DK, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 82 (Admin)

Case No CO/11268/2008

[2010] EWHC 82 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 18 January 2010

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF DKClaimant

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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Mr H Southey (instructed by Roberts Moore Nicholas Jones) appeared for Claimant

Miss K Olley (instructed by Treasury Solicitors) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: The claimant in this case, who is known as DK, was, when sentenced in November 2001 for three offences, 21 years old. The offences in question were one of causing grievous bodily harm with intent, one of causing grievous bodily harm (or wounding) and one of assault occasioning actual bodily harm. He was sentenced to a total of nine years and seven months' imprisonment.

[2]He has a considerable number of previous convictions, many of which involved violence of one form or another, and there was ample evidence before the sentencing court which showed that he was a thoroughly dangerous young man and would be likely to commit further offences. Indeed, the report before the judge was that the risk of re-offending was high. He in fact had received some 20 convictions overall. His release date, on the law as it then was, was 29 August 2008, and his licence would be due to end at the three quarter stage of his sentence, namely June 2009.

[3]On 11 April 2006, a direction was given and he was transferred to Broadmoor on 20 April 2006. On 12 July 2007, a Mental Health Review Tribunal decided that he should be released from Broadmoor, which meant that he was returned to prison. The basis of the decision of the Tribunal was that they were not satisfied that the treatability test had been met in his case. The Tribunal's view was that, contrary to the evidence given by a doctor from Broadmoor, that he had received some treatment, in fact he had not received any treatment which had done any good to him at all. The Tribunal accepted that he was suffering from psychopathic disorder of a sufficient nature and degree for the purposes of the provisions of the Mental Health Act, which would be the first step to justify a transfer to a mental hospital. But the Tribunal was not persuaded in the circumstances that it was appropriate for him to be liable to be detained for medical treatment in detention. The reason for that was, as I have said, that the Tribunal decided he had received no or no significant medical or other treatment which had alleviated or prevented deterioration in his condition. However, it is fair to say that the Tribunal appear to have accepted that, if he had co-operated, there was available treatment which would fall within the statutory provisions, and which might do some good for the claimant.

[4]In effect, what the claimant was doing was to recognise that he had a release date in August 2008, and he wanted to be sent back to prison in order that he could be released rather than kept in detention. So it was that he was returned to prison.

[5]Whilst he was in prison, there were further worrying matters discovered. In particular, he was found to have been in possession of material that related to bomb making, and an indication of a possible concern on his part to take some sort of violent action against others, and indeed he had maintained his views on that sort of approach. It seems that, in reality, there can be no doubt that he is a potentially very dangerous young man, and if he were at large, there is a distinct possibility -- it may even be a probability -- that he will commit further offences of violence. However, it must be made clear, and indeed as the law then stood it is apparent, that detention in a mental hospital cannot be justified on the basis purely that the individual is a danger, whether to the public or to himself. It can only be justified if there is treatment available which might alleviate or, as the law then stood, was likely to alleviate or prevent a deterioration of his condition.

[6]Indeed, the medical profession generally is adamant that detention in a mental hospital can only be justified if there is a treatment which may do some good. One can well understand why that is the position, and equally well understand why this country would not countenance anything short of that. One only has to think back to the use of mental hospitals in some countries for purposes of keeping out of action those whom the authorities consider should not be at large. One must be very careful to ensure that that does not occur. Hence the importance of treatability, rendered in this case the more important because of the decision of the Tribunal.

[7]I confess that when I read the papers I was concerned whether the decision of the Tribunal was one which could be justified, because a failure to co-operate if treatment otherwise would be available would, in my view, on the face of it not be a proper basis for saying that the condition was not treatable. I have not gone into that aspect in detail. Mr Southey, without being able, understandably, to refer explicitly to the decision, indicates that there is a decision which suggests that that may not be a correct approach, and certainly I can see that if the failure to co-operate is part of the psychopathic disorder (or whatever disorder there may be), then it may well be that that cannot be held against the individual in question. If, on the other hand, it is a deliberate decision not to co-operate for ulterior motives and not part of the mental disorder, then, as it seems to me, different considerations might apply. However, that has become somewhat academic because of the changes effected by the 2007 Act, and now it is the availability rather than the taking up of treatment which is material. However, at the time that the decision that we are concerned with was made, the provisions of the 2007 Act had not come force. They came into force in November 2008.

[8]So we come to the decision in question, and that was made in due course on 21 August 2008. However, it was recognised that, if this decision was to be made, it ought to be at least notified to the claimant before and certainly not at the last minute before his release date. As I have said, in fact his release date was 30 August 2008.

[9]The relevant provision which justifies the transfer is contained in section 47 of the Mental Health Act 1983. This provides as follows, so far as material:

"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 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'."

[10]Thus, there must be reports from at least two registered medical practitioners. For the purpose of this case section 47(1)(a) was satisfied because, and it is not disputed, there were reports, as we shall see, from three registered medical practitioners that he was suffering from psychopathic disorder. But the question arises under (b) as to whether, because this was psychopathic disorder, such treatment was likely to alleviate or prevent a deterioration of his condition. That was an aspect that had to be addressed.

[11]There is before me a statement from a Mr Nanda, who was the senior caseworker at the Mental Health Unit of the Ministry of Justice and who was involved in arranging the claimant's transfer. What he says is, so far as material, as follows: that at the end of June 2008 he contacted Broadmoor and he was advised by the doctor who had treated the claimant there and who had given evidence before the Mental Health Review Tribunal that a possibility of a transfer back to Broadmoor should be explored because of the earlier contention that he was in need of treatment. He then requested a report from the prison. In fact, it transpired that the claimant had been removed from the prison at which Mr Nanda thought he was incarcerated to Her Majesty's Prison Garth, and so an update from Garth from a nurse dealing with him was also requested.

[12]It transpired that Dr Ross, who was the relevant doctor, could not see the claimant before 12 August 2008, and what he did then was to conduct an assessment with a Dr Walker. Dr Walker is not a registered medical practitioner, but a psychologist also working at Broadmoor. That assessment having been made, Mr Nanda spoke to Dr Ross on 14 August. Unfortunately, as matters turned out, Mr Nanda was going on holiday after the 14th and so was not available to take any part in the final decision-making which, as I have said, occurred on 21 August. In any event, he spoke to Dr Ross, and, as Mr Nanda says in his statement, and I read from paragraph 7:

"The issue of treatability was paramount. It was failure satisfy the tribunal on this criterion in 2007 while [the claimant] was at Broadmoor Hospital that had necessitated his remission back to prison."

[13]So Mr Nanda very properly recognised the importance of the treatability issue, and indeed it was perhaps clear because of the decision of the Tribunal -- whether it was right or wrong being immaterial for this purpose -- that treatability was the most important issue because it was unlikely that there was going to be any issue about psychopathic disorder, that having been accepted by the Tribunal back in 2007.

[14]Mr Nanda continues:

"8. Dr Ross confirmed his opinion that [the claimant] was treatable, as evidenced by his engagement with treatment since his remission to prison. Dr Ross understood that his treatability was in dispute, but had advised that the prospects of effective treatment justified assessment by way of another prison transfer. The treatment itself would prevent further deterioration in his condition and better prepare him for a successful return to the community, minimising his risk of violent re-offending - his risk at the time of violence to others was considered to be high. This was the opinion of both Dr Ross and Dr Walker."

[15]Subsequently Dr Walker and Dr Ross put into writing their assessment of the claimant, his condition and of course of his treatability. The report itself is lengthy and detailed, and it confirms the matters stated by Mr Nanda in his statement. The assessment of Dr Ross was clearly that the claimant was treatable and that the treatment was likely to alleviate his condition. But, as section 47 makes clear, there is a need for at least two registered medical practitioners to reach the same conclusion before there can be a transfer. Mr Nanda only had the views of one because, as I have said, Dr Walker was not a registered medical practitioner, and it seems that that must have been recognised by Mr Nanda, although he does not say so in terms, because there were produced two reports from registered medical practitioners which were in due course relied on to justify the transfer.

[16]However, what Mr Nanda says in paragraph 9 of his statement is of some importance, and it reads as follows:

"On 14 August 2008 I minuted the file and passed it to my colleagues to effect the prison transfer in my absence if asked to do so. At that point, the endorsement of Broadmoor's Admission Panel of the recommendations of Drs Ross and Walker had not been secured. The panel subsequently provided their endorsement. I had hoped that the joint report by Drs Ross and Walker would have been provided in order that it would fully contribute to the transfer consideration, but it had not been received by the Mental Health Unit by the date of the decision, 20 August. However, it was not necessary to have it in order to make a final decision on the proposal given previous discussions with Dr Ross and the anticipated submission of the section 47 medical reports."

[17]It appears from what I have been told that it may be that that paragraph 9 is not as clear as it perhaps ought to have been, and that what Mr Nanda did was to indicate that the transfer should be carried out on the basis of the necessary report of another registered medical practitioner, but that his discussions with Dr Ross had made it clear that Dr Ross's view was that he was treatable and should be, in Dr Ross's view, transferred.

[18]I note that Dr Ross's lengthy report is dated 18 August, although it is not entirely clear when it was actually forwarded to the relevant unit of the Ministry of Justice, although Mr Nanda of course was not there at the material time.

[19]The law requires a report. It does not require that the report be in writing. On the other hand, it is obviously important that there should be a written report, and there was such a report from Dr Ross. The reports were then on pro-forma documents. They stated on the front that they were medical reports for the purpose of transfer under section 47. Then there is a declaration. The declaration reads as follows:

"I am of the opinion that (a) this patient is suffering from ..."

And then there are the four conditions which were referred to in the 1983 Act, and in this case psychopathic disorder is the relevant one within the meaning of the Mental Health Act 1983.

(b) , and then the form goes on:

"and where the patient is suffering from psychopathic disorder or mental impairment (c) that such treatment is likely to alleviate or prevent a deterioration of his condition I recommend treatment in a special hospital My full medical report is given on the reverse."

That is signed and dated by the relevant medical practitioner.

[21]On the back of the form, we have what is supposed to be the full report. There are three headings. The first is "Information to establish mental disorder, including reference to type of disorder and description of symptoms", and again there is no issue as to that because, clearly, it is common ground so far as all the doctors are concerned that the claimant is suffering from psychopathic disorder. Then we have "Reasons for conclusion that the mental disorder is of a nature or degree which makes detention in hospital for medical treatment appropriate", and then there is a heading "Where applicable, reasons for recommending treatment in a special hospital".

[22]There are three doctors who, in due course, were asked to report and whose reports were available to and, I have no doubt, were taken into account by the eventual decision-maker so far as the transfer is concerned. None of them deal explicitly with whether this particular claimant was treatable. Unfortunately, even Dr Ross does not deal explicitly with that in his formal report, although he does in the lengthy report with Dr Walker to which I have already referred, and he did, on Mr Nanda's evidence, and there is absolutely no reason to doubt it, when he discussed it over the telephone. So clearly there was available evidence from one medical practitioner, namely Dr Ross, that not only was it desirable that he should be admitted for treatment, but, and crucially in the circumstances of this case and having regard to the Mental Health Review Tribunal's decision, that this claimant was treatable.

[23]Unfortunately, none of the three doctors say that in terms in the report that is on the back of the pro-forma. Dr Ross says, in dealing with the last heading, "Presents an immediate and grave risk of harm to others". A Dr Kaur, whose medical report is hardly very full, says, "Present grave harm to others", and under "Reasons for conclusion that the medical disorder is of a nature or degree which makes detention ... appropriate", "It is chronic and his condition is deteriorating and violence risk to others". Indeed, he describes the mental disorder as "paranoia, violent and is at risk to others. Poor insight". That is the extent of the report. It may well be, because it was recognised that that was really, to say the least, somewhat unsatisfactory, that a further report was obtained from a Dr Crispin, and she says, under the reasons for recommending treatment, "The claimant is considered to be an immediate and serious risk to others and requires treatment in high security". Under the previous heading, she had said that he requires specialist treatment which could only be available in hospital.

[24]Again, there is no explicit indication that he will benefit from treatment, and it is not said clearly that he is someone who is treatable.

[25]Miss Olley submits, and on the face of it with some force, that it must be implicit that the doctors did take the view that he was treatable. Why otherwise would they indicate that, in their view, he ought to be admitted for treatment? It would have been a pointless exercise if, in their view, he was not treatable.

[26]However, the problem in that approach is, Mr Southey submits, created by a decision of the Court of Appeal in TF v the Secretary of State for Justice

[2008] EWCA Civ 1457

. That decision had not been made before this transfer was made, and so those responsible did not have the benefit of the view of the Court of Appeal. That was a case where, just before he was due to be released, the claimant, who was a young man who had a rather, it would seem, similar sort of record to this claimant, was diagnosed as having dissocial personality disorder, and there had been a transfer in his case. However, the evidence before the court in that case was that there had been a failure to consider with the necessary two doctors the question of treatability. Waller LJ gave the only reasoned judgment of the court (the other two members agreed). In paragraph 17, having cited section 47, he referred to observations of Dyson J in a case called ex parte Gilkes [1999] 1 MHLR 6 to this effect:

"If the reports are manifestly unreliable, then the Secretary of State cannot reasonably be satisfied that the 2 conditions are met on the basis of the reports, and a decision to rely on them in such circumstances will be capable of successful challenge by judicial review. A medical report may be unreliable for a number of reasons. It may on its face not address the relevant statutory criteria. It may be based on an assessment which is so out of date that the mere fact of a lapse of time will be sufficient to render it unreliable. It may be unreasonable to rely on a report based on an assessment conducted an appreciable, but not inordinate, time before the decision to transfer where the mental disorder is a fluctuating and unstable condition and/or where there has been a change of circumstances since the assessment was made. In each case, it will be for the Secretary of State to consider whether in his judgment the medical report is one on which he can safely and properly rely so as to be satisfied that the conditions set out in paras (a) and (b) of s.47 are met. One of the considerations that will be uppermost in his mind is whether the assessment on which the report is based is sufficiently recent to provide reliable evidence of the patient's current mental condition."

[27]Waller LJ went on:

"18. If the decision is being taken as in this case right at the end of the sentence what must also be in the Secretary of State's mind I suggest is that a decision to direct a transfer cannot simply be taken on the grounds that a convicted person will be a danger to the public if released (as understandable as that concern must be) but can only be taken on the grounds that his medical condition and its treatability (to use a shorthand) justify the decision."

[28]Generally, treatability is of course of the greatest importance, but specifically in this case, because of the concerns expressed by the review Tribunal, treatability was, as Mr Nanda himself recognised because it led to his discussions with Dr Ross, of vital importance.

[29]On the facts of TF, as Miss Olley submits, she being counsel in that case as well, the decision-maker had not explicitly stated that she had taken treatability into account, or rather had not applied her mind specifically to the issue of treatability. However, she did have a report, as the court recognised, from a doctor who did deal with treatability, but, as Waller LJ indicated, in terms which seemed to be somewhat guarded.

[30]It is to be noted that, as the court spelt out in paragraphs 20 to 23, the same (or certainly similar) pro formas were used in that case. I imagine they would have been likely to have been the same. At paragraph 20 this is said:

"20. The report forms F1305 completed by [the two doctors] were as to the front pages pro forma, allowing for the crossing out of certain points and leaving in others. That process meant that on the front pages each doctor "

Declared I am of the opinion that (a) this patient is suffering from ... (ii) psychopathic disorder ... within the meaning of the Mental Health Act 1983, and (b) that the mental disorder from which the patient is suffering is of a nature and a degree which makes it appropriate for him to be detained in a hospital for treatment" Then follows an instruction in italics "where the patient is suffering from a psychopathic disorder or mental impairment" and the form continues "(c) that such treatment is likely to alleviate or prevent a deterioration of his condition. My full medical report is given on the reverse." (emphasis as in original) 21. "The full medical reports on the reverse" were completed under two pro forma headings. The first is "Information to establish mental disorder, including reference to type of disorder and description of symptoms". Both doctors gave the required description. 22. The next heading is "Reasons for conclusion that the medical disorder is of a nature or degree which makes detention in a hospital for medical treatment appropriate". There is nothing in the heading that directs the attention of the doctor to giving reasons as to why he or she considers that treatment is likely to alleviate or prevent deterioration of the prisoner's condition. 23. In this instance neither doctor gave any reasons or provided any grounds in support of the view that they were of the opinion that the treatment would alleviate or prevent deterioration. Indeed the point each seems to make is that the appellant's condition makes him likely to commit further offences if he is released into the community."

[31]It seems from that citation that the third heading on the reverse did not exist on the forms that were before the Court of Appeal, and that third heading is the one which reads, "Where applicable, reasons for recommending treatment to a special hospital". Nevertheless, in this case, on none of the forms do the doctors give reasons or provide grounds in support of the view that the treatment would alleviate or prevent deterioration in that particular individual's case. That is, as I see it, the problem.

[32]Mr Nanda clearly did address treatability, but unfortunately the subsequent reports obtained did not in terms express that issue, and, as it seems to me, that issue was of fundamental importance. It must be borne in mind that one is dealing here with the liberty of an individual. If he was not detained in hospital, he would have been released from prison on 31 August and his licence would have expired at the end of June 2009. I am told that he has applied to the Mental Health Review Tribunal, that his application was refused, but that the Upper Tier Tribunal has overturned that decision and he is due at the end of this month to have a further hearing before a Tribunal. But if he should not have been transferred in the first place, then of course he would now be entitled to release.

[33]I have no doubt that those who were in due course responsible for the ultimate decision would have been influenced by Mr Nanda's view, expressed from his discussions with Dr Ross, and may well have formed the view that it was indeed explicit, although not spelt out, that the doctors in question, particularly Dr Crispin because Dr Kaur's report was not at all satisfactory, that this claimant was treatable. But unfortunately it was not spelt out. One does not want to be overpedantic in these matters, but, as I have said, the court must bear in mind that it is dealing with liberty, and that therefore it is of the utmost importance that all the necessary preconditions for transfer leading to detention are properly seen through.

[34]Miss Olley realistically recognises that this was a case which, as she put it, having regard to TF, was somewhat borderline. Her submission was that it, on its facts, came the correct side from her point of view of the line. I am afraid I do not accept that. For the reasons that I have given, I take the view that, unfortunately, the reports that were relied on did not properly deal with the crucial matter in this case. It is, I fear, very unfortunate that Mr Nanda was not able see through the final decision. It may well be that if he had been available and had seen it through, the problem could have been overcome because it is clear that he recognised the importance of the treatability issue. But I have to approach this on the basis of TF, and however it may be considered undesirable that someone such as the claimant should be at large when he may well be a danger, nevertheless as the law stands, or certainly as the law stood when this decision was made, it is not possible to do other than indicate that this was an unlawful decision.

[35]In those circumstances, I must grant the relief sought, which is to quash the transfer decision. The effect of that will, I appreciate, be that he is released absolutely.

[36]Mr Southey, the only thing that concerns me is whether there ought to be some possibility of making necessary arrangements, because I do not know whether your client has anywhere to go.

[37]MR SOUTHEY: The answer is, I am also unaware. I have been trying to take instructions on his current position.

[38]MR JUSTICE COLLINS: It may frankly be thoroughly undesirable that simply the doors are opened without some arrangements being made for him to have somewhere to go.

[39]MR SOUTHEY: Obviously, given he is unlawfully detained at the moment --

[40]MR JUSTICE COLLINS: I follow that, but it may be in his own interests that -- they will have to be made quickly -- but that some arrangements are, if necessary, made. I do not know what the position is. Can you help on this at all, Miss Olley?

[41]MISS OLLEY: Yes, my Lord, I can. It is the intention of the treating team to organise a section 3 in respect of this claimant if he was successful today.

[42]MR SOUTHEY: My Lord, I mentioned that that was obviously a possibility.

[43]MR JUSTICE COLLINS: I can understand that. That involves rather similar evidence, does it not? When I say "similar evidence", I mean similar to 47.

[44]MISS OLLEY: The criteria would be as set out in section 3.

[45]MR JUSTICE COLLINS: Which effectively is mental illness, psychopathic disorder, now treatment available.

[46]MISS OLLEY: Yes.

MR JUSTICE COLLINS: And the idea is that that will be done today, is it?

[48]MISS OLLEY: Yes, I believe so. So your Lordship need not to be too troubled --

[49]MR JUSTICE COLLINS: In that case, all I think I need do then as a matter of relief is simply to quash the decision. I will not direct any release because that would not be appropriate.

[50]MISS OLLEY: Strictly speaking, I suppose it might, my Lord, and it will be a matter for the treating team to respond to that.

[51]MR JUSTICE COLLINS: If the decision is quashed it means he is there unlawfully, so he has to be released. What I am getting at is that what I do not think it would be right for me to do is to say he must this minute be released.

[52]MISS OLLEY: I notice the subtle difference, and I appreciate your Lordship focusing on that, and I think that is the right way forward.

[53]MR JUSTICE COLLINS: Mr Southey, I think simply quashing the decision is sufficient for your purposes, is it not?

[54]MR SOUTHEY: I think that is right, my Lord. I think I requested a mandatory order, but I always anticipated that in some ways it might operate in a technical sense, in the sense it would require you to release from this particular section, but may result in --

MR JUSTICE COLLINS: But the quashing is sufficient to achieve that, is it not?

[56]MR SOUTHEY: Absolutely, my Lord. So I accept that that is right. Two points -- one point I should perhaps just alert the court to, just so that it is aware of it, of course one of the reasons why a decision presumably would be made fairly quickly is that there will have been decisions to extend the current detention.

[57]MR JUSTICE COLLINS: Obviously there would be, I would have thought, medical evidence readily available. It must deal with treatability -- or now of course the availability of treatment.

[58]MR SOUTHEY: My Lord, the second point is of course, and I do not think there is any dispute about this, what we have also suggested in our skeleton argument is that the matter should be adjourned for the assessment of damages because he is obviously entitled to damages, whether or not he --

[59]MR JUSTICE COLLINS: Yes, I mean, there is an interesting question on that aspect, is there not, because if section 3 can be used, and if section 3 could at all material times have been used, then it may be that it would be difficult to say that your client has suffered any actual damage, but that is not a matter for me. You have claimed damages, have you?

[60]MR SOUTHEY: Yes, we have.

MR JUSTICE COLLINS: I think technically that has to be put over.

[62]MR SOUTHEY: I suggested in the skeleton argument that it should be adjourned for that purpose. My lord, the other point obviously is costs, and we seek our costs.

MR JUSTICE COLLINS: Are you legally aided?

[64]MR SOUTHEY: We are legally aided.

MR JUSTICE COLLINS: I do not imagine you could resist costs?

[66]MISS OLLEY: No, my Lord.

MR JUSTICE COLLINS: The usual order.

[68]MR SOUTHEY: My Lord, one final point that I would raise is that I am aware that there is in about three and a half weeks' time another TF case in this court, and in those circumstances I wonder whether a transcript could be expedited so it is available for that.

MR JUSTICE COLLINS: They are very good.

[70]MR SOUTHEY: Thank you. I do not think there is anything else.

MR JUSTICE COLLINS: Any other application?

[72]MISS OLLEY: No, my Lord.

[73]MR JUSTICE COLLINS: Very well. Thank you.