England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT
(MR JUSTICE CARNWATH)

		Royal Courts of Justice Strand London WC2A 2LL Friday 18 May 2001

1. LORD JUSTICE THORPE: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is a renewed application for permission to seek judicial review. Carnwath J refused permission on 10 November 2000. The appellant is a man of 63. He has been a restricted patient under the Mental Health Legislation since 1972 having been convicted of a sex offence or offences. He suffers from what is described as a psychopathic disorder.
3. He seeks to raise two complaints before the court. The first is that on 5 July 2000, within Ashworth Hospital where he has been for some time, he was transferred from the accommodation of Owen Ward to Ruskin Ward, a high security ward, because he had declined to cooperate with a sex offender treatment programme. The gravamen of his complaint in relation to that is that this step may be perceived as having been taken for punitive rather than therapeutic reasons. The conditions in Ruskin Ward are much more draconian than those at Owen ward.
4. His second complaint is that at the same time a decision was taken to prevent him communicating by 'phone or mail with friends or visitors of his and to restrict his visitors effectively to his lawyers. That decision is said to be in breach of rights which he enjoys under Articles 8 and perhaps 10 of the European Convention on Human Rights. I propose to grant permission and will deal with the matter shortly.
5. In March 1999 the claimant's responsible medical officer ("RMO") is on record as indicating that he did not need to be contained in maximum security conditions. On 24 August 1999 the Mental Health Tribunal recommended a move, or progress towards a move, to less secure conditions. There has been in prospect the possibility that this claimant will be moved to other accommodation, in particular that he should receive a placement at an institution called Kemple View. All this progress, as it seemed to be in 1999 and 2000, was disrupted when on 5 July 2000 he was transferred to the Ruskin Ward.
6. There is before the court a statement from Dr Diane James, a director of the Ashworth Hospital Authority which sets out various facts and matters upon which the hospital, the prospective respondent, would rely. The statement was generated after the application for permission to appeal Carnwath J's order was lodged in this court and went before May LJ on the papers. May LJ said:

"Taken at face value, there is, in my view, something of a case which the court might be persuaded to consider. But (a) the papers presently available scarcely contain any response by the respondents to that case, and (b) time has passed and things must have moved on since Dr Wood's report of November 2000."

7. I will refer to that later in my judgment. May LJ continued:

"If the original application had been made a few days later, CPR Part 54 would have been in force and an acknowledgement of service under rule 54.8 would have given the respondents the opportunity to state their position. I have adjourned this application to enable them to do so and for the court to consider the application with the benefit of updated material. The conclusion may be that the judge reached an unassailable decision, but I do not think it right to reach that conclusion on the present material alone and on a paper application."

8. Dr James' statement was then placed before this court. The reference to Dr Wood's report in May LJ's short decision is to material produced by Dr Wood, who has examined the claimant and has taken the view in somewhat trenchant terms that his confinement in Ruskin Ward is quite unsuitable for him. There is a reference in a letter from Dr Wood of 7 September 2000 to its being punishment rather than therapy. Dr James takes issue with what Dr Wood had to say. Mr Newman QC, for the claimant, recognises, plainly correctly, that if this case involved no more nor less than a difference of medical opinion, it would not be for the judicial review court to resolve any such issue. However he says that at the very least in one highly significant respect Dr James' statement can be shown to be factually mistaken.
9. In paragraph 7 Dr James says:

"The patient had been assessed by a Mr Duckworth and Mr Hughes of Kemple View Medium Security Hospital to see whether the patient would be appropriate to be transferred to that unit. On the 17th April last year they reported that they did not consider the patient appropriate for transfer noting reservations about his motivation. I understand they expressed other concerns, which were repeated on the 20th April, where they stated that they thought that the patient should complete a Sex Offender Treatment Programme ("SOTP") before moving on."

10. Seeing that material, those advising the claimant got in touch with Kemple View. There is a letter from that hospital addressed to the claimant's solicitors dated 17 May 2001. The letter states:

"With respect to the Sex Offender Treatment Programme, Mr Hughes and Mr Duckworth noted that a programme was available at Ashworth and suggested that Mr Pickering consider this in the interim. They were aware of Mr Pickering's reservations about this.

I understand that their report has been interpreted as suggesting that no move to Kemple View can be considered unless Mr Pickering first undertakes the above programme at Ashworth Hospital. This is an unfortunate misunderstanding and having discussed it with Mr Hughes and Mr Duckworth it was not their intention that their views should be taken thus, but rather they were of the opinion that Mr Pickering may derive some benefit from engaging in the programme offered rather than refusing it."

11. Since the possibility of a move to Kemple View is factually very much at the centre of the claimant's concerns, it seems to me that this material, against the background I have sought to describe briefly, sufficiently justifies permission to seek judicial review. If there is some basis for asserting that the decision to move the claimant to Ruskin Ward has been taken on a less than accurate understanding of the possibilities that exist at Kemple View, it may be a matter that could properly be corrected by the court.
12. I express no opinion one way or other about the facts. I certainly do not mean to imply any disagreement of or contradiction of the various other matters that are set out in Dr James' statement. It will be for the claimant to consider whether those matters should be replied to.
13. I would make three further observations: first, I am not entirely satisfied from Dr James' statement that the allegation that there was a punitive element in the move to Ruskin Ward has been wholly and satisfactorily refuted; secondly, I am not by any means clear that the complaints as regards contact with other persons have been answered in the documentation; and thirdly, I should record that the basis upon which Carnwath J refused permission was that he considered that there was an alternative remedy consisting in the processes available to approach the Mental Health Act Commission which had been approached in July 2000. I will not lengthen this judgment by going into the details of what happened there. It seems to me that if there is a point as to alternative remedy and the Mental Health Act Commission, it is one to be taken at a substantive hearing between the parties.
14. I would allow the application, grant permission to seek judicial review and remit the matter to the Administrative Court.
15. LORD JUSTICE THORPE: I agree with my Lord.
Order: Application granted. Matter to be remitted to the Administrative Court. Legal Aid detailed assessment.