IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
THE QUEEN
(On the application of E) Claimant ASHWORTH HOSPITAL AUTHORITY Defendant
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)
Ms Eleanor Grey (instructed by Reid Minty for the Defendant)
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AS APPROVED BY THE COURT
Crown Copyright ©
The views of the experts at Ashworth
“In general, there should be no objection to sexual activity within this hospital which causes no harm to others or which leads to increased risks of harm to others. It is my view from reading his past notes that allowing [E] to engage in sexual activity in public, (ie to enact his sexual fantasy of wearing women’s clothing in front of other patients) would be likely to be associated with unwise behaviour. It is my judgement that allowing [E] to carry out his sexually preferred activities in private is appropriate. It is for this reason that I have agreed that he is allowed to have a number of items of women’s clothing to be kept within his room.”
“There are reasons to believe that such new arrangements would cause difficulties in [E]’s care (without considering any wider issues). Having reviewed the case notes, I was able to identify a period in 1989 when he was given the impression that he would be allowed free access to women’s clothing (this was following the initial assessment by Ms Sambrooks). It is clear from the notes that he became intensely preoccupied with this issue to the exclusion of all others and this culminated in his actively planning to escape. It is my view that these difficulties were all related to sexual arousal. I would anticipate a similar pattern of behaviours if he were again to be allowed free access to women’s clothing.
[E]’s stated wish is to complete a real life test and live as a woman. If he remained in this hospital then this would imply he would at some point become a patient on a women’s ward. There is important information that suggests this would be a cause for concern. [E]’s notes are extensive. My initial reports were inevitably based on a relatively superficial review of these notes. More information has come to light. Of particular importance in this context is the evidence of his showing inappropriate behaviour towards female staff. While at Severalls Hospital in 1982 he showed a pattern of behaviours that are commonly referred to as ‘stalking’. His recall from Runwell Hospital was due to his making an inappropriate approach to female care worker. Between 1995 and 1996, he showed an identical pattern of behaviours in relation to a female nurse at Ashworth Hospital (this later information has not been highlighted in earlier reports). These behaviours by [E] were a cause of alarm and concern to the women to whom they were addressed and to wider staff groups even though there were no specific aggressive acts. Those behaviours were underpinned by a number of abnormal beliefs about particular female nurses. Those beliefs are still present and active. Given that [E] has a history of repeated inappropriate behaviours towards women, I would not consider it appropriate at any time for [E] to be an in-patient on a women’s ward dressed as a woman within this hospital or in any other secure setting. It is my opinion that female patients would be vulnerable to inappropriate advances by [E].”
“In this report, I am concentrating on the clinical issues about [E]. As [E]’s doctor, it is my firm view that allowing [E] unrestrained access to female clothing would lead to him behaving in an unwise manner and therefore likely to put others at risk and damage his prospects of making further progress.
There are a wider set of issues however. If it were agreed that [E] had the right to dress as a woman whenever he chose then clearly that right would apply to all other patients within the hospital. It is my judgement that if [E] were to suddenly change into women’s clothing this would not be an effective disguise and this in itself would not lead to a major risk of subversion of security systems. However, while this is true for [E], there may well be other male patients who could convincingly pass as a woman ….”
“12. I have a number of general concerns regarding patients wanting to cross dress. Firstly; Ashworth is not prison but a secure hospital and accordingly the Court should have regard to the Admission Criteria and the types of patient that the Hospital treats. The purpose of the patients’ detention at Ashworth is to treat them. We have many patients who have been perpetrators or victims of sexual abuse and have continuing difficulties in their relationships with men or women or both men and women, sometimes involving sexual aggression and sometimes physical aggression.
13. If any male patient was allowed to wear women’s clothing it would have an effect not only on that patient, which would need to be monitored very carefully, but it would effect all the other patients with whom he come into contact. The issue of any single patient cross dressing must be considered in conjunction with the likely effect on his peer group, who are all in a high security Hospital for treatment on account of their ‘dangerous violent and criminal propensities’ (NHS Act 1977).
14. The connection between clothing, gender and risk of sexual or physical assaults is complex and assessing the risks involved is very demanding for each patient involved. The very limited contact between men and women patients is used to manage this risk at present. The wearing of the opposite sex’s clothing by an individual patient would complicate this assessment to an unmanageable degree. However the difficulties do not just end with the individual patient as we obviously have concerns about the treatment of other patients and the internal security of the Hospital.
15. If a patient was allowed to cross dress this could increase the risks of assaults by the patient with the clothing and increases the risk of assaults on that patient. It may also lead to assaults on staff. Furthermore, even if all potential assaults upon a patient were dealt with there is an increased risk that a patient would be ostracised and ridiculed. This would clearly be detrimental to that patient’s treatment. However other concerns, aside from how an individual patient is allowed to dress, also arise.
16 If one patient has access to female clothing in a clinically agreed way this increases the risk that these garments may get into the hands of patients who are not authorised to have access to such clothing. If that happens it could be harmful to the treatment of the patient who received the item and to the patient whose item it was. The ‘misplacing’ of such items is a real risk and I would refer the Court to the experience of the staff dealing with the Claimant. The risk of unauthorised patients obtaining female clothing is particularly high if a male patient is allowed to wear female clothes in all parts of the Hospital as the Claimant argues he should be allowed to. This must therefore be the subject of control by the Hospital and individual patients’ Care Teams.
17. Of greater concern is the fact that the Claimant’s solicitors are arguing that it is a fundamental right that all patients should be allowed to dress how they please. I entirely disagree because that would mean that any patient would have the right of access to any clothing no matter how that would relate to their mental disorder. That cannot be allowed to happen.
Current limitations
18. Some patients in a secure mental hospital may wish to dress bizarrely as a result of abnormal ideas, or aggressively in response to a persecutory idea. Some patients with severe mental illness may have such difficulties in managing their day to day lives that they need direct support in choosing decent and clean clothing. Thus if limitations were not placed on the patients’ ability to dress how they like there is a real risk that this would lead to a deterioration in treatment.
19. Deterioration in a patient’s treatment will affect that individual patient’s mental conditions, which would be a serious consequence in itself, and would be contrary to the purposes for which they are detained. Patients are routinely monitored as to what they wear and in some cases this forms part of a patients’ care programmes. The more obvious examples of this are ensuring that patients are fully clothed and decently clothed, that their clothing is not likely to provoke or offend other patients and that their clothing is clean, as I have mentioned above.
20. Similarly both male and female staff are subject to risk assessment in relation to the appropriateness of their clothing when working with individual patients. This issue is considered by managers in relation to the management of risk. It is as equally important that staff are appropriately dressed when on the secure premises as the patients and no staff are permitted to cross dress.
21. The Hospital provides patients with both indoor and outdoor clothing for everyday use. This clothing is restricted to approved types. Furthermore any clothing that patients wish to buy is subject to Hospital approval. The reasons for these restrictions have been dealt with in part in relation to cross dressing. However there are more general concerns regarding patients wearing what they want.
22. I am informed by … the Head of Security, at Ashworth that clothing is restricted on two main grounds. The first I have dealt with in part and that is the restriction on clothing that presents a risk to the environment. This included cross dressing but also includes items such as military clothing (or other uniforms), steel toe-capped boots and similar footwear. The reason for this is that not only could uniforms have an adverse effect on some of the patients, indeed staff do not wear uniforms, but items such as heavy duty boots are clearly not desirable because of the injuries that can be caused to others. I am informed that security staff have refused requests for specific items of clothing such as ‘punk’ style leather trousers with chains and locks on them, for obvious security reasons. I believe it is only sensible and reasonable that such items should be restricted.
23. The second ground for restricting clothing is to prevent patients from ‘masquerading’ out of the Hospital. To this end patients are not allowed to purchase or wear items that might enable them to pass themselves off as staff. Because staff do not wear uniforms, items that are prohibited include key straps, ‘bum bags’ and any form of identification badge. Furthermore the security staff would be concerned if patients were allowed to wear clothing of the opposite sex from the point of view that it would also alter their appearance, as well as present a risk to the environment.
24. In a setting where people are detained for, amongst other reasons, the protection of the public it is important that those who are detained can be readily identified. In a crisis situation on a male ward, if someone was wearing a dress it might be assumed that that person was a member of staff, because no female patients are allowed on male wards. This could have dangerous consequences.”
“We have the most violent, most disturbed and most generally challenging patients at Ashworth. We simply cannot allow this man to dress in women’s clothing without careful consideration and necessary limitations ….”
Other expert views
“I am aware of other persons in institutional settings currently having opportunities to undergo the real life test. This includes life term prisoners. These other institutions have been able to facilitate treatment in compromised settings to help meet the unique needs of such persons."
"… [W]e do have patients here at Charing Cross who are currently prisoners who are receiving female hormones, who are presenting themselves substantially as women within the prison setting and who are doing very well without difficulties from other prisoners. One prisoner whom I am treating is currently being administered estrogens and is allowed to appear socially in prison as a woman. There have been no difficulties. That person is in prison for murder. Additionally, I am aware that there are some prison inmates who have had sex reassignment surgery performed at this hospital.”
Criticisms of the hospital's reasoning
The alleged absence of power to control what a patient wears
“(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law … and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order …
(2) The conditions referred to in subsection (1) above are that -
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either:
(i) the mental disorder from which the offender 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 the deterioration of his condition; or ….”
“Sections 3 and 37 of the 1983 Act provide for detention, not just for its own sake, but for treatment. Detention for treatment necessarily implies control for that purpose. If any authority were needed for that proposition, it is to be found in the reasoning of Lord Widgery CJ and of Lord Edmund-Davies in R v. Bracknell Justices, ex p. Griffiths [1976] AC at 318E-G, DC, and 335E-H, HL, respectively, when construing the statutory predecessor of the 1983 Act, the Mental Health Act 1959. Both statutes leave unspoken many of the necessary incidents of control flowing from a power of detention for treatment, including: the power to restrain patients, to keep them in seclusion …, to deprive them of their personal possessions for their own safety and to regulate the frequency and manner of visits to them …. Lords Widgery and Edmund-Davies were of the clear view that the power of detention and treatment necessarily carries with it a power of control and discipline ….
In my judgment, the Judge correctly approached the question of vires by considering first whether there is a general power of search and, as part of that exercise, a power of random and/or routine search. The question for him and for this Court is whether the express power to detain for treatment necessarily implies a power to search with or without cause. From the passage in his judgment that I have cited, it is clear that he kept well in mind the linkage between detention and treatment and rightly concluded that the interests of both necessitated the implication of such a power ….
The Judge correctly adopted the rigorous test voiced by Steyn LJ in R v. Home Secretary, ex p. Leech [1994] QB 198, CA, at 212E-F, namely that Broadmoor had to show 'a self-evident and pressing need' for the power for which it contended ….
… [O]nce the Judge had concluded, applying Lord Justice Steyn's rigorous test, that there was an implied general power of search with or without cause, the means - that is, the specific regime of random and/or routine searches proposed - to achieve the lawful object of detecting dangerous objects and harmful substances fall to be judged by no more than Wednesbury principles ….
In my judgment, one has only to consider the statutory context in which this issue has arisen, the detention for treatment of mentally disordered patients 'under conditions of special security on account of their dangerous, violent or criminal propensities', to be driven to the conclusion that the power contended for by Broadmoor is essential to enable it to fulfil its prime function of treatment of its patients. Given their mental conditions and propensities requiring such treatment, it is obvious that, in the interests of all - in particular the need to ensure a safe therapeutic environment for patients and staff - that the express power of detention must carry with it a power of control and discipline, including, where necessary, of search with or without cause and despite individual medical objection.” (per Auld LJ at tr. 14-17
Article 8 ECHR
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“88. This interference constituted a breach of Article 8, unless it was 'in accordance with the law', pursued a legitimate aim or aims under paragraph (2), and was moreover 'necessary in a democratic society' for achieving those aims.
The Court recalls that the expression 'in accordance with the law' requires first that the impugned measure should have some basis in national law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.
89. While there can be no doubt as to the existence of a legal basis and the accessibility of the law in this case, this is not true of the requirement of foreseeability of the law as to the meaning and nature of the applicable measures.
Compatibility with the rule of law implies that there must be a measure of protection in national law against arbitrary interferences with the rights safeguarded by paragraph (1). If a law confers a discretion on a public authority, it must indicate the scope of that discretion, although the degree of precision required will depend upon the particular subject matter.
90. The Government argued that the impugned decisions were based directly on section 51(1) of the Hospitals Act ["Patients who are compulsorily detained … may be subjected to restrictions with respect to freedom of movement or contact with the outside world"] and Articles 216 and 282 of the Civil Code [general powers of a guardian/curator], to which should be added section 8(2) of the Hospitals Act [power of medical treatment] and sections 3 and 4 of the Incapacitation Regulations [general powers of an adviser/guardian].
91. These very vaguely worded provisions do not specify the scope or conditions of exercise of the discretionary power which was at the origin of the measures complained of. But such specifications appear all the more necessary in the field of detention in psychiatric institutions in that the persons concerned are frequently at the mercy of the medical authorities, so that their correspondence is their only contact with the outside world.
Admittedly, as the Court has previously stated, it would scarcely be possible to formulate a law to cover every eventuality. For all that, in the absence of any detail at all as to the kind of restrictions permitted or their purpose, duration and extent or the arrangements for their review, the above provisions do not offer the minimum degree of protection against arbitrariness required by the rule of law in a democratic society. According to the information provided to the Court, there has been no case law to remedy this state of affairs. There has therefore been a violation of Article 8 of the Convention.”
Conclusion
MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in the judgment, I hold that the restrictions placed by Ashworth Hospital Authority on the freedom of the claimant to cross-dress as a woman are lawful and the claim for judicial review is dismissed.PRIVATE
MISS GREY: My Lord, in those circumstances I would only ask your Lordship for one further thing, which is an order for costs. My Lord, I have been consulting my White Book and I believe that the correct form would be an order that your Lordship should make that the claimant was to pay the defendant's costs, but such costs to be determined by a detailed application and assessment made on any further application to the taxing master. That would, I think, be the form. The purpose of such an order would be to enable settlement to be made against any costs order that claimant already has and if there were any further litigation pursued by that claimant, it would also leave open the possibility of the settlement of costs (inaudible).
MR JUSTICE RICHARDS: Yes, I think that the standard legal aid order, as it used to be, is pretty well in that form. It would probably give a reference to a costs judge rather than a taxing master. You make an application for costs on that basis?
MISS GREY: I do, my Lord.
MR KOVATS: My Lord, I am here in place of Miss Morris this morning and I do not resist that.
MR JUSTICE RICHARDS: No. Thank you very much. I will make an order in those terms.
I did not get any comments on the draft judgment. I assume that that is because there were no typographical corrections to be made.
MISS GREY: My Lord, I was just going to mention that and apologise. I did in fact send a fax through to say that I had no comments or amendments to suggest. Unfortunately, I discovered at 4 o'clock yesterday that it had not actually gone through to your Lordship. I am sorry.
MR JUSTICE RICHARDS: So, there are no further amendments to be made to the judgment.
MISS GREY: Yes.
MR JUSTICE RICHARDS: Thank you very much.
MISS GREY: Thank you, my Lord.
MR JUSTICE RICHARDS: Thank you.