R (SP) v Secretary of State for Justice [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 2010 |
| Date | 12 February 2010 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/9094/2009
Burnett J
H Southey (instructed by RMNJ) for SP; G White (instructed by Treasury Solicitor) for the Defendant.
Whether a transfer direction under s47 Mental Health Act 1983 was lawful in light of the failure of one doctor providing a report to express the view that appropriate treatment was available.
SP was sentenced to 7 years' imprisonment in August 2004 for arson and driving offences, including causing death by dangerous driving. Under the relevant early release provisions, he was due to be released on licence on 18 December 2008. On 8 and 10 December 2008, 2 medical reports were completed that recommended SP's transfer to high secure hospital conditions under s47 Mental Health Act 1983. One of these reports, by Dr E, was on a pro-forma that reflected the criteria of s47, and set out the view that SP had a mental disorder, that it was of a nature or degree making detention in hospital for
medical treatment appropriate and that appropriate medical treatment was available; reasons were given. The other report, by Dr P, a prison psychiatrist, was on an out-dated pro-forma: it recorded that SP was suffering from psychopathic disorder, that it was of a nature or degree making detention in hospital for medical treatment appropriate, and that it was treatable: this reflected the criteria arising under s47 prior to its amendment by the Mental Health Act 2007. She also gave reasons for these conclusions, including noting that SP's psychopathy and behaviour had excluded him from treatment programmes in prison and so a high secure hospital with a unit for patients with dangerous and severe personality disorders was the place for his treatment. On 9 December 2008, Rampton Hospital, a high secure hospital, confirmed that a place was available for DP.
On 11 December 2008, the Secretary of State made a transfer direction under s47 to Rampton Hospital. In a witness statement, the relevant official indicated that she was satisfied of the statutory criteria in light of the medical reports and the other evidence confirming that DP was dangerous, and the confirmation that treatment was available. The effect of the transfer was that DP was detained as if a hospital order had been made in his case under s37 of the 1983 Act, and so was not released on 18 December 2008. The transfer decision was challenged by judicial review on the basis that, as the medical report from Dr P had not dealt with the "appropriate treatment" criterion that was added to s47 by the 2007 Act, the Secretary of State did not have available the necessary 2 medical reports setting out the view that the criteria for a transfer were met.
1. This application for judicial review seeks to challenge the Secretary of State's transfer direction given under s47 of the Mental Health Act 1983 ["the 1983 Act"] authorising removal of the claimant from prison to Rampton Hospital on 11 December 2008. The hospital, although served very late with these proceedings, has indicated that it wishes to play no part.
2. On 12 August 2004 the claimant was sentenced to 7 years' imprisonment in respect of offences of arson, aggravated vehicle taking, driving whilst disqualified and causing death by dangerous driving. This was a sentence that predated the implementation of changes made to the mechanisms for release by the Criminal Justice Act 2003. For that reason the claimant was due to be released on licence on 18 December 2008.
3. It is common ground that the claimant suffers from a mental disorder for the purposes of s47 of the 1983 Act. He was also considered to be dangerous. Steps were taken in the months leading to his transfer to secure a place at Rampton. It was that process which culminated in the decision under challenge. Mr Southey, who appears for the claimant, submits that the transfer direction was unlawful because, having regard to the statutory criteria of which the Secretary of State must be satisfied, the available medical evidence was inadequate. Section 47 of the 2003 Act as material provides:
"(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners:
(a) that the said person suffering from mental disorder; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(c) that appropriate medical treatment is available for him,
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as 'a transfer direction'.
(2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction.
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case."
4. It is unnecessary to read the balance of the section. This was the version of s47 in force at the time that the material decision was made. On 3 November 2008 this version replaced an earlier form of s47 which was considered by the Court of Appeal in R (TF) v Secretary of State for JusticeMHLR
[2008] MHLR 370, upon which Mr Southey relies. The section has now been superseded by further changes in legislation with effect from 30 October 2009. The reference in s47(3) to a transfer direction having the same effect as a hospital order made under s37 carries with it 2 consequences which should be noted. The first is that, by virtue of s40 and Sched 1 Part 1 of the 1983 Act, following a transfer the patient is subject to the limitations and renewal provisions found in s20 of the 1983 Act. There is no material before me of the detail of the claimant's detention since December 2008. However, he remains detained at Rampton. The inference is that the authority for detention has been renewed under s20. The language of that section is of "renewal" so, as was accepted by...
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