CO/2202/01
Neutral Citation Number: [2002] EWHC 170 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Monday 21st January 2002
B e f o r e

MR JUSTICE MAURICE KAY

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T H E   Q U E E N

ON THE APPLICATION OF

L. H.
Claimant

v.

(1) MENTAL HEALTH REVIEW TRIBUNAL
 Defendants
(2) THE SECRETARY OF STATE FOR HEALTH

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(Computer Aided Transcription of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG   Tel: 020 7404 1400
Official Shorthand Writers to the Court)
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MR K OWUSU (instructed by Messrs (John Blavo & Co) appeared on behalf of the Claimant.

MISS L GIOVANETTI (instructed by The Treasury Solicitor) appeared on behalf of the Defendants.

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J U D G M E N T
1.	MR JUSTICE MAURICE KAY: This is a renewed application for permission to apply for judicial review, permission having been refused on paper by Mr Justice Ouseley. 
2.	I say at once that it is a tragic case. The claimant is the mother of a man who is detained under the Mental Health Act. It is apparent from the documentation that he suffers from severe conditions. It is also apparent from the history that the claimant is a mother who has throughout addressed problems in a manner which she conscientiously believes to be in the best interests of her son. Her present complaints arise out of a decision of the Mental Health Review Tribunal in February 2001, and she seeks to challenge both that decision and the Secretary of State. 
3.	The essence of the problem is that the patient in this case has been detained in Rampton Hospital for some time in conditions of high security. Although his mother would dearly like him to be resident and cared for in the community with family help, the issue before the Mental Health Tribunal was not a clear issue of detain or discharge; rather it was an issue as to whether detention should continue in Rampton Hospital in circumstances of high security, or whether there might be a recommendation for transfer to another hospital, or unit, with lower physical security. The final paragraphs of the decision of the Mental Health Review Tribunal read as follows: 
“The unopposed professional evidence was that he requires a high level both of procedural and relational security, whilst the need for physical security is less paramount. 
In total we conclude his treatment could only safely be delivered in a high secure hospital.
We note that a recent assessment from Dr Thomas from a specialist medium secure unit with expertise in autism concluded that he could not be treated there since he is too dangerous. 
We conclude that the detention in Rampton Hospital is not currently in excess of his requirements. 
The tribunal is satisfied that the clinical team will take appropriate steps to obtain a placement elsewhere when this is feasible in the light of his complex treatment needs which are currently met at Rampton Hospital. 
The Tribunal find no breach of the provisions of the Human Rights Act.” 
4.	Following that decision, the claimant's solicitors wrote a letter dated 2nd May 2001 to the Secretary of State, alleging that continuing detention in Rampton was in breach of the patient's human rights under Articles 3, 5(1) and 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The complaint essentially was the absence of a recommendation for transfer to a regime of lower security. The letter expressly urged the Secretary of State to give urgent consideration to measures to provide for the transfer from Rampton to an appropriate lower security hospital and the provision to the patient of appropriate specialist facilities for his care. 
5.	The expert material which has conditioned the claimant's case is really the opinion of Dr Wilson, the responsible medical officer. I have been referred to written expressions of Dr Wilson's views on a number of occasions. They include the view that the patient is now: 
“... totally misplaced in an admission ward in a high secure setting”; 
	and the view that: 
“In a ideal world he should be in a medium secure unit with six others in North London with staff trained to work with people with autism. The nurses would have particular skills in working with people with autism.” 
6.	That is a consistently expressed view. 
7.	Unfortunately, this is one of those cases in which what the experts perceive as being best for the patient is not matched by available facilities of the kind which they recommend “in an ideal world”. That is what has given rise to this dispute. 
8.	It is a apparent from the history, as I have already related it, that it was at one time hoped that an appropriate, less secure unit had been found in South Wales, but, as the Mental Health Review Tribunal observed in the passage which I have set out, in the event, sadly, the patient was not found suitable for admission to that unit. He was assessed by the consultant psychiatrist with responsibility for that unit. 
9.	Against this factual background, the claimant seeks permission to challenge by way of judicial review both the Mental Health Tribunal and the Secretary of State. 
10.	I deal first with the position of the Secretary of State. As I have related, following the decision of the Mental Health Tribunal, solicitors for the claimant wrote to the Secretary of State in the terms that I have summarised. That elicited a response from the Secretary of State dated 25th May 2001. That letter observed that the patient's position had been considered by the Tribunal on three occasions, adding: 
“I understand that, at the last such hearing on 26 February 2001, the Tribunal concluded that Mr H.'s detention at Rampton was not in excess of his requirements and that his human rights have not been breached”. 
11.	The letter went on to point out that it is the East London and City Health Authority that is responsible for his care, and observed the history whereby the patient had been found unsuitable for admission to the unit in South Wales. The letter went on: 
“I understand that there are units elsewhere in the country which might be suitable... I am advised that one of these, in Bristol, was involved in his care prior to his admission to Rampton, but declined to admit him. I understand that the Nottinghamshire Health Care NHS Trust, which covers Rampton Hospital, continues to keep the position under review.” 
12.	The letter was copied to a number of people including the chief executive of the East London and City Health Authority. 
13.	What case, therefore, can be made against the Secretary of State? The suggestion at one level is that judicial review lies arguably against the Secretary of State for failure to make the kind of provision which would be suitable for the claimant in the sense that it would be less physically secure than Rampton and would have the benefits which Dr Wilson has referred to. The statutory duty of the Secretary of State under the National Health Service Act 1977 is provided by section 3(1) in terms which impose a duty “...to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements - (a) hospital accommodation.” 
14.	Can it be said that on the evidence in this case there is an arguable breach of that duty? On behalf of the Secretary of State, Miss Giovanetti points to a paucity of evidence and invites consideration of the particular lacuna that is highlighted by this case in the context of the relative uniqueness of the patient's position. She does that by reference not only to the extracts from Dr Wilson's observations, quoted by Mr Owusu on behalf of the claimant, but also by reference to the original documents that were before the Mental Health Review Tribunal. It cannot be said that this is a clear case where no security is necessary. The Mental Health Review Tribunal, whilst acknowledging a measure of success in the treatment that was being administered in Rampton, went on to state: 
“Nevertheless, there have been a number of incidents of aggression, some recent, and he has required seclusion on two occasions in the last two months. It was suggested to the Tribunal that the projection of danger relies only upon a disputed episode of threat with a knife towards a woman. It does not. It includes assault in hospital which led to facial injuries and rib fracture in staff. 
He responds adversely to high expressed emotion; the Tribunal recognise the sincere view of his mother that he would be safely supported by extensive family contact. However, it concludes that unfortunately this is not wholly realistic, nor, on the evidence, would it necessarily be beneficial to his overall treatment.” 
15.	I have already referred to the passage in the decision recording the recent assessment from Dr Thomas, the specialist in charge of the medium secure unit in South Wales, to the effect that the patient could not be treated there “since he is too dangerous”. 
16.	In my judgment, it is simply not arguable that the Secretary of State is in breach of his statutory duty under section 3 by not providing a hospital that would specifically be preferable for this patient as against his circumstances in Rampton. Whilst there may no doubt be cases where a Secretary of State might be shown arguably to be in breach of that duty, that would require a level of evidence of unmet need which simply does not exist in this case when matched against the words of the statute. That ground of challenge, therefore, seems to me to be one which is bound to fail. 
17.	Moreover, so far as the Secretary of State is concerned, as I have already observed, it is not he who is primarily responsible for day-to-day matters in relation to the placing of the patient. Under the Act that is the responsibility of the health authority in question. There is no challenge to any decision or lack of decision on the part of that health authority and therefore there is nothing of that nature which calls for my decision. 
18.	I therefore move to the other defendant, which is the Mental Health Review Tribunal. Essentially the challenges to the Mental Health Review Tribunal in this case are challenges to its failure to make a recommendation for transfer to a less secure hospital, challenges to its conclusion that there was no breach of the patient's human rights and a challenge to the adequacy of the reasons by which the Mental Health Review Tribunal expressed itself. 
19.	The challenge to the failure to make a recommendation of transfer runs into the legal difficulty which has been identified by Miss Giovanetti. Her submission is that what is in issue under this heading, being simply the failure to make a recommendation, is not something which in the statutory context is amenable to judicial review. In support of this submission she relies upon the case of Kartibshaheedi v. Immigration Appeal Tribunal 20th July 2000, in which Lord Justice Kennedy gave the leading judgment. She submits that the present case, being concerned with the absence of a recommendation, is on all fours with that. This is not a decision of finality amenable to judicial review. Lord Justice Kennedy set out in his judgment part of the speech of Lord Diplock in C.C.S.U. v. Minister for Civil Service [1985] A.C. 408 to 409. I have considered those submissions in the context of the present case and in my judgment Miss Giovanetti is correct in law in the distinction which she seeks to draw. I am satisfied that in the present circumstances and on the basis of the present material, there is not, in the failure to make recommendation of transfer to a less secure hospital, a decision which is arguably susceptible to judicial review as a matter of law because of the lack of finality of a recommendation and in the light of what was said by Lord Justice Kennedy in Kartibshaheedi
20.	Once that legal inevitability is put in place, then the only substantive grounds of challenge are those purported to be made by reference to the provisions of the Convention. I have been taken to the authorities so far as those proposed grounds of challenge are concerned. 
21.	I accept the submission made on behalf of the Secretary of State that the Article 5 challenge has no prospect of success because of the decision of the European Court of Human Rights in Ashingdane (1985) 7 EHRR 528. That considered cognate issues under Article 5(1)(e) in relation to a detained patient. The Court concluded in paragraph 44: 
“In principle, the 'detention' of a person as a mental health patient will only be 'lawful' for the purposes of sub-paragraph (e) of paragraph (1) if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the forgoing, Article 5(1)(e) is not in principle concerned with suitable treatment or conditions.” 
22.	A little later in paragraph 49: 
“... the injustice suffered by Mr Ashingdane is not a mischief against which Article 5(1)(e) of the Convention protects.” 
23.	It is by reference to all this that Miss Giovanetti submits that the issue of detention in one category of compulsory accommodation as opposed to another does not engage Article 5 in a case where the need for detention is not itself in issue. It seems to me that this argument is irresistible and that the purported reliance on Article 5 is not arguable. 
24.	So far as Article 3 is concerned, this is not a case in which the evidence points to specifically inhuman or degrading treatment. For Article 3 to be engaged there must be evidence that crosses the minimum threshold of severity that that demanding provision stipulates. I am satisfied that it is not arguable that that border has been crossed in the present case. 
25.	Likewise in relation to Article 8, I am satisfied that the evidence is not such that can support an arguable challenge. 
26.	All that then leaves me with only one further issue, and that relates to the adequacy of the reasoning of the Mental Health Tribunal. This of course falls to be assessed by a broad approach which reads the decision as a whole and does not adopt an approach that is too pedantic. It is plain from a reading of the decision as a whole that the reason why there was no recommendation of a transfer to another or different type of hospital was that the proffered alternative had proved to be elusive as a result of Dr Thomas's conclusion that the patient was too dangerous for admission to her specialist medium secure unit. Reading the concluding sections of the decision of the Mental Health Review Tribunal as a whole, and I refer to the long passage which I set out earlier in this judgment, I am entirely satisfied that they contain an adequacy of reasoning for that omission to recommend a transfer to another hospital. It is true that the reasoning in relation to the Human Rights Act is laconic, the tribunal simply recording that it finds no breach of the provisions of the Human Rights Act. However, by reference to the issues that were before it, and having regard to the law applicable to those parts of the Human Rights Act which fell for consideration, it seems to me that nothing flows from the brevity or succinctness of that finding of no breach. As I have already indicated, it seems to me that there is no arguable basis for substantiating a breach in the circumstances of this case. 
27.	As a result of all that, I have concluded that the claimant does not have an arguable case to support an application for judicial review and her renewed application for permission must therefore be refused. 
28.	I do not, however, leave the case without adding my own observations that it is apparent that the claimant, the patient's mother, has been acting at all times with the best of motives and I do understand the disappointment that she must feel, that there is no immediately available alternative to that which currently causes her, and no doubt the patient, some distress. That, I am afraid, is something that I cannot cure because, in my judgment, the law falls well short of providing her with a remedy. There simply is no arguable case against the defendants in this case. 
MR OWUSU: My Lord, may I apply for my taxed costs in relation to this application?
MR JUSTICE MAURICE KAY: There is no certificate on the file. Assuming one is filed within seven days you may have the order.
MISS GIOVANETTI: I have an application on behalf of the defendant. We have in mind the practice direction. We are not aware of any decision of the courts dealing expressly with the recommendation point in the context of mental health. My Lord, you have heard full argument and you have had skeleton arguments. We would ask you to direct that there is no duty to rely upon this judgment.
MR JUSTICE MAURICE KAY: Yes.