Pendlebury, R (on the application of) v Secretary of State for Justice

"We do not support plans for the claimant to be treated in a psychiatric hospital."

That report also addressed the treatment that had taken place and considered its purpose or purposes, and the question of progress. It ultimately focused on the question of whether the claimant was a person who should be in a psychiatric hospital for treatment, reaching the conclusion that the team could not recommend transfer through the gate to the medium security hospital because it did not think hospital treatment was appropriate for his condition. They did not, and indeed said that they could not, speak for the clinicians at Rampton.

The request for a section 51 warrant was then deferred pending the upcoming hearing before the First-tier Tribunal. Whether or not it was necessary to defer the question of a warrant, it was certainly, in my judgment, proper and sensible to do so and so the Tribunal became seized of the case and considered the evidence and reached the conclusions which it set out in its reasoned determination.

The Tribunal reached the clear conclusion that the claimant ought not to be transferred to prison. It reached that conclusion by reference to treatment options which it considered were appropriate for the claimant's needs and which it felt needed appropriately to be delivered in a hospital setting. It also identified questions of risk and harm, including self-harm to the claimant, which it regarded as arising from the proposed transfer. In reaching its determination the Tribunal analysed in detail the written evidence from various individuals including several clinicians and their oral evidence.

I shall not prolong this judgment by quoting from the Tribunal’s determination or seeking to paraphrase it. What, in my judgment, is of greatest significance in the Tribunal's analysis of the claimant's case was the Tribunal's recognition that two clinicians who had reported and were giving oral evidence to Tribunal - namely Professor Maguire and Dr Bradley – were both describing forms of therapy which they considered to be appropriate for the claimant and which went beyond the offence-related therapy which he had hitherto been undergoing at Rampton. These further therapies involved what was described as treatment of the claimant's personality disorder which had been overlooked in favour of offence-related therapy. They included what was described as schema therapy or dialectical behaviour therapy (DBT), cognitive analysis therapy (CAT) and international reconstructive therapy. There was evidently some controversy before the Tribunal as to whether treatment at Rampton had been received for personality disorder. That was plainly raised by Dr Matambike and also Dr Howling and the Tribunal analysed in some detail.

In its findings and reasons the Tribunal explained why it was satisfied that the claimant suffers from mental disorder, explained the diagnosis which it accepted and gave reasons why it preferred the evidence of Dr Bradley and Professor Maguire to the views of Dr Matambike, all of whom had given oral evidence before the Tribunal. Those reasons included the experience of the clinicians and inconsistencies which the Tribunal identified in the responsible clinician Dr Mathambike's evidence.

The Tribunal then dealt with the question of risk and harm and the question of appropriate treatment, finding specifically that appropriate treatment - consisting of schema therapy, DBT and CAT - whilst currently available in Rampton Hospital could be provided to meet the patient's complex clinical needs in medium secure units experienced in treating patients like him.

The Tribunal concluded that the claimant suffers from a mental disorder of a nature and degree that makes his continued detention in hospital for treatment appropriate and that appropriate treatment is available for him in hospital and that his continued detention was necessary for his own health and safety and for the protection of others and went on to endorse Professor Maguire's view that returning him to prison would be "calamitous".

Finally, the Tribunal acknowledged that the Secretary of State had the function of issuing a section 50 warrant but urged the Secretary of State to prefer its assessment of the patients clinical needs and treatability in preference to those of Dr Matambike and to allow the claimant to continue to receive treatment for his mental disorder in hospital.

It is common ground in this case that the Tribunal had no statutory function of making a binding recommendation and no statutory function of making a binding decision as to remission. The furthest that the statute goes, in relation to remission is to provide that the Tribunal is one of the three bodies empowered to provide the statutory notification for a remission warrant transferring from hospital.

Miss Weston, for the claimant, accepts and in my judgment plainly rightly, that the Secretary of State retained the power to issue a remission warrant. Her submission is that the Secretary of State could only do so in these circumstances for good and cogent reasons, she submits very weighty reasons, and in particular - she submits - a need for fresh new materials or new information.

Hotly controversial between the parties is the question whether the Tribunal had any statutory function at all in the represent context. In the end I am not sure it matters but the arguments are these. The Secretary of State submits that any question of a recommendation, and in particular any question of a recommendation from high security hospital to lower security hospital, is not a matter in relation to which any statutory function would be exercised at all. She relies on the decision of the Court of Appeal in a case called C and F [2013] EWCA Civ 701, at paragraph 12 in particular. For the claimant Miss Weston replies that whatever the position in relation to recommendations, the Tribunal does have a statutory function of notifying under section 50 if it considers it appropriate to do so. It can therefore be taken that questions as to whether the section 50 notification conditions are met are proper considerations for the Tribunal to address. She further submits that by reference to sections 72 and 73 of the Mental Health Act 1983, the Tribunal has the statutory function of addressing all questions which are relevant to the individual's detention and she submits that that position is endorsed by paragraph 19 of the Court of Appeal's judgment in the C and F case.

The first question of law that arises out of the exchanges is as to whether the approach identified by Lord Bingham for the House of Lords in Brandenburg [2003] UKHL 58 in particular at paragraphs 8, 10 and 12, is applicable in the present case. Brandenburg was subsequently followed in IT [2008] EWHC 1707 (see paragraphs 12 to 14). It identified a general proposition that under the rule of law effect should be loyally given to decisions of legally constituted Tribunals in accordance with what is decided. Lord Bingham also identified what would be necessary for an executive body to decide to take action inconsistent with what the Tribunal had determined. He described what was necessary for such a course to be adopted in this way. There would need to have been a reasonable and bona fide opinion, based on information not known to the Tribunal, which put a significantly different complexion on the case as compared with that which was before the Tribunal. He explained that the test was not one of change of circumstances but rather whether there was new information on which the decision to adopt a different course was based.

In my judgment, even if Miss Weston is right that the Tribunal was exercising a statutory function when making its findings in the present case, the test in Brandenburg is nevertheless not one which is applicable. In my judgment Brandenburg is specifically a case in which the Tribunal has the function, as primary decision maker, of reaching the conclusion as to what should happen to the individual. It is a case where the question of discharge, that is to say liberty as opposed to incarceration or a deprivation of liberty, is entrusted to Tribunal. It is in that context, in my judgment, that the House of Lords concluded that it could not be lawful for executive bodies to decide to proceed to deprive someone of their liberty, where the Tribunal had exercised its statutory function of deciding that the individual should be discharged. That, in my judgment, explains why the test carefully formulated by the House of Lords was put in the way that it was.

Parliament in various contexts has entrusted the determination of what should happen to an individual to Tribunals. But section 50 transfer is not such a situation. The statute specifically identifies that whilst a Tribunal may notify that it considers the preconditions are satisfied, it is not the sole relevant body who can give such a notification, it has no power to veto transfer if notified by somebody else, and the ultimate decision as to whether the individual should or should not be transferred lies very clearly in the hands of the Secretary of State.

In my judgment, the decision of Bean J in IT does not compel any different conclusion. That was a case where a separate decision, namely recall, had been reached. However, the application of the Brandenberg test there, in my judgment, is clearly explicable by the fact that the Tribunal had decided the question of discharge, that is to say liberty as against deprivation of liberty in hospital. To follow that discharge decision with a decision to recall, and therefore re-incarcerate, is in my judgment directly analogous to Brandenburg, where the Tribunal's decision as to discharge had been followed by a further decision to redetain.

The inappropriateness, in my judgment, of the Brandenburg test is supported and reinforced by other authorities which serve to emphasise the importance of the Secretary of State's discretion in relation to matters of transfer. See for example the decision of Munby J in IR [2003] EWHC 3022 (Admin) and the analysis of the Court of Appeal in the case of Morley [2002] EWCA Civ 1728.

Miss Weston, in my judgment, is on much stronger ground when she makes the submission that even if Brandenburg is not directly applicable it is nevertheless the case that, if the Secretary of State's action involves departing from an adjudicative finding of an independent Tribunal and particularly when reached on the basis of oral evidence, it is incumbent on the Secretary of State to have a good reason, identified by the Secretary of State, for proceeding.

The difficulty Miss Weston faces in this case, in my judgment, is that even if that is correct - and even on the basis that she is right that the Tribunal did have a statutory function when considering the issues and making findings and arriving at its conclusions - in the circumstances of this case I am quite satisfied that Miss Wheeler is able to make good her submission: that the Secretary of State, if he needed good reason (which she does not accept), had good reason.

To return to the sequence of events, in the light of the Tribunal's determination, the Secretary of State was not asked to proceed on the basis of the existing request and issue the warrant without more.

The responsible clinician Dr Mathambike had responded in a response report dated 30th January 2012 to points raised by Dr Bradley, and had reached the view set out in that response that the treatment being suggested (schema, focus therapy and DVT) was not necessarily applicable for every single individual who suffered from borderline personality disorder and specifically that it was inappropriate to institute such treatment in the claimant's case. He had therefore in my judgment already considered the sorts of therapies that it was being suggested ought to have been but had not been made available to the claimant at Rampton.

He plainly reflected on the position in the light of Tribunal's determination. He decided that it would be good practice to ask Dr Swinton also to reconsider in the light of the Tribunal's determination. He therefore wrote to Dr Swinton on 21st June 2012, referring to the Tribunal's hearing and the views advanced by Dr Bradley and Professor Maguire and the opinion they had put forward. He explained that the Tribunal had reached the conclusion that the claimant should continue to be detained in hospital, on the basis of that evidence. He said this:

He then explained he had attached an up-to-date psychology report. Again, leaving aside the question of whether it was necessary to take such a further step, in my judgment it is plain that it was sensible to do so.

What then happened was that there was something described as a peer review of the case, which was a meeting of three northwest personality disorder teams at which a presentation was made by Dr Swinton. He reported back to Dr Mathambike on 10th July 2012, in a detailed letter, which addressed the peer review explaining that nobody present at that review suggested that further hospital treatment was appropriate; there was agreement all round that the claimant should not be treated in hospital at all. Then there followed a description of Department of Health policy guidance, and analysis of the opinions of Professor Maguire, including differences over time, the opinion of Dr Bradley, a reference to NIC guidelines, the further psychology report, a conclusion and opinion.

It is fair to say that that letter forcibly expresses views previously reached by Dr Swinton, which were unswayed in the light of what he had been asked to consider. I do not, however, accept that that document is to be taken as lacking in objectivity or as constituting a closed mind or unwillingness to reconsider. Nor do I accept that the views expressed in that letter can be said to be distorted or tainted by improper reference to policy or, still less, resources.

More to the point, in my judgment, there is no basis on which it can be said that the Secretary of State acted unlawfully, in proceeding to issue the warrant in this case, in the light of the further steps undertaken including the obtaining of this second opinion and including the way in which it was decided to proceed with the peer review, notwithstanding that it was not remotely the exercise in a fresh overview by a fresh pair of overviewing eyes, for which the claimant's representatives were contending and still contend ought to have been undertaken.

Included in the many points made in that detailed letter was a response by Dr Swinton to what I have described as the high watermark of the case on the merits, namely there were therapies – namely schema, DBT and interpersonal reconstructive therapies - which had been put forward as therapies which were appropriate and required and effective and which justified the claimant's remaining in a hospital environment.

That suggestion was specifically confronted, in my judgment, in the reasoned letter of Dr Swinton. He simply disagreed, for reasons that he gave, as to whether that treatment was appropriate and needed and effective in the claimant's case, observing that in his view it was suggested treatment outside the main consensus view of psychiatrists in the field and treatment very considerably out of the range of normal professional opinion, whereas, he said, in the claimant's case there was simply no case to support this.

Finally there was the section 117 meeting on or about the 6th September 2012, which addressed questions including: therapeutic community placement; arrangements made in respect of the claimant's mental health following return to prison; arrangements to ensure transfer carried out safely with minimum risks and maintaining prior treatment gains and including addressing needs, such as maintaining treatment gains from sex offender group and core treatment of his personality disorder.

It is clear, in my judgment, that: there was a conscientious re-evaluation in the light of the Tribunal's determination; that the responsible clinician Dr Mathambike addressed and decided to maintain the clinical conclusions which had underpinned and continued to underpin his request; that there was reconsideration in the light of the new suggested therapies by Dr Swinton; and that the question of risk on transfer was considered.

The warrant refers to the views of the responsible clinician which are the statutory precondition and which the Court of Appeal in the Morley case explained was the crucial clinical judgment for the purposes of a section 50 decision.

The amplified reasons of 31st October 2012 explained in terms that the Secretary of State had taken the opinion expressed by the Tribunal very seriously and had considered it alongside the clinical evidence both for remission and against it, especially the view presented by Dr Mathambike. It then explained that having evaluated all the evidence to hand including the claimant's progress in respect of the offending treatment behaviour programme, the need for detention in hospital, the availability of supporting care in prison evidenced by the section 117 meeting, the Secretary of State had concluded that remission was appropriate in this case.

I have no function to arrive at my view of the competing merits. My function is limited to considering whether the Secretary of State has acted lawfully in this case, in the substantive decision that was taken, and in the reasons that were given for it, and whether the Secretary of State could lawfully proceed with that decision in the light of the steps which had been taken and in the light of the absence of other steps which might have been taken.

In my judgment, as I have already explained, there is no basis on which the Secretary of State's decision, nor the reasons given for the decision can be impugned in this case, and in the circumstances of this case, as being unlawful. The decision was preceded by proper and legally sufficient steps, was taken on the basis of legally sufficient materials, was taken for legally adequate reasons and cannot be characterised as a decision beyond the bounds of reasonable judgment.

I have had regard to the various further criticisms which are made in this case. They do not alter the conclusion which I have described. I will not go through every single point in detail. I will however address some of the key further matters that were raised.

The claimants submitted that the sole lawful way forward was for the fresh overview that I have described to be undertaken. This was a point addressed contemporaneously in an electronic minute sheet on the 10th April 2012, where various matters are considered including inviting Dr Mathambike to set out, with regard to the Tribunal's decision why he remains of the view that the criteria for remission are satisfied. It refers also to the possibility of requesting “a report of our own”, but the comment is as to the “value” of that “given the number of experienced professionals who have already been involved”.

As I have already explained I am satisfied that the steps that were taken did not rob the Secretary of State's decision of its rationality, that it was proper to ask Dr Swinton whether in the light of what Tribunal had said he would express any different view and if not why not.

In my judgment, there was no legal duty on the Secretary of State to insist on a more detailed response either from the responsible clinician or nor to commission some further or different per se.

It is said that the Tribunal had identified an inconsistency in the written in the written and oral position of Dr Mathambike. That is because on the one hand he was supporting prison over hospital. But on the other hand he said that he would have been supporting hospital over liberty (discharge).

I am not satisfied that there is there is anything in that point that required the Secretary of State, as a matter of legal obligation, to require more from Dr Mathambike. He had responded, as I have explained, to the merits of the treatments being suggested. He had explained his view as to whether those treatments were appropriate, required and effective for claimant and he had given reasons why they were not. Whether or not his hypothetical answer about supporting hospital over liberty was wrongly influenced by questions of risk rather than clinical need, whether it was explicable by reference to other treatment which was ongoing support and therapy that could be provided in a prison environment, in my judgment whatever the position: that point was not of sufficient moment to undermine his ability properly to maintain his request for a warrant, nor the Secretary of State's ability lawfully to issue one.

In the judgment of Munby J in IR, to which I have already referred, there is a helpful description of three key questions which arise in the context of section 50, although the first of them needs to be modified in a case in which both limbs of section 50(1) are in play, as they were in the present case. The three questions are firstly section 50(1) question: does the claimant any longer require treatment in hospital for mental disorder? Or: is there any longer effective treatment for his disorder that can be given in hospital? Question 2: does the claimant's mental condition continue to be such as to warrant his compulsory confinement in a suitable therapeutic environment other than a prison? The article 5 question. Question 3: if the claimant is remitted to prison, is it more likely than not that he will suffer treatment at the hands of the prison authorities so damaging to him as to amount to inhuman or degrading treatment within the meaning of Article 3? The Article 3 question.

In my judgment, those three questions have been adequately asked and answered by the materials that were put before the Secretary of State. But, just as did Munby J in paragraph 76 of that case IR, I have revisited those questions myself in the light of the material that was before the Secretary of State, so as anxiously to scrutinise whether this is a decision which is consistent both with domestic and ECHR standards. I am satisfied that this is a lawful decision, supported by proper evidence which answers all three of those questions in a way which justifies the warrant for remission that was made in this case. The Secretary of State had objective justification, in my judgment, for the conclusion that the claimant did not any longer require treatment in hospital for mental disorder, that there was no effective treatment for his disorder which could be given in the hospital. I interpose that, as the authorities make very clear, it is the primary function of the responsible clinician to exercise that clinical judgment as, in my judgment, occurred in this case and occurred properly in this case. Then, as to the other questions, the Secretary of State reached a justified conclusion and decision that the claimant's mental condition was not such as to warrant a suitable therapeutic environment in a hospital and that if the claimant were remitted to prison it was not more likely than not that he would suffer treatment so damaging as to amount to inhuman or degrading treatment within the meaning of ECHR Article 3.

Miss Weston very fairly accepted that the various passages in key Strasbourg authorities on which she relied served to populate that same threefold set of questions and, in those circumstances, I do not propose to proceed separately to address the Strasbourg authorities.

For those reasons I uphold, as lawful, the decision of the Secretary of State.

It is not necessary for me to proceed to deal further with such matters as: the distinction between "appropriate" in section 47 and "required" in section 50; the question of whether the Tribunal was addressing a relevantly different set of criteria, by reference to section 74(1)A of the Act, than would be the relevant ones to section 50; questions as to the difference between mental illness and mental disorder; questions as to whether there could or ought to have been judicial review challenges directed to Dr Swinton or the Commissioners, or for that matter the responsible clinician. I am quite satisfied that, interesting though all of those questions no doubt are, they do not materially affect the conclusion which I have reached in the circumstances of this case as to the lawfulness of the Secretary of State's action.

For those reasons I cannot grant judicial review and this claim will be dismissed.