England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE DYSON: The applicant is 29 years of age. In late 1998, she was found guilty by the South West Magistrates' Court of an assault with intent to commit an assault occasioning actual bodily harm. On 28th October, and before sentence, she was examined by a Dr Azuonye, a consultant psychiatrist. In a report made on the same date, he stated that she was suffering from mental illness within the meaning of the Mental Health Act 1983 ("the Act") and that the mental disorder was of a nature or degree which made it appropriate for her to be detained in a hospital pursuant to section 37 of the Act. In his report, he said:

2. Then under the reasons for his conclusion that the mental disorder was such as to make detention in a hospital for medical treatment appropriate he said:

3. Nevertheless, on 2nd November, the Magistrates sentenced her to three months' imprisonment. Her date of release was 17th December. She was examined again on 25th November by a different psychiatrist, a Dr Doig. He wrote a report on that day, stating that he too was of the opinion that the applicant was suffering from a mental disorder which made it appropriate for her to be detained in a hospital. He wrote:

4. On 3rd December, Dr Azuonye wrote a second report. It was expressed on its face to be based on his previous examination of 28th October. Once again, he stated that the applicant was suffering from a mental illness which made it appropriate that she should be detained in a hospital. His report included the following:

5. The report of Dr Doig and the second report of Dr Azuonye were sent to the Secretary of State. They were considered on 9th December by Mrs Goddard, the Executive Officer at the Home Office dealing with this case. She concluded that it would be appropriate to issue a transfer direction to a hospital under section 47 of the Act on the basis of the medical reports, and that a bed at the South Western Hospital was suitable. Mrs Morris, a Grade 7 Administrator in the Mental Health Unit of the Home Office agreed with Mrs Goddard's recommendations, and on 11th December she signed a transfer direction on behalf of the Secretary of State under section 47 of the Act. At that time, it was known to the Mental Health Unit that a bed would not be available until 16th December. In the event, the applicant was not transferred until 17th December, because a bed was not available until that day. Thus it was that she was transferred on the very day that she was due to be released from custody.

6. The applicant challenges the lawfulness of the decision of 11th December on a number of grounds, but before I turn to consider these, I need to refer to the relevant statutory provisions, and to certain parts of the Code of Practice issued by the Secretary of State under section 118 of the Act.

7. Part II of the Act contains provisions dealing with the compulsory admission to hospital of patients suffering from mental disorder by civil process. Part III sets out provisions applicable to patients suffering from mental disorder who are concerned in criminal proceedings or are under sentence. In particular, section 37 empowers a court to make a hospital order as an alternative to a prison sentence for an offender who is found to be suffering from mental disorder at the time of sentencing such as to warrant detention in hospital. The power to make an order under section 37 is dependent on the conditions mentioned in subsection (2) being satisfied. These are:

8. Section 47, so far as material, provides:

9. The Code of Practice provides, so far as material:

10. It is submitted by Miss Morris on behalf of the applicant that the decision to transfer of 11th December was unreasonable in the Wednesbury sense because:

11. It is convenient to take the criticisms of the reliance of this report together. The first question is whether there should be any (and if so what) time limit between the date of a medical assessment and the date of a transfer direction. The Act does not expressly impose any such limit. Miss Morris makes the point that elsewhere in the Act the draftsman has made it clear that time limits are important, and she suggests that the 14 day time limit in section 47(2) provides a clue as to what may be a reasonable period between the date of a medical assessment and a transfer direction.

12. In my view, the omission to impose a time limit for the purposes of section 47(1) is not surprising. Such a provision is unnecessary and probably undesirable. I accept the submissions of Mr Mould on this. Section 47(1) requires the Secretary of State to be "satisfied by reports from at least two registered medical practitioners" that the two conditions specified in paragraphs (a) and (b) of the subsection are met. Only if he is so satisfied may he exercise his power to transfer, and then only if he is of the opinion that it is expedient to do so having regard to the public interest and all the circumstances. If the reports are manifestly unreliable, then the Secretary of State cannot reasonably be satisfied that the two conditions are met on the basis of the reports, and a decision to rely on them in such circumstances will be capable of successful challenge by judicial review. A medical report may be unreliable for a number of reasons. It may on its face not address the relevant statutory criteria. It may be based on an assessment which is so out of date that the mere fact of a lapse of time will be sufficient to render it unreliable. It may be unreasonable to rely on a report based on an assessment conducted an appreciable, but not inordinate, time before the decision to transfer where the mental disorder is a fluctuating and unstable condition and/or where there has been a change of circumstances since the assessment was made. In each case, it will be for the Secretary of State to consider whether in his judgment the medical report is one on which he can safely and properly rely so as to be satisfied that the conditions set out in paragraphs (a) and (b) of section 47(1) are met. One of the considerations that will be uppermost in his mind is whether the assessment on which the report is based is sufficiently recent to provide reliable evidence of the patient's current mental condition.

13. Miss Morris submits that it can never be reasonable for the Secretary of State, when considering whether to make a transfer direction, to rely on a report made for the purposes of section 37. I do not agree. The medical criteria for the making of a report under the two sections are the same: compare section 37(2)(a)(i) with section 47(1)(a) and (b). The question for the doctor is, therefore, the same in each case. The fact that the criteria for the court under section 37 are different from the criteria to be taken into account by the Secretary of State under section 47 is irrelevant. What is, however, different is the situation of the patient. In relation to section 37 the patient has been convicted, but not yet sentenced. In some cases, the patient may not have been remanded in custody, and may never even have experienced a custodial sentence in his or her life. At the section 47 stage, the doctor is assessing someone who has received a custodial sentence, and who has been serving it, in some cases, for a long period. Whether that makes a difference to the mental condition of the patient will vary from case to case. There may be some mental disorders which are so serious, and so enduring, that it is reasonable for the Secretary of State to rely on an assessment made at the pre-sentence stage, because it is clear from the report made at that stage that the fact that a custodial sentence has since been passed, and served in part, cannot make a material difference to the assessment. But, in my view, the Secretary of State should be slow to conclude that a report based on an assessment made for the purposes of section 37 can safely be relied on for the purposes of making a direction under section 47.

14. In the present case, the second report of Dr Azuonye made it clear that the applicant's condition was not stable. He said that her mental state was deteriorating, and that she represented an increasing risk to others. In those circumstances, the Secretary of State should have been alert to the real possibility that her condition might have changed six weeks later. He should have appreciated that the passing of a custodial sentence and the serving of part of it in prison might well have made a difference. The applicant was a woman of previous good character and had had no previous history of psychiatric problems. There is no evidence that the Secretary of State addressed his mind to these possibilities at all.

15. In my judgment, it was unreasonable in the Wednesbury sense for the Secretary of State to rely on the report of Dr Azuonye in the circumstances of this case. There was nothing to indicate that it was safe to assume that the applicant's mental state in early December was bound or even very likely to be the same as it had been at the end of October. The situation was different, and the Secretary of State knew that her condition had been unstable in October. It is no answer to say that the Secretary of State was entitled to rely on Dr Doig's report as "corroborative" of Dr Azuonye's out-of-date report. The statute plainly requires two reliable independent reports. It is not sufficient to rely on an unsatisfactory out-of-date report merely because its conclusion happens to coincide with that of a recent reliable report. In any event, that is not how the Secretary of State seeks to justify his direction. He merely asserts that he concluded that it was appropriate to rely on the two reports.

16. Miss Morris bases herself on paragraphs 3.13 and particularly 3.14 of the Code. The evidence does not disclose why the assessment by Dr Doig was not conducted until 25th November and why Dr Azuonye did not write his second report until 3rd December. The Home Office officials acted with commendable speed once the case reached them. Miss Morris submits that unless there are exceptional circumstances, it is unreasonable for the Secretary of State to make a transfer direction close to the date of release, and even more so on the date of release itself. She submits that there were no such circumstances in this case, so that the decision to make the direction on 11th December and carry it into effect on the actual date of release was Wednesbury unreasonable.

17. The response of the Secretary of State to this point appears at paragraph 10 of the affidavit of Mr Shackleford. He says:

18. Short sentences pose particular problems. It is obviously undesirable to direct a transfer at or close to the end of a custodial sentence. As paragraph 3.14 of the Code recognises, a transfer at that time may well be seen by the prisoner as being intended primarily to extend his or her detention, and may result in an uncooperative attitude towards treatment. But in the case of a short sentence, it will inevitably happen from time to time that transfer directions are made close to the release date. I do not accept that it is only in exceptional cases that the Secretary of State can lawfully make a direction close to the date of release. In deciding whether in all the circumstances it is expedient to make a direction, one of the factors that he should take into account is the effect on the prisoner of the timing of the direction. That is plainly a relevant circumstance, and the Secretary of State had regard to it in the present case. But it is a matter for him to decide how much weight to give to that factor, when viewed in the light of the patient's mental disorder and the need to have regard to the public interest. It is unfortunate that the two medical reports were not made until towards the end of the applicant's sentence. But the issue for me is whether in all the circumstances, no reasonable Secretary of State, properly applying section 47(1), could have made the transfer direction when he did. Having regard to paragraph 10 of Mr Shackleford's affidavit, I am satisfied that this ground of challenge must be rejected.

19. For the reasons given earlier, the Secretary of State should not have relied on the second report of Dr Azuonye. If the matter stopped there, I would feel constrained to make an order quashing the direction of 11th December. But on 14th January 1999, Dr Azuonye reviewed the applicant at an after care meeting for the purposes of section 117 of the Act. On the same day, he wrote a letter which included the following passages:

20. Then a little later:

21. The reference to the report of Dr Page is to a report dated 8th January by a consultant psychiatrist who made an assessment of the applicant at the request of the applicant's solicitor. Dr Page concluded that the applicant showed no signs or symptoms of mental illness, and that there was no convincing evidence in the prison and hospital notes that she had ever shown signs or symptoms of mental illness during her detention in prison and hospital.

22. Mr Mould submits that Dr Azuonye's letter shows that, if he had made an assessment of the applicant in late November, he would have written a report in substantially the same terms as his second report and the report of Dr Doig, so that the decision of the Secretary of State would have been no different. Miss Morris submits that it is not possible to be sure what the outcome of an assessment by Dr Azuonye in late November would have been. As she points out, the applicant was suffering from a fluctuating condition. All that can be said with certainty, she submits, is what assessment Dr Azuonye made on 28th October 1998 and 14th January 1999.

23. Miss Morris has argued this case most persuasively, but I cannot accept her submission on this point. On any fair reading of the letter of 14th January, it seems to me that Dr Azuonye is saying that the applicant has remained mentally ill since 28th October. As he says:

24. He refers to the fact that she told him that during her time in prison, her food had been spiked, people were murdered in prison, and so on. These were the very same paranoid thoughts that were recorded by Dr Azuonye in his earlier report and by Dr Doig in his report. The letter goes on to say that the applicant's father confirmed that she was becoming increasing suspicious of people. Finally, Dr Azuonye asserts in terms that the applicant was mentally ill whilst in hospital, and remains so, and that the transfer direction had been properly made. In the light of this material, I consider that there is no reasonable possibility that, if Dr Azuonye had made an assessment in late November, he would have reached a different conclusion from that expressed in his second report and in his letter of 14th January.

25. In these circumstances, I am satisfied that, if (as he should have done) the Secretary of State had insisted on an up-to-date report from Dr Azuonye, he would still have made the transfer direction, and that the direction would have been unimpeachable.

26. In the result, I do not think that it would be right to exercise my discretion to grant any relief to the applicant, since I do not consider that the error made was material to the decision of which she complains. Accordingly, this application is dismissed.

27. MR MOULD: My Lord, in the light of the basis on which your Lordship has dismissed the application, might I just take instructions on the question of costs?

28. MR MOULD: My application would be that the application be dismissed but with no order for costs.

29. MISS MORRIS: My Lord, that would be acceptable to the applicant.

30. MR JUSTICE DYSON: You are legally aided, are you?

31. MR JUSTICE DYSON: So no order for costs, save for legal aid taxation?

32. MISS MORRIS: Save legal aid taxation.

33. MR JUSTICE DYSON: I am grateful to both of you for your very helpful and comprehensive arguments.