K, R (on the application of) v West London Mental Health NHS Trust [2006] EWCA Civ 118

[2006] EWCA Civ 118

Case No C1/2005/1538

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

Mr Justice Lightman

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/02/2006

Before

LORD JUSTICE WALLER

LADY JUSTICE ARDEN

LORD JUSTICE DYSON

Between

The Queen on the Application of KClaimant/

West London Mental Health NHS TrustDefendant/Respondent

Richard Drabble QC and Nathalie Lieven (instructed by Messrs Scott-Moncrieff, Harbour & Sinclair) for Appellant

John Howell QC and Angus McCullough (instructed by Messrs Capsticks) for Respondent

Hearing Hearing dates: 26th January 2006

Judgment

[1]The claimant is currently detained as a patient in Broadmoor Hospital (“Broadmoor”), a high security mental hospital. He has been detained there since June 1982 pursuant to a hospital order made under what is now section 37 of the Mental Health Act 1983 (“the MHA”) and has been made the subject of a “restriction order” pursuant to section 41 of the MHA. This was following his conviction for the attempted murder of his landlord by stabbing him in the abdomen.

[2]This is an appeal from the decision of Lightman J, who dismissed an application for judicial review of the defendant’s decision to refuse to fund his transfer from Broadmoor to Farmfield, a medium security hospital in the private sector. In order to understand the facts and the issues of law that arise on this appeal, it is necessary to set out the relevant statutory framework and identify the arrangements pursuant to which the decisions affecting the claimant were made. The most important issue raised by the appeal is whether the opinion of a registered medical officer (“RMO”) on a matter of clinical judgment when granting leave of absence from a hospital under section 17 of the MHA is binding on the Secretary of State (or his delegate) performing functions under section 3 of the National Health Service Act 1977 (“the NHS Act”).

The statutory framework

[3]Section 17 of the MHA provides:

“(1) The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that officer considers necessary in the interests of the patient or for the protection of other persons. (2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient. (3) Where it appears to the responsible medical officer that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital. (4) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible medical officer that it is necessary so to do in the interests of the patient’s health or safety or for the protection of other persons, that officer may….by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital.”

[4]Section 1(1) of the NHS Act provides:

“It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.”

Among the services which the NHS Act envisages the Secretary of State providing for that purpose are those described in sections 3(1) and 4, viz:

“3. (1) It is the Secretary of State’s duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements – (a) hospital accommodation; (b) other accommodation for the purpose of any service provided under this Act; (c) medical, dental, nursing and ambulance services; (d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service; (e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service; (f) such other services as are required for the diagnosis and treatment of illness. 4. (1) The duty imposed on the Secretary of State by section 1 above to provide services for the purposes of the health service includes a duty to provide hospital accommodation and services for persons who are liable to be detained under the Mental Health Act 1983 and in his opinion require treatment under conditions of high security on account of their dangerous, violent or criminal propensities. (2) The hospital accommodation and services mentioned in subsection (1) above are in this Act referred to as “high security psychiatric services”. (3) High security psychiatric services shall be provided only at hospital premises at which services are provided only for the persons mentioned in subsection (1) above; and for this purpose “hospital premises” means- (a) a hospital; or (b) any part of a hospital which is treated as a separate unit.”

Section 16A imposes a duty on the Secretary of State to establish bodies to be known as “Primary Care Trusts” (“PCTs”) for areas in England with a view to their exercising functions in relation to the health service. (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, (a) hospital accommodation; (b) other accommodation for the purpose of any service provided under this Act; (c) medical, dental, nursing and ambulance services; (d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service; (e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service; (f) such other services as are required for the diagnosis and treatment of illness. (a) a hospital; or (b) any part of a hospital which is treated as a separate unit.”

[5]PCTs and National Health Service Trusts (“NHS Trusts”) are separate statutory bodies corporate. The statutory framework governing the relationship between PCTs and NHS Trusts in relation to the provision of hospitals and medical services for those with mental health problems reflects a division between the bodies having statutory responsibility for providing or commissioning services (including PCTs) and those bodies who may actually provide them (including NHS Trusts).

[6]The Secretary of State’s duties inter alia under sections 3 and 4 of the NHS Act have been delegated in England to PCTs: see regulation 3(2) of and Part 2 of Schedule 1 to the Primary Care Trust (Membership, Procedure and Administration Arrangements) Regulations 2000 (“the 2000 Regulations”). A PCT is required to exercise the duties delegated to it, in so far as they consist of providing or securing the provision of services, generally for the benefit of persons associated with their area: regulation 3(7)-(9) of the NHS (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements (England) Regulations 2002 (“the 2002 Regulations”). One such PCT which is of relevance to the present case is the Ealing PCT.

[7]There are constraints on how a PCT may discharge the functions conferred on it by the 2002 Regulations. It may only arrange for high security psychiatric services under NHS contracts with certain NHS Trusts and it must have the approval of the Secretary of State for those arrangements: regulation 8(1) of the 2002 Regulations. In providing or securing the provision of any “specialised services” (which includes medium security psychiatric services), the PCT must have the approval of the appropriate Strategic Health Authority to the arrangements: see regulation 8(4) of the 2002 Regulations.

[8]PCTs are principally funded by sums paid to them by the Secretary of State: section 97C of the NHS Act. PCTs are obliged to limit their main expenditure each year to a specific amount: sections 97C and D of, and Schedule 12A to the NHS Act. They are also required to limit their use of resources in each year to the amount specified for them in relation to that year by the Secretary of State: section 97E of the NHS Act.

[9]NHS Trusts are bodies established by an order made by the Secretary of State under section 5 of the National Health Service and Community Care Act 1990 (“NHSCC Act”). The defendant is an NHS Trust and was established by the West London Mental Health NHS Trust (Establishment) Order 2000. Its functions are:

“(a) to provide hospital accommodation and services and community health services at or from the Trusts Headquarters, St Bernard’s Wing, Ealing Hospital, Uxbridge Road, Southall, Middlesex UB1 3EW, and at or from associated hospitals, establishments or facilities; and (b) subject to having approval under paragraph 10(2) of Schedule 2 to the [NHSCC Act], to provide high security psychiatric services at or from Broadmoor Hospital, Crowthorne, Berkshire RG45 7EG.”

[10]NHS Trusts are obliged to ensure that their revenue is not less than sufficient, taking one year with another, to meet outgoings properly chargeable to revenue account and to achieve such financial objectives as the Secretary of State may set: section 10 of NHSCC Act.

[11]A PCT may enter into a NHS contract with a NHS Trust under section 4 of the NHS Act for the provision of services for those for whom the PCT are responsible. Thus, for example, Ealing PCT may enter into a NHS contract with the respondent for the provision of high security psychiatric services for such persons at Broadmoor and for such persons who require medium security psychiatric services at the two units operated by the defendant, namely Three Bridges and Rollo May, at the Ealing Hospital, Uxbridge Road.

[12]There are 8 PCTs (including Ealing) in North West London. They made an agreement with the defendant whereby, with effect from 1 October 2004, the defendant would assume responsibility for managing their (the PCTs’) “forensic” patients then placed in the private sector as well as the associated budgets. “Forensic” patients are those who have been referred through the criminal justice system having committed serious offences, or others who have proved unmanageable by open services. It was agreed that a specified budget would be provided to the defendant from contributions made by each PCT, and that the defendant would meet all costs of placements above the budget figure. It was also agreed that the parties would adhere to the operational procedures set out in the Terms of Reference (“the Terms of Reference”) of the Multi-Disciplinary Independent Sector Referral and Management Group or Panel (“the Panel”)governing all future referrals to low and medium secure independent sector placements.

[13]Before I come to the facts, I need to say a little more about the arrangements that were in force at the material time and introduce the people who played the key roles in the events which occurred. The defendant is divided into two divisions, a Local Service Division (with which we are not concerned) and a Forensic Services Division which comprises Broadmoor high security services and a range of secure services at the Ealing site. Within the Forensic Services Division, there are a number of Clinical Directorates. At Broadmoor, these include the London Directorate, the clinical director of which is Dr Andrew Payne. Within each Clinical Directorate, there are clinical teams, each of which is typically responsible for 15-20 patients headed by a consultant forensic psychiatrist. Dr Sameer Sarkar is one such consultant. He is the claimant’s RMO at Broadmoor.

[14]At Ealing, the Clinical Directorates include the Men’s Central Directorate which is responsible for the Rollo May Unit, and the Men’s West Directorate, whose Clinical Director is Dr Treasden. Forensic services for residents of the London Borough of Ealing (who include the claimant) are provided by a clinical team which was headed by a consultant who has been on long-term sick leave. Dr Marcello Bustos was acting locum during this period of sick leave. Dr Nick Broughton took over from Dr Bustos on 1 August 2005. Dr Broughton, therefore, now leads this team within the Men’s West Directorate, working under Dr Treasaden.

Moving a detained patient from one hospital to another

[15]One of the ways in which a detained person may be removed from one hospital to another is by means of trial leave pursuant to section 17 of the MHA. If a patient goes on trial leave from hospital A to hospital B, his or her RMO at hospital A continues to be the RMO, and hospital B can return the patient to hospital B at any time, if, for example, the trial leave is not working satisfactorily. The apparent purpose of section 17 is to give the RMO the power to authorise a patient to be absent from the hospital where he or she is lawfully detained. If that power did not exist, the patient could not lawfully leave the hospital for any reason. Section 17 is not about treatment as such. But it is common ground that the power can properly be exercised to give a patient leave of absence from hospital A in order to move to hospital B either to receive treatment in hospital B, or with a view to a having a trial period of detention in hospital B.

[16]Another route is by a transfer under section 19 of the MHA. Where a patient is transferred from hospital A to hospital B under section 19, responsibility for the patient is also transferred and the consultant in charge of his or her treatment in hospital B becomes the new RMO.

The facts

[17]The claimant suffers from paranoid schizophrenia, characterised by grandiose persecutory and paranoid delusions and has a history of physical aggression. In late 1998, he was transferred from the high dependency and more closely supervised Banbury Ward at Broadmoor to the low dependency and less supervised Canterbury Ward. His RMO until October 2003 was Dr Horne. From the year 2000, consideration was given to the claimant being moved to a medium security hospital. From time to time thereafter, he was assessed for that purpose. But in June/July 2003 the claimant’s mental state deteriorated, as was evidenced by an attempted attack on a female staff nurse. This was the first violent incident since August 1996. On the 7 October 2003, he punched another patient and stabbed at his back with a pen. Dr Horne concluded that there was no option but to transfer the claimant back to the Banbury Ward. In October 2003, Dr Sarkar replaced Dr Horne as the claimant’s RMO.

[18]In July 2004, the claimant started taking the drug clozapine which he had previously refused to do. On the 10 September 2004, Dr Sarkar wrote a report for submission to the Mental Health Review Tribunal (“The Tribunal”). He concluded that the claimant was “appropriately detained in conditions of high security and I cannot recommend any transfer to a medium secure setting”. On 30 September the clinical team’s review considered the possibility of referral to a long term medium secure unit.

[19]The claimant was assessed by Dr Sarna of Farmfield Hospital. He noted in his report of 12 November 2004 that after only a few weeks of being on clozapine, “there is a significant improvement which is an extremely good indication of further improvement possible and resolution or amelioration of the delusion system, either completely or to the extent that he would be able to manage in a medium secure unit.” He said that in view of the improvement and the lack of physical aggression for some time: “we are prepared to offer him a bed on a medium secure ward for a trial and would appreciate it if the RMO could apply to the Home Office for their consent to start the trial leave at Farmfield Hospital”.

[20]The hearing before the Tribunal took place on 30 November 2004. The claimant was not seeking an order for discharge, but rather an extra – statutory recommendation for a transfer to medium security. The Tribunal made such a recommendation, noting that by this time it was supported by Dr Sarkar. They were not prepared to recommend an immediate transfer. They agreed, however, with Dr Sarkar’s view about the desirability of a move and said: “and we therefore concluded that provided recent progress is maintained for a further 3 to 4 months and provided [Mr K] remains compliant with clozapine he would then be ready for a transfer to medium security (no doubt by means of a period of trial leave) and we RECOMMEND that in such circumstances a transfer should take place”.

[21]On 10 December, Dr Akinkunmi, consultant psychiatrist at Rollo May, assessed the claimant. In his report, he recorded that there appeared to have been some improvement in the claimant’s presentation since he had been taking clozapine, but it was significant that he was still able to act in a violent and potentially dangerous way as a direct result of psychotic phenomena. The report continued: “….it is the unanimous view of the assessing team that in his current state [Mr K] neither meets the criteria for transfer to Rollo May on trial leave, nor would he be suitable for an intensive and active rehabilitation programme such as that which he would be required to undertake on Rollo May. In these circumstances we do not recommend that he is offered a bed. In our view he would need to demonstrate a significant period of settled behaviour free from violent incidents…. …..Whether other more acute medium secure services either within the NHS or in the independent sector feel that [Mr K] is suitable for transfer to medium security at the present time remains a matter for them”.

[22]On 11 January 2005 Dr Sarkar made application to the Home Office for approval of trial leave. On 11 February, the Home Office gave approval for 1 day’s visit to Farmfield which apparently was successful.

[23]On 12 February 2005, Dr Sarkar applied to the Panel for funding for a period of trial leave at Farmfield. The response dated 16 February was in these terms: “Your request for funding for a placement in the independent sector was fully considered by the panel which met this morning. We were, however, not able to agree this. It was clear from the full assessment undertaken by Dr Akinkunmi’s team that they did not feel that he was ready for placement within Rollo May. It was also not apparent from the assessment undertaken by Dr Akinkunmi that he was ready to move on to a medium secure environment. If you would like him to be assessed by the relevant sector team here for admission to a rehabilitation ward within our service, we would be happy to do this. We are, however, not able to agree funding in the independent sector for someone whose needs could be met NHS services. Also, it was not apparent that the proposed care plan and treatment package outline by Farmfield would be any better than one that could be provided in our services here. The issue seems to be whether he is ready to move on from maximum security”.

[24]On 18 March, Dr Treasaden wrote to Dr Sarkar saying that it was “very unlikely indeed” that a placement in an independent sector medium secure facility would be funded by the Panel whilst the responsible NHS consultant forensic psychiatrist considered that the claimant was not suitable for placement at the medium secure unit at Rollo May or Three Bridges. He concluded that, if Dr Sarkar still considered that the claimant should be transferred to conditions of medium security, he should liaise directly with Dr Bustos, the Locum Consultant at the Three Bridge’s Unit.

[25]On 19 April, there was a meeting of the Panel. It was decided that Dr Kevin Murray should seek to resolve the difference of opinion between Dr Sarkar and Dr Akinkunmi. Meanwhile, the decision of the Panel remained not to fund the claimant in the independent sector. Dr Bustos’s report was awaited. Dr. Murray is the Associate Medical Director of the respondent’s Forensic Services Division.

[26]Dr Sarkar communicated with Dr Bustos who wrote a report dated 16 May 2005. Dr Bustos said that it was striking that, despite several months since the clozapine had been prescribed, the claimant continued to harbour the delusional beliefs to which he had been subject at the time of the original offence. He understood that the claimant had not been “assaultative” towards others since he was last secluded on 7 December 2004, when the claimant had lifted a table tennis table and thrown it around. Dr Bustos said that he was not satisfied that the claimant could be safely managed within the conditions of medium security at the Three Bridges Secure Unit. He concluded, however, that it should be recognised that the decision to admit a patient to a given unit should remain with those professionals in that unit who would be entrusted with the individual’s care.

[27]On 16 May, the Panel considered the report of Dr Bustos and felt that there was “still an ongoing concern as to whether [K] was ready to move to conditions of medium security”. If it were decided that he was ready for transfer to medium security, a potential NHS placement should be sought before it was agreed to fund a placement at Farmfield. It was decided that the matter would be discussed with Dr Treasaden in order to establish how best to resolve the apparent difference of clinical opinion as to K’s suitability for medium security. Until this was resolved, the Panel was unable to agree to fund a placement at Farmfield.

[28]On 23 May, the claimant commenced these proceedings challenging as unlawful the defendant’s refusal to fund a placement for him at Farmfield. On 31 May, Dr Murray, discussed the case with Dr Sarkar and expressed the view that the contemplated transfer of the claimant to Farmfield was clinically inappropriate. In his letter to Dr Sarkar dated 31 May, he said: “The evidence was that all transfers from high dependency wards to medium secure services outside of Broadmoor over the past 4 years had failed, whereas transfers from medium dependency wards were in the main successful. I advised you strongly to consider moving [Mr K] under your continuing care from Banbury Ward to Dover where you would remain his RMO, and were other members of his Clinical Team eg the Social Worker, your SHO etc could continue to look after him. I advised you that a successful period of probably six months on Dover Ward would provide a strong basis for responding to Dr Bustos’s concerns, making a strong argument for [Mr K] on the transfer”.

[29]That opinion was reflected in a further letter from Dr Treasaden to Dr Murray dated 2 June. Meanwhile, on 1 June the claimant was involved in a serious incident when he obtained a knife in the dining room and attempted to remove it in a delusional belief that he needed to use it to protect his family.

[30]On 15 June, Dr Horne made a report based, not on recent clinical examination, but on full access to the claimant’s notes which concluded as follows: “(1) I am quite satisfied that [Mr K] is ready to move to conditions of medium security, though I leave the question of whether such a move should be delayed briefly to enable him to recover from his recent setback to those [who] are directly involved in his care. (2) I have believed since 1998 that [Mr K] was ready to move to medium security, and whilst the 2 attacks in 2003 were quite serious I believe that if they had happened in medium security the staff would have been able to manage them. Schizophrenia is a fluctuating condition and it is inevitable a patient with schizophrenia will show improvements and deteriorations in their mental states from time to time, and medium secure units do cope with these. (3) I believe there is no merit in the argument that he needs to move to an ordinary ward before leaving the hospital”.

[31]On 17 June, Dr Sarna wrote to the claimant’s solicitors saying that, despite the claimant’s slight deterioration “perhaps due to the frustration of coping with recent events”, he was prepared to accept the claimant for a trial leave. On the same day the Home Office wrote to the defendant’s solicitors confirming that they were in principle prepared to agree to a period of trial leave at Farmfield. They added that they would need to see evidence that the claimant’s mental health and behaviour have remained stable since he started his clozapine medication and that there had been no other areas of concern highlighted in his risk assessment.

[32]Also on 17 June, Dr Bustos produced a further report. He was of the opinion that the claimant’s mental state had deteriorated with increasing paranoia. He concluded: “In conclusion it is my view that [Mr K’s] mental state is at present such that his placement within Broadmoor special hospital is entirely appropriate. I do not consider him suitable for transfer under conditions of medium security as pertain within our Three Bridges Secure Unit here without an unacceptable increase of the risk that he poses to others. The incident of 1 June 2005 clearly demonstrates that he continues to have delusional beliefs which have remained largely unchanged from the time of his index offences in 1981 and that he has recently shown the capacity to act upon them. Had this incident occurred in a less intensively supervised environment it is my opinion that the consequences could have been very serious indeed. Before [Mr K] can be considered for transfer to conditions of medium security here, I would recommend that he be transferred to a medium dependency ward within Broadmoor hospital in which he can demonstrate that he can sustain a period of at least 6 months stability in his mental state and behaviour without incidents occurring. While I understand that [Mr K’s] current clinical team does not consider that he requires the security afforded by Broadmoor Hospital, [Mr K’s] past history, as well as his current presentation, including the incident of 1 June 2005 demonstrates in my view that it would be premature to transfer him out of Broadmoor at this stage”.

[33]On 20 June, Dr Murray made a witness statement in these proceedings. He pointed out that there was a difference of clinical opinion between members of three Directorates of the defendant viz(a) the consultant body of Broadmoor,

(b) the Men’s West Ealing Forensic Services (for which Dr Treasaden is the Clinical Director with responsibility also for the Three Bridges Unit), and

(c) the Men’s Central Ealing Forensic Services (for which Dr Gilluley is the Clinical Director with responsibility also for the Rollo May Unit. It had been his responsibility to resolve these differences of opinion. He said that his letter dated 31 May reflected his clinical opinion, which was based on his knowledge and consideration of all the relevant factors. Having read the latest report by Dr Bustos, it remained the defendant’s view on clinical grounds that it was premature to transfer the claimant to any medium secure unit.

[34]Since the hearing before the judge, there has been further evidence. This has been obtained in response to the statement by the judge at para 38 of his judgment that it was: “most desirable that the Defendant instruct Dr Bustos to prepare a full up to date report specifically directed at a proposed trial stay at Farmfield, for the purposes of which he should visit Farmfield and consult Dr Sarnar. In the light of this report, the claimant may consider seeking the views of Dr Sarkar, Dr Sarnar and Dr Horne in the light of Dr Bustos’s latest report and of that report. It may be that the clinical issue will require reconsideration by Dr Murray and indeed the court”.

[35]By a report dated 25 August, despite the incident of 1 June, Dr Sarna adhered to his view that the claimant no longer needed the maximum security of Broadmoor. On 20 September, at the request of Dr Murray, Dr Broughton wrote a report on the claimant. Dr Broughton succeeded Dr Bustos on 1 August as the consultant in Forensic Psychiatry responsible for the Ealing catchment area.. After a comprehensive review of the claimant’s case history, he said:

“4. Whilst this incident appears to have been an isolated one and seemingly unrepresentative of [Mr K’s] progress during the last twelve months it is clearly a cause for concern particularly given the obvious parallels with the index offence. It also, in my opinion, highlights the fragile nature of [Mr K’s] mental state and as such it is clearly possible that his mental health may again deteriorate in the event of him being exposed to similar psychosocial stressors. In such circumstances the risk of further serious violence cannot be overlooked. 6. Despite the concerns highlighted above I should reiterate that [Mr K’s] progress since the onset of treatment with Clozapine has been most encouraging, and as such consideration needs to be given to the appropriateness of his transfer to a less secure environment. In my opinion however, given the fragile nature of his mental state and the fact that he continues to harbour persecutory delusional beliefs similar to those which underpinned his behaviour at the time of the index offence, it would be inappropriate for [Mr K] to be transferred directly from a high dependency ward at Broadmoor Hospital to any medium secure unit. As such, it is my opinion, that he should first be transferred to an assertive rehabilitation ward within Broadmoor, such as Dover Ward. 10. Whilst it would appear that Farmfield can indeed provide high quality psychiatric care in conditions of medium security I am of the opinion that in the event of [Mr K] being transferred to a medium secure unit he should be transferred to the Three Bridges Unit, his catchment area medium secure unit. The therapeutic regime at Farmfield appears little different to that here at Three Bridges. It would also appear that the majority of patients transferred to Farmfield Hospital have relatively stable mental states and as such there is a strong rehabilitation focus. On the basis of the information made available to me during my visit it would appear that the unit has relatively limited experience of managing violent and disturbed behaviour. As such I would have concerns regarding how [Mr K] would be managed in the event of his mental state deteriorating and him again behaving in a violent manner towards staff or fellow patients. I consider further that there are two important advantages in [Mr K] being transferred to Three Bridges. Firstly he would be under the care of the clinical team which would be ultimately responsible for his care in the event of his discharge into the community thus ensuring better continuity of care. Secondly a number of staff working in the unit speak Punjabi. This would obviously assist both the further assessment of [Mr K] and his integration into a new hospital environment.”

[36]In a letter to Dr Murray dated 7 October, Dr Broughton clarified his earlier report by saying that he would support the claimant’s transfer “in the event of his mental state remaining stable for a period of between three and six months on a ward such as Dover”. He said that he would want to review the claimant before his transfer was finally agreed.

[37]In his second witness statement dated 12 October, Dr Murray reviewed the recent expressions of medical opinion. He considered the report of Dr Broughton to be “reasonable and cogent”. He said that he was aware that Dr Sarkar had recently made alterations to the claimant’s medication. For that reason, no move to a lower-dependency ward, such as Dover ward, could take place for a few weeks. Having considered the matter in detail, Dr Murray said that his view was unchanged.

[38]Dr Sarna produced a further report dated 11 November. He criticised Dr Broughton’s report. He considered that Dr Broughton’s criticisms of Farmfield were unfair and unprofessional. It was unfair to say that Farmfield had limited experience in managing violent and disturbed patients. He thought that he was better placed than Dr Broughton to see changes and improvements in the claimant’s condition. He repeated his previous opinion that the claimant was suitable for placement in a medium secure unit for long-term care and rehabilitation.

[39]There was a further hearing before the Tribunal on 29 November 2005, but this was aborted by reason of the claimant’s disturbed behaviour.

These proceedings

[40]As I have already said, by proceedings started on 23 May 2005, the claimant challenged the defendant’s refusal to fund a placement for him at Farmfield. The decisions which he sought to impeach were those made by the Panel at its meetings on 19 April and 16 May 2005. The issue as formulated before Lightman J was expressed by him at para 1 of his judgment in these terms:

“…..The issue before me is whether, when the RMO has granted a patient such leave directing that he reside in a private sector hospital, it is open to the Primary Care Trust responsible for funding the patient to refuse to fund the stay of the patient at that private hospital either on the grounds of clinical judgment or by reason of resource considerations.”

[41]The judge held that it is for the RMO to decide on clinical grounds whether leave of absence should be granted pursuant to section 17 of the MHA, but the managers decide whether resources can and should be expended in funding the recommended stay. He said that in making a decision whether or not to fund such a stay, the managers need to evaluate and balance clinical and resource considerations. They have to form a view as to the clinical advantages or disadvantages of the proposal, for which purpose they must give due weight to the views of the RMO.

[42]At para 32, he said:

“On the facts of this case it is clear that the decision of the Defendant not to fund a stay a Farmfield is based on clinical reasons and the preference for the views of Dr Bustos over the views of the RMO, and not on resource considerations. Indeed Dr Murray through Counsel has made clear in the course of the hearing that, if and when the Claimant is clinically fit to be transferred to a medium secure hospital, he will be transferred to such a hospital, and if there are “victim area” or other objections to his transfer to or leave of absence at the Rollo May or Three Bridges Units, he will be transferred to, or be given leave of absence directing a stay at, Farmfield. Funding considerations will be no bar.”

[43]At para 33, he recorded the critical issue as being whether the defendant’s decision that the claimant was not clinically fit to leave Broadmoor and to stay at any medium secure hospital was open to challenge on Wednesbury grounds. He concluded that the respondent could reasonably follow the advice of Dr Bustos and take the view that K ought not to be moved from Broadmoor at this stage. The challenge to the Panel’s decision was, therefore, dismissed.

The issues arising on the appeal

[44]Three issues have been argued before us on the appeal. These are: (i) is the defendant obliged to fund a placement for trial leave which the claimant’s RMO, acting under section 17 of the MHA, has decided is clinically appropriate; alternatively (ii), if the defendant has a discretion to refuse to fund in those circumstances, is it entitled to exercise the discretion on the basis that it disagrees with the clinical judgment of the RMO; and (iii) was the decision-making process adopted in the present case lawful (it is submitted on behalf of the claimant that it was not because it prevented the defendant from taking properly into account the views of the RMO). It has not been contended on the appeal that the decision not to fund the placement at Farmfield on clinical grounds was unreasonable in the Wednesbury sense.

The first issue

[45]Mr Richard Drabble QC submits that the defendant was under a duty to use its best or reasonable endeavours to fund the placement of the claimant at Farmfield. It is accepted by the defendant that, if that was the scope of the duty, it would have been in breach of duty, since it would have been able to fund the place for the claimant.

[46]Mr Drabble submits that the starting point for an examination of section 3 of the NHS Act is the decision of this court in R v North and East Devon Health Authority, ex parte Coughlan

[2001] 1 QB 213

. At para 24, the court said:

“The first qualification placed on the duty contained in section 3 makes it clear that there is scope for the Secretary of State to exercise a degree of judgment as to the circumstances in which he will provide the services, including nursing services, referred to in the section. He does not automatically have to meet all nursing requirements. In certain circumstances he can exercise his judgment and legitimately decline to provide nursing services. He need not provide nursing services if he does not consider they are reasonably required or necessary to meet a reasonable requirement.”

[47]At para 26, the court said that, in exercising his judgment, the Secretary of State is entitled to take into account the resources available to him and the demands on those resources. The same point has been made in other cases, for example: R v Secretary of State for Social Services and others, ex parte Hincks and others [1980] 1 BMLR 93, R v Cambridge Health Authority, ex parte B

[1995] 1 WLR 898

and R v North West Lancashire Health Authority, ex parte A

[2000] 1 WLR 977

. But Mr Drabble submits that all these cases lacked the essential element of the present case, which is that the provisions of the NHS Act form part of a wider statutory scheme (including the MHA) in which the statutory responsibility for identified judgments is placed on particular decision-makers. The RMO is “in charge of the treatment of the patient” (see section 34(1)(a) of the MHA); and by section 17 of the MHA, the decision whether leave of absence is clinically appropriate is assigned to the RMO. Accordingly, although Mr Drabble accepts that the words “reasonable” and “necessary” in section 3(1) of the NHS Act imply a judgment as to which economic considerations are relevant, they do not allow the decision-maker under the NHS Act to avoid his duty to facilitate decisions lawfully made under the MHA. It is not open to the defendant to say that the claimant’s requirement for a placement at Fairfield was not a “reasonable” requirement when the RMO responsible for his treatment has lawfully decided that it is; nor is it lawful for it to assert that funding is not “necessary” to meet that requirement.

[48]Mr Drabble submits that the duty in the Secretary of State (or in this case, his delegate) to use his best or reasonable endeavours to give effect to the decision of the RMO is analogous to the duty to provide after-care services under section 117 of the MHA. Section 117(2) provides that “it shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide…after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local services authority are satisfied that the person concerned is no longer in need of such services…”. Mr Drabble concedes that this does not impose on the health authorities an absolute obligation to implement the conditions for a patient’s discharge from hospital required by a tribunal; rather it is an obligation to use reasonable endeavours to secure compliance with those conditions: see R(K) v Camden and Islington Health Authority

[2001] EWCA Civ 240

[2002] QB 198

and R(H) v Secretary of State for the Home Department

[2003] UKHL 59

[2004] 2 AC 253

para 10.

[49]Mr Drabble says that the same approach should be adopted so as to facilitate the implementation of a decision by an RMO under section 17 for the purposes of a transfer for a trial period. The facts of the present case are to be distinguished from those in K and H. Farmfield are willing to provide a bed, whereas in both of the earlier cases, there was no clinician who was willing to provide the necessary treatment and supervision.

[50]Our attention has been drawn to the decision of Sullivan J in R(F) v Oxfordshire Mental Health NHS Trust and Oxfordshire NHS Health Authority

[2001] EWHC Admin 535

. In that case, it was common ground that the claimant was no longer required to be detained in the conditions of high security that are provided at Broadmoor. It was not in dispute that she needed to be transferred to a medium secure unit: the issue was whether it should be at Manchester or Oxford. The RMO considered that she should be moved to Manchester. The NHS Trust considered that she should be admitted to the Oxford hospital. There was a stark difference of opinion on matters of clinical judgment. Judicial review proceedings of the defendants’ decision were started. It was said inter alia that, in view of the RMO’s role in the statutory scheme, her decision (unless irrational) should be determinative of the disputed question, or at the very least should be given considerable weight and followed in the absence of a compelling case to the contrary. Sullivan J said that since resources are limited, there is bound to be a queue of patients seeking treatment. He did not accept the proposition that the RMO’s position under the MHA is such as to propel his or her Part II and III patients to the head of the queue.

[51]He went on at para 71 to say that the NHS Trust was not obliged to accept the view of the RMO even on matters of clinical judgment.

[52]Mr Drabble seeks to distinguish F, alternatively he submits that it was wrongly decided. He points out that the issue in that case was not whether the patient should be transferred from Broadmoor, but to which medium-secure unit she should be transferred. Accordingly, the effect of the Trust’s refusal to fund the placement supported by the RMO was not to prevent any transfer and thus frustrate the statutory scheme.

[53]In my judgment, F cannot be distinguished in this way. It is clear that the reason why the RMO supported a move to Manchester rather than Oxford was that she considered that the patient’s prospects of rehabilitation would be better there. The defendants disagreed with this assessment: see paras 29 and 30 of the judgment. In other words, the root of the dispute was a clinical disagreement. So too in the present case. It seems to me that, if Mr Drabble’s submissions on the first (and indeed the second) issue are correct, it must follow that F was wrongly decided. His essential argument is that, under the statutory scheme, decisions on matters of clinical judgment in relation to a patient’s mental health are assigned to the patient’s RMO and cannot be challenged by those charged with other decisions affecting the patient. It must follow that a refusal by the Secretary of State (or his delegate) to implement such a decision will frustrate the statutory scheme: it can make no difference whether the decision is as to whether a patient should be moved from hospital A at all or whether he or she should be moved to hospital B or C.

[54]I cannot accept Mr Drabble’s submissions largely for the reasons advanced by Mr John Howell QC. The fact that a detained patient’s RMO is given power to grant leave of absence subject to conditions does not entail the proposition that the Secretary of State is obliged to provide any services so as to enable the patient to take advantage of that leave of absence. The decision whether or not any particular services should be provided under section 3 of the NHS Act is one for the Secretary of State (or his delegate). A RMO has no power to give directions as to how others are to discharge their functions and section 17 of the MHA cannot be construed as conferring such a power. It is obvious that, if the RMO gives a detained patient leave to be absent from the hospital in order to go the cinema, that does not oblige the proprietors of the cinema to admit the patient to their cinema. Mr Drabble accepts this. Likewise, if the RMO gives the patient leave of absence to go to another hospital for some treatment unrelated to his mental health, section 3 of the NHS Act does not oblige the Secretary of State (or his delegate) to admit the patient to that hospital or to provide any particular treatment. Mr Drabble accepts this too.

[55]But, submits Mr Drabble, the position is different if the RMO exercises his power under section 17 for the purposes of seeing on a trial basis whether the patient should be transferred to another hospital under section 19. It is because the section 17 power is invoked for a purpose intimately connected with the patient’s mental health problems the treatment of which has been assigned to the RMO that in such a case the Secretary of State is bound to use his best endeavours to give effect to the wishes of the RMO without question.

[56]I find it impossible to spell out of the statutory scheme any such obligation. Mr Drabble cannot point to any express words which lead to this conclusion, nor is he able to identify any provisions which support it by necessary implication. Mr Drabble rightly accepts that, read in isolation, the language of section 3 of the NHS Act is inimical to his submission. The duty of the Secretary of State is to provide hospital accommodation etc to such extent as he considers necessary to meet all reasonable requirements. These words are clear and unequivocal. It is for the Secretary of State to make a judgment of what is necessary to meet all reasonable requirements. That involves taking into account resource implications (see paras 46 and 47 above). It also involves establishing priorities (comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treatment) as well as the proven success or otherwise of the proposed treatment and the seriousness of the condition that the treatment is intended to relieve: A’s case

[2000] 1 WLR 977

, 991H, 997A-C. But Mr Drabble submits that the role of the RMO under the MHA leads to the conclusion that the apparently unqualified duty of the Secretary of State is in fact severely circumscribed.

[57]In my judgment, there is no support for giving section 3 a special or circumscribed meaning in the context of the Secretary of State responding to a decision by the RMO under section 17 of the MHA.

[58]The statutory scheme makes special provisions imposing certain duties of co-operation as well as enabling certain persons to give directions to others about how those others are to discharge their functions. Thus, for example, section 17(1) of the NHS Act provides that the Secretary of State may give directions to any of the bodies mentioned in subsection (2) about their exercise of any functions; and section 17B(1) provides that a Strategic Health Authority may give directions to a PCT about its exercise of any functions.

[59]But the RMO of a patient detained in a mental hospital is given no power to direct, for example, the Secretary of State, a PCT or an NHS Trust as to how they should discharge such functions as are vested in them. As we have seen, Mr Drabble submits that the Secretary of State is under a duty to facilitate decisions lawfully made under the MHA. There is no such express statutory duty. He seeks to derive the duty, presumably by necessary implication, from the fact that the RMO is in charge of the treatment of the patient. In my judgment, no such duty can be derived from the mere fact that the RMO is in charge of the patient’s treatment. If Parliament had intended to provide that the clinical opinion of the RMO was binding on the Secretary of State, it would have done so. There are good reasons why Parliament would not have wished to take that course: see paras 63-66 below.

[60]Section 117 provides no support for Mr Drabble’s submissions. That section imposes a specific, but limited, duty on the relevant authorities in relation to after-care services.

[61]I would, therefore, reject Mr Drabble’s primary submission. The Secretary of State is not obliged to use his best endeavours to give effect to a decision by an RMO under section 17. In my judgment, F was correctly decided.

The second issue

[62]The principal question that is raised by the second issue is whether, when performing his function under section 3 of the NHS Act, the Secretary of State is bound to accept and act upon the clinical judgment of the RMO. Mr Drabble submits that he is bound to do so largely for the same reasons as those advanced by him in relation to the first issue.

[63]As was made clear in A’s case, a decision as to whether to devote resources to a particular treatment depends on many considerations, including the seriousness of the condition, the likely success of the proposed treatment, the cost of the treatment and the competing needs of other patients. I shall assume for present purposes (without deciding) that it is always possible to identify a bright line separating an opinion on matters of pure clinical judgment from an opinion as to whether the expenditure of resources on a patient is justified in the particular circumstances of the case. On Mr Drabble’s approach, the opinion of the RMO on matters of clinical judgment is binding on the Secretary of State (or his delegate) whether it is expressed tentatively or it is expressed with great conviction. Take two cases. In case A, the RMO says that the arguments for and against moving a patient out of Broadmoor into a medium secure hospital for a trial period are finely balanced, but he or she is (just) persuaded that there should be a move. In case B, the RMO considers that the case for a move is overwhelming. It is inherently improbable that Parliament would have intended that the opinion of the RMO should carry as much weight in case A as in case B; but on Mr Drabble’s argument, the opinion of the RMO is decisive and cannot be questioned in either case.

[64]Suppose further that the RMO in case A has only been the patient’s RMO for a fortnight, and a number of other doctors (including the doctor who was the patient’s RMO for the previous ten years) all advise in the strongest terms that the patient is far too dangerous to move out of Broadmoor into medium secure accommodation even for a short trial period. On Mr Drabble’s argument, the Secretary of State could not take account of that other medical opinion, because it related to matters of clinical judgment and was foreclosed by the view of the current RMO. In my judgment, a scheme which obliged the Secretary of State to accept without question the opinion of the RMO in case A would be irrational. I would not impute to Parliament an intention to enact such a scheme unless compelled by clear statutory language to do so. Mr Drabble cannot point to any such language. The mere fact that the RMO is in charge of the treatment of the patient comes nowhere near being sufficient.

[65]In my judgment, this argument must be rejected largely for the same reasons as I have expressed in relation to the first issue. There is no basis for giving an interpretation to section 3 of the NHS Act which restricts the basis on which the Secretary of State (or his delegate) may take section 3 decisions. I accept the submission of Mr Howell that the Secretary of State is entitled to have regard to any relevant information that is available to him. That is not to say that the views of the RMO in the case of a proposed leave of absence and that those of the hospital managers in the case of a proposed transfer are not relevant. But the knowledge of the RMO is not necessarily greater than that of any other medical practitioner responsible for the treatment of any patient. The decision as to what services are to be provided for any individual under section 3 of the NHS Act is not one for the RMO, and the Secretary of State (or his delegate) is not legally obliged to accept whatever the RMO may say on matters of clinical judgment.

[66]There is nothing irrational in the Secretary of State, when considering whether an individual is suitable for treatment in conditions of medium or low security, having regard to the views of other persons responsible for providing psychiatric services for those detained in conditions of medium or low security as well as to the opinion of the RMO. They all are, or should be, expert in the provision of services in such conditions. They may be well placed to assess the risk that any individual may not benefit from, or respond acceptably to, psychiatric services if placed in a hospital in such conditions of security. They may also have detailed knowledge of the competing demands for such services. It would be absurd if the Secretary of State (or his delegate) could not have regard to the views of those responsible for providing psychiatric services for those detained in conditions of medium or law security when considering whether an individual is suitable for treatment in such conditions.

[67]There was some discussion during the hearing as to whether the decision taken by the Panel in the present case not to fund a stay at Farmfield was based solely on their clinical judgment and without any regard to resource considerations. I have little doubt that it was solely based on their clinical judgment for the reasons given by Mr Drabble in argument. I did not understand Mr Howell to contend otherwise. But in my view, it is not necessary to decide this point, since for the reasons that I have given, the clinical judgment of the RMO in the present case that K should be given leave of absence in order to be moved to Farmfield was not binding on the Secretary of State or the PCT or the Panel.

The third issue

[68]There was a good deal of confusion as to which were the correct terms of reference of the Panel. In his third witness statement, Dr Murray set out his understanding of the effect of the Terms of Reference. In his fourth witness statement, he said that his previous account did not reflect current practice. The Terms of Reference are not happily drafted and we understand that it is likely that they will be redrafted. In apparent breach of the Terms of Reference, however, Dr Sarkar was not invited to attend a meeting of the Panel to present the case for a move of K to Farmfield on a trial basis. The failure to invite Dr Sarkar was not one of the grounds of challenge in the judicial review proceedings as presented to Lightman J. Nevertheless, the defendant has undertaken to invite Dr Sarkar to attend a meeting of the Panel. In the light of that undertaking, Mr Drabble does not press for a declaration that Dr Sarkar should be invited to attend the meeting.

[69]If K is unsuccessful in relation to the first and second issues, Mr Drabble does, however, seek a declaration that the Panel should place great weight on the clinical judgment of Dr Sarkar and that, when exercising his function under section 3 of the NHS Act, the Secretary of State (or his delegate) should, generally speaking, place great weight on the RMO’s clinical judgment.

[70]In my judgment, it would be wrong for this court to grant a declaration prescribing the weight that the Panel should give to the opinion of the RMO in this case, or that the Secretary of State (or his delegate) should generally give to the opinion of RMOs. The weight to be given to the opinion of a RMO must be a matter for the decision-maker having regard to all relevant circumstances. It is not appropriate to attempt an exhaustive definition of what these might be. But they will include how long the RMO has been in charge of the treatment of the patient, the strength of conviction with which the RMO’s clinical judgment has been expressed, the weight of other clinical opinion and the reasons given by other medical practitioners for their disagreement with the opinion expressed by the RMO.

Overall conclusion

[71]For the reasons that I have given, I would reject the arguments advanced on behalf of K in relation to each of the three issues before us. In my judgment, K is not entitled to the relief claimed or any relief.

[72]I agree.

[73]I also agree.