K, R (on the application of) v West London Mental Health NHS Trust [2005] EWHC 1454 (Admin)

Case No CO/3240/2005[2005] EWHC 1454 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 6 July 2005
Before
THE HONOURABLE MR JUSTICE LIGHTMAN
Between
THE QUEENClaimanton the application ofClaimantKClaimantWEST LONDON MENTAL HEALTH NHS TRUSTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Nathalie Lieven (instructed by Scott-Moncrieff, Harbour & Sinclair, Office 5, 19 Greenwood Place, London NW5 1LB) for ClaimantJeremy Hyam (instructed by Capsticks, 77/83 Upper Richmond Road, London SW15 2TT) for Defendant
Judgment

INTRODUCTION

[1]The Claimant (a restricted patient) on this application seeks permission to challenge, and (if permission is granted) seeks to challenge, the decision (“the Decision”) of the Defendant (which is responsible for his health care needs) not to fund his placement at Farmfield Hospital (“Farmfield”), a hospital in the private sector. The Claimant wishes to move from the NHS high security hospital at Broadmoor (for which the Defendant is responsible) where he currently resides to a medium secure hospital and in particular Farmfield. The Claimant’s responsible medical officer (“RMO”) Dr Sarkar strenuously supports this move and this application. The application raises questions of construction of the Mental Health Act 1983 (“the Act”) and in particular section 17 of the Act. Section 17 provides that the RMO in respect of a patient detained in a mental hospital may grant to that patient leave to be absent from that hospital and direct that during the leave of absence he reside in another hospital. 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.[2]The issue raised is of some importance and difficulty on which Counsel have afforded valuable assistance. I accordingly grant permission to challenge the Decision and in this judgment shall consider the merits of the substantive challenge.

STATUTORY FRAMEWORK

[3]Before I turn to the facts, it is convenient to set out the relevant statutory framework. The Secretary of State is under a duty to continue to promote a comprehensive health service: section 1(1) of the National Health Service Act 1977 (“the 1977 Act”). He is under a duty to provide through England and Wales, to such extent as he considers necessary to meet all reasonable requirements, (amongst other things) for hospital accommodation and medical services: section 3(1)(a), (c) of the 1977 Act. These duties give patients no absolute right to treatment, for in the real world National Health Service authorities have limited budgets and cannot provide all necessary treatment.[4]The Secretary of State delegates certain of his health service functions to various national health service authorities, including primary care trusts. The Defendant is the relevant primary care trust for commissioning services for the Claimant. The Defendant has two medium secure NHS hospitals, namely the Rollo May and the Three Bridges. The Defendant has delegated the power to commission services to its Forensic Services Division which manage the budget and make funding decisions on behalf of the Defendant in respect of transfers of patients at Broadmoor to other hospitals and grants of leave of absence to such patients permitting them to reside (e.g. for trial periods) in other hospitals.[5]The 1977 Act provides for transfers of patients in section 19 and which reads as follows:
“In such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State— (a) a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may with the consent of the Secretary of State be transferred to another hospital…”
Regulation 7(2)(a) of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 provides that the authority for transfer is to be given by the managers of the hospital in which the patient is liable to be detained. (a) a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may with the consent of the Secretary of State be transferred to another hospital…”[6]The 1977 Act provides for the grant of leave of absence in section 17 which reads as follows:
“Leave of absence from hospital 17.—(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, subject to subsection (5) below, 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. (5) A patient to whom leave of absence is granted under this section shall not be recalled under subsection (4) above after he has ceased to be liable to be detained under this Part of this Act; ….”
[7]In view of the fact that the Claimant is a restricted patient, under section 41(3)(c) of the 1977 Act no transfer or grant of leave is possible without the consent of the Secretary of State who has special responsibility for the security of the public.

RELEVANT HISTORY

[8]The Claimant suffers from paranoid schizophrenia characterised by grandiose, persecutory and paranoid delusions and has a history of physical aggression. Following his conviction for the attempted murder of his landlord he was admitted to Broadmoor on the 15th June 1982 where he is a restricted patient detained pursuant to sections 37 and 41 of the Act. In late 1998 he was transferred from the high dependency and more closely supervised Banbury Ward 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. In August 2002 Dr Sarna, consultant psychiatrist at Farmfield, took the view that he was not yet ready to move to medium security. In April 2003 Dr O’Keefe, a consultant psychiatrist at Tony Hillis United, Southall came to assess the Claimant regarding a possible transfer to Farmfield. The conclusion reached was that the referral should be put on indefinite hold. In June/July 2003 the Claimant’s mental state deteriorated. On the 7th October 2003 unprovoked the Claimant punched another patient and stabbed him in the back with a pen, an incident which led to his retransfer from the Canterbury Ward to the Banbury Ward. About this time Dr Sarkar became the Claimant’s responsible medical officer.[9]On the 8th April 2004 Dr Sarna assessed the Claimant. He expressed concern whether the Home Office would agree to a move to trial leave in a medium security hospital from a high dependency ward such as Banbury Ward, but expressed the view that, if the Claimant remained settled in an ordinary ward for three months without any violent incident, he could be considered after assessment for long term placement in a medium security hospital.[10]Shortly thereafter the Claimant had ECT treatment and started taking the drug clozapine which he had previously refused to do. In his report dated the 10th September 2004, whilst noting some consequent improvement, Dr Sarkar stated that the Claimant’s mental illness made it appropriate that he be detained in hospital for medical treatment for his own health and safety and for the protection of others, that he was appropriately detained in conditions of high security and that he could not recommend any transfer to a medium security hospital.[11]On the 12th November 2004 Dr Sarna again assessed the Claimant. In his report, he noted the Claimant’s improvement and that the decision to keep him in the Banbury Ward was made for reasons which did not reflect any clinical need to do so. He expressed the view that the time had come to give the Claimant a trial at a medium secure unit and offered a place at Farmfield where the range of facilities and therapies available would meet his needs.[12]Dr Sarkar changed his view and now favoured such a transfer. On the 30th November 2004 the Mental Health Review Panel had before it an application by the Claimant supported by Dr Sarkar for an extra-statutory recommendation for a transfer to a medium security hospital. Reflecting the change of view of Dr Sarkar the Tribunal in its decision made the non-binding recommendation that such a transfer should take place, noted that the Claimant was currently in the Banbury Ward, not because of any clinical need, but to preserve continuity since a degree of trust had built up between the Claimant and the clinical team there and that Dr Sarna was willing to accept the Claimant from the Banbury Ward.[13]On the 10th December 2004 Dr Akinkumi, consultant psychiatrist at Rollo May, assessed the Claimant. In his report he stated that in his current state the Claimant neither met the criteria for transfer to Rollo May on trial leave nor would he be suitable for an intensive and active rehabilitation programme such as he would be required to undertake there. He added in regard to the offer by Farmfield that whether the Claimant would be suitable for other more acute medium secure services elsewhere within the NHS or in the independent section was a matter for them.[14]On the 10th January 2005 Dr Sarkar made application to the Home Office for approval of trial leave. On the 11th February 2005 the Home Office gave approval for 1 day’s visit to Farmfield which (I am told) was a success.[15]Dr Sakar then applied to the Defendant’s relevant decision making body, the Independent Placement Sector Panel (“the Panel”), for funding for a period of trial leave at Farmfield. The response by letters dated the 16th and 17th February 2005 was that funding would not be available where the treatment could be provided by the Defendant’s hospitals and that it was not apparent that the Claimant was ready to move to a medium security hospital. In response Dr Sarkar wrote on the 17th February 2005 that Farmfield had something different to offer from the Defendant’s NHS hospitals, namely a facility willing and able to offer the Claimant a bed.[16]On the 18th March 2005 Dr Treasaden, the Clinical Director of the Claimant’s catchment area, wrote to Dr Sarkar that funding would be unlikely for placement in an independent section medium secure facility whilst the responsible NHS consultant forensic psychiatrist considered that he was not suitable for placement at the medium secure units at Rollo May or Three Bridges. He concluded that, if Dr Sakar still considered that the Claimant should be transferred to conditions of medium security, he should liaise with Dr Bustos, the locum consultant for the Three Bridges Unit. He did so.[17]On the 11th May 2005 the Claimant expressed delusional beliefs that fellow patients were plotting to kill his family and he threatened to kill a fellow patient.[18]On the 16th May 2005 Dr Bustos gave his assessment. He stated that he was not satisfied that the Claimant could be safely managed within conditions of medium security as pertain within Three Bridges. He concluded that it should be recognised that the decision to admit a patient to a given unit must remain with those professionals in that unit.[19]On the 23rd May 2005 the Claimant commenced these proceedings. On the 31st May 2005 Dr Kevin Murray, Associate Medical Director for Forensic Services of the Defendant, discussed the case with Dr Sarkar and expressed the view that the contemplated transfer of the claimant to Farmfield was clinically inappropriate. He emphasised the view that statistics established that transfer from a high dependency ward at a high security hospital direct to a medium secure hospital without an intervening stay in a low dependency ward in the high security hospital were unsuccessful.[20]On the 1st June 2005 the Claimant was involved in a serious incident when he obtained a knife in the dining room and attempted to take it out of there in a delusional belief that he needed to use it to protect his family. On the 2nd June 2005 the Claimant verbally abused a fellow patient expressing the delusional idea that the patient was harming the Claimant’s family.[21]On the 2nd June 2005 Dr Treasaden wrote to Dr Murray confirming the view that the Claimant should not be moved from Broadmoor either to Rollo May or Three Bridges.[22]On the 15th June 2005, Dr Horne made a report based, not on recent clinical examination, but on full access to the Claimant’s notes, which concluded as follows:
“OPINION 1) I am quite satisfied that [the Claimant] 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 are directly involved in his care. 2) I have believed since 1998 that [the Claimant] was ready to move to medium security, and whilst the two 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 cop 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.”
[23]On the 16th June 2005 Dr Sarkar wrote a further report supporting the move to Farmfield and stated that “statistics” in relation to direct moves from high dependence wards at high security hospitals provided no guidance in respect of the Claimant.[24]On the 17th June 2005 Dr Sarna wrote confirming that despite the Claimant’s deterioration he was prepared to accept the Claimant, and the Home Office wrote stating that they were prepared in principle to agree to the period of trial leave at Farmfield depending on evidence that the Claimant’s mental health and behaviour remained stable since he started taking clozapine and that no other areas of concern were highlighted in his risk assessment. The same day Dr Bustos reassessed the Claimant after an interview with him that day. Noting the recent deterioration of his condition, Dr Bustos expressed the view (agreeing with a statement of Dr Sarkar on the 13th June 2005 on a Consent to Treatment Form) that the Claimant’s mental state had deteriorated with increasing paranoia. He concluded:
“In conclusion, it is my view that [the Claimant’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 1st June 2005 clearly demonstrates that [the Claimant] 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 [the Claimant] 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 [the Claimant‘s] current clinical team does not consider that he requires the security afforded by Broadmoor Hospital [the Claimant’s] past history, as well as his current presentation, including the incident of 1st June 2005 demonstrates in my view that it would be premature to transfer him out of Broadmoor at this stage.”
[25]On the 18th June 2005 Dr Murray gave a report that differences of medical view amongst the Defendant’s staff as were apparent in this case were not unusual and had to be resolved by him, and that having seen the report by Dr Bustos, the view of the Defendant remained that on clinical grounds it was premature to transfer the Claimant to any medium secure hospital and consequently refused funding.[26]On the 22nd June 2005 Dr Sarkar wrote continuing to support the Claimant’s proposed move. On the 28th June 2005 Mr Sean Payne, the Defendant’s director of Forensic Services made a witness statement confirming that Dr Sarkar had authority on behalf of the Trust to make the decision which he did and resolve differences in clinical opinion. On the 30th June 2005 the Secretary of State wrote that in principle he agreed to the move.

THE ISSUES

[27]The first issue raised is whether a grant of leave of absence by the RMO directing a stay by the Claimant in another hospital has the legal effect of triggering an obligation on the part of the Defendant to fund the costs of the residence of the Claimant in that hospital.[28]The leave of absence to be granted by the RMO under section 17 of the 1977 Act is something different from the transfer which may only be authorised by the managers under section 19. The leave of absence is for any short absence or stay away from the hospital e.g. to attend a wedding or funeral or for a trial stay at a different hospital. The permission of the hospital where the patient resides is required for any such absence from the hospital and section 17 provides that it is sufficient for this purpose to obtain the authorisation of the RMO. The grant of the leave of absence, if it is to be taken up and exercised, may or may not involve some expenditure e.g. in respect of the cost of transport or a stay elsewhere. As a matter of principle, it cannot be appropriate to construe section 17 as providing that, in granting leave of absence, the RMO is statutorily empowered to authorise on behalf of his health authority any expenditure involved. The RMO is required in deciding whether to grant leave of absence to have in the forefront of his mind the well-being of the patient and whether the grant may expose others to any unacceptable risk of harm. He cannot be expected to make the funding choices which may need to be made by the authority in determining how its limited resources should be expended. That choice remains to be made by the managers of the hospital. In a word the RMO decides on clinical grounds whether or not leave of absence (and in particular leave of absence requiring a stay in another hospital) shall be granted, but the managers decide whether its resources can and should be expended in funding the recommended stay. This is the position whether or not the patient is restricted.[29]The question thereupon arises as to what considerations the managers of the hospital can take into account in deciding whether or not to fund the costs of a stay at another hospital for which the RMO has granted leave of absence.[30]In making its decision whether or not to fund such a stay, the managers need to evaluate and balance one against the other the clinical and resource considerations. The managers have to form a view as to the clinical advantages or disadvantages of the proposed move???. For this purpose they must give due weight to the views of the RMO, but they are not bound to agree with him. If the managers are to disagree with his clinical judgment, they should have good and substantial reasons for doing so, but it must be recognised that differences of expert medical opinion are not infrequent. If the managers disagree without sufficient reason, their decision may be open to challenge on Wednesbury grounds. If the managers do accept that clinical ground to favour a stay at another hospital, the managers must then determine whether the benefit is such that, notwithstanding the impact on the limited resources available for its functions generally, the expenditure should be authorised.[31]For the propositions of law set out above, if support is necessary, it is to be found in the judgment of Sullivan J in R on the application of F [2001] EWHC Admin 535 paras 60-72.[32]On the facts of this case it is clear that the decision of the Defendant not to fund a stay at 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 Mr 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.[33]The critical issue before me is accordingly whether the decision of the managers of the Defendant that the Claimant is not clinically fit to leave Broadmoor and to stay at any medium secure hospital is open to challenge as Wednesbury unreasonable.[34]Ms Lieven has presented a formidable case in support of this contention. The clinical evidence in favour of trial leave at Farmfield is substantial: i) it is strenuously supported by Dr Sarkar, the Claimant’s RMO who has known him for a long time and worked with him; ii) it is supported by Dr Horne, the Claimant’s previous RMO. It should however be noted that Dr Horne has not seen the Claimant since October 2003 and has not seen the latest report of Dr Bustos; iii) it is supported by Dr Sarna, the consultant psychiatrist at Farmfield who obviously best knows Farmfield and its facilities. But he also has not seen Dr Bustos’s latest report iv) all three of them remain of this view despite the recent deterioration in the Claimant’s condition (which is described by Dr Sarkar as a “blip” brought on by this dispute); v) it is also supported by the view expressed by the MHRT, though its view needs to be discounted by the fact that it was expressed some time ago prior to the recent deterioration; vi) the Secretary of State (with particular responsibility for security) has agreed to the move.[35]On the other side the Defendant’s decision rests essentially on the recent report dated the 17th June 2005 of Dr Bustos. As it seems to me limited reliance can be placed on his earlier report dated the 16th May 2005 or the report of Dr Akinkumi because they were essentially directed to whether the Claimant was fit to enter their units: they did not address the question whether he was fit for a transfer to medium secure units generally or Farmfield in particular. Dr Treasaden and Dr Murray have not met or examined the Claimant. Their views must rest on the assessment of those who have and in particular of Dr Bustos.[36]Ms Lieven has pointed out certain shortcomings and an apparent lack of consistency in Dr Bustos’s latest report: i) on page 1 Dr Bustos says that on his assessment on the 17th June 2005 the Claimant’s presentation had deteriorated somewhat since his last assessment on the 22nd April 2004; on page 2 he said that the Claimant “presented largely unchanged”; and on page 3 he said that the Claimant’s mental state had deteriorated with increasing paranoia; ii) there is on page 3 a reference to suitability at Three Bridges and no reference to Farmfield. It is not apparent that Dr Bustos has visited Farmfield or knows the security there or its facilities. But the thrust of the report is that the Claimant’s condition is such that he ought not to move out of Broadmoor to a medium security hospital; iii) Dr Bustos continues to insist on a move within Broadmoor to a lower dependency ward before the Claimant goes to a medium security hospital despite views expressed to the contrary (in particular) by the MHRT, Dr Horne and Dr Sarkar; iv) the Claimant has a severe speech difficulty which may render it unsafe for Dr Bustos to place too much reliance on what he thought the Claimant said.[37]I find the decision on the question before me very difficult. This is not least because I do not have the clear, well-directed and up-to-date evidence which could have been made available. I do not know the possible impact on Dr Horne or Dr Sarna of Dr Bustos’s recent report. I do not have the specific evidence of Dr Bustos on the suitability of Farmfield and I regret the apparent shortcomings in his report ear marked in Ms Lieven’s criticisms which could easily be made good one way or the other. I can only do the best I can on the material before me. On that material with some hesitation and by a narrow margin I consider that the Defendant could reasonably follow the advice of Dr Bustos and take the view that the Claimant ought not to be transferred out of Broadmoor at this stage. “On paper” the evidence on which Ms Lieven relies to a layman may well carry greater weight than the evidence of Dr Bustos (in particular subject to the apparent shortcomings). If I had to decide on the existing evidence whether or not clinical considerations militated in favour of a stay at Farmfield I might well have decided that they did. But that is not my role. My role is limited to deciding whether in the light of the Claimant’s history and the relevant evidence as a whole the decision of the Defendant that clinical considerations did not yet merit or allow for such a stay was one which the Defendant (and Mr Murray) could reasonably reach. I think that it could do so.[38]I have in mind that he has been there 23 years and that a place at Farmfield in place of the presently available may not become available again for a lengthy period. But on the evidence before me I do not think that I can properly grant relief. I should add however that in my view it is most desirable that the Defendant instruct Dr Bustos to prepare a full up-to-date report dealing with all the evidence before me specifically directed at a proposed trial stay at Farmfield, for the purposes of which he should visit Farmfield and consult Dr Sarna. In the light of this report, the Claimant may consider seeking the views of Dr Sarkar, Dr Sarna and Dr Horne in the light of Dr Bustos’s latest report and of that report. In the light of that exercise it may be that the clinical issue will require reconsideration by Dr Murray and indeed the court.

CONCLUSION

[39]I accordingly grant permission to bring judicial review proceedings but decline to grant the relief sought in those proceedings.