R (DK) v Secretary of State [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 18 January 2010 |
| Date | 18 January 2010 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/11268/2008
Collins J
H Southey (instructed by Roberts Moore Nicholas Jones) for DK; K Olley (instructed by the Treasury Solicitor) for the Defendant.
Whether a transfer under s47 Mental Health Act 1983 was lawful when the medical reports relied on did not deal with the issue of treatability in relation to a patient categorised under psychopathic disorder.
In November 2001, DK, who had numerous previous convictions, many of which involved violence, was sentenced to 9 years and 7 months' imprisonment for various offences of violence. In April 2006, he was transferred to Broadmoor Hospital under s47 Mental Health Act 1983. In July 2007, a Mental Health Review Tribunal found that he suffered from psychopathic disorder but was not satisfied that he was treatable - then a precondition to continued detention - in light of his failure to engage with treatment and so directed his discharge from hospital: DK was returned to prison. His release date from the sentence was 30 August 2008. On 21 August 2008, he was again transferred to Broadmoor Hospital under s47 of the 1983 Act. The Secretary of State, who makes transfers under s47, had received medical opinion as to his treatability, based on his
engagement with treatment in prison; however, in the pro-forma medical reports prepared for the purposes of transfer, and upon which the warrant of transfer was based, the doctors did not address the issue of treatability. Subsequently, DK challenged the validity of the warrant of transfer.
1. The claimant in this case, who is known as DK, was, when sentenced in November 2001 for 3 offences, 21 years old. The offences in question were 1 of causing grievous bodily harm with intent, 1 of causing grievous bodily harm (or wounding) and 1 of assault occasioning actual bodily harm. He was sentenced to a total of 9 years and 7 months' imprisonment.
2. He has a considerable number of previous convictions, many of which involved violence of one form or another, and there was ample evidence before the sentencing court which showed that he was a thoroughly dangerous young man and would be likely to commit further offences. Indeed, the report before the judge was that the risk of re-offending was high. He in fact had received some 20 convictions overall. His release date, on the law as it then was, was 29 August 2008, and his licence would be due to end at the three quarter stage of his sentence, namely June 2009.
3. On 11 April 2006, a direction was given and he was transferred to Broadmoor on 20 April 2006. On 12 July 2007, a Mental Health Review Tribunal decided that he should be released from Broadmoor, which meant that he was returned to prison. The basis of the decision of the Tribunal was that they were not satisfied that the treatability test had been met in his case. The Tribunal's view was that, contrary to the evidence given by a doctor from Broadmoor, that he had received some treatment, in fact he had not received any treatment which had done any good to him at all. The Tribunal accepted that he was suffering from psychopathic disorder of a sufficient nature and degree for the purposes of the provisions of the Mental Health Act, which would be the first step to justify a transfer to a mental hospital. But the Tribunal was not persuaded in the circumstances that it was appropriate for him to be liable to be detained for medical treatment in detention. The reason for that was, as I have said, that the Tribunal decided he had received no or no significant medical or other treatment which had alleviated or prevented deterioration in his condition. However, it is fair to say that the Tribunal appear to have accepted that, if he had cooperated, there was available treatment which would fall within the statutory provisions, and which might do some good for the claimant.
4. In effect, what the claimant was doing was to recognise that he had a release date in August 2008, and he wanted to be sent back to prison in order that he could be released rather than kept in detention. So it was that he was returned to prison.
5. Whilst he was in prison, there were further worrying matters discovered. In particular, he was found to have been in possession of material that related to bomb making, and an indication of a possible concern on his part to take some sort of violent action against others, and indeed he had maintained his views on that sort of approach. It seems that, in reality, there can be no doubt that he is a potentially very dangerous young man, and if he were at large, there is a distinct possibility - it may even be a probability - that he will commit further offences of violence. However, it must be made clear, and indeed as the law then stood it is apparent, that detention in a mental hospital cannot be justified on the basis purely that the individual is a danger, whether to the public or to himself. It can only be justified if there is treatment available which might alleviate or, as the law then stood, was likely to alleviate or prevent a deterioration of his condition.
6. Indeed, the medical profession generally is adamant that detention in a mental hospital can only be justified if there is a treatment which may do some good. One can well understand why that is the position, and equally well understand why this country would not countenance anything short of that. One only has to think back to the use of mental hospitals in some countries for purposes of keeping out of action those whom the authorities consider should not be at large. One must be very careful to ensure that that does not occur. Hence the importance of treatability, rendered in this case the more important because of the decision of the Tribunal.
7. I confess that when I read the papers I was concerned whether the decision of the Tribunal was one which could be justified, because a failure to cooperate if treatment otherwise would be...
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