R (on Application of L) v West London Mental Health Nhs Trust Partnerships in Care (First Interested Party) The Secretary of State for Health (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Stadlen |
| Judgment Date | 13 November 2012 |
| Neutral Citation | [2012] EWHC 3200 (Admin) |
| Docket Number | Case No: CO/10326/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2012 |
[2012] EWHC 3200 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stadlen
Case No: CO/10326/2010
and
and
Dan Squires (instructed by Deighton Pierce Glynn) for the Claimant
Jeremy Hyam (instructed by Capsticks Solicitors) for the Defendant
Sonia Hayes (instructed by Partnerships in Care) for the First Interested Party
Martin Chamberlain (instructed by Stephen Brown for the Solicitor to the Department of Health) for the Second Interested Party
Hearing dates: 18 & 19 April 2012
Contents Page
| Page | |
| The Parties | 4 |
| Factual background | 5 |
| The incident leading to the Claimant's transfer from Stockton House to Broadmoor | 12 |
| The Claimant's transfer from Stockton Hall medium security hospital to Broadmoor high security hospital | 13 |
| The position of the Claimant and his solicitor in relation to the transfer to Broadmoor | 19 |
| The legal framework | 27 |
| The Broadmoor Hospital Admissions Panel Operational Policy | 37 |
| The Claimant's Claims | 47 |
| Preliminary issue: Should the court decline to entertain the claim as being of only academic interest? | 49 |
| Potential adverse consequences resulting from a transfer from a medium security hospital to a high security hospital | 57 |
| (1) The potential for delaying the ultimate date of discharge from detention under the Mental Health Act 1983 | |
| (i) The evidence | 57 |
| (ii) Conclusion | 62 |
| (2) The potential for more restrictive detention conditions | 64 |
| (i) The Evidence | |
| (ii) Conclusion | 69 |
| The common law duty of fairness | 69 |
| (i) The Parties' Submissions | |
| (ii) The Law | 75 |
| (iii) Discussion | 116 |
| (iv) Conclusion | 144 |
| The Article 6 Claim | 153 |
| Issue 1. Is Article 6 engaged? | |
| (i) The Parties' Submissions | 154 |
| (ii) Discussion | 165 |
| (iii) Conclusion | 190 |
| 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 Article 6? | 190 |
| (i) The Parties' submissions | 190 |
| (ii) Discussion | 197 |
| (iii) Conclusion | 216 |
| Issue 3. Is the transferring hospital and/or the receiving hospital obliged by Article 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)? | 217 |
| Issue 4. Should the Court grant a declaration that the 1983 Act is incompatible with Article 6 in so far as it makes no provision for an independent and impartial tribunal to determine: | 216 |
| (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? | |
| Discussion on questions 3 and 4 | 220 |
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 section 37 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 article 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 Article 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.
The Parties
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 paragraph 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.
In June 2008 the Claimant was detained pursuant to section 37 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 section 4(1)(b) of the National Health Service Act 2006 (previously under section 4 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.
The Secretary of State was not an original party to these proceedings. However at the conclusion of the two 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.
Factual background
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.
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 two brief admissions to psychiatric hospitals, in the first of which he was transferred to a locked ward under section 2 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.
The Claimant also has a criminal record from the age of 13. When he was 14 he received a four 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 two further detention and training orders. At the age of 18 he received a custodial sentence for aggravated vehicle taking and thereafter was convicted of escaping from lawful custody. There was an incident in which he was reported as having picked his way out of handcuffs.
In February 2007 he committed the offences of false imprisonment, theft and dangerous driving. He was remanded in custody at Feltham Young Offenders Institution for 15 months and in June 2008 following conviction for those offences he was ordered to be detained under section 37 of the 1983 Act under the legal classification of mental illness. Whilst on remand he had been assessed as suffering from Antisocial and Borderline Personality Disorders, amounting to psychopathic disorder within the 1983 Act, and persisting features of ADHD and was assessed as proving a risk to himself and others. It was recommended that he should be admitted to a medium secure unit.
Between first being sent to a detention centre when aged 15 and his arrest on remand in February 2007 the Claimant had only been in the community for a total of approximately 9 months, the longest period out of custody having been a maximum of 7 weeks, the shortest 3 days.
According to the victim the circumstances of the false imprisonment offence were that the Claimant arrived at his flat in an agitated state in possession of a knife, ordered the victim to wrap brown parcel tape around his ankles and then tied him to a chair using parcel tape and electrical cables and gagged him with a cloth and a dog lead. On leaving he threatened the victim that he would kill him together with his sister, nephews and nieces if he phoned the police. He took the keys to the victim's car, in which he was arrested four days later following a high speed chase on the M4. On arrest he told police that he had been...
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