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
		Friday, 18th August 2002

MR JUSTICE CRANE:

Introduction

1. On 3rd July 2002 the patient in this case (called "W" for the purposes of the proceedings) was approaching his release from a three and a half year prison sentence. The Secretary of State on that date made a direction for his transfer to hospital under section 47 of the Mental Health Act 1983 ("the Act"). This case concerns the lawfulness of the transfer and of his continued detention in hospital.
2. The proceedings took the following course. A claim for a declaration was made by the relevant hospital, the South West London and St George's Mental Health NHS Trust ("the Trust") on 27th June 2002. Following directions hearings, Scott Baker J, on 2nd July, made an order for anonymity and adjourned the application with liberty to restore, but in fact later made further directions on the same day, and indeed made an order that the claimant was ordered to "accept and detain the Defendant pursuant to the warrant made today by the Secretary of State under section 47 of the Mental Health Act 1983". On 26th July Scott Baker J ordered the matter in for a hearing this week with Professor Eastman, the Responsible Medical Officer, to attend for cross-examination.
3. I shall refer to the parties as "the patient", "the Trust" and "the Secretary of State" since the patient has also made an application for habeas corpus which is being heard at the same time.
4. It is common ground that the patient suffers from a personality disorder which is a "psychopathic disorder" for the purposes of the Act. The relevant part of section 47 reads as follows:

"(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners -

(a) that the said person is suffering from ... psychopathic disorder ... ; and

(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder ..., that such treatment is likely to alleviate or prevent a deterioration of his condition;

the Secretary of State may, if he is of the opinion having regard to the public interest in all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such a hospital ... as may be specified in the direction; and a direction under this section shall be known as "a transfer direction"."

5. At the core of this case is the question whether the transfer for the purpose of a staged or phased discharge from hospital was lawful. That purpose, which I have stated shortly, will require a fuller description later, but the central question is whether such a phased discharge would, in particular, fulfil the words of section 47, "that such treatment is likely to alleviate or prevent a deterioration of his condition".

The issues

6. The stance of the Trust represented by Miss Morris was and is clear. They sought a declaration in the following form:

"1. The Defendant is treatable within the meaning of Section 3(2)(b) of the Mental Health Act 1983 because medical treatment is likely to alleviate or prevent a deterioration of his condition.

2. In pursuance of a Direction made under Section 47 of the Mental Health Act 1983 by the Secretary of State for the Home Department it will be lawful for the Claimant to admit the Defendant to the Shaftsbury Clinic ... and detain him there for medical treatment."

7. Of course, time has moved on, and any declaration granted would have to take account of that. The Trust also contend that the detention remains lawful.
8. The stance of the Secretary of State is that the order for transfer was indeed lawful. Counsel, Miss Jenni Richards, contends that, in the absence of a claim for judicial review, it is not open to the court to quash that transfer. She also contends, as I understand it, that habeas corpus is not appropriate either.
9. The stance of the patient has not been completely clear. A decision was taken not to apply for judicial review despite an invitation to consider doing so. However, counsel, Mr Stephen Cragg, eventually accepted that he was wishing to submit that the transfer was unlawful. He does not submit that the way in which the decision of the Secretary of State was reached on the material before him was flawed, and he no longer contends that transfer was unlawful because it was at a late stage of the sentence, nor because section 2 or section 3 of the Mental Health Act 1983 was available. However, if I were to conclude on the Trust's application that the transfer was not lawful, it would follow that the detention was unlawful.
10. Alternatively, counsel for the patient submits that detention is now no longer lawful. In either event, habeas corpus is sought on behalf of the patient.
11. Miss Richards refers me to R v Secretary of State for the Home Department, ex parte Muboyayi [1992] 1 QB 244, a decision of the Court of Appeal. At page 255, letter H, Lord Donaldson of Lymington, MR, referred to R v Secretary of State for the Home Department, ex parte Cheblak [1991] 1 WLR 890. In Cheblak the appellant had been arrested and served with notice of intention to deport on grounds that his deportation would be conducive to the public good. He sought leave to apply for judicial review and also for a writ of habeas corpus. The court held that the remedy of habeas corpus was not available, and at page 894, Lord Donaldson, who was a member of the court in Cheblak, had put it in this way:

"Although, as I have said, the two forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different. A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue."

12. In the case of Muboyayi itself, the facts were that the applicant, a citizen of Zaire, applied for leave to enter and sought political asylum. The Secretary of State refused his application without considering his claim for asylum and directed his removal to France. He applied for a writ of habeas corpus because he was detained pending his removal under paragraph 16(2) of schedule 2 to the Immigration Act 1971. The decision in the case was that he was not entitled to apply for judicial review, and Lord Donaldson said this at page 255B:

"In the present case the right to detain does indeed depend upon a precedent fact or series of facts. They are that (a) the applicant was a person who might be required to submit to examination under paragraph 2 of Schedule 2 of the Act of 1971 and he was detained pending a decision to give or refuse him leave to enter and/or (b) he was a person in respect of whom directions might be given under paragraphs 8 to 14 and he was detained pending the giving of directions and his removal in pursuance of any directions given ... there was no challenge to jurisdiction, but only to a prior underlying administrative decision. That is a quite different challenge and, unless and until it succeeds, there are no grounds for impugning the legality of his detention.

Put in another way, in the first category an applicant alleges that the detention is and always was unlawful. In the second category he alleges that it will become unlawful, if and when a court of competent jurisdiction destroys the precedent fact, as contrasted with a finding that it never existed. The issue in this appeal is whether a writ of habeas corpus is an appropriate remedy in the latter type of case."

13. On the question of habeas corpus, I say nothing to qualify the view expressed in those cases that judicial review will usually be appropriate where the decision in relation to detention is challenged. However, I should be inclined to distinguish the case of Muboyayi. In that case the prior administrative decision provided jurisdiction to detain under paragraph 16(2) of schedule 2 of the Immigration Act 1971. In the present case the decision said to be unlawful is the actual transfer itself. It is contended that one of the matters of which the Secretary of State had to be satisfied under section 47 was simply not present. I am inclined to distinguish Cheblak for similar reasons. However, I recognise that Lord Donaldson included a situation where a decision was within the powers but "there was a misappreciation of the law". I also recognise that section 47 requires the Secretary of State to be satisfied of certain matters. It may be sufficient if he is satisfied, and not unreasonably so, of the matters required, although if he acted on reports of doctors that, on their face, disclosed no lawful basis for a direction, different questions would arise.
14. I express no final view about the availability of habeas corpus. This aspect of the case was not the subject of full argument and, for reasons which will appear, it is not crucial in the light of my conclusions. However, I cannot avoid considering whether the transfer was lawful or not. I shall return to the question of remedies in due course.

The law

15. I have already set out section 47 so far as it is relevant.
16. The effect of a transfer is that the patient is then dealt with as if he was detained under a hospital order under section 37 of the Act made by a criminal court. If he is so detained, he may be discharged under section 23 of the Act by the hospital managers or by the responsible medical officer. He may also be discharged under section 72 of the Act by a Mental Health Review Tribunal. The Mental Health Review Tribunal are specifically required to consider, among other matters, whether conditions such as those set out in section 47 continue, including, on authority, which is common ground, the crucial condition that "such treatment is likely to alleviate or prevent a deterioration of his condition".
17. On the definition of medical treatment, section 145 defines medical treatment as including nursing, and also including care, habilitation and rehabilitation under medical supervision. It is to be noted, however, that a conclusion that certain treatment amounts to medical treatment does not necessarily mean that such treatment will be likely to alleviate or prevent deterioration of the patient's condition. That is a separate matter.
18. I turn to the authorities which counsel brought to my attention. The first case is R v Canons Park Mental Health Review Tribunal, ex parte A [1995] QB 60. The issues in that case for decision were not identical to the present, but at page 81 of his judgment, Roch LJ, who dissented on the decision, gave valuable guidance on the meaning of "treatment". Although he dissented in the decision, his views have been subsequently approved by the House of Lords. He said this:

"First, if a tribunal were to be satisfied that the patient's detention in hospital was simply an attempt to coerce the patient into participating in group therapy, then the tribunal would be under a duty to direct discharge. Second, "treatment in hospital" will satisfy the "treatability test" although it is unlikely to alleviate the patient's condition, provided that it is likely to prevent a deterioration. Third, "treatment in hospital" will satisfy the "treatability test" although it will not immediately alleviate or prevent deterioration in the patient's condition, provided that alleviation or stabilisation is likely in due course. Fourth, the "treatability test" can still be met although initially there may be some deterioration in the patient's condition, due for example to the patient's initial anger at being detained. Fifth, it must be remembered that medical treatment in hospital covers "nursing and also includes care, habilitation and rehabilitation under medical supervision". Sixth, the "treatability test" is satisfied if nursing care etc are likely to lead to an alleviation of the patient's condition in that the patient is likely to gain an insight into his problem or cease to be unco-operative in his attitude towards treatment which would potentially have a lasting benefit.

If the "treatability test" is given the wider scope which in my judgment it should be given, then it becomes clear that the tribunal was deciding that their duty to direct the discharge of the applicant did not arise because they were not satisfied that medical treatment in hospital was not likely to alleviate or prevent a deterioration of the applicant's condition. Such a finding is not surprising when it is appreciated that the applicant's detention in the secure unit for medical treatment had eliminated the symptoms in the diagnosis of her condition on her first admission to St Luke's Hospital of deliberate self-harm and alcohol abuse and reduced those of reactive depression and suicidal ideation."

19. Further, in the Canons Park case, Kennedy LJ said this:

"As I have already noted, nursing care and care under medical supervision are also "medical treatment", and there was evidence before the tribunal from which the tribunal was entitled to conclude that over a prolonged period treatment, consisting at first of no more than nursing, care and gradual persuasion to accept group therapy, followed by group therapy itself was likely to alleviate or prevent deterioration of her condition, even if at first some deterioration could not be avoided."

20. The next case is the decision of the House of Lords in Reid v Secretary of State for Scotland [1999] 2 AC 512. Again, it is not necessary to discuss the precise issues in that case, but again the question of what amounted to medical treatment and treatability received attention by their lordships. At page 531 Lord Hope of Craighead said this:

"The expression "medical treatment" is, as I have said, given a wide meaning be section 125(1) of the Act. It includes nursing, and it also includes care and training under medical supervision. The width of the expression is not diminished where it requires to be examined in the context of the "treatability test". Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them. Dr Thomas White, who is the petitioner's responsible medical officer, said in his report that there was evidence that the petitioner's anger management improves when he is in the structured setting of the State Hospital in a supervised environment. The environment is one which is set up and supervised by the medical officers of the hospital. While the question is one of fact for the sheriff to decide on the facts of each case, I consider that it will be open to him in such circumstances to find that the "treatability" test is satisfied."

21. At page 542 Lord Clyde said this:

"It was not suggested before us that the sheriff had misconstrued what is meant by the expression "medical treatment". It is defined in section 125 of the Scottish Act as including nursing and also care and training under medical supervision. In section 145 of the English Act it is defined as including nursing, and also care, habilitation and rehabilitation under medical supervision. Plainly the expression is wide in its scope. The inclusive character of the definition allows of other things to be comprehended in it and it was not suggested that the particular things noted in the English definition would not also fall within the scope of the Scottish definition, as indeed may much else. The sheriff was plainly aware of the terms of the statutory definition and indeed used its terminology to express the nature of the treatment which he found the petitioner was continuing to receive in conditions of maximum security. I see no ground for holding that he misdirected himself in law as towards the question which he had to answer.

It was recognised by the judges of the Second Division that the word "condition" in section 17(1)(a)(i) includes the manifestations and symptoms of the patient's disorder. The sheriff accepted the evidence of Dr White that "in the structured setting of the State Hospital in a supervised environment ... the petitioner's anger management improves, resulting in his being less physically aggressive". The sheriff later states "Medical treatment has alleviated his condition and should continue to do so". The sheriff found that although psychiatrists generally would be unlikely to recommend admission to the State Hospital if the petitioner had committed the original offence today, due partly to the current opinion on the efficacy of treatment, the petitioner has received and is continuing to receive medical treatment."

22. At page 551 Lord Hutton in the same case said this:

"I am in agreement with the opinion of the Inner House that treatment which alleviates the symptoms and manifestations of the underlying medical disorder of a psychopath is "treatment" within the meaning of section 17(1)(a)(i) even if the treatment does not cure the disorder itself."

23. The most recent authority is the case of R (on the application of W.) v Rampton Hospital Authority [2001] EWHC Admin 134. This was a decision of Elias J. At paragraph 16 he said this:

"But he submits, and I accept, that that is a consequence of the fact that there is no right to detain someone merely because they pose a danger to the public, the treatability test has to be satisfied. This is far from satisfactory, because of course it means that the court may be required, in effect, to direct the release of somebody who is a real danger to the public. Plainly the court cannot be sanguine about taking that step. Nevertheless, as Mr Gledhill quite correctly reminds me, if the treatability test is not satisfied then it is my duty to apply the law as laid down by Parliament and not to make good any deficiencies in the legislation."

24. At paragraphs 33 to 35 Elias J said this:

"33. Reviewing all this evidence, I am satisfied that, although the material discloses only very limited benefits to Mr W. of the treatment that he has received, there is enough evidence to show that Dr Page could properly have reached the view that the treatability criteria had been made out. I accept that the evidence of improvement is limited, but inevitably I put some weight on the affidavit which has been sworn by Dr Page in these proceedings. In my view, the material that has been provided, and to which I have made some reference, does bear out the limited benefits which Dr Page says have been achieved.

34. I should add that, in any event, it seems to me that whatever the benefit of the treatment meted out in the past, and which it is reasonable to assume, will achieve similar benefits in the future, there is evidence that further and different treatment might alleviate the condition or prevent a deterioration of it. I have referred to the proposals, initially for treatment at Broadmoor Hospital and subsequently for treatment in the Personality Disorder Service. Those are treatment with which Dr Page concurs.

35. I recognise that it may be said that those treatments have been proposed in hope rather than out of experience, and that it is possible that the various medical officers and social workers recommending such treatment do not necessarily believe that it is likely to achieve any benefits for Mr W.. But there are passages in the documents before me which make it plain that there is a belief that they will bring about an improvement: I refer, for example, to a letter which Dr Page wrote to the Medical Director of Broadmoor Hospital, in which she states:

"The view of the clinical team is that Mr W. would benefit from an alternative placement.""

25. It is clear also that treatment includes monitoring and assessment, although not assessment in isolation. That emerges clearly from the case of Barker v Barking, Havering and Brentwood Community Healthcare NHS Trust 47 BMLR 112.
26. Finally of the authorities submitted I note that in R (on the application of Epsom and St Helier NHS Trust) v The Mental Health Review Tribunal [2001] EWHC Admin 101 Sullivan J said this at paragraph 47:

"Barker is authority for the proposition that one has to look at the whole course of treatment. To do so, one has to look at the past, present and future. It is not enough to say that a patient is not receiving treatment at a particular time."

27. Paragraph 48:

" ... [one] has to recognise the progressive nature of treatment in many cases ... there will be progressively longer periods of leave, with a corresponding reduction in the need for in-patient treatment."

28. Thus, treatment is a wide concept, as section 145 confirms, although again I stress that section 47 requires more than medical treatment; it requires the likelihood I have mentioned that the treatment will have the effect set out.

History

29. The patient's offence was committed on 25th July 2000. It consisted of a stab wound to the abdomen of the victim. There has been some dispute in the papers about the facts of the case. According to a short account provided by a police officer, the victim was not known to the patient. The patient has asserted on more than one occasion that it was an incident where he was, to some extent at least, defending himself. The facts are still not entirely clear. The police officer's account is by no means to be regarded as an infallible account since he refers to the offence as attempted murder, when in fact a plea of not guilty to attempted murder was accepted and there was a plea of guilty to an offence of grievous bodily harm with intent. However, it appears reasonably clear that the patient did not know the victim, and certainly the patient's accounts are unreliable on their face, tending, certainly on one occasion, to justify the action as carried out in self-defence.
30. A sentence of three and a half years in a Young Offender Institution was a very substantial sentence on a plea of guilty for a 20 year old young man.
31. The patient has previous convictions prior to the index offence: in 1997, there was an offence for common assault on his father, in 1998 there was an offence of malicious wounding on his father, and in 1999 an offence of burglary at his mother's house.
32. I have been provided with a number of previous reports on the patient.
33. In the course of the hearing Professor Eastman, to whom I have referred, has given evidence. He is a Fellow of the Royal College of Psychiatrists, Professor of Law and Ethics in Psychiatry, London University, and Honorary Consultant Forensic Psychiatrist to the Trust. He is also, incidentally, a member of the bar, although not practising. He in fact prepared a report on the occasion of the 1998 conviction, dated 13th February 1998. He had not himself interviewed the patient on that occasion. He noted that the patient was still only 17. He said that in his opinion there was no suggestion of treatability in the case of this patient, and he said:

"... neither are there sufficient clues suggesting a possibility of treatability in order to warrant detention in hospital, under a Section 35 Remand for Assessment Order. He cannot, therefore, in my opinion be admitted to hospital compulsorily, and certainly could not be managed in hospital without compulsion."

34. And then:

"Wherever [W] is placed, he is likely to display behaviour which again "draws in" psychiatric services. However, in my view, any resultant engagement of psychiatric services should always be conducted in the context of some other mode of "containment" than a mode based on any form of "detention for treatment". If, for example, at a later stage he enters the prison system and is referred for an adult forensic psychiatric assessment, and should the view be taken that any such assessment should occur as an inpatient, in my opinion he should only ever be admitted on a "transfer order" (under the Mental Health Act 1983).

35. In summary terms, [W] has a long-standing and untreatable childhood disorder which, in the opinion of adolescent and forensic adolescent mental health services, is untreatable. Given his chronological immaturity, it is too soon to conclude that he will definitely show evidence of an adult personality disorder of the anti-social type, but, in my opinion, it is likely that he will do so. Unless evidence emerges later of the likelihood of treatability of such an adult disorder, psychiatric assistance of him is likely always properly to be pursued in the context of control originating from the criminal justice system."
36. It is to be noted that Professor Eastman, as he now is, in the report, and as his evidence in this court confirms, is very conscious of the limitations in the Mental Health Act and of the need to ensure that its provisions are properly followed. It is also to be noted that the paragraphs I have cited from his 1998 report have a certain prophetic element as matters have turned out.
37. During his present sentence the patient was examined by Dr Clare Dunkley, Consultant Forensic Psychiatrist. She reported on 4th February 2002. She was asked to interview the patient on behalf of the prison probation service. She dealt with the history in some detail, and then under the heading "Impression" she said this:

"It is very difficult to form a view about [W] given the number of different reports and conflicting information regarding him. However the evidence of his stay at HMP Elmley has been that he has settled reasonably well into wing regime, he works as a wing cleaner and has displayed little behaviour of concern to prison staff. The past reports would suggest a young man with a pattern of violent offending behaviour who gave great cause for concern. However, [W] himself is at pains to point out inaccuracies in these reports and portray himself as a settled prisoner looking forward to rehabilitation in the community. The evidence in the past reports would reasonably suggest a diagnosis of personality disorder, however, his current pattern of behaviour shows little if any continuation of these difficulties. It is difficult to explain the marked difference between [W]'s behaviour then and now."

38. Then she said:

"4. On [W]'s current presentation and recent record it would be difficult to finds grounds to consider any referral for psychiatric intervention under the diagnosis psychopathic disorder. [W] appears to have benefited from the stable regime in an adult setting, demonstrated by the significant decrease in threats or episodes of self-harm and indeed an absence of violent behaviour. In view of his current progress I would not be considering any form of referral to psychiatric services and indeed I have great doubts as to whether [W] would wish to participate in any form of therapeutic placement that would increase his period in custody. Should [W] wish for further help from psychiatric services for his drug and alcohol misuse problems should those resume, or indeed for any other matter, I am sure this would be available to him on an outpatient basis in his local area.

5. I would be happy to review [W]'s situation once a full background history has been obtained by yourselves and indeed verified, perhaps a joint interview with [W] at that time might be more productive."

39. The next report is from Ms Nicola Jeffcote, Principal Clinical Psychologist at the Shaftsbury Clinic, the hospital where the patient now is, dated 8th June 2002. She carried out an interview with the patient. In the course of her report she said this:

"Throughout the interview [W]'s mood fluctuated, sometimes changing markedly in a few seconds. At times he laughed in a gleeful way, usually when recounting an act of violence. Once or twice he became very slightly tearful. He was also somewhat controlling, trying to get me to express support for opinions that justified his offending, attempting to use a joking, "matey" manner that implied we were peers, and asking slightly personal questions. At times he tried to take control of the interview in an impulsive and somewhat aggressive manner, for example snatching a list of previous convictions out of my hand. On another occasion he suddenly saw a pair of scales in the consulting room, sprang up and weighed himself while I was in the middle of speaking, completely ignoring me until he had finished."

40. Later she said this:

"Eligibility for Detention under the Mental Health Act and Treatment Issues

[W] Has a severe personality disorder which fulfils the criteria for the legal category of "psychopathic disorder". The issue of whether treatment could "alleviate or prevent a deterioration" in his condition requires more detailed consideration, as follows:

- [W] has firmly stated that he has no interest in psychological treatment. He made it clear he would not engage in such treatment, even if required to attend treatment sessions. In the current state of therapeutic practice and knowledge, some motivation to engage with treatment is essential to treatment effectiveness. Engaging in a therapeutic relationship requires at least some acknowledgement of dependency needs, and [W] does not appear able to make such an acknowledgement at present.

- The lack of violence during his current sentence indicates that a secure setting helps [W] to modify his behaviour. (the same phenomenon was observed during [W]'s periods in structured settings as an adolescent). However, this assessment did not indicate any significant internal, psychological change associated with these behavioural changes. There was no evidence that a secure environment has, of itself, alleviated, or altered the course of [W]'s personality disorder.

[W] therefore does not, in my opinion, at present fulfil the "treatability" criterion for detention under the Mental Health Act.

It is, however, important to emphases that [W] is still a young man and that treatments for severe personality disorder are currently being developed. The fact he is not, in my opinion, amenable to treatment at present does not necessarily mean he will never be amenable. In the likely event he commits another serious offence, I would recommend that further psychological assessment of his suitability for treatment be carried out at that time."

41. In her recommendations Ms Jeffcote said first:

"It is not in my view appropriate to require [W] to undergo psychological treatment after his release from prison. He does not have the capacity to engage with available treatments at present, and such a requirement would inevitably bring failure. Failure would in turn prejudice [W]'s chance of accessing potential helpful treatments in the future."

42. Then at 4:

"[W] is a young man and may mature over the next few years. Should he commit another issues offence, or express an interest in any form of psychological intervention, a further assessment of his amenability to treatment should be made."

43. As the time for his release approached, he was then seen by Dr R Dhar, Specialist Registrar to Professor Eastman. He saw the patient for only 45 minutes in prison, although he had the benefit of information from other sources about the patient, but he said that in his opinion Ms Jeffcote's report outlined very clearly and comprehensively many of the personality traits and characteristics that were apparent. He expressed the opinion that the patient was very resistant at present, and as more and more assessments were conducted they seemed to have an additive effect so that his resistance increased. He said there was also evidence of his apparent "ambivalence (rather than active resistance)" as seen by another psychologist in 1999. He said this:

"There is no conclusive evidence that he has benefited from the environment of prison specifically in relation to reduction of symptoms and manifestations of his personality."

44. Then he said:

"He stated that he is not willing to engage in any group work or in one-to-one work and is unable at this time to acknowledge that there are any areas in his personality that need to be assessed further or that he needs help with."

45. Under "Recommendations", two passages:

"At this present time it is most unlikely that [W] will benefit from treatment for his personality disorder or behaviour. Treatment would therefore neither alleviate or prevent further deterioration of his personality disorder. Within the scope of treatment, individual or group therapy or indeed the treatment structure of a hospital at present are unlikely to yield a benefit ...

Indeed it is possible from recent interview evidence that compulsory detention and treatment, at this point in time, may increase his anger and resistance and reduce his ability to engage."

46. The reports up to and including that of Dr Dhar thus plainly appear to advise against any possibility of treatment, let alone treatment that would have the effect required by the Act.
47. However, Professor Eastman was understandably concerned about this patient (then of course a prisoner) and he called a meeting of his clinical team in the Shaftsbury Clinic on 25th June. It was attended by police officers, probation officers, and also by the clinical team, represented by Dr Dhar, Ms Jeffcote, a senior nurse, a team social worker and Dr Clare Dunkley. He also asked that a representative of the Trust's solicitors be present since the question of what amounted to treatment in law was to be discussed. The case of this patient was extensively discussed. The conclusion was reached that the patient posed a very high risk of serious re-offending on the basis, among other things, that his index offence appeared to be unprovoked and on a complete stranger. Now, it is to be noted that that conclusion would be relevant to the Secretary of State's consideration of the making of a direction of transfer, but only after a conclusion that the medical conditions were fulfilled.
48. In terms of the possibility of treatment, says Professor Eastman, the discussion focused both on what treatment could be offered to the patient in hospital and what was meant legally by "treatment". The assessments conducted by members of the team and by Dr Dunkley had focused on treatability in terms of the underlying personality disorder, that is the patient's "core disorder". At the meeting, however, treatability was discussed in a wider sense in terms of providing not just treatment for the underlying disorder, but also its manifestations, and in considering the possibility of a "staged discharge" it was thought that such a clinical approach would amount to treatment because it would be more likely to prevent a deterioration of the manifestations of the defendant's disorder than would be the case were he to be released in one step from prison. He expressed the view in his statement, made prior to the transfer direction, that the clinicians held the view that the terms of section 47 could be met, but it was decided that a declaration should be sought from the court.
49. Dr Dunkley saw the patient again for half an hour on 25th June. Dr Dhar did not see the patient again before the reports which I am about to deal with, and which form the primary basis of the transfer direction.
50. Dr Dunkley in her medical report and Dr Dhar in his both express the view that the treatment that was proposed was likely to alleviate or prevent a deterioration of the patient's condition. Dr Dunkley said this:

"He has a history of escalating violence leading up to this recent offence of GBH with intent. As an adult his history suggests the development of a personality disorder characterised by low tolerance of frustration, outbursts of anger and aggression, lack of concern for himself and others, lack of capacity to experience guilt, difficulty in trusting others, a tendency to minimise past behaviour and a persistent anti-authoritarian attitude. He fulfils the criteria for psychopathic disorder.

Within the rigid structure of the prison setting he at first continued to display violent and self-destructive behaviour. With the move to the adult estate his disturbed behaviour is less evident but his history suggests that upon his release to the community his mental state will deteriorate with subsequent risk to himself and others. Admission to hospital will allow for a period of assessment and stabilisation followed by a phased discharge to the community. Whilst there may be some initial deterioration in his condition in the longer term a hospital admission at this time should prevent the deterioration that would follow an unsupported discharge to the community. At interview he made it clear that he did not wish to accept any support from probation or other services if discharged to the community at this time. I believe his mental disorder is of a nature which makes detention in hospital appropriate."

51. Dr Dhar said this in his report:

"[W] suffers from personality disorder characterised by anger and aggression with extreme violence. He has a lack of remorse and concern for others. Also he displays difficulty trusting others and minimises past violent behaviour. He has a lack of emotion and shows a lack of responsibility in relation to violent acts.

The nature and degree of his disorder is such that he requires urgent transfer to hospital because unsupported discharge to the community is likely to result in a rapid deterioration of his condition. Urgent treatment is needed to prevent such deterioration on his release from prison with when its structure is imminent.

Admission is required for further hospital based assessment of his disorder and risk and also a subsequent staged discharge into the community."

52. I bear very much in mind that Dr Dunkley's conclusions and Dr Dhar's conclusions were obviously very different from Dr Dunkley's report in February and from Dr Dhar's report only the day before. Certainly in the case of Dr Dhar his report in its conclusions indicated that he had performed a volte-face. Dr Dunkley in her statement points out that she had in her report said that she required more information. Dr Dhar states that he was advised further on what in law qualified as treatment. It must be borne in mind that they were both present at the meeting on 25th June.
53. I turn to Professor Eastman's evidence to this court. Although, of course, his evidence to this court was not in its present form available to the Secretary of State when the decision was taken, nevertheless his evidence about personality disorder and its nature is of great assistance to the court in understanding such disorder. In the course of his second statement, he divided the treatment of patients with mental health problems into three different forms, which have been referred to during the case as limbs one, two and three. These are a helpful basis for consideration of treatment.
54. First of all, limb one, treatment of the patient's core disorder. In my opinion, said Professor Eastman, this is what Miss Jeffcote had in mind when she indicated in her report that W was not treatable. Limb two, seeking to give the patient the skills necessary to cope with situations that they had previously found difficult or stressful but without attempting to change the core disorder. Limb three, management focused on managing the patient's environment so that conflict in situations is minimised, this includes management in the hospital when the patient is on leave from the hospital and when the patient is in the community; "this neither alters the core disorder nor gives skills to the patient".
55. He also took the view in that statement that providing the patient with a staged or phased discharge was likely to reduce the very negative effect on the patient's mental wellbeing that would otherwise have occurred following sudden release from prison. He says that the plan devised was that the patient would be admitted to hospital for several months and be given increasing leave from the hospital linked to occupational and other therapy. They would try to find a place for him in a hostel, with trained mental health workers and operate liaison between those workers and the hospital team. The patient would gradually spend increasing periods out of hospital and then progress to overnight staying at the hostel. In his view that amounted to rehabilitation under medical and social supervision.
56. He expanded in his evidence on these matters. He said in particular that the effect of sudden release was likely to result in a range of manifestations of behaviour emanating from his condition, aggressive behaviour, self-harm, and also drug abuse feeding back into aggressive behaviour and self-harm. Phased discharge via the community team was likely to make such manifestations less likely. He described to the court how a personality disorder is essentially a developmental condition: in a sense, the disorder is the person, as a result of genetics and upbringing, while mental illness, in contrast, involves a change from the person. He pointed out it is much harder to treat a personality disorder, unlike mental illness it does not usually benefit from medication.
57. He also put some emphasis on the evidence that this patient was ambivalent towards change. Although he accepted that in one way that gave grounds for pessimism, there is another side to the coin in that it gave some grounds also for optimism in relation to somebody with a psychopathic disorder. He says that he concluded that it would be possible to build up a relationship.
58. I have the benefit of reading a report submitted on behalf of the patient by Dr David Somekh dated 12th August 2002. Dr Somekh is a Consultant Forensic Psychiatrist. He expressed the view that the views of those who recommended a transfer were flawed. He said this:

"What appears to have occurred, according to Professor Eastman, is that there was a further multi agency team meeting at the Shaftsbury Clinic on 25 June where there were members of both the police, Probation and the Shaftsbury Clinical team as well as Dr Dunkley. The conclusion of the meeting was that [W] posed a very high risk of serious re-offending, however, it will be noted that Professor Eastman refers to a fact which I believe is in fact quite incorrect and therefore must have had a significant influence on their conclusions, namely, that the index offence appeared to be unprovoked and on a complete stranger. I believe there is good evidence that this piece of evidence cited by Professor Eastman is almost certainly untrue and therefore their conclusions inevitably one must assume were in fact flawed."

59. I have to say that, although Dr Somekh reached that conclusion from the evidence available to him, including his discussion with the patient, the evidence appears to me overwhelmingly to point to an unprovoked attack on a complete stranger, and to the fact that the patient has misrepresented to various people, including Dr Somekh, what exactly happened on that occasion.
60. Dr Somekh went on to question the use of a staged discharge and expressed the view that what was being done was simply containment as had occurred in prison. He said that Professor Eastman had provided scant evidence for the ability of the health service to be effective in providing an improved process of discharge, and he expressed the view that the patient was so angry about being detained beyond his release date that any motivation he might have had to co-operate evaporated and he simply became angry and resistant.
61. In conclusion, Dr Somekh expressed the view that the patient did indeed have a personality disorder, that he was immature, and as a result of immaturity he has been violent in the past and that there was some risk of re-offending, but he took the view that his current medical condition, speaking, of course, slightly later than the transfer direction, did not meet the test in the Act, and hence the detention would be unlawful.
62. Mr Cragg relies on Dr Somekh's report, which is of course much longer than I have chosen to set out. Mr Cragg relies most strongly on the lack of indication that there had been, and still was, that there would be co-operation and the indications on the contrary that the patient would become angry and resistant.

Conclusions in relation to the transfer direction

63. It may well be desirable for there to be a phased discharge in the case of many prisoners. However, it has to be noted that the process of release on licence does not provide for phased discharge. In certain circumstances a modified version of phased discharge can be achieved. For example, many prisoners receive home leave before their final release, and many prisoners, once released on licence, are placed under a condition of residence, which may in some circumstances be in a hostel or other relatively sheltered environment. But in both those situations the release takes place and is not postponed. The prisoner has a release date either fixed by law, as a result of the length of his sentence, or fixed by the Parole Board where there is a discretion in the Parole Board as to the date of release. Clearly, section 47 cannot be used simply to postpone release. It is not alleged on behalf of the patient that it has been used in that way in this case, but it is important that those considerations be borne in mind in any such case.
64. In my judgment, transfer to hospital involving admission, nursing, medical, and here psychological supervision, and staged discharge under medical supervision, is capable of amounting to "treatment", and if, in a particular case, it is "likely to alleviate or prevent a deterioration of the condition" then the medical conditions of section 47 are fulfilled. In my judgment, on the evidence the Secretary of State had, he was entitled to conclude that the conditions were fulfilled and that the treatment was likely to have the effects required. That is confirmed, in my view, by the careful letter dated 4th July written by the Secretary of State to the patient's solicitors, giving the reasons for the making of the transfer direction:

"In reaching this decision account has been taken of all the documents in the court bundle, the witness statement produced by Professor Nigel Eastman for the court hearing on 2 July, additional information provided on Professor Eastman's behalf by Counsel for the Trust to Counsel for the Home Office and the representations made on [W]'s behalf in your letter of 2 July. Account has also been taken of information provided by the Sussex Probation Service and Sussex Police.

The additional information provided on Professor Eastman's behalf was to the effect that [W] is someone who copes badly with change, in particular sudden change, and with the loss of structure which would follow on leaving prison; that admission to and treatment in hospital would prevent a deterioration of the manifestations of his condition; that the aim of his admission would be to help him to manage change and to decrease the worsening of his condition which would otherwise result; that he would in hospital receive treatment in the form of rehabilitation under medical supervision; that he was extremely dangerous; that without such intervention he was at a high risk of committing serious offences; and that whilst further assessment of [W] would be beneficial, the programme of staged discharge which was envisaged did not depend upon further assessment. It was also explained on Professor Eastman's behalf that what was envisaged was that [W] would remain in hospital for several months during which time the aim would be for him to have increasing leave linked to occupational therapy and to establish links with a mental health hostel.

All the medical evidence before us is in agreement that [W] suffers from psychopathic disorder within the meaning of the Mental Health Act 1983. Although they had taken a different view on [W]'s treatability in their earlier reports, the medical reports prepared by Dr Dhar and Dr Dunkley on 26 June 2002 both give the opinion under the heading "Section 3 Declaration" that the mental disorder from which [W] is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and that such treatment is likely to alleviate or prevent a deterioration of his condition. Dr Dhar's report indicates that unless [W] is transferred urgently to hospital there is likely to be rapid deterioration in his condition but this can be prevented by transfer to hospital. Dr Dunkley's report indicates that in the longer term a hospital admission should prevent a deterioration in [W]'s mental condition. This evidence is supplemented by the witness statement prepared by Professor Eastman, which gives a clear indication that, in his opinion, [W] would benefit from treatment of his mental disorder as an in-patient in hospital. Professor Eastman draws attention to treatability in the wider sense, in terms of providing not just treatment of [W]'s underlying disorder, but also its manifestations, and expresses the view that treatment would be likely to prevent a deterioration of the manifestations of his disorder. Professor Eastman has also made clear that, in addition to a better assessment of [W]'s personality disorder and functioning, admission to hospital would enable his rehabilitation under medical supervision, which fully accords with the definition of "medical treatment" under the 1983 Act.

Following consideration of all of the evidence, including the additional information from Professor Eastman, and following consideration of the representations in your letter dated 2 July 2002, the Secretary of State was satisfied that the criteria set out in s.47(1)(1) and (b) of the 1983 Act were fulfilled.

In reaching the decision to make a transfer direction the Secretary of State also took account of the views of the police and probation service with regard to [W]. I spoke yesterday morning to representatives of the Sussex Police and the Sussex Probation Service. They both expressed serious concerns about [W]'s potential dangerousness, especially to members of his family, and the likelihood that if he is released into the community he will almost certainly be exposed to drugs which would increase further the risk of re-offending.

I am fully aware that the decision has been made on the eve of [W]'s conditional release date from prison. This factor was taken into account by the Secretary of State when deciding whether to make the Transfer direction. Nevertheless it was considered that in light of the high risk which [W] poses and having regard to the public interest it was expedient and appropriate to make the direction for [W]'s removal to and detention in the Shaftsbury Clinic.

Consideration was given to whether this objective might be met by other means as indicated in your letter. However, in terms of s.2 of the 1983 Act the Secretary of State has noted that the Trust considers that what it is intending to provide is treatment and circumstances now dictate that there is not time to fulfil the processes required by Section 3 of the Act.

In view of the release date from prison, the Transfer direction issued yesterday is without restrictions."

65. While there was plainly a question whether this patient would co-operate and whether his behaviour would deteriorate, both Dr Dunkley and Dr Dhar, whose reports were the primary basis of the transfer direction, were recommending transfer, it is plain, because of the likely rapid deterioration in the patient's condition on a simple release. In my view they, and Professor Eastman, were entitled to conclude that such deterioration could, at least to a degree, be prevented. Section 47 does not, in my view, require the deterioration be prevented completely.
66. It follows that the transfer direction was lawful and his detention was lawful.

Since 3rd July

67. In fact the situation since 3rd July has changed. In part, that change gives cause for concern. The nursing staff at the Shaftsbury Clinic were concerned about the patient's attempt to manipulate other patients and other aspects of his behaviour. They found him frequently abusive and aggressive, although not actually involved in fights. On 2nd August he absconded from the clinic by climbing over the perimeter fence. He was apprehended after, I think, three days and returned to the clinic. He did not misbehave, as far as is known, during his period of liberty.
68. However, there has been, on the other hand, a favourable development. As Professor Eastman pointed out in his third statement to the court, because the patient was under the care of his team, more information became available. After seven sessions with the Clinical Psychologist, Ms Jeffcote, and consideration of the case by the social worker and two interviews with Professor Eastman himself, Professor Eastman came to believe that there was a reasonable prospect of the patient proving treatable not just in terms of admission for phased discharge (limb three), but also in terms of limb two, that is achievement by the patient of skills directed to limiting the effect of his disability. He believed it was also possible, but only possible, that the patient might prove treatable in terms of limb one, that is alteration of the core disorder.
69. As I have indicated, that was based very much on conclusions reached by Ms Jeffcote. Ms Jeffcote interviewed the patient on a number of occasions. She said this in a report dated 3rd August:

"In summary, [W]'s behaviour over the four weeks of his admission indicated he could not be managed safely in medium security over the long term. His subsequent escape, which appears to have been planned and which involved another patient creating a diversion, clearly supports this view."

70. But, she went on:

"Whatever the reasons for his co-operation [that is with her], he was able, with feedback in a measured response, to override a strong impulse to become aggressive and dismissive in response to difficulty with a task. He also demonstrated a capacity to focus, concentrate and persevere that suggests he might, under appropriate conditions, be able to develop more pro-social life skills."

71. However, she did consider that the patient should be assessed and if appropriate treated in conditions of maximum security.
72. In an addendum to that report, her conclusions were these:

"In the four weeks of [W]'s admission to the Shaftsbury Clinic, he has demonstrated a capacity, albeit limited, for engagement in psychological work through the process of psychometric assessment. This capacity has included:

- an ability to respond to feedback;

- an ability to overcome the impulse to give up irritably in the face of difficulty or challenge;

- some ability to control his behaviour in terms of stress; and

- an ability to focus and concentrate on a task, and to seek guidance in a reasonably collaborative manner."

73. She went on:

"[W]'s sustained concentration during the process of psychometric testing is particularly noteworthy as his hyperactivity, diagnosed in his early childhood, appears to have caused major disruption to his schooling, and may have prevented him from realising his full potential in terms of his natural ability."

74. She described at page 65 of the bundle, in terms I need not set out, the most prominent features of his severe personality disorder. She then went on to suggest that it might well be possible to carry out treatment for what is in effect limb two of Professor Eastman's description, possibly even limb one.
75. On 6th August the managers of the hospital, who had of course power to order the discharge of the patient, considered his case. They considered, in particular, Ms Jeffcote's views, and they took the view, in effect, that he still met the requirements for his detention that emanate from section 47.
76. Because of difficulties of management, to which I have referred, there has in fact been a reference to Broadmoor to see whether a high security hospital could take him. There is a report produced by Professor Eastman from Dr Tim McInerny, Honorary Consultant Forensic Psychiatrist. He saw the patient on 9th August and reported on 12th August. He was of the opinion that the patient did not currently require conditions of maximum security for further detainment because, while in the Shaftsbury Clinic, he had not engaged in violent behaviour towards staff or patients, although he presented in a threatening and aggressive manner. This decision could be reviewed if the behaviour changed. However, Dr McInerny did agree that the patient continued to require assessment and treatment in hospital and he believed that treatment was preventing a deterioration in the patient's condition.
77. The effect of Professor Eastman's evidence is that at present the plan for phased discharge has in effect been suspended. Professor Eastman takes the view in his evidence to this court that there is a reasonable prospect that psychological treatment will result in improvement, that would be limb two treatment, but he said that he approached this cautiously at this stage. He pointed out that the Shaftsbury Clinic is a medium secure hospital. He thought that a specialist unit dealing with those with personality disorders would improve the chances of any treatment. If the patient was to remain in the Shaftsbury Clinic, it was, as he put it, early days in relation to limb two, there would be likely to be some benefit, but he could not say how much. If he was not in a specialist unit there was a risk that things would break down and that the patient would end up in Broadmoor. The patient remains under medical and nursing, and indeed psychological, supervision because, as I understand it, Ms Jeffcote's assessment continues. There is to be a hearing before a Mental Health Review Tribunal on 21st August.

My conclusions about the present detention

78. While admission for assessment does not fulfil by itself the requirements of section 47, this admission was not simply for that purpose. The psychological testing has demonstrated the possibility at least of treatment in the sense of limb two, but the evidence does not appear as yet to demonstrate a likelihood that it will alleviate or prevent a deterioration in the patient's condition.
79. The situation has been complicated by the difficulties of management, which I have mentioned. Transfer to a high security hospital is not planned. I understand that Professor Eastman wishes to seek the possibility of entry to a specialist medium secure unit.
80. The location of the patient, in the sense of his location in a particular hospital, is not a matter for the court or for the Mental Health Review Tribunal. However, his location has, in practice, an effect on what treatment can be carried out and what treatment is likely to be effective in the required sense. Hitherto, the plan for phased discharge has been suspended, although not abandoned, and could be revived if limb two treatment proves not to be viable. I do not consider that detention becomes unlawful immediately a particular form of treatment is suspended if there is a period of assessment in relation to another form of possible treatment and the process of monitoring under nursing, medical and psychological supervision continues.
81. In the light of the fourth and fifth principles enunciated by Roch LJ in the Canons Park case at page 82, the conditions required for the continued detention have, in my judgment, hitherto continued. On the evidence before me detention has continued to be lawful. However, as has been clearly recognised, the detention must not become mere containment. The Mental Health Review Tribunal has a duty to consider not only the medical treatment and its likelihood of effectiveness, but, under section 72(1)(b) of the Act, the need for protection of other persons. Section 23 of the Act does not specifically guide the responsible medical officer or the managers in exercising their power of discharge, but plainly it would be appropriate for them to consider the same matters as the tribunal. If a time were to come when neither limb two or limb three was in fact in prospect, then, even though he might be said to continue to receive some treatment, a serious question would arise whether such treatment was likely to alleviate or prevent the deterioration of the patient's condition. Those matters will need to be kept under very careful review.
82. I am making arrangements for a transcript of this judgment to be available in time for the Mental Health Review Tribunal hearing on 21st August.
83. It follows, subject to discussion with counsel, that I shall grant, with modified wording, the declarations sought by the Trust, and I shall dismiss the applications made on behalf of the patient.

MR JUSTICE CRANE: Now, perhaps I could ask you, first of all, Miss Morris. I take it you would be inviting me to make declarations in terms of your original application?

MISS MORRIS: My Lord, yes. It is at page 3 of the bundle.

MR JUSTICE CRANE: Yes. It seems to me that the declaration should be modified along these lines: "The defendant was at the time of the transfer order treatable for the purposes -- I think it would be better to say of section 47(1) of the Mental Health Act 1983 -- because medical treatment was likely to alleviate or prevent a deterioration in his condition".

MISS MORRIS: My Lord, I would be satisfied with a declaration in those terms.

MR JUSTICE CRANE: If possible also to have a declaration: "In pursuance of the direction made under section 47 et cetera it was lawful for the claimant to admit the defendant to the Shaftsbury Clinic and to detain him there for medical treatment".

MISS MORRIS: My Lord, I would ask the court to go further and deal with the position that my Lord identified post the date and ask for a reformulation of what was paragraph 1 to relate to, perhaps, the day of today's judgment, because inevitably any declaration is made with the implication that it is on the facts of the day on which the declaration was made.

MR JUSTICE CRANE: I follow that. Paragraph 1 could be expanded by saying "and has hitherto continued to be so treatable".

MISS MORRIS: I would be happy with a declaration in those terms.

MR JUSTICE CRANE: Yes. That will need to be properly drafted and can be submitted, but that would provide what you are asking for?

MS MORRIS: My Lord, may I just check. I would be content with a declaration in those terms. I am very grateful.

MR JUSTICE CRANE: Thank you. Miss Richards?

MISS RICHARDS: We have no observations to make on the declaration, my Lord.

MR JUSTICE CRANE: Mr Cragg, what do you say?

MR CRAGG: My Lord, I have no objection to that formulation.

MR JUSTICE CRANE: Very well. If, Miss Morris, that could be prepared, checked with other counsel for its wording and be submitted, then I can initial that.

I think, apart from that, that the order should say that the application made on behalf of W is dismissed.

MR CRAGG: My Lord, it should, yes.

MR JUSTICE CRANE: Any other orders that I need to consider?

MS MORRIS: My Lord, you will see on the draft order that we have asked that there should be no order as to costs. I do not know if W requires detailed assessment of his costs.

MR JUSTICE CRANE: I take it nobody is asking for a costs other than detailed assessment. No order for costs then.

MR CRAGG: My Lord, I have two applications. The first is for detailed assessment of the patient's publicly funded costs.

MR JUSTICE CRANE: A certificate has been submitted, has it? Yes, it has.

MR CRAGG: There are two certificates, one for each action.

MR JUSTICE CRANE: Yes.

MR CRAGG: On both of those cases. My second application is I am instructed to ask for permission to appeal on the staged discharge point.

MR JUSTICE CRANE: Do you have a draft? I know it is rather difficult to have a draft before I have delivered judgment.

MR CRAGG: My Lord, I do not have a draft.

MR JUSTICE CRANE: As precisely as you can at the moment, what would you be seeking to appeal?

MR CRAGG: Well, my Lord, the general observation that it is brought by the Trust on the basis that the law was unclear, and if your Lordship is right on the staged discharge, the third limb, then, as flagged up in our skeleton argument, it is likely we say that all otherwise untreatable people with psychopathic disorders in this situation will be treatable in some way, and in our submission that would have some implications for the Mental Health Bill as presently before Parliament and the current consultation process.

MR JUSTICE CRANE: I am not sure the bill before Parliament really helps you in this context, because although I noted with interest that part of it was annexed, and in fact I have seen the proposed bill and the consultation before, it seems to me that we are really not concerned with what the law may be in the future, one has very much to concentrate, as we all have, on the present law.

MR CRAGG: Yes. My Lord, there have been cases, and cases I have been recently involved in, where the Court of Appeal has felt that it could give assistance by adding its views to the current drafts, and my Lord --

MR JUSTICE CRANE: I think that would be a matter rather for the Court of Appeal to consider, might pre-empt what they should say about that.

MR CRAGG: Yes.

MR JUSTICE CRANE: In other words, I am not inclined to think that it is so important that this goes before the Court of Appeal that I should give permission unless there is a real prospect of success on the appeal.

MR CRAGG: Well, my Lord, I am probably going to have an uphill task of persuading your Lordship there is a real prospect of success less than five minutes after your Lordship has given judgment in this case.

MR JUSTICE CRANE: I think your difficulty is this. What I regarded as the core statement in what I have said was the transfer to hospital involving admission nursing, medical and psychological supervision and staged discharge under medical supervision was capable of amounting to treatment. In effect, I found that that what was on offer. Now, the real question is whether there is a real prospect of, as it were, upsetting that conclusion, but I think your difficulty is that in the light of the authorities it does not really go any further, certainly not appreciably further, than the existing authorities, does it?

MR CRAGG: My Lord, I think Professor Eastman in his evidence said that the problem with the present authorities is putting flesh on the rather bare bones. He has come to court and the Trust has come to court with an example and put that before the court. My submission, in the present context of the bill before Parliament, is probably more concentrated on the other compelling reasons limb of the possible grounds for appeal rather than seeking --

MR JUSTICE CRANE: I see. You say it is important enough, in effect, for the Court of Appeal to consider.

MR CRAGG: My Lord, yes.

MR JUSTICE CRANE: Anything else you want to say about that?

MR CRAGG: My Lord, no.

MR JUSTICE CRANE: I am afraid I am against you. In effect, I think my decision went little further than the existing authorities, if at all. In those circumstances I do not think there is a reasonable prospect of success, nor do I think there are compelling reasons why the Court of Appeal should consider the matter, but of course you can ask them to take the view that they should.

MR CRAGG: My Lord, I am grateful.

MR JUSTICE CRANE: On the arrangements for transcript, I have arranged that the shorthandwriter have my notes plus papers that I have. I am told that I can probably have the judgment by lunchtime on Monday. If I get it by lunchtime on Monday, I can correct it, re-submit it, and it could then be in a final form by Tuesday morning. I appreciate that is a pretty short time before the Mental Health Tribunal, but I think it should be available by the time they consider the matter because otherwise things are rather left in the air, and although what I have decided does not bind them for the future, the principles that I have set out may be of assistance to them, and indeed to Professor Eastman and the managers. They will have to keep the matter under review.

MISS MORRIS: That is very helpful. We are very grateful to my Lord and the shorthandwriter.

MR JUSTICE CRANE: Can I thank counsel for their help in the case.