R (TF) v SSJ  EWCA Civ 1457
(1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.]
R (TF) v SSJ  EWCA Civ 1457 (appeal allowed in part)
The background facts are given in the Admin court summary.
After the decision, the patient was placed under s5(2). The nearest relative subsequently objected to an admission for treatment under s3. This objection was not considered to be unreasonable so no action was taken to displace the NR. The patient was therefore permitted to leave hospital.
The CA state at , "Where section 47 is proposed to be used at the very end of the sentence, and hopefully that will only be in very exceptional circumstances...". It is not entirely uncommon in practice, for example a patient could be discharged to serve a prison sentence and re-sectioned at the end of that sentence.
From 3/11/08, the Mental Health Act 2007 replaces the treatability test, so the judgment should be read in light of that (e.g. para ). See the following page:
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
Waller LJ, Thomas LJ, Aikens LJ
Stephen Knafler and Roger Pezzani (Campbell Taylor) for TF
Katherine Olley (Treasury Solicitor) for SSJ
Thanks to Rheian Davies (DH Law) for providing the judgment.