R (H) v Ashworth Hospital Authority and Others; R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 09 November 2001 |
| Neutral Citation | [2001] EWHC 901 (Admin),[2001] EWHC 872 (Admin) |
| Docket Number | CO/41/2001,Case Nos.: CO/1226/2001 and CO/1818/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2001 |
[2001] EWHC 872 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Sir Christopher Bellamy Qc
(Sitting as a deputy High Court Judge)
CO/41/2001
Robert Jay QC and Fenella Morris, instructed by Hogans, 10 Station Street, Rainhill, Merseyside, appeared on behalf of the Claimant
John Howell QC and Oliver Thorold, instructed by Messrs Reid Minty, 14 Grosvenor Street, London W1K 4PS, appeared on behalf of the Defendant
The issue
The claimant, Robert Hunter, is a patient detained under section 3 of the Mental Health Act at Ashworth Hospital. He has been diagnosed as suffering from a psychopathic disorder. A "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned (section 1(2) of that Act). A person suffering from such a disorder may only be admitted to treatment if such treatment is likely to alleviate or prevent a deterioration of his condition (section 3(2)(b)).
Ashworth Hospital is one of three special hospitals (the other two being Broadmoor and Rampton) established under section 4 of the National Health Service Act 1977 for persons so detained who in the opinion of the Secretary of State require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. The defendant, Ashworth Hospital Authority, is responsible on behalf of the Secretary of State for the provision of high security psychiatric services at Ashworth Hospital pursuant to regulations made under that Act.
The claimant is a carrier of hepatitis C and states that he is a practising homosexual. In this application for judicial review he challenges one (but only one) of the defendant's Hospital Patients' Relationship Policy, namely the policy that condoms are not issued.
The challenge is mounted on three grounds (i) it is illegal because it admits of no exceptions; (ii) it is irrational; and (iii) it is in breach of Articles 2 and 8 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention").
The admission criteria at Ashworth Hospital
The kind of patients for whom Ashworth Hospital is appropriate is illustrated by the following extracts from the hospital's Admissions Criteria:
"3)Dangerousness
The high levels of care and observation at Ashworth Hospital can only be justified when the highest levels of security are required, and a lesser degree of security would not provide a reasonable safeguard to the public. It is an unacceptable infringement of a patient's civil rights to detain them in a higher level of security than they require. The special security available within Ashworth Hospital is of such a kind and degree to detail patients who, if at large, would present a grave danger to the public and who could not be safely contained within the security available at a regional secure unit.
Factors the Admission Panel Consider
In considering what represents grave danger requiring conditions of special security, one or more of the following factors, in addition to mental disorder, must be present before admission to Ashworth Hospital can be contemplated.
a. Serious unprovoked or random assaults on members of the public.
b. Serious sexual assaults on members of the public.
c. Aggressive feelings towards a particular person which, in the absence of that person, may be replaced by serious violence to others (displaced aggression).
d. Psychotic symptoms involving specific people which could lead to violent acts against them.
e. Arson.
f. The use of poison or drugs to cause harm to others.
g. Persistent, scheming, determined absconding.
…
h. Sadistic behaviour.
i. Use of firearms, knives, explosive devices, missiles and other weapons.
j. Hostage taking.
This list is not meant to be exhaustive, nor should it be used simply as a checklist. Each case is considered on its own merits, taking full account of patterns of behaviour including escalation of dangerousness and such clinical factors as the presence of sadistic sexual fantasies with an inclination to act on them."
The Patients' Relationships Policy
The defendant's Patients' Relationships Policy was adopted in October 2000. I quote it as fully as necessary:
"1.AIM AND OBJECTIVES
1.1 Patients are admitted to Ashworth Hospital to be treated for mental disorder in conditions of high security as they are considered to present a grave and immediate risk to others. The Hospital has certain statutory functions and implied responsibilities, and it is necessary to have the Patients' Relationship Policy as set out below.
1.2 This policy provides for the management of relationships between patients and between patients and visitors in Ashworth Hospital. It aims to:
(i) Clarify what behaviour is defined as acceptable and unacceptable within relationships between patients and between patients and visitors.
(ii) Provide a framework of procedures to manage relationships and their consequences.
(iii) Provide a framework of accountability and clinical practice which ensures that direct care staff are supported in working to the hospital policy.
(iv) Apply the Policy consistently across the Hospital.
DEFINITION AND SCOPE
2.1 The relationships addressed by this policy are defined as attachments between two persons of the same or opposite gender that may or may not include the following qualities: feelings of love, specialness, caring, exclusivity, romance, sexual attraction, secretiveness. These qualities may be unevenly shared between the two parties. This policy is intended to address issues which may result from relationships between patients and between patients and visitors.
PRINCIPLES
3.1 Forming relationships is a normal human activity. The importance of relationships must be recognised.
3.2 By the nature of the policies and procedures that are necessary the hospital environment imposes restrictions on individual patient's privacy, on the time that the patients may spend together and the availability of appropriate partners.
3.3 Patients come to the hospital with a range of disorders and problems related to their mental health. Some patients have histories of offences or behaviours involving sexual and/or physical violence, abuse, exploitation, intimidation. There are also patients who have been the victims of such violence, abuse, exploitation, intimidation and continue to be vulnerable.
3.4 Previous experience within Ashworth Hospital has demonstrated the adverse consequences of sexual relationships between patients and the risks associated with sexual relationships.
3.5 The hospital will operate a no sex policy.
3.6 This policy also promotes an environment which aids in the prevention of the transmission of blood borne viruses.
3.7 In order to manage relationships it is essential that the issues raised by intimate relationships and the sexual feelings of patients are not avoided but openly and sensibly addressed so that patients and staff must be consistent in their approach to relationships and must be made aware of the dangers of inappropriately expressing moral or ethical opinions or beliefs towards patients which are inconsistent with hospital policy.
3.8 Staff who work closely with a patients and particularly those in the clinical team of a patient, will take responsibility for any information given to them of a developing relationship and subject it to full assessment. Plans for the management of the relationship should be clearly documented in the care and treatment plan. The clinical team for each individual must ensure that each patient understands as fully as possible the boundaries for their behaviour in the relationship. Staff will have access to relevant and effective supervision for this aspect of their work.
SPECIAL CONSIDERATIONS OF SECURITY AND RISK MANAGEMENT WITH HIGH SECURE HOSPITALS
4.1 Ashworth has had experience of the serious consequences of inconsistent policies and policies that have been inconsistently applied. Previous enquiries have highlighted this and recommended particular stringency around the application of policies. Recent enquiries have also been followed by the issuing of Security Directions which have described in detail policies relating to the searching of patients, the searching of their possessions, the management of those possessions, the searching of rooms and have led to rigorous controls around patients' possessions whilst in Hospital.
4.2 The Relationships policy must take into account the existing Security Policies and the paramount importance of consistency in the application of policies within the high secure setting.
4.3 There is an acknowledged risk that unacceptable sexual activity may occur between patients whilst they are within the Hospital. This Policy manages, but cannot remove that risk. The management of the risk involves proper supervision, detailed care planning and the outcomes of other policies that have been introduced for reasons related to the general care and treatment and security of patients, staff and public. It is the responsibility of all staff to ensure that there is no breach of this Policy.
4.4 In institutions such as prisons, condoms have been issued to manage the health risk of high risk sexual behaviours. Condoms are considered within the high secure hospital to represent a security risk in relation to secretion of prohibited items, and the possibility of their use in harm to self and others. They...
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