England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		12 February 2010

1. MR JUSTICE BURNETT: This application for judicial review seeks to challenge the Secretary of State's transfer direction given under section 47 of the Mental Health Act 1983 ["the 1983 Act"] authorising removal of the claimant from prison to Rampton Hospital on 11th December 2008. The hospital, although served very late with these proceedings, has indicated that it wishes to play no part.

1. On 12th August 2004 the claimant was sentenced to seven years' imprisonment in respect of offences of arson, aggravated vehicle taking, driving whilst disqualified and causing death by dangerous driving. This was a sentence that pre-dated the implementation of changes made to the mechanisms for release by the Criminal Justice Act 2003. For that reason the claimant was due to be released on licence on 18th December 2008.
2. It is common ground that the claimant suffers from a mental disorder for the purposes of section 47 of the 1983 Act. He was also considered to be dangerous. Steps were taken in the months leading to his transfer to secure a place at Rampton. It was that process which culminated in the decision under challenge. Mr Southey, who appears for the claimant, submits that the transfer direction was unlawful because, having regard to the statutory criteria of which the Secretary of State must be satisfied, the available medical evidence was inadequate.

Section 47 of the 2003 Act as material provides:

"(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 suffering from mental 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

"(c) that appropriate medical treatment is available for him, 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 that 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."

3. It is unnecessary to read the balance of the section. This was the version of section 47 in force at the time that the material decision was made. On 3rd November 2008 this version replaced an earlier form of section 47 which was considered by the Court of Appeal in TF v Secretary of State for Justice [2008] EWCA (Civ) 1457, upon which Mr Southey relies. The section has now been superseded by further changes in legislation with effect from 30th October 2009. The reference in section 47(3) to a transfer direction having the same effect as a hospital order made under section 37 carries with it two consequences which should be noted. The first is that, by virtue of section 40 and Schedule 1 Part 1 of the 1983 Act, following a transfer the patient is subject to the limitations and renewal provisions found in section 20 of the 1983 Act. There is no material before me of the detail of the claimant's detention since December 2008. However, he remains detained at Rampton. The inference is that the authority for detention has been renewed under section 20. The language of that section is of "renewal" so, as was accepted by Miss White on behalf of the Secretary of State, such renewal under section 20 cannot cure any illegality, if there be illegality, in the original transfer direction.
4. The second consequence is that release from detention in the hospital is governed by the same mechanisms as apply to those who are subject to hospital orders. Thus, such patients' cases are reviewed from time to time by the First~Tier~Tribunal in accordance with the statutory regime. I was told that there is a hearing before the tribunal next week. The task of the tribunal will be to consider whether the criteria for detention are currently met rather than to determine the underlying legality of the transfer direction.
5. Mr Southey's short submission is that the Secretary of State could not have been properly satisfied by the reports from two registered medical practitioners that the third criterion found in section 47(1) was met, namely that appropriate medical treatment was available for the claimant at Rampton. That is because one of the reports, that of Dr Jacqueline Poole, failed adequately to deal with the issue. Dr Poole is the consultant forensic psychiatrist at HMP Frankland where the claimant was detained before transfer. Mr Southey submits that in the environment of deprivation of liberty the doctors who provide reports are obliged expressly to consider the criterion and provide short reasons why they consider that appropriate medical treatment is available. He submits that there is no room for the Secretary of State to draw inferences at all from the language and context of what the doctors say. Mr Southey reminds me that should the transfer direction be quashed, it will be open to the hospital immediately to use other powers to detain the claimant if it is thought appropriate.
6. The decision was taken on behalf of the Secretary of State by Geraldine Marsh who has provided a statement in these proceedings. The two doctors who provided reports were Dr Poole and Dr Paul Egleston. Their reports were dated respectively 8th and 10th December 2008. The reports are provided on a standard form. Dr Egleston's report was on a new form that reflected the amendment to section 47, to which I have referred, and which came into effect only shortly before this decision was made. Dr Poole used an old form which reflected the unamended version of section 47. As material that provided: 47(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 of his condition; the Secretary State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that 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'".

7. As can be seen by comparing this version with the one I have already read, the categories of mental disability, if it is appropriate to call them such, were simplified by the version of section 47 with which this case is concerned. Additionally, the qualification relating to treatability of psychopathic patients was removed. Some psychopaths are untreatable and others steadfastly refuse all treatment. The new section 47(1)(c) applies to all patients and not just to the subset of those who suffer from psychopathic disorder or mental impairment.
8. Geraldine Marsh summarizes the process which she undertook and her thinking in her witness statement of 11th November 2009. I read paragraphs 2 to 6:

"2. On 10 December 2008, a request was received from HMP Frankland regarding the proposed transfer of the claimant to Rampton High Secure Hospital under section 47 of the Mental Health Act 1983. The request was accompanied by a number of comments:

* Prison transfer form;

* Report of Dr Egleston dated 10 December 2008;

* Letter from Rampton Hospital confirming place available dated 9 December 2008;

* Sentencing remarks;

* List of previous convictions;

* Trial Record Sheet;

* Indictment

* Risk Assessment Form.

"3. The file was referred to me on the same date with a view to consideration of a transfer under section 47 of the Act to Rampton Hospital.

"4. I then analysed the file and took into consideration the following factors relevant to section 47 transfer and these were:

"1) The nature of the index offence: death by dangerous driving; driving whilst disqualified; taking without consent a vehicle which subsequently causes the death of a person; using a vehicle without insurance and arson.

"2) The large number of previous convictions.

"3) The medical reports of Drs Poole and Egleston and a letter from Dr Krishnan confirming that treatment was available at Rampton. (I note that the claimant says that as a result of a conversation with me his solicitors understood that the relevant doctors were Dr Egleston and Dr Bhullar. I have never seen a report from Dr Bhullar. I told the claimant's solicitors on 24 June 2009 that the reports relied upon were those of Dr Egleston and Dr Poole).

"4) The level of security of the proposed hospital (Rampton Hospital - high security).

"5) The risk assessment form.

"6) Sentence expiry date, being 18 December 2008.

"7) The prison transfer form information.

"5. I then considered the criteria under section 47 of the Act and satisfied myself that:

"1) The prisoner was suffering from a mental disorder of a nature or degree that justified detention in hospital for medical treatment.

"2) The level of security of the hospital proposed for the transfer was adequate.

"3) Appropriate medical treatment was available to him in the light of his individual circumstances. Although Dr Poole's report was on an old style form, I was satisfied that the content covered the appropriate treatment test. Dr Poole stated that the claimant required placement in a DSPD setting in high security and the letter from Dr Krishnan to Dr Poole confirmed that appropriate treatment was available at Rampton.

"6. In my consideration of the above criteria my main focus was on whether the patient would receive treatment which was suitable for his level of mental disorder. I was so satisfied."

9. Dr. Egleston's report followed an examination on 10th December 2008. The form he completed provided details of the patient and of the doctor and then a declaration in these terms:

"3. DECLARATION

"I am of the opinion that:

"a) this patient is suffering from a mental disorder within the meaning of the Mental Health Act, and

B) that the mental disorder from which the patient is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment,

C) that appropriate medical treatment is available for him."

Beneath that declaration is printed in bold: "DELETE (C) IF YOU CANNOT PROVIDE THIS ASSURANCE". A little further on, under the rubric of 'declaration', one finds before the doctor's signature the following observations:

"I recommend treatment in a high security hospital.

My full medical report is given on the reverse."

10. The medical report on the reverse is divided into three pro forma sections. Each section has a question or title at its head. They are as follows:

"information to establish mental disorder, including reference to type of disorder and description of symptoms. (In the event that the patient has a learning difficulty, please demonstrate how the disability is associated with abnormally aggressive or seriously irresponsible conduct, and/or that he/she suffers from another form of mental disorder."

Beneath that Dr. Egleston wrote:

"Mr P has a history of escalating violent and dangerous behaviour. He has symptomology indicative of severe anti-social and borderline personality disorder including marked impulsivity, deceitfulness and lack of remorse."

The next section is headed:

"Reasons for conclusion that the mental disorder is of a nature or degree which makes detention in hospital for medical treatment appropriate".

11. Beneath that the doctor wrote:

"Mr P's personality disorders are severe and are associated with the high risk of violent and sexual harm that he presents to others in the community. Treatment for Mr P's personality disorder can only be safely provided in hospital at this time as he is unlikely to comply with community treatment."

the next section is headed:

"where applicable, reasons for recommending treatment in a high security hospital".

Beneath that Dr Egleston wrote:

"Mr P's risks are such that he requires treatment in a high security hospital. He has a history of severe offending and behaviour in prison that can only be managed in high security conditions at this time."

12. That report was signed and dated. Those three sections, providing the opportunity for the doctor to give a full medical report, are almost the same as those on the old forms dealing with the previous version of section 47 which, as I have said, is what Dr. Poole completed. The only difference is that the passage in parenthesis relating to learning difficulties does not appear on the old form. That difference is immaterial in this case.
13. The declaration on the old form completed by Dr. Poole was (inevitably) in a different form. Having first set out details of the patient and doctor, the declaration enabled the doctor to indicate which of the four types of mental difficulty set out in the old section 47 applied in the given case. In this case the declaration was in the following form:

"3 DECLARATION

I am of the opinion that:

(a) this patient is suffering from

(ii) psychopathic disorder within the meaning of the Mental Health Act 1983, and (b) that the mental disorder from which the patient is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for treatment."

Beneath that one finds this:

"and where the patient is suffering from psychopathic disorder or mental impairment

(c) that such treatment is likely to alleviate or prevent a deterioration of his condition.

I recommend treatment in a special hospital.

My full medical report is given on the reverse."

14. That was signed by Dr. Poole on 8th December. The medical report on the back of the form was in the following terms:

"Information to establish mental disorder, including reference to type of disorder and description of symptoms.

"Patient suffers from dyssocial personality disorder and emotionally unstable personality disorder. He has a childhood history of being sexually abused as well as a history of unsocialised conduct disorder with his behaviour being unmanageable in a range of settings, including home, school and later in children's homes. He has a history of illicit substance misuse dating back to childhood. He has been a persistent offender since the age of 10 years old. His offending has been versatile and includes rape of a 7 year old male when aged 12 years, theft, armed robberies and non-sexual violence particularly in the context of intimate relationship breakdown. Within prison establishments he has been involved in repeated fighting, bullying, fire setting and fixations on female staff as well as repeated acts of self harm. Index offence was of causing death by dangerous driving in the context of intoxication.

"Reasons for conclusion that the medical disorder is of a nature or degree which makes detention in hospital for medical treatment appropriate. Because of his high psychopathy checklist score he has been excluded from a number of treatment programmes within prison. He was also excluded from the DSPD unit of HPM Frankland as a result of a fixation on a female whose home address he had managed to obtain. He has therefore completed no work in relation to his personality disorders.

"6. Where applicable, reasons for recommending treatment to a special hospital.

"He requires placement in a DSDP setting. Only located in high security."

15. I should mention that DSPD setting, an acronym referred to by Geraldine Marsh and by the doctors, stands for 'dangerous and severe personality disorder' setting.
16. Geraldine Marsh, as she indicated, was provided with a copy of a letter to Dr Poole dated 9th December 2008 written by Dr. Krishnan who chairs the DSPD admissions panel at Rampton Hospital. That letter was written in response to an earlier communication from Dr. Poole seeking a place for the claimant at Rampton. Dr. Poole's letter was written on 12th October 2008. Within his reply on 9th December Dr. Krishnan said this:

"we have now considered the application for his admission and are prepared to offer a place at Rampton Hospital for assessment and treatment, should the Secretary of State wish to make a transfer direction under section 47 of the Mental Health Act 1983.

If the direction order is made, because we have confirmed that a bed is available, the personal custody officer of the patient should contact the Mental Health Act caseworker."

17. Mr Southey accepts that Dr. Egleston engaged with the statutory test sufficiently for the purposes of section 47 (1)(c) but submits that Dr. Poole did not. That is because she did not consider the availability of appropriate treatment, nor provide any reasons why she concluded that appropriate treatment was available. There is a need, submits Mr Southey, to say what treatment programme is contemplated and to say that it is available. He submits that these apparent deficiencies in the medical report are fatal to the legality of the transfer direction in the light of the conclusions of the Court of Appeal in TF. TF was a case like this in which a transfer was effected at the end of the custodial part of a term of imprisonment. Waller LJ, with whom Thomas LJ and Aikens LJ agreed, identified two important general points of principle. First, that an unlawful detention cannot be transmuted into lawful detention by the withholding of relief as a matter of discretion in judicial review proceedings (see paragraph [11]) and, secondly, that particularly close scrutiny must be applied by both the Secretary of State and the court when dealing with transfer directions at the very end of the custodial period. That is because such transfer directions have the effect of extending detention rather than determining where detention will take place (see paragraph [13]).
18. The statutory criterion with which TF was concerned was that of "treatability", as it was called for shorthand, which arose from the now repealed section 47(1)(b). The court upheld the finding of Cox J that the transfer direction was flawed. It did so on two bases: (a) that the evidence of the decision-maker did not show that she had applied her mind to the treatability criterion at all, and (b) that, had the decision-maker applied rigorous scrutiny to the reports of the doctors before her, she would have been unable to be satisfied that those who completed the pro forma medical reports had applied their minds to questions of treatability (see paragraphs [28] and [32]). The doctors concerned had not given any grounds in support of their view that treatment would alleviate or prevent deterioration. By contrast, each appeared to be making the point that TF was likely to commit further offences and so needed to be detained (see paragraph [23]). That, of course, would be an impermissible basis for detention.
19. I should note that in DK V Secretary of State for the Home Department [2010] EWHC 82 (Admin) Collins J applied TF in a case where treatability was a critical issue. The challenge was to a transfer under the old section 47. I do not understand Collins J to have been doing more than applying loyally the decision of the Court of Appeal in TF on the basis of the factual situation that emerged in the case before him.
20. The decision under challenge in the case before me was one entrusted to the Secretary of State. He may only direct transfer if he is satisfied that the statutory criteria are met. He is obliged to consider the matter carefully. This is especially so in a case such as this where the transfer would have the practical effect of extending detention into what would otherwise be the licence period of a sentence of imprisonment. The court too will review the Secretary of State's decision with anxious scrutiny.
21. There is, as it seems to me, no reason in principle why the Secretary of State should not draw proper inferences from the material before him, as can any other fact finder exercising a judicial or administrative function. As is clear from the decision of the Court of Appeal in TK there are two questions which must be considered: First, did the decision-maker actually apply her mind to the statutory criteria and, secondly, was the material before the decision-maker sufficient to sustain the eventual conclusion? The court in TF set out the evidence of the decision-maker, as I have done in this case. It is clear from the statement of Geraldine Marsh that she did apply her mind to the statutory criteria. That is to be contrasted with the situation in TF where a perusal of the evidence of the decision-maker fully set out in the judgment suggests that she did not.
22. The real issue, as it seems to me, is whether the reports from the two doctors provide a sound foundation for the conclusion that "appropriate medical treatment was available for the claimant" for the purposes of s.47(1)(c). That is a different and less specific question from the previous "treatability" criterion which arose under the old section 47. There is furthermore obvious overlap with the criterion found in section 47(1)(b), namely whether it is "appropriate for the person concerned to be detained in a hospital for medical treatment". That carries with it the clear implication that detention for any other reason is inappropriate. It also carries with it the suggestion that medical treatment is required. The claimant does not suggest that Dr. Egleston has failed to provide sufficient information. It is, as I have emphasised, his contention that Dr. Poole did not do so. The claimant furthermore does not suggest that the specificity found in Dr. Poole's report fails adequately to demonstrate that it was appropriate for the claimant to be detained in hospital for medical treatment.
23. Read fairly and in context, the report of Dr. Poole in my judgment supports and provides an adequate foundation for Geraldine Marsh's decision.
24. In summary, Dr. Poole recommended treatment in a special hospital because she thought that the treatment was likely to alleviate or prevent a deterioration in the claimant's condition. It was appropriate for him to be detained for that purpose. Those are the general statements found on the front of the form. Her reasons for those conclusions seem to me to be clear from the answers to the questions which I have quoted. In short, because of the high psychopathic element in the claimant's condition he was excluded from treatment programmes in prison. He was excluded from the DSPD unit at Frankland as a result of his behaviour. He has therefore not received in prison the treatment that he might have done, nor has he done the work that he needs to do in connection with his personality disorder. So he needs to go to a DSPD unit which provides the necessary treatment and such treatment outside the prison complex is available only in a high security setting, such as Rampton.
25. The availability of such treatment is implicit in what she says and further confirmed in the letter she sent on to the Secretary of State which she had received on 9th December from Dr. Krishnan. That confirmed that Rampton Hospital was prepared to offer a place for assessment and treatment and also confirmed the availability of a bed. It does not seem to me to be necessary to require the doctor to set out in greater detail the precise nature of the treatment which is available or likely to be given at Rampton. Geraldine Marsh was entitled to conclude from the material that Dr. Poole had provided, giving the close scrutiny appropriate in these circumstances, that appropriate medical treatment was available at Rampton for the claimant. The transfer direction was lawful.
26. In those circumstances I do not need to consider in detail the time point taken by the Secretary of State. That was explicitly left over for consideration by Sir Thayne Forbes when he gave permission in this case. It is sufficient to indicate that had I concluded that the transfer direction was unlawful, I would not have been prepared to shut out the claimant from relief on the basis that the claim was brought out of time. In the result the application is dismissed.

28. MISS WHITE: I do have a draft form of order which I used with Mr Southey yesterday. We discussed two alternative drafts of order. I have amended the order because I brought the one allowing the application.

29. MR JUSTICE BURNETT: I assume that was an oversight rather than a calculation. You have seen this and are you content with it?

30. MR SOUTHEY: Yes.

31. MR JUSTICE BURNETT: It follows the discussion that we had yesterday about the form of order irrespective of the outcome. I am more than content to make the order. I will read it so that it is on the record: (1) The claimant's application for judicial review is dismissed. (2) Pursuant to CPR 39.24 the identity of the claimant shall not be disclosed. He shall be referred to in these proceedings as SP. The time for applying to this court for permission to appeal to the Court of Appeal is extended to 4 pm on 5th March 2010. Any application for permission to appeal shall be made in writing. Any application to the Court of Appeal for permission to appeal may be made within 21 days of the date on which this court refuses permission to appeal to the Court of Appeal, and finally there be a detailed assessment of the costs of the claimant which are payable out of the Community Legal Service Fund. I explain to anyone who was not in court yesterday that Mr Southey made an application at the outset of the proceedings for the identity of the claimant to be anonymised in the form that is recorded in this order. I gave short reasons yesterday why I thought it appropriate in this case. In essence, it is because the detail of the claimant's mental condition and difficulties that have been spoken of in the course of these proceedings are in my judgment very much greater than any indication of his mental difficulties that were articulated in public in the criminal proceedings in 2004. Both Mr Southey and I were mindful of the need not to fall into the trap of making such orders as a matter of routine.