QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of D
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|| First Defendant
|THE NATIONAL ASSEMBLY FOR WALES
Parishil Patel (instructed by the Treasury Solicitor) for the First Defendant
Rhodri Williams (instructed by the Office of the Counsel General) for the Second Defendant
Hearing dates: 17 & 18 June 2004
Crown Copyright ©
Mr Justice Stanley Burnton:
(a) declarations that the Defendants delayed in securing his transfer to an appropriate hospital and thereby infringed his rights under Article 8 of the European Convention on Human Rights. The claim against the First Defendant was for a declaration that he had unlawfully failed to seek medical recommendations for the transfer of the Claimant to a hospital and failed to make the necessary direction under section 47 of the MHA; the claim against the First and the Second Defendant was that they had unlawfully delayed the making of referrals to hospital for the Claimant.
(b) damages for breach of his Convention rights.
The facts in summary
“Given that he remains subject to a DTO, primary responsibility for his care remains with… the Youth Offending Team in conjunction with the local social services.”
Dr Chesterman stated that if the Claimant re-offended consideration could be given to obtaining an opinion from a specialised adolescent service.
“When Mr Davies was first referred to the service I made it clear that we are an adult service and that given his age he needed to be referred to a service that specialised in adolescent forensic psychiatry and I understand that two such specialists saw him. Although he was transferred to this unit this was despite the express opinion of Dr Daly the lead specialist in adolescent forensic psychiatry and myself. Given the inappropriateness of his admission he was discharged as soon as it was possible to arrange a meeting with the relevant services.”
The legislative framework: the Home Secretary
(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 mental illness, psychopathic disorder, severe mental impairment or mental impairment; 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 or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that the person be removed to and detained in such hospital … as may be specified in the direction; and a direction under this section shall be known as “a transfer direction”.
(2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction.
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.
(4) A transfer direction shall specify the form or forms of mental disorder referred to in paragraph (1) of subsection (1) above from which, upon the reports taken into account under that subsection, the patient is found by the Secretary of State to be suffering; and no such direction shall be given unless the patient is described in each of those reports as suffering from the same form of disorder, whether or not he is also described in either of them as suffering from another form.
(a) agreement on the part of two registered medical practitioners, expressed in their reports to the Home Secretary:(i) as to the form of mental disorder (or at least one of the forms of mental disorder) from which the patient is suffering;(ii) that the requirements for detention and of treatability in subsection (1)(b) are satisfied.
(b) a hospital in which the patient may be appropriately treated.
(c) a place at that hospital that is available within 14 days.
As a last resort the Home Secretary does have the power to require a hospital to accept a transferred patient, the power of “direction”. However, power is rarely used (approximately 6 times a year). MHU transfers about 650 prisoners a year … our aim is always to try and authorise the transfer of the prisoner to a unit that has already offered a suitable bed. The need for consent is envisaged by section 47 (2) of the Act which provides that the transfer direction ceases to have effect if the patient is not admitted to hospital within 14 days of its inception.
She pointed out that there are currently only 2 secure NHS psychiatric units for children and adolescents, with a total of 28 beds: the Gardner Unit in Manchester and the Roycroft Unit at Newcastle.
I am extremely reluctant to recommend that the Claimant be transferred to a secure psychiatric unit without a unit agreeing to take him.
I would have great anxiety if a unit were simply “directed” to take the Claimant. People with personality disorders have a hard enough time in psychiatric units when they want to be there and when a Consultant wants them admitted. If the Claimant were to be admitted to a unit against the wishes of the Consultant and the staff (and probably against his own wishes), the dynamics on the unit would be extremely hazardous. In my view, both the unit and the Claimant would be set up to fail. In my opinion, such a course of action would cause a deterioration of the Claimant's mental health and increase the chances of him committing suicide.
Much of that statement is borne out by the Claimant's experience at Ty Llewellyn.
“With regard to directing Mr Davies's admission to another hospital, which has not volunteered to admit him, this is always difficult and complicated, as the start of such treatment can be negative for the person involved. It is much preferable for a unit to assess a patient and agree to take him. Even if the patient is to be directed in the end, as Mr Davies was, to St Andrew's, they had in principle already agreed to treat him. This meant that his treatment could start off on a positive foot.
Mr Davies comes from a family where he has felt disliked and hated at times and for this experience to be repeated in health institutions would not be helpful for him.”
“(1) … can only arise where there are reasonable grounds to believe that the prisoner is in need of medical treatment which cannot be properly provided in prison and which is actually available to the prisoner. It is accepted that the prison service is in the best position to determine when the position is reached – although it is, and has to be, guided by medical experts. It owes the prisoner a duty of care to ensure that reasonable steps are taken to provide that person with proper medical care and treatment.
(2) There cannot be an absolute obligation to obtain medical reports to facilitate transfer. It must be a duty to take all reasonable steps. The SSHD has no clinical expertise – he has to rely upon the advice of appropriate medical professional. Unless advice can be said to be negligent, it is likely to be reasonable for the SSHD to rely upon that advice (even where it does not result in transfer). Thus, the SSHD cannot be obliged to obtain further medical reports if those which are already obtained call in question a transfer or are reliant upon a particular unit or service being available. Further, the SSHD may be entitled to rely upon evidence which indicates that a report should not be obtained and/or a transfer should not be made unless there is a unit or service prepared to take the prisoner on transfer and/or unless particular treatment is available.”
“3.20 The need for in-patient treatment for a prisoner should be identified and acted upon quickly and contact made immediately between the prison doctor and the hospital doctor. The Home Office Mental Health Unit should be informed as soon as the statutory requirements for transfer are in place so that consideration can be given to issuing a direction under the Home Secretary's powers …”
3.21 The transfer of a prisoner to hospital under the Act should take place as soon as possible after the need has been identified …”
The basis of the Home Secretary's liability
The duty of the National Assembly for Wales (“the NAW”)
Breach of duty
But it is also necessary not to be misled by hindsight.
23. The assessment of Mr Davies by a number of clinicians did exacerbate his condition but these assessments were made in good faith. Having read the reports many of them felt concerned and worried about this young man although none felt they had a facility to suit him.
24. In my opinion Dr Neale's assessment of Mr Davies upon and immediately after, his admission to Stoke Heath, did not fall below the standard of responsible body of psychiatrists. He has always been aware of the difficulties of Mr Davies and found himself in a very difficult situation. It is understandable that Dr Neale did rely upon Dr Daly's refusal to reassess Mr Davies, as there had already been so many assessments including what appeared to be the definitive one from Ty Llewellyn. In retrospect I think it would have been more helpful had there been a wider net cast to other adolescent units to obtain their specialist opinion earlier.
25. With regard to the steps that responsible mental health bodies at the time of and immediately after Mr Davies' admission to Stoke Heath is concerned, all they could do was to carry out assessments.
26. Once Mr Davies had been sentenced, Dr Neale and the prison service continued to meet Mr Davies' mental health needs as best they could and as I have stated previously in my report, of 25.6.2003, in many ways I was impressed by the way they managed an extremely difficult situation. I think it would have been helpful to refer Mr Davies for assessment for a hospital placement before it actually did happen, but not to the extent that it fails the test regarding a responsible body of practitioners.
The Claimant's case has been a complex one. Its complexity has been exacerbated by the number of psychiatrists involved in his case, the different diagnoses and the varying views on treatment. I have been concerned at the amount of psychiatric assessments the Claimant has had, particularly as they have failed to lead anywhere.
I have, however, been impressed with the manner in which the staff at the establishment have looked after the Claimant, especially during his second period of detention. There has been clear communication between all involved in his care and the Claimant has been effectively disempowered in terms of his self-harming behaviour. He has acted and been treated as a normal detainee through much of his sentence. It is sad, but telling, that the Claimant views the establishment is the safest place for him.