R YZ v Oxleas NHS Foundation Trust and Another
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ,Lord Justice Underhill,Lady Justice Hallett |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWCA Civ 203 |
| Docket Number | Case No: C1/2015/3208,C1/2015/3208 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 March 2017 |
[2017] EWCA Civ 203
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
McGowan J
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lady Justice Hallett
and
Lord Justice Underhill
Case No: C1/2015/3208
Richard Gordon QC and Susanna Rickard (instructed by Richard Charlton Solicitors) for the Appellant
Fenella Morris QC (instructed by Capsticks LLP) for the 1st Respondent
Vikram Sachdeva QC (instructed by Bevan Brittan) for the 2nd Respondent
Hearing dates: 12 & 13 December 2016
Judgment Approved
Introduction and summary
This case involves a challenge by way of judicial review to the decision made by a psychiatrist at the Oxleas NHS Foundation Trust (Oxleas), the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital (operated by the second respondent to whom I shall refer to as Broadmoor) and the decision of Broadmoor to accept him. Both decisions were made finally in March 2015.
The claimant was convicted on his guilty plea in April 2010 of an offence of causing grievous bodily harm committed when he was 15 years and 11 months on 17 March 2009 against a 12 year old boy. On 1 October 2010, he was sentenced to a hospital order with restrictions under ss.37 and 41 of the Mental Health Act 1983 (MHA 1983) on the basis that he suffered from complex mental health problems, including paranoid schizophrenia, emotionally unstable personality disorder and anti-social personality disorder.
He challenged the decision made to transfer him to Broadmoor on the basis that it was unlawful and in breach of his rights under the European Convention on Human Rights. He contended that he should have been transferred to a Medium Secure Unit.
An order for anonymity of the claimant was made by the first judge to consider the case. Despite the fact that there is a clear public interest in the public knowing how a person the subject of a hospital order with restrictions has been treated in the course of his sentence, there are issues relating to the claimant's transgender status which explain the making of the order after balancing the relevant considerations (as explained by the Supreme Court in R(C) v Justice Secretary [2016] 1 WLR 444). As the anonymity order in respect of the claimant has not been challenged by the respondent health trusts, I do not consider in the particular circumstances of this case that the court should set aside the order for anonymity of the claimant of its own motion. As raised at the hearing, there is no need to continue the anonymity order in respect of the trusts and the doctors of the hospital at which the claimant was treated.
The challenge to the decision to transfer came on for hearing by way of a rolled-up hearing for judicial review on 21 May and 2 June 2015. On 2 June 2015 the judge, McGowan J, refused permission, giving her reasons subsequently in a short but entirely persuasive and compelling judgment.
In consequence on 3 June 2015 the claimant was admitted to Broadmoor Hospital.
On 18 September 2015 following on from a further conviction in October 2014 for assault by beating and assault occasioning actual bodily harm, the claimant was made subject to a further hospital order under s.37/41 of the MHA 1983 which expressly placed him in Broadmoor.
The claimant applied for permission to appeal and/or permission for judicial review. Permission for judicial review was granted by the single Lord Justice on 14 January 2016. He held that the grounds as put before him were reasonably arguable and because the Administrative Court had refused permission following a "rolled up" hearing, at which the substance of the claim was fully argued, special reasons existed for the proceedings to be retained in this court.
It is important to note that in the meantime the claimant remained at Broadmoor where he has been treated with a degree of success. Steps had been long in the making in arranging for his transfer for a trial period at a new Medium Secure Unit in the Midlands of England; he began that trial on the first day of the hearing before this court on 12 December 2016.
In these circumstances the further pursuit of these proceedings was entirely moot. However, despite the significant cost to court time and in fees to lawyers, we were told its continuation was justified. It was asserted that as the relief claimed before us was a declaration, it was important for others, who might suffer from transgender dysphoria, to have the decision of the court as to how anyone detained in a psychiatric hospital in circumstances similar to the claimant should be treated for the future.
The costs of these proceedings have been:
i) Claimant £65,000 (exclusive of VAT) funded by legal aid;
ii) Oxleas £58,318.08 (inclusive of VAT);
iii) Broadmoor £75,000 (inclusive of VAT).
I consider that these proceedings should never have been pursued before this court. I would dismiss them without hesitation for the reasons I will express. However, I do need to set out the facts in some detail to show how diligently the doctors and trusts concerned had tried to treat the claimant, how carefully they had taken the decisions and how wholly unjustified is the criticism to which they have been subjected. It is readily apparent that in such a case, the very substantial expenditure that the pursuit of this or similar claims entails, is a highly detrimental distraction to the proper operation of the National Health Service and has caused the expenditure of substantial sums which could and should have been used instead for the treatment of patients.
As these were proceedings brought through legal aid, the Chief Executive of the Legal Aid Agency should ensure for the future that the Agency carefully examines the circumstances in which the Agency allows such cases to be pursued, particularly to this court, given the very significant costs that the NHS incurs as a result, quite apart from the need carefully to use the small resources that Parliament has made available for legal aid. We direct that a copy of this judgment be sent to the Chief Executive.
The factual background
The claimant's early years and his criminal conviction
The claimant was born female in the first quarter of 1993 in London and initially grew up in South East London. He had a difficult childhood with periods in care and suffered from bullying and other abuse. In March 2009 he inflicted grievous bodily harm with intent to a 12 year old victim; he attacked him with a brick rendering him unconscious and leaving his body covered with leaves. The victim required facial reconstruction surgery. The claimant committed a further serious offence against a girlfriend, punching her, smashing a patio door and chasing her down a road whilst he threatened her with a knife.
In August 2009, he was admitted to secure accommodation under s. 25 of the Children Act 1989. On 13 November 2009 he was admitted to the Rycroft Unit at St Nicholas Hospital in Newcastle under the care of Dr Alison Westman, a consultant child and adolescent psychiatrist.
On 23 April 2010 he pleaded guilty in relation to the offence of causing grievous bodily harm with intent to the boy he had attacked with a brick. On 1 October 2010 at the Crown Court at Newcastle the hospital order under s.37/41 was made because of his complex mental health problems including paranoid schizophrenia, emotionally unstable personality disorder and anti-social personality disorder.
In 2010 he was diagnosed as having, in addition to complex mental health problems, gender dysphoria. Specialist advice was taken and he was supported in his desire to live his life as a man. In mid-October 2010 the claimant adopted his new name and life as a man.
It is evident from a detailed report by Dr Alison Westman dated 24 April 2012 that he continued to pose a significant risk of harm to others and continued to show a range of aggressive and violent behaviours to staff and other patients resulting in significant injuries to staff. The report stated he had been referred to the Gender Dysphoria Service at the Charing Cross Hospital, London.
The transfer to the Bracton Centre
As the claimant was the responsibility of the Greenwich PCT he was referred to the Bracton Centre, a Medium Secure Unit, operated by Oxleas in Dartford in Kent in anticipation of his transfer there when an adult. There was some consideration as to whether he should be admitted to a male or a female adult forensic service, but in the light of advice taken by Oxleas under the Gender Recognition Act 2004, the claimant was transferred at his request to the male adult service.
He was assessed at the Rycroft Clinic, Newcastle by Dr Anhoury, a consultant forensic psychiatrist at the Bracton Centre on 26 April 2012. She was told of the instances of aggression by the claimant at the Rycroft clinic to which Dr Westman's Report had referred as I have set out; there had been none since the beginning of 2012. It was agreed he should undergo a trial period at the Bracton Centre.
On 4 June 2012 the claimant and another inpatient refused to leave a courtyard at the St Nicholas specialist unit, the Rycroft Clinic, after being requested to do so by staff and then threatened to harm staff if the response team was called. The claimant and his fellow inpatient then caused damage to the courtyard and used broken glass to threaten staff and to self-harm. The police, armed with tasers, had to be called.
With the consent of the Secretary of State for Justice, the claimant was given...
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