R (L) v West London Mental Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Patten,Lord Justice Moses |
| Judgment Date | 29 January 2014 |
| Neutral Citation | [2014] EWCA Civ 47 |
| Docket Number | Case No: C1/2013/0090,C1/2013/0090 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2014 |
[2014] EWCA Civ 47
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Stadlen
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lord Justice Patten
and
Lord Justice Beatson
Case No: C1/2013/0090
and
Jeremy Hyam (instructed by Capsticks Solicitors LLP) for the Appellant
Dan Squires (instructed by Deighton Pierce Glynn) for the Respondent
Sonia Hayes (instructed by Partnerships in Care) for the First Interested Party
The Second Interested Party did not appear and was not represented
I. Overview of the questions for decision and conclusions:
The Appellant, the West London Mental Health NHS Trust ("the Trust"), is responsible for Broadmoor Hospital in Berkshire, one of three high security psychiatric hospitals in England and Wales. The Respondent, L, is now 26 years old. He has an extensive history of serious mental health problems. At the material time, he was detained under section 37 of the Mental Health Act 1983 ("the 1983 Act") following his convictions for offences of false imprisonment, dangerous driving, theft, and criminal damage in Stockton Hall, a medium security hospital in York. The narrow but important question in this appeal concerns the requirements of the common law principles of procedural fairness in cases where a convicted offender is detained under section 37 as mentally ill and is being considered for transfer from conditions of medium security to conditions of high security.
The material facts are summarised in section II of this judgment, at [10]–[20], and the procedural history in section III, at [22]–[25]. The legal and regulatory framework is set out in section IV, at [26]–[57]. On the facts, at this stage it suffices to state that following an incident on 31 July in which, because of a dislike of another patient, L made a makeshift weapon from the arms of spectacles, on 4 August 2010 Stockton Hall referred his case to Broadmoor requesting that he be admitted to Broadmoor. On 2 September 2010, the Admissions Panel at Broadmoor agreed to admit him. L and his solicitor, Ms Jolly, knew that the decision to refer him was made because of the incident and its aftermath. His solicitor, Ms Jolly, was, however, refused permission to attend the Panel hearing as an observer, was not given any of the documents considered by the Panel before the hearing, and was only informed of the date of the hearing on the day before it took place.
L instituted judicial review proceedings against the Trust on 30 September 2010, and named Partnerships in Care, which is responsible for Stockton Hall, as an interested party. The challenge was originally (see [24] below) a wide-ranging one. Interim relief restraining the transfer to Broadmoor was granted by the Administrative Court that day, and an order was made for an urgent "rolled up" hearing of the application. On 1 October (for reasons summarised at [23] below) L withdrew his application for interim relief, and the order was discharged by consent. L was transferred to Broadmoor on 6 October 2010.
Following the hearing of the judicial review on 18 and 19 April 2012, in an Order dated 13 November 2012 Stadlen J allowed L's application for judicial review (Order, paragraph 1) and made a declaration (Order, paragraph 2) that the decision-making process by which L was transferred to Broadmoor engaged a common law duty of fairness and that in the respects identified in the judgment the procedural requirements of that duty were not complied with. The defects identified in [559]–[581] of the judgment were that, although L's representatives had been requesting disclosure of documents and an opportunity to make representations since 19 August, at the time the decision was taken almost two weeks later the Trust had not provided L with any of the documents before the Panel or the "gist" of those documents, or given him an opportunity to make representations to the Panel.
In his 859 paragraph judgment, the judge meticulously considered every issue and every authority. I summarise his conclusions about the potential adverse consequences of a transfer from a medium security to a high security hospital at [54]–[57]. He dealt with the common law duty of fairness at [436]–[584] of his judgment. The section until [555] consists of the discussion, and that from [556] the conclusion. He stated (at [557]) that "there is no one size fits all rigid set of procedural requirements which apply in every case" and that "some but not all of the procedural requirements may vary to reflect the presence or absence of countervailing considerations arising from the need to protect people from harm, and the facts of the case". The judge referred in particular to the absence or presence of a need for decisions to be taken and/or implemented as a matter of urgency in the interests of protecting other people from harm, to the need for fewer procedural requirements where facts are not in dispute, and/or where a person to whom legal advice is available makes it clear that he or she does not wish to avail himself or herself of them.
The judge set out twelve requirements of procedural fairness where the managers of a medium security hospital contemplate the referral of a person detained under the 1983 Act to a high security hospital in [558] (which is reproduced in the Appendix to this judgment). These, he stated, apply subject to the need to protect persons from the risk of harm or some other substantial reason for departing from the requirements. He also stated that the reason for departing from the requirements "must be communicated to the patient's advisers unless there is a substantial reason for not doing so, in which event that reason must be communicated to them". The Trust appeals against the judge's decision with his permission. It submitted that the procedures required by the judge would "judicialise" what is essentially a clinical judgment. 1 On behalf of L, Mr Squires accepted that purely clinical matters were for the doctors but submitted that it was important for there to be an opportunity to correct errors or misleading statements in particular those of a factual nature. He emphasised the need for a person other than L to be able to make representations because his mental condition and medical history showed that he needed assistance. 2
Before the judge it was also submitted on L's behalf that Article 6 of the European Convention on Human Rights ("ECHR") applied to the transfer and was breached because there was no provision for a fair and public hearing before an independent tribunal to determine whether a patient should be transferred to another hospital. After the hearing in April 2012, the judge considered that the Article 6 arguments that had been advanced raised the possibility of a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. For this reason, the Secretary of State for Health was added as a party to the proceedings and made submissions on the Article 6 issues. In the event, the judge rejected the submissions on behalf of L based on Article 6. He held (see judgment, [625]–[729] and [839]–[840]) that a decision to transfer a patient was not a determination of civil rights, so no duty under Article 6 arose, but that, if one did, judicial review was sufficient to satisfy its procedural requirements. A cross-appeal by L on this point (for which the judge also gave permission) has not been pursued, although the written submissions of both parties as to the position at common law deployed strands from the judge's decision on the Article 6 question.
For the reasons I give in section VI of this judgment, in particular at [68], and [78]–[80], I have concluded that the judge required a procedure which was inappropriately at the adversarial end of the spectrum of adjudicative methods of decision-making and, in so doing, went beyond what fairness requires in this context. Paragraph 2 of his Order is, in effect, a declaration that the 12 requirements in paragraph [558] of his judgment must, subject to the various qualifications, be complied with and, if my Lords agree, it should be set aside. Where, as in this case the decision in question is largely a clinically-based decision with a rationing aspect, there is a need for circumspection as to what procedure is required.
On the particular facts of L's case, I do not consider that relief should have been given. Accordingly, paragraph 1 of the Order should also be set aside. I have come to this conclusion in the light of what L was able to say at the meetings with the referring doctor and the assessing doctor, his stance at those meetings, which was that he had no objection to the transfer, and the subsequent decision by his solicitor not to make such representations as she was able to make without sight of the reports of those doctors. He was able, either personally or through his solicitor, to put his side of the story about the weapons incident to the authorities before a decision was made about his transfer: see [90]–[95] below. I also note the limited nature of any disagreement as to the facts of the triggering incident and L's subsequent withdrawal of his challenge to the decision to detain him in conditions of high security. However, for the reasons I give at [95]–[97] the ability of the present process to...
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