesbury unreasonable for him to decide to issue the warrant, and the subsequent detention was neither in conformity with domestic law nor with Article 5(1). It was unnecessary to deal with the secondary vires challenge: although the Code of Practice stated that transfer should not be delayed until close to the release date, that challenge would have been dismissed.
However, the judge exercised her decision not to quash the decision to issue the warrant. Based on the subsequent medical reports (in which the doctors who had doubted treatability now did not), she felt that if the defendant had sought to clarify the medical opinion relating to the detention criteria, the transfer direction would still have been made and would have been lawful in both domestic and Convention terms. Obiter, doubt was expressed as to the adequacy of the MHRT as a remedy, given the delays and inability to deal with the original detention.
Tuesday, 18 November 2008
Mrs Justice Cox DBE
Mr R Pezzani (instructed by Messrs Campbell Taylor) appeared on behalf of the Claimant
Miss K Olley (instructed by Treasury Solicitors) appeared on behalf of the Defendant
From 3/11/08, the Mental Health Act 2007 replaces the treatability test. See the following page:
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
Thanks to Rheian Davies (DH Law) for providing the judgment.