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10 JAN 2013

R (on the application of L) v West London Mental Health NHS Trust and Others [2012] EWHC 3200 (Admin); (2012) PLLR 149

Healthcare - Security - Transfer - Policy - Fairness s

The Defendant had not complied with procedural requirements of fairness in the decision making process that led to the Claimant being transferred from a medium security hospital to a high security hospital.

13 November 2012

Administrative Court

Stadlen J

(1)        The Claimant challenged the Defendant's decision to admit him to Broadmoor high security hospital. He had been detained at Stockton Hall, a medium security hospital, pursuant to a hospital order made by Chichester Crown Court.

(2)        The decision was challenged on the basis that it was unlawful because it failed to follow a procedure that complied with common law procedural fairness and/or Article 6 ECHR.

(3)        The Claimant did not wish to be transferred to high secure conditions and felt he did not meet the admission criteria. It was submitted that lesser measures could have been implemented to reduce the risk posed by the Claimant to others, and the failure to take such steps and to instead admit him to Broadmoor was a breach of the Defendant's Article 8 ECHR obligations.

(4)        The Claimant's Article 8 rights were also said to be breached by moving him away from his current home, relationships with staff and patients and his long-term partner who was also a prisoner.

(5)        In terms of procedural fairness, it was alleged that the restrictive regime implemented at Broadmoor would affect the likelihood of his release and impacted upon his civil rights, thereby breaching Article 6.

(6)        It was further alleged that the Claimant should have been given the right to comment on the evidence, make representations and correct factual or legal inaccuracies. It was submitted that the Claimant should have had:

(a)        full disclosure of the decision, reasons and supporting evidence;

(b)        an oral hearing;

(c)        legal representation; and

(d)        a right of appeal.

(7)        The Claimant's amended grounds ceased to challenge the decision on the basis of Article 8 ECHR, as it was accepted that the issue was, by the hearing stage, academic. Article 6 issues regarding procedural fairness were however maintained.

(8)        HELD: The decision to admit the Claimant to Broadmoor appeared to the Court to be more concerned with the logistics of the transfer, rather than the appropriateness of admitting him. The Court was the concerned that the decision making panel, upon hearing all of the facts, would not necessarily have reached the same conclusion regarding the risk posed by the Claimant.

(9)        It was accepted that whilst the claim pursued by the Claimant was primarily academic, there were ‘arguable grounds concerning the legal fairness of the procedures for transfer that [were] of general importance', and they thus merited review.

(10)     The Court held that a decision to transfer a patient from a medium security hospital to a high security hospital would have the potential to impact upon the time that would pass before the patient was ultimately discharged.

(11)     In terms of the restrictive nature of detention conditions, it was held to be inevitable that transfer to a high security hospital would increase the restrictions to which a patient was subjected. Such restrictions were said to be necessary and were required to safely manage the risks posed by the Claimant. 

(12)     The Court relied upon the judgment of HHJ Pelling QC in R v SSHD ex parte Perries (1997) Unreported 25 July, in which it was held that a decision regarding the risk posed by a prisoner still attracted the common law duty to act fairly.  This Court held that the duty to act fairly was not limited only to cases determining the Claimant's common law, statutory or ECHR rights.

(13)     The Court considered that the importance of the issue of the duty of fairness required the Court to look at the substance rather than form of the decision. The Court held that neither the need for an urgent decision to be made, nor an assessment of risk of the patient was a reason to deny a patient the opportunity to challenge a decision. The Court suggested the establishment of a procedure, such as that which exists in Scotland, where notice is given to a patient that they will be transferred, and they have 12 weeks to appeal this to a tribunal.

(14)     The Court stated that a patient who did not agree with a decision to transfer them should be given the opportunity to challenge that decision, particularly in cases where there was ‘no conflict between the demands of ensuring safety and enabling a patient to make representations' before a decision was made or implemented.

(15)     Sufficiently detailed reasons ought to be provided for the patient to understand why the decision was made and if a challenge could be brought against it. It was however also recognised that the precise nature of the detail needed would vary from case to case.

(16)     There were held to be no compelling public policy considerations that would justify not giving a patient the right to challenge a decision to transfer him or her from medium to high security.

(17)     A blanket ban on patients or their representatives attending an oral hearing for the purpose of making representations was held not to comply with the common law duty of fairness. The Court emphasised that there would not necessarily be an increase in oral hearings, as not all cases would involve material factual disputes. Indeed, the Court recognised that matters could be dealt with on paper if there was no dispute with the patient.

(18)     The Court concluded that fairness demanded that:

(a)        the patient and their advisers be informed of the intention to transfer the patient to a high security hospital;

(b)        the patient or his advisers be given the gist of the reasons for the referral and any reports to be relied upon in making the decision;

(c)        If requested, consideration of whether additional information was required in relation to the particular case;

(d)        It must be considered whether the decision, at any time in the decision making process, would be contrary to the need to protect persons from the risk of harm;

(e)        The reasons for the decision to transfer ought to be given to the patient or their advisers;

(f)        The patient and his representatives, unless it would contravene the need to protect persons from harm, ought to be given the opportunity to make written representatives before the decision. If it would contravene the need to protect persons from harm, the patient and his representatives should be given the opportunity to make written representations immediately after the transfer;

(g)        The patient and his representatives must be told that an oral hearing is possible, although not automatic.

(19)     Applying such requirements to this case, the Court determined that these requirements had not been complied with. The Court thus concluded that there had been breaches of the procedural requirements of the duty of fairness. The Claimant was therefore found to be entitled to a declaration that the decision making process leading to his transfer failed to comply with the common law duty of fairness.

(20)     The Court determined that there was no dispute as to the Claimant's civil rights when the decision to transfer him was made. As such, it was held that Article 6 ECHR was not engaged. The Defendant was right to accept that the possibility of an application to a First Tier Tribunal cannot alone satisfy the procedural requirements of Article 6, because it is limited to giving recommendations rather than binding decisions.

Claim succeeded

Key paragraphs

[130] - More concerned logistics.

[188] - Claimant's claims.

[215] - Likely reach same conclusion.

[226] - Not necessarily reach the same conclusion.

[236] - General importance.

[265] - Impact on discharge.

[291] - Restrictions.

[366] - Duty act fairly.

[437] - Duty to act fairly applied.

[466] - Look at substance.

[503] - Urgency not justify deny opportunity to challenge.

[507] - Opportunity to challenge.

[518] - No conflict between safety and making representations.

[520] - Details reasons.

[525] - Case by case.

[529] - Right to challenge transfer decision.

[539] - Right attend oral hearing.

[545] - [546] - No increase oral hearings.

[558] - Fairness conclusion. 

[559] - Requirements not met in this case.

[564] - Breached duty of fairness.

[581] - Declaration.

[728] - Article 6.

[783] - Burden on Defendant.

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