R (IR) v (1) Dr G Shetty (2) Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 09 December 2003 |
| Neutral Citation | [2003] EWHC 3022 (Admin) |
| Date | 09 December 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5599/2003 |
[2003] EWHC 3022 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
THE HONOURABLE MR JUSTICE MUNBY
Case No: CO/5599/2003
Mr Paul Bowen (instructed by Kaim Todner) for the claimant
Mr Philip Havers QC (instructed by Mills & Reeve) for the first defendant
Ms Eleanor Grey (instructed by the Treasury Solicitor) for the second defendant
On 2 April 1995 the claimant killed his brother. On 17 February 1997 he was convicted of manslaughter by a jury at Norwich Crown Court. On 8 September 1997 HHJ Hyam sentenced him to life imprisonment and fixed the tariff under section 34 of the Criminal Justice Act 1991 at eight years. As he was first remanded in custody on 4 April 1996 his tariff date is 4 April 2004. Whilst in prison his mental state deteriorated. On 8 August 2000 he was transferred to the Norvic Clinic in Norwich pursuant to a transfer direction made by the Secretary of State under section 47 of the Mental Health Act 1983 ("the Act"). In accordance with his normal policy the Secretary of State imposed a restriction direction under section 49(1) of the Act. On 4 January 2001 the claimant was returned to prison pursuant to a warrant issued by the Secretary of State under section 50(1)(a) of the Act. On 23 April 2003 he was again transferred to the Norvic Clinic pursuant to transfer and restriction directions made under sections 47 and 49(1). It is common ground that, whatever his mental state at the time he was sentenced, the claimant has since suffered severe psychotic episodes.
The present proceedings, commenced on 23 October 2003 against Dr Shetty, the responsible medical officer ("RMO") at the Norvic Clinic, and the Secretary of State, are brought to prevent the claimant being returned to prison. An injunction to restrain the claimant's return to prison was granted by Poole J on 23 October 2003 and extended by Richards J on 24 October 2003 and seemingly again by Stanley Burnton J (although his order is silent on the point) on 7 November 2003. On the latter occasion Stanley Burnton J granted the claimant permission to apply for judicial review as against the Secretary of State and fixed the substantive hearing for 4 December 2003. He directed that the application for permission as against the RMO was to be heard on 4 December 2003, with the substantive hearing to follow immediately if permission was granted. The matter came on for hearing before me on 4 December 2003. The claimant was represented by Mr Paul Bowen, the RMO by Mr Philip Havers QC and the Secretary of State by Ms Eleanor Grey.
The claim
Section 50(1) is in the following terms:
"Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may—
(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or
(b) exercise any power of releasing him on licence or discharging him under supervision which could have been exercisable if he had been remitted to such a prison or institution as aforesaid,
and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect."
On 8 October 2003 the RMO wrote to the Secretary of State:
"I am writing to request issue of a warrant directing [the claimant's] remission to prison namely HMP Cardiff under Section 50(1) of the Mental Health Act 1983. I am satisfied that [he] no longer requires treatment in hospital for a mental disorder namely mental illness.
You will be aware from my report to the Mental Health Tribunal and CPA/Section 117 Meeting reports (copies enclosed), that [the claimant] was admitted to Norvic Clinic on the 23rd April 2003 under Section 47/49 of the Mental Health Act 1983, as he had relapsed into psychosis again. He responded quickly and well to Clozapine therapy and has not exhibited any psychotic symptoms for some time. [He] has not engaged in any meaningful therapeutic activities and psychology sessions failed to give us any better understanding of his psychopathology or formulation of his rehabilitation needs. [He] has remained largely inactive and has not shown any self-harming or aggressive behaviour.
[He] has remained dissatisfied with his legal status, as he believes that he should have received a Hospital Order. Furthermore he, while accepting improvement in Clozapine asserts that he should remain in hospital, as he is likely to relapse if returned to prison. It has been repeatedly pointed out to him that it is not inevitable that he will relapse especially given that he is now on Clozapine which has proven therapeutic advantages over other antipsychotic medications. [He] is also concerned that the Parole Board will never release him.
At the Section 117 Meeting on the 8th October 2003 all members of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity had persisted. It was acknowledged that his more recent transient complaints about depression and thoughts of self-harm are directly related to the likelihood of being returned to prison rather than relapse of illness per se.
[He] attended the meeting with his legal representative … The views of the clinical team were again explained to [him] but he repeatedly stated that it was "unfair" to return him to prison as he should have been given a Hospital Order in the first place. I again explained the statutory criteria under Section 50 and told him that all possible arrangements for his smooth transition from the hospital to prison will be made. (I had telephone discussion with Mr Thomas, In-reach nurse at HMP Cardiff who has previous knowledge of [him]. He was due to attend the meeting today but was unable to do so due to another crisis at HMP Cardiff. However we were able to discuss provisional plans over the telephone and Mr Thomas is willing to monitor [his] mental state should he be returned to HMP Cardiff. It is also noteworthy that HMP Cardiff has visiting forensic psychiatrists from Caswell clinic who are in fact responsible for his referral to this service on this occasion)."
On 31 October 2003 the Secretary of State gave his decision:
"The Secretary of State has considered carefully the reports prepared on [the claimant] by Dr Bullard dated 20 and 22 October. He has also considered the other relevant material submitted in the judicial review bundle, letters from Dr Shetty dated 8 and 24 October 2003, and the reports of the CPA/section 117 meeting on the 8 October 2003 …
The Secretary of State prefers the view of Dr Shetty who is the Responsible Medical Officer for [the claimant] and who has been treating him since his transfer to the Norvic Clinic (and on a previous admission to the Clinic). Dr Shetty, in his reports, states that [he] has responded well to the drugs he has been prescribed, and that his clinical team believes that his mental state has remained stable since the last review. Dr Shetty states that [he] no longer requires treatment in hospital and that effective treatment for his condition can be given after his return to prison.
The Secretary of State notes the views of Dr Shetty are supported unanimously by [the claimant's] clinical team, and that Dr Shetty in his letter dated 8 October 2003 states that "at the section 117 meeting on 8 October all member of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity has persisted" Both [the claimant] and yourselves were present at the section 117 meeting, during which the views of the clinical team were explained to [him], and he was afforded an opportunity to comment.
The Secretary of State has given careful consideration as to whether [he] would receive appropriate treatment if remitted to prison. Dr Bullard in her first report is unspecific about the type of treatment that would benefit [him]. In her second report she notes that [he] suffers from an emotionally unstable personality disorder and that he present a "therapeutic challenge which can only be successfully undertaken with the support of a dedicated clinical team". Dr Shetty has addressed the question of treatability in his letters of 8 and 24 October. In his 8 October letter Dr Shetty states [he] "has not engaged in any meaningful therapeutic activities and psychological sessions failed to give us a better understanding of his psychopathology or formulation of rehabilitation needs." The issue is addressed again by Dr Shetty in his letter of 24 October where he states that "any attempts to explore psychological issues with [him] has been unsuccessful". These views, coming as they do from the doctor in charge of [his] treatment, and unanimously supported by the clinical team, must be accorded considerable weight. On the basis of these letters the Secretary of State has concluded...
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