Munday (R) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 05 November 2009 |
| Neutral Citation | [2009] EWHC 3638 (Admin) |
| Date | 05 November 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9164/2008 |
[2009] EWHC 3638 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Burnett
CO/9164/2008
Miss N Braganza (instructed by Cartwright King Solicitors) appeared on behalf of the Claimant
Mr P Greatorex (instructed by Treasury Solicitor) appeared on behalf of the Defendant
(As approved)
1.1. Mr. Justice Burnett: This is an application for judicial review of a decision of the Secretary of State for Justice of 17th April 2008 to recall the claimant to hospital pursuant to section 42(3) of the Mental Health Act 1983. The claimant was subsequently released following the decision of the Mental Health Review Tribunal on 7th July 2008.
2.1. The claimant has recently been recalled again, but the precise circumstances of that recall are immaterial to this claim, in the sense that they do not impact upon the legality of the earlier decision made by the Secretary of State.
3.1. In these proceedings the claimant seeks a declaration that the decision to recall him to hospital was unlawful. The grounds upon which the application is made are: first, that the decision was made without taking any medical advice. Secondly, that the decision was made contrary to such medical advice as there was; and thirdly, that the decision was generally without sufficient foundation, in the sense that none of the reasons advanced by the Secretary of State in justifying his decision could properly result in recall.
4.1. The first ground is argued on the basis that the claimant's RMO, Dr Stocking Korzen, was not asked for his opinion on the recall. The second is argued on the basis that he expressed his disagreement with the proposed course. The third ground, that is to say the omnibus ground, was not pressed in oral argument and Miss Braganza, who appears on behalf of the claimant, focused on Dr Stocking Korzen's involvement (or lack of involvement) in the decision-making process.
5.1. I shall deal with the facts leading to the recall in April 2008. The background is this. On 18th February 1974 the claimant was convicted of indecent assault and inflicting grievous bodily harm. The victims were respectively a woman and an 11 year old girl, the offences being committed a few days apart.
6.1. The court, following conviction, made an order under section 60 of the Mental Health Act 1959 that the claimant be detained at Rampton Hospital, together with an order under section 65 of the same Act restricting discharge without limit of time. By virtue of paragraph 3 of schedule 5 of the 1983 Act the statutory foundation for the claimant's detention became sections 37 and 41 of the Mental Health Act 1983.
7.1. The claimant was discharged from hospital by a Mental Health Review Tribunal on 6th November 1985. That was a conditional discharge. He was subsequently recalled to hospital on 14th March 1997. The circumstances were that his behaviour in the community had deteriorated. There had been a number of incidents of indecent exposure to his RMO. Additionally there had been a number of fires, at least four of which he was strongly suspected of setting. The judgment reached in 1997 was that the claimant's behaviour had become unpredictable and it was as a result of the matters that I have sought to summarise that his then RMO recommended that he be recalled. He was again conditionally discharged in August 2005.
8.1. By way of further background information, the historical material suggests that between 1993 and 1997, there were nine occasions of suspicious fire setting in and around Mr Munday's residences. Dr Stocking Korzen has indicated that Mr Munday, the claimant, has always suggested that many of these fires were accidental, save for one, which he eventually accepted responsibility for. However, over the years the claimant has accepted responsibility for additional fires. A pattern of failing to accept responsibility for events, but subsequently doing so, perhaps started in connection with the original offences to which I have referred. He maintained his denial of those offences for some time but eventually accepted responsibility.
9.1. The nature of the mental disorder from which the claimant suffers was reclassified in September 2003 to 'psychopathic disorder'. Following his conditional discharge in August 2005 the claimant received out-patient supervision from Dr Stocking Korzen and from a social worker. It is apparent, therefore, that Dr Stocking Korzen was the RMO in this case for perhaps 4 years before the events that gave rise to the recall.
10.1. In November 2007 the Mental Health Unit (which then was part of the Home Office rather than the Ministry of Justice) had cause to write to the claimant in connection with information that he was suspected of associating with people with responsibility for an assault. He was also due to be approached by the police in connection with anti-social behaviour by playing music too loudly. Those concerns in the autumn of 2007 were echoed in a formal review, which is dated 21st February 2008. A particular concern identified in that review, which was not new, was that the claimant had difficulties with alcohol. That might lead to overreaction to events and also gave rise to risk of injury to himself and others. There were also difficulties concerning the way in which the claimant was behaving generally, and in the way in which he was engaging with those responsible for his care. There was additional concern that as a result of the behaviour that was causing problems, the claimant might lose his accommodation. At the end of the report one finds this:
11.1.
“Pete noted that if Geoff loses his flat he will likely be recalled [I interpolate to say that he is Pete Thomas, a social worker and Geoff is the claimant.] Dr Stocking Korzen commented that alcohol has been a problem in the past and suggested that there are a number of agencies that can help Geoff with his alcohol problem. Pete noted that it is only when Geoff has people round that there are problems, even if it isn't Geoff who starts it. He told Geoff that he must ensure that this doesn't happen. Geoff noted that there are not people drinking there everyday.
Dr Stocking Korzen advised that Geoff must renegotiate his relationship with Pete [here I interpolate to explain that there were difficulties in the relationship between the claimant and his social worker that had led to the claimant seeking to obtain a new social worker]. He reiterated that the team has to supervise Geoff and this means that they will ask him questions from time to time. Dr Stocking Korzen noted that Geoff has already been recalled once. He advised Geoff to avoid getting into trouble and not to act in anger. Pete commented that Geoff is quite angry at the moment and the risk factors are high, especially if he has had had a lot to drink. Dr Stocking Korzen advised that if Geoff loses his flat, he could admit himself to hospital on a voluntarily basis to an open ward. In this way he would avoid being recalled and give the team a chance to find him accommodation elsewhere. He noted that if Geoff were to be recalled again there was little chance that he would come out in the near future.”
12.1. On 12th April 2008 the claimant was arrested on suspicion of arson with intent to endanger life. The details of the alleged offence are not well described in the documentation but it appears that the allegation came from an ex partner of the claimant's. The claimant has always denied the allegation. Within a few days of the arrest Mr Thomas, the social worker, spoke to Dr Stocking Korzen to let him know what had happened. The evidence suggests that Dr Stocking Korzen was generally not available in those few days and had been on leave. Dr Stocking Korzen, in a statement dated 13th October 2009 prepared for these proceedings, has explained the nature of the conservation he had with Mr Thomas to the best of his recollection. It is as follows:
“I had a discussion with Mr Munday's social supervisor Pete Thomas on Monday the 14th April 2008 regarding Mr Munday's case. I was aware that Mr Munday had been arrested in relation to an allegation of arson on 12th April 2008 and that he had been bailed by the police pending further enquiries. My discussion with Pete Thomas dealt with Mr Munday's arrest and the future treatment plan. I recall that Pete Thomas was in favour of Mr Munday being recalled on the basis of the alleged arson, however, I was against the recall. I made the point that an allegation was not grounds in itself to recall any patient and I considered that Mr Munday showed no evidence otherwise of increased risk. I was aware that Mr Munday had previously disengaged with treatment in the community in previous years and as a result of my knowledge of his case the professional team had adopted methods of engaging with Mr Munday, which had been successful. At the point of discussing the case with Pete Thomas I had no concerns about disengagement as Mr Munday was communicating with the team and engaging. I also did not believe that there had been deterioration in Mr Munday's mental health. I made it clear throughout my conversation with Pete Thomas that I would not support a decision to recall. We discussed the possibility of Mr Munday being convicted of the alleged arson and I explained that if that happened the Criminal Justice System should deal with him.”
It may well be that the discussion to which Dr Stocking Korzen now refers took place on...
To continue reading
Request your trial