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||Neutral Citation Number:  EWHC 2857 (Admin)
||Case No: CO/4045/2003
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||15th December 2004
B e f o r e :
MR JUSTICE STANLEY BURNTON
|| The Queen on the application of D
||- and -
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|| First Defendant
||THE NATIONAL ASSEMBLY FOR WALES
Eleanor Grey and Judith Ayling (instructed by J Keith Park) for the Claimant
Parishil Patel (instructed by the Treasury Solicitor) for the First Defendant
Rhodri Williams (instructed by the Office of the Counsel General) for the Second Defendant
Hearing dates: 17 & 18 June 2004
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Stanley Burnton:
- The Claimant was born on 24 October 1985 in Wales, where he resided at the times material to these proceedings. On 19 January 2003, when he was aged 17, he was arrested and charged with taking a motor vehicle without consent (he had driven a stolen vehicle over a police officer), assault occasioning actual bodily harm, obstructing a police officer, and criminal damage. On 21 January 2003, he was remanded in custody to YOI Stoke Heath. While in custody there, he inflicted harm on himself, and exhibited symptoms that were indicative of mental disorder. Over the period from January until August 2003 his case was considered by a number of psychiatrists, and there was considerable discussion of his condition and of his care, and of his possible transfer to an appropriate hospital where he could be treated. However, nothing was achieved before these proceedings were commenced on 19 August 2003.
- On 1 October 2003, St Andrew's Hospital offered a place to the Claimant. It had no free place at the time, and initially the offer was for a place from 12 November 2003. The Hospital subsequently brought that date forward to 24 October 2003. The Claimant was due to be released from custody on 14 October 2003. On 3 October 2003, on his application for interim relief, a consent order was made by Silber J. In it the Home Secretary “in the form of the prison service” undertook to use his best endeavours to obtain two medical recommendations in support of the Claimant's transfer to a hospital under section 47 of the Mental Health Act 1983 (“the MHA”) on an interim basis until his intended transfer to St Andrew's hospital in November 2003; and “in the form of the Mental Health Unit of the Home Office” the Home Secretary undertook to act expeditiously upon receipt of those medical recommendations to direct the transfer of the claimant to a hospital under section 47 until his intended transfer to St Andrew's Hospital. The order contained other provisions which it is unnecessary to refer to.
- Following the making of that order, the Home Secretary stated that, notwithstanding his best endeavours, it was not possible to find an interim place for the Claimant in a hospital until the place at St Andrew's became available. With the Claimant's release from custody imminent, the matter came before Davis J on 13 October 2003. Wrexham Local Health Board was then a defendant to the proceedings. It undertook to use its best endeavours to provide the Home Secretary that day with two medical recommendations in support of the Claimant's transfer to a hospital under section 47. On the basis of that undertaking, Davis J. ordered the Home Secretary, on receipt of those medical recommendations, to direct the Claimant's transfer to a hospital under section 47 before his release from Stoke Heath Young Offenders Institution on 14 October 2003.
- Doubtless as result of the pressure created by this order, St Andrew's managed to offer an immediate place, and the Claimant was transferred there on 14 October and detained under the MHA under the classification stated in the section 47 reports of “mental impairment”. At St Andrew's, the Claimant has ceased self-harm and has engaged with a two-year treatment programme. It is not in dispute that his transfer to St. Andrew's and his treatment there have been beneficial.
- At the times relevant to these proceedings, the Second Defendant was responsible for commissioning specialised child and adolescent mental health services in relation to Wales.
- The Claimant's claim relates to the period of his detention at Stoke Heath between 21 January and 14 October 2003. He seeks:
(a) declarations that the Defendants delayed in securing his transfer to an appropriate hospital and thereby infringed his rights under Article 8 of the European Convention on Human Rights. The claim against the First Defendant was for a declaration that he had unlawfully failed to seek medical recommendations for the transfer of the Claimant to a hospital and failed to make the necessary direction under section 47 of the MHA; the claim against the First and the Second Defendant was that they had unlawfully delayed the making of referrals to hospital for the Claimant.
(b) damages for breach of his Convention rights.
- The substantive hearing of the claim took place on 17 and 18 June 2004. The evidence that had to be considered was voluminous, and the time required to address it was compounded by the lack of a chronological bundle of documents. In addition, legal issues of some complexity fall for consideration and decision. It was inevitable that the hearing could not be concluded during the time available: the parties' estimates were, I have to say, highly over-optimistic. Unfortunately, counsel were not available to continue the hearing before the end of that term, or indeed at any appropriate time. In consequence, with the agreement of the parties, I gave directions for further written submissions and the production of a chronological bundle of documents in order to enable judgment to be given without a further hearing.
- Pursuant to the order made at the conclusion of the hearing, I received, albeit after extensive delay, the parties' further written submissions and a chronological bundle of contemporaneous documents. These submissions are of high quality, and are clearly the product of considerable work on the part of Counsel. The Claimant's submissions ran to 45 pages, in addition to a comprehensive chronology of 16 pages and a schedule of incidents of self-harm. Doubtless it was because of the extensive work required that there was delay in producing the submissions. The parties' final submissions have been of considerable assistance to me in the preparation of this judgment.
The facts in summary
- The Defendants do not take issue with the summary of the facts in the Claimant's final written submissions or the chronology of events or the schedule of incidents of self-harm. The chronology is an appendix to this judgment.
- The Claimant had previously been detained at YOI Stoke Heath in 2002. While detained there he was found to manifest very significant and highly disturbing self harm, to the extent that he was detained in a body belt and handcuffed to a prison officer. Even then he had attempted to injure himself by biting his exposed tendons. He also evidenced serious suicidal intent. An emergency meeting was held on 29 November 2002, attended by no less than 13 persons involved with his care. Stoke Heath had been trying for some time to find a secure hospital to which he could be transferred, but there was also a medical opinion that admission to a hospital would worsen his condition. It was appreciated that his release into the community involved risk to the Claimant and that he might endanger others.
- On 2 December 2002, the Claimant was transferred from the YOI to a medium secure hospital, Ty Llewellyn, without its agreement, pursuant to a direction of the Secretary of State under section 47 of the MHA. While cared for in hospital he ceased to self-harm. Dr Chesterman, the Claimant's responsible medical officer (“RMO”) at the hospital decided to discharge him on 16 December 2002. He considered that the Claimant was not suffering from any form of mental illness. He fulfilled the criteria for Unsocialised Conduct Disorder and exhibited characteristics of Psychopathic Disorder, but would not respond to treatment, so that the treatability criterion for detention would not be fulfilled. All that was stated in the hospital's discharge summary in relation to after-care was:
“Given that he remains subject to a DTO, primary responsibility for his care remains with… the Youth Offending Team in conjunction with the local social services.”
Dr Chesterman stated that if the Claimant re-offended consideration could be given to obtaining an opinion from a specialised adolescent service.
- In a letter dated 16 January 2003 to the Governor's secretary at Stoke Heath, Dr Chesterman said this:
“When Mr Davies was first referred to the service I made it clear that we are an adult service and that given his age he needed to be referred to a service that specialised in adolescent forensic psychiatry and I understand that two such specialists saw him. Although he was transferred to this unit this was despite the express opinion of Dr Daly the lead specialist in adolescent forensic psychiatry and myself. Given the inappropriateness of his admission he was discharged as soon as it was possible to arrange a meeting with the relevant services.”
- As stated above, on 19 January 2003 the Claimant was again arrested, and on 21 January 2003 he was remanded back to Stoke Heath. On 15 April, he was convicted, and sentenced to a Detention and Training Order of 12 months. Release was scheduled for 14 October 2003.
- Having been remanded in custody, the Claimant continued to self-harm and continued to do so throughout his detention. He opened old wounds, inserted foreign bodies such as glass, pens and paperclips, and was frequently admitted to hospital for treatment, including surgery, as a result. His wounds became infected: at one point, his arm was at risk. He often threatened and also attempted suicide.
- Despite these obvious and worrying symptoms of mental disorder, the Claimant was detained in a YOI, almost entirely at Stoke Heath, until the Court ordered his transfer to hospital on 14 October 2003.
- I do not propose to summarise further events during his detention: they are fully set out in the Chronology.
- In order to understand the reasons for the delay in securing a hospital place for the Claimant, and the case for both Defendants, it is necessary to understand the legislative framework within which they acted.
The legislative framework: the Home Secretary
- The Secretary of State's only power to transfer a prisoner, such as the Claimant, from prison or a Young Offenders Institution to a hospital is conferred by section 47 of the Mental Health Act 1983:
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied by reports from at least two registered medical practitioners –
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that the person be removed to and detained in such hospital … as may be specified in the direction; and a direction under this section shall be known as “a transfer direction”.
(2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction.
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.
(4) A transfer direction shall specify the form or forms of mental disorder referred to in paragraph (1) of subsection (1) above from which, upon the reports taken into account under that subsection, the patient is found by the Secretary of State to be suffering; and no such direction shall be given unless the patient is described in each of those reports as suffering from the same form of disorder, whether or not he is also described in either of them as suffering from another form.
- It follows from the provisions of section 47 that in order for the Home Secretary to make a transfer direction, the following are required:
(a) agreement on the part of two registered medical practitioners, expressed in their reports to the Home Secretary:
(i) as to the form of mental disorder (or at least one of the forms of mental disorder) from which the patient is suffering;
(ii) that the requirements for detention and of treatability in subsection (1)(b) are satisfied.
(b) a hospital in which the patient may be appropriately treated.
(c) a place at that hospital that is available within 14 days.
- In a case such as the present, it is tempting to interpret the requirements of section 47 so as to minimise the obstacles to the making of a transfer direction. In my judgment, that is a temptation to be resisted. The effect of a transfer direction is to alter the basis of the prisoner's detention. He ceases to be detained in a prison or other penal establishment, usually (i.e., unless he is subject to a sentence of life imprisonment) for a defined and limited maximum period, and becomes detainable for an unlimited period under the provisions of the MHA and compulsorily treatable only (at least initially) for the disorder specified in the section 47 reports. I do not suggest that section 47 should be construed with particular strictness. But it should be interpreted and applied with an appreciation both of the benefits of an appropriate transfer and of the consequences of a transfer for the liberty of the person concerned.
- In practice, the Home Secretary will normally want at least one of the two doctors to be practising at the hospital named in the proposed transfer direction, so as to ensure that there is agreement as to the hospital's reception of the patient and as to his diagnosis, treatability and detention. If the receiving hospital's diagnosis differs from that in the direction, it will be unable to treat the patient for the form of disorder that it considers he is suffering from, unless he consents to that treatment: see R (B) v Ashworth Hospital Authority  EWCA Civ 547,  1 WLR 1886. Indeed, in the present case, the diagnosis of Dr Mutale, the consultant psychiatrist at St Andrew's, differed from the diagnosis of mental impairment in the section 47 reports on the basis of which he was transferred there. His opinion was that the Claimant suffered from psychopathic personality disorder, for which he has been treated with his consent.
- The second medical report is usually from the prison medical officer or the visiting psychiatrist.
- In addition, the reports for the purposes of section 47 must be sufficiently up-to-date for the Home Secretary to be able reasonably to rely on them: see the extract from the judgment of Dyson J in R v Secretary of State for the Home Department, ex parte Gilkes, 21 January 1999, cited in Richard Jones' Mental Health Act Manual, 8th edition, at page 278.
- In her witness statement dated 23 September 2003, Pam Lutterloch, a civil servant in the Mental Health Unit of the Home Office, stated:
As a last resort the Home Secretary does have the power to require a hospital to accept a transferred patient, the power of “direction”. However, power is rarely used (approximately 6 times a year). MHU transfers about 650 prisoners a year … our aim is always to try and authorise the transfer of the prisoner to a unit that has already offered a suitable bed. The need for consent is envisaged by section 47 (2) of the Act which provides that the transfer direction ceases to have effect if the patient is not admitted to hospital within 14 days of its inception.
She pointed out that there are currently only 2 secure NHS psychiatric units for children and adolescents, with a total of 28 beds: the Gardner Unit in Manchester and the Roycroft Unit at Newcastle.
- In his witness statement dated 24 September 2003, Dr Neale, the visiting psychiatrist at Stoke Heath, said:
I am extremely reluctant to recommend that the Claimant be transferred to a secure psychiatric unit without a unit agreeing to take him.
I would have great anxiety if a unit were simply “directed” to take the Claimant. People with personality disorders have a hard enough time in psychiatric units when they want to be there and when a Consultant wants them admitted. If the Claimant were to be admitted to a unit against the wishes of the Consultant and the staff (and probably against his own wishes), the dynamics on the unit would be extremely hazardous. In my view, both the unit and the Claimant would be set up to fail. In my opinion, such a course of action would cause a deterioration of the Claimant's mental health and increase the chances of him committing suicide.
Much of that statement is borne out by the Claimant's experience at Ty Llewellyn.
- Similarly, Dr Van Velsen, a consultant psychiatrist instructed by the Claimant's solicitors, stated:
“With regard to directing Mr Davies's admission to another hospital, which has not volunteered to admit him, this is always difficult and complicated, as the start of such treatment can be negative for the person involved. It is much preferable for a unit to assess a patient and agree to take him. Even if the patient is to be directed in the end, as Mr Davies was, to St Andrew's, they had in principle already agreed to treat him. This meant that his treatment could start off on a positive foot.
Mr Davies comes from a family where he has felt disliked and hated at times and for this experience to be repeated in health institutions would not be helpful for him.”
- Section 47 confers on the Home Secretary a power. It does not expressly impose a duty. However, he now accepts that “in appropriate circumstances he is subject to a duty to take steps to facilitate a transfer under s. 47 of the Act”. This concession was, in my judgment, inevitable. The Home Secretary is under a duty of care in relation to all those in his custody. The requirements of that duty will vary with the needs and the state of health of a prisoner, and special considerations apply to those who are or may be suffering from a mental disorder. Only the Home Secretary has the power to transfer a prisoner in need of hospital treatment for his mental disorder to a hospital, and the power is accompanied by a duty to exercise it in appropriate circumstances in the interests of the prisoner and/or the public interest.
- With regard to the nature of his duty, the Home Secretary contends that it:
“(1) … can only arise where there are reasonable grounds to believe that the prisoner is in need of medical treatment which cannot be properly provided in prison and which is actually available to the prisoner. It is accepted that the prison service is in the best position to determine when the position is reached – although it is, and has to be, guided by medical experts. It owes the prisoner a duty of care to ensure that reasonable steps are taken to provide that person with proper medical care and treatment.
(2) There cannot be an absolute obligation to obtain medical reports to facilitate transfer. It must be a duty to take all reasonable steps. The SSHD has no clinical expertise – he has to rely upon the advice of appropriate medical professional. Unless advice can be said to be negligent, it is likely to be reasonable for the SSHD to rely upon that advice (even where it does not result in transfer). Thus, the SSHD cannot be obliged to obtain further medical reports if those which are already obtained call in question a transfer or are reliant upon a particular unit or service being available. Further, the SSHD may be entitled to rely upon evidence which indicates that a report should not be obtained and/or a transfer should not be made unless there is a unit or service prepared to take the prisoner on transfer and/or unless particular treatment is available.”
- Miss Grey, for the Claimant, did not contend that the Home Secretary's duty is absolute. She pointed out that section 47 does not apply a test of necessity for a transfer, but one of appropriateness. She submitted, correctly, that the power must be exercised in accordance with the provisions of the Code of Practice issued under section 118 unless there is good reason to depart from it. The Code makes the following provisions in relation to the transfer of prisoners to hospital:
“3.20 The need for in-patient treatment for a prisoner should be identified and acted upon quickly and contact made immediately between the prison doctor and the hospital doctor. The Home Office Mental Health Unit should be informed as soon as the statutory requirements for transfer are in place so that consideration can be given to issuing a direction under the Home Secretary's powers …”
3.21 The transfer of a prisoner to hospital under the Act should take place as soon as possible after the need has been identified …”
- Miss Grey also submitted that there is no requirement in the Act for the agreement of the hospital to which the patient is to be transferred to be a pre-condition of a transfer direction. I agree. However, the practical considerations referred to above will, in my judgement, normally dictate that its agreement is necessary. It is noteworthy that paragraph 3.20 of the Code assumes that a hospital doctor will be a party to the transfer. I accept the evidence of Dr Neale cited above as to the importance of the agreement of the receiving hospital.
- Miss Grey also referred to a number of Home Office publications. A Home Office Circular, addressed to prisons, issued 9 May 1995 and entitled “Mentally Disordered Offenders: Interagency Working” provides that prison medical officers should sustain and develop arrangements for identifying and transferring to hospital prisoners needing psychiatric in-patient treatment, with special regard to remand prisoners. A booklet jointly produced by the Home Office and Department of Health entitled “Mentally Disordered Offenders: Interagency Working” provides that when a prison medical officer identifies a prisoner who requires treatment in hospital then a request should be made to the local hospital psychiatrist, regional forensic psychiatrist (i.e. of a medium secure unit) or special hospital (i.e. a maximum secure hospital such as Broadmoor) for an assessment with a view to making a hospital place available. The booklet states that “in any case of difficulty” C3 Division of the Home Office should be informed so that they may “assist in resolving problems which may arise”.
- For the purposes of this judgement, I do not think it necessary, in general, to distinguish between the various parts of the Home Office. The manner in which the Home Secretary organises his department cannot affect his legal liabilities.
- In my judgment, once the prison service have reasonable grounds to believe that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take reasonable steps to obtain appropriate medical advice, and if that advice confirms the need for transfer to a hospital, to take reasonable steps within a reasonable time to effect that transfer. In many cases, the medical advice as to the appropriateness of a transfer will serve as the reports required by section 47. The steps that are reasonable will depend on the circumstances, including the apparent risk to the health of the prisoner if no transfer is effected. Inappropriate retention of a prisoner in a prison or YOI may infringe his rights under Article 8. If the consequences for the prisoner are sufficiently severe, his inappropriate retention in a prison may go so far as to bring about a breach of Article 3, in which case the state is under an absolute duty to prevent or bring to an end his inhumane treatment.
- The preceding paragraph is, I believe, consistent with the above paragraphs of the Code of Practice.
- If the failure to make a transfer is due to a lack of a suitable hospital place, for which the Home Secretary may not be responsible, the question arises as to whether another public authority is liable for any infringement of the prisoner's Convention rights. Save in relation to the National Assembly for Wales, that is not a question that arises on the submissions in this case.
- If the failure to make a transfer or delay in making a transfer is due to the reasonably unavoidable difficulties of complying with legislative requirements, the Home Secretary will not be liable. The responsibility of the State under the European Convention on Human Rights is another matter: a breach of Convention rights cannot be justified in the European Court of Human Rights by difficulties created by domestic legislation.
The basis of the Home Secretary's liability
- The knowledge and actions and defaults of the Prison Service and the Mental Health Unit of the Home Office are to be attributed to the Home Secretary. The knowledge, actions and defaults of psychiatrists who are not employed by him are not.
- It follows that the knowledge of the staff at Stoke Heath concerning the Claimant acquired while he was detained there between June and December 2002 is relevant for the purpose of assessing the Home Secretary's actions in 2003.
The duty of the National Assembly for Wales (“the NAW”)
- Under Sections 2, 3 and 23 of the National Health Service Act 1977 (“NHS Act”) as amended, the Secretary of State (for the Department of Health) is responsible for providing health services, hospital and other facilities. Section 16D of the NHS Act allows the Secretary of State to discharge this duty by directing a Health Authority or Special Health Authority to exercise his functions, and in practice this power is relied upon. By the National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 these NHS Act functions were delegated to 5 local health authorities in Wales. By virtue of the Government of Wales Act 1998 and Article 2(a) of the National Assembly for Wales (Transfer of Functions) Order 1999, the NAW inherited with effect from 1 July 1999 nearly all statutory functions of the Secretary of State in relation to the National Health Service in Wales. By virtue of the Local Health Boards (Functions) (Wales) Regulations 2003 and the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition) (Wales) Order 2003, the National Assembly abolished the five health authorities and delegated most of the functions they had previously exercised to 22 Local Health Boards (LHBs). However, the NAW remained directly under a duty, pursuant to Section 3(1)(a) and (b) of the NHS Act and Regulation 3 of the Local Health Boards (Functions) (Wales) Regulations 2003 (“the Functions Regulations”), for (among other things) “commissioning” “specialised child and adolescent mental health services” for persons usually resident in Wales (Schedule 1 of LHB (Functions) (Wales) Regulations 2003).
- There was a significant dispute between the parties as to the duty of the NAW resulting from these tortuous provisions. The Claimant submitted that the NAW was under a duty to “to make reasonable provision of Child and Adolescent Mental Health Services … There are two aspects to its provision: (i) planning for adequate provision – ensuring that there will be units which can receive patients; and (ii) funding access at the point of need – through one-off arrangements if necessary”. The Amended Claim includes allegations that the NAW should have taken steps to obtain a suitable medical report for the court that sentenced the Claimant on 15 April 2003, and should in any event have obtained reports to enable his transfer to a suitable placement earlier than occurred. In his submissions in reply to those of the NAW, it was submitted that: “Once the NAW is aware that a child or adolescent may be in need of specialist mental health services then it has a broader duty to identify and assess the precise need for child or adolescent mental health services, and to take reasonable steps to locate and fund such services.”
- The Home Secretary similarly submitted that once the NAW had reasonable grounds to believe that a young prisoner was in need of mental health services, it had a duty to take all reasonable steps to ensure access to suitable service provision, including the making of referrals for assessment at possibly suitable placements and the obtaining of medical reports.
- The NAW submitted that its duty was limited to “the planning, purchase or monitoring of delivery” of “specialised child and adolescent mental health services”, and that the term “commissioning” is to be contrasted with “providing”. Mr Williams referred to the definition of “commissioning functions” in the Health, Social Care and Well-being Strategies (Wales) Regulations 2003 as “any functions … which relate to the planning, purchase or monitoring of delivery of … services”, and submitted that the word “commissioning” in the associated later Functions Regulations must have the same meaning. He contrasted this drafting with the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, which refer to “providing or securing the provision of” specialised services, and suggested that the difference in wording must have been intended to produce a difference in obligation. It follows that the NAW was not under a duty to identify a suitable unit for a patient. The NAW had funded the Claimant's treatment at St Andrew's, and was thus fulfilling its statutory duty.
- The Home Secretary served submissions in reply to those of the NAW. He submitted that there was no difference of consequence between the function of commissioning services and the function of securing the provision of services.
- One of the difficulties with Mr Williams' submission is that it does not reflect what the officials of the NAW saw to be their responsibilities at the time. By their words and actions they demonstrated an apparent acceptance of a duty to seek to secure an appropriate hospital place for the Claimant and to fund it. For example, in his letter dated 14 August 2003, Mr Shirreffs stated that “We are responsible for facilitating the appropriate action”. The chronology contains a number of instances of his going beyond merely acting (on behalf of the NAW) as paymaster. While the actions of a public authority are not relevant to the interpretation of statutory provisions concerning its activities, the fact that it sees its functions to go beyond those suggested by a narrow interpretation of those provisions may lead the court to ponder whether such an interpretation is correct. In my judgment, “functions … which relate to the planning, purchase or monitoring of delivery of … services” are not restricted to the purchase and monitoring of the delivery of such services; if they were, the words “related to” would be otiose. Furthermore, both the purchase and monitoring of services may relate not only to services in general, but also to services for the individual. I think that the NAW was under a duty to take all reasonable steps to obtain for the Claimant appropriate “Child and Adolescent Mental Health Services”. However, the NAW was not under a duty itself to provide such services. The word “commissioning” denotes the purchase of such services, not their provision.
Breach of duty
- I do not accept that Stoke Heath was entitled to await the sentencing of the Claimant before taking steps to secure his psychiatric assessment or his transfer to an appropriate hospital if that was shown to be necessary. Indeed, the sentence of the criminal court is dependent on the information provided by, among others, the Prison Service. If there is good reason to believe that a psychiatric assessment is appropriate, it needs to be obtained before sentence, not after what is liable to be (on what on this hypothesis is the incomplete information available to the sentencing judge) an inappropriate sentence. If, before sentence, it becomes clear that detention in a hospital under the Mental Health Act 1983 is appropriate, although transfer under section 47 is not available, I do not see why arrangements cannot be made for a prisoner to be detained under that Act while being formally remanded on bail.
- It is tempting to find that, because the Court was able in effect to compel the Claimant's admission to St Andrew's Hospital on 14 October 2003, his admission could reasonably have been achieved, with diligence and determination, at an earlier date. The temptation is all the stronger because of the self-harm and distress suffered by the Claimant during his detention before his admission there, and the success of his treatment there.
But it is also necessary not to be misled by hindsight.
- In my judgement, the chronology demonstrates that those involved with the care of the Claimant at Stoke Heath did all that they reasonably could to care for him and to secure his transfer to an appropriate mental hospital. They were prevented from securing that transfer by the lack of places at an appropriate unit and by the lack of the necessary consistent section 47 reports. There is no evidence that a place at St Andrew's could have been made available at any date before 14 October 2003 (although it should not have been difficult to obtain evidence as to the position there between January and October 2003), and the difficulties in obtaining a place there at all, even though the Claimant was assessed as suitable for a placement, together with the woeful national lack of secure places for adolescents, do not lead me to assume that if it had been approached at an earlier date a vacancy would have existed. The Claimant was ultimately admitted to St Andrew's to a bed of a patient on home leave. I have little doubt that, but for the order of Davies J, St Andrew's would not have admitted him until a genuine place was available, i.e. until 27 October 2003. It would not normally have risked its resources being found to be inadequate in normal circumstances. Numerous other units had been tried unsuccessfully. The experience of the Claimant at Ty Llewellyn understandably reinforced the MHU's unwillingness to direct an enforced admission to a hospital that did not agree to accept the Claimant. For the reasons indicated above, I do not think that the Home Secretary can be criticised for failing to compel the Claimant's admission to a unit against its will. But even the Home Secretary's power of direction cannot reasonably be used to compel a unit without a vacancy or which cannot offer appropriate treatment to accept a prisoner.
- Regrettably, too, there was disagreement between psychiatrists as to the Claimant's diagnosis and treatment (although the evidence indicates that this is by no means unusual in the case of young persons). It is significant that the Claimant was ultimately transferred on the basis of a diagnosis of mental impairment that had not previously been made, that appears to be inconsistent with his having no learning disability (which is why Ashley House declined to accept him), and which has been rejected by Dr Mutale at St Andrew's. Although at times there was agreement between 2 doctors as to diagnosis, as in the case of Drs Jasper and Koppel, who diagnosed psychopathic disorder, there was conflicting advice (from Dr Daly: see, for example, her letter of 2 April 2003). I do not consider that the Defendants acted unreasonably in heeding that advice; and it is noteworthy that they are not criticised by Dr Van Velsen in this respect: see the citation below. And the absence of evidence of an available appropriate placement seems to me to be a vital difficulty facing this claim.
- Miss Grey criticises the Secretary of State for failing to procure appropriate reports. But the problem in this case was not the lack of reports; if anything, there had been too many assessments, and the results had been inconsistent. In addition, I do not think that the Secretary of State is required to shop around until he finds psychiatrists prepared to sign section 47 reports: it is his duty to obtain the reliable opinions of psychiatrists as to the transfer of a prisoner to a hospital with a vacancy that can offer appropriate care.
- I have no difficulty in accepting Dr Van Velsen's addendum report of 23 January 2004, in stating:
23. The assessment of Mr Davies by a number of clinicians did exacerbate his condition but these assessments were made in good faith. Having read the reports many of them felt concerned and worried about this young man although none felt they had a facility to suit him.
24. In my opinion Dr Neale's assessment of Mr Davies upon and immediately after, his admission to Stoke Heath, did not fall below the standard of responsible body of psychiatrists. He has always been aware of the difficulties of Mr Davies and found himself in a very difficult situation. It is understandable that Dr Neale did rely upon Dr Daly's refusal to reassess Mr Davies, as there had already been so many assessments including what appeared to be the definitive one from Ty Llewellyn. In retrospect I think it would have been more helpful had there been a wider net cast to other adolescent units to obtain their specialist opinion earlier.
25. With regard to the steps that responsible mental health bodies at the time of and immediately after Mr Davies' admission to Stoke Heath is concerned, all they could do was to carry out assessments.
26. Once Mr Davies had been sentenced, Dr Neale and the prison service continued to meet Mr Davies' mental health needs as best they could and as I have stated previously in my report, of 25.6.2003, in many ways I was impressed by the way they managed an extremely difficult situation. I think it would have been helpful to refer Mr Davies for assessment for a hospital placement before it actually did happen, but not to the extent that it fails the test regarding a responsible body of practitioners.
- Dr Neale made similar comments in his witness statement:
The Claimant's case has been a complex one. Its complexity has been exacerbated by the number of psychiatrists involved in his case, the different diagnoses and the varying views on treatment. I have been concerned at the amount of psychiatric assessments the Claimant has had, particularly as they have failed to lead anywhere.
I have, however, been impressed with the manner in which the staff at the establishment have looked after the Claimant, especially during his second period of detention. There has been clear communication between all involved in his care and the Claimant has been effectively disempowered in terms of his self-harming behaviour. He has acted and been treated as a normal detainee through much of his sentence. It is sad, but telling, that the Claimant views the establishment is the safest place for him.
- Having read and re-read the contemporaneous documents in this case, I too wish to state how impressed I am with the obvious concern of the staff at Stoke Heath for the Claimant and their attempts to do what they could for him. I do not think that they can be criticised for following the psychiatric advice they received, and in particular that of Dr Neale, the visiting psychiatrist, as to whom see Dr Van Velsen's comments cited above. Numerous other professionals were similarly concerned for him. I have before me minutes of meetings devoted to the Claimant attended by as many as 19 professionals, all of whom were seeking to do what they could for him.
- Nonetheless, there is a criticism of Stoke Heath that I accept as well-founded. The MHU at the Home Office should have been involved at a much earlier stage: as soon as the Claimant was returned to it. However, it has not been shown that he would have been transferred to a suitable hospital at an earlier date had that been done.
- John Shirreffs, Specialised Commissioner based at Health Commission Wales, also demonstrated real sympathy and concern for the Claimant. It has not been shown that he could have done more; I do not think that he could have done. He and the NAW were not aware of the Claimant's return to Stoke Heath until 3 March 2003. At the meeting of 12 March 2003, he undertook to organise a specialist forensic assessment through the National Adolescent Forensic Service. He followed this up with his letter dated 17 March 2003 to Dr Daly, which led to her letter dated 25th March 2003 referred to in the chronology.
- The final submissions of the Claimant did not originally invite me to find that the NAW was at fault in not obtaining an additional psychiatric report (i.e. additional to those available at the date of the hearing) for the criminal court that sentenced him on 15 April 2003. This allegation was however pursued in the Claimant's final submissions in reply. If there was a relevant duty on the NAW I do not consider that they were in breach. I do not see that they (and for this purpose they were represented by John Shirreffs) could reasonably have been expected to have done more than he did, given the state of the medical advice at the time, and in particular the recently received letter of Dr Daly. Mr Shirreffs sent Dr Koppel's addendum report to the Youth Offending Service at Wrexham: see his fax of 14 April 2003. But I do not consider that the NAW was under such a duty. The duty of placing appropriate evidence before the criminal court was that of the Claimant's solicitors, the probation service, and of the Prison Service, together with the youth offending team of the local authority if they had relevant information.
- Mr Shirreffs' diligence in his efforts on behalf of the Claimant may be seen from the chronology. It is significant that Don Shaw described him as "an invaluable source of support", that he was thanked by the Chairman of the Board of Visitors at Stoke Heath for having spent his weekend dealing with the Claimant's case (see Mr Sedman's letter dated 2 December 2002), and that the report of the debrief meeting of 3 March 2003 referred to his intervention having been invaluable. His regular attendance at meetings at Stoke Heath at which the Claimant's case was considered is indicative of his activity. At the meeting on 30 July 2003, he gave "his full backing on behalf of the Assembly with regards to any actions taken for Michael's welfare". See too the minutes of the meeting of 4 August 2003, the relevant parts of which are set out in the chronology.
- However, I do not accept his evidence that Mr Shirreffs sent Dr Koppel's report of April 2003 to Stoke Heath. It was not found on its files and is not referred to in any of its contemporaneous documents. In any event, that report was not based on any recent examination of the Claimant, and was contemporaneous with Dr Dyer's full assessment dated 10 April 2003 of Asperger's syndrome. It was provided to the Wrexham Youth Offending Service. I do not consider that the omission to provide it to Stoke Heath was of any consequence. I similarly am unable to accept Mr Shirreffs' evidence that between 3 March 2003 and 1 May 2003 he advised Dr Neale to make other referrals. That contention is not reflected in any of the minutes of the meetings or any other contemporaneous document. If that advice had been given, on the balance of probabilities, I consider that it would have been reflected in contemporaneous documentation, and Mr Shirreffs would have followed it up. However, in view of the lack of success in finding a placement subsequently, as already indicated, I am unable to find that if John Shirreffs had so advised Dr Neale, and Dr Neale had accepted that advice and made further referrals, an earlier replacement would have been achieved.
- That the Claimant suffered considerable distress and pain between his readmission to Stoke Heath and his transfer to St Andrew's cannot now be gainsaid. However, I am not satisfied that that was due to any breach by the Home Secretary or the NAW of his Convention rights. The delay in his transfer was due to the difficulties in satisfying the conditions for the exercise of the power conferred by section 47, and in particular the lack of agreement as to his diagnosis and treatment and the lack of appropriate places in institutions catering for young persons with mental disorders generally, and for young persons with his disorder (as it is now seen to be) in particular. As it is, his claims will be dismissed.
- I have three additional comments to make.
- Much of the difficulty experienced in this case in effecting a transfer of the Claimant arose from the difficulties of identifying a hospital which could both provide him with suitable treatment and offer a free place. The facts of this case disclose that there is no central, i.e. national, database of mental hospitals to which the prison service, for example, can refer in order to identify such a hospital. Such a database could be maintained within the Home Office, or the Department of Health, and it might be accessible (to authorised persons only) on the Internet. Because of the lack of such a database, for example, in October 2003 Wrexham Local Health Board sent some 67 letters to hospitals in its search for an appropriate place for the Claimant. The inefficiency, costs and delays involved are obvious. In these proceedings, the Claimant has not suggested that the lack of such a database caused an infringement of his Convention rights, and the practicalities of establishing and maintaining such a database have not been investigated. The position might be otherwise in future.
- Secondly, counsel and solicitors acting for the Claimant are to be congratulated for achieving his transfer to St Andrew's Hospital.
- Thirdly, claims such as the present, in which fault on the part of the Defendants must be established, may for procedural purposes be likened to professional negligence claims, and in my judgment in a case of any complexity, such as the present, should be. The parties' allegations should be pleaded, before witness statements are finalised, so that those who are criticised have clear notice of the specific allegations made against them and the opportunity to address them in detail. In addition, an appropriate order can be made for the preparation of chronological bundles. If necessary, the parties should bring the case before the court for procedural directions.
- I suspect that had this been done in the present case, it would have had the additional benefit that it would have been appreciated that the fair completion of the hearing in the time originally estimated was impossible, as would the work and costs involved in proceeding to trial. Neither counsel nor solicitors are to be criticised for the procedure followed in the present case: hindsight is, as I have indicated above, an unreliable guide. But that is no reason why lessons should not be learnt for the future.
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