COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE BURTON
London, WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE SCOTT BAKER
|The Queen (Patrick Morley)||Appellant|
|Nottinghamshire Health Care NHS Trust & Anr||Respondent|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Clayton QC (instructed by Hempsons, Manchester) for the Nottinghamshire Health Care NHS Trust
Jenni Richards & Mr P Patel (instructed by The Treasury Solicitor) for the Secretary of State
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Pill:
"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 illness, psychopathic disorder, severe mental impairment or mental impairment; and
(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, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;
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 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'."
The classification in this case was one of psychopathic disorder.
"Although classifiable as Physchopathically Disordered under the Mental Health Act 1983 the question of treatability has been one which has exercised all those psychiatrists who have previously examined him. Variable opinions have been expressed with regard to treatability and unfortunately those who were more optimistic have not been able to proceed with therapeutic interventions. As a result Patrick Morley has become 'stuck' within the Prison System and is, at present, going nowhere. In my opinion, if no therapeutic interventions are attempted, he will be in the same situation at subsequent Discretionary Lifer Panel Hearings to the one he is in now."
Dr Keitch added:
"I would point out that no guarantees can be given with regard to admission at this stage and it must be clearly understood that any admission, should it take place, would be for the purpose of assessment and should Mr Morley prove 'untreatable' he would be remitted to prison. I would anticipate, in the event of an assessment admission taking place, that he would need to be hospitalised for at least 6 months for the necessary comprehensive assessments to be undertaken."
"That the annual report should be based on an assessment of the patient by the clinical team responsible for his treatment, and it should advise the Home Secretary on whether it is considered that the patient should or should not continue to be detained and for what reasons, and whether continued detention in a special hospital is necessary."
"Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review 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; or
(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,
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."
"Further to our conversation of yesterday afternoon, I write to request Mr Morely's urgent return to prison.
On 24 August 2001, Mr Morley was transferred from Connaught Ward to Evans Ward for ongoing assessment and treatment. The move to Evans Ward involved a change of RMO from Dr Krishnan to Dr Hayden.
Since moving to Evans Ward Mr Morley has repeatedly presented significant management problems and attitudes and behaviour demonstrating that he is not benefiting from the overall treatment package available to him. He has consistently demonstrated a lack of meaningful reflection on his behaviour and attitudes. Until such time as he is in a position to contemplate and meaningfully reflect on his attitudes and behaviour he will not meaningfully benefit from treatment and there is no evidence that change is imminent in this respect.
Mr Morley has repeatedly resisted accepting necessary therapeutic challenge from his Named Nurse and RMO. Mr Morley has repeatedly attempted to dictate his own treatment needs. He has this month demanded that his Named Nurse be changed.
At present Mr Morley is ward based as he is the subject of investigation into an alleged sexual assault on a fellow patient.
Reasons for requesting urgent return to prison include recent behaviours of Mr Morley whereby hospital security has been compromised, a recent threat to a staff member in which Mr Morley threatened to put the staff member's head through the window, and his general undermining effect on the therapeutic ethos of the ward.
I have on 7 March 2002 spoken to Dr Faruq, Senior Medical Officer at HMP Full Sutton, and been informed that a place may be available for Mr Morley at HMP Full Sutton on 11 March 2002."
It is accepted by Mr Bowen, for the applicant, that the letter does address the statutory language in section 50(1) ("no effective treatment for his disorder can be given"). I mention that because the letter, in requesting urgency, does also refer to hospital security. That consideration does not appear in the statutory language but, if the statutory test is satisfied, could be relevant to the urgency with which an order under section 50(1) can be made and take effect.
Duty on the Trust
The course of events
"If Mr Morley had not left Rampton we would be recommending that he continue with the Core Programme here. We have some concerns about his ability to re-engage in the Prison Service Core Programme, having previously dropped out. We feel that he required Sex Offender Interventions but alongside this he will require individual work to address responsivity issues as outlined by Mr Lawrence Jones in [an earlier report]. The pattern of his alienating staff has occurred in the Prison Service and at Rampton Hospital. We feel that without this work to address responsivity, the same behaviours are likely to recur. "
"In fact, the Sex Offender Treatment Programme was only a small part of the overall treatment package provided in the Claimant's case, which also included participation in other groups and regular one-to-one sessions with his Named Nurse. Regrettably, the Claimant failed to incorporate into every day life any of the benefits that he may have obtained from his overall treatment, and in reality, his therapeutic relationships – with his RMO, Named Nurse and Social Worker – had broken down by March 2002."
"The patient has begun to engage in psychotherapeutic treatment; including in particular the Sex offender Treatment Programme which at Rampton Hospital takes a very different from that available in the Category A prison from which he was transferred to the mental health system and may be more appropriate for the features of the patient's personality disorder. The process of assessment of the patient is continuing. The current SOTP course is in its early days; and it is too early to say whether and to what extent the patient will ultimately respond or benefit; but there are prospects that he will and we have no doubt that the present treatment plan at Rampton Hospital should be pursued."
"Since transfer to Evans Ward, Mr Morley continues to undergo further assessment/treatment. It is not yet appropriate to comment in detail as to whether Mr Morley will benefit from treatment. His interpersonal style causes difficulties in the ward environment. Mr Morley is controlling, demanding, undermining of the therapeutic regime and persists in dictating his own treatment needs and when they should be granted.
In summary, Mr Morley continues to undergo assessment and treatment of his personality disorder. At this point in time there is no conclusive indication that he has benefited from treatment. He remains appropriately detained at Rampton Hospital under the classification of Psychopathic Disorder."
"11. On 6 March 2002, a discussion took place involving he following members of Hospital staff: myself; Dr R G Peckitt, consultant forensic psychiatrist; Dr A Brown, senior registrar in psychiatry; Mary Lilley, clinical nurse specialist. (No psychology input was available.) The issues discussed included Mr Morley's progress, his problematic behaviours and attitude towards members of the multi-disciplinary team, the allegation reported on 4 March 2002,and various security issues.
12. The consensus at the meeting on 6 March 2002 was that a recommendation should be made that Mr Morley be returned to prison. This consensus was reached because it was noted that Mr Morley:
(a) had behaved in a way that interfered with therapy;
(b) was undermining of the therapeutic ethos of the ward;
(c) had attempted to subvert hospital security
(d) was not demonstrating benefit of note from the global package of treatment available to him;
(e) lacked maturity;
(f) had not yet reached a stage where he could meaningfully contemplate treatment;
(g) might acquire from his continued participation in the Sex Offender Treatment Programme ('SOTP') a veneer of knowledge which would make it difficult to assess the true extent of his progress in the Programme.
[The allegation of sexual assault was not taken into consideration]
13. It was therefore decided at the meeting on 6 March 2002:
(a) that Mr Morley should remain ward-based; and
(b) that I would discuss with the Clinical Director of the Personality Disorder Directorate and with psychology staff their views upon the proposal to return him to prison.
14. On 7 March 2002, I discussed the issues referred to in paragraphs 11 and 12 above with Dr Krishnan, the clinical director of the Hospital's Personality Disorder Directorate. Dr Krishnan supported the proposal that a request be made for Mr Morley to be remitted to prison.
15. On 8 March 2002., I telephoned Dr Sue Evershed, a consultant clinical psychologist at Rampton hospital, and discussed the proposal to have Mr Morley remitted to prison. I informed Dr Evershed of the ongoing problems that were being experienced in Mr Morley's management, and informed her that any apparent benefits and apparent improvements as a result of the SOTP programme and other psychological interventions were not reflected in his behaviours and attitudes outside group settings. Dr Evershed accepted these reasons for requesting that Mr Morley be returned to prison.
16. On 8 March 2002, I wrote to the Mental Health Unit of the Home Office requesting that Mr Morley be returned to prison."
"In conclusion, I have little doubt that if Patrick returned to a purely custodial setting in which there was no understanding of his deficits and no capacity to work with him the risk of repetition of his former antisocial behaviours on returning to the community would be considerable. I am impressed by the level of understanding demonstrated in the psychological reports I have seen at Rampton Hospital and believe that a long-term programme of rehabilitation within secure NHS settings followed by a gradual, closely and skilfully supervised return to the community will significantly reduce the risk to the public in the longer term."
In his statement, Dr Hayden has also expressed his opinions upon the report of Professor Brugha and a report from Professor Grubin.
"The managers noted that there were irreconcilable differences between the patient and the Clinical Team in their differing understanding of the progress (or lack of it) made by Mr Morley during his admission to Rampton Hospital.
The Managers were satisfied that the Clinical Team had made a joint decision to return Mr Morley to prison and had consulted with members of the previous Clinical Team. It is a matter of regret that in the view of the Clinical Team the therapies provided have not been successful. The Managers hoped that Mr Morley would be able to access continuing therapies on his return to prison."
"My recommendation and the conclusion upon which it was based were arrived at only with the very greatest reluctance. I would not have recommended that Mr Morley be transferred from Rampton Hospital unless, having carefully considered all the clinical information in this case. I felt that such a course was a necessary and appropriate one to take."
"32. Private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ... ."
The Court held (paragraph 35) that the right asserted by Mr Botta "concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."
The duty on the Secretary of State
"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by the way of additional procedural safeguards as will ensure the attainment of fairness."
"What procedure will satisfy the public law requirement and procedural propriety depends upon the subject matter of the decision, the executive functions of the decision maker. and the particular circumstances in which the decision came to be made."
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"So long as a prisoner remains in Category A, his prospects for release on parole are, in practice, nil. The inescapable conclusion is that which I have indicated, namely a decision to classify or continue the classification of a prisoner as Category A has a direct impact on the liberty of the subject."
Rose LJ recognised the need for speedy categorisation on admission to prison, and added:
"But on the first and subsequent annual reviews, fairness, in my view requires that the gist of reports be revealed in order to give the opportunity for comment and that reasons be given subsequently."
The treatability test
Conclusion on Trust's duty
Conclusion on Secretary of State's duty
47A. Since the judgment was handed down in draft, Mr Bowen has submitted that he did not make the concession described in paragraph 47. The Court understood that concession to have been made. The right to legal representation was not advocated in the skeleton argument before the Court and the nature of the legal representations and the procedures now contemplated was not addressed in oral argument as we would have expected it to have been if that was part of the case. The present issue should not however be determined on the presence or absence of a concession and we are content to record counsel's position.
"In my judgment, the question is not whether the Secretary of State, following further inquiries, would have been entitled to reach the decision he did. He may well have been entitled to reach that decision following the further inquiries which had been contemplated in this case. The question is whether there is a reasonable possibility that, upon appropriate inquiries having been made, he would have cancelled the revocation."
I would go on to hold, as did the judge, that in this case there was not a reasonable or even a real possibility that the outcome would have been different.
Scott Baker LJ