R (RH) v Ashworth Hospital Authority
| Jurisdiction | England & Wales |
| Judgment Date | 30 October 2001 |
| Date | 30 October 2001 |
| Court | Court of Appeal (Civil Division) |
[2001] EWHC Admin 872
Court and Reference:Administrative Court ; CO/41/2001
Sir Christopher Bellamy QC (sitting as a Deputy Judge of the High Court)
Appearances:R Jay QC and F Morris (instructed by Hogans) for H; J Howell QC and O Thorold (instructed by Reid Minty) for Ashworth
Whether the hospital policy of not allowing condoms to be issued to patients was lawful in light of the European Convention.
RH, a carrier of hepatitis C who states that he is a practising homosexual, is detained at Ashworth Hospital, one of the 3 high secure hospitals in England. He challenged the policy of the hospital not to issue condoms, even on prescription, arguing that it was irrational because it breached the duty to protect the health of patients by preventing the spread of infectious diseases; he alleged that, even though the hospital had a no-sex policy, some patients did engage in sexual conduct. He also argued that there was an unlawful fettering of discretion because of the absence of exceptions to the policy.
Further, he argued that the policy breached Arts 2 and 8 European Convention. The breach of Art 2, the right to life, arose from the risks of unprotected sex. It was argued that Art 8, the right to respect for private life, under which the State owes positive obligations to ensure the effective protection of the rights, included a right not to be subjected to the risk of sexually transmissible diseases; and that RH should be allowed to avoid a situation where he exposed others to risk of infection.
The hospital argued that the legality of the policy had to viewed in the context of its functions (to treat dangerous patients, many of whom had committed sexual offences or had been the victims of sexual abuse), the regime of security required, including the necessary high levels of observation, and its no-sex policy (which was not challenged). It submitted that RH was an unreliable witness, and that it was unlikely that sexual activities could take place; and that the risk of infection was miniscule because only a small number of patients were infected with hepatitis and none with HIV. It was submitted that the no condoms policy supported the no-sex policy, and was necessary because of the security risk that condoms present in relation to the secretion of prohibited items.
The hospital further submitted that the policy did not breach Art 2 because of the absence of any real risk, which also meant that there was no breach of Art 8 arising from risk; and that the denial of a condom did not in itself constitute an interference with the exercise of the right to respect for a patient's private and family life. It was submitted that the hospital had struck a fair balance between the interests of the individual and the community, and due deference should be given to its judgment, as the primary decision maker. It was noted that the policy could be reviewed if the risk of infection increased.
The Issue
1. The claimant, RH, is a patient detained under s. 3 of the Mental Health Act 1983 at Ashworth Hospital. He has been diagnosed as suffering from a psychopathic disorder. A "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned (s1(2) of that Act). A person suffering from such a disorder may only be admitted to treatment if such treatment is likely to alleviate or prevent a deterioration of his condition (s3(2)(b)).
2. Ashworth Hospital is one of 3 special hospitals (the other 2 being Broadmoor and Rampton) established under s. 4 of the National Health Service Act 1977 for persons so detained who in the opinion of the Secretary of State require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. The defendant, Ashworth Hospital Authority, is responsible on behalf of the Secretary of State for the provision of high security psychiatric services at Ashworth Hospital pursuant to regulations made under that Act.
3. The claimant is a carrier of hepatitis C and states that he is a practising homosexual. In this application for judicial review he challenges one (but only one) of the defendant's Hospital Patients' Relationship Policy, namely the policy that condoms are not issued.
4. The challenge is mounted on 3 grounds (i) it is illegal because it admits of no exceptions; (ii) it is irrational; and (iii) it is in breach of Arts 2 and 8 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention").
The Admission Criteria at Ashworth Hospital
5. The kind of patients for whom Ashworth Hospital is appropriate is illustrated by the following extracts from the hospital's Admissions Criteria:
"(3) Dangerousness
The high levels of care and observation at Ashworth Hospital can only be justified when the highest levels of security are required, and a lesser degree of security would not provide a reasonable safeguard to the public. It is an unacceptable infringement of a patient's civil rights to detain them in a higher level of security than they require. The special security available within Ashworth Hospital is of such a kind and degree to detail patients who, if at large, would present a grave danger to the public and who could not be safely contained within the security available at a regional secure unit.
Factors the Admission Panel Consider
In considering what represents grave danger requiring conditions of special security, one or more of the following factors, in addition to mental disorder, must be present before admission to Ashworth Hospital can be contemplated.
a. Serious unprovoked or random assaults on members of the public.
b. Serious sexual assaults on members of the public.
c. Aggressive feelings towards a particular person which, in the absence of that person, may be replaced by serious violence to others (displaced aggression).
d. Psychotic symptoms involving specific people which could lead to violent acts against them.
e. Arson.
f. The use of poison or drugs to cause harm to others.
g. Persistent, scheming, determined absconding. …
h. Sadistic behaviour.
i. Use of firearms, knives, explosive devices, missiles and other weapons.
j. Hostage taking.
This list is not meant to be exhaustive, nor should it be used simply as a checklist. Each case is considered on its own merits, taking full account of patterns of behaviour including escalation of dangerousness and such clinical factors as the presence of sadistic sexual fantasies with an inclination to act on them."
The Patients' Relationships Policy
6. The defendant's Patients' Relationships Policy was adopted in October 2000. I quote it as fully as necessary:
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1. Aim and Objectives
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1.1 Patients are admitted to Ashworth Hospital to be treated for mental disorder in conditions of high security as they are considered to present a grave and immediate risk to others. The Hospital has certain statutory functions and implied responsibilities, and it is necessary to have the Patients' Relationship Policy as set out below.
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1.2 This policy provides for the management of relationships between patients and between patients and visitors in Ashworth Hospital. It aims to:
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(i) Clarify what behaviour is defined as acceptable and unacceptable within relationships between patients and between patients and visitors.
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(ii) Provide a framework of procedures to manage relationships and their consequences.
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(iii) Provide a framework of accountability and clinical practice which ensures that direct care staff are supported in working to the hospital policy.
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(iv) Apply the Policy consistently across the Hospital.
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2. Definition and Scope
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2.1 The relationships addressed by this policy are defined as attachments between 2 persons of the same or opposite gender that may or may not include the following qualities: feelings of love, specialness, caring, exclusivity, romance, sexual attraction, secretiveness. These qualities may be unevenly shared between the 2 parties. This policy is intended to address issues which may result from relationships between patients and between patients and visitors.
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3. Principles
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3.1 Forming relationships is a normal human activity. The importance of relationships must be recognised.
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3.2 By the nature of the policies and procedures that are necessary the hospital environment imposes restrictions on individual patient's privacy, on the time that the patients may spend together and the availability of appropriate partners.
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3.3 Patients come to the hospital with a range of disorders and problems related to their mental health. Some patients have histories of offences or behaviours involving sexual and/or physical violence, abuse, exploitation, intimidation. There are also patients who have been the victims of such violence, abuse, exploitation, intimidation and continue to be vulnerable.
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3.4 Previous experience within Ashworth Hospital has demonstrated the adverse consequences of sexual relationships between patients and the risks associated with sexual relationships.
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3.5 The hospital will operate a no sex policy.
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3.6 This policy also promotes an environment which aids in the prevention of the transmission of blood borne viruses.
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3.7 In order to manage relationships it is essential that the issues raised by intimate relationships and the sexual feelings of patients are not avoided but openly and sensibly addressed so that patients and staff must be consistent in their approach to relationships and must be made aware of the dangers of inappropriately expressing moral or ethical opinions or beliefs towards patients which are inconsistent with hospital policy.
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3.8 Staff who work...
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