Jersey Unreported Judgments

Application to make a transfer order under the Mental Health (Jersey) Law 2016

[2021]JRC034

Royal Court

(Samedi)

3 February 2021

The Attorney General

-v-

Brett Kean

C. R. Baglin Esq., Crown Advocate.

Advocate O. J. Passmore as Amicus Curiae.

JUDGMENT

THE BAILIFF:

1.        This in an application under Article 69 of the Mental Health (Jersey) Law 2016 ("the Law") for an order for this Court to transfer Mr Brett Kean, who is currently serving a sentence of imprisonment for sexual assaults, from HMP Chelmsford to Llarnth Hospital for urgent medical treatment.

2.        We are wholly satisfied on the evidence before us relating to Mr Kean that we would in ordinary circumstances make the order sought by the Attorney General.  The contents of the medical reports are clear, as is the evidence of Dr Hallett and Dr Bisht and we would have felt no difficulty in making the order subject to what we are about to say.  Otherwise, the documentation is also in order.

3.        The difficulty which has been drawn to our attention quite properly by the Attorney General and by the Amicus appointed to assist the Court is to be found in the wording of Article 69(3)(a) of the Law.  It provides that:

"Subject to paragraph (4), evidence under paragraph (2)(a) -

(a)       must be given in writing signed by the practitioners who have personally examined the defendant either jointly or, if separately, at an interval of not more than 5 days;"

It is the requirement for personal examination where the difficulty arises in this case.

4.        The facts of the case, in so far as the medical evidence is concerned, is that Dr Hallet and Dr Bisht are familiar with Mr Kean but in producing their joint report they relied exclusively on the current observations of those professionals who are dealing with Mr Kean on a daily basis.  They did not attend HMP Chelmsford, nor did they interview Mr Kean by telephone, video or in any other way.  They attempted to speak to him over the telephone but the nature of his illness, the details of which we accept, meant that he was uncooperative and refused to come out of his cell.  He presents as a dangerous individual and he is detained under a high measure of security.  He is refusing medication and we well understand that it would have been difficult to interview him.

5.        We have considered the authorities put before us helpfully by Advocate Baglin for the Attorney General and Advocate Passmore who is standing in for Mr Evans as Amicus Curiae, but neither of them assist us in determining how we should view the words "personally examined" in the context of this case. 

6.        We cannot see that those various cases deal other than with very different circumstances, and we cannot see that the requirement for personal examination can be less than a direct personal observation of Mr Kean by the medical practitioners involved.  We leave open the question as to whether that could be via video link or observation through a glass panel, should he refuse to come out of his room, but that direct personal observation, in our view, is the minimum that is required by the statute. 

7.        It may be of assistance for us to say that our view is that in the present circumstances a video link, or video evidence is likely to suffice for the Court's purposes.  We do not criticise the doctors for producing a report in these difficult circumstances and we understand the safety considerations that flow from the existence of the Covid-19 pandemic but the States of Jersey have on many occasions in the last 12 months or so made statutory changes by way of emergency provision to alter the effect of legislation to accommodate the difficulties caused by Covid-19, but as far as we are aware no such alterations have been made that touch on the interpretation of Article 69.  The Court cannot fill that gap.  The Court cannot, on its current view, read down in some manner or reinterpret for the sake of convenience, no matter how desirable the outcome might be, the meaning of "personal examination" in that part of the statutory provisions. 

8.        We note that there is a warrant from the Secretary of State, and we make no comment as to its effect in the present circumstances, that is a matter for the United Kingdom and not for this Court.  We have explored with counsel the possibility of registering in Jersey one of the United Kingdom medical practitioners at Chelmsford so that they can be part of the opinion providing mechanism which enables this Court to act, however, we cannot at this point say that the requirements of the statute have been met and with regret therefore we no not make the order sought. 

Authorities

Mental Health (Jersey) Law 2016