R (L) v West London Mental Health NHS Trust [Administrative Court]
| Jurisdiction | England & Wales |
| Judge | Stadlen J |
| Judgment Date | 13 November 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10326/2010 |
| Date | 13 November 2012 |
Neutral Citation: [2012] EWHC 3200 (Admin)
Administrative Court
Judge: Stadlen J
CO/10326/2010
Appearances: D Squires (instructed by Deighton Pierce Glynn) for L (and H Southey QC by written arguments); J Hyam (instructed by Capsticks) for the Trust; S Hayes (instructed by Partnerships in Care) for Partnerships in Care as Interested Party; M Chamberlain (instructed by Stephen Brown for the Solicitor to the Department of Health) for the Secretary of State for Health as Interested Party
Issues: The process to be followed before a patient is transferred from a medium secure hospital to a high secure setting; whether Art 6 ECHR applied.
Facts: For patients detained under s37 Mental Health Act 1983, a hospital order, transfers between hospitals take place in the name of the managers of the hospital; the Tribunal reviewing detention has the power to make a recommendation as to transfer.
In 2008, L, who had several previous convictions and a lengthy involvement with psychiatric services, with numerous incidents of self-harm, was made subject to a hospital order after being convicted of various offences, including kidnapping and dangerous driving. He was placed in a medium secure hospital, classified as having a mental illness, but also diagnosed as having a psychopathic disorder. There were instances of self-harm, violence to others, and absconding; but at the end of 2008, a high secure hospital declined to admit L, though there was significant medical evidence in favour of such a move. At the end of 2009, L was transferred to a different medium secure unit.
In mid-2010, after L revealed that he had fashioned weapons with which he planned to attack another patient, he was again referred to a high secure hospital; this time, it accepted him, by a decision of 15 September 2010. L's solicitor had sought to attend the decision-making panel at the high secure hospital, relying on a provision in its policy statement that observers might be permitted to attend and to ask questions once a decision had been made, but this was refused. No other provisions in the procedure allowed for the involvement of the patient, but L sought to have disclosure of relevant documents and to make written representations or to have an oral hearing if that was necessary to deal with complexities or conflicting evidence. Materials were disclosed after the decision had been made.
L asked that any transfer be postponed until after the resolution of various issues he raised. On 30 September 2010, it was indicated that L was to be transferred on 6 October 2010; judicial review proceedings were commenced, and an injunction was then sought and granted to prevent transfer. However, L ceased his opposition and so the injunction was lifted and the transfer went ahead. L sought to proceed with the judicial review, to determine the various issues raised, namely whether the process followed had breached common law standards of fairness and/or Art 6 ECHR.
The Parties — para 2
Factual background — 5
The incident leading to the Claimant's transfer from Stockton House to Broadmoor — 37
The Claimant's transfer from Stockton Hall medium security hospital to Broadmoor high security hospital — 42
The position of the Claimant and his solicitor in relation to the transfer to Broadmoor — 66
The legal framework — 110
The Broadmoor Hospital Admissions Panel Operational Policy — 155
The Claimant's Claims — 188
Preliminary issue: Should the court decline to entertain the claim as being of only academic interest? — 198
Potential adverse consequences resulting from a transfer from a medium security hospital to a high security hospital
(1) The potential for delaying the ultimate date of discharge from detention under the Mental Health Act 1983
(i) The evidence — 237
(ii) Conclusion — 264
(2) The potential for more restrictive detention conditions
(i) The Evidence — 271
(ii) Conclusion — 290
The common law duty of fairness
(i) The Parties' Submissions — 292
(ii) The Law — 315
(iii) Discussion — 436
(iv) Conclusion — 556
The Art 6 Claim — 582
Issue 1. Is Art 6 engaged?
(i) The Parties' Submissions — 585
(ii) Discussion — 625
(iii) Conclusion — 730
Issue 2. Are the right to apply for judicial review and/or the power of the First-tier Tribunal to make a non-statutory recommendation for transfer back to medium security hospital sufficient to satisfy the procedural requirements of Art 6? — 731
(i) The Parties' submissions — 732
(ii) Discussion — 761
(iii) Conclusion — 839
Issue 3. Is the transferring hospital and/or the receiving hospital obliged by Art 6 to establish an independent and impartial panel to decide whether the patient should be transferred (at least in a case where the appropriateness of the admission turns on a disputed issue of fact)? — 841
Issue 4. Should the Court grant a declaration that the 1983 Act is incompatible with Art 6 in so far as it makes no provision for an independent and impartial tribunal to determine: (1) in advance of transfer whether a patient should be transferred to a high security hospital or, (2) after transfer whether a patient should be transferred back to a medium security hospital? — 845
Discussion on questions 3 and 4 — 857
1. By this claim for judicial review the Claimant challenges the decision to admit him to Broadmoor, a high security hospital pursuant to a transfer from Stockton Hall, a medium security hospital, in which he was detained pursuant to a hospital order made by Chichester Crown Court under s37 of the Mental Health Act 1983 (‘the 1983 Act’) following convictions in June 2008 for offences including kidnapping and dangerous driving. The decision is challenged as being unlawful because it was taken following a procedure which failed to comply with common law standards of procedural fairness and/or Art 6 of the European Convention on Human Rights. The claim raises important issues as to whether decisions to transfer detained patients from medium security to high security psychiatric hospitals are subject to common law duties of fairness and if so the extent of such duties and/or whether the current arrangements for the taking of such decisions violate Art 6 in that they constitute final determinations of the patient's civil rights and, taken as a whole, do not provide for access to adjudication by an independent decision taker.
2. The Claimant is a patient detained under the 1983 Act who was transferred from Stockton Hall Hospital, which provides medium security psychiatric services, to Broadmoor Hospital, which provides high security psychiatric services. The Defendant is responsible for the provision of high security psychiatric services at Broadmoor pursuant to para 3(2)(b) of the West London Mental Health National Health Service Trust (Establishment) Order 2000. The interested party is responsible for the provision of medium security psychiatric services at Stockton Hall Hospital.
3. In June 2008 the Claimant was detained pursuant to s37 of the 1983 Act following conviction in the Crown Court for various offences and in October 2010 he was transferred from Stockton Hall Hospital to Broadmoor. The Secretary of State for Health has an overriding duty under s4(1)(b) of the National Health Service Act 2006 (previously under s4 of the National Health Service Act 1977) to provide high security psychiatric services for persons who in his opinion require treatment under conditions of high security on account of their dangerous, violent or criminal propensities. Such services may be provided only at hospital premises at which services are provided only for such persons.
4. The Secretary of State was not an original party to these proceedings. However at the conclusion of the 2 day oral hearing on 19 April 2012 I indicated that in view of his potential interest in some of the issues raised in this case I would be prepared to entertain submissions from him if so requested. On 27 April 2012 he indicated a desire to make written submissions which were duly received on 22 May 2012. I gave permission to the Claimant to serve written submissions in response which were received on 31 May 2012 and to the Secretary of State to serve written submissions by way of rejoinder, which were received on 2 July 2012.
5. The Claimant is 24 years old. He has a history of childhood physical and sexual abuse, including an assault at the age of 14 by a man who put an axe to his throat and attempted to rape him, and also longstanding mental health problems.
6. He was first referred to psychiatric services at the age of 9 when he was diagnosed as having conduct disorder and attention deficit hyperactivity disorder (ADHD). He had 2 brief admissions to psychiatric hospitals, in the first of which he was transferred to a locked ward under s2 of the 1983 Act, from which he was discharged within one week. He has a history of severe and frequent deliberate self-harm from the age of 14. This has included breaking bones, lacerations, overdoses, cutting the tendons in his feet and inserting objects into his penile urethra leading to a number of operations. According to him he has made a number of serious suicide attempts including attempting to hang himself in prison by making a ligature and tying it to a tap in the sink. He has a history of drug use including cannabis from the age of 18 and crack cocaine and heroin.
7. The Claimant also has a criminal record from the age of 13. When he was 14 he received a 4 month detention and training order for burglary, theft, handling stolen goods and criminal damage. At the age of 16 he received further convictions for burglary, theft, aggravated vehicle theft and other offences for which he received 2 further detention and training orders. At the age of 18 he received a custodial sentence for...
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R (L) v West London Mental Health NHS Trust
...various issues raised, namely whether the process followed had breached common law standards of fairness and/or Art 6 ECHR. The judge ([2013] MHLR 297) allowed the matter to proceed, determined that Art 6 did not apply, but found that the common law duty of fairness had been breached; he ga......