P, R (on the application of) v Mersey Care NHS Trust (Ashworth Hospital) & Ors

MR JUSTICE RICHARDS: The claimant, who by order of the court is to be referred to as P, is detained at Ashworth Hospital in conditions of high security pursuant to a restriction order made under the predecessors to sections 37 and 41 of the Mental Health Act 1983. His index offences were offences of manslaughter and rape of a 14-year old girl in 1972, which followed a history of previous offending. He was diagnosed as suffering from a psychopathic disorder. He has been detained in high security hospitals ever since, save for a brief and unsuccessful move to medium security in 1996. There is no challenge to his continuing detention.

A Mental Health Review Tribunal on 25 July 2002 decided that he should not be discharged. In the evidence before it there was agreement that the claimant posed a high risk of re-offending. The Tribunal recommended, however, that the claimant should be given the opportunity of trial leave in conditions of medium security at Chadwick Lodge. That recommendation has not been implemented. The claimant's RMO is at present opposed to the move, though the matter is said to be still under investigation. The Secretary of State, whose consent is required in any event, has decided that a move would be inappropriate. The present challenge is against the managers of Ashworth Hospital, the RMO and the Secretary of State, for failing to implement the recommendation.

In addition to a claim for judicial review, there is a claim under section 7 of the Human Rights Act 1998. A potential question is whether those are separate remedies and, if so, whether permission is needed under section 139(2) of the 1983 Act for the section 7 claim to proceed against the RMO.

Stanley Burnton J refused permission on the papers, holding that the relevant decision of the Secretary of State (to which I will come) was not arguably perverse, that adequate reasons were given, and that the Secretary of State was under no legal duty to comply with the Tribunal's recommendation. On a renewed application Crane J identified four questions and adjourned their determination to a half-day hearing.

The claimant's counsel, Mr Bowen, subsequently indicated that the section 7 claim would be withdrawn if permission were not granted to apply for judicial review. On that basis and in line with the time-estimate that he had supplied, the matter was listed before me for a short permission hearing this morning. In the event, it has taken far longer than estimated, and, given the nature of the arguments advanced, it is plain that that was a substantial underestimate.

The first question to be addressed is whether permission should be granted for judicial review. If permission is not granted, all else falls away; if permission is granted, it will be necessary to consider at some point the further questions raised.

In summary, the legal framework is as follows. There is a power exercisable by the RMO under section 17 of the 1983 Act to grant a patient leave of absence from the hospital where he is detained. There is a power under section 19 as to the transfer of patients. In the case of a restricted patient the exercise of powers under sections 17 and 19 requires the consent of the Secretary of State. The Secretary of State also has a separate power under section 123 to direct the transfer or removal of patients in special hospitals. It has been held that the Tribunal has no statutory function in relation to the making of recommendations as to transfer where the patient is a restricted patient: see R (Home Secretary) v Mental Health Review Tribunal [2000] 63 BMLR 181 at 186, paragraphs 23 and 24. That reflects the fact that the relevant power has been vested by Parliament in the Secretary of State. In R v Home Secretary ex parte Harry [1998] 1 WLR 1737 at 1746, Lightman J held that Parliament has not conferred upon the Tribunal any role upon the issue of transfer; it is the Secretary of State and not the Tribunal who is by statute entrusted with the task of deciding whether to give consent.

I shall come back in a moment to Mr Bowen's submissions as to the implications of Article 8 of the European Convention on Human Rights for the legal position established in those earlier authorities.

The factual background is summarised conveniently in the reasons given for the Tribunal's decision:

The Tribunal then set out the arguments for and against transfer to conditions of lesser security, noting as one of the arguments against transfer the risk that if transferred P would not engage in treatment because he does not believe that he needs further treatment and therefore would become frustrated and a management problem and a physical risk to the staff. The Tribunal said that before addressing the counter-arguments they wanted to say a little about the evidence concerning the various risk assessment tests that had been conducted. They did not think it worthwhile to evaluate their various results, because both psychologists concerned agree that P posed a high risk of re-offending. The Tribunal went on:

The position of the managers and RMO is that the question of move to conditions of medium security is still under investigation and no decision has yet been taken as to whether the consent of the Secretary of State should be sought, though there seems to be nothing to indicate that the RMO has changed her view as presented to the Tribunal. The Secretary of State had made the assessment prior to the Tribunal's decision that until the claimant participated in a sex offender treatment programme, along with other programs considered appropriate by his medical team, the potential risk was too great to allow him to transfer to conditions of lower security (see the Secretary of State's letter of 23 May 2002). The Secretary of State adhered to that assessment after considering the Tribunal's decision and recommendation (see the letter of 20 August 2002).

The case advanced against the hospital managers and RMO is that they have unlawfully failed to exercise powers under sections 17 and 19, and have failed to trigger the process of leave of absence or transfer by making a recommendation to the Secretary of State that the powers be so exercised.

The case against the Secretary of State himself is that he has unlawfully failed to exercise his powers under section 123, though it is recognised that, since he holds the ultimate veto under sections 17 and 19, his stance in relation to section 123 is also critical to the exercise of powers under sections 17 and 19.

It is accepted that, if Article 8 is not engaged, the existing authorities, including in particular ex parte Harry, are decisive against the claimant. The submission, however, is that the legal position is transformed by the operation of Article 8.

It is submitted by Mr Bowen that detention in conditions of high security rather than medium security constitutes an interference under Article 8(1) and that the burden shifts to the defendants to justify that interference under Article 8(2). They cannot, however, establish such justification in circumstances where the Tribunal, having heard all the evidence, have held that on balance there should be trial leave.

It is accepted that the judgment must ultimately be that of each of the defendants, but it is said first, as I understand it, that the recommendation made by the Tribunal appointed to investigate the matter is effectively binding upon the defendants in that they cannot lawfully depart from it unless it can be shown that there has been a further and better investigation that justifies a different result. If the Tribunal's recommendation does not automatically have that effect, it is said that nonetheless the question whether the defendants have made an erroneous judgment is one that is to be determined by the court itself hearing the relevant evidence. This is not a case where the decision-maker has a discretionary area of judgment to which the court should defer. The issue has to be determined by the court.

Reliance is placed on R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1945, [2002] 1 WLR 419. In that case the question arose whether it was justifiable forcibly to administer treatment against the will of the patient in circumstances where the medication might endanger his life. It was held that the court was entitled to reach its own view as to whether the treatment infringed the patient's rights, and that in such a case the court should hear evidence and cross-examination for the purpose of reaching its own decision. Mr Bowen submits that the context was one of the exercise of statutory power as to treatment, and that there is a proper analogy with the present case.

In support of the prominence that he gives to the recommendation of the Tribunal, Mr Bowen refers to certain material, including what is described as the Tilt Report, a Report of the Review of Security at High Security Hospitals, dated February 2000, where it is stated to be inappropriate for patients who can safely be accommodated in less secure conditions to remain in a high security setting for lengthy periods. He also refers to the report of the Richardson Committee on a review of the Mental Health Act 1983, at paragraph 15.2, in which criticism is made of the system which leaves decisions on transfer in the hands of the executive rather than an independent tribunal.

In addition, Mr Bowen cites Hatton v The United Kingdom [2002] 34 EHRR 1, where at paragraph 97 the court underlines the point that, in striking the balance under Article 8, States must have regard to the whole range of material considerations and a proper and complete investigation is required. Mr Bowen submits that in summary the State must have substantial evidence to justify an interference in this case, that the means used must be no more than is necessary to justify the objective and that a proper investigation must be carried out. Here he says there was no investigation beyond that carried out by the Tribunal which produced its recommendation as set out in the decision, and there is no proper basis for reaching a conclusion different from that reached by the Tribunal.

For the hospital managers and the RMO, Mr Bodnar submits that the recommendation here was in fact a very limited recommendation: it was not a recommendation of immediate transfer, and it was recognised that it was not binding on the Secretary of State. He submits that the Tribunal were thereby making clear that they were not exercising a judicial function. The Tribunal did not find that the claimant was not appropriately detained at Ashworth, but only that he should be given an opportunity of trial leave. Mr Bodnar stresses that the proposed trial leave was an experiment and related only to the exercise of the power under section 17. Thus he submits the wider basis of the claimant's case falls away.

Mr Bodnar further submits that under section 17 the relevant judgment has to be made by the RMO, who is given the statutory discretion as to leave of absence subject to the consent of the Secretary of State. The claimant's case, it is submitted, if accepted, would have the effect of fettering the RMO's discretion to the point where it was non-existent.

Mr Bodnar refers to Re Cummings [2001] EWCA Civ 45, [2001] 1 WLR 822, and R (Brandenberg) v East London and City NHS Trust [2001] EWCA Civ 239, [2002] QB 235, for what he submits to be analogous situations where it was held that recommendations or decisions made by the Parole Board and Mental Health Tribunals respectively were not binding on the decision-maker; they were matters to be taken into account as relevant considerations rather than determinative. So too in the present case he submits the Tribunal's recommendation was a matter to be taken into account rather than decisive. He accepts there may be circumstances where the court has a role in determining the substantive issue of compliance with Article 8. That cannot be so here, however, he submits, because no decision has yet been taken by his clients, the matter is still under investigation, there is nothing yet to review and it cannot be said that the court should have the kind of role for which the claimant contends.

For the Secretary of State Mr Chamberlain reminds me, first, of the fact that the Tribunal had no statutory locus to make a recommendation: the relevant power vests in the Secretary of State, as held in the earlier authorities. He points out that the Tribunal took upon itself a weighing exercise but did not reject any of the clinical findings in the evidence before it. He submits that the Secretary of State is not only entitled, but also bound, to carry out his own weighing exercise in order to reach a judgment of his own. In circumstances where the balance was found by the Tribunal to be finely drawn it makes it all the less appropriate for the court to interfere.

As to Wilkinson, it is submitted that was a very different case involving forcible treatment that would amount to tortious conduct unless justified; the role that the court considered appropriate in that case was understandable in those circumstances but the reasoning does not apply across to the present context.

In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Article 8 rights.

Who is to decide that question of risk? That is really the stark issue raised by Mr Bowen's submissions. Is it the persons upon whom the statutory powers have been vested by Parliament? Is it the Tribunal or the court? In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision-maker.

The process contemplated in Wilkinson in hearing expert evidence, including cross-examination, which is the process that the claimant invites the court to adopt in the present case, seems to me to relate to a very different context. This is a situation where the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court's role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence.

I refer to decisions and decision-makers because, although it is said on behalf of the hospital managers and the RMO that no decision has yet been reached, it is plain that the Secretary of State at least has reached a conclusion on the evidence presently available that a move to conditions of medium security is not appropriate.

The view I take does not render the Tribunal's recommendation pointless. It is an important input, but it is not determinative. It remains the position that those upon whom the statutory functions have been placed have to reach their own judgment of the matter. In this case there has been full investigation and there is a substantial body of material available for the purpose of reaching the requisite judgment. Although the Tribunal reached one view in making its recommendation, it acknowledged the finely balanced nature of the exercise; it did not reject any of the evidence before it. But I think it plain that the Secretary of State and those responsible for exercising the other relevant statutory powers have to reach their own judgment in the matter and are not bound by the Tribunal's recommendation. Nor is the role of the court to go through the same process and reach a judgment of its own.

In the light of the factual circumstances of this case I am satisfied that the conclusion which has been reached by the Secretary of State, and the stance that appears to be adopted by the RMO even though no formal decision has been reached, are properly open to them. The contrary, in my judgment, is not arguable, and permission is therefore refused.

I should make clear that the question whether decisions on transfer should be in the hands of those persons or should be vested in an independent body as recommended by the Richardson Committee in November 1999 is a separate question which is not raised before me. The challenge is not one to the lawfulness of the statutory scheme. I am concerned with the application of Article 8 within the framework of that scheme.

For the reasons I have given I have reached the conclusion that Article 8 does not alter the legal position as established in the previous authorities.

MR BOWEN: My Lord, I am very grateful for the very detailed and considered judgment you have given, and may I ask, therefore, that before those advising the claimant were to take the decision as to whether it would be appropriate to renew this application - because plainly there are important issues at stake here - it would be appropriate for us to consider that matter carefully.

MR JUSTICE RICHARDS: Do you want an expedited transcript?

MR BOWEN: Not an expedited transcript, my Lord, I would like to extend the time for appealing ---

MR JUSTICE RICHARDS: 28 days.

MR BOWEN: 28 days, please.

MR JUSTICE RICHARDS: Is there any objection to that?

MR BODNAR: My Lord, no.

MR CHAMBERLAIN: No.

MR JUSTICE RICHARDS: I will extend the time for appealing to 28 days.

MR BOWEN: I am obliged. Can I have detailed assessment of my community legal service funding?

MR JUSTICE RICHARDS: You may.

MR BOWEN: And can I just apologise again for my wholly inadequate time estimate.

MR JUSTICE RICHARDS: It was pretty well a half day in the end.

MR BOWEN: I do apologise.

MR JUSTICE RICHARDS: It is not just to the court, but to the others appearing in this court.

MR BOWEN: I extend it to them also.

MR BODNAR: My Lord, I am sorry to be on my feet, there is an issue as to the costs of the hospital. This is one that has raised its head in a number of cases. Your Lordship will have seen from the points of objection that the hospital has had to resist a number of pieces of litigation from this claimant. The order that we seek is an order for costs not to be enforced save by way of set-off against any future award of costs in the claimant's favour against the hospital.

MR JUSTICE RICHARDS: I see.

MR BODNAR: It is a costs order that is sometimes made by agreement. It appears to have been made -- regularly under the carpet, as it were, it is time the issue was resolved. I do make that application today.

MR JUSTICE RICHARDS: What do you say about that, Mr Bowen?

MR BOWEN: My Lord, Mr Bodnar will recall no doubt the occasion when we went to the Court of Appeal on this same point and unfortunately it was not resolved on that occasion. I think the simplest thing for me to say is I will not object to it save to say that I reserve -- I do object to it but I recognise that this is not an appropriate time to be arguing all the points that there are to be made.

MR JUSTICE RICHARDS: I know nothing about the history of this, save for the brief references that I have seen in papers, which I really have not taken in.

MR BOWEN: As I say, the first time I was aware the application was being sought was this morning when I came to court when I read my learned friend's skeleton.

MR JUSTICE RICHARDS: One has the point that under the Practice Direction defendants who appear at the oral hearing on a renewed application will not generally get their costs. It is still a question for the discretion of the court. It may be said in this case the position has been set out in the acknowledgment of service and indeed the court did not get any prior assistance from counsel because the skeleton argument only arrived at the moment I was going into court. You may say that in these circumstances you would resist the application for costs, full stop.

MR BOWEN: I do on that basis, my Lord.

MR JUSTICE RICHARDS: Well on that basis I accede to your submission. I will make no order as to costs.

MR BOWEN: I am obliged, my Lord.

MR JUSTICE RICHARDS: Thank you.