R Pendlebury v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Recorder Fordham |
| Judgment Date | 15 October 2013 |
| Neutral Citation | [2013] EWHC 3613 (Admin) |
| Date | 15 October 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/366/2013 |
[2013] EWHC 3613 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
Mr Recorder Fordham QC
(Sitting as a Deputy Judge of the High Court)
CO/366/2013
Miss Weston appeared on behalf of the Claimant
Miss Wheeler appeared on behalf of the Defendant
THE DEPUTY JUDGE:
This is a claim for judicial review, brought with the permission of His Honour Judge Stephen Davies on 16th May 2013. At issue in the claim is the lawfulness of a remission warrant, made for the Secretary of State by Mr Buckle in the relevant department at the Ministry of Justice, and issued on the 15th October 2012 under section 50(1) of the Mental Health Act 1983. The warrant of remission directs that the claimant be remitted from Rampton Hospital to HMP Albany on the Isle of Wight.
Section 50(1)(a) empowers the Secretary of State to direct by warrant remission, to any prison or other institution in which the individual might have been detained had he not been removed to hospital, in circumstances prescribed by Parliament. There must have been a notification, from: the responsible clinician (a term that is defined in the statute), or an approved clinician, or the appropriate Tribunal (which I interpose is the First-tier Tribunal).
The statutorily required notification to the Secretary of State can be on one or both of two bases. Firstly, that the person (being a person in respect of whom a transfer direction has been given) no longer requires treatment in hospital for mental disorder. Secondly, that no effective treatment for his disorder can be given in the hospital to which he has been removed.
The claimant is a tariff-expired life sentence prisoner who in November 1979 was imprisoned under the sentence of the court having been convicted of manslaughter (on the grounds of diminished responsibility), rape and burglary. In September 2004 he was assessed as having a psychopathic disorder, within the meaning of the 1983 Act.
In February 2005 the Secretary of State exercised the power conferred in section 47(1) of the 1983 Act and directed that the claimant be transferred by warrant to hospital. The trigger for that transfer from prison to hospital was that the requisite "at least two registered medical practitioners" had concluded in reports: that the claimant was a person suffering from mental disorder, that the mental disorder from which he was suffering is of a nature or degree which makes it appropriate to be detained in a hospital for medical treatment, and that appropriate medical treatment was available for him. In those circumstances the Secretary of State had a discretion to direct transfer to hospital, if the Secretary of State was of the opinion, having regard to the public interest and in all the circumstances, that it was expedient so to do. The Secretary of State was satisfied and the claimant was duly transferred and took up a place in the DSPD unit (that is Dangerous and Severe Personality Disorder Unit) at Rampton Hospital.
In 2008 the claimant's care team had raised the question of transfer from high security hospital placement at Rampton, to a lower security hospital placement. That question of transfer, from higher to lower security hospitals — through what is sometimes described as a gate or gateway — came to be pursued further in 2011. That was the context in which the claimant's case came before the First-tier Tribunal, Health Education and Social Care Chamber at an oral hearing on 20th and 22nd March 2012. There had been previous determinations in his case by the Tribunal.
In this case the trigger for a section 50 remission warrant was a notification under section 50(1) by the responsible clinician, Dr Matambike. His request, originally dated 11th January 2012, recorded that in his view both of the two statutory conditions for remission were satisfied, that is to say treatment in hospital for mental disorder was no longer required by the claimant and in any event effective treatment for his mental disorder could not be given in the hospital to which he had been removed.
Transfer of the claimant back to prison was opposed by the claimant and on his behalf by his representatives. On his behalf what was put forward was a transfer through the gateway from higher to lower security hospital placement and treatment in a medium secure unit. But, in any event, what was opposed by him and on his behalf was transfer back to prison.
Many clinicians have considered the claimant's case over the years. Some of them have modified their positions over time and there are several respects in which there has been and remains disagreement between them.
In essence the claimant's case, as it seems to me, is as follows. He says, ably represented before me by Amanda Weston and Leonie Hirst together with their very experienced instructing solicitors: that there was a cogent case of necessity of treatment of the claimant in hospital; that there was a cogent case as to the appropriateness of such treatment; that such treatment continued to be required by him; and that effective treatment continued to be available to him. It is submitted on his behalf that those questions were conscientiously and independently evaluated by the Tribunal, at its two day oral hearing, preceded by two examinations by the Tribunal medical member and with detailed consideration of all relevant available written evidence. That included the evidence of the relevant clinicians who had assessed the claimant, and of others who could comment in relevant ways as to his position. It included oral evidence from the responsible clinician, Dr Mathambike, but also other expert clinicians including Dr Bradley and Professor Maguire. The claimant submits that the Tribunal's closely reasoned determination strongly vindicates the points that were advanced on his behalf and arrived at powerfully reasoned findings: as to the appropriateness and need for continued treatment in hospital for mental disorder, which could effectively be provided in hospital, and which undermined the responsible clinician's provisional conclusions (as they then were) as to the conditions for a section 50(1) remission warrant.
The claimant submits that in circumstances where the Tribunal had made its clear and conscientious findings, the Secretary of State acted unlawfully and unreasonably and contrary the claimant's human rights under ECHR Articles 3 and 5: in departing from the Tribunal's findings; in relying on the views of the responsible clinician which disagreed with the Tribunal's findings; and in doing so in circumstances where there were no very weighty reasons, indeed no good reasons, for doing other than accepting the findings of the Tribunal.
The claimant says the Secretary of State ought not to have taken action which was inconsistent with those findings absent very weighty reasons or at least good reason, and absent material new evidence.
What flows from the claimant's submissions is that the warrant was, he says, unlawful. It was unreasonable. It violated ECHR Article 5(1)(e) in depriving him of a suitable therapeutic environment. It violated his ECHR Article 3 rights in depriving him of requisite medical assistance. It also denied him a real prospect of progress and in turn of effective ongoing review under ECHR Article 5(4). Because of the particular risks of harm, it exposed him to ECHR Article 3 harm including avoidable distress and hardship not inherent in a deprivation of liberty.
The Secretary of State's decision, says the claimant, is one which would not be justified and one which rested on reasons which cannot withstand scrutiny as being legally adequate.
I am unable to accept those submissions in the circumstances of this case. I am satisfied, with the assistance of counsel and solicitors for the claimant and counsel Miss Wheeler for the Secretary of State, having endeavoured with their assistance to give this case the most anxious scrutiny: that the warrant and the reasons for it and the process which preceded it were in the circumstances of this case lawful; and that there is no basis on which I can, in the exercise of my supervisory jurisdiction, interfere with the Secretary of State's decision.
In giving my reasons for that conclusion, I will analyse the case by looking at the sequence of events and considering the submissions that arise out of them.
The original request for a section 50 remission warrant to prison had, as I have already said, been contained in Dr Matambike's 11th January 2012 request document. That request was itself supported by a report which accompanied it. The report, described as an "addendum report" was dated 20th December 2011. It extended over 40 pages and set out the background. It considered progress at Rampton and the ongoing treatment which had been focused, in conjunction with the 2005 transfer, on offending related treatment. It considered progress since admission and set out opinions and recommendations including as to appropriateness of detention. Giving his opinion as the responsible clinician, the report said that the claimant's mental disorder was not of a nature or degree that made it appropriate for him to continue to be detained in hospital for treatment, on the basis of the completion of treatment which he had undergone, and the opinion that further sex offender treatment was very unlikely to have a positive influence on his risk of re-offending. The...
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R (Pendlebury) v Secretary of State for Justice [Administrative Court]
...EWHC 3613 (Admin)" class="content__heading content__heading--depth1"> Neutral Citation: [2013] EWHC 3613 (Admin) Administrative Court, Judge: Recorder Fordham QC (sitting as a Deputy High Court Judge) CO/366/2013 R (Pendlebury) and Secretary of State for Justice Appearances: A Weston and L ......