R v Secretary of State for the Home Department, ex parte Harry
| Jurisdiction | England & Wales |
| Judgment Date | 08 April 1998 |
| Date | 08 April 1998 |
| Court | Queen's Bench Division |
Queen's Bench Division
Before Mr Justice Lightman
Mental health - transfer to less secure hospital - Minister's duty to act fairly
The Secretary of State for the Home Department was not obliged to implement the recommendations of a Mental Health Review Tribunal when deciding, pursuant to sections 17 and 19 of the Mental Health Act 1983, whether to consent to the transfer of a mentally disordered patient, who was subject to a restriction order, to a less secure hospital.
If the secretary of state was not fully satisfied with the findings of the tribunal, he was not only entitled but bound to seek further advice and
information from other sources, in particular the Advisory Board on Restricted Patients, before coming to his own conclusion.
He was, however, under an obligation to act in a procedurally fair manner by, inter alia, making available to the patient the board's advice, and giving the patient an opportunity to make representations to him on the matter.
Mr Justice Lightman, sitting as an additional judge of the Queen's Bench Division, so held in a reserved judgment when considering the application of James Harry for judicial review of the secretary of state's decision: (i) to refer his case to the Advisory Board on Restricted Patients notwithstanding the recommendation of transfer already made by the tribunal; (ii) to refuse consent to transfer him and (iii) to deny him the opportunity to make informed representations to, inter alia, the secretary of state. The application succeeded in part.
Mr Richard Gordon, QC and Mr Paul Bowen for the applicant; Mr David Pannick, QC and Mr Pushpinder Saini for the secretary of state.
MR JUSTICE LIGHTMAN said that the applicant was subject to a restriction order and was detained in conditions of maximum security at Broadmoor Special Hospital.
A tribunal having conducted a full hearing made a recommendation to the secretary of state that there should be a transfer from Broadmoor to conditions of less security at Shaftesbury Regional Secure Unit, since the applicant had recently improved.
The secretary of state thereafter referred the applicant's case to the board which carried out certain limited inquiries and, without disclosing the result of those inquiries to the applicant, gave the secretary of state advice to the opposite effect.
The secretary of state, without disclosing that advice or...
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