R, R (on the application of) v Shetty (Responsible Medical Officer) & Anor [2003] EWHC 3022 (Admin)

“Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person’s sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may— (a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or (b) exercise any power of releasing him on licence or discharging him under supervision which could have been exercisable if he had been remitted to such a prison or institution as aforesaid, and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.”

“I am writing to request issue of a warrant directing [the claimant’s] remission to prison namely HMP Cardiff under Section 50(1) of the Mental Health Act 1983. I am satisfied that [he] no longer requires treatment in hospital for a mental disorder namely mental illness. You will be aware from my report to the Mental Health Tribunal and CPA/Section 117 Meeting reports (copies enclosed), that [the claimant] was admitted to Norvic Clinic on the 23rd April 2003 under Section 47/49 of the Mental Health Act 1983, as he had relapsed into psychosis again. He responded quickly and well to Clozapine therapy and has not exhibited any psychotic symptoms for some time. [He] has not engaged in any meaningful therapeutic activities and psychology sessions failed to give us any better understanding of his psychopathology or formulation of his rehabilitation needs. [He] has remained largely inactive and has not shown any self-harming or aggressive behaviour. [He] has remained dissatisfied with his legal status, as he believes that he should have received a Hospital Order. Furthermore he, while accepting improvement in Clozapine asserts that he should remain in hospital, as he is likely to relapse if returned to prison. It has been repeatedly pointed out to him that it is not inevitable that he will relapse especially given that he is now on Clozapine which has proven therapeutic advantages over other antipsychotic medications. [He] is also concerned that the Parole Board will never release him. At the Section 117 Meeting on the 8th October 2003 all members of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity had persisted. It was acknowledged that his more recent transient complaints about depression and thoughts of self-harm are directly related to the likelihood of being returned to prison rather than relapse of illness per se. [He] attended the meeting with his legal representative ... The views of the clinical team were again explained to [him] but he repeatedly stated that it was “unfair” to return him to prison as he should have been given a Hospital Order in the first place. I again explained the statutory criteria under Section 50 and told him that all possible arrangements for his smooth transition from the hospital to prison will be made. (I had telephone discussion with Mr Thomas, In-reach nurse at HMP Cardiff who has previous knowledge of [him]. He was due to attend the meeting today but was unable to do so due to another crisis at HMP Cardiff. However we were able to discuss provisional plans over the telephone and Mr Thomas is willing to monitor [his] mental state should he be returned to HMP Cardiff. It is also noteworthy that HMP Cardiff has visiting forensic psychiatrists from Caswell clinic who are in fact responsible for his referral to this service on this occasion).”

“The Secretary of State has considered carefully the reports prepared on [the claimant] by Dr Bullard dated 20 and 22 October. He has also considered the other relevant material submitted in the judicial review bundle, letters from Dr Shetty dated 8 and 24 October 2003, and the reports of the CPA/section 117 meeting on the 8 October 2003 … The Secretary of State prefers the view of Dr Shetty who is the Responsible Medical Officer for [the claimant] and who has been treating him since his transfer to the Norvic Clinic (and on a previous admission to the Clinic). Dr Shetty, in his reports, states that [he] has responded well to the drugs he has been prescribed, and that his clinical team believes that his mental state has remained stable since the last review. Dr Shetty states that [he] no longer requires treatment in hospital and that effective treatment for his condition can be given after his return to prison. The Secretary of State notes the views of Dr Shetty are supported unanimously by [the claimant’s] clinical team, and that Dr Shetty in his letter dated 8 October 2003 states that “at the section 117 meeting on 8 October all member of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity has persisted”

“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; … (e) the lawful detention of … persons of unsound mind ... ; (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

“there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution.”

“Generally, in fact, it would be prima facie unacceptable not to detain a mentally ill person in a suitable therapeutic environment.”

“For the purposes of Article 5(1)(e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.”

“The Court, in its previous case-law, has stated three minimum conditions which have to be satisfied in order for there to be “the lawful detention of a person of unsound mind” within the meaning of Article 5(1)(e): except in emergency cases, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“[38] The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention. In the case of a prisoner suffering from disorders associated with hereditary obesity, the European Commission of Human Rights expressed the opinion that that there had been no violation of Article 3 of the Convention because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that “in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures” and stated in conclusion that it would “appreciate any measures the Italian authorities could take vis-à-vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require” (Chartier v Italy (1982) 33 DR 41 at pp 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant’s complaint under that Article was manifestly ill-founded (Papon v France (2001) June 7). Health, age and severe physical disability are now among the factors to be taken into account under Article 3 of the Convention in France and the other member States of the Council of Europe in assessing a person’s suitability for detention. [39] Thus, in assessing a prisoner’s state of health and the effects of detention on its development, the Court has held that certain types of treatment may infringe Article 3 on account of the fact that the person being subjected to them is suffering from mental disorders (Keenan v United Kingdom (2001) 33 EHRR 913, paras [111]-[115]). In Price v United Kingdom (2001) 34 EHRR 1285 the Court held that detaining the applicant, who was four-limb deficient, in conditions inappropriate to her state of health amounted to degrading treatment. [40] Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of the execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment.”

“[43] … The Court accordingly notes that the health of a detainee is now among the factors to be taken into account in determining how a custodial sentence is to be served, particularly as regards its length. In that way, practical expression has been given to the Court’s statement that “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies”.”

“[45] … The Court observes that the applicant’s health was found to be giving more and more cause for concern and to be increasingly incompatible with detention. The report of 28 June 2000 referred to the difficulty of providing cancer treatment in prison and recommended transferring him to a specialist unit. It also mentioned the applicant’s psychological condition, which had been aggravated by the stress of being ill and had affected his life expectancy and caused his health to decline. The letter of 20 November 2000 from the UCSA doctor to the applicant confirmed that his health was deteriorating and referred only to the possibility of a remission in the disease. All those factors show that the applicant’s illness was progressing and that the prison was scarcely equipped to deal with it, yet no special measures were taken by the prison authorities. Such measures could have included admitting the applicant to hospital or transferring him to any other institution where he could be monitored and kept under supervision, particularly at night. [48] In the final analysis, the Court considers that the national authorities did not take sufficient care of the applicant’s health to ensure that he did not suffer treatment contrary to Article 3 of the Convention. His continued detention, especially from June 2000 onwards, undermined his dignity and entailed particularly acute hardship that caused suffering beyond that inevitably associated with a prison sentence and treatment for cancer. In conclusion, the Court considers that the applicant was subjected to inhuman and degrading treatment on account of his continued detention in the conditions examined above. There has therefore been a violation of Article 3 of the Convention.”

“[3] What counts in my opinion is a nexus of facts. … That factual nexus is the reason why I and the majority of my colleagues reached the finding of a violation. [4] Moreover, that finding must be placed in a wider context, that of the special treatment to be given to prisoners whose state of health gives cause for concern. In cases like that of the victim, such concern might even entail a decision that their state of health is incompatible with committal to prison, or in any case with continued detention. [6] Our Court itself is becoming more and more sensitive to this concern. It has frequently stated in its judgments that assessment of the question whether treatment reaches the minimum level of severity for the purposes of applying Article 3 may depend on the sex, age and state of health of the victim. I might also mention, although the facts were different (the prisoner being seriously disabled), Price v United Kingdom (2001) 34 EHRR 1285, with the separate opinion of Sir Nicolas Bratza, whom I joined, and the separate opinion of Judge Greve; the authors of those opinions considered that the very principle of committing the applicant to prison was incompatible with Article 3 on account of her condition. See also the recent Mouisel v France in which the Court unanimously held that there had been a violation of Article 3 on account of the conditions of treatment and continued detention of a person suffering from an incurable illness. [7] I naturally do not underestimate the difficulties the judicial authorities have to face when they are required to determine what kind of sentence to impose on an offender in bad health or those of the prison authorities and health services when they have to choose between treatment on the spot and admission to a hospital outside prison, especially as ill health among prisoners is unfortunately not an exceptional circumstance, particularly on account of the ravages of drugs among offenders. But if I return to the instant case, I think that all those authorities, for their part, underestimated the seriousness of Ms McGlinchey’s personal condition. The accumulation of errors was such, in my opinion, as to constitute in the final analysis a violation of Article 3.”

“The imprisonment of criminal offenders is an end in itself. The necessary ingredients of imprisonment, provided that they meet the standards considered acceptable at the time, are unlikely to amount to inhuman or degrading treatment or punishment under Article 3. The detention of psychiatric patients is a means to an end, the assessment and treatment of their mental disorder. Conditions of detention which defeat rather than promote that end are much more likely to amount to inhuman or degrading treatment. The Keenan case, which concerned a mentally ill prisoner, is a good illustration of this.”

“where the state itself has deprived a vulnerable person [of] his liberty … the state itself is responsible for how that person is treated. In such cases, the state ought to know enough about its own prisoner or patient to provide effective protection from inhuman or degrading treatment by the state’s own agents. As the Strasbourg Court observed in Pretty v United Kingdom (2002) 35 EHRR 1, at para [50]: “[Article 3] may be described in general terms as imposing a primary negative obligation on States to refrain from inflicting serious harm upon persons within their jurisdiction.””

“notified by the responsible medical officer … that [the patient] no longer requires treatment in hospital for mental disorder”

“[39] … As RMO, Dr Hayden was required to take an overall view when applying the treatability test. … If, which Dr Hayden does not accept, there was a dissenting view from Dr Evershed, it was still for him to make the clinical judgment required by s 50 when deciding to notify the Secretary of State. The responsibility was his and the rationality of his judgment is not challenged ... [47] … The issue [under section 50(1)] is treatability and the Secretary of State’s decision necessarily turns upon a clinical judgment, that of the RMO, and if that judgment was fairly and rationally made, a duty in the Secretary of State to permit and consider representations does not … arise.”

“a person with special qualifications is equipped in the public interest with statutory powers which impact directly on someone’s physical and moral autonomy … such power carries a heavy burden of responsibility. The SOAD’s opinion, while of course it is clinical, has legal and moral dimensions which cannot be marginalised and which are in every sense the SOAD’s business and – if necessary – the court’s.”

“although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court’s role is essentially one of review: see per Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paragraph 27.”

“[25] 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. [26] 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. [27] 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.”

“In R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2002] 3 WLR 1276, it was made clear by the House of Lords that the court’s role is to exercise a function of supervisory review, rather than to engage in a merits review. As Lord Hutton states at para 70: “the question is whether the Secretary of State was entitled to certify that the appellant’s allegation was manifestly unfounded”, rather than “the substantive one whether the removal of the appellant to Germany would breach his human rights under article 3”

“An arrested or detained person is entitled before such a court to a review of the “lawfulness” of his detention in light not only of domestic law requirements but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by para (1). This does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person subject to the type of deprivation of liberty ordered.”

“[61] The passages from the judgment of Collins J to which we have referred above suggest that he considered that there will be a breach of Article 3 if the Secretary of State refuses permission to an asylum seeker where there is a real risk that, because he will receive no support from any alternative source, he will decline into the kind of state described in Pretty. The “real risk” test is one that Strasbourg has applied in the case of removal to a country in circumstances where the removing State will no longer be in a position to influence events. We do not believe that it is an appropriate test in the present context. [63] Unlike Collins J we do not consider that the fact that there is a real risk that an individual asylum seeker will be reduced to this state of degradation of itself engages Article 3. It is not unlawful for the Secretary of State to decline to provide support unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself.”

“The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”

“It is likely that [the claimant] will require further input from this service at a future date in terms of rehabilitation back into the community. It is of course also possible that his mental health will deteriorate especially if he defaults on medication, requiring further treatment in hospital. In either case we are willing to be involved.”

“[The claimant] suffers from a mental disorder, namely mental illness (Paranoid Schizophrenia F20.0) and psychopathic disorder (Emotionally unstable personality disorder with both impulsive and borderline traits F60.3 and F60.31) and his mental disorder is of a nature and degree which makes it appropriate for him to receive medical treatment in a hospital; and in the case of psychopathic disorder such treatment is likely to alleviate and prevent a deterioration of his condition; and it is necessary for his health and safety and for the protection of other that he should receive such treatment … Persons, such as [the claimant], who suffer from serious and endangering mental illness (with or without a personality disorder) and are also subject to life sentences are subject to double jeopardy. They cannot be released on life licence because they are mentally ill and unstable; and if transferred to hospital they cannot be conditionally discharged and when recovered are returned to prison only to become ill again. They are ineligible for rehabilitation because of their status as life sentence prisoners. This is an invidious and unjust state of affairs and the Home Office has recognised this and can change the status of a life sentenced prisoner to that of a “technical life sentence” where-by the prisoner is treated as if he was subject to a hospital order together with a restriction order. The clinical team is then able to offer the patient the treatment and rehabilitation he needs and make appropriate recommendations concerning conditional discharge … In conclusion I am recommending that [his] case be reviewed by the Mental Health Review Tribunal before a decision is made to return him to prison and that the Home office make him a technical life sentence prisoner. ”

“[The claimant] suffers from a serious personality disorder and paranoid schizophrenia. At the time of the offence he was isolated, paranoid and disturbed. It was in the context of an un-treated mental illness that he killed his brother. He has not done well in prison although he has been compliant with anti-psychotic medication. He cannot participate in the lifer programme and remains in closed conditions as he approaches tariff. He spends long periods in segregation and in the Health Care Centre. He has self-harmed and bangs his head against his cell wall. On one occasion he swallowed a razor blade and was removed to the segregation unit for adjudication. Prisons cannot cope with severely disordered inmates and [he] should be in hospital. His treatment needs to be given in a therapeutic environment where he is not punished for erratic and disturbed behaviour. At the moment he is in a Catch 22 situation. He is mentally disturbed in prison because he is mentally ill and therefore has no prospect of release on licence; and he cannot be conditionally discharged from hospital because he is a life sentenced prisoner and when he is deemed not to require treatment for mental illness in hospital, he is returned to prison where his illness relapses within weeks. I agree with Dr Shetty about the diagnosis but not about his management of this case. I accept that [the claimant] improves in hospital and that treatment with Clozapine has been successful in ameliorating his psychotic symptoms. I am also aware that, because of his emotionally unstable personality disorder together with a long-standing largely un-treated mental illness and having spent seven years in prison, he is difficult to motivate and refuses to precipitate in the ward programme. This is a therapeutic challenge which can only be successful undertaken with the support of a dedicated clinical team. There is no possibility that [he] can receive any effective treatment in prison. As a detained patient under the Mental Health Act, [he] is entitled to psychiatric supervision when he leaves hospital and is returned to prison. However, he has not had six monthly CPA reviews since he was discharged from hospital on the 8 January 2001. What actually happens is that he goes back to prison, his illness relapses and he is re-admitted to the Norvic Clinic after waiting up to seven months for a bed. Opinion [He] suffers from an enduring mental illness and severe personality disorder. He is likely to require treatment is hospital as a detained patient for many years. He needs slow rehabilitation through medium security followed by continuing care in a ward for the chronically mentally ill. He would benefit from all aspects of a rehabilitation programme; none of which is available in prison. The risk [he] poses can only be assessed in hospital.”

“This is [his] second admission to the Norvic Clinic and from my clinical observations I am not persuaded that he has a “persistent disorder or disability of mind which has resulted in abnormally aggressive or seriously irresponsible conduct” during that time. I am also not persuaded that treatment at the Norvic Clinic is likely to alleviate or prevent a deterioration of his condition. As far as his mental illness is concerned, as I have stated in my previous reports [he] is currently well and compliant with medication. There have been no episodes of violence or self-harm of note during the current admission.”

“It is highly unlikely that any such relapse would be life threatening or would have significantly adverse consequences for the claimant’s health or well being given that he will be under the immediate care and attention of the prison services and the visiting psychiatric services … it is very unlikely that any relapse would be untreated for any significant length of time, or have any deleterious effect on his long-term health or well-being.”

“First, [his] active delusional symptoms would be subjectively very distressing. In my opinion those symptoms are so severe that to allow him to suffer a relapse when the means are available to prevent him so suffering could be described as “inhuman” or “degrading”, particularly if after a relapse he were to suffer those symptoms for many months. Second, [his] self-harming and aggressive behaviour, which is a symptom of his underlying personality disorder, increases in frequency and intensity when his mental illness deteriorates. Third, the likelihood of [his] mental illness (schizophrenia) relapsing in prison so that he again suffers those symptoms is extremely high: in my view, almost 100% If it does so he will need to be transferred back to hospital. That process is likely to take many months, if not years, as it has in the past. Fourth, [he] suffers from a mental illness and mentally ill “lifers” who also have a personality disorder and cannot cope with prison do not stand any chance of release. It would be reasonable if the doctor responsible for managing this patient’s care accepted that the best chance for this patient to remain mentally well is for him to be in hospital and his treatment planned over years. To continue to detain him in prison where the prospect of release is held out to him by regular parole board reviews but when, in fact, such a prospect is wholly illusory is, in my view, quite wrong and could be described as “inhuman”.”