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E, R (on the Application of v Ashworth Hospital Authority [2001] EWHC Admin 1089 (19th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1089
		Case No: CO/310/2001

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

19 December 2001

B e f o r e :

THE HONOURABLE MR JUSTICE RICHARDS
____________________

THE QUEEN
(On the application of E)

Claimant

ASHWORTH HOSPITAL AUTHORITY
Defendant

____________________

(Transcript of the Handed Down Judgment of
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)

____________________

Mr Owen Davies QC and Ms Fenella Morris (instructed by J. Keith Park & Co. for the Claimant)
Ms Eleanor Grey (instructed by Reid Minty for the Defendant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Richards:

The essential issue in this case is whether it is lawful for Ashworth Hospital Authority to prevent the claimant from dressing as a woman. Ashworth is a special hospital where patients are detained for treatment in conditions of high security. The claimant, a 46 year-old man, has been detained there since 1970, save for three unsuccessful attempts to move him to less secure conditions. He was admitted pursuant to the predecessor of section 37 of the Mental Health Act 1983 as a result of committing two offences of arson and one of theft.

The claimant has for long wished to dress as, and assume the appearance of, a woman. He changed his name in March 2000 so as to take on a woman's name. The diagnosis of his condition is a matter of disagreement, to which I shall return. What is not in dispute is that he wishes to be allowed to dress as a woman within the hospital, whereas the hospital has placed substantial restrictions on his freedom to do so.

The only items of female clothing that the claimant is at present allowed to possess are undergarments, which he is permitted to wear only within his own room. They are described as including four bras and two pairs of female underpants. His responsible medical officer has made clear that in principle the claimant’s access to female clothing within his room could be expanded and that this would be the subject of clinical negotiation, but that any extra items of female clothing would still be for use only in private in his own room. Certain other measures have been adopted to accommodate the claimant’s wishes. It has been agreed that he can have his ears pierced and his hair dyed and that he can have access to women’s magazines. There have also been limited circumstances in which he has been permitted to cross-dress in the past.

The claimant’s complaint is that what he is permitted by the hospital does not go far enough. The case advanced on his behalf is that the hospital cannot lawfully prevent him from wearing women’s clothing: the restrictions placed on him are (1) outwith the hospital's statutory and implied or common law powers as a detaining hospital and/or (2) in breach of his rights under Article 8 of the European Convention on Human Rights.

The views of the experts at Ashworth

There is a marked difference of view between the claimant’s care team at the hospital and independent experts instructed on behalf of the claimant as to the correct diagnosis of his condition and as to whether it is appropriate for him to be allowed to dress as a woman. One of the points made by those at the hospital is that their views are based on a very detailed consideration of the claimant's notes as well as continuing contact with him. In any event it is rightly accepted on the claimant's behalf that the court cannot resolve disputed issues of diagnosis. The difference of expert opinion nonetheless forms an important backcloth to the submissions made on the claimant’s behalf.

There are before the court several reports from Dr Swinton, a consultant forensic psychiatrist at Ashworth and the claimant’s responsible medical officer since February 2001. Most of those reports were prepared for mental health review tribunal reviews, but a report dated 31 October 2001 was prepared specifically for the judicial review proceedings and contains an up-to-date account of Dr Swinton's views.

Dr Swinton is of the opinion that the claimant is a fetishistic transvestite. Expressing it in helpfully simple terms, he says that the claimant wants female clothing because he finds it sexually arousing to wear such clothing. He states:

“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.”

In Dr Swinton’s view the whole issue of cross-dressing can in one sense be seen as a distraction. It was not the cause of the claimant's admission in the first place, it was not the specific reason for the failure of his three periods of trial leave (where the prime cause was inappropriate sexual behaviour towards female staff or, in one case, absconding) and it is not the reason why he remains in high security. Nevertheless the cross-dressing issue is clinically relevant as it was a factor in (though not the prime cause of) two of the trial leave breakdowns.

Dr Swinton considers that the present arrangement in relation to access to women’s clothing is suitable. What the claimant is permitted is the subject of a written plan. Dr Swinton is anxious that it should be a stable arrangement and that the problem should be seen to be under control, because he views the resolution of the issue as important for any move to a medium security hospital. He says that a number of other issues also need to be resolved before the claimant is able to make such a move. (As explained below, the Mental Health Review Tribunal recommended in August 2001 that the claimant be moved to conditions of medium security as soon as possible, but no such move has yet taken place.)

In relation to the claimant’s claim to be entitled to wear women’s clothes whenever he wishes, Dr Swinton states:

“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].”

What is said in that passage is underpinned by references in other reports to specific occasions in the claimant’s history where cross-dressing was associated with a greater degree of behavioural disturbance.

Later in his report of 31 October, in the course of commenting on the views of Professor Green (referred to below), Dr Swinton takes issue with the proposition that the existing arrangement subjects the claimant to unnecessary and undue stress. He says that it is simply incorrect that the claimant is upset most of the time because he cannot dress as a woman. The claimant is sometimes upset because they do not let him have material for sexual gratification, but that is something in common with other patients detained in the hospital setting. Dr Swinton also states that as the consultant responsible for the claimant it is his duty to come to an overall view on diagnosis and management. It is his view that the actions he is taking are aimed to further the claimant’s long-term interests and in particular to increase the possibility that he may be transferred to less secure care.

Finally in the report, under the heading “wider issues”, Dr Swinton states:

“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 ….”

It is convenient to refer at this stage to the witness statement of Dr James, the Medical Director of Ashworth and herself a consultant psychiatrist. In a sense she picks up on the wider concerns expressed by Dr Swinton. I think it important to set out the relevant part of her evidence in full since, in conjunction with what Dr Swinton says in relation to the claimant’s specific circumstances, it constitutes the essence of the justification advanced by the hospital for its present approach. Dr James states:

“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.”

In her conclusion Dr James states:

“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

Professor Green, who is Head of the Gender Identity Clinic at the Charing Cross Hospital and a leading expert in this field, disagrees with Dr Swinton's diagnosis of the claimant. He takes the view that the claimant is a transsexual, i.e. has a clinically recognised need to live as a woman. In his view the claimant has been subjected to unnecessary and undue stress by being denied an effective opportunity to express his gender dysphoria and should be allowed an opportunity to commence a "real life test" so far as possible within the hospital setting, being allowed to dress in women's clothing and work in the role of a woman.

As to the practicality of such a proposal, Professor Green refers in his reports to the fact that people been permitted to dress and appear as women in other institutional settings:

“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.”

Dr Lomax, a consultant forensic psychiatrist who has prepared reports on the claimant in the past in connection with Mental Health Review Tribunal proceedings (in particular with respect to a possible placement of the claimant at the medium secure unit at Kemple View), steers a middle course between Dr Swinton and Professor Green. His own view is that the claimant is best understood as showing secondary transsexualism. Such patients are biologically normal males, unequivocally assigned at birth to the male sex, who nonetheless develop a desire to be feminine and, in time, a desire to change their sex to female. Manifestations of the underlying feminine urges usually appear in adolescence or later and the most obvious is the urge to put on women's clothes. Dr Lomax also observes that, whatever view one takes of the claimant's sexuality, his desire to cross-dress is a powerful factor which will have to be taken into account in his future management.

Criticisms of the hospital's reasoning

Mr Owen Davies QC, for the claimant, advances a number of criticisms of the reasons put forward by the hospital for the restrictions it places on the claimant's freedom to dress as a woman.

First, in relation to the risk of absconding, he points out that Dr Swinton expresses concern that in 1989 the issue of access to female clothing was linked with the claimant planning to escape, yet later concedes that women's clothing would not be an effective disguise and would not lead to a major risk of subversion of security systems; and in another report he states that dressing as a woman would be likely to draw attention to the claimant. Thus, it is submitted, cross-dressing would appear to reduce rather than to increase the risk of absconding.

In my judgment that is to look at the evidence far too narrowly. The hospital does not attach significant weight to the risk of the claimant himself absconding, and it is clear that the major security concerns go wider than that. Dr James refers to the risk that access to female clothing may assist others to escape (a point of substance despite the existence of other elaborate security measures and the very small number of successful escapes from high security hospitals) and to the risk that in a crisis situation a person wearing a dress on a male ward might be mistakenly assumed to be a member of staff. In relation to the claimant himself, passages in other reports by Dr Swinton, which I have not quoted above, indicate a concern that the risk of inappropriate behaviour if the claimant were allowed to dress as a woman extends to a risk of assaults on women. That concern is based on a number of factors: the fact that the claimant has in the past accumulated small weapons in his room and that these have been found along with female clothing; the view that his wearing of female clothing is associated with sexual arousal; and his history of inappropriate behaviour towards women. Although the claimant has not committed sexual assaults in the past, it would be wrong to dismiss a psychiatric assessment of that kind, especially given how little is truly known about the claimant's inner thoughts.

In addition to the risk of assaults by the claimant, reference should be made to the risk of assault by others on the claimant or staff. Dr James refers to the types of patient at Ashworth, to the complex connection between clothing, gender and the risk of sexual and physical assaults, and to the very demanding nature of the assessment of the risks involved. She expresses the view that the wearing of the opposite sex's clothing would complicate this assessment to an unmanageable degree. In my judgment those are legitimate concerns to which weight can and must be given. In so far as Mr Davies relies on the absence of any untoward incident in the past despite the claimant being an open transsexual, the occasions where he has been permitted to cross-dress have been limited and his history provides no adequate basis for rejecting the concerns expressed by the hospital.

The second main area of criticism advanced by Mr Davies relates to Dr Swinton's view that unrestrained access to female clothing would cause the claimant to behave unwisely and would lead to damage to his prospects of progress. It is submitted that there is an inconsistency between Dr Swinton's view that access to female clothing by the claimant provokes inappropriate interest in women and what he says in one report about the claimant having not mentioned any wish to dress as a woman during a period of close attachment to a female member of staff in 1995/6. It is also suggested that less weight should be attributed to Dr Swinton's views because Dr Swinton is preventing the claimant's transfer to conditions of medium security pending the outcome of these proceedings, although the claimant has been accepted by Dr Lomax as suitable for the medium secure unit at Kemple View and the Mental Health Review Tribunal decided in August 2001 that the transfer should proceed regardless of the current proceedings.

In my judgment Dr Swinton establishes a reasoned and intelligible basis for his concern that unrestrained access to women's clothing would be liable to damage the claimant's progress. His view that the claimant finds the wearing of women's clothing sexually arousing and that it has been associated with greater behavioural disturbance is rooted in a detailed examination of the claimant's history; and no change in the claimant's underlying mental disorder has been identified. I reject the contention that Dr Swinton's views are inconsistent with what happened in 1995/6. On the contrary, I accept Ms Grey's submission for the hospital that the events of 1995/6, which are incompatible with the idea that the claimant has a fixed view of himself as a woman, have been properly taken into by Dr Swinton in his diagnosis and in his risk assessment (where the very uncertainties surrounding the claimant's state of mind are plainly material). The decision of the Mental Health Review Tribunal relates to the timing of transfer to conditions of medium security and does not undermine the concerns expressed by Dr Swinton. The tribunal was not ruling on the risks of harm arising out cross-dressing, whether at Ashworth or in another setting. In any event, the timing of a transfer to conditions of medium security is plainly more complicated than appears from the tribunal's decision, though it is unnecessary for me to go into the details. Further, it is far from clear even from Dr Lomax's evidence that the claimant would be permitted to dress as a woman immediately on transfer.

Mr Davies refers next to what Dr Swinton says about the inappropriateness of permitting the claimant a real life test dressed as a woman in a women's ward. It is submitted that that is not an issue in the case since the claimant does not seek placement on a women's ward, but merely the opportunity to wear female clothing otherwise than alone in his room. Ms Grey points out, however, that Dr Swinton's views to do not turn on whether or not the claimant should be placed in a women's ward and that this issue was addressed because the claimant's case as originally formulated was that he should be given a real life test. I accept that what is said about the real life test is not an essential part of the reasoning in support of Dr Swinton's general view, though it is entirely consistent with that reasoning.

Mr Davies then submits that the remainder of the arguments put forward by Ashworth relate to effects on other patients and are based upon the assertions that (a) if the claimant is permitted to wear female clothing, then every patient must be permitted to cross-dress or wear any clothing of his choice, and (b) allowing any patient to cross-dress may have a negative effect on other patients. The first assertion is based on a false premise: the claimant's case is not that every patient should be permitted to do as he chooses, but that decisions should be taken on a case by case basis and that the decision to refuse to allow the claimant to appear as a woman is unlawful. The second assertion is based on vague and unparticularised statements which do not derive from any assessment of the risks in the claimant's case. (Mr Davies appeared at times to submit that a proper assessment of risk can only be made on the basis of experience of actual incidents and that any assessment made without allowing cross-dressing and gaining experience of its practical effects should necessarily be dismissed as mere speculation.)

In my judgment the therapeutic and security concerns expressed on behalf of the hospital about the wider consequences if the claimant were permitted to dress as a woman are rational and cannot be dismissed as insubstantial or as lacking in weight merely because they are of a generalised nature. An informed assessment of risk can properly be made on the basis of the hospital's understanding of its patients and of the complex problems of managing them.

Finally, Mr Davies refers to Professor Green's observations to the effect that serving prisoners have been allowed to wear women's clothing in real life tests without adverse consequences. In my judgment it does not assist the claimant to consider what has happened in other institutional settings. The consequences of permitting the claimant to cross-dress must be assessed by reference to the specific characteristics of a high security hospital and the effects on the claimant and other patients.

The alleged absence of power to control what a patient wears

The claimant is detained pursuant to what is now section 37 of the Mental Health Act 1983, which provides:

“(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 ….”

By section 145(1), "'medical treatment' includes nursing, and also includes care, habilitation and rehabilitation under medical supervision". As Lord Hope stated in Reid v. Secretary of State for Scotland [1999] 2 AC 512 at 529G, "[t]he definition is a wide one, which is sufficient to include all manner of treatment the purpose of which may extend from cure to containment".

It was held by the Court of Appeal in R v. Broadmoor Special Hospital Authority, ex p. S, H and D (unreported, 5 February 1998) that certain implied powers flow from the power under section 37 to detain for treatment:

“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

Observations to similar effect, drawing on the judgment in ex p. S, H and D, were made by Lord Woolf MR in Broadmoor Special Hospital Authority v. Robinson [2000] 1 WLR 1590 at 1599 para 26.

Mr Davies does not take issue with the principles laid down in those cases, but submits that Ashworth's refusal to permit the claimant to dress as a woman does not fall within the range of controls impliedly permitted by the power to detain him for treatment. He submits that there is a high threshold of necessity to be met if an interference with the claimant's rights is to be justified by implication from the statutory powers. In that connection he relies on passages in the speech of Lord Bingham in R (Daly) v. Home Secretary [2001] 2 AC 532, a case concerning a policy that interfered with the right of a prisoner to communicate confidentially with a legal adviser under the seal of legal professional privilege. Lord Bingham held that such a right "may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment" (538A, para 5) and went on to consider "whether, to the extent that it infringes the prisoner's common law right to privilege, the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime" (543C, para 18). Lord Bingham's conclusions were based on what he described as "an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review" (545G, para 23), though the same result was achieved by application of the Convention.

In the present case, submits Mr Davies, the interference with the claimant's rights cannot be justified by reference either to treatment or to detention. What is put forward by way of justification is too general and speculative, with no sufficient basis in concrete examples (contrast ex p. S, H and D, where the policy of random and routine searches had been prompted by specific incidents), no sufficient connection with the claimant's actual circumstances and no rational assessment of risk. The threshold of necessity has not been met.

In my judgment there is plainly an implied general power under section 37 of the 1983 Act to control what patients wear. Although Mr Davies at one point seemed to be making a contrary submission, I understood him to accept in the end that such a power does exist. It would be very extraordinary if it did not. Dr James refers to a range of problems that could not be addressed in the absence of such a power: for example, the need to ensure that patients are fully and decently clothed and the need to prevent the wearing of items of clothing that pose a direct security risk (such as steel toe-capped boots, clothing with chains and locks, or uniforms). In the language of ex p. Leech as applied in ex parte S, H and D, there is a self-evident and pressing need for the power. It is a necessary incident of the power to detain for treatment.

The question then arises whether the restrictions placed on the wearing of women's clothing by the claimant constitute a lawful exercise of that power. I consider it helpful in that connection to break out a number of separate strands that seemed to me to run through Mr Davies's submissions. First, the power must be exercised for the purposes of detention and/or treatment rather than for some ulterior purpose (see Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 977. I have no doubt that the power is being exercised for both those purposes in this case. Secondly, the power must be exercised in accordance with Wednesbury principles: the test applied in ex p. S, H and D was a test of Wednesbury reasonableness. Again I have no doubt, despite Mr Davies's criticisms of the hospital's reasoning, that its decision to impose the restrictions in question was a rational one.

Thirdly, the principles of the common law as they have developed in recent years require the court to undertake a more intensive scrutiny in relation to the application of implied statutory powers to interferences with rights: cf. Lord Bingham's application of common law principles in Daly and the observations of Lord Cooke on the Wednesbury test at page.549 para 32 of the same case. Many of Mr Davies's submissions were addressed to this aspect of the matter. They overlapped, however, with the submissions advanced in the context of Article 8 of the Convention and in the present case I think it appropriate and sufficient to examine the issues under the Convention. It is common ground that the discretionary powers under the 1983 Act must be exercised compatibly with the Convention and in particular with Article 8. There is an admitted interference with the claimant's rights under Article 8(1), which the hospital must therefore justify under Article 8(2), and it is accepted that the exercise of powers under the 1983 Act is lawful only if and to the extent that the hospital is able to make good that justification. It has not been suggested that the threshold of necessity is higher under the common law than under the Convention and I see nothing in the circumstances of the case that could support such a conclusion. The arguments relating to the common law position do not add materially to those advanced under the Convention.

In the circumstances it is sufficient for me to indicate here that I reject Mr Davies's common law arguments for reasons corresponding to those set out below when examining Article 8. I therefore reject the contention that the hospital is acting outwith its statutory and/or common law powers.

Article 8 ECHR

Article 8 of the Convention provides:

“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.”

It is common ground that the restrictions placed by Ashworth on the claimant's freedom to dress as a woman and to assume the appearance of a woman constitute an interference with his private life within Article 8(1): cf. Kara v. United Kingdom (1998) 27 EHHR CD 272. The question is whether the interference is justified under Article 8(2).

Mr Davies submits first that the restrictions are not "in accordance with the law". Even if they are held to be impliedly permitted by section 37 of the 1983 Act, the terms of that section are too vague and imprecise for the purposes of justification under the Convention. Reliance is placed on Herczegfalvy v. Austria (1992) 15 EHHR 437. In that case the applicant was a convicted offender detained in a psychiatric hospital. One of the matters about which he complained was censorship of his correspondence, which the hospital accepted to be an interference with his rights under Article 8(1) but sought to justify under Article 8(2) on the basis that its essential purpose was to protect his health. As to that, the Court stated (pp.485-6):

“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.”

What was said in Herczegfalvy reflects well established principles as to the requirements of "in accordance with the law" (see e.g. Clayton & Tomlinson, The Law of Human Rights, paras 6.128 et seq.). In the present case it follows from the findings I have already made that the restrictions applied by the hospital have a basis in domestic law, namely section 37 of the 1983 Act as interpreted by the courts. It is clear that such law is accessible. In my judgment the requirement of foreseeability is also met. Although the statutory provision itself is in very general terms, greater precision has been given to it by the case law. In particular, the exposition in ex parte S, H and D, drawing on earlier authorities, not only made clear that the power of detention and treatment necessarily carries with it a power of control and discipline, but also gave specific examples, such as the power to deprive patients of their own possessions for their own safety, which made it eminently foreseeable that the section would be held to confer a power to control what patients wear. The limits on the exercise of the power, which are subject to the supervision of the court by way of judicial review, are sufficiently defined to provide the requisite protection against arbitrary interference with a patient's right to dress as a woman. I reject Mr Davies's contention that, if the terms of the statutory provision are imprecise, the deficiency cannot be made good by judicial interpretation. It is implicit in paragraph 91 of the judgment in Herczegfalvy itself ("there has been no case law to remedy this state of affairs") that case law is capable of providing the requisite degree of precision. That appears to me to be the accepted position under the Convention: see Clayton & Tomlinson, paras 6.133-6.138.

In reaching my conclusion on foreseeability, I have also borne in mind that the degree of precision required depends on the particular subject matter and that the subject matter here, although sensitive, is less important than that in issue in Herczegfalvy, where the Court was particularly concerned about interference with correspondence which was a patient's only contact with the outside world. Further, the fact is that the claimant knows in practice precisely what he is and is not permitted to do, since the arrangements have been set out in a written plan with a view to ensuring stability. Nor is this a case of punishment for contravention of a law, where a complaint about lack of foreseeability may have particular significance.

Mr Davies's remaining and more important submissions on the issue of justification under Article 8(2) focus on whether the interference is necessary. What is said is that the expression of a person's sexuality is a very sensitive matter and substantial reasons are required if an interference with it is to be justified. Even if his actions are considered "unwise", a person in hospital has a right to dress as he wishes unless the hospital can establish the need to restrict that freedom. In this case, however, the concerns expressed on behalf of the hospital are simply too general and speculative to amount to a lawful justification. There is an insufficiently rational connection between the speculation about possible risks and the refusal in the claimant's case; and the claimant's own history does not support the restrictions placed upon him. There is a failure to apply a reasoned, individualised approach based on concrete examples. The existence of a divergence of expert view, it is submitted, reinforces the case that a justification has not been made out.

Ms Grey submits, and I agree, that despite the existence of a difference of expert view, the starting point for consideration of those issues should be the view taken by those responsible for the claimant in the hospital. The diagnosis made by the claimant's care team has been maintained after consideration of the competing views and has an important bearing on the assessment of risk in the event of the claimant being allowed to dress in women's clothing as he wishes. It must be borne in mind that the hospital authority is the decision maker in this case. The court's role is to subject that decision and the reasons for it to appropriately intensive scrutiny in determining whether the interference with the claimant's rights meets a pressing social need and is proportionate to the aim pursued, but it is not for the court to engage in a full merits review so as to reach its own independent decision on the matter (see per Lord Steyn in Daly at pages.546-8). It is wholly in tune with the Convention for the court to give due weight to the judgment of the medical authorities whilst satisfying itself that the necessity for an interference has been shown (see e.g. Herczegfalvy at page 484 paras 82-83).

I have already examined in detail Mr Davies's criticisms of the hospital's reasons for the restrictions placed on the claimant's freedom to dress as a woman. The conclusions reached on those matters underlie my rejection of the challenge advanced by Mr Davies to the hospital's case under Article 8(2). In my judgment the hospital has put forward valid therapeutic and security concerns in support of its approach. I am satisfied that the restrictions are imposed in pursuit of legitimate aims and that there is a rational connection between the aims pursued and the concerns advanced. In so far as it relates specifically to the claimant, the assessment of risk is based on a clinical judgment informed by a detailed examination of his history. I do not accept that the matters relied on in the claimant's history are irrelevant or occurred too long ago to be of significance. Indeed, the absence of any change in the claimant's mental disorder makes the history particularly significant. Nor do I accept that there has been sufficient experience of the claimant wearing women's clothes without problems as to cast doubt on the assessment that has been made.

I also consider that weight can properly be placed on the wider concerns expressed by the hospital as to the therapeutic and security risks in relation to other patients if the claimant were permitted the freedom that he seeks. What one patient is permitted to do in a high security hospital is plainly capable of affecting others within the hospital environment and there can be no rational basis for leaving the impact on others out of account. It is true that the wider concerns are of a generalised nature, but that does not destroy their force. They are based on a knowledge and understanding of the patient group and of the complex problems of managing such patients within the hospital environment. I do not consider that greater specificity is needed.

Another material factor is that, on the clinical judgment of the claimant's care team, cross-dressing is not of clinical importance for him but, on the contrary, would be liable to retard his progress and the restrictions do not subject him to undue stress. Moreover the arrangements in place give him limited access to women's clothing within his own room and could be expanded on the basis of clinical negotiation. There is no blind application of a general rule, but an individualised plan based on an overall assessment of risk.

Taking everything together, I am satisfied that the restrictions placed on the claimant reflect a pressing social need and are proportionate to the legitimate aims pursued. In my judgment there is a valid justification under Article 8(2) for the hospital's interference with his right to respect for private life.

Conclusion

For the reasons given above, I have reached the conclusion that the restrictions placed on the claimant's freedom to dress as, and to assume the appearance of, a woman are lawful. The hospital is acting within its powers under the 1983 Act and compatibly with the Convention. The claim for judicial review is therefore dismissed.

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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.