R v Secretary of State for the Home Department ex parte Gaynor Gilkes
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1999 |
| Date | 21 January 1999 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference:Administrative Court ; CO/114/99
Dyson J
Appearances: F Morris (instructed by Fisher Meredith) for G; T Mould (instructed by the Treasury Solicitor) for the Home Secretary.
Whether it was lawful in making a transfer direction under s. 47 Mental Health Act 1983 to rely on an assessment which was made for the purposes of s. 37 of the Act 6 weeks previously; whether it was lawful to transfer the prisoner to hospital at the end of their sentence.
G was convicted by the magistrates court of assault occasioning actual bodily harm. On 28 October 1998, before sentence, Dr A, a psychiatrist, reported that she was suffering from mental illness within the Mental Health Act 1983, which was of a nature or degree which made it appropriate for her to be detained in a hospital pursuant to s. 37 of the Act, which he recommended. However, on 2 November 1998, the magistrates sentenced her to 3 months' imprisonment. Her date of release was 17 December.
On 25 November 1998, Dr D reported in similar terms to Dr A that G's mental disorder made detention in hospital appropriate. On 3 December 1998, Dr A wrote a second report, but it was expressed on its face to be based on his previous examination of 28 October. The report of Dr D and the second report of Dr A were sent to the Home Secretary and on 11 December 1998, a direction was issued under s. 47 of the Act to transfer G to hospital, which was carried out on 17 December 1998, the day that she was due to be released from custody. Section 47 requires 2 medical reports supporting the conclusion that the prisoner should be in hospital, and the Home Secretary must conclude that the transfer is expedient.
G challenged the Home Secretary's decision as unreasonable because (i) the second report of Dr A was out of date and so should not have been relied on, and showed that her condition was fluctuating; (ii) it was prepared for the purposes of s. 37 of the Act not s. 47; (iii) the 2 reports were based on examinations separated by an unduly long time; (iv) she was transferred on her release date.
1. The applicant is 29 years of age. In late 1998, she was found guilty by the South West Magistrates' Court of an assault with intent to commit an assault occasioning actual bodily harm. On 28 October, and before sentence, she was examined by a Dr Azuonye, a consultant psychiatrist. In a report made on the same date, he stated that she was suffering from mental illness within the meaning of theMental Health Act 1983 ("the Act") and that the mental disorder was of a nature or degree which made it appropriate for her to be detained in a hospital pursuant to s. 37 of the Act. In his report, he said:
"Miss Gilkes is extremely suspicious of everyone, believes that her food is 'spiked' with drugs by the prison staff, that the staff are giving inmates injections to kill them. She believes she will be killed before the date of her court appearance, to shut her up."
2. Then under the reasons for his conclusion that the mental disorder was such as to make detention in a hospital for medical treatment appropriate he said:
"Her persecutory delusions are quite intense. She is completely insightless, and is most unlikely to accept hospital admission and treatment. Her history indicates a chaotic lifestyle of increasing paranoia."
3. Nevertheless, on 2 November, the Magistrates sentenced her to 3 months' imprisonment. Her date of release was 17 December. She was examined again on 25 November by a different psychiatrist, a Dr Doig. He wrote a report on that day, stating that he too was of the opinion that the applicant was suffering from a mental disorder which made it appropriate for her to be detained in a hospital. He wrote:
"She is notably thought disordered, paranoid and hostile. Her behaviour is compulsive and unpredictable. She talks about God and murderers in an angry thought disordered way. She appears quite severely psychotic."
4. On 3 December, Dr Azuonye wrote a second report. It was expressed on its face to be based on his previous examination of 28 October. Once again, he stated that the applicant was suffering from a mental illness which made it appropriate that she should be detained in a hospital. His report included the following:
"Miss Gilkes is very paranoid, believing that she is about to be murdered and that her food and drink are poisoned. She is extremely hostile to all comers, and extremely threatening.
Her mental state is deteriorating, and she represents an increasing risk to others. She is totally insightless, and refuses all treatment at present."
5. The report of Dr Doig and the second report of Dr Azuonye were sent to the Secretary of State. They were considered on 9 December by Mrs Goddard, the Executive Officer at the Home Office dealing with this case. She concluded that it would be appropriate to issue a transfer direction to a hospital under s. 47 of the Act on the basis of the medical reports, and that a bed at the South Western Hospital was suitable. Mrs Morris, a Grade 7 Administrator in the Mental Health Unit of the Home Office agreed with Mrs Goddard's recommendations, and on 11 December she signed a transfer direction on behalf of the Secretary of State under s. 47 of the Act...
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R (F) v Secretary of State for Justice; R (TF) v Secretary of State for Justice
...to refuse relief. 9 It seems probable that she was misled by the decision in R v Secretary of State for the Home Department ex p Gilkes [1999] 1 MHLR 6 where Dyson J (as he then was) held in relation to a decision to transfer under section 47 that it had not been reasonable for the Secretar......
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