B, R (on the application of) v Secretary of State for the Home Department & Anor [2006] EWHC 659 (Admin)

Case No CO/3183/2005[2006] EWHC 659 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 20 March 2006
Strand
London WC2
B E F O R E:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF DBClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendantASHWORTH HOSPITAL AUTHORITYInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR H SOUTHEY (instructed by Peter Edwards Law) appeared for CLAIMANTMR M CHAMBERLAIN (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T

Introduction

[1]The claimant in this case, whom it is sufficient to identify as D, was born on 4 January 1970, a boy. D had a very troubled childhood with much time spent in local authority care; with repeated admissions to local psychiatric units; and with a very long history of self-harm. D also acquired a significant criminal record. The offending included several offences of arson, and there have been numerous other instances of arson related behaviour. Reports suggest that it appears it is only through luck that no one had been killed or seriously injured through D's proclivity for starting fires.[2]On 3 May 2002 D was sentenced to a term of four years and four months' imprisonment by the Crown Court at Mold, the principal offence being an offence of arson. In consequence, D was imprisoned in HMP Altcourse, a male prison. D's automatic release date was 25 February 2005. D had throughout continued to be the subject of intensive investigation and assessment by the psychiatric and probation services.[3]For a number of years D has regarded herself as a woman: that is to say, D is a male to female transsexual. However, D has not to date had any operative treatment leading to gender re-assignment; nor has she obtained a certificate under the Gender Recognition Act 2004, which came into effect, as I was told, on 4 April 2005. Whilst in HMP Altcourse, D was permitted to dress as a woman whilst in her cell and to wear gender neutral clothing in public areas. She had been undertaking hormone treatment in the meantime.[4]Before her release date, concerns were being expressed about D's mental health and about the protection of herself and of the public. In consequence, she was referred to the Personality Disorder Service at Ashworth Hospital, a high security psychiatric hospital. I will have to come on to mention some of the reports that were prepared in that particular context, but the eventual outcome was that, on 23 February 2005, the Secretary of State directed that D should be transferred to Ashworth under the provisions of section 47 and section 49 of the Mental Health Act 1983. The transfer was effected on that date, which was of course very shortly before D would otherwise have been released from prison.[5]It is important to emphasise at the outset that D makes no complaint about the fact of section 47 powers being exercised in her case, or about the fact of her detention in a secure psychiatric hospital. Her complaint, in fundamentals, is about the conditions of her detention, and specifically about the fact that she was placed on a male ward (albeit having her own private room and private facilities) at Ashworth, which is an all male hospital. D's claim is that the circumstances of her detention at Ashworth were such as to infringe her rights under Articles 3 and 8 of the European Convention on Human Rights.[6]The claim form was issued on 23 May 2005. By it, D sought quashing orders of the decision to transfer her to Ashworth under section 47 of the Mental Health Act 1983, and of what was said to be a continuing decision to refuse to transfer D away from Ashworth Hospital to another hospital under the powers available to the Secretary of State under section 123 of the Mental Health Act 1983. In this regard, sections 47 and section 123 of the 1983 Act read as follows:
"47(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners - (a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital [...] as may be specified in the direction; and a direction under this section shall be known as 'a transfer direction'. (2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction. (3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case. (4) A transfer direction shall specify the form or forms of mental disorder referred to in paragraph (a) of subsection (1) above from which, upon the reports taken into account under that subsection, the patient is found by the Secretary of State to be suffering; and no such direction shall be given unless the patient is described in each of those reports as suffering from the same form of disorder, whether or not he is also described in either of them as suffering from another form. (5) References in this Part of this Act to a person serving a sentence of imprisonment include references- (a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings (other than an order under any enactment to which section 46 applies); (b) to a person committed to custody under section 115(3) of the Magistrates' Courts Act 1980 (which relates to persons who fail to comply with an order to enter into recognisances to keep the peace or be of good behaviour); and (c) to a person committed by a court to a prison or other institution to which the Prison Act 1952 applies in default of payment of any sum adjudged to be paid on his conviction. ... 123(1) Without prejudice to any other provisions of this Act with respect to the transfer of patients, any patient who is for the time being liable to be detained [...] under this Act (other than under section 35, 36, or 38 above) [in a hospital at which high security psychiatric services are provided] may, upon the directions of the Secretary of State, at any time be removed into any [other hospital at which those services are provided]. (2) Without prejudice to any such provision, the Secretary of State may give directions for the transfer of any patient who is for the time being liable to be so detained into a hospital which is not a special hospital. (3) Subsections (2) and (4) of section 19 above shall apply in relation to the transfer or removal of a patient under this section as they apply in relation to the transfer or removal of a patient from one hospital to another under that section."
The course of the proceedings[7]At the time the claim form was issued, discussions were in fact under way with another psychiatric unit, a medium secure hospital called the Caswell Clinic in South Wales, with a view to a place for D being arranged there (Caswell Clinic being a unit which caters both for male and female patients), but nothing eventuated at that particular time.[8]Permission was granted by Bean J on 29 June 2005. In granting permission, Bean J said this:
"The detention of even a pre-operative transsexual at Ashworth raises difficult issues of ECHR law. However, if the claimant is moved to Caswell Clinic, the case would in my view become moot, and certainly the merits of proceeding further would require careful reconsideration."
[9]In the event, a bed at Caswell Clinic did become available and D was transferred there on 20 July 2005. On the face of it, therefore, the case had become, in the word of Bean J, "moot". The Treasury Solicitor, on behalf of the Secretary of State, invited D to withdraw the claim. However, D did not do that. Instead, the claim was amended to include a claim for damages, as well as for declaratory relief, and legal aid was obtained to continue the claim on that basis. Thus, the principal focus of this claim has become one of a claim for compensation for alleged infringement of D's human rights, although that was not included in the original claim. That represents something of a departure from the usual position, or from what might have been anticipated. As pointed out in the case of Anufrijeva v Southwark LBC [2004] QB 1124; [2003] EWCA Civ 1406 at paragraph 53 of the judgment:
"Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance."
[10]At all events, the claim for damages is necessarily confined to the period of detention at the male ward in Ashworth Hospital from 23 February 2005 to 20 July 2005. As to that claim, the position of the defendant, in a nutshell, is that, in the circumstances of this case, there simply has been no infringement of Article 8, let alone of Article 3. The decision to transfer D to Ashworth[11]Turning to the circumstances of the original decision to direct a transfer to Ashworth under section 47 of the 1983 Act, it is clear that the matter was very carefully considered. In the latter part of 2004 and early part of 2005, D was seen by a number of psychiatric and other experts, being in due course referred by the North Wales Forensic Psychiatric Service to Ashworth, one of the three high security psychiatric hospitals in England and Wales (the others being Broadmoor and Rampton) with a view to assessment for transfer for the purposes of treatment of what was considered to be a severe and psychopathic personality disorder. The assessment process involved the consideration of various members of the relevant multi-disciplinary term at Ashworth, who had all interviewed and assessed D.[12]Thus, the very detailed and thorough pre-admission nursing assessment recorded that "D has always stated that he is willing to undergo admission to Ashworth Hospital for treatment as long as he continue with his gender re-assignment". The concluding opinion of that report was expressed in the following way:
"It is highly likely that [D] will refuse to come to Ashworth if he cannot continue his quest for gender re-assignment. As Ashworth is an all male facility obviously there are legal, ethical and moral issues that would have to be pursued and explored through the relevant legal channels should [D] be excepted (sic) for admission and assessment of his personality disorder while still continuing treatment for gender re-assignment. [D's] current medication will ultimately present him with female sexual characteristics and being nursed in an all male environment would require complex nursing interventions, careful planning and tactful management to ensure his ongoing safety during this vulnerable transition period. [D] has [a] long history of behavioural problems and has previously been diagnosed with a personality disorder of the emotionally unstable borderline type. There is a distinct possibility that [D] will re-offend when at liberty once again in the community and nursing staff feel that [D] may benefit from a period of strict structured nursing care within an in patient setting where his ongoing problems can be identified and explored further with relevant professionals. Assessing staff feel that many of the interventions here at Ashworth could help [D's] personality and behavioural deficits both now and in the future. Although assessing staff at present feel that [D's] personality and behavioural problems could be addressed in conditions of lesser security and at present does not fit the criteria for top security care within the PD unit."
[13]The report of the senior social worker, Mr Appleton, amongst other things, said this:
"If [D] is to be admitted to Ashworth Hospital, consideration needs to be given to the issue of managing her with regard to her continued hormone treatment and potential surgery for gender dysphoria. It is my view that if she were to continue to receive this treatment to the extent of having surgery then it would not be appropriate for her to be in an all male hospital, and that consideration should be given to this at an early stage. I can understand [D's] feelings of injustice that she had been referred to the hospital shortly before she is due to be released from prison, having served the full prison sentence. However, given the levels of risk that she presents I believe that an admission to hospital for assessment of treatability would be appropriate at the current time, but I do not consider that this can only take place in a high secure hospital, and I recommend that efforts be made to find an appropriate medium secure facility."
[14]The psychological report by Mr Sharp said this (amongst other things):
"It is clear from my initial assessments that she does fulfil admission criteria for psychopathy, personality disorder, and risk. However, I remain concerned that without a full neurological assessment questions remain about her treatability. Within the structured environment of the prison service and often within the segregated environment of the vulnerable prisoners wing, she has achieved some level of containment evidenced by a considerable reduction in her impulsive behaviour. Consequently, I would suggest that she should be considered for admission for assessment either to a suitable medium secure unit or in its absence for high secure admission assessment. The following assessment should be carried out ... "
Amongst those assessments recommended were further assessment and intervention regarding D's gender dysphoria and personality difficulties.[15]The report of the Specialist Registrar in Psychiatry, Dr Ashim, dated 2 December 2004, having expressed the view that D fulfilled the criteria for a diagnosis of transsexualism, made this recommendation (amongst other things):
"[D] does not require a high secure hospital placement to address her complex needs and manage the risk. She may benefit from a secure in-patient setting to address her personality problems. I would recommend that consideration be given to finding a medium secure setting that would best meet her needs, given the Gender Identity Disorder and her wish to have a sex change. A priority should be gender re-assignment and [D] needs a significant support in this."
[16]Overall, the tenor of the Ashworth Multi-Disciplinary Team assessment was, albeit with some reservations in particular as to treatability, to the effect that D did require and would benefit from treatment for her disorder, and that a direction, whilst D was still a prisoner, under section 47 was called for; but that, in the view of the Ashworth team, Ashworth was not the appropriate placement for D and her needs would be better served in a medium secure unit.[17]In my view, however, it is also clear from the reports that it was not being said that, simply and solely by reason of D's gender issues, Ashworth was a wholly unsuitable place for her: for example, in the report of Mr Appleton that was said to be an, in effect, necessary consequence only after any gender re-assignment surgery had taken place. But, in any case, this was not the sole consideration, as pointed out in a later clinical psychologist's report, from Dr Logan:
"Failure to respect [D's] desire to be a woman is guaranteed to result in a negative and distressed response from her. Acceptance of this desire, on the other hand, is the gateway to treatment engagement and her more effective management. However, although [D's] gender re-assignment is a very important aspect of her presentation, it must not be allowed to blind those who care for her to her other significant social as well as mental and personality disorder needs."
In particular, of course, the risk of harm both to herself and to others had to be borne in mind.[18]In fact, concerns were quite swiftly expressed with regard to the views of the Ashworth team, in particular to the view of the Ashworth team that it would be appropriate to place D in a medium secure unit. On 19 January 2005, Dr Chesterman of the North Wales Forensic Psychiatry Service responded to a letter dated 13 December 2004 from Dr Snowden, a Clinical Director of the Personality Disorder Service at Ashworth. In that letter Dr Snowden had recommended the transfer of D to a medium secure hospital, albeit that recommendation was not made on gender identity grounds. Dr Snowden had stated the view that a high security hospital placement was not necessary.[19]In his letter of response, Dr Chesterman queried whether gender re-assignment surgery was appropriate. (This was a view which had, as it happened, been independently expressed by Mr Riley, a psychosexual therapist, on 10 November 2004. Mr Riley had thought that D was "neither eligible nor ready for a programme of gender re-assignment", and that a more detailed assessment was needed to confirm the diagnosis of gender dysphoria.) Dr Chesterman went on in his letter to say this:
"In addition I am concerned that two members of your team that assessed [D], Dr Ashim, Specialist Registrar in Psychiatry and Mr Sharp, psychotherapist, appeared to reach very different conclusions. Dr Ashim concluded that gender re-assignment surgery should be considered a priority however Mr Sharp does not appear to share this opinion. Whilst I am not an expert in transsexual issues it would be my understanding that an individual with severe personality disorder and an extensive criminal history would not normally be considered to be a suitable candidate for such surgery. Furthermore, Dr Ashim states that there is no evidence that [D] isn't treatable however Mr Sharp expresses considerable reservations about treatability, which I would share. Although you have informed me that the admissions panel at Ashworth Hospital have determined that [D] would not be a suitable candidate for admission no explanation for this decision has been offered. Given the evidence of severe personality disorder including the presence of significant Hare Psychopathy, [D's] extensive criminal record and his stated intention that he will set a fire as soon as he is released into the community in my opinion the criteria for admission to the Ashworth Personality Disorder would be met in that he clearly poses an immediate and grave danger to the public should he be at liberty. Dr Sharp suggested that admission to a suitable medium secure unit should be sought but in its absence admission to high security was indicated. Since receipt of the reports from your team HCW have approached a number of facilities for treatment of personality disorder in the private sector all of whom have rejected him. Clearly the issue of treatability cannot be separated from a nature of any facility to which [D] may be admitted. I am sure you will be aware that the overwhelming majority of medium secure units including the regional secure for North Wales, Ty Llywelyn do not have the facilities for treatment of individuals with severe personality disorder. The overwhelming majority of the inpatients are individuals with schizophrenia. In my opinion therefore admission to the Ty Llywelyn Unit would be entirely inappropriate indeed unethical as it would amount to no more than containment. It cannot be the function of NHS Psychiatric facilities to act in this way. I understand at the time when [D] last appeared before the courts that a life sentence was available but that the court chose not to impose this. Without the availability of a personality disorder unit in Ashworth Hospital it would have been my opinion that the risk that [D] poses upon release should be dealt with entirely by the criminal justice system. However given that your team have expressed the opinion that D is treatable all be it with some reservations it would appear to me that your team must take responsibility for reaching this conclusion and offer admission. I would therefore urge you to persuade the admissions panel at Ashworth Hospital to reconsider their opinion."
[20]Dr Snowden responded to this letter by a detailed letter of 21 January 2005. In the course of that letter, Dr Snowden was at pains to emphasise that the recommendation of Ashworth was that there "may be" (his emphasis) some benefit in admitting D to lesser security. Dr Snowden also drew attention to the doubts expressed as to whether D was treatable.[21]It is also clear from the correspondence that efforts were being made at this time to find a placement for D in a hospital, whether in the public or the independent sector, of the kind favoured by Dr Snowden. But these efforts were not successful. In the meantime, the release date for D was imminent, and it was common ground that D, by reason of her personality disorder, continued to pose a significant risk of harm to herself and others. In the light of all this, the Mental Health Unit commissioned a further report, which was obtained from Dr Nathan, a Consultant Forensic Psychiatrist. His report, dated 11 February 2005, concluded in these terms:
"7. It is this matter, not surprisingly, about which there appears to be the most disagreement. Dr Snowden and Dr Ashim recommended medium secure settings. Dr Chesterman in the face of Ashworth's position about the treatability argued for high secure admission. Frank Sharp is equivocal. I do not feel that admission to an acute medium secure service such as Ty Llywelyn would be appropriate for the reasons set out by Dr Chesterman. I understand there have been developments since the case was considered by the Ashworth admissions panel. I have been told that a long list of private sector units have been approached and all have declined to consider admission. The unwillingness of the other units to consider admission does not change the assessment of clinical and risk issues. However it cannot be ignored in relation to admission criteria which are impressionistic and lacking in objectivity (this problem applies to all secure setting, not just Ashworth). 8. Having considered all the available information (particularly the level and breadth of personality pathology, the high likelihood of re-offending and the very high degree of potential harm in this event, and the more unique aspects of the case which in combination with the extensive personality disturbance are likely to present significant challenges in relation to therapeutic interventions and risk management) I believe that admission to high security is the only option."
[22]Having considered all the reports and a further letter from Dr Snowden dated 21 February 2005, the Mental Health Unit on behalf of the Secretary of State decided to direct the transfer of D to Ashworth. In my judgment, there can be no proper criticism of this decision. It accorded with the recommendations of a number of psychiatrists, including the strong recommendations of Dr Chesterman and Dr Nathan. It proceeded on the proper footing that D was a risk both to herself and to others, and that her disorder was on the whole assessed as treatable at Ashworth and that a high security unit was appropriate. The decision was made in the knowledge of, and having regard to, the gender issues raised. It is true that the direction did not accord with the recommendation of the Ashworth team itself. But that recommendation, as Dr Snowden himself had been at pains to emphasise, did not include an unequivocal rejection of the propriety of transferring D to Ashworth. Moreover, as Mr Chamberlain submitted, in my view rightly, the question of D's transsexuality had not been advanced as of itself a conclusive reason why the transfer to Ashworth simply could not be justified.[23]Accordingly, on the facts here, I reject the challenges mounted by Mr Southey on behalf of D as to the decision to direct a transfer of D to Ashworth. The continuing detention of D at Ashworth[24]In the event, however, Mr Southey's principal complaint in argument was not so much as to the initial decision to transfer D to Ashworth, but as to the subsequent failure to cause D to be transferred away from Ashworth to a female or mixed sex psychiatric unit. In the course of his submissions, however, Mr Southey expressly disclaimed any general proposition to the effect that the human rights applicable to all male to female transsexuals required to be detained in psychiatric hospitals necessarily required such transsexuals to be detained in a female ward. He acknowledged that each case depended on its own circumstances. He also acknowledged that, for example, a post-operative transsexual who has obtained a certificate of recognition under the Gender Recognition Act 2004 was not in the same position as one who, for example, was starting out in the early stages of transsexual assessment and hormone treatment. Mr Southey did in fact assert that it was likely that D would now fulfil all the requirements of section 2 of the Gender Recognition Act 2004. That may or may not be so. Certainly opinions had in the past expressed doubt as to the gender dysphoria issue. But at all events no such certificate has been sought or obtained, nor has there been any operative treatment undertaken with regard to gender re-assignment.[25]It is, I consider, clear from the evidence that, on the admission of D to Ashworth, a most careful assessment of her special position and her special needs (by reference to the gender issues) was undertaken by the staff at Ashworth. Decisions were taken as to the private facilities to be made available to D, she being allocated her own room and her own private lavatory facilities. Consideration was given and decisions were made as to her freedom to dress as a woman in her own room and in gender neutral clothes in public areas; as to monitoring her reaction to staff and other male patients; as to searching; and so on. Further, contact was made with numerous experts elsewhere in the gender identity field. To adopt a word that features prominently in Article 8, "respect" for D's particular position was undoubtedly manifested.[26]Further, that restrictions had to be imposed, for example on D's entitlement to dress as a woman at all times, by Ashworth with regard to D was clearly capable of being necessary and justified: see the reasoning of Richards J in R(ex parte E) v Ashworth Health Authority [2001] EWHC Admin 1089, a decision with which I respectfully agree.[27]That Ashworth, notwithstanding its continuing view that Ashworth was not the appropriate place for D, achieved a significant amount for D, both in advancing D's treatment and in settling her into an all male environment, is also shown by the contemporaneous reports. Thus, in the case of what was styled a six week review (in fact a very detailed report dated 19 April 2005), there are no reports of any incidents of self-harm and there are reports of an overall improvement in D. Further, the nursing report recorded this (amongst other things):
"[D] feels for the time being that this is the best place for her, but would like to be with other people like her/transgender. She does find it difficult being in an all male environment ... Although it is felt that [D] may be misplaced in an all male environment, she has settled into the ward and has been accepted by her peers."
[28]So far as recommendations were concerned, that particular nursing report records that D was to be further assessed by the Caswell Clinic with regard to possible future transfer, and was to remain at Ashworth for treatment of her personality disorder until a "more suitable placement" was found. The clinical psychologist had said this (amongst other things):
"[D] does not feel that she is a high risk of fire-setting at the present time because she feels fairly well contained in Ruskin Ward, even though she is not entirely happy about being there."
A little further on in that same report this conclusion is made:
"[D] has a diverse range of inter-connected needs. Careful management in her environment creates the potential for positive challenges to her world-view, which have the aim of developing and evolving her thinking processes and interpretations of events. It is my opinion that a slow and patient, consistent and clear approach to [D] will produce positive change, and that in turn her risk of harm to others and herself can be safely managed. The report to follow will be as explicit as possible on each of the areas highlighted in order to inform Ashworth Hospital staff for the duration of [D's] stay here and to be some useful information for the unit to which she will eventually be transferred."
[29]The care plan prepared by Ashworth, I might add, had recorded various needs of D as to gender issues and identified these as being the aims:
"Maintaining observations whilst in side room as per hospital security policy. [D] is currently undergoing gender re-assignment and is being care[d] for in a male patient environment under conditions of high security. To adhere to all hospital security policies whilst recognising [D's] individual gender needs. Risk of assault from others due to physical appearance. [D] to express herself in clothes she is comfortable in."
So far as the aims and expected outcome were concerned, that was recorded in these terms:
"To ensure [D's] dignity is maintained at all times. To identify and respect [D's] wishes when possible in terms of sensitivity to gender issues. D is in receipt of clothes sensitive to gender."
[30]That and other materials in the bundle before me show how careful Ashworth were being in having regard to D's special and particular circumstances. It is nevertheless the case that Ashworth throughout remained of the view that D's needs could be better met elsewhere, in particular in a mixed medium secure unit. Thus, Dr O'Halloran of Ashworth, in a letter dated 25 February sent to the North Wales Commissioners (although not sent to the Mental Health Unit) had said this:
"I am writing to you to express my concern that on the face of it, the male Personality Disorder Service at Ashworth High Secure Service, is not an appropriate placement for [D] ... In my view [D's], needs could be met in a medium secure service. My comments are subject to getting to know [D] better."
[31]A letter in broadly similar terms had been sent by Dr O'Halloran to Rampton Hospital, although not to the Mental Health Unit, on the previous day, 24 February 2005. That was with regard to Dr O'Halloran seeking to persuade Rampton to take on D. In the event, Rampton declined to do so.[32]This view point, overall, continued to be the view point maintained by those involved at Ashworth. In that context, Ashworth accordingly maintained its efforts to find a unit which, in its view, would be better suited to D's needs. Ashworth made contact with the Caswell Clinic in South Wales. In a report dated 23 May 2005, Dr Tegwyn Williams, Consultant Forensic Psychiatrist at the Caswell Clinic, had said this:
"Whilst [D] continues to require in-patient hospital treatment, I am not convinced that she requires nursing in conditions of special security."
He then gave his reasons. He went on to say that D presented with a range of clinical problems, that she considered herself to be female, and that he she presented as female in social interactions, and went on:
"Therefore, her placement in the male Personality Disorder Unit of Ashworth Hospital is inappropriate."
The report went on to say in paragraph 29:
"I would be willing to seriously consider [D] for a bed under my care at the Caswell Clinic for a treatment package."
He then went on to outline what the treatment package would include. He concluded that report by saying that he had asked his colleagues of both the male and female services at the Caswell Clinic to assess D to see where she would be best placed within the Caswell Clinic.[33]Overall, the evidence shows that no bed was available at the Caswell Clinic at this time, and further that the Caswell Clinic itself needed to make further assessments of D in order to assess her suitability for transfer to the Caswell Clinic.[34]Contact had also ultimately been made with the Mental Health Unit concerning a transfer of D away from Ashworth. By letter of 14 March 2005 to Dr Snowden, it was said by the Mental Health Unit that, since D had passed her release date, she was "no longer the responsibility of the unit". In further response to a letter from D's solicitors dated 3 May 2005, which letter, amongst other things, had referred to section 123 of the 1983 Act, it continued to be maintained by the Mental Health Unit that the Home Office ceased to have any control over D's detention at Ashworth, and that it was the management of Ashworth which had responsibility for a suitable hospital for D's treatment.[35]By letter dated 3 June 2005, however, it was accepted that the Home Office did have powers to transfer D under section 123 of the 1983 Act; although it was said that such power would only be exercised in the most exceptional circumstances in directing a transfer to a hospital that did not wish for clinical resource or other reasons to take a patient.[36]Mr Southey complained that this was an unduly restrictive approach to the application of section 123. But, in my view, that letter represents a valid view point. In this regard, reference can be made to the observations of Stanley Burnton J in the case of Re D [2004] EWHC Admin 2057. In that case, Stanley Burnton J drew attention to the practical considerations, which he there enumerated, which would "normally dictate" that the agreement of the receiving hospital was ordinarily necessary. That was a decision on the application of section 47 of the 1983 Act, but the points seem to me to be valid also for the purposes of section 123.[37]The letter of the Treasury Solicitor of 3 June 2005 went on to say that the Secretary of State had considered afresh whether to exercise his powers under section 123. The letter said this:
"My client has considered afresh whether to exercise his powers under section 123 in relation to your client. The first question that arises in this regard is to where the transfer is to be and, while my client notes that the clinical consensus is that a transfer to medium security would be appropriate, my client has, in its role of ensuring public protection, nonetheless considered whether it would be appropriate to direct your client's transfer to a high secure hospital, which provides women's services. My client has made enquiries in this regard as a result of which it has transpired that your client's case was in fact referred to Dr Travers, Director of Women's Services at Rampton Hospital by Dr O'Halloran, your client's RMO, on 24 February 2005 for assessment. Dr Travers' view, as set out in his letter to Dr O'Halloran dated 30 March 2005 (a copy of which we enclose herewith) is that Rampton Hospital cannot undertake an assessment of your client, as she is currently a "legal male"
. My client and I are most surprised that you have omitted in your statement of facts and grounds to mention this, as it is directly relevant to your client's claim. Turning to the question of a transfer to medium security, we understand that efforts are already being made by your client's clinical team, and also by yourselves, in this regard. Indeed, we note that in his report dated 23 May 2005, Dr Tegwyn Williams states that he would be willing to seriously consider your client for a bed under his care at the Caswell Clinic. Although my client has no power to prevent any transfer, he would strongly support any clinical transfer of your client to medium security, subject to a suitable care package being in place. However, as efforts are being made to identify a medium secure package, the question of a transfer under section 123 to medium security does not arise. As to your client's other claim, while we accept that, in principle, the conditions of a patient's detention could amount to a breach of Articles 3 and 8 of the ECHR, you have failed to point to any evidence in this case that would meet the threshold required."[38]In this regard, I should also add that the evidence of Mr Darby, on behalf of the Mental Health Unit, in his witness statement of 10 October 2005 shows that the Mental Health Unit had itself followed up the suggestion of a possible transfer of D to the High Security Unit at Rampton, which had female wards, and the Mental Health Unit had itself discussed the matter with Rampton on 13 June 2005. Rampton explained that it was clinically inappropriate for D to be placed at Rampton as, first, Rampton had no experience of dealing with patients with D's particular problems, and secondly Rampton had many vulnerable female patients for whom it would be counter-therapeutic to introduce a person who is physically male. In my view, the Home Office was clearly justified in accepting that indication from Rampton.[39]In the result, on 22 June 2005 Caswell Clinic wrote to say that it would be in a position to offer D a long-term medium secure bed in due course. As I have said, such bed became available on 20 July 2005 when D was transferred to the Caswell Clinic.[40]In advancing the submission that the continuing detention of D at Ashworth breached D's rights under Article 3 and Article 8, Mr Southey submitted that D's detention in the male ward at Ashworth caused D high levels of distress, and that by reason of her being located there, had caused her to self-harm. He relied for this purpose on a brief and unparticularised letter from Dr O'Halloran, dated 18 May 2005, and written to D's solicitors. That letter contains these comments:
"It is and has always been my view and that of the clinical team that this placement in a male high secure hospital is inappropriate to her detrimental well being (sic). [D] has recently engaged in self-harm on the ward and this is consequence (sic) of her distress at being inappropriately placed there. In my view [D] should be transferred out of Ashworth as soon as possible in the interests of her mental health."
[41]The problem with this letter, which I think Mr Chamberlain, on behalf of the defendant, was justified in saying had all the hallmarks of being hastily put together, is that, in alluding to self-harm, it accords with none of the other detailed and contemporaneous reports. Indeed, it is at variance in this respect with a lengthy report of Dr O'Halloran herself, addressed to the Mental Health Review Tribunal some two days earlier. There is no evidence that D had self-harmed at Ashworth, let alone in consequence of her being detained there; or had suffered any detriment in psychiatric or well-being terms. There is no evidence of her being subject to any assault of any physical kind, or indeed even being the subject of any verbal abuse, although it appears that one patient, at least, may have made certainly derogatory comments to her. There is no evidence of D suffering any acute distress at being at Ashworth, over and above, at all events, what one might expect at being placed in any secure psychiatric unit.[42]There is no evidence as to precisely how continuing detention at Ashworth was "detrimental" to D's well-being. On the contrary, all the evidence points to a sensitive and individualised treatment offered by Ashworth to D. Most notably there is no witness statement or other evidence from D herself in this regard claiming any acts of self-harm occurring at Ashworth, or any verbal or physical abuse of her. Nor is there any witness statement from Dr O'Halloran on any of this. Mr Southey told me that D's solicitors had tried to obtain such a statement from Dr O'Halloran, but had been unsuccessful, the doctor having apparently left Ashworth. But there is also no evidence from anyone else, for example from the Caswell Clinic, as to incidents of self-harm allegedly occurring, or the nature and extent of any distress or detriment which may have been caused to D whilst at Ashworth: although it is certainly the case that Dr Tegwyn Williams expressed both there and subsequently the view that the placement at Ashworth had been "inappropriate". No clinical notes recording any incidents of abuse or self-harm have been produced.[43]In such circumstances, and where this short letter of Dr O'Halloran is in conflict with all the other contemporaneous records, I do not attach any significant weight to it. In my view, the evidence taken as a whole shows the following: first, that D was responding to treatment at Ashworth; second, that D was not self-harming at Ashworth; third, that D was being sensitively and individually treated at Ashworth in a way which, amongst other things, respected, to the very best capacity of Ashworth, D's gender issues; fourth, that, nevertheless, in the continuing view of Ashworth, D would be more appropriately placed elsewhere in a medium secure female unit; fifth, that strenuous efforts were being made by Ashworth to find a bed elsewhere, but none was available, and did not become so until 20 July 2005. Conclusion on lawfulness of detention at Ashworth[44]All this, in my view, falls a very long way indeed short of showing a case by reference to Article 3. Article 3 can of course be responsive to a relatively wide range of situations, as the decisions in Bensaid v United Kingdom [2001] 33 EHRR 10, and B v France [1993] 16 EHRR (a case on post-operative transsexualism) illustrate. But it seems to me, on the facts of this case, most regrettable that an allegation by reference to Article 3 was thought fit to be made and pursued: although I should in fairness to Mr Southey record that he did not press the point, albeit not formally abandoning it. Mr Southey did draw my attention to certain passages from the decisions in Keenan v the United Kingdom [2001] 33 EHRR 38, and Kalashnikov v Russia [2003] 36 EHRR 34. It seems to me that those passages, so far from compelling a conclusion that Article 3 was in point here, simply confirm a conclusion that it was not, and confirm that there was here no threat to D's physical or moral integrity.[45]Over-ready assertions of reliance on Article 3, if not kept within proper restraint, can only operate to debase in the public perception what ought to be regarded as one of the most fundamental of rights enshrined in the Convention. In my view, the claim in this case by reference to Article 3 is wholly without foundation.[46]Less unattractive is the reliance of D on Article 8. Indeed, the detention in a secure psychiatric unit inevitably operates as an intrusion into the private life of an individual, rather as prison does. But here, in my view, it is clear that the decision to detain and keep detained D at Ashworth was justified and was proportionate. It was initially justified because of the legitimately held view (which accorded with an amount of expert psychiatric evidence, even if not unanimous) that D posed a high risk, would respond to treatment and was appropriately placed in a high security unit. Thereafter the assessment changed (although it can be said, in the case of Ashworth itself, continued as before). The view now was that D would be and could be more appropriately moved to a medium secure unit, which could also address D's gender issues.[47]In my judgment, the Secretary of State, once he had appreciated the availability of his unique powers under section 123, was justified in declining to exercise those powers at that stage, just as he would have been had he apprehended the availability of those powers at an earlier stage. He was justified in doing so on reasonable and responsible grounds. Quite simply, there was no appropriate alternative bed available elsewhere. In this regard, Ashworth had done and was doing everything possible to locate such a bed. There is nothing to show that the Secretary of State could himself have done more. There was, however, the prospect of a bed becoming available at the Caswell Clinic, which, in the event, resulted. In the short term, D was not suffering, nor was reported to the Home Office as suffering, any irremediable or significant harm or other detriment whilst detained at Ashworth, and, on the contrary, was being appropriately treated clinically for her personality disorder, and also was being cared for sensitively by Ashworth, having due regard to the gender issues and to her dignity and privacy whilst at Ashworth. It is, I think, important to note that no criticism whatsoever is made of Ashworth itself with regard to its own efforts in treating and managing D. In such circumstances, I find it extremely difficult to see how the Secretary of State can properly be criticised for his decision not to direct a transfer under section 123. As I have said, Mr Southey conceded that the fact that D is a transsexual is not of itself enough to show a breach of Article 8 in her being detained at Ashworth. In my judgment, the evidence here shows that there was no infringement of D's rights, and shows that the Secretary of State acted in a necessary, justified and proportionate manner.[48]Mr Southey placed reliance on the case of I v United Kingdom [2003] 36 EHRR 967. That, in contrast to the present case, was a case relating to post-operative transsexuals, and also was not a case, in contrast to the present, involving a necessarily detained mental patient requiring and receiving treatment for a complex disorder condition. In the course of giving its judgment, the court said this:
"The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the court's view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety."
[49]At paragraph 70, this was said:
"Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Art 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings ... In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable."
[50]Those, of course, can and should be accepted as statements of general principle. But statements of general principle have to be applied to the facts of each case. Having regard to the facts of this case, as I have sought to summarise them above, it cannot be said that there has been a failure on the part of the Secretary of State to give proper recognition to D's sexuality, or to her physical or moral security and personal development in declining to exercise the powers available under section 123 of the 1983 Act.[51]This claim therefore fails, and accordingly I need not consider the issue of the amount of damages. But here too I feel that I must record my disquiet at this claim. As I have said, no evidence from D herself or anyone else has been put in in respect of the claim (introduced by amendment) for damages. As I have also said, it is accepted that D was properly detained in a secure unit (albeit it is not accepted that it should have been at Ashworth), and further, as I have said, no criticism is made of Ashworth itself for its treatment and handling of D whilst D was detained at Ashworth. When pressed to quantify the amount of damages being sought, Mr Southey ultimately suggested that a figure of £2,000 to £3,000 would be just satisfaction. He also said, when asked, that D's costs were in the order of £15,000 to £20,000, all funded by legal aid; and no doubt the defendant's costs are of a similar order. The procedure adopted here in pursuing this amended claim seems a long way away from what the Court of Appeal had contemplated in the case of Anufrijeva. In my view, even had a breach of Article 8 been shown, it was, in the circumstances, always going to be very debateable as to whether an award of damages would be made at all. As for the claim for declaratory relief, that was wholly secondary to the claim for damages - in fact, it is to be observed that, in the written argument on behalf of D, the claim is confined to one for damages. In my view, the note of caution sounded by Bean J in granting permission deserved rather more attention than it seems to have received.[52]Mr Chamberlain.[53]MR CHAMBERLAIN: My Lord, I have no application.[54]MR SOUTHEY: My Lord, just two matters very briefly. Firstly, in relation to leave to appeal, I do not seek leave to appeal, but I am conscious that the claimant is not aware of the terms of the judgment. It is obviously her claim, whether or not she is entitled to seek leave to appeal -- I just ask for 14 days in which to make submissions in writing, should she wish to do that. I am not suggesting she will.

MR JUSTICE DAVIS: Really you should make your application now, should you not?

[56]MR SOUTHEY: I think what I am saying is, I do not particularly -- I cannot see grounds for seeking leave to appeal, but I wish to reserve the claimant's rights so that she, if she wishes to, has an opportunity to seek leave to appeal.[57]MR JUSTICE DAVIS: So be it. In that case I will give you 14 days. It is a little unorthodox. Do you have an object to that, Mr Chamberlain?[58]MR CHAMBERLAIN: My Lord, no.[59]MR JUSTICE DAVIS: In those circumstances I will direct that a transcript of my judgment be sent to the Legal Services Commission.[60]MR SOUTHEY: My Lord, can I seek Legal Services Commission assessment?[61]MR JUSTICE DAVIS: You can have Legal Services Commission assessment, but I am directing that a transcript of my judgment is provided because this may be relevant in other cases.[62]MR SOUTHEY: My Lord, the only thing I would wish to place on the record is, as I said before, because of issues of privilege, there are limitations in terms of what I have been able to say in response.[63]MR JUSTICE DAVIS: I quite understand that, Mr Southey. I also understand that you have your instructions. But the fact is sometimes things have to be said.[64]MR SOUTHEY: I perfectly understand, but I needed to put that on record.

MR JUSTICE DAVIS: Thank you.