England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Monday, 2nd July 2001

Monday, 2nd July 2001

1. MR JUSTICE SULLIVAN:

Introduction

1. The claimant is a restricted patient presently detained in Broadmoor Special Hospital under the provisions of the Mental Health Act 1983 (the 1983 Act). She challenges the refusal of the defendants to fund the costs of a placement for her at the Edenfield Centre Medium Secure Unit in Manchester (Manchester). At the outset of this hearing I made an order under CPR 39.2(2) prohibiting disclosure of the claimant's identity. It would be inconsistent with that order to set out the factual background to her claim in great detail.

Facts

2. In summary, the claimant was convicted of manslaughter on the grounds of diminished responsibility in 1992. At the time of the offence, and for most of her childhood and adolescence, she had been living in Oxfordshire. She is classified under the 1983 Act as suffering from a psychopathic disorder, namely a personality disorder associated with "seriously irresponsible or abnormally aggressive behaviour". Whilst there are substantial differences of clinical judgment between the claimant's Responsible Medical Officer (RMO), Dr Orr, and the first defendant's consultant forensic psychologist, Dr Bullard, of the Littlemore Mental Health Centre, a medium secure unit at Oxford (Oxford), there does appear to be at least some measure of clinical consensus that the claimant requires further work on, inter alia, family relationships before she could be considered for discharge. Until 1998 the claimant's parents lived in Oxford and are able to visit her every two weeks at Broadmoor. In 1998 they moved to Blackpool and were able to visit the claimant only twice a year. She is able to visit her parents once every three months.
3. Therein lies the problem at the heart of this case. It is not in dispute that the claimant no longer requires the conditions of high security that are provided at Broadmoor. She is ready to be transferred to a medium secure unit, should it be at Manchester or at Oxford? A place has been available for her at Manchester. The second defendant is the claimant's responsible health authority because she was "usually resident" in its area at the time of her admission to Broadmoor. It has a contract with the first defendant to provide medium secure beds at Oxford. In order for the claimant to be transferred to Manchester, the second defendant would have to make an extra contractual referral (ECR). Decisions on such requests for ECR are initially taken on behalf of the defendants by Dr Rose, a consultant psychiatrist. If the patient challenges a refusal by Dr Rose, the matter is referred by him to the second defendant's Priorities Forum (the Forum).
4. The Forum is made up of clinical representatives of all the NHS Trusts in Oxfordshire, Primary Care Groups and the Community Health Council are represented, and membership of the Forum includes a medical ethicist, a health economist and senior staff of the health authority.
5. On 8th January 1999 Dr Orr wrote to Dr Bullard seeking her approval for the claimant to be moved at some time in the year 2000 to medium security at Manchester (or at another unit) outside the Oxford area:

"She does not wish (and we do not think it is appropriate) to come to the Oxford region as she has no contacts there. She will require to have gradually increasing periods in the community and contact with her parents."

6. Dr Bullard did not agree with this suggestion. In a letter dated 12th January 1999, she said:

"I do think that [the claimant] presents very serious problems for the future. She is completely incapable of caring for herself in the community and will need high cost psychiatric care indefinitely. I feel that it would be more appropriate for her to be admitted to [Oxford] initially, on a period of trial leave, and would not want the Oxfordshire Mental Healthcare NHS Trust to fund her care in either Manchester or Devon, merely because [the claimant] has a whim that she does not want to return to Oxford."

7. Dr Orr prepared a report dated 1st February 1999 for a forthcoming hearing before a Mental Health Review Tribunal. In that report she said of the claimant:

"She has been assessed by a team from Ashworth Hospital as it was at one time believed that she might wish to transfer there as her parents have moved from Oxford to Blackpool. However the team recommended that she stay in high security and that it would be inadvisable for there to be a change in the therapeutic alliance she has made at Broadmoor Hospital. Although we agree with this, we are still of the opinion that she should have an agreement reached by the [Oxford] team that they will be prepared to fund her at a medium secure unit in the north-west when she becomes ready to move there. This is currently in dispute."

8. The patient's condition is then described in a little detail, and the report continues:

"She has become more open and there is a degree of warmth beginning to come into her interactions, but it is difficult to know whether more benefit would be gained by keeping her for a further year in Broadmoor Hospital, or whether we should be moving now to the north-west for a medium secure unit...the majority [of the team] believe that by the end of 1999, she should certainly be in medium security and that that unit should be in the north-west of England. This is a majority view but not a unanimous one."

9. The claimant was assessed by Dr Bullard's senior registrar, Dr Patterson. In a report dated 8th February, she advised that the claimant would need a lengthy period of trial leave in medium security followed by a substantial period, longer than two years, in medium security. She said that Oxford should retain clinical responsibility but added:

"However, should [the claimant's] forthcoming MHRT take the view that she would be more appropriately placed in the North West, we would be prepared to approach the HA about this, although of course the MHRT has no power to enforce that recommendation."

10. On 8th April 1999 the tribunal decided that the claimant should not be discharged, but added this:

"In view of the patient's improvement the Tribunal strongly recommends that she should now be considered for transfer to conditions of lesser security, initially on trial leave, to take effect, if possible, within the next year. It would be appropriate for her to move to a medium secure unit in the North West for eventual return to the community in that area; and this would have the advantage of being nearer to her parents' home in Blackpool and would also be away from the Oxford area where the index offence was committed."

The request for ECR

11. On 5th July Dr Orr wrote to Dr Rose enclosing a number of reports, including that of the MHRT. She said, inter alia:

"You will see from all the reports that the team at Broadmoor are in the majority recommending she move to medium security and I would support that personally, very strongly. She has now been 8 years in Broadmoor, she finds the idea of a return to the Oxford region extremely difficult and her parents have reported how they believe the memory of her horrific index offence remains very alive in the City, thus making rehabilitation in to that area extremely difficult. Her parents have now settled in Blackpool... [The claimant] herself has expressed the wish to re-settle in the Manchester area rather than the South where she no longer has any links. As a team we have continued to work with the parents and with [the claimant] and feel that it is important that on-going sessions continue; as she is an only child the issues of family are exceedingly important to her and to them.

We do believe that she is going to require some years in medium security but at this moment in time we cannot predict how long this will be. My proposal would be (and the patient understands this) that she should be given a chance in a medium secure unit to continue the therapy that she has been doing there; that she continues to look at issues of relationships with her father and mother and how they played a part in the index offence... If she does not manage to accomplish this safely within the 18 month to 2 year period expected in medium security, then she should be brought back to [Oxford] if it is considered that she will require several more years. However if she looks as though she will only require another year, then she should remain in [Manchester]."

12. Dr Rose asked Dr Bullard for her opinion. She replied by letter dated 16th July 1999:

"[The claimant] is adamant that she does not want to return to Oxford and it is Dr Orr's opinion that she would be best placed in [Manchester]. I did give my opinion to you in a letter dated 12.01.99 but as Dr Orr has continued to pursue the option of Manchester, I think it would be unfair to the patient to insist she comes to Oxford.

[The claimant] is an extremely difficult patient and it is unlikely that she will ever be able to live independently. She would present major problems on a medium secure unit and would probably not co-operate at all if forced to come to Oxford. I suspect that if she spends 18 months in [Manchester] they will soon be asking us to have her back!"

13. On 4th November Dr Rose wrote to Dr Orr refusing the request for ECR:

"Whilst being extremely sympathetic to your patient's case for ECR care, the current situation is such care is provided from a fixed budget which is currently overspent. The cost to our Trust of funding [the claimant's] requested ECR care would be in excess of £200,000 over a two year period. I am sure that you understand that in these situations we have to tightly 'ration' such care by only agreeing to placements as budgets become available. At present we do not have the budget to fund your request."

14. Further correspondence ensued. The claimant's solicitors wrote to the second defendant's chief executive on 20th December 1999, saying:

"[The claimant] has now reached the point at which she is ready to move on from Broadmoor Hospital to a medium secure unit, with a view to eventual discharge in to the community. Although [the claimant] was ordinarily resident in Oxfordshire at the time of her arrest and subsequent detention, she does not wish to be rehabilitated in the Oxford area, for three reasons:-

1. She believes that rehabilitation in the Oxford area would be extremely difficult, as she understands that the memory of her horrific offence remains very alive in the City;

2. Returning to the Oxford area would revive memories of her very unhappy earlier life which she now wishes to put behind her;

3. She now has a much better relationship with her parents, and wishes to be rehabilitated within reasonable travelling distance of her parents. Her parents have recently moved to Blackpool and [the claimant] therefore wishes to move to Manchester to be reasonably close them."

15. Against this background, Dr Rose referred the matter to the Forum. On 9th February 2000 Dr Bullard wrote to Dr Rose as follows:

"I am listing below the reasons I feel this patient should be admitted to the Oxford Clinic if and when she becomes well enough for transfer:

1. [She] needs continuity of care and this cannot be provided if she moves to a secure unit in Manchester.

2. [She is] a vulnerable patient who has severe and enduring abnormalities in her personality. One of the reasons that this case is causing so much difficulty is that she is insisting on a course of action which she knows I do not support.

3. The Reed Committee have recommended that patients be treated as near as possible to their homes and in a level of security appropriate to their needs. [She] has a difficult relationship with her parents and I think it unlikely that even if she does move to Manchester she will ever be well enough for discharge into the community. If she were discharged from medium security she would need hostel or sheltered staffed accommodation. There would either be the expectation that she return to Oxford or Oxfordshire Health Authority and Oxfordshire Social Services would be required to fund a community placement. My experience of managing patients out of county is that this becomes increasingly difficult and the exercise is neither clinically desirable nor cost effective.

4. [She] probably needs long term medium security and I have not considered it appropriate to recommend that the Oxfordshire Health Authority fund this indefinitely. If there were real prospect of [her] being reunited with her parents my opinion might be different. At one point I did suggest that she should spend 18 months in Manchester and if there were no significant improvement she would then be returned to the Oxford Clinic. In my opinion this would be inevitable and involve unnecessary hardship to the patient."

16. Dr Rose prepared a case summary dated 10th February for the Forum. That included the following information:

"An important background factor is a lifelong difficult relationship with parents, although this has apparently improved in recent years, but father is still noted to be over critical.

ECR Care Requested: The patient is thought to be approaching a time when she may be ready for transfer from the high secure Special Hospital setting at Broadmoor, to a more local Medium Secure Unit. The patient would normally be put on the waiting list for transfer to...Oxford. The patient's Broadmoor RMO is requesting that the patient be transferred to...Manchester...on the grounds that she could be close to her parents, who moved North from Oxford approximately two years ago. The patient is also requesting transfer to the Manchester area, and I believe the parents also support it.

In this case, I have not been able to recommend ECR care on the following grounds:

1) High quality medium secure care can be provided locally [at Oxford] when the patient becomes well enough for transfer. One important aspect of this care would be that the patient would be under a local RMO, Dr Bullard, who has known the patient for approximately nine years. This would ensure the continuity of care which is so important in patients who have severe personality disorder.

2) The nature of the offence was not sufficiently high profile to justify rehabilitation away from Oxfordshire.

3) There are conflicting clinical opinions as to the merits of rehabilitation close to parents in this patient's case, with no clinical consensus that it would be definitely beneficial.

4) The patient is likely to require a significant period of time in medium security; if she were to progress well, and if a fuller consensus was arrived at as to the benefits of final rehabilitation to the community in the area where her parents live, then the case for ECR care could be re-examined at a future date.

5) The cost of the ECR care is likely to be in excess of £100K a year. Given the level of uncertainty about the clinical benefits of transfer to Manchester, I have not at present been able to give the patient's case sufficient priority to justify the authorisation of ECR care at this time.

The Priorities Forum is asked to review the appropriateness of this decision."

17. He supplied the members of the Forum with a number of documents: Dr Orr's report of 1st February 1999 to the Mental Health Review Tribunal and her letter of 5th July 1999; and Dr Bullard's letters dated 12th January 1999 and 9th February 2000, but not her letter dated 16th July 1999.
18. Dr Rose attended the Forum meeting which discussed the case for 30 to 40 minutes. The Forum refused ECR. In a letter dated 7th March to the claimant's solicitors, the second defendant said that it supported the first defendant's conclusion:

"...that the level of uncertainty about the clinical benefits of [the claimant's] transfer to Manchester does not justify the additional cost.

The Forum based this conclusion on the following grounds:

1. High quality medium secure care can be provided locally [at Oxford], where continuity of care can be provided by Dr Bullard, who has known [the claimant] for approximately nine years;

2. The nature of the offence was not sufficiently high profile to justify rehabilitation away from Oxfordshire;

3. There are conflicting clinical opinions as to the merits of rehabilitation close to [the claimant's] parents, with no clinical consensus that it would be definitely beneficial;

4. [The claimant] is likely to require a significant period of time in medium security; if she were to progress well, and if a fuller consensus was arrived at as to the benefits of final rehabilitation to the community in the area where her parents live, then the case for ECR care can be re-examined at a future date."

19. The claimant's solicitors wrote seeking explanations/information from various parties. Dr Snowdon, the consultant forensic psychiatrist at Manchester, replied:

"It appears that placing her in a medium secure unit in Oxford relates entirely to financial considerations. I accept that the notoriety of her case was not such that she needs to be rehabilitated elsewhere, but it is not sensible in terms of continuity of care for her to be admitted to one medium secure unit in Oxford, and then to be either transferred to another closer to her family, or to be discharged into the community in due course when she will probably move to the North West of England.

However, if she were admitted to a medium secure unit in Oxford, and if she did well there, we would of course be prepared to re-assess her at the request of Dr Bullard or one of her colleagues."

20. Dr Orr replied on 20th March:

"The clinical team in Broadmoor are united in believing [the claimant] should be moved to a medium secure unit nearer her parents for rehabilitation in roughly the same part of the country."

21. On the same day Dr Bullard replied:

"It is my opinion that [the claimant] should be admitted to [Oxford] when her clinical team at Broadmoor Hospital considers her suitable for a period of trial leave."

22. The claimant's solicitors obtained further information in the form of an article in the Oxford Mail of 15th November 1997, which referred to the claimant's case, and a report by another consultant forensic psychiatrist, Dr Bercu. Her report included the following opinions:

"Relationship with her father – Further family work needs to be done in closer geographical proximity as for the time being, the dynamics of her childhood and adolescence are likely to repeat if there is no clear understanding of them in both parties...

I am making a strong recommendation that she should move as soon as possible to a Medium Secure Unit close to her parents' area for the following reasons:

* Further family therapy and resolving remaining issues with her father are essential for the safety of future relationships with men.

* She should not return to the Oxford area where the offence took place, where she was in the local papers and could be recognised in the street, making her rehabilitation very difficult...

* The team that assesses and treats the remaining psychological difficulties should be the same one that will continue to do the work once she is settled in the community. I understand she has been offered a place at...Manchester – this appears to be the most appropriate placement which maximises the possibility of safe rehabilitation."

23. The solicitors sent this additional information to the second defendant's chief executive under cover of a letter of 9th June, which said this:

"You will see that Dr Bercu agrees with the clinical team at Broadmoor and Dr Snowdon, in saying that [the claimant's] needs would be best met by moving to [Manchester].

We also enclose a copy of an article in the Oxford Mail...which refers to [the claimant].

This is clear evidence that [the claimant's] crime is still high profile, and it would be inappropriate for her to move back to the Oxford area.

We believe that your Authority will be acting unreasonably if it does not agree to fund [the claimant's] care and treatment at [Manchester]."

24. There was further correspondence and the Forum considered the matter again on 27th July. Dr Rose attended to present the case, and the Forum had the material that was before the earlier meeting, together with the additional material that had been supplied by the claimant's solicitors. The case was discussed for around about a half an hour, and Dr Rose was questioned at length by the Forum members. In a witness statement Dr Rose says this:

"I recall that the Community Health Council representative asked me whether family therapy sessions could be arranged if [the claimant] was placed in a medium secure unit in Oxford. There was discussion as to whether the quality of care locally would be of the same quality as that available in Manchester. There was also discussion as to whether [the claimant] would be placed in Oxford if financing was not an issue. The Committee did not consider that the nature of [the claimant's] index offence justified a medium secure placement away from Oxford. Neither I nor the committee found Dr Bercu's report particularly persuasive. The Committee expressed the view that given the lack of evidence of compelling need that [the claimant] should go to [Manchester] she should be placed in Oxford. The Committee also discussed the possibility of considering the case again in the future."

25. The minutes of the meeting summarised the key points from the discussion. They included:

"The solicitors are now arguing the case for transfer to Manchester on the following grounds:

* The notoriety of the index offence means that it would be inappropriate for the patient to return to Oxford where the crime is still high profile [reference was made to the article in the Oxford Mail]...

* The psychiatrist preparing the mental health tribunal report supports the patient's transfer to the Manchester area.

[Dr Rose] reported that he did not find these arguments persuasive. On the first point, the index offence was a domestic incident, not a random attack on a member of the public; the argument for the local notoriety is therefore insufficient. On the second point, questions remain over whether relocation to the Manchester area is clinically appropriate."

26. The minutes then record the consideration given to the evidence, which included the observation:

"There is no clinical consensus that rehabilitation close to the parents would be beneficial. [Dr Rose] informed the forum that there is conflicting opinion in the reports he has seen about where the patient should be transferred to."

27. By letter dated 31st July 2000, the second defendant informed the claimant's solicitors:

"The...Forum consider that the new information did not alter the decision reached when the case was last considered on 17 February 2000. The decision reached then was as follows.

'{The} recommendation that the patient be transferred to the local medium secure unit rather than the one outside the area was supported by the...Forum. It was felt that the case for ECR...was not strong enough on the grounds that clinical benefit was uncertain, whereas being placed in Oxford offered continuity of care with a familiar forensic psychiatric team, known to be of benefit to such patients. The case for an ECR could not be justified on the basis of equity when considered against other priorities. It was decided however that the case could be reconsidered in the future if and when the patient is to be rehabilitated into the community'."

Judicial review proceedings

28. An appeal was made to the second defendant's chairman and acting chief executive, who saw no reason to overturn the Forum's decision. These proceedings for judicial review were then commenced. Following the grant of permission to apply for judicial review by Lightman J on 1st March 2001, both Dr Orr and Dr Bullard have provided witness statements. In her statement Dr Orr explains why she thinks the claimant should go to Manchester rather than Oxford. She gives four reasons:

(i) Because of the unusual nature of her offence, the claimant has a high profile in the Oxford area, making it difficult for her to be rehabilitated there;

(ii) Her memories of life in Oxford are nearly all negative. Constant exposure to these influences will have a detrimental effect on her ability to reintegrate into society. Reintegration might be possible in Oxford, but would be more difficult than in Manchester;

(iii) She will have to continue working on family issues. Co-operation and involvement of her parents will be an essential part of this work, and reasonable geographical proximity is likely to facilitate this part of her treatment;

(iv) She has no personal network of support in the community apart from her parents, and her relationship with them has improved while she has been in Broadmoor:

"The ideal circumstance would be would be for her to be living in reasonable travelling distance to her family but not in close proximity."

29. Dr Bullard takes issue with all of these points. She does not consider that the notoriety of the claimant's case is such as to make rehabilitation in Oxford difficult. The claimant has been able to work on family issues at Broadmoor and could continue to do so at Oxford, and Dr Bullard does not consider "that the claimant would acquire substantial clinical gains by being placed close to her parents".
30. I should add that Dr Bullard has known of the claimant for a long time, since she examined her in Her Majesty's Prison Holloway in December 1991. It was Dr Bullard who applied for the claimant to be admitted to Broadmoor and who prepared a report for the Crown Court. Since the claimant has been at Broadmoor, Dr Bullard has had dealings with her, meeting her, attending case conferences and engaging in correspondence. She and Dr Orr disagree as to both the extent and the significance of Dr Bullard's involvement with the claimant since 1991. I mention this further evidence by way of background if only to demonstrate that the clinical disagreement between Dr Orr and Dr Bullard continues unabated.
31. The relevance of this further evidence, which postdates the decision of the Forum under challenge in these proceedings, is difficult to see. This is a review jurisdiction, not an appeal on the merits. Whatever the extent to which proportionality may or may not be available as a ground of review in the present case (see post under the heading "Reply"), "this does not mean that there has been a shift to merits review": see Lord Steyn at paragraph 28 of R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26. There is a clear distinction between information of the kind provided by Dr Rose, what documents were placed before the Forum, what issues were or were not raised in discussion by the members of the Forum, et cetera, and further argument as to the merits of transferring the claimant to medium secure conditions at Manchester or Oxford respectively.

The claimant's submissions

32. On behalf of the claimant, Mr Gordon QC contends that the Forum's decision to refuse ECR was unlawful on two grounds:

(1) It failed to accord proper weight to the RMO's clinical judgment that the claimant should be transferred to Oxford. In view of the RMO's role under the statutory scheme, her decision should, if not irrational, be determinative of the question Oxford or Manchester, or at the very least should be given considerable weight and followed in the absence of "a compelling case to the contrary".

(2) The decision making process was unfair in three respects: (i) the case against giving ECR was presented to the Forum by Dr Rose; (ii) the Forum was not provided with full information, in particular Dr Bullard's letter of 16th July 1999 and the MHRT's recommendation; (iii) the claimant's solicitors were not given copies of material which went before the committee, for example Dr Rose's summary and Dr Bullard's letter of 9th February 2000, and so the claimant did not know the case that she had to meet.

33. These submissions were amplified as follows.

Ground (1)

34. Although the claimant is detained in Broadmoor under Part III of the 1983 Act, and could not be transferred without the consent of the Secretary of State, the RMO's role under the 1983 Act is pivotal. The starting point is section 3, under which a person suffering from, inter alia, psychopathic disorder may be compulsorily admitted to hospital if "it is appropriate for him to receive medical treatment in a hospital"..."and...such treatment is likely to alleviate or prevent a deterioration of his condition", see section 3(2) (hereinafter referred to as the 'treatability' criterion). Unless that criterion continues to be met, a psychopathic patient compulsorily detained under Part II must be released (see also section 16(2), which deals with patients who are reclassified as suffering from psychopathic disorder). The role of the RMO is seen in section 17, under which she may give, and revoke, leave of absence from hospital, and sections 20 and 23, under which she may authorise continued detention or make an order for discharge.
35. Turning to Part III of the 1983 Act, the "treatability" criterion is applied to offenders suffering from psychopathic disorder by section 37(2)(a)(i). By section 63 the patient's consent is not required for treatment directed by the RMO. For certain treatments consent and a second opinion is required (see sections 57 and 58), but even in those cases the RMO must report on the patient's condition to the Secretary of State (see section 61).
36. Mr Gordon drew attention to the duty placed by section 117 on health authorities to provide aftercare for those patients who have been compulsorily detained and then leave hospital. The duty is not a general or target duty but a specific, absolute duty owed to each ex-patient: see R v Richmond London Borough Council, ex parte Watson [2000] 3 WLR 1127. If the ex-patient requires aftercare, it is no answer for the health authority to say "we do not have funds to provide you with aftercare". It was submitted that it would be anomalous if an absolute duty was owed by the health authority to those patients whose treatment had been successful to the extent that they were able to be discharged from hospital but owed a lesser target duty to those who still require treatment in hospital. "Medical treatment" includes "care, habilitation and rehabilitation under medical supervision" (see section 145(1) of the 1983 Act).
37. Section 118 makes provision for the Secretary of State to prepare a code of practice. The NHS Framework for Mental Health sets out a number of standards. Under standard 5:

"Each service user who is assessed as requiring a period of care away from their home should have:

* timely access to an appropriate hospital bed or alternative bed or place, which is:

in the least restrictive environment consistent with the need to protect them and the public – as close to home as possible."

38. A decision to transfer a patient from high to medium security conditions was part of the patient's "medical treatment" directed by the RMO. Transfer to less secure conditions forms part of the rehabilitation process which the patient may be compelled to undergo as a prelude to eventual discharge. Since detention is justified in the case of a psychopathic patient only for so long as the "treatability criterion" is met, if the RMO decides that particular treatment (such as a transfer to Oxford) is necessary, the health authority must be obliged to provide that treatment, because if it fails to do so, the patient would be detained in secure conditions for longer than necessary. In extreme cases, the "treatability criterion" may cease to be met.
39. The question was posed, what would happen if the RMO said that a transfer from high security was necessary in the interests of rehabilitation of the patient, but that transfer to a particular medium secure unit, unit X, would be so detrimental to the patient's prospects of rehabilitation that transfer to that unit would not be approved by her, and yet the responsible health authority refused to fund a medium secure place anywhere other than at unit X? It was said that, on the facts of the present case, Dr Orr had concluded that transferring the claimant to Oxford would be counter therapeutic, so the Forum's decision would have the practical effect of prolonging the claimant's detention and delaying her return to the community.
40. In Fox v Ealing District Health Authority [1993] 1 WLR 373, Otton J (as he then was) held that when a mental health review tribunal had made an order for the conditional discharge of a patient, the health authority was under a duty to provide the necessary aftercare:

"The next question which arises is to determine the nature of the duty or the obligation, if any, attaching to a health authority where an order of conditional discharge has been made by a tribunal. Counsel for the authority suggested in argument that there was no express or implied duty at all and even if there was, the health authority could only assume any such duty if it consented. It may be true that there is no express statutory power to direct a district health authority to provide any particular type of health care to any particular person at any particular time. However, I am satisfied that the authority had fulfilled its obligations under section 3(1)(e) of the National Health Service Act 1977 to provide facilities as it considered appropriate by the establishment of a regional secure unit at a hospital in Ealing. It does not follow that it was not in breach by refusing to treat the applicant within or under its aegis. I consider section 117(2) as mandatory: 'It shall be the duty of the district health authority' to provide aftercare services for any person to whom this section applies. The section clearly will apply to the applicant as he falls within subsection (1). Thus, the duty is not only a general duty but a specific duty owed to the applicant to provide him with aftercare services until such time as the district health authority and local social services authority are satisfied that he is no longer in need of such services. I reject the submission that this duty only comes into existence when the applicant is discharged from Broadmoor. I consider a proper interpretation of this section to be that it is a continuing duty in respect of any patient who may be discharged and falls within section 117, although the duty to any particular patient is only triggered at the moment of discharge.

If I am wrong in that interpretation, I am satisfied that such a duty can be spelt out from the general statutory framework which requires district health authorities to provide a comprehensive range of hospital and community psychiatric services, including appropriate services to meet the needs of mentally disordered offenders: see section 3(1) of the Act of 1977 and also regulation 5 of and Schedule 1 to the National Health Service Functions (Directions to Authorities and Administration Arrangements) Regulations 1989": see pages 385E to 386A.

Although the claimant is a restricted patient and the Secretary of State's consent is required to transfer and/or discharge, it is submitted that the RMO's clinical judgment as to what treatment is required by the claimant can be equated with the decision of the MHRT that conditional discharge was appropriate. The RMO can compel the claimant to undergo treatment, and if the "treatability criterion" is not met, the case for her continued detention falls away.

In R v Kensington and Chelsea Royal London Borough Council, ex parte Kujtim [1999] 2 CCLR 340, the Court of Appeal held that the duty imposed on local authorities by section 21 of the National Assistance Act 1948 (the 1948 Act) was not a target duty. Following a positive assessment, the local authority was under a duty to the applicant to make provision for his needs as assessed (see pages 353 and 354). In the present case, it is the RMO's assessment of the claimant's needs that is of critical importance.

Circular HC(90)23/LASSL(90)11 advocates a care-plan approach for those suffering from mental illness. The essential elements of such an approach include a written care plan agreed between the relevant professional staff, the patient and her carers. The claimant's care plan includes the following: under Treatment Objectives, "To move to medium security"; under Future Plans, "Move to MSU nearer to parents"; under Needs Identified by the Clinical Team, "to see parents and improve relations"; and the interventions required are "communicate, organise trips, ?more family therapy".

By contrast, the health authority has not assessed the claimant at all. Dr Rose has not even met the claimant. Mr Gordon accepted that it was normally for the decision taker to assess the weight to be attributed to any particular piece of evidence but submitted that there were cases in which the decision taker was required to accord particular weight to the conclusions of certain bodies. By way of example, he cited R v Avon County Council, ex parte M [1994] 2 FLR 1006, in which a social services committee overruled a recommendation of a review panel. Henry J (as he then was), said this at pages 1019 and 1020:

"The real issue before the committee was one that they were neither encouraged by their officer's paper to confront, nor did they confront it. It was: what exactly were [M's] needs?

Their council had compromised the earlier judicial review proceedings by referring them to a body set up to conduct a detailed examination of the facts.... There had been a full and convincing hearing before that body which had had stated its finding clearly and unequivocally...

...I have no hesitation in finding that they could not overrule that decision without a substantial reason and without having given that recommendation the weight it required. It was a decision taken by a body entrusted with the basic fact-finding exercise under the complaints procedure. It was arrived at after a convincing examination of the evidence, particularly the expert evidence. The evidence before them had, as to the practicalities, been largely one way...

It seems to me that you do not properly reconsider a decision when, on the evidence, it does not seem that that decision was given the weight it deserved. That is, in my judgment, what the social services committee failed to do here. To neglect to do that is not a question which merely, as is suggested in one of the papers, impugns the credibility of the review panel, but instead ignores the weight to which it is prima facie entitled because of its place in the statutory procedure, and further, pays no attention to the scope of its hearing and clear reasons that it had given.

It seems to me that anybody required, at law, to give their reasons for reconsidering and changing such a decision must have good reasons for doing so, and must show that they gave that decision sufficient weight and, in my judgment, it is that that the social services committee have here failed to do. Their decision must be quashed. As is often the case in Wednesbury quashings, it can be put in a number of ways: either unintentional perversity, or failure to take the review panel's recommendation properly into account, or an implicit error of law in not giving it such weight."

41. It is submitted that the RMO's decision must be given determinative, or at the least very considerable, weight because of her role under the statutory scheme (see above), and because, as a matter of rationality, the unanimous views of the clinical team actually treating the patient at Broadmoor must be given precedence over the views of those who are not involved in treating her.

Ground (2)

42. There is no dispute that Dr Rose, who made the initial decision to refuse ECR, prepared a summary and selected the material to go before the Forum. He presented the case and answered questions at the Forum. It is said that this was unfair. Reliance is placed on R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052 for the proposition that:
43. "It is contrary to natural justice that one who is in the position of a prosecutor should be present at the deliberations of the adjudicating committee": see Lord Denning MR at 1057.
44. The decision was not simply a funding decision; it was a decision that affected the claimant's liberty: should she move from high security to medium security conditions? So far as the documents before the Forum were concerned, it was said that the claimant would have wished to make further submissions if she had known of Dr Bullard's letter of 9th February 2000 and would have wished to comment on the apparent change of mind between her letter of 12th January 1999 and that of 16th July 1999. The points set out in the letter of 7th March 2000 were based on Dr Rose's summary (omitting point 5 which related to the likely cost being in excess of £100,000 a year), but the claimant did not know that Dr Rose was making those points and would be presenting them to the Forum. Looking cumulatively at these criticisms, it was said there was unfairness to the claimant.

The defendant's submissions

Ground (1)

45. On behalf of the defendants, Miss Carss-Frisk QC's primary submission was that the health authority was not under an absolute duty to provide the claimant with treatment in Oxford merely because she was a patient who was detained in a mental hospital. The health authority's obligation to provide medical treatment, whether the patient was physically or mentally ill, and in the latter case whether the patient was in hospital voluntarily or compulsorily, was derived from sections 1 and 3 of the National Health Service Act 1977 (the 1977 Act). The Secretary of State has directed that his duty under section 3 of 1977 Act to provide hospital accommodation "to such extent as he considers necessary to meet all reasonable requirements" shall be discharged by health authorities (see section 12 the Health Act 1999 and regulation 3 and Schedule 1 to the National Health Service (Functions of Health Authorities and Administrative Arrangements) Regulations 1996). The language of sections 1 and 3 of the 1977 Act imposes a general or "target" duty, and is to be contrasted with the absolute duties owed to particular individuals if the requirements of, e.g. section 117(2) of the 1983 Act or section 21(1) of the 1948 Act, are met.
46. In R v Cambridgeshire Health Authority, ex parte B [1995] 1 WLR 898, the health authority had refused to fund very expensive treatment for a ten-year-old girl who was desperately ill. The Court of Appeal allowed an appeal against the judge's decision to quash the health authority's decision. Sir Thomas Bingham MR (as he then was) said this, at page 906:

"I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make."

47. In R v NW Lancashire Health Authority, ex parte A and others [2000] 1 WLR 977, the applicants sought judicial review of the health authority's decisions to refuse them gender re-assignment surgery. Considering the general principles to be applied, Auld LJ said, between pages 9391 to 992:

"As illustrated in the Cambridge Health Authority case [1999] 1 WLR 898 and Coughlan's case [2000] 2 WLR 622, it is an unhappy but unavoidable feature of state funded health care that regional health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighing of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose - indeed, it might well be irrational to not have one - and it makes sense too that, in settling on such a policy, an authority would normally place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure."

48. Auld LJ then noted the extent to which authorities might reasonably differ about priorities and concluded in this way:

"However, in establishing priorities – comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treatment – it is vital for an authority: (1) accurately to assess the nature and seriousness of each type of illness; (2) to determine the effectiveness of various forms of treatment for it; and (3) to give proper effect to that assessment and that determination in the formulation and individual application of its policy."

49. Miss Carss-Frisk submits that it would have made no difference in principle if those claimants had been detained patients in a mental hospital and the RMO had recommended such treatment for them.
50. In R v Gloucestershire County Council, ex parte Barry [1997] AC 584 the House of Lords decided that local authorities could take resources into account when assessing the needs of disabled persons under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (the 1970 Act). It had been argued that a person's needs depended upon the nature and extent of his disability, and that a local authority's resources were therefore irrelevant. Lord Nicholls said at page 604E:

"This is an alluring argument but I am unable to accept it. It is flawed by a failure to recognise that needs for services cannot sensibly be assessed without having some regard to the cost of providing them. A person's need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled."

51. At page 605G, he added this:

"In the course of the argument some emphasis was placed upon a submission that if a local authority may properly take its resources into account in the way I have described, the section 2(1) duty would in effect be limited to making arrangements to the extent only that the authority should decide to allocate money for this purpose. The duty, it was said, would collapse into a power. I do not agree. A local authority must carry out its functions under section 2(1) in a responsible fashion. In the event of a local authority acting with Wednesbury unreasonableness, a disabled person would have a remedy.

This interpretation does not emasculate section 2(1). The section was intended to confer rights upon disabled persons. It does so by giving them a valuable personal right to see that the authority acts reasonably in assessing their needs for certain types of assistance, and a right to have their assessed needs met so far as it is necessary for the authority (as distinct from others) to do so. I can see no basis for reading into the section an implication that in assessing the needs of disabled persons for the prescribed services, cost is to be ignored. I do not believe Parliament intended that to be the position" (see also Lord Clyde's speech between pages 610E and 611C).

It was submitted that the same approach applied to the health authority's duty to meet the needs of patients requiring hospital treatment, whether they were mentally or physically ill.

Turning to the 1983 Act, Miss Carss-Frisk drew attention to the fact that section 37 did not impose any additional duty on health authorities to make hospital places available for mentally ill offenders where the court considered that a hospital order would be appropriate. Under section 37(4) the court had to be satisfied that suitable arrangements had been made for the admission of the offender to hospital. If the health authority was not able, because of limited resources, to make a place available for the offender within its area, or elsewhere, then the court was unable to make a hospital order. Parliament had considered what extra duties should be imposed on health authorities in the context of mentally ill offenders. Section 39 required the health authority to make information available to the court as to where in its area or outside arrangements for the admission of the offender could be made. A "nil return" would be in full compliance with that duty.

She submitted that it would be anomalous if the health authority was obliged to fund whatever treatment was directed by the RMO once a place was found in hospital for the offender but not obliged to provide a place in the first instance. Similar considerations apply in the context of leave under section 17. Was the health authority required to provide whatever facilities the RMO thought necessary to enable the patient to go on leave as part of his/her rehabilitation? She submitted that a decision to transfer is not part of a patient's treatment, although she conceded that a decision to transfer to a particular hospital where treatment was available might fall within the definition of "treatment" in section 145. A treatment decision is be concerned with the type of treatment to be provided, not with the location where it is to be provided.

Under section 19 of the 1983 Act and regulation 7 of the Mental Health Regulations 1983, transfers of non-restricted patients are authorised not by the RMO but by the managers of the hospital concerned. The health authority's discharge of its "target" duties under the 1977 Act was subject to review on Wednesbury grounds, just as was the local authority's duty under the 1970 Act (see the Barry case above). The fact that mental patients under Parts II and III of the 1983 Act were being detained compulsorily and the RMO had a statutory role in directing their treatment were factors to be taken into consideration, but they did not lead to the conclusion that the RMO's view must be treated as determinative or that it could only be departed from for particularly compelling reasons. The weight to be given to the RMO's view was for the Forum to decide. It was an expert tribunal and would have been well aware of the importance of attaching due weight to the views of those who were actually treating the patient. The weight to be attributed to the RMO's view depended upon the particular circumstances in each case. There was a difference between a disagreement as to, for example, the diagnosis of a patient's illness and the question as to where a largely agreed programme of treatment could be delivered.

She acknowledged that there might be extreme cases where the RMO refused to countenance transfer to the only facility on offer from the health authority. A continued refusal by the health authority to fund an alternative in those circumstances would be subject to review on normal Wednesbury principles. However, she submitted this dilemma did not arise on the facts of the present case on the material before the Forum. Dr Orr was expressing a strong preference for Manchester, but she was not saying that Oxford would be "counter therapeutic", at least not to the extent that she would refuse to recommend transfer to medium security conditions there. Fox was distinguishable on the basis that Otton J was concerned with the specific duty under section 117 and not with the "target" duty under the 1977 Act which applied, unaltered by the 1983 Act, in the present case.

The case of M turned on its particular facts. The review panel had been set up to conduct "a detailed examination of the facts". It had done so, considering "a formidable body of material" and hearing witnesses. In those particular circumstances, the committee had failed to engage with the "clear reasons" given by the review panel and had therefore not given its findings sufficient weight. In the present case, the Forum had Dr Orr's view and Dr Bullard's view before it, had preferred the latter, and was entitled to do so, using its own expert medical judgment.

Ground (2)

The defendants do not dispute that they had to act fairly, but contend that what fairness requires depends on all the circumstances. The decision in this case was essentially a funding decision which should not be judicialised. In Hook Scarman LJ (as he then was) said at page 1061D:

"...I agree, that the requirements of natural justice have to be considered always in the particular circumstances of the case. I think it is certainly possible to envisage cases in which the presence of somebody like [the markets superintendent] at a hearing might not constitute a breach of natural justice. One has to see what it is that is being considered and what is the subject matter of the decision."

52. Then at letter G:

"In the present case the corporation was considering something very like dismissing a man from his office, very like depriving him of his property, and they were charging him with doing something wrong. It was the revocation of a licence because of misconduct that they had under consideration - not merely the man's fitness or capacity for the grant of a licence. There was, therefore, a situation here in which (using the terms broadly) Mr Hook was on trial, and on trial for his livelihood."

53. There was no "case" against the claimant. Dr Rose was not a "prosecutor". He was explaining why he had taken a funding decision. It was sensible for him to attend the Forum and answer questions. The claimants knew the reasons why the first Forum meeting had refused ECR (see the letter of 7th March 2000). They were, in essence, the same reasons as those explained to the Forum by Dr Rose. The claimant's solicitors had had an opportunity to comment on those reasons, which they had taken, sending in further material. In its second decision the Forum did not rely on any new ground. It merely said that the new information provided on behalf of the claimant did not cause it to alter its earlier decision. The claimant did not attach any particular significance to the MHRT's recommendations (they were not referred to in any of the correspondence, the judicial review claim form or the claimant's skeleton argument). In any event, the rival merits of Oxford or Manchester were not in issue before the tribunal. Dr Bullard's letter of 16th July 1999 did not represent a change of mind and was of marginal relevance, given the up-to-date view contained in her letter of 9th February 2000.

Reply

54. In reply Mr Gordon submitted that there was a vital distinction between a patient, whether mentally or physically ill, who was voluntarily in hospital and a patient compulsorily detained against her will. In the latter case, the patient could be compelled by the RMO to have treatment against her will. If the treatability criterion ceased to be met, she would have to be released: see R v Croydon Health Authority [1995] FLR 133, per Hoffman LJ (as he then was) at page 138E to G. Transfer can be treatment: see Barker v Barking Havering and Brentwood Community Health Care NHS Trust & Taylor [1999] 2 CCLR 5, where it was decided by the Court of Appeal that treatment may include outpatient treatment (see page 12).
55. Transfer decisions have an effect on eventual discharge because the claimant cannot even be considered for discharge into the community until she has spent an appropriate period in medium security. He drew an analogy with categorisation of life prisoners where procedures were required to be fair to the prisoner: see R v Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 27. Similar consideration of procedural fairness applied to decisions of the Secretary of State to allow/refuse trial leave to restricted prisoners under section 17 of the 1983 Act: see R v Secretary of State for the Home Department, ex parte Harry [1998] 1 WLR 1737.
56. Miss Carss-Frisk distinguished these cases on the basis that they were concerned with whether a prisoner/patient should be recategorised/transferred/given leave, and not whether there was a duty on the Secretary of State to provide the necessary funding to enable the prisoner/patient to be moved to any particular institution.
57. Mr Gordon emphasised that the claimant's case was based on conventional judicial review principles. However, he submitted that Article 8 of the European Convention on Human Rights, the right to respect for private and family life and home, was relevant in that the longer the claimant was detained, and to the extent that she was being kept in high security rather than medium security conditions, there was an infringement of her rights under this article. He referred to the court's decision in Manzari v Italy ECHR Application No. 36448/97, an admissibility decision. The court said that although Article 8 did not give a right to have one's housing problems solved by public authorities, a refusal to provide assistance to an individual suffering from a severe illness might, in certain circumstances, raise an issue under Article 8 because of the effect on that individual's private life. Hence, he submitted that the proportionality of the defendant's response to the claimant's application, as well as its rationality, had to be considered by the court: see Daly above. Even applying ordinary Wednesbury principles, no reasonable health authority could have disagreed with the clinical views of those who had assessed the patient.
58. Miss Carss-Frisk submitted that Article 8 was not engaged at all. There is no reason why the claimant should not be able to keep in touch with her parents as she had whilst at Broadmoor, and if there was any limited interference with her rights under Article 8(1), it was justified under Article 8(2), which confers a broad discretion. Only in exceptional circumstances would the detention of a prisoner a long way from home constitute a violation of Article 8: see McCotter v United Kingdom [1993] 15 EHRR CD 98. In any event, there is a dispute between Dr Orr and Dr Bullard as to the extent to which it would be advantageous for the claimant to be close to her parents (see above).

Conclusions

59. The starting point has to be the 1977 Act. Health authorities owe the same "target" duty under section 3 to those who suffer from physical or mental illness. While some patients in the latter category will be compulsorily detained in hospital under Part II or Part III of the 1983 Act, I do not consider that this factor alters the underlying "target" duty. The 1983 Act does not expressly provide for an "enhanced" duty towards those suffering from mental illness who are compulsorily detained, nor is it possible to imply the existence of such an enhanced duty since the 1983 Act is intended to provide a comprehensive code for "the reception, care and treatment of mentally disordered patients". Where Parliament intended to impose additional duties on health authorities and local social services authorities in respect of such patients, it did so in express terms. It is significant that the criminal courts are not entitled to make a hospital order under section 37 merely because they are satisfied, on appropriate medical evidence, that a particular offender is suffering from, inter alia, psychopathic disorder and that treatment may alleviate or prevent a deterioration of that condition. Before making such an order, the court has to take account of the availability of resources. It has to be satisfied that arrangements have been made for the admission of the offender to hospital: see subsection (4). If no hospital place is available for treatment of that particular offender, then a hospital order may not be made.
60. Parliament could have imposed an enhanced duty on health authorities to make specific provision for the needs of any offender found by the court to be within the scope of section 37(2). It did not choose to do so. The health authority's duty in such cases is limited to furnishing the court with information as to "the hospital or hospitals (if any) in their area or elsewhere" at which arrangements could be made (emphasis added).
61. For those patients who have been detained under Part II or Part III, section 117 imposes a specific duty on health authorities and local social services authorities to provide them with aftercare services on their release into the community. Mr Gordon argues that it would be anomalous for there to be a specific duty towards those patients who have sufficiently recovered to be discharged from hospital, and a lesser duty towards those who are still so ill that they have to remain in hospital. Miss Carss-Frisk suggested that the enhanced duty imposed by section 117 may be a reflection of Parliament's desire to further the "care in the community" approach to the treatment of those who are mentally ill. Whatever the underlying policy reason, the significance of section 117 is that it shows that, where Parliament was not content to rely on a general or target duty owed by the health authority or the local social services authority towards those in need of their services, it imposed an enhanced duty in express terms.
62. It is true that in the case of patients compulsorily detained in hospital under Parts II and III, the RMO has a particular statutory role to play. In essence, the RMO is placed in the same position as that of any consultant overseeing his/her patient's treatment. The statutory provisions are those which are necessary to ensure that the RMO is placed in that position in respect of patients who are unwilling or unable, because of their illness, to give informed consent to their treatment. Consultants have to discharge their professional responsibilities to their patients within the constraints of the facilities, hospital beds, operating theatres, nursing staff, et cetera, that are made available by health authorities and health trusts. I can see no reason why RMOs should not likewise be able to exercise their specific responsibilities under the 1983 Act within the same practical constraints.
63. Treatment is provided to all patients in the real world where the availability of facilities is constrained by resources. By way of example, the RMO may well consider that it would be beneficial for a particular Part II or Part III patient if he/she was given better facilities whilst in hospital: more privacy, more spacious accommodation, access to particular therapy, more attention by the nursing staff, etc. There is nothing in the 1983 Act to suggest that the health authority must then provide those facilities. Insofar as the 1983 Act confers additional powers on the RMOs, it does so vis-à-vis the RMO's patient, not the health authority.
64. Leave of absence is another example. The RMO may consider that leave of absence to a sheltered hostel type of environment would be a desirable part of a patient's treatment plan. The 1983 Act does not enable the RMO to demand that such accommodation be provided for the patient. The "treatability condition" has to be considered, not in the abstract, but in the light of the facilities that are available for medical treatment in the real world.
65. In simple terms, since resources are limited, there is bound to be a queue of patients seeking treatment. I do not accept the proposition that the RMO's position under the 1983 Act is such as to propel his or her Part II or III patients to the head of the queue. The nature and severity of a patient's illness, the fact that the patient is detained, and that lack of or delay in providing particular treatment may result in the patient remaining longer in detention, are all relevant factors, but the health authority, in the exercise of its duty under section 3 of 1977 Act, is not bound to regard them as determinative.
66. The distinction between the patient detained under Part II or Part III of the 1983 Act and other "voluntary" patients, whether mentally or physically ill, is one which would be obvious to the lawyer concerned with civil liberties. It might be rather less obvious to the "voluntary" patient. Very few people choose to go to hospital for treatment for mental or physical illness. They are effectively compelled to go to hospital, not by an application made under section 3 or by a court order made under section 37 of the 1983 Act, but by the seriousness of their medical condition. A call on scarce resources to make provision for the needs of a Part II or Part III patient may mean that their treatment, which in reality is very far from being "voluntary", may be delayed or denied.
67. I am not persuaded by the defendant's submission that a decision to transfer a patient to another hospital is not to be regarded as part of the patient's "medical treatment". Treatment includes rehabilitation (see section 145(1)), and I can envisage cases where transfer to a particular institution because of the particular form of therapy available there would be a necessary step in the patient's rehabilitation: see by analogy the Barker case above. Nor do I attach any particular significance to the fact that under the 1983 regulations, transfers are authorised by the managers of the hospital, not the RMO. Plainly, the former will act in response to the latter's recommendation, but in deciding how to respond, they will have to have regard to the facilities that are made available by health authorities.
68. To say that the RMO's view as to what facilities should be provided for a Part II or Part III patient should not be determinative does not mean that it can simply be ignored by the health authority, but it is for the health authority to decide (subject to Wednesbury review) what weight to give to the RMO's clinical judgment in any particular case.
69. In making that judgment, the health authority will take into account the fact that the patient is detained and that the RMO has clinical responsibility for the case and will be continuously assessing the patient's condition. The membership of the Forum included a number of very experienced medical practitioners. Dr Rose is himself a consultant psychiatrist. The Forum was deciding a particular case. It was not writing a medico legal treatise. It did not have to state the obvious. As medical practitioners and medical administrators, the members would have been only too well aware of the weight to be given to the views of the doctor who was actually treating the patient.
70. But that does not mean that the Forum was obliged, whether as a matter of proportionality or rationality, to accept Dr Orr's view. It is true that Dr Rose (and the members of the Forum) had not seen the claimant, but they were not disagreeing with Dr Orr's diagnosis of her condition; nor were they disagreeing with her conclusion that the claimant was ready for transfer to medium secure conditions. They were in at least as good a position as Dr Orr to assess whether the claimant's offence was so high profile in Oxfordshire as to justify rehabilitation outside their own area. There is no disagreement with Dr Orr's view that the claimant will have to undertake further work to address family relationships. The relatively narrow point of disagreement is whether it would be advantageous for this to be done in a location which is in reasonable proximity to the claimant's parents' home. Whilst there will be many medical issues which could be resolved only after having physically examined the patient, I do not consider that the area of disagreement in the present case falls into that category. It will be remembered that Dr Bullard has examined the claimant, albeit some years ago. Dr Rose clearly felt able to weigh the rival contentions of Dr Orr and Dr Bullard as to the location of treatment without seeing the patient for himself. As an experienced consultant psychiatrist, he was entitled to reach that view and, having done so, to conclude that there was "no clinical consensus" that a move to Manchester would be beneficial.
71. I accept that it is possible to envisage a case where the RMO may be so opposed on clinical grounds to a patient going to the only medium secure facility on offer from the health authority that the claimant will have to remain in high security unless the impasse can be broken. The fact that such an impasse is theoretically possible does not mean that the RMO's views must, by necessary implication, be regarded as determinative. No doubt in such an extreme case the health authority would pay particular regard to the RMO's views and to the consequences for the patient if it felt unable to agree with them. Its decision would be challengeable on normal Wednesbury principles. I acknowledge that the Wednesbury threshold is a very difficult one for claimants to overcome in the field of resource allocation, but that is precisely because of the highly judgmental character of such decisions, involving as they do the weighing of numerous, often conflicting, interests, where there will be no single "correct" answer.
72. In any event, I accept Miss Carss-Frisk's submission that the theoretical problem posed by this extreme position does not arise on the facts of the present case. Dr Orr was certainly expressing a very strong preference for Manchester, but she was not going so far as to say that the move from high security conditions to Oxford would be counter therapeutic. It would be significantly less therapeutic, in her judgment, than Manchester, but it was for the Forum to weigh up the claimed clinical advantages against the cost of transfer to Manchester.
73. The M case above turned very much on its own facts. A hearing had been set up to conduct a detailed examination of the facts. It did so and, having heard oral evidence, reached an unequivocal conclusion, giving clear reasons. The reasons given by the committee failed to engage with the panel's reasons and so the committee did not give "sufficient weight" to the panel's conclusion. In the present case, the Forum set out in clear terms why it had felt unable to agree with Dr Orr.
74. The decision in Fox reflects the particular statutory role played by the Mental Health Review Tribunal under the 1983 Act. Otton J principally relied on the duty which he found to be a specific duty under section 117. As mentioned above, I attach significance to the fact that Parliament chose to impose a specific duty in respect of aftercare, but did not do so in respect of care whilst in hospital. Insofar as Otton J felt able to spell out a specific duty from the statutory framework (see page 385H of the judgment above), that framework included both section 117 and the particular role of the Mental Health Review Tribunal. It will be remembered that the Mental Health Review Tribunal is not obliged to accept the RMO's assessment of a patient. It is required to form its own independent opinion. It is understandable that particular weight should be attributed to such an opinion reached after a hearing.

Ground (2)

75. For the reasons set out above, I am satisfied that the Forum's decision was a funding decision. The health authority had to act fairly, but such decisions involving the allocation of scarce resources where granting one request will inevitably mean refusing others should not be judicialised. There was no "case against" the claimant. Dr Rose was not acting as a "prosecutor". It was eminently sensible for him to be present when his decision was being reviewed so that he could summarise the position and answer questions from his colleagues. As Lord Steyn observed in the Daly case (see paragraph 29), "In law context is everything". In the context of this issue concerning the allocation of resources, fairness required that the claimant should have the opportunity to tell the Forum in writing why it was contended that resources should be allocated to her. She had that opportunity (see Dr Orr's letter dated 5th July 1999 and the solicitor's letter dated 9th June 2000). She knew in broad terms the reasons why the Forum had earlier decided that "the level of uncertainty about the clinical benefits of the claimant's transfer to Manchester [do] not justify the additional cost" (see the letter of 7th March 2000).
76. Fairness did not require that she should see either Dr Rose's summary or the other material that went before the Forum, since these documents raised no new point that was not already covered in the letter of 7th March. A meeting of the Forum is essentially a discussion between medical experts. It is not to be equated with a contested hearing, and rules of disclosure which might be appropriate for such a hearing should not be imposed upon the Forum's deliberations. There is no force in the complaint that Dr Bullard's letter dated 16th July 1999 was not before the committee. Read as a whole, it did not represent a change of mind, rather an acknowledgment of the continued disagreement between herself and Dr Orr. Even if it is to be read as indicating a change of mind, what mattered was Dr Bullard's current opinion. That was before the committee, and the letter dated 7th March reflected Dr Bullard's views. The importance so belatedly attached to the recommendation of the Mental Health Review Tribunal is not justified. It is clear that it simply reflected Dr Orr's recommendations in respect of her patient. The tribunal was not required to make any such recommendation, and the issue Manchester or Oxford had not been raised before the tribunal.
77. The cases of Duggan and Harry (above) are concerned with the fairness of decisions as to whether a prisoner/patient should be transferred to conditions of lesser security or granted trial leave. Such decisions will have to be taken in the real world, where limited resources may mean, for example, that there are no places available in a lesser security prison or that there is no readily available hostel suitable for a period of trial leave (see above). Fairness does not require that decisions as to whether funds should be made available for the provision of such facilities should be subject to the same procedural requirements.
78. To the extent that Article 8 is engaged at all, which I doubt, since Manzari was an extreme case, (see also McCotter), a balancing act has to be carried out under Article 8(2). That cannot be done in a vacuum. It has to be done in a world where the funds available for medical treatment are limited and where granting the claimant's request will inevitably mean that another patient or patients will be disappointed. They may have to wait longer in hospital or do without pain relieving drugs. Their rights (if Article 8 is relevant) will be adversely affected.
79. The defendant's ECR budget is substantially overspent. There is a dispute between the parties as to the cost of ECR for the claimant. The defendant's estimate was £100,000. To set that figure in context, the Forum noted that the total budget for cancer drugs available to the authority was £300,000 per anum. Decisions on funding affect lives, not just liberty. That is not a good reason to judicialise them. They are agonisingly difficult decisions, and they will not be made any easier or better if they are encumbered with legalistic procedures.
80. For these reasons, this application must be dismissed. In conclusion, I would like to pay tribute to the very helpful and comprehensive submissions from both parties.

MISS CARSS-FRISK: My Lord, it remains for me then to invite you to make an order for our costs, but of course subject to the lottery proviso.

MR JUSTICE SULLIVAN: Yes, Mr Bowen.

MR BOWEN: My Lord, I cannot resist the application of my learned friend.

MR JUSTICE SULLIVAN: Right. So thus far the application is dismissed; the claimant to pay the defendant's costs, subject to the usual what used to be called a legal aid order. But the associate will know what to call it now and write in the proper words.

MR BOWEN: My Lord, yes. My Lord, I have an application.

MR JUSTICE SULLIVAN: Yes.

MR BOWEN: Well, in relation to costs, if I can just ask for detailed assessment of the claimant's Community Legal Service funding

MR JUSTICE SULLIVAN: Indeed. Yes, detailed assessment is welcome.

MR BOWEN: My Lord, it is an application for permission to appeal.

MR JUSTICE SULLIVAN: Yes.

MR BOWEN: Under CPR 52(3), paragraph 6, permission to appeal will only be given where the court considers the appeal will have a real prospect of success or there is some other compelling reason why the appeal should be heard.

I am not going to try and persuade your Lordship as to there being a real prospect of success, other than to say that the matters which your Lordship has considered and ruled upon are novel and in some cases have never been considered before, even if they have been considered in similar context.

I have in mind three specific matters which, in my submission, are of such importance, such public importance, that there is a compelling reason in any event why permission should be granted. The first is the question as to whether a detained patient has any greater right to receive treatment than a voluntary patient. The second is the role in that context – or even if it is only a power rather than a duty – nevertheless what the role of the responsible medical officer and the assessment process under the care programme approach is to the funding decisions, so whether that assessment should be determinative or particular weight should be given to it or whether, as your Lordship has ruled, it is a matter to which weight should be given as the health authority consider appropriate. The third matter is whether funding decisions such as these which affect liberty, and of course in certain circumstances an individual's life, are such that procedural safeguards should attach to them that are equivalent to those decisions if they were taken in another context, such as the --

MR JUSTICE SULLIVAN: Yes, the ones that I did not mention towards the end.

MR BOWEN: The Harry and Duggan situation.

MR JUSTICE SULLIVAN: Yes.

MR BOWEN: Those three matters, my Lord, are, in my respectful submission, of such importance that at the very least the Court of Appeal should have an opportunity to rule upon them, even if they agree in the end with the views that your Lordship has reached. I ask particularly that permission to be appeal be given today. There is a compelling reason, and if your Lordship were to grant permission, it will substantially expedite the process. Of course, it is open to the claimant to go to the Court of Appeal herself, and it is for the Court of Appeal in, I accept, many, if not most, cases to choose its own menu. In my respectful submission, this is a matter which it is appropriate to be placed on their table by this court.

MR JUSTICE SULLIVAN: Thank you very much. Miss Carss-Frisk, I do not need to trouble you with that application. Thank you very much.

I refuse permission to appeal. It is not submitted that there is a real prospect of success. For the reasons set out in the judgment, I am not persuaded that there is a real prospect of success.

It is said that there are other compelling reasons why the Court of Appeal should look at this matter. In my judgment, the lower court should be very sparing in the exercise of that power. As Mr Bowen aptly put it, it is for the Court of Appeal, in most cases, to choose its own menu, and I am not persuaded that the matters that he mentioned, that is to say the position of the detained as opposed to the voluntary patient and the particular role of the RMO and funding decisions which may affect liberty or life, are singly or cumulatively so compelling as to warrant my granting permission. If the claimant wants permission to appeal, I am afraid she will have to ask the Court of Appeal.

Anything else?

MISS CARSS-FRISK: My Lord, no.

MR JUSTICE SULLIVAN: Right. Thank you both very much. I thank everyone for what was quite a marathon exercise on a hot and sticky afternoon.

MISS CARSS-FRISK: I am sure we would like to thank your Lordship for producing the judgment so quickly.

MR JUSTICE SULLIVAN: Thank you.

MR BOWEN: My Lord, there is one other matter, and I do aplogise. I wonder whether your Lordship would direct the provision of the transcript be expedited. I recognise that that is --

MR JUSTICE SULLIVAN: It is a socking great transcript, I suspect it is going to be. Can you tell me, why is it that the transcript has to be expedited? Sometimes I have been prepared to do that when there has been a particular crunch date, as it were, and people have said, look, it is terribly helpful to have the transcript by the Thursday rather than the Friday. Is there anything of that nature in this case, or is it generally you want to get on with things?

MR BOWEN: It is fair to say that in general I want to get on with things. But the urgency is this. If this is to be a matter which the Court of Appeal is to have an opportunity to consider before the end of term, which is a month away now, we are going to have to get our appeal put in. As your Lordship knows, we now have to put in a skeleton argument either with the appeal notice or within 14 days thereafter, and a meaningful skeleton cannot be prepared without access to your Lordship's – to the transcript. I have a full note, but --

MR JUSTICE SULLIVAN: Yes, I see the way you put it, Mr Bowen. I think I have to say that it would be pushing it to get it to the Court of Appeal by then, but I am really not persuaded that there is such a need for expedition that I would be justified in ordering an expedited transcript. What I will say is that it is my almost invariable practice to return transcripts on the next working day after they have been given to me. Since I have just been given an enormous transcript, I think by this shorthand writer, which runs to about 80 pages, I am sure I might break that rule just today. But I do not think an expedited transcript is warranted.

MR BOWEN: I am obliged, my Lord.