Dyer, R (in the application of) v The Welsh Ministers & Ors [2015] EWHC 3712 (Admin)

Case No CO/1933/2015

[2015] EWHC 3712 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Venue Cardiff Civil Justice Centre

2 Park Street

Venue Cardiff

Date 21/12/15

CF10 1ET

Before

MR JUSTICE HICKINBOTTOM

Between

THE QUEENClaimant

on the application of CLAIRE DYERClaimant

THE WELSH MINISTERSDefendants

ABERTAWE BRO MORGANNWGInterested Parties

UNIVERSITY HEALTH BOARDDefendant

WELSH HEALTH SPECIALISED SERVICES COMMITTEEDefendant

(1) ANEURIN BEVAN UNIVERSITY HEALTH BOARDInterested Party

(2) BETSI CADWALADR UNIVERSITY HEALTH BOARDInterested Party

(3) CARDIFF &VALE UNIVERSITY HEALTHInterested Party

(4) HYWEL DDA UNIVERSITY HEALTH BOARDInterested Party

(5) POWYS TEACHING HEALTH BOARDInterested Party

(6) CWM TAF UNIVERSITY HEALTH BOARDInterested Party

Ian Wise QC and Stephen Broach (instructed by Irwin Mitchell Solicitors LLP)

for Claimant

Richard Gordon QC and Joanne Clement (instructed by Government Legal Department) for First Defendants

Rhodri Williams QC and Rebecca Stickler (instructed by Christian Young, Solicitor, Legal & Risks Services, NHS Shared Services Partnership) for Second and Third Defendants

Hearing Hearing dates: 17-18 November 2015

Further written submissions: 20 November 2015

Judgment

Mr Justice Hickinbottom :

Introduction

[1]The Claimant is 21 years old, and suffers from a complex mental health condition, including autistic spectrum disorder (“ASD”) and learning disability (“LD”), which results in her behaviour from time-to-time becoming aggressive and otherwise challenging. She lives with her family in Swansea, but her behaviour is such that sometimes they find it difficult to cope; and, on four occasions when this has happened, the Claimant has been compulsorily detained in various hospitals for assessment and treatment under sections 2 and 3 of the Mental Health Act 1983.

[2]In this claim, the Claimant challenges an alleged failure by the public authorities responsible for the National Health Service in Wales (“NHS Wales”) to discharge the duty imposed upon them by section 3(1) of the National Health Service (Wales) Act 2006 to provide hospital accommodation “throughout Wales, to such extent as they consider necessary to meet all reasonable requirements”. In particular, she contends that the duty has been breached because no decision has been taken by any authority as to either(i) the “reasonable requirements” of women in Wales with ASD and LD for secure in-patient assessment and treatment; or

(ii) the level of provision necessary to meet the reasonable requirements found to exist. Indeed, the relevant authorities have not only failed to make those decisions, it is said that they have failed to collate the information required to make them; and so they are not even in a position to make properly informed (and, therefore, lawful) decisions.

[3]That is the legal basis of the claim. However, the concern of the Claimant and her family underlying the claim is more personal and practical in nature. The last time the Claimant required compulsory detention on account of her mental condition was in August 2014 when, because there was no appropriate and available facility in Wales, she was sent to a hospital in Brighton where she was detained for some weeks. Brighton is a very long way away from Swansea. The Claimant’s condition is such that she is strongly dependent upon the support of her family. Her mother describes the Claimant’s trauma as a result of this placement; and she believes that being so far away from home had a seriously detrimental impact on her. Since her release in November 2014, the Claimant has been happily at home. This claim is openly brought “in an attempt to avoid a similar situation arising in the future, given the real risk that the Claimant will once again require compulsory detention and treatment notwithstanding that at present she is making good progress in the community” (paragraph 3 of the Claimant’s Grounds of Claim). The point is put thus in paragraph 8 of the statement of Alexander Rook (the solicitor with conduct of the claim for the Claimant) dated 3 June 2015: “… [T]here remains no concrete plan to treat [the Claimant] in Wales if she requires detention under the [1983 Act] again…”; and in an even more focused manner in paragraph 5 of the Addendum to the Claimant’s Grounds: “The pressing practical issue in the claim remains that there is no secure facility in Wales which has confirmed that it will accommodate the Claimant in the event that her condition deteriorates”.

[4]In other words, quite understandably, if the Claimant has to be detained again under the 1983 Act, both she and her family wish to have some comfort that she will be detained in Wales and in a facility somewhat nearer to her home than Sussex. They consider that, if the relevant authorities in Wales collated the information which (it is said) they require to make an informed decision about the requirements of women in Wales with ASD and/or LD for secure in-patient facilities – and then made lawfully informed decisions as to needs and provision – then more facilities, appropriate to the Claimant’s needs, will (or may) be made available in Wales and the prospects of her being detained nearer home will consequently increase.

[5]The Claimant’s mother makes her own views very clear (paragraph 36 of her statement dated 2 November 2015):

“I feel strongly that there should be at the very least one unit or facility for people like Claire in times of crisis. I am worried not just about Claire but about other people in her position – with complex needs who are being shipped off to England instead of being treated at home…. How can the Welsh Government transfer these people to England, away from their homes and families, when this is so damaging to people with autism and complex needs? I am calling on the Welsh Government to look at this issue again, to start getting together data they need to ensure that there are services locally that meet the needs of people like Claire. This will prevent an awful lot of heart-break for people like us, so that when the next crisis occurs Claire will have somewhere to go where her family can still see her every day. I hope the Welsh Government will take responsibility for providing these much needed services locally, rather than relying on England and transferring people hundreds of miles from their homes to get the right treatment.”

There is, certainly, no doubting Mrs Dyer’s sincerity – nor, I should add, have any of the Defendants sought to doubt it.

[6]This concern about the perceived lack of secure mental health facilities for women in Wales is not unique to the Claimant and her family. In 2014, a petition was organised by the family pressing for the Claimant’s prompt return from Brighton to Wales attracted nearly 100,000 signatures; and this claim has the support of two national charities, Mencap Cymru and Learning Disability Wales (an umbrella body for some 90 third sector organisations active in the field of disability, including charities such as Mencap Cymru, but also statutory bodies such as the NHS Centre for Equality and Human Rights and the Welsh Centre for Learning Disability). The statement of the Director of Mencap Cymru (Wayne Crocker) dated 1 June 2015 makes clear that he too considers there should be more local facilities in Wales for women suffering from ASD and LD who require medium secure hospital accommodation.

[7]In this judgment, I shall refer to the First Defendant as “the Welsh Ministers”; the Second Defendant (Abertawe Bro Morgannwg University Health Board) as “the UHB”; and the Third Defendant (Welsh Health Specialised Services Committee) as “the WHSS Committee”.

[8]Before me, Ian Wise QC and Stephen Broach appeared for the Claimant; Richard Gordon QC and Joanne Clement for the Welsh Ministers; and Rhodri Williams QC and Rebecca Stickler for the UHB and the WHSS Committee. At the outset, may I thank all Counsel for their helpful contributions. The Statutory Framework Detention for assessment and treatment of a mental disorder

The Statutory Framework

[9]Under sections 2 and 3 of the Mental Health Act 1983 (“the 1983 Act”), a patient may be admitted to a hospital and compulsorily detained there for assessment of and treatment for a mental disorder.

[10]Section 17 allows the responsible clinician to grant a detained patient leave of absence, subject to such conditions as he considers fit. That provision enables a patient (e.g.) to spend time at home, whilst being the subject of a compulsory detention order.

[11]Section 117 requires an LHB and the relevant local social services authority to provide after-care services to any person when he ceases to be detained under (e.g.) section 3 until they are satisfied that he is no longer in need of such services.

General NHS Duties

[12]Healthcare has been a devolved function under the Government of Wales Acts since 1999. The function was performed by the National Assembly of Wales until 2006, when it was transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006.

[13]Insofar as NHS Wales functions are concerned, the National Health Service (Wales) Act 2006 (“the 2006 Act”) is a direct descendant of the National Health Service Act 1946.

[14]Under the 2006 Act, the Welsh Ministers are required to continue the promotion in Wales of a comprehensive service designed to secure improvement(i) in the physical and mental health of the people of Wales, and

(ii) in the prevention, diagnosis and treatment of illness (section 1(1)). This is a paradigm general or “political” duty, used in some textbooks as an example of such (e.g. see Administrative Law, HWR Wade & CF Forsyth, 11th Edition (2009) (“Wade & Forsyth”), at page 499).

[15]The Ministers must, for the section 1(1) purpose, provide or secure the provision of services in accordance with the Act, which must be provided free of charge (section 1(2) and (3)). The section 1 duty expressly includes a duty to provide hospital accommodation and services for persons who are liable to be detained under the 1983 Act and, in the opinion of the Welsh Ministers, require treatment under conditions of high security on account of their dangerous, violent or criminal propensities (section 4(1)); but, implicitly, it also includes a duty to provide appropriate accommodation for those detained under the 1983 Act who do not need such high security. In pursuance of the section 1 obligation, the Welsh Ministers have powers to provide services as they consider appropriate (section 2(1)(a)).

[16]Section 3(1), at the heart of this claim, imposes a duty to provide services: “The Welsh Ministers must provide throughout Wales, to such extent as they consider necessary to meet all reasonable requirements –(a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act.

(d) such other services or facilities for the care of pregnant women, women who are breast feeding and young children as they consider are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as they consider are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness”.

[17]The nature of this duty is well-established: it too is a general public law duty and, whilst it has been said that the section 3 duty may require the assessment of individual cases by the relevant authority (at least to ensure that the services it has already arranged are suitable and sufficient) (see R (JF) v NHS Sheffield Clinical Commissioning Group

[2014] EWHC 1345 (Admin)

at [43], per Stuart-Smith J), there is no enforceable individual entitlement to a particular level or location of care from the NHS (see, e.g., R (Grogan) v Bexley NHS Healthcare Trust

[2006] EWHC 44 (Admin)

at [40], and JF at [43]). That is consistent with

article 8 of the European Convention on Human Rights

(“ECHR”), which does not give a patient a right to any particular type of medical treatment from the State, given the fair balance that has to be struck between the competing interests of the individual and society as a whole and the wide margin of appreciation enjoyed by States especially in the assessment of priorities in the context of allocation of limited state resources (see, e.g., Sentges v Netherlands (2003) Application No 27677/02; (2004) 7 CCL Rep 400; and Pentiacova v Moldova (2005) Application No 14462/03;

(2005) 40 EHRR SE23

72).

[18]Section 6(1) of the 2006 Act, also important in this case, is headed “Performance of functions outside Wales” and provides:

“The Welsh Ministers may provide or secure the provision of anything mentioned in section 3(1) outside Wales.”

Local Health Boards and the Welsh Health Specialised Services Committee

[19]Under section 11 of the 2006 Act, the Welsh Ministers are empowered to establish, by order, Local Health Boards (“LHBs”), each to be “for an area of Wales specified in the… order”. The Local Health Boards (Establishment and Dissolution) (Wales) Order 2009 (SI 2009 No 778) (“the 2009 LHB Order”) established LHBs listed in Schedule 1, which together covered the whole of Wales. They include the UHB. Article 4 states that each LHB area consists of the principal local government areas assigned to it in column 2 of Schedule 1, the area covered by the UHB being Bridgend, Neath Port Talbot and Swansea. There are now seven LHBs, namely the UHB and the six Interested Parties.

[20]By section 12 of the 2006 Act, the Welsh Ministers may direct an LHB to exercise “in relation to its area” functions relating to the health service as specified in the direction. The relevant directions are contained in the Local Health Boards (Directed Functions) (Wales) Regulations 2009 (SI 2009 No 1511) (“the 2009 LHB Regulations”). Regulation 4 provides for the functions to be exercisable by an LHB, including “functions of the Welsh Ministers… as are specified in the Schedule”. The Schedule then sets out a comprehensive list of statutory provisions conferring functions to be exercisable by LHBs, including the Welsh Ministers’ functions under sections 1-6 of the 2006 Act, thus including of course the duty under section 3(1).

[21]These statutory provisions therefore envisage the establishment of boards, each to be responsible for particular NHS functions in a particular part of Wales, with each relevant aspect of those boards (including both geographical and functional scope) being determined by the Welsh Ministers by way of order and/or direction. The Welsh Ministers have duly established LHBs, which together cover the whole of Wales; and the Ministers have delegated various functions (including the function under section 3 of the 2006 Act) to each board established, in respect of its own area and particularly in respect of the usual residents in that area. As Mr Gordon emphasised, there is no challenge to that delegation.

[22]Where the Welsh Ministers consider that the relevant NHS functions should be exercised not on a strictly geographical LHB-area basis, section 13 of the 2006 Act gives them power to make an appropriate direction in respect of any functions that would otherwise be exercisable by LHBs. Section 13(2) provides that directions may be given for identified functions to be exercised by another LHB, a Special Health Authority or jointly with the bodies set out in section 13(3) (which include other LHBs, and the NHS Commissioning Board). By section 13(4)(c), directions may provide for any functions which are exercisable by an LHB jointly with one or more other LHBs to be exercised, on behalf of the LHBs in question, by a joint committee or joint sub-committee.

[23]The Welsh Health Specialised Services Committee (Wales) Regulations 2009 (SI 2009 No 3097) set up the WHSS Committee, funded by the participating LHBs; and, in the Welsh Health Specialised Services Committee (Wales) Directions 2009 (2009 No 35) (“the 2009 WHSS Committee Directions”), the Welsh Ministers gave directions to the LHBs as to “the relevant functions” in the hands of the LHBs that were require to be jointly exercised through that Committee (paragraph 3). “The relevant functions” are defined in paragraph 2 as “… the planning and securing of specialised and tertiary services” which consist of the functions listed in Annex 1. Whilst “specialised services” are not defined, Mr Gordon submitted, without contradiction, that they typically have one or more of the following characteristics: i) the involvement of high cost, low volume interventions and treatments; ii) actual or potential expensive, and possibly unpredictable, clinical activity; and iii) the requirement for scarce clinical skills and/or a highly skilled multidisciplinary team and/or specialist equipment and facilities that can only be provided cost effectively in a few locations, and which thus require a concentration of resources and experience to achieve clinical effectiveness.

[24]The functions listed in Annex 1 include a number of mental health services, including “Forensic services excluding low secure”, and “Complex and/or treatment resistant disorders”. The term “forensic services” is not defined in the 2009 WHSS Committee Directions; but forensic psychiatry is a recognised sub-specialty of psychiatry concerned with patients suffering from a mental disorder who offend or are considered likely to offend, and non-offending patients detained under the 1983 Act who cannot be appropriately managed in local psychiatric facilities by virtue of aggressive, disorderly, irresponsible or anti-social behaviour which is beyond the ordinary level of resources and skills of district psychiatric services (see paragraph 16 of the statement of Joanna Jordan dated 18 September 2015: Ms Jordan is Director of Health, NHS Governance and Corporate Services within the Health and Social Care Group of the Welsh Government). There are three grades of secure accommodation: high, medium and low (described further below: see paragraph 37). Therefore, while clinical decisions are taken by clinicians employed by the particular LHB in question, as a result of the 2009 WHSS Committee Directions, the WHSS Committee has the responsibility for planning, commissioning and funding of all high and medium secure services for all patients from Wales on behalf of each LHB.

[25]Thus, if an LHB considers that a patient needs a medium or high security placement, it will ask a designated clinician to undertake an assessment on behalf of the WHSS Committee and present a clinical opinion as to whether such a placement is required. If that opinion is positive and is accepted, the WHSS Committee will be responsible for the costs of the appropriate services, provided by NHS Wales or commissioned through the NHS Wales Commissioning Framework (see paragraph 51 below).

The Residual Role of the Welsh Ministers

[26]LHBs and the WHSS Committee thus have the section 3 function delegated to them by the Welsh Ministers. However, the Ministers retain two important residual functions.

[27]First, since April 2014, they have had a monitoring function under the now-extended section 175 of the 2006 Act, which concerns “Financial duties of [LHBs]”.

[28]Section 175(1) imposes a statutory duty on each LHB to ensure that, for each three-year accounting period, its expenditure in performing its functions does not exceed the aggregate of the sums allotted to and received by it, i.e. a duty to “break even”. Section 175(2), inserted as from 1 April 2014 by the National Health Service (Finance) Wales Act 2014 (“the 2014 Act”), provides that:

“The Welsh Ministers must give directions to [an LHB] requiring it – (a) to prepare a plan which sets out its strategy for securing that it complies with the duty under subsection (1) while improving – (i) the health of the people for whom it is responsible; and (ii) the provision of health care to such people; (b) to do such other things as appear to be requisite to secure that it complies with that duty.” (a) to prepare a plan which sets out its strategy for securing that it complies with the duty under subsection (1) while improving – (i) the health of the people for whom it is responsible; and (ii) the provision of health care to such people; (b) to do such other things as appear to be requisite to secure that it complies with that duty.”

[29]That is mandatory – “the Welsh Ministers must give directions to an [LHB] requiring it… to prepare a plan…” – and the Welsh Ministers issued directions in October 2014 and October 2015 requiring each LHB to comply with the Welsh Government’s NHS Wales Planning Framework (“the NHS Wales Planning Framework”) which in turn gives guidance to LHBs on developing three-year plans, known as Integrated Medium Term Plans (“IMTPs”) (paragraphs 53-54 of Ms Jordan’s statement dated 18 September 2015), which comply with section 175. I return to the NHS Wales Planning Framework, in the context of the development of Welsh Government policy in respect of secure hospitals, below (see paragraphs 57 and following).

[30]For NHS Wales, the Welsh Ministers’ policy is for service planning (rather than the market) to be the driver for health care services; and each LHB and the WHSS Committee prepares an annual IMTP as an integral part of the planning process. By section 175(2A) of the 2006 Act (again, inserted by the 2014 Act), an LHB does not comply with a section 175(2)(a) direction “unless the plan prepared in accordance with that direction has been submitted to and approved by the Welsh Ministers”. That, in effect, requires the Welsh Ministers’ approval for the annual IMTP of each LHB. Further, to complete the scheme for accountability, section 175(6A) requires the Welsh Ministers to report to the National Assembly of Wales before the end of any three-year accounting period on whether each LHB has complied with its break even duty under section 175(1). The Ministers have no similar approval obligation with regard to the WHSS Committee IMTPs; but, in practice, a draft is provided to Ministers prior to adoption.

[31]As Ms Jordan says (paragraph 54 of her statement):

“It is through this planning process that LHBs, together with the WHSS [Committee] as their specialist joint committee, set their priorities, having regard to the strategic objectives set by the Welsh Government.”

[32]The second function retained by the Welsh Ministers is that in respect of default powers. Section 26(2) of the 2006 Act provides that: “If the Welsh Ministers –(a) consider that a body to which this section applies is not performing one or more of its functions adequately or at all, or that there are significant failings in the way the body is being run, and

(b) are satisfied that it is appropriate for them to intervene under this section, they may make an order under this section in respect of the body (‘an intervention order’)”. (a) consider that a body to which this section applies is not performing one or more of its functions adequately or at all, or that there are significant failings in the way the body is being run, and (b) are satisfied that it is appropriate for them to intervene under this section,

[33]Section 27 sets out the effects of intervention orders, which include (i) removal or suspension from office of all or certain members of the relevant LHB, or (iii) giving directions to the LHB to secure the function of the board is performed as specified in the directions or so as to achieve particular objectives.

[34]Furthermore, under section 28, if the Welsh Ministers consider that(i) an LHB has failed to carry out its functions, or

(ii) in carrying out those functions, it has failed to comply with any regulations or directions relating to them, they may, after such inquiry as they consider appropriate, make an order declaring it to be in default. The members of the body in default must then immediately vacate their office, and provision is made for new appointments.

[35]With regard to how the “special measures” provisions of sections 26-28 are to be exercised, the Welsh Government and NHS Wales has issued guidance, namely NHS Wales Escalation and Intervention Arrangements (March 2014). That provides that NHS bodies in Wales (including the LHBs) will be monitored against the Welsh Government’s NHS Delivery Framework, and will be required to take remedial action if falling short of the Framework’s requirements. The Welsh Government also meets external review bodies (i.e. the Healthcare Inspectorate Wales, and the Auditor General for Wales) on a regular basis. Where these arrangements “flag up a potentially serious concern with service delivery, quality or safety of care and/or organisational effectiveness of NHS body”, then there is a procedure set out in paragraphs 15-32. Intervention under sections 26-28 is dealt with in paragraphs 33-36:

“33. In exceptional circumstances, officials of the Welsh Government (including the Chief Executive of Healthcare Inspectorate Wales) and the Auditor General for Wales may identify concerns in relation to an NHS body in response to which the Welsh Ministers may take Intervention as set out in [section 26-28 of the 2006 Act] and associated regulations. 34. Intervention actions by the Welsh Ministers may include suspending or removing powers and duties from individual members or all members of the NHS body’s Board. 35. Additionally, the Welsh Ministers may consider the use of Direction or Emergency powers which allows them to direct that a function of the NHS body be performed by another body for a specified time. 36. These formal powers are seen as a last resort and will normally be used only if other intervention is unlikely to succeed. Neither of the external review bodies undertakes such intervention actions themselves.”

Secure In-Patient Mental Health Services in Wales Introduction

Secure In-Patient Mental Health Services in Wales

[36]The historical background and current position with regard to secure hospitals in Wales is set out in sections B-D of Ms Jordan’s statement dated 18 September 2015.

[37]In section C, she helpfully defines and describes “secure hospitals”:

“11. It is important to define what is meant by secure hospitals. Secure hospitals provide care and treatment to people with mental illness who are a risk to other people or who may be at risk of harm due to their vulnerability. Secure hospitals are run both by the NHS and by private organisations. An individual placed in a secure hospital will usually be detained under a section of the [1983 Act]. 12. There are three different levels of secure hospitals – high, medium and low security. High secure hospitals treat people who need high levels of security because they could be dangerous, violent or are a high risk to other people. There are three high secure hospitals (Ashworth, Broadmoor and Rampton) in England, which provide all high secure beds for England and Wales. High security hospitals are as physically secure as Category B prisons. 13. There is no statutory definition of the level of security required for medium or low secure hospitals. There are three elements of security: environmental security (the physical layout of the estate, including factors such as the height of a perimeter fence, presence of an airlock), relational security (staffing levels) and procedural security (the procedures in place to afford leave to patients). The terms medium and low secure are used within the NHS Wales Collaborative Commissioning for Mental Health and Learning Disabilities… to denote a unit that has a secure entrance and perimeter and high degree of relational and procedural security. Medium secure units normally care for patients with a higher risk profile (whether to themselves or others). Low security units usually rely less on environmental security and more on procedural and relational security. Low secure units provide more security than standard mental health wards.”

[38]Men who require higher than medium secure facilities are therefore accommodated at one of three named high secure hospitals in England. Women who require higher than medium secure are usually accommodated in one of three Women Enhanced Medium Secure Services hospitals (“WEMSS”) (which have lesser physical security restraints that high secure), all of which are also in England. Although not directly relevant to this claim – because it is not suggested that the Claimant’s condition will ever result in her requiring higher than medium secure provision – it is therefore noteworthy that any individual from Wales, male or female, who is the subject of detention under the 1983 Act and who requires a facility of higher than medium secure can only be detained in England. There are no such facilities in Wales.

[39]In addition to those three levels of secure facility, there are other in-patient facilities available for those with a mental health condition or LD, including: i) Acute admission and Treatment Units (“AATUs”), which are locally-based, emergency, short-term facilities for adults with LD, designed to meet their needs and challenging behaviour. ii) Special residential facilities, either NHS Wales or independent sector, for longer-term care. In addition to establishments that are high, medium or low secure, there are open and locked rehabilitation units, with some security but less than low. The description “low and below” describes all those facilities with a security level of low or less.

The Development of Welsh Government Policy

[40]Ms Jordan sets out the Welsh Government’s overarching policy objectives with regard to secure mental health facilities in paragraph 4 of her statement:

“It is an overarching Welsh Government policy for secure services that patients receive treatment in hospitals at the minimum level of security necessary to provide that treatment. [LHBs] are expected over time to take steps to develop lower security levels and community facilities so as to provide more specialist care at local levels. It is also Welsh Government policy that where clinical need can be met, NHS provision within Wales if possible is desirable. However, in common with all parts of the UK, there are challenges around physical bed capacity, critical mass and recruitment of sufficient specialist clinicians that prevents full coverage of all the services being provided by the NHS in Wales. Use of the independent sector will be appropriate where need cannot otherwise be met. Where the independent sector is used, quality assurance steps are in place to promote rapid transition through the care pathway to community or less restrictive settings, and to repatriate patients to Wales whenever it is clinically appropriate to do so (“repatriation”). Repatriation plans are in place, and are jointly managed through the [WHSS Committee] and by LHBs.”

[41]She deals with the development of Welsh Government policy in relation to secure hospitals in section D of her statement. The main features of that history are as follows.

[42]Until the 1970s, hospital care was provided for mental health patients in local psychiatric hospitals, or, if required, high security hospitals. Two reports (the Glancy Report and the Butler Report) recommended the establishment of regional secure units for those who could not be cared for in local hospitals, but whose behaviour was not sufficiently dangerous to require high level security. In the 1980s, this initiative was coupled with a general change in approach from highly institutionalised care based in hospitals to a more community-based model wherever possible; and the growth of independent and third sector providers.

[43]In 1992, the All-Wales Advisory Group on Forensic Psychiatry published a report analysing the need for forensic psychiatric services in Wales, and how increasing demand might be met. It concluded that, whilst smaller units might have the advantage of being locally-based, they could not provide the spectrum of security or services required – and it recommended two larger units, one in North Wales and one in South Wales. Two purpose-built medium secure units were consequently commissioned and built, namely Ty Llewelyn (in the grounds of Bryn Neuadd Hospital, Llanfairfechan, Conway) and the Caswell Clinic (in Tondu, Bridgend). The latter expanded over time, and then moved to a new build facility with 60-odd beds, within the grounds of Glanrhyd Hospital, Bridgend. From 1999, those facilities became the responsibility of the National Assembly for Wales under the Government of Wales Act 1998, following the devolution of the health function.

[44]In line with thinking of the time, the general policy direction of the new Welsh Government was to move mental health services to more community-focused delivery where appropriate and safe to do so, so as to provide an alternative to hospital admission and to ensure safer and speedier discharge from secure hospital provision.

[45]In 2009, the Welsh Assembly Government commissioned a review group to conduct an independent strategic review into secure services in Wales, which reported in April 2009 (“the Review Report”). In a report of nearly 100 pages, the review considered levels of demand and need for high, medium and low secure services. A number of concerns were expressed, including about(i) the dearth of good quality data on secure care for people with LD (paragraph 6.4.1), and

(ii) the number of patients held in medium secure units inappropriately, because of the lack of “step down” services to low secure or community facilities (paragraph 2.4.2).

[46]The report put forward no less than 33 strategic objectives. Mr Wise focused on two, namely:

“Strategic Objective 27 To develop a national framework for the planning and delivery of services for people with [LD] who have forensic and secure mental health needs... Strategic Objective 28 To ensure the development of integrated comprehensive mental health services for children and adults with a LD...”

Strategic Objective 28

[47]The Welsh Assembly Government published the Review Report, but did not express any view on the recommendations made. Rather, the Welsh Ministers set up a Mental Health Secure Services Committee to prepare a plan based on the review findings.

[48]The Secure Mental Health Services Action Plan for Wales (“Secure Services Action Plan”) was completed by that committee in April 2010, and it was issued to the LHBs as Welsh Assembly Government policy. The plan said it was intended to be “sensitive to the needs of people with specialist needs to include women…”. The main aims of the plan were expressly set out, and included:

“To ensure that specialist secure mental health services for people whose main home address and/or attachments are Welsh will be provided within Wales, according to need, with the exception of high security hospital service provision. This has the added benefit of bringing patients closer to home, their families, partners and friends.”

The main changes required to achieve the various identified aims included:

“• Repatriation of people in services outside Wales. This change is a high value opportunity which needs to be led by [LHBs] in 2010-11 as part of the Service and financial Plans and the 5 Year Service Framework. • Development of a wider range of secure accommodation and specialist out-patient community based services. • Development of new specialist services… • The establishment of an all-Wales Adult Mental Health Programme Board to facilitate service development, liaison and interagency working nationally and at a local level.”

[49]Point 3 of the Action Plan, referring to Strategic Objectives 27 and 28 from the Review Report, concerned “provision of low secure facilities in each LHB area to minimise reliance on higher levels of secure provision and independent-for-profit sector, sensitive to the needs of people with specialist needs including women and people with LD…”. The content included:

“LHBs, working collaboratively with each other, and with Local Authorities and third sector, to develop a comprehensive low secure service, locally based, supporting [identified priorities, thereby progressively reducing the use of private sector hospitals by the NHS in Wales by 2011. Responsible lead: LHBs/LAs/Third Sector. Target date: December 2011. Develop a medium secure capacity plan based on an integrated expansion into low secure provision on a casemix basis, including women’s, LD and metal impairment and [personality disorder] services. Responsible lead: WHSS [Committee]. Target date: December 2010. Maintain and further develop the information database across all secure services to enable planners to make informed assessments of need, identify blockages and monitor progress.. Responsible lead: LHBs/WHSS [Committee] Informing Healthcare. Target date: Ongoing”

Point 3 had an annex, setting out the progress regarding “repatriation” of secure patients from the independent sector.

[50]The UHB’s response to Action Point 3, made in August 2010, included the following:

“… A patient repatriation committee has been established to coordinate repatriation plans. With LD Services, a Complex Case Panel has also been established and plans are being developed jointly with Third Sector Partners to develop repatriation proposals. A proposal is being developed for a 28-bed male Low Secure Unit on the Glanrhyd Hospital site. Plans are also being developed to meet the needs of women with complex needs. Caswell Clinic liaising with LD Services to develop gate-keeping assessments for patients requiring medium secure LD care. The Health Board would be able to consider options for an expansion of Medium Secure capacity, perhaps linked to the existing Caswell Clinic.”

[51]The NHS Wales National Collaborative Framework for Low and Medium Secure Services (“the NHS Wales Commissioning Framework”) was approved by the Welsh Ministers in January 2012. Its aim was to improve the quality of care provided to those in secure placements through the LHBs and WHSS Committee collaborating with regard to commissioning. The Framework imposed strict quality assurance and safety standards and improving performance, and sought to make the best use of public money by standardising prices and by driving down costs – in short, by obtaining value for money. A new specialist team (the NHS Wales Secure Services Contract Team, renamed in 2014 the NHS Wales Quality Assurance and Improvement Team (“the NHSW QAIT”)), was established to serve the LHBs and WHSS Committee by managing the NHS Wales Commissioning Framework. In April 2014, the Framework was renamed the NHS Wales National Collaborative Framework for Adult Mental Health and Adult Learning Disability Hospitals, to mark its expansion to cover, not just secure services, but also locked and open rehabilitation services.

[52]In October 2012, the Welsh Government published “Together for Mental Health: A Strategy for Mental Health and Well-being in Wales”, a ten-year strategy. This was supported by a detailed three-year Delivery Plan 2012-16 published at the same time, which included a commitment to ensure that integrated secure services are available when required.

[53]The Secure Services Task and Finish Group (“the Secure Services Group”) was established, to review progress in implementing the Secure Services Action Plan and make recommendations to the LHBs on what it considers to be priority areas within secure services to complete the Secure Services Action Plan and support the ten-year strategy.

[54]In its first report (February 2012), it recorded that Strategic Objective 27 from the Review Report (the development of a national framework for the planning and delivery of services for people with LD who have a need for secure facilities) was “not (or no longer) extant [Welsh Government] policy”; and Strategic Objective 28 (to ensure the development of integrated comprehensive mental health services for children and adults with a LD) had not been specifically actioned, although some progress had been made.

[55]The second report (undated, but some time later in 2012) noted that “limited progress” had been made in respect of “LD secure services” and “services for women”. In particular, it noted that:

“Much work is needed to enhance forensic care specialisms in LD services, to reduce the requirement for LD patients to receive secure care and ensure any person with LD in specialist care is there for the shortest time possible and receives specialist care and treatment.”

It recommended (amongst other things): “• Consideration for a national Forensic LD Service for Wales, this service should provide specialist in-patient care in a fit-for-purpose environment with outreach services to support LHBs and the [Secure Services Contract Team] in managing LD patients in independent sector and supporting local forensic community services. • Principle enforced that LD patients should be managed in community in all but exceptional cases. • [Secure Services Contract Team] to ensure all LD providers are promoting timely discharge…”.

[56]A further draft report in April 2014 repeated the recommendation for a National Forensic Learning Disability Service for Wales which “would include specialist in-patient care in a fit-for-purpose environment with outreach services to support LHBs...”. The report also recommended that: i) LHBs should consider commissioning a ten-year needs analysis of secure care facilities (Recommendation 1). It said that:

“Were the cost benefit analysis to demonstrate that outcomes for service users are improved by the use of NHS facilities, then consideration should be given to increasing the secure care capacity NHS Wales. A needs analysis would be required to indicate the local, regional and national planning requirements. Alongside this needs analysis, there should be a drive to optimise the current capacity of NHS Wales.” ii) The WHSS Committee should consider nominating the Caswell Clinic as the National Forensic Women’s Service for Wales (Recommendation 11): “This service should provide specialist in-patient care in a fit-for-purpose environment with outreach services to support LHBs and the Secure Services Contracting Team in managing female patients in independent sector and supporting local forensic community services.”

[57]In 2014, the Welsh Government published a new NHS Wales Planning Framework, which stressed that:

“In NHS Wales, planning, not the market, is the agreed approach by which [LHBs] and Trusts will develop and manage healthcare services and work through their response to these and other challenges.”

[58]As I have already indicated, under the Planning Framework, each LHB and the WHSS Committee are required to prepare an annual IMTP which, since the 2014 Act, is required to be approved by the Welsh Ministers (see paragraphs 29-30 above). The Planning Framework (currently for 2015-16) provides guidance to LHBs on developing IMTPs, which set out how resources will be used in the medium (three-year) term to(i) address areas of population health need and improve health outcomes,

(ii) improve quality of care, and ensure best value from resources. It indicates that the planning system requires (amongst other things) “strengthened needs assessments and socio-economic profiling to underpin assertive plans to reduce health inequalities and access to care, planning services designed to meet the health needs of the resident population, a clearer focus on developing and improving services that are evidence-based…”; and has the following characteristics (amongst others) “collaborative approaches across NHS Wales are agreed and delivered through the planning system,… clear and logical arrangements are put in place to share national planning capacity and support when there are clear reasons for doing so…”

[59]Jock Andrew is Continuing Healthcare Manager and Commissioning Manager with the UHB’s Learning Disability Directorate. He explains in paragraphs 12-16 of his statement dated 12 November 2015 that priorities emerge out of the planning process, from bottom up. Local priorities for change and improvement emerge from LHB Directorates and Service Units as they develop their local IMTPs. These priorities are reviewed and considered across the LHB as it develops its overall IMTP, within the resources made available to it each year. A draft IMTP is considered by the LHB Board, and submitted to the Welsh Government for comment. Further work is then done by the LHB Board, before the final IMTP is sent to the Welsh Government for approval.

[60]In respect of the functions performed by the WHSS Committee, Pam Wenger (a member of the Committee) explains in her statement dated 12 November 2015 that the Committee makes prioritisation decisions on the basis of services brought to their attention by the Operational Managers Group, upon which there are representatives from each LHB and which is responsible for developing the WHSS Committee’s IMTP. Of course, only services for which the Committee is responsible would be brought to its attention. The Committee’s priorities are developed on the basis of commissioning intentions and priorities identified by each LHB, the Committee’s own prioritisation of need and of course the funds available to it.

[61]The UHB has duly prepared and published an IMTP for the period 2015-18. Its priorities for mental health services for that period are there set out, including the decommissioning of a low secure ward at Cefn Coed Hospital and the commissioning of a new 28-bed low secure service at Glanrhyd Hospital (at a capital cot of about £16.5m) with resulting repatriation from the independent sector to “bring patients closer to home”. It was also proposed to develop a business case for submission to the WHSS Committee for the development of a medium and high secure gatekeeping and case monitoring service for Mid- and South Wales, with a view to achieving “a significant reduction in the number of high and medium secure patients” from those areas.

[62]The WHSS Committee has also produced an IMTP for the same period, namely Integrated Plan for Commissioning Specialised Services for Wales 2015-18. It sets priorities for a large number of clinical areas, including “Mental health” and “Women and children”.

[63]In neither the UHB nor the WHSS Committee IMTP is the provision of secure services listed as a priority; nor is there any reference to those services, as a priority or as a concern, in any of the authorities’ annual reports.

[64]Mr Wise referred to two further documents. First, the All-Wales Challenging Behaviour Community of Practice (a subgroup of the Welsh Government Learning Disability Advisory Group) produced a “draft action plan” in response to the Winterbourne View abuse case. He referred to the statement in the report that:

“The current pattern of service provision in Wales for this group is patchy, usually provided in institutional settings by private sector agencies, due to the fact that there are no NHS forensic facilities for people with LD in Wales”; and to the list of “Current problems and barriers to achieving quality services in Wales” following, which includes: “The lack of appropriate services and accommodation in Wales results in people... being placed out of their home area, in expensive institutional services.... Such ad hoc out of area arrangements with limited monitoring of placement quality was a direct cause of the Winterbourne View abuse.” “Little or no effective joint commissioning...” “... [A] disconnection between those commissioning out of area placements (inside and out of Wales) and those planning to repatriate these individuals.” “Lack of data regarding where people are currently placed and accurate comprehensive cost of placements.” “... [A] misconception that developing local, resilient and skilled services will require significant new money. However, the reality is that a substantial amount of revenue funding is already in the system, but being spent inappropriately.”

[65]Second, he referred to a checklist produced by the Challenging Behaviour and Mental Health Subgroup of the Learning Disability Implementation Advisory Group, and published by the Welsh Government, namely The Self-Assessment Checklist for Monitoring Services for People with Learning Disability and Challenging Behaviour. In particular, he relied upon the following passage, under the heading “Standard 5: Agencies should work together to ensure that out of area placements are minimal and appropriate”: “A vicious funding cycle exists at present. In the absence of effective local services for people who challenge, out of area placements are commissioned. Money flows away from the area (and often, out of Wales); no investment is made available to develop resources on a local basis and, in the absence of such developments, further funding out-of-area placements for newly emerging cases of need becomes the only option. To most people with LD, their families, and clinicians, it is difficult to understand how large sums of money can easily be found to send someone to an out of area placement when it is practically impossible to find equivalent or lesser sums to develop services that would have maintained the same individual in their natural community and develop the capacity and competence within local services as a result. The revenue to fund local services is already being spent (in the form of out of area placements). Capital and bridging funding is required to enable this funding to be resettled to local areas for the development of services for people who challenge...”.

[66]These reports, Mr Wise submitted, are evidence that the commissioning of further secure facilities for women with ASD and LD (such as the Claimant) would not – or would not necessarily – be prohibitively expensive.

[67]Those were the main advisory and policy documents to which I was referred. Mr Gordon emphasised, and I too stress, that many of the documents upon which Mr Wise relied did not comprise policy as adopted by the Welsh Government, but advice, recommendations and even drafts, some commissioned by the Government, some not.

[68]Mr Gordon for the Welsh Ministers submitted that, on the basis of the evidence before me, Welsh Government policy for secure services so far as relevant to this claim, now and at all relevant time for this claim, had included the following strands: i) For those with LD and challenging behaviour, service provision should still aim to ensure that people remain in their homes and local communities. The priority is to improve the capability of community LD services to either prevent problems arising in the first place or managing them within the community. The costs savings made (e.g.) through the operation of the NHS Wales Commissioning Framework, is ring-fenced, and must be used by LHBs on mental health service, in practice being used predominantly to support local support services (see paragraph 48 of Ms Jordan’s statement dated 18 September 2015). Where management in the community is impossible to achieve, temporary alternative accommodation may be needed – at an appropriate security level – until the patient can return home or go to new long-term accommodation in the community. A successful outcome of such interventions would see the individual returning to community living, and as soon as possible. ii) Patients receive treatment in hospitals at the minimum level of security necessary to provide that treatment. LHBs are expected over time to take further steps to develop lower security provision and community facilities so as to provide more specialist care at local level. iii) Where clinical need can be met, NHS provision within Wales is desirable. However, there are long term issues around physical bed capacity, critical mass and recruitment of sufficient specialist clinicians within NHS Wales that prevents full coverage of NHS provision. It is not Welsh Government policy that the needs of all patients must be met within Wales, regardless of the cost of such treatment and the specialist skills available. iv) Use of the independent sector (in both Wales and England) may be necessary where need cannot otherwise be met. Quality assurance steps are in place to promote rapid transition through the care pathway to less restrictive or community settings, and to repatriate patients whenever it is financially and clinically appropriate to do so. That appears to me to be a fair summary of the broad policy direction of the Welsh Government, as revealed in the documents and statements.

Current Secure Hospital Facilities in Wales

[69]Turning to the current facilities in Wales, as I have indicated (see paragraphs 37-38 above), there are no higher than medium secure facilities in Wales.

[70]There are currently three medium secure facilities in Wales, each catering for both men and women. i) Caswell Clinic: a unit of 61 beds (including 11 for women) in the grounds of Glanrhyd Hospital, Bridgend, provided by the UHB. ii) Ty Llewelyn: a 25-bed unit in the grounds of Bryn Neuadd Hospital, Llanfairfechan, provided by Betsi Cadwaladr University LHB. iii) Llanarth Court: a medium and low secure unit of 121 beds (including 16 for women) located in Raglan, Gwent, provided by Partnerships in Care (an independent provider). These are able to cater for the majority of medium secure Welsh patients; but, usually as I understand it because of the specialist needs of particular patients, not all. Those who are not accommodated in Wales are managed within the independent sector in England.

[71]In addition, there are a several other facilities in Wales catering for low and below patients, most in South Wales. These include: i) Three AATUs owned and operated by the UHB, that specialise in ASD and LD, namely(i) Hafod y Wennol, Pontyclun,

(ii) Llwyneryr Hospital, Morriston, and

(iii) Rowan House, Cardiff. Each has eight beds. ii) The Priory Hospital, Aberdare: a locked (i.e. below low) rehabilitation unit in the private sector (11 beds). iii) Pinetree, Cardiff: a locked rehabilitation unit in the private sector, specialising in adults with LD and a dual diagnosis of LD and a mental health condition (28 beds). iv) Heatherwood Court, Pontypridd: a low secure unit in the private sector (35 beds). v) The Priory Hospital, Caerphilly: a low secure unit in the private sector, specialising in adults with LD and a dual diagnosis of LD and a mental health condition (16 beds).

Data on Relevant Patients

[72]It is, of course, a central allegation in this claim that the LHBs and the WHSS Committee have not collated information concerning women with ASD and LD who have a requirement for secure accommodation, and thus not only have not but cannot make lawfully informed decisions about their reasonable requirements and how those requirements might be met. That has led to a large amount of evidence being tendered by the three Defendants, setting out and explaining the data they hold, and how it has been and is collected. The Defendants contend that much of this information is published and public available; but, in any event, after the service of that evidence, the Claimant’s grounds in respect of a failure to collate data have been much reduced in scope, the Claimant now relying upon just four discrete and quite narrow categories of information which (it is said) the Defendants did not, and should have, collected and considered. That change to the claim means that I can deal with the evidence in respect of general data collection quite briefly.

[73]Ms Jordan deals with the evolution of the systems NHS Wales has used for collection of data about relevant patients in her statement dated 18 September 2015, and Nic Cowley (the Head of Sourcing for Capital and Projects, NHS Wales Shared Services Partnership) deals particularly with the current database from paragraph 20 onwards in his statement dated 15 September 2015; but it is helpfully summarised in paragraphs 20 and following of the Welsh Ministers’ Grounds of Opposition.

[74]As Welsh Government policy in respect of secure hospital placements evolved, a database was developed to monitor and review placements. Initially restricted to Mid- and South Wales, and to placements in the independent sector only, in 2008 the Welsh Government funded a national database, the All-Wales Low Secure Database, which (as its name suggests) was national but restricted to low secure placements. There was a separate database for medium secure patients, which was improved in 2009 following the creation of the WHSS Committee. The Secure Services Action Plan recommended the development of a database across all secure services, and such a database was duly developed.

[75]The database is not a Welsh Government database: it is held and operated by the NHSW QAIT, and hosted by Cwm Taf University Health Board. Importantly, all of the data on it are now available to all NHS bodies, including the UHB and the WHSS Committee, for planning and commissioning purposes. In April 2014, the database was renamed the Care Assurance Performance System (“CAPS”); and, a year later, renamed again the Commissioning Care Assurance Performance System (“CCAPS”) to reflect the expanded scope of the NHS National Planning Framework.

[76]Anonymised annual reports are prepared and published by the NHSW QAIT, drawing on data from the database. The 2012-13 and 2013-14 reports included key data on each patient placed in secure placement, diagnosis, primary presenting need, gender, detail of placement (duration, location, nature of placement), cost of placement in the independent sector, admission details and discharge destinations. The 2014-15 report provided data on those placed in independent providers only: but data on medium secure placements made in NHS Wales hospitals continues to be held by the WHSS Committee, and an LHB continues to hold data on all those in their area who are placed, irrespective of level of their secure provision. Thus, concludes Ms Jordan (at paragraph 52 of her statement):

“[T]he data held on CAPS and CCAPS, together with that held directly by the WHSS [Committee] and the LHBs, remains available to those responsible for planning and commissioning services.”

[77]The WHSS Committee collects data on medium secure placements in NHS Wales provision, via both monthly activity reports from the two facilities in Wales (Caswell House and Ty Llewelyn) and from monthly data from the NHSW QAIT (paragraph 51 of Ms Jordan’s statement dated 18 September 2015).

[78]As to the information that is available, relevant to this claim, the Secure Services Group Medium Secure Capacity Plan 2011-13 provides a number of data, including a snapshot of medium secure patients accommodated by the WHSS Committee on behalf of the Welsh LHBs in November 2010. That shows 149 such patients, 115 men and 34 women. 81 are in NHS facilities and 68 in independent sector facilities. 21 patients came from the UHB area. Of those, 11 were at Caswell Clinic, eight at Llanarth Court and two in facilities in England.

[79]Further data are provided by Carl Shortland in his statements of 15 September and 12 November 2015: Mr Shortland is employed by the WHSS Committee as the specialist lead on the commissioning of forensic services. Mr Shortland confirmed the following. i) The Caswell Clinic is now the designated NHS medium secure facility for female patients in Wales (paragraph 5 of his statement dated 12 November 2015). ii) Although there are medium secure facilities in Wales that can care for women with LD, there is no such facility that is specific for women who have a primary LD need (paragraph 18 of his statement dated 15 September 2015). iii) The numbers of medium secure placements of women at Caswell Clinic, all by the WHSS Committee on behalf of LHBs, were as follows: 2012-13 6 (one from the UHB) 2013-14 5 (none from the UHB) 2014-15 4 (one from the UHB) None of the above were women with a primary LD need (paragraph 5 of his statement dated 12 November 2015). iv) Of the women in Wales with a primary LD need who required a medium secure facility, the numbers were as follows: 2012-13 3 (none from the UHB) 2013-14 1 (from the UHB) 2014-15 3 (one from the UHB) As at 10 Sep 2015 4 (number from the UHB unknown) All of these women were placed in England, at independent sector facilities, by the WHSS Committee through the National Framework. One of the three women placed in 2014-15 was the Claimant, who was of course placed at the Dene. In addition to the Claimant, that year the UHB placed eight women in low secure, open and locked facilities, all of those placements being in Wales. In that year, from the UHB (as opposed to all-Wales), all placements of women in medium secure facilities were made in the Caswell Clinic, except one (the Claimant). There were two more women from elsewhere in Wales, who were also placed in English facilities (paragraphs 11 and 12 of and exhibit CS 1 to his statement dated 15 September 2015). v) As appears from the above, the number of women in Wales with a primary LD need who require medium secure provision is very small: 11 across Wales over a three and a half years period, and in that time perhaps only two (the Claimant and one other) from the UHB area. However, none has been accommodated in medium secure provision in Wales: all have been found provision in England. vi) The total annual budget of the WHSS Committee is approximately £625m. The amounts spent on commissioning medium secure services for women with LD have been 2012-13 £966,000, 2013-14 £763,000 and 2014-15 £1,170,000 (paragraphs 14 and 15 of his statement dated 15 September 2015).

The Claimant, Her Condition and Her Treatment

[80]The Claimant was born on 11 March 1994, and is currently aged 21. She lives in Swansea, with her parents and two younger siblings.

[81]The Claimant’s behavioural problems started in 2005, and psychological tests in 2006 indicated that, in terms of IQ, she was in the bottom percentile which suggested a significant degree of LD. That year, she received a statement of special needs, and between 2006 and April 2013 attended a number of specialist schools. She was diagnosed with ASD in September 2010, when the family moved to Swansea.

[82]She has been detained under section 2 and 3 of the 1983 Act four times, on each occasion at a time of crisis and as a result of a clinical decision that her behaviour was such that compulsory detention was necessary. i) In March 2009, when she was 15 years old, she was detained for two months in the Priory Hospital, Bristol (just over 80 miles from her home). ii) In October until mid-December 2009, she was detained in Hafod Newydd, Glanrhyd Hospital, Bridgend (a facility that has subsequently closed). iii) On 11 April 2012, aged 18, she was admitted to Llwyneryr Hospital, Morriston as a voluntary patient. She was compulsorily detained from 13 April 2012 until 14 January 2013, a period of nine months. iv) She was admitted to Llwyneryr again on 26 April 2013, after a failed community placement. Following a number of violent incidents, she was compulsorily detained there from 9 September 2013 to 1 August 2014, a period of 11 months. During these times, the Claimant had significant periods of leave at her family home (under section 17 of the 1983 Act: see paragraph 10 above), her mother indicating that over two-thirds of the days spent in the last 11 month period were spent at home.

[83]In respect of the last period of detention, the Claimant’s mother appealed to the Mental Health Review Tribunal Wales against the refusal to discharge the Claimant. She wished to look after the Claimant at home, with a bespoke support package. However, from January 2014, the Claimant’s challenging behaviour substantially increased, with repeated attempts to abscond from Llwyneryr, regular assaults on staff and other patients (some causing injuries), and threats to kill. There appear to have been 31 incidents of assaults in the period January to May 2014, a number requiring police intervention and the Claimant’s restraint. The responsible clinician (Dr Ganesh) considered that discharge into the community would not work, because of the Claimant’s challenging behaviour; and that it was not an option at that stage.

[84]Indeed, as a result of the deterioration in behaviour, it seems to have been accepted by the Claimant and her parents that she could not stay at Llwyneryr. On 18 July 2014, a clinical decision was made by Dr Ganesh to transfer the Claimant to the Dene, a medium secure unit in Brighton (about 235 miles from her home in Swansea), which, he considered, had the expertise to meet the Claimant’s complex needs. He considered that, at that time, there was no alternative placement in Wales that was available and suitable to meet the Claimant’s presenting clinical needs. Indeed, on the evidence, it seems that the Dene was the only facility in England that was available and suitable. The transfer was proposed in the interests of the Claimant – for her own safety, and to enable her to undergo further assessments and treatment – and also for the protection of the staff and other patients at Llwyneryr. It was always intended – and the intention was known to the Claimant’s parents at the time – that the transfer to the Dene should be a short-term measure, to assess the Claimant’s underlying behaviour, to stabilise her and to return her to Wales, with or near her family, as soon as possible. The Claimant’s mother says that “the move to the Dene was absolutely devastating to Claire” (paragraph 22 of Mrs Dyer’s statement dated 2 November 2015). It was difficult for the family to visit the Claimant, and difficult to organise home visits for her, because of the distance involved. It was, certainly, far from ideal. I have already referred to Mrs Dyer’s strong views on the matter (see paragraph 5 above).

[85]On 29 July 2014, the Claimant, through her mother as litigation friend, commenced judicial review proceedings of the decision to place her at the Dene. At a hearing on 1 August 2014, permission to proceed (and, inevitably, the immediate interim relief sought) was refused by Andrews J (reported as R (Dyer) v Abertawe Bro Morgannwg University Local Health Board

[2014] EWHC 3377 (Admin)

). The judge concluded that the placement did not arguably breach

article 8 of the ECHR

, and the decision to place the Claimant at the Dene was not arguably irrational or otherwise unlawful. It was, rather, a clinical judgment, taken in the Claimant’s interests as well as those of the staff and other patients at Llwyneryr.

[86]The Claimant moved to the Dene later that day, 1 August 2014. From October 2014, she was granted section 17 leave, to spend time with her family at home; and, as I understand it, she remained at home from 22 October. I understand why the Claimant and her family were so opposed to her being so far away – and I do not seek to diminish the distress that it caused her and them – but, although Mrs Dyer is firmly of the view that the transfer was detrimental to her daughter’s well-being, the placement at the Dene was made on the basis of a clinical assessment and decision – and, on the face of it, the transfer appears to have resulted in some clinical success, in that, following nearly a year in Llwyneryr, within a couple of months at the Dene, the Claimant’s condition had stabilised, her behaviour very significantly improved and she was discharged. She has, happily, not required any period of hospital admission since then.

[87]Having been at home since 22 October, on 10 November 2014 she was discharged home. She returned to live at the family home in Swansea, with a bespoke intensive package of care commissioned by the UHB. On 10 November 2014, a meeting was held involving the Claimant, her mother, her advocate, a consultant psychiatrist and her care coordinator/commissioner (i.e. Mr Andrew), to discuss the Claimant’s section 117 after-care plan (see paragraph 11 above). In paragraph 17 of his statement of 16 September 2015, he explains that the Claimant’s Care and Treatment Plan (“CTP”) was prepared in accordance with the Mental Health (Wales) Measure 2010 (2010 nawm 7), section 18 of which provides (so far as relevant): “(1) A relevant patient’s care coordinator must work with the relevant patient and the patient’s mental health service providers –(a) with a view to agreeing the outcomes which the provision of mental health services for the patient are designed to achieve, including (but not limited to) achievement in one or more of the following areas – (i) finance and money (ii) accommodation; (iii) personal care and physical well-being; (iv) education and training; (v) work and occupation; (vi) parenting and relationships; (vii) social, cultural and spiritual; (viii) medical and other forms of treatment including psychological interventions;

(b) with a view to agreeing a plan (‘a care and treatment plan’); … (2) Where a care and treatment plan has been agreed, the care coordinator must record the plan in writing…”. (a) with a view to agreeing the outcomes which the provision of mental health services for the patient are designed to achieve, including (but not limited to) achievement in one or more of the following areas – (i) finance and money (ii) accommodation; (iii) personal care and physical well-being; (iv) education and training; (v) work and occupation; (vi) parenting and relationships; (vii) social, cultural and spiritual; (viii) medical and other forms of treatment including psychological interventions; (b) with a view to agreeing a plan (‘a care and treatment plan’); …

[88]At the first meeting, much was agreed – but the following is recorded as an “unmet need”:

“Crisis accommodation; currently no firm arrangements in place, discussions are continuing with Priory and within [the UHB].”

[89]On 17 December 2014, the “core group” in charge of the Claimant’s care, produced a document, “Contingency Arrangements for Crisis”, which was given to the Claimant, her parents, and on-call managers and psychiatrists, setting out a protocol for what would be done in the event that the Claimant’s care needs increased to crisis level. This adopted a stepped approach. In the event that an admission was required, the plan was to consider “staffing levels, current clinical situation at Hafod y Wennol and presenting risk from [the Claimant]”, and, if appropriate, to contact Hafod y Wennol to make arrangements for her admission. The protocol continued:

“Should no beds be available, and the situation at home be assessed as untenable, then it may be necessary to secure the services of the Police, depending upon the severity of the situation and risks posed. The Police will then have the authority and responsibility to identify an appropriate place of safety.”

[90]Thereafter, says Mr Andrew, discussions with the Priory Hospital, Aberdare continued; and, in February 2015, the CTP was agreed. If the Claimant presented as needing more care and support, it was confirmed that there was to be a staged approach. First, she would receive support at home. Second, she would be admitted to Hafod y Wennol. If that did not assist, or if a longer period of admission were required, she would move to the Priory.

[91]In April 2015, a new Positive Behavioural Support Plan was prepared by the Claimant, with a Crisis Plan added by the UHB. On 15 May 2015, there was a review, and the CTP was amended. That too was agreed. Very much in line with the wording used in the Crisis Plan, that states that, in the event that the Claimant presents as needing more care, the following steps will be taken:

“Contact Jock Andrew, prompt response will be given as previously. Contact Dr Ray Jacques, prompt response will be given as previously. Consideration will be given in close discussion with Claire and her family regarding any potential need for admission; if this is felt to be appropriate and Claire is agreeing to this happening informally then that would be the preferred option (as stated with the Advanced Directive that Claire has written with an independent advocate). Admission, should it occur, would be for the shortest possible period of time to allow Claire to calm down and return home, if this were the case the Hafod y Wennol, [UHB] admission facility would be utilised in the first instance. Should longer period of admission be required the intention will be to facilitate this at Priory Hospital Aberdare. Dialogue is continuing with Priory Aberdare regarding the use of their facility to keep Claire close to home and family if a longer period of admission is needed. Offer extended at CTP review for Priory representatives to meet and maintain contact with Claire and the family. Family felt this would be counter-productive to Claire and would cause anxiety. Jock agreed to continue to brief key clinicians at Priory on a regular basis, and to decline their offer of meeting with Claire and family.”

[92]Mr Andrew takes up the story (at paragraph 27 of his statement dated 16 September 2015):

“I… exhibit… an email from Dr Layton [of the Priory Hospital] dated 12 May 2015 confirming a clear plan for [the Claimant] could be admitted to the Priory if required. It is important to note that no patient is ever guaranteed an admission into a private facility. All clinical decisions that need to be taken at a given time must be time specific and based on the patient’s presenting clinical need at that point. However, the plan with the Priory is as concrete as it can be and the email from Dr Layton clearly demonstrates the planned approach that ahs already been considered for [the Claimant]. [The Claimant’s] parents have never objected to a proposed placement at the Priory.” ”

[93]The email from Dr Layton suggests that there is single person accommodation at the Priory that is being developed – but is already oversubscribed – and there is a “female area with two beds” which “might be preferable to [the Claimant] and her family than an admission to the local [AATU] or going out of South Wales.”

The Current Grounds of Challenge

[94]In the Addendum Grounds and Mr Wise’s skeleton argument, it is contended that the Defendants have breached their duty under section 3(1) of the 2006 Act as follows: Ground 1: The UHB and/or WHSS Committee have failed to collate the data required to enable them to discharge the duty imposed by section 3(1) to make appropriate decisions in relation to the provision “throughout Wales” of low and medium secure hospital accommodation services for women with ASD and LD. Grounds 2 and 4: The UHB has failed to take any decision as to the reasonable requirements for low secure services of women with ASD or LD in its own area (Ground 2); and the WHSS Committee has equally failed to take any decision as to the reasonable requirements for medium secure services of women with ASD or LD in Wales (Ground 4). Ground 3: The UHB has failed to take a co-ordinated approach with the other Welsh LHBs to the delegated section 3(1) duty in relation to low secure provision for women with ASD and LD. Ground 5: The Welsh Ministers have failed to take steps to remedy those failings of the LHBs (including the UHB) and the WHSS Committee.

[95]In respect of these grounds, Mr Wise prays in aid, albeit generally and gently,

article 8 of the ECHR

(the right to family and private life) read with article 19 of the United Nations Convention on the Rights of People with Disabilities.

[96]Before I consider those specific grounds, it would be helpful if I dealt with some preliminary points on section 3(1) of the 2006 Act (paragraphs 97-119), and cleared the decks by briefly indicating what is not being challenged in this claim (paragraphs 120-121). Section 3(1) of the 2006 Act: Preliminary Points Introduction

Section 3(1) of the 2006 Act: Preliminary Points

[97]Section 3(1) is set out above (paragraph 16). It materially provides that: “The Welsh Ministers must provide throughout Wales, to such extent as they consider necessary to meet all reasonable requirements – … hospital accommodation, other accommodation for the purpose of any service provided under this Act…”.

[98]There are four preliminary points concerning the section.

Point 1: Accommodation

[99]There is no doubt that secure accommodation required for the purposes of the 1983 Act is “accommodation” within section 3(1).

Point 2: The Margin of Discretion

[100]Mr Wise relied upon a series of cases which (he submitted) confirm that the section 3(1) duty requires information to be obtained and collated and thereafter decisions taken on(i) the reasonable requirements for secure services of women with ASD and LD, and

(ii) what is necessary to meet those requirements. Indeed, he laid considerable weight upon that proposition.

[101]It seems that the only authority directly on section 3(1) is my own recent judgment in R (Forge Care Homes Limited) v Cardiff and Vale University Health Board

[2015] EWHC 601 (Admin)

;

[2015] PTSR 945

(“Forge Care Homes”), a case concerning the issue of whether LHBs or local authorities should pay for the nursing care of care home residents in Wales. Mr Wise relied upon this passage, at [10]:

“… [B]y virtue of section 3(1), the Welsh Ministers have a statutory obligation to provide nursing services, free of charge, but only “to such extent as they consider necessary to meet all reasonable requirements”

. In considering what services to provide in any particular case, the Ministers (and NHS Wales on their behalf) must consequently decide (i) what are the reasonable requirements; and (ii) what is necessary, in terms of NHS services, to meet the reasonable requirements found to exist including, where the services are purchased in, what it is reasonable to pay for those services.”

[102]Mr Wise said – quite rightly – that this echoed the approach in earlier cases, concerned with different statutory provisions but ones which (he submitted) were of a similar substantive construction, e.g. R v North and East Devon Health Authority ex parte Coughlan

[2001] 1 QB 213

(“Coughlan”) at [23]-[26] per Lord Woolf MR (which concerned the provision of nursing services under section 3(1) of the National Health Service Act 1977 (“the 1977 Act”), which is in similar terms to section 3(1) of the 2006 Act), and R (West) v Rhondda Cynon Taff County Borough Council

[2014] EWHC 2134 (Admin)

at [44] per Supperstone J (which concerned section 118 of the School Standards and Framework Act 1998, which requires a local education authority to “secure the provision of… nursery education for children…”).

[103]As a principle, it seems to me to be self-evident that, if a public body is under an obligation to provide accommodation and other services to meet a statutory requirement, the public body must ascertain the requirement it is obliged to meet, before deciding how it should be met. Certainly, neither Mr Gordon nor Mr Williams suggested anything to the contrary.

[104]However, in pursuing his contention that the LHB and/or the WHSS Committee had failed to collate the information that they needed to make decisions as to what the relevant requirements were and how they should be met, in my view, Mr Wise overfocused on this principle.

[105]Section 3(1) is a general duty (see paragraph 17 above); and, as the authorities emphasise, the “obligation is limited to providing the services identified to the extent that [the relevant authority] considers that they are necessary to meet all reasonable requirements” (Coughlan at [23] per Lord Woolf MR, in relation to the similarly worded provision in the 1977 Act: emphasis in the original). This necessarily places considerable discretion – or judgment as, in this context, it is perhaps better described – in the hands of the authority. Lord Woolf in Coughlan put it thus: “24. The first qualification placed on the duty contained in section 3 makes it clear that there is scope for the Secretary of State to exercise a degree of judgment as to the circumstances in which he will provide the services, including nursing services, referred to in the section. He does not automatically have to meet all nursing requirements. In certain circumstances he can exercise his judgment and legitimately decline to provide nursing services. He need not provide nursing services if he does not consider they are reasonably required or necessary to meet a reasonable requirement. 25. When exercising his judgment he has to bear in mind the comprehensive service which he is under a duty to promote as set out in section 1. However, as long as he pays due regard to that duty, the fact that the service will not be comprehensive does not mean that he is necessarily contravening either section 1 or section 3. The truth is that, while he has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable. Recent history has demonstrated that the pace of developments as to what is possible by way of medical treatment, coupled with the ever increasing expectations of the public, mean that the resources of the NHS are and are likely to continue, at least in the foreseeable future, to be insufficient to meet demand. 25. In exercising his judgment the Secretary of State [the relevant authority in that case] is entitled to take into account the resources available to him and the demands on those resources…”.

[106]More succinctly, if less powerfully, in Forge Homes, immediately after the passage quotation in paragraph 101 above (and still in [10]), I said of the two questions to which I had alluded:

“In respect of each of those questions, there is a margin of discretion. In exercising that discretion, NHS Wales is of course able to take into account the fact that these services are publicly funded, public resources are limited, and, in using its finite budget, NHS Wales is generally able (and, indeed, obliged) to choose between competing calls on those resources.”

[107]However, the exercise of judgment is not restricted to the substantive scope of the reasonable requirements, and the services the relevant authority considers necessary to meet those requirements. The authority also has a substantial degree of flexibility as to how it goes about its task. That principle is derived from cases such as CREEDNZ Inc v Governor General of New Zealand

[1981] 1 NZLR 172

and In re Findlay

[1985] AC 318

, and described by Laws LJ in R (Khatun) v London Borough of Newham

[2004] EWCA Civ 55

;

[2005] QB 37

at [35] in the following eloquent terms:

“In my judgment the CREEDNZ Inc case (via the decision in In re Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by a decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant matter accepted or demonstrated as such…”

(emphasis added). This principle is particularly strong – and the margin granted to the relevant authority particularly wide – where the discretion being exercised is in the context of an assessment involving judgmental balancing of complex socio-economic factors made against a policy backdrop. As Mr Gordon rightly submitted, nothing in Forge Care Homes casts or seeks to cast any doubt upon that well-established approach. Subject to the Wednesbury test, the court will not interfere with or otherwise prescribe how section 3(1) decisions are made.

[108]The principle bears upon this case in two ways.

[109]First, before making an assessment of reasonable requirements or necessary services to meet them, the authority must consider whether the information it has is sufficient for it to make a properly informed decision; but that in itself requires an exercise of judgment with which this court will only interfere on public law grounds.

[110]Second, Mr Wise submits that the various authorities here – notably the UHB and the WHSS Committee – erred in not focusing upon a category of patient which he has defined for the purpose and into which the Claimant falls, namely women with ASD and LD who require or may require in-patient mental healthcare (se, e.g. paragraph 1 of his skeleton argument). They erred, he says, in not collecting information and data about that group, and in not making a distinct discrete decision with regard to commissioning and financing (or not) of further secure accommodation in Wales for that group.

[111]However, that, in my respectful view, is a somewhat simplistic view of the relevant decision-making, which misunderstands the nature of the relevant decisions. Mr Wise criticises the UHB and the WHSS Committee for not collating data in respect of a group he defines – i.e. women who require secure accommodation because of behaviour stemming from ASD and LD – and, thereafter, for not considering and making decisions concerning the requirements of the individuals in that group. But: i) It is for the relevant authorities (the LHBs and the WHSS Committee in this case) to consider the criteria for the scope relevant clinical areas in respect of which, in their considered view, planning can best be made. The authorities have a wide margin of discretion in respect of the criteria they chose, and how they apply them. This assessment too requires judgment with which, for the reasons I have given, the courts will not lightly interfere. ii) It is in any event, in my view, arguably artificial to create a cohort by reference to the primary criterion lit upon by Mr Wise, i.e. a diagnosis of both ASD and LD, coupled with or uncoupled from the secondary criterion of a potential need for secure placement. A cohort is a group of people with a characteristic in common; and, in this context, that characteristic must be such that the individuals in the cohort have at least some common “reasonable requirements”. However, as Mr Williams submitted, individuals with complex diagnoses including (but often, as in the Claimant’s case, not restricted to) ASD and LD have varying degrees of mental health and often physical health disabilities, with different consequential behaviours and care and treatment needs, which (as again the Claimant illustrates) themselves can vary greatly over time. This is particularly so with behavioural conditions such as LD which, as I understand it, are not curable, treatment going to the goal of enabling individuals to cope with the disability. That inevitably requires a particularly subjective approach. As the Claimant’s mother emphasises in her statement of 2 November 2015, such patients may at times need particularly specialised assessment, treatment and care, tailored to his or her particular condition and behaviour. Even if patients need secure provision, the nature of the required facilities will vary. Such individuals are clinically idiosyncratic, and may not have any or sufficient commonality in their “reasonable requirements” to classify as a “cohort” (see, e.g., paragraphs 11-12 of Mr Andrew’s statement dated 16 September 2015). That is particularly so if, as here, they are small in number. iii) However, even if they can be properly categorised as Mr Wise suggests, the decision to be made about their reasonable requirements and how they might be met does not concern simply them. Such decisions cannot be made in a vacuum, or (as Mr Williams put it) in isolation from the competing needs and priorities of other cohorts of patients. To consider reasonableness of their requirements means assessing them in the context of the needs of a multiplicity of other patients and potential patients, and the many other calls on public resources allocated to NHS Wales. It is unrealistic to impose upon the relevant authority an obligation discretely to consider every possible group and subgroup of patients and potential patient, no matter how narrowly defined, who may wish to use the services of NHS Wales; and to make a discrete decision as what their precise requirements will be and whether to prioritise their needs or otherwise favour them over others with different health requirements. The relevant decision-making process is therefore particularly sophisticated. It can sensibly be done – and, perhaps, only sensibly done – in the context of a scheme whereby the requirements of all patients and potential patients are taken into account somewhere along the line. iv) NHS Wales has such a scheme. It is described in paragraphs 59-60 above. The scheme, on a bottom up basis, is designed to identify and consider the requirements of all patients and potential patients; and the prioritisation of those requirements for the purposes of planning, including planning capital and other public expenditure. That scheme is not challenged in these proceedings.

Point 3: Allocation of Section 3(1) Responsibilities

[112]Mr Wise submits that the evidence shows that there is “real confusion as to how the responsibilities imposed by section 3(1) are to be discharged in this highly sensitive area” so that there is “a vacuum where there should be effective and collaborative planning at an all-Wales level to ensure that the needs of this vulnerable group of women are identified, planned and met” (paragraphs 6 and 7 of his skeleton argument).

[113]However, I disagree. The position is quite clear. The section 3(1) duty is imposed on the Welsh Ministers. The Welsh Ministers have chosen to discharge that statutory duty by establishing LHBs and making each responsible for healthcare functions, including (expressly) the section 3(1) duty “in relation to its area” (section 12(1)), each LHB being responsible for the persons usually resident in that area (regulation 2(2) of the 2009 LHB Regulations). The Welsh Ministers have, however, decided that some identified tertiary and other specialised functions should be dealt with, not on such a basis, but on a national basis through the WHSS Committee. They have directed that, in respect of those functions, the section 3(1) duty is to be exercised by the Committee. The Welsh Ministers merely retain certain monitoring and intervention functions, which, in appropriate circumstances, might be invoked if the responsible delegate does not properly perform the delegated duty.

[114]Therefore, whatever complexities this scheme may have, in my view the allocation of responsibility for performing the section 3(1) duty is unambiguously clear. Point 4: “Throughout Wales”

[115]Section 3(1) requires the Welsh Ministers to provide certain services “throughout Wales”. Mr Wise focused upon this last phrase, submitting that it required the Welsh Ministers (and thus any authority to which they delegated their section 3(1) obligation) to take a “pan-Wales” approach. Thus, he contended, each LHB and the WHSS Committee had an obligation in respect of the whole of Wales – and hence an obligation (e.g.) to collate and consider information relevant to that decision-making process from across the whole of Wales.

[116]I am afraid I consider this bold submission to be without any force: it seeks to give the words “throughout Wales” a magic which, in this context, they clearly do not possess.

[117]As I have described (see paragraphs 19-21 above), the 2006 Act envisages health functions being delegated by the Welsh Ministers to LHBs established on a geographical basis (section 11(3)), each to exercise functions “in relation to its area” (section 12(1)). The Welsh Ministers have determined to discharge the duty imposed upon them by section 3(1) by delegating it to LHBs established on that basis, but giving directions with regard to identified tertiary and other specialised functions which they consider should be discharged on an all-Wales basis through the WHSS Committee. An LHB’s statutory functions are therefore restricted to its own area although, in addition to the functions which it must exercise through the WHSS Committee, it may of course exercise its functions (e.g.) jointly with another LHB or even entirely through such another board. Ms Jordan gives examples of such arrangements in paragraph 16 of her statement of 12 November 2015: community child and adolescent mental health services for the UHB and Cardiff and the Vale University Health Board are commissioned through Cwm Taf University Health Board, and certain outpatient and day care provision for South Powys Teaching Health Board are also provided by Cwm Taf using that board’s facilities. Such arrangements are allowed, and indeed expressly envisaged by section 13 of the 2006 Act (see paragraph 22 above); but they are still the exercise of an LHB’s functions by the LHB for its own area, even if done through another board.

[118]Each LHB is therefore responsible for, and only responsible for, the health functions delegated to it for its own area and for the persons usually resident in that area. “Throughout Wales” means neither more nor less than for the whole of Wales – and nowhere else. The Welsh Ministers have ensured that its section 3(1) duty to provide services “throughout Wales” is performed by delegating it to the seven LHBs which, between them cover the whole of Wales. An LHB does not have any responsibility for health services outside its area.

[119]Nor is there a statutory duty upon each to collaborate with the other LHBs to assess the need for services on a pan-Wales basis, as Mr Wise submitted in the alternative As they are entitled to do under the 2006 Act, the Welsh Ministers have determined that most health functions can and should be performed by reference to geographical areas of Wales (and the people who live in those areas), but some should be performed on a national, pan-Wales basis through the WHSS Committee. Whilst of course collaboration between LHBs is in practice not only desirable, but essential – if only because not all LHBs will have all necessary facilities for them to perform their section 3(1) duty without looking to place patients in facilities in other LHB areas – there is no statutory obligation for them to do so.

The Absent Claims

[120]Finally, before turning my attention directly to the extant grounds of claim, it would be helpful to note potential challenges that are not (or not now) being made in this claim. i) There is no challenge to the delegation of the section 3(1) duty by the Welsh Ministers to the LHBs and the WHSS Committee, by the mechanism I have described. ii) The Claimant expressly disavows any intention in this claim to challenge the rationality of the decision as to what is “reasonably required within Wales” for the type of secure provision she may in the future need (see, for example, her paragraph 62 of her Grounds of Claim, and paragraph 32 of the Addendum to her Grounds; but that concession was also firmly and clearly repeated by Mr Wise during the course of the hearing). iii) There is no challenge to the scheme adopted by the Welsh Government for prioritising expenditure on NHS services, described in paragraphs 59-63 above. In effect, as I have described, both the LHBs and the WHSS Committee are required to consider information relative to various clinical areas (derived from below), and produce priorities (including a plan for delivering those priorities) on a rolling annual basis, that is ultimately the subject of approval by the Welsh Ministers and subject to report to the National Assembly. Those who are ultimately responsible for the plans, including the prioritisation, are thus ultimately democratically accountable – of course, rightly, because the identification of such priorities, and how and upon what limited public money should be spent, is quintessentially a matter of policy. Whilst no doubt this scheme is not the only scheme that the Welsh Government could have adopted for prioritising such expenditure – and the scheme it has adopted may or may not be the “best” scheme – such a scheme is only challengeable on Wednesbury grounds, and then subject to the wide discretion granted to authorities in such matters. No such challenge is made in this claim; nor, on the evidence, could it be. iv) There is no challenge before me with regard to the Claimant’s past placement at the Dene. The “reasonable requirements” of a particular patient can only be assessed individually and at a point in time. That assessment has to be made by a clinician, and is amenable to challenge on conventional, Wednesbury grounds. It was that assessment which was, in effect, at issue in the Claimant’s first judicial review, in which she challenged her placement in the Dene. That challenge ended with the refusal of permission by Andrews J (see paragraph 85 above). v) Nor is there a challenge to(a) the Claimant’s current package of care, or

(b) the CPT which sets out the arrangements for care of the Claimant in the event that her behaviour becomes challenging. As I have indicated, the concern of the Claimant and her family underlying this claim is that, if the Claimant’s behaviour deteriorates, “there is no concrete plan for [her] admission to an in-patient facility at a time of crisis” (paragraph 11 of Mr Wise’s skeleton). The Claimant’s mother wishes to have some comfort that, if that eventuality happens, the Claimant will be placed in Wales and near to home: and concern that no facility in Wales has confirmed that it will accommodate the Claimant in such an event (paragraph 5 of the Addendum to the Claimant’s Grounds). However, although that is an understandable personal or parental concern, (a) the evidence is that a considerable amount of planning has occurred as to what will happen if the Claimant’s behaviour deteriorates (see paragraphs 87-93 above); and (ii) in any event, it does not begin to found a claim in public law. As I have indicated, whether a future placement is lawful can only be assessed in light of all the circumstances as the time it is made. There can be no current obligation upon the LHB or WHSS Committee as to the Claimant’s future needs: even if it is legitimate to look at the section 3(1) duty in terms of an individual’s requirements (rather than as a strategic or planning duty), the question of whether a step in the Claimant’s future care amounts to a breach is academic unless and until a decision as to that care is taken. The Claimant is right not to base any claim on her future arrangements. vi) There is no claim by the Claimant that she is entitled to any particular level or type of provision as a result of the section 3(1) duty: Mr Wise expressly denies the intention to make such a claim (paragraph 4 of his skeleton argument). vii) None of the Welsh Government’s policies is challenged: and, in his oral submissions, Mr Wise confirmed that it is not part of the Claimant’s case that the Government has a policy (or should have a policy) that all patients in Wales must have their needs met in Wales, irrespective of cost. Such an assertion would be counter to the power under section 6 of the 2006 Act enabling the section 3(1) function to be performed, in respect of patients from Wales, outside Wales. viii) Nor is it the Claimant’s case that, in determining reasonable requirement and necessary provision under section 3(1), the relevant authority must have all information before it. That would be contrary to the principle that it is for the relevant decision-making authority to decide the information it needs to make a properly informed decision. ix) Nor is it the Claimant’s case that the Welsh Minister’s breached section 3(1) by not implementing all the conclusions and recommendations of all the reports to which Mr Wise referred; or in not proceeding with adopted policies with sufficient speed.

[121]Mr Wise expressly confirmed that none of those formed a part of the Claimant’s case

The Grounds of Claim: Discussion and Conclusion

[122]So – what is left? The Claimant contends that the Defendants breached the duty set out in section 3(1) of the 2006 in five discrete, but associated ways, set out above (paragraph 94). The extant grounds are narrow. I will deal with each in turn. Having prepared the way, I can deal with each quite shortly.

Ground 1: Collation of Data

[123]Mr Wise submits that the UHB has failed to collate the data required to enable it to discharge the duty imposed by section 3(1), and delegated to it by the Welsh Ministers, to make appropriate decisions in relation to the provision “throughout Wales” of low secure hospital accommodation services for women with ASD and LD. He repeats the submission as against the WHSS Committee in respect of medium secure services.

[124]In the face of the information publicly available and disclosed in this claim (see paragraphs 72-79 above), this is on its face a bold submission. It is clear that the two authorities have an abundance of data available to them for planning purposes. There is no evidence that they have not taken it into account: it is no evidence that the Claimant (and others) may disagree with the conclusion the authorities have reached with regard to priorities, especially the Committee in respect of providing further residential facilities for women with ASD and LD who require medium secure. The weight to be given to the requirements, actual and potential, of such patients is, of course, for the authorities themselves.

[125]The ground, however, has been reformulated by the Claimant in paragraph 31(a) of the Addendum to her Grounds and Mr Wise’s skeleton argument, to restrict the claim to one that the alleges that the UHB and/or the WHSS Committee have acted unlawfully because they have made section 3(1) decisions absent four particular pieces of information. i) It is said that the UHB does not hold data on the level of need for low secure provision for women with ASD and LD “throughout Wales”, i.e. including the LHB areas other than its own. That is true. However, for the reasons I have given, an LHB does not have any responsibility for services, including any responsibility for low secure services, outside its area; and there is therefore no obligation for it to obtain information about such services for which it has no decision-making function. ii) It is said that the WHSS Committee does not know the number of women with ASD and LD in medium secure NHS Wales provision. However, that assertion is simply wrong. The Committee collects this data via monthly activity information from each of the two NHS medium secure units in Wales and monthly from the NHSW QAIT (see paragraph 77 above). iii) It is said that the LHBs and WHSS Committee do not have information about the cost of NHS Wales medium secure provision. However, again this is wrong. Ms Jordan explains that provision of such facilities outside Wales is ordinarily through the NHS Wales Commissioning Framework, which has a set fee per week or month. So far as NHS Wales medium secure provision is concerned, she says that this is funded by the WHSS Committee on the basis of a block contract and “NHS Wales bodies are of course aware of the costs of the commissioned beds within NHS Wales” (paragraph 12 of her statement dated 12 November 2015). Ms Jordan gives the block contract values for the two facilities: approximately £13m for the Caswell Clinic, and £4.6m for Ty Llewelyn (ibid). iv) Finally, although not in the Addendum to the Grounds, Mr Wise submitted that the LHBS and the WHSS Committee did not know the number of placements women placed in NHS facilities in England. However, such placements are only ordinarily made through the NHS Wales Commissioning Framework; and details of these are kept on the CCAPS database. If, exceptionally, a placement is made outside the Framework, that would not be kept on CCAPS; but information would be kept by the placing LHB (see paragraph 9 of Ms Jordan’s statement of 18 September 2015) (and, no doubt, by the WHSS Committee who would fund such a placement).

[126]For those reasons, there is no force in the now thin argument that the Defendants lacked the required data upon which to make appropriately informed section 3(1) planning decisions. Ground 1 fails.

Grounds 2 and 4: Failure to take a Decision

[127]Grounds 2 and 4 can conveniently be taken together. Mr Wise submitted that the UHB has failed to take any decision as to the reasonable requirements for low secure services of women with ASD or LD in its own area. Indeed, the Claimant asserts that: “There is no suggestion that the [UHB] asked or answered either of [the two section 3(1) questions identified in Forge Care Homes]” (paragraph 31(b) of the Addendum to her Grounds). He similarly submitted that the WHSS Committee has failed to take any decision as to the reasonable requirements for medium secure services of women with ASD or LD in Wales.

[128]This ground is based upon the proposition that section 3(1) requires the relevant authority – whether the UHB or the WHSS Committee – to make a formal, discrete decision about the reasonable requirements of a single cohort of individual, defined by the Claimant, namely women with ASD and LD with a potential need for secure hospital accommodation. For the reasons I have given (see paragraphs 107 and following), that proposition is unsound: and, consequently, neither of these grounds can be made good.

Ground 3: Failure of the UHB to take a Coordinated Approach

[129]Mr Wise submitted that the UHB has failed to take a co-ordinated approach with the other Welsh LHBs to the delegated section 3(1) duty in relation to low secure provision for women with ASD and LD.

[130]Again, I consider this claim has no force. For the reasons I have given (paragraphs 115-119 above), an LHB does not have any statutory duty to collaborate or coordinate with other LHBs. Its only statutory obligation to do so is the result of a direction from the Welsh Ministers that certain identified tertiary and specialised services are coordinated on a national level, through the WHSS Committee. Medium secure provision is such a service: it is so coordinated: and no complaint is, or could be, made about that. Low secure provision is not such a service. It has not been identified by the Welsh Ministers as a service that should have mandatory coordination, but rather it is service that should be managed at an LHB-area level, subject to such voluntary coordination between boards as they consider appropriate.

[131]This ground too therefore fails.

Ground 5: Failure by the Welsh Ministers to Intervene

[132]Mr Wise submitted that the Welsh Ministers breached section 3(1) in one respect, namely they failed to take steps to remedy the failings of the LHBs (including the UHB) and the WHSS Committee identified in Grounds 1-4.

[133]In his response, Mr Gordon submitted that the Welsh Ministers had ample evidence upon which to conclude – as they have – that none of the criteria for intervention, set out in section 26 of the 2006 Act, is met. In particular, having duly approved the relevant IMTPs and monitored the performance of the LHBs and the WHSS Committee, they consider there is ample evidence that the authorities are adequately performing their statutory duties and are acting in accordance with the Welsh Government’s strategic policy objectives in this field. They see no possible basis for exercise of their default powers, or any other intervention by them in the face of the delegation of the section 3(1) powers by them to the LHBs, particularly as such default or fall back powers are to be used only as an administrative device of last resort with the object of ensuring the continuation of the executive and administrative machinery in the face of some breakdown of some public service (see paragraph 36 of the NHS Wales Escalation and Intervention Arrangements quoted at paragraph 35 above; and, e.g., Wade & Forsyth, at page 631). These submissions, found at paragraphs 70-84 of Mr Gordon’s skeleton argument, are not only compelling, they are overwhelming.

[134]However, the simple answer to this claim is that it is parasitic upon Grounds 1-4: if, as I have found, the LHBs and WHSS Committee are not in breach of section 3(1), the Welsh Ministers cannot be in breach for failing to take steps to prevent breaches on their part.

[135]Thus, this ground falls with Grounds 1-4.

The ECHR and UNCRD

[136]Mr Wise relied upon

article 8 of the ECHR

, read with article 19 of the UNCRD.

[137]

Article 8 of the ECHR

provides that everyone has the right to respect for his private and family life, subject to the proviso in article 8(2) that the State may interfere with the exercise of that right in accordance with the law and so far as is necessary in a democratic society in the interests of (inter alia) public safety or the protection of health or morals, or for the protection of the rights. Article 19 of the UNCRD provides that disabled people have an equal right to live in and take part in the community; and Governments should do everything they can to ensure disabled people enjoy these rights.

[138]The precise thrust of Mr Wise’s submission in relation to these normative rights was not entirely clear: he submitted that article 19 “should inform the court’s assessment of lawfulness” of the Defendant authorities. However: i) Neither article 8 nor article 19 gives a patient a right to demand any particular type or location of treatment. In particular, it does not give such a right regardless of the needs of the rest of the health service, and regardless of the rights and interests of others, including other patients and healthcare workers. ii) In this case, a clinical decision was taken to transfer the Claimant to the Dene. That decision was lawful, and the submission that it breached article 8 was found by this court to be unarguable. There is no claim that her current treatment breached either of these provisions, or is otherwise unlawful. The UHB has carried out an assessment with regard to both current care and treatment, and the plan is a crisis were to occur in the future. If and when any future actions are taken, any alleged interference with these rights would have to be examined against the circumstances at that time. There is no current, even arguable, breach of article 8. iii) The UNCRD has not been adopted into the laws of Wales, and does not appear to be engaged on the facts of this case. Certainly, in my view, there is no current arguable breach of article 19, either. iv) Whilst the Claimant may have a right to have a properly informed decision under section 3(1), I have found that that right has not been breached. Reference to article 8 and/or article 19 does not add anything to the submissions already made on those grounds.

[139]In my view, these provisions do not assist the Claimant at all, in respect of any of her grounds.

Conclusion

[140]I have read all of the papers in this claim with particular care. From them it is clear that, as a result of her complex and relatively unusual medical condition, the Claimant sometimes presents with aggressive and challenging behaviour with which, despite their considerable best efforts and the intensive support they receive, her family is unable to cope at home. She has been compulsorily detained on four occasions. On three of those occasions, she has been detained in Wales or Bristol, and she and her family make no complaint about that provision. On the fourth occasion, after nearly a year at Llwyneryr Hospital (about which, again, no complaint is made), her behaviour deteriorated to such an extent that a clinical decision was taken that she should be detained in a medium secure facility, with a view to stabilising her behaviour and assessing it so that she could be discharged to home as soon as possible. It is unfortunate that she could not be accommodated in Wales, nor anywhere nearer her home than Brighton. I understand the distress that that caused her, and her family. However, the placement, albeit far from ideal, was lawful; and it appears to have met with some clinical success – within weeks, she was discharged to home where she has remained since.

[141]The Claimant and her mother wish to have some comfort that a placement far away from home will not happen again. Plans have been made that, hopefully, reduce the possibilities of such a placement; but, I accept, depending upon her presentation and the facilities that might be available at the time, it is possible that she might be placed in a hospital a long way from her home again.

[142]However, this court can intervene only if a decision-making authority has acted unlawfully. For the reasons I have given, none of the Defendants has done so in this case. Indeed, although Mr Wise has made comprehensive submissions, with his usual force, he has fallen far short of persuading me that the UHB, the WHSS Committee or the Welsh Ministers acted in any way unlawfully.

[143]Consequently, this claim fails.

Cited in 1 later judgment

SB, R (on the application of) v NHS England 2017