QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
|THE QUEEN ON THE APPLICATION OF PP||Claimant|
|SECRETARY OF STATE FOR JUSTICE||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Ms G White (with Miss N Patel attending for judgment) (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
"[PP] is detained under the category of psychopathic disorder, as described in Part 1 of the Mental Health Act 1983. In clinical terms, he suffers from a personality disorder which is severe..."
Under the heading "Security Issues" the report states as follows:
"149. [PP] presents only minor challenges to the security regime of the high secure hospital and he is managed on Macaulay Ward without undue difficulty. In such an environment, he does not present a significant risk to others . . .
150. It is probable that, after a period of rehabilitation and careful preparation [PP's] clinical risk could be managed in a medium secure unit . . . [PP] is likely to require a significant period of further treatment in such a unit. At the present time, it is not possible to make any sensible comments about risk assessment and risk management in a community setting . . . "
"As you know, I assessed [PP] at Ashworth Hospital last week. I spoke with him for the best part of two hours and then had a discussion with his Primary Nurse.
[PP's] background is of course well known to you and I am grateful for your exceptionally detailed and comprehensive case summary...
It seems to have been established that [PP] suffers from a mixed personality disorder of severe degree and incorporating narcissistic, dissocial, histrionic and paranoid characteristics. His static risk is, in my opinion, high and likely to remain so. However, [PP] has not been violent within Ashworth Hospital as far as I can establish, and his Primary Nurse reported that on a day-to-day basis [PP] presents little or no management problem for the ward. In addition, [PP] now seems to be willing to engage in therapy whereas for many years this was something he declined to do. [PP] is now 70 years old and in conversation with me expressed his concerns that time is running out for him in terms of making progress towards a better quality of life.
[PP] told me that if he really believed that he would never be released into the community, he would commit suicide. This risk will need to be monitored carefully during any phase of transition to a setting other than Ashworth hospital. I note that Dr Driscoll made similar observations in his Mental Health Review Tribunal report.
I think that [PP] would be manageable day-to-day in the medium secure part of Thornford Park Hospital. The purpose of such a move would, in my opinion, need to be made explicit to [PP] before he moved: there should be no expectation of rehabilitation to the community. I think that [PP] will need to understand that while his day-to-day presentation does not perhaps merit a placement in high security, his risk to the public remains high and will need to be the focus of considerable therapeutic intervention within medium security. His full cooperation with treatment will be necessary if he is to have any realistic chance of progression beyond long-term medium security.
I also think that it will be interesting to see how [PP] copes with conditions of medium security. He has in the past perhaps demonstrated a tendency to push boundaries and there are of course more opportunities to attempt such things in medium security than in high security. On the positive side, I have seen patients who find the different environment to be positively therapeutic, resulting in an overall reduction in their levels of arousal and a reduced tendency to try to subvert or dominate the systems in place around them. It would be interesting to see how [PP] reacts."
The letter goes on to propose a care plan for the claimant should he move to Thornford Park medium secure unit. Dr Bradley then said this:
"I would propose a period of 12 months trial leave during which [PP] would be observed carefully for his ability to cope within the medium secure environment and to undergo a psychological assessment before starting psychological treatment. During that time [PP] needs to understand that it would not be part of my plan for him to have any community access. His ground leave would be escorted at all times.
I should also like [PP] to agree to a written contract in terms of hospital staff scrutinising his correspondence (apart from that between him and his legal advisors et cetera). [PP] has an extensive acquaintance outside the hospital system and the routine monitoring of mail that takes place in conditions of high security clearly does not happen in medium security. I would want to make sure that [PP's] transfer to medium security had not destabilised him and one way of monitoring this is to check that his correspondence is appropriate. Hopefully, once confidence in [PP's] placement has been established this type of monitoring would no longer be thought necessary.
In short, [PP] is a complex case whose day-to-day presentation renders him manageable within conditions of medium security, while his risk to the general public remains high. His period of trial leave would be for the purpose of establishing whether his manageability on a day-to-day basis continues within conditions of lesser security and whether there is a commitment on his part to engage in the type of treatment that I believe he needs.
I have copied this letter to the Ministry of Justice as the treatment plan proposal for a period of trial leave in medium security at Thornford Park Hospital."
A copy of that letter was duly sent to Ms Sarah Conroy, a case worker at the Ministry of Justice.
"I am writing to confirm that it is the opinion of myself and the patient care team that [PP] presents a low risk of absconsion and that we are of the opinion that Dr Bradley and the team at Thornford Park will manage that risk.
Given our conversation that if we were able to offer these reassurances the Commissioners at Barnsley Primary Care Trust would be willing to commission Thornford Park for [PP], I have gone ahead with the referral to the Ministry of Justice and informed [PP] and his solicitor."
" . . . Requires ongoing secure care, boundary setting and supervision at all times.
Continues to prevent risk to women.";
in the section headed "Any Current Unmet Needs?":
"No longer requires high security due to ageing process and physical condition.";
under "Any Additional Information":
"Appears totally unrepentant and continues to exhibit risk factors -- it is likely that further offences would occur if patient were in the community, though behaves well in a care situation.";
in the section headed "Reason for Referral and Goals of Admission":
"No longer requires high security.
Admission aims -- to continue to provide secure care and offer treatment opportunities.";
in the section headed "Patient's Current Mental State":
"Stable, however, [PP] does not appear to have reformed in any way.
While in secure care he behaves well though continues to present a danger to women as he has not accepted treatment.";
in the section headed "From Discussion with Current Nursing/Clinical Team":
"[PP] no longer requires high security in part due to age and physical health -- however he does require close monitoring and ongoing secure care."; and
as to the "Assessment of Risk to Self and Others", under the sub-heading "Impulsivity of anger control":
"No problem noted in secure setting, although if unsupervised appears impulsive and violent."
"Is this person suitable for admission to Priory Secure Service Hospital?"
"Is this person suitable for other placements within Priory Secure Services?"
The answer given to both questions was "Yes", to which was added:
"Any medium secure setting away from the Manchester area."
"Application for trial leave or full transfer to another hospital (to be completed by the current RMO ...) ...
Trial leave or full transfer sought?: Trial leave.
If trial leave is sought detail of proposed length (in months) of the trial: 12 months.
1. Reason for requesting a trial leave or full transfer:
It is thought that [PP] is suitable for transfer to lesser security. In a report for the Mental Health Review Tribunal dated 24th August 2007, Dr Wilson, Responsible Medical Officer, noted that [PP] presents only minor challenges to the security regime of the high secure hospital and is managed on Macaulay Ward without undue difficulty. It was thought that rehabilitation needed to be in a specialised medium secure unit, although this had not been possible owing to his outstanding treatment needs, his limited insight and his unrealistic expectations about his future care and treatment. It was thought that he could be managed in an unit specialising in the treatment of people with a personality disorder and that he would require a significant period of further treatment in such an unit.
[PP] was assessed by a number of different clinicians for the Tribunal. He had engaged in sessions with Dr R Worthington, Forensic Psychologist, to address issues raised in the report by Dr Logan in 2006. He had continued to engage in rehabilitation and had regular sessions with Mr J Cooper, Internal Care Co-Ordinator. Dr Mulligan took over his care in early 2008. At this stage he appeared willing to engage in psychological therapy and to work with the team in order to make progress. A decision was made to seek an opinion from the clinical team from his home area medium secure unit. He was referred to Arnold Lodge. He was assessed by Dr Gibbon, supervised by Professor Duggan who concluded that [PP] did not require high secure services and could be managed within lesser security, however, he did not think that transfer to Arnold Lodge was appropriate, given [PP's] previous admission and ongoing negative attitudes towards the unit and his need for long term care which would not be available within the specialised personality disorder service at Arnold Lodge. It was thought that a referral to an independent sector provider would be appropriate.
[PP] was assessed by Dr Caroline Bradley, Consultant Forensic Psychiatrist from Thornford Park in April 2008. A copy of her report was sent to Ms Sarah Conroy, Case Worker, as the treatment plan proposal for a period of trial leave within Thornford Park. She concludes that [PP] would be manageable within medium security, although the purpose should be made explicit, ie, there should be no expectation of rehabilitation into the community as his risk to the public remains high and will need to be the focus of considerable therapeutic intervention. She outlines the proposed care plan and some of the risk management strategies that would be put in place. She notes that the purpose of the trial leave would be to establish whether his manageability on a day-to-day basis continues within conditions of lesser security and whether there is a commitment on his part to engage in the type of treatment that she believes he needs. Confirmation of funding and the availability of a bed has been received.
2. Are there any victim issues to be considered? . . .
There are no specific victim issues to be considered if the move is agreed . . .
3. Detail any incidents of physical or verbal aggression that have occurred since admission. What improvements has the patient made in this area?
Since 2000 [PP] has been involved in two incidents. The last was in 2005 when he was angry and verbally threatening in a discussion with nurses about a new ward policy. Prior to this, the last incident was in 2002. This was a further incident of verbal abuse towards nurses. Whilst in high secure services, [PP] has rarely engaged in physical aggression, although he has at times issued threats. [PP] has become more able to manage his anger and frustration. The risk of verbal or physical aggression is considered to be low within a secure
4. Detail any sexually inappropriate behaviour the patient has exhibited since admission. What improvements has the patient made in this area?
[PP] has not engaged in sexually inappropriate behaviour within high secure services. At times his relationships with female members of staff have been commented upon as he can be over familiar and make sexualised comments.
5. Detail the patient's leave history and any incidents of note, including a report on the patient's most recent leave if entitled:
[PP] has not had any leaves of absence from Ashworth Hospital other than for medical reasons in recent years. No clinical or security concerns have been raised in regard to any of the medical leaves of absence.
6. Detail any escapes or absconds including dates, activity whilst awol and what reasons the patient gave subsequently for their behaviour . . .
[PP] has no history of absconding, escaping or attempting to abscond.
10. What do you feel the proposed trial leave or full transfer placement can offer the patient?
The proposed trial leave will give [PP] an opportunity to engage in an ongoing process of treatment and rehabilitation. Thornford Park has been chosen owing to the experience of the clinical team in managing men with a personality disorder and also physical health problems. It provides therapy and rehabilitation for men with personality disorders and it has a level of structure and support that would benefit [PP]. The assessment by Dr Bradley outlines the benefit in a period of assessment within a lesser secure unit. [PP] now appears motivated to engage in therapy and to co-operate with the clinical team. His personality traits, particularly the narcissism, mean that it is difficult for him to engage in therapy after his insistence for many years that he no longer requires any further interventions. Trial leave will give him an opportunity to engage fully with new therapists and clinicians. It would establish whether he would continue to be manageable within conditions of lesser security and confirm his commitment to further therapy.
11. Why are you confident the patient can be safely managed in a less secure environment?
[PP] has presented with few clinical or security concerns while he has been in high secure services. He is managed with minimal intervention on a moderate to low dependency ward. His main risks are within the community. The team are confident that any risks can be managed in a less secure environment, provided risk management strategies remain in place. The assessment by Dr Bradley shows a good understanding of the major risk issues and outlines how these would be managed. It is acknowledged that he presents a complex case and that the risk to the general public remains high. He has developed some skills in managing his ability to cope with stress and it is thought that he will continue to use these skills following transfer. The care team are confident that the clinical team at Thornford Park can help him manage his risk behaviours safely . . .
13. Please summarise the patient's general progress and anything you would like to add.
[PP] is not thought to require detention within high security. He is settled on a ward with a moderate amount of structure and which could be classified as being medium to low dependency. There have been no incidents of verbal or physical aggression for several years. The main concern is his risk to the general public and the risk of sexual aggression within the community remains high. However, the proposal is for a period of trial leave to assess his ongoing commitment to therapy and manageability within lesser security. There is no expectation of rehabilitation to the community and he is believed to require long term treatment and care within a secure setting. He has begun to recognise the need to engage in therapy and co-operate with the team. This has been reflected in his engagement with members of the team and participation in discussions around his care plans.
In conclusion, it is thought that [PP] could be managed within a long term secure setting, providing the unit has the expertise to manage his complex problems. It is thought that Thornford Park would provide the treatment that he requires and the clinical team, particularly Dr Bradley, appears to have a good understanding of the risk issues. He would have the support of the Resettlement Team during the trial leave period. There are clear guidelines as to the purpose of the trial leave and the therapy in which [PP] would need to engage if the leave is to be considered successful."
" . . . having second thoughts about the wisdom of this transfer, as he believes that the opportunities for rehabilitation will be few and he is wondering what benefit there will be to him of being detained in another hospital as opposed to Ashworth Hospital. It appears that he understands that the plan would be for a long term placement in Thornford Park, but [PP] does not accept that he requires continued detention."
This report stated in its conclusion that the Patient Care Team were "currently supportive of the proposal to transfer [PP] to a medium secure unit where it is envisaged that he would have a long term placement".
"[PP] continues to present a risk of sexual assault against females. This risk is highest in the community. A detailed risk assessment (Dr Logan 3.8.06) is available in his clinical notes. This outlines the potential risk scenarios, triggers for violence and risk indicators as well as detailed risk management plans. It also outlines the work considered necessary for him to address the risk. ...[A] form has also been completed and is available in his notes (Dr C Mulligan 1.5.08). The high risk patient protocol was completed in October 2007."
"Since his acceptance by Thornford Park for transfer, [PP] who was initially quite pleased with the situation has become somewhat ambivalent regarding proposed move, he has been informed that all his mail will be subject to being checked and there are no plans for him to have any community access or any indication that any future discharge plans are to be considered.
He sees this at this time as merely moving from 'one lock up to another lock up', and he will not have the same level of facilities as at Ashworth, he has regular correspondence with an ex Ashworth patient who is already a resident at Thornford Park, and [PP] has indicated that he is less than impressed with information that he has received regarding the hospital."
The Secretary of State's decision
On 17 November 2008 Dr Mulligan's application for the claimant was refused by the Secretary of State. The decision was notified to the claimant's solicitors on 9 December 2008. The decision letter was addressed to Dr Mulligan at Ashworth Hospital and signed by Mr Sansom. It states:
"Thank you for your application for the above named patient to undertake a period of trial leave to Thornford Park Hospital.
I note your advice that [PP] no longer requires the physical security provided in a high security hospital and could be managed safely in medium secure conditions.
In considering the proposal I have reviewed the circumstances of the previous attempt to rehabilitate [PP] under conditions of medium security. You will be aware that leave on that occasion failed after the relationship between the care team and the patient broke down and there were reports of inappropriate behaviour by [PP], a situation which led to his urgent return to high security. I note from the record of a recent care plan assessment meeting that [PP] is ambivalent to some of the conditions of the trial leave proposed by the Thornford Park care team. This was evident when I attended a subsequent meeting when where [PP] indicated that he did not agree with all the conditions proposed by Dr Bradley, who would be his trial leave Responsible Clinician at Thornford Park. I also note that [PP's] attitude towards the index offence, as well as the previous offences, remains relatively unchanged and that his insight into his condition remains limited.
[PP's] offences were of the most serious kind. The assessment that he no longer requires physical containment in high security does not reassure the Secretary of State that he could be managed safely under less secure conditions if he will not willingly accept and commit himself to comply with a less intensive regime. In light of these concerns regarding the management of [PP] in medium secure conditions the Secretary of State considers that he is best placed in conditions of high security and does not give authority for trial leave.
In reaching this decision careful consideration has been given to [PP's] continuing need for rehabilitation and treatment. No specific treatment option was offered to him at Thornford Park which is not available at Ashworth Hospital. Accordingly, the Secretary of State does not believe that [PP] is personally disadvantaged by his decision, which is taken in light of his responsibility to protect the public from further harm. He has in mind the health and safety of patients and staff at Thornford Park.
I am sorry that we could not provide you with a more positive response at this stage."
The relevant statutory provisions
" . . . There is a power exercisable by the RMO under section 17 of the 1983 Act to grant a patient leave of absence from the hospital where he is detained. There is a power under section 19 as to the transfer of patients. In the case of a restricted patient the exercise of powers under sections 17 and 19 requires the consent of the Secretary of State . . . "
In paragraphs 25, 26 and 27 of his judgment in R(P) Richards J said this:
"25. In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Article 8 rights.
26. Who is to decide that question of risk? That is really the stark issue raised by Mr Bowen's submissions. Is it the persons upon whom the statutory powers have been vested by Parliament? Is it the Tribunal or the court? In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision-maker.
27. The process contemplated in Wilkinson in hearing expert evidence, including cross-examination, which is the process that the claimant invites the court to adopt in the present case, seems to me to relate to a very different context. This is a situation where the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court's role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence."
"The word 'public' and the phrase 'in order to protect the public from serious harm' in each of the various amendments included in section 1 of the [Mental Health (Public Safety and Appeals) (Scotland) Act 1999] is capable of meaning either the public in general or a section of the public, as the context requires. In Doherty's case there is no question of his coming into contact with the public in general as he would be remitted to prison in the event of his discharge from hospital. But the persons with whom he would be liable to come into contact in a prison may be regarded as a section of the public. They include prison officers, other inmates and a variety of persons who visit prisons for religious, educational, social work or other purposes. Read in this way, the effect of the amendments introduced by section 1 of the 1999 Act is to require the sheriff or the Scottish Ministers, as the case may be, to be satisfied in Doherty's case that it is necessary for him to be detained in a hospital to protect that section of the public from serious harm . . . "
"(1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons . . . "
It is to be noted that the concept of "trial leave" is not defined in section 17 or anywhere else in the 1973 Act. However, Mr Pezzani submitted that the application made by Dr Mulligan in the present case was, in effect, an application for conditional leave, a concept plainly embraced in subsection (1) of section 17.
The Code of Practice
"Decisions under the Act must be taken with a view to minimising the undesirable effects of mental disorder by maximising the safety and wellbeing (mental and physical) of patients, promoting their recovery, and protecting other people from harm.
In paragraph 1.3 the "Least restriction principle" is stated:
"People taking action without a patient's consent must attempt to keep to a minimum the restrictions they impose on a person's liberty, having regard to the purpose for which the restrictions are imposed."
"21.6. Only the patient's responsible clinician can grant leave of absence to a patient detained under the Act. Responsible clinicians cannot delegate the decision to grant leave of absence to anyone else . . .
21.8. Leave of absence can be an important part of a detained patient's care plan, but can also be a time of risk. When considering and planning leave of absence, responsible clinicians should:
• consider the potential benefits and any risks to the patient's health and safety of granting or refusing leave;
• consider the potential benefits of granting leave for facilitating the patient's recovery;
• balance these benefits against any risks that the leave may pose in terms of the protection of other people (either generally or particular people);
• consider any conditions which should be attached to the leave, eg, requiring the patient not to visit particular places or persons;
• take account of the patient's wishes, and those of carers, friends and others who may be involved in any planned leave of absence;
The submissions made for the claimant
The scope of the application for leave in the present case
The claimant's attitude to the proposal
Changes in circumstances
The CPA meeting of 28 October 2008
1. whether there was "any contact with the victim's family and if there was likely to be any media interest as a consequences of the move";
2. whether, if the claimant's "move to medium security were to attract media attention what would be the impact on the victim's family and how would the claimant react";
3. the outcome of the last consideration of the claimant's case by a Mental Health Tribunal;
4. the fact that in the 2008 ASR it had been recorded that the claimant was not on any anti-psychotic medication and that previous reports had raised the possibility of the claimant suffering from paranoia;
5. the fact that Dr Bradley had considered appropriate conditions which the claimant must accept if he was to have a period of trial leave at Thornford Park;
6. how the claimant would respond to other people around him having community leave;
7. how the claimant would respond to his correspondence being checked and how this could be legally enforced;
8. generally, what advantage there would be in a medium security regime with the restrictions to which the claimant would be subject, and whether he actually needed high security;
9. why, after the claimant had spent more than 30 years in high security conditions and there not having been a great deal of change, medium security was being recommended;
10. what would be the situation in, say, five years time;
11. what were the options for the claimant's treatment;
12. the use of seclusion at Thornford Park; and
13. the likely timing of a bed becoming available at Thornford Park.
"Dr Mulligan said that like all patients [PP] should be in the least level of security appropriate to his needs. It is in recent times that there has been the development of services for people with PD and the expertise of these services has expanded to meet patient needs. The reasons for the referral now are both that the claimant has made some changes and that suitable services have developed. Dr Bradley pointed out that the application was for trial leave."
The three main propositions
(1) Mr Sansom's failure to ask the right questions at the CPA meeting
(2) The Secretary of State's failure to heed the information he had been given
"It is the Secretary of State (and not the Tribunal) who is by statute entrusted with the task of deciding whether to give consent and he cannot have deprived himself of access to further information if he considers this to be required . . . If the finding by the Tribunal of the applicant's improvement did not fully satisfy him, the Secretary of State was not only free, but bound, to seek further advice and further information.";
and at page 1746 H to 1747 D:
"In short, as it seems to me, the scheme of the Act of 1983 places on the Secretary of State the responsibility in the case of restricted patients to balance the patient's claim to liberty against the interests of everyone else to be safeguarded against the risks to which such liberty may give rise. For his performance of those duties the Secretary of State is politically accountable to Parliament. His obligation is fully to satisfy himself as to the propriety of any decision before he makes it because of the serious impact of such decision, and if the finding or recommendation of the Tribunal leaves him in doubt, he is not only entitled but bound to look further afield for guidance: the finding and recommendation of the Tribunal may assist him to fulfil this obligation, but cannot dilute it or impede its fulfilment or obviate the need for the exercise by him of an informed judgment whether consent should be forthcoming."
(3) Error of fact
The submissions made for the Secretary of State
"This application raises important questions as to the procedures to be followed by the Secretary of State in the exercise of his statutory jurisdiction under the Mental Health Act 1983. An order (which I shall refer to as a restriction order) may be made in respect of a mentally disordered patient convicted of a serious offence which places special restrictions upon him because this is necessary to protect the public from serious harm . . . So long as the protection of the public requires the restriction order to remain in force, the consent of the Secretary of State is required before two steps can be taken towards the discharge of the restriction order and the return of the restricted patient to the community, two steps which can be taken without his consent in case of patients not subject to such a restriction order ('unrestricted patients'). These steps are (pursuant to section 17 of the Act of 1983) the grant of leave to be absent from the hospital and (pursuant to section 19 of the Act of 1983) transfer to a less secure hospital. What is at issue on this application is whether in exercising the power to give or to withhold consent to either of these steps being taken the Secretary of State is free to disregard a recommendation made to him by a Mental Health Review Tribunal . . . "
"The Act on 1983 superimposes on the statutory scheme applicable in cases of unrestricted patients specific additional provisions in respect of restricted patients. The regime so created is one in which the Secretary of State has a special and continuing responsibility for restricted patients so long as the restriction order remains in force."
"Even if I thought that the Secretary of State was bound to accept the decision of the Tribunal as to the applicant's improvement, though the existence of such an improvement is highly material to the decision whether to grant consent, it would not be decisive. The continuance in force of the restriction order signifies that there continues to be some risk of serious harm to the patient or others requiring its continuance in force, and the Secretary of State must bear this risk in the forefront of his mind when considering an application for consent . . . [T]he Secretary of State is entrusted by Parliament with the task of deciding whether to give consent and he cannot abdicate this responsibility or transfer the responsibility to the Tribunal. It is open to him to decide (with or without the benefit of the advice of the Board) that the improvement is not such as justifies the creation of the risk to the public which the grant of leave or transfer to a less secure hospital may occasion."
The application in the present case
The claimant's ambivalence
The Secretary of State's decision
The alleged error of fact