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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> DK, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 82 (Admin) (18 January 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/82.html Cite as: 112 BMLR 116, [2010] EWHC 82 (Admin), (2010) 112 BMLR 116 |
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THE
HIGH COURT
OF
JUSTICE
QUEEN
'S BENCH DIVISION
THE ADMINISTRATIVE COURT
![]() ![]() Strand London WC2A 2LL |
||
B e f o r e :
____________________
![]() ![]() |
Claimant | |
v | ||
SECRETARY ![]() ![]() ![]() ![]() |
Defendant |
____________________
of the
Stenograph Notes
of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the
Court)
on
behalf
of the
Claimant
Miss K Olley (instructed by Treasury Solicitors) appeared on
behalf
of the
Defendant
____________________
OF
JUDGMENT
Crown Copyright ©
"47(1) If inthe
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) thatthe
said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) thatthe
mental disorder from which that person is suffering is
of
a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment and, in
the
case
of
psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration
of
his condition;
the
"The
issue
of
treatability was paramount. It was failure satisfy
the
tribunal
on
this criterion in 2007 while [
the
claimant] was at Broadmoor Hospital that had necessitated his remission back to prison."
"8. Dr Ross confirmed his opinion that [the
claimant] was treatable, as evidenced by his engagement with treatment since his remission to prison. Dr Ross understood that his treatability was in dispute, but had advised that
the
prospects
of
effective treatment justified assessment by way
of
another prison transfer.
The
treatment itself would prevent further deterioration in his condition and better prepare him for a successful return to
the
community, minimising his risk
of
violent re-offending - his risk at
the
time
of
violence to others was considered to be high. This was
the
opinion
of
both Dr Ross and Dr Walker."
"On
14 August 2008 I minuted
the
file and passed it to my colleagues to effect
the
prison transfer in my absence if asked to do so. At that point,
the
endorsement
of
Broadmoor's Admission Panel
of the
recommendations
of
Drs Ross and Walker had not been secured.
The
panel subsequently provided their endorsement. I had hoped that
the
joint report by Drs Ross and Walker would have been provided in order that it would fully contribute to
the
transfer consideration, but it had not been received by
the
Mental Health Unit by
the
date
of the
decision, 20 August. However, it was not necessary to have it in order to make a final decision
on the
proposal given previous discussions with Dr Ross and
the
anticipated submission
of the
section 47 medical reports."
"I amof the
opinion that
(a) this patient is suffering from ..."
And then there are the
four conditions which were referred to in
the
1983 Act, and in this case psychopathic disorder is
the
relevant one within
the
meaning
of the
Mental Health Act 1983. So that is
the
first matter that has to be established, and then:
(b) thatthe
mental disorder from which
the
patient is suffering is
of
a nature or degree which makes it appropriate for him to be detained in a hospital for treatment ..."
And that is of
course within
the
first part
of
section 47(1)(b), and then
the
form goes
on
:
"and wherethe
patient is suffering from psychopathic disorder or mental impairment
(c) that such treatment is likely to alleviate or prevent a deteriorationof
his condition
I recommend treatment in a special hospital
My full medical report is givenon the
reverse."
That is signed and dated by the
relevant medical practitioner.
"Ifthe
reports are manifestly unreliable, then
the
Secretary
of
State cannot reasonably be satisfied that
the
2 conditions are met
on the
basis
of the
reports, and a decision to rely
on
them in such circumstances will be capable
of
successful challenge by judicial review. A medical report may be unreliable for a number
of
reasons. It may
on
its face not address
the
relevant statutory criteria. It may be based
on
an assessment which is so out
of
date that
the
mere fact
of
a lapse
of
time will be sufficient to render it unreliable. It may be unreasonable to rely
on
a report based
on
an assessment conducted an appreciable, but not inordinate, time before
the
decision to transfer where
the
mental disorder is a fluctuating and unstable condition and/or where there has been a change
of
circumstances since
the
assessment was made. In each case, it will be for
the
Secretary
of
State to consider whether in his judgment
the
medical report is one
on
which he can safely and properly rely so as to be satisfied that
the
conditions set out in paras (a) and (b)
of
s.47 are met. One
of the
considerations that will be uppermost in his mind is whether
the
assessment
on
which
the
report is based is sufficiently recent to provide reliable evidence
of the
patient's current mental condition."
"18. Ifthe
decision is being taken as in this case right at
the
end
of the
sentence what must also be in
the
Secretary
of
State's mind I suggest is that a decision to direct a transfer cannot simply be taken
on the
grounds that a convicted person will be a danger to
the
public if released (as understandable as that concern must be) but can only be taken
on the
grounds that his medical condition and its treatability (to use a shorthand) justify
the
decision."
"20.The
report forms F1305 completed by [
the
two doctors] were as to
the
front pages pro forma, allowing for
the
crossing out
of
certain points and leaving in others. That process meant that
on the
front pages each doctor "Declared I am
of the
opinion that (a) this patient is suffering from ... (ii) psychopathic disorder ... within
the
meaning
of the
Mental Health Act 1983, and (b) that
the
mental disorder from which
the
patient is suffering is
of
a nature and a degree which makes it appropriate for him to be detained in a hospital for treatment" Then follows an instruction in italics "where
the
patient is suffering from a psychopathic disorder or mental impairment" and
the
form continues "(c) that such treatment is likely to alleviate or prevent a deterioration
of
his condition. My full medical report is given
on the
reverse." (emphasis as in original)
21. "The
full medical reports
on the
reverse" were completed under two pro forma headings.
The
first is "Information to establish mental disorder, including reference to type
of
disorder and description
of
symptoms". Both doctors gave
the
required description.
22.The
next heading is "Reasons for conclusion that
the
medical disorder is
of
a nature or degree which makes detention in a hospital for medical treatment appropriate". There is nothing in
the
heading that directs
the
attention
of the
doctor to giving reasons as to why he or she considers that treatment is likely to alleviate or prevent deterioration
of the
prisoner's condition.
23. In this instance neither doctor gave any reasons or provided any grounds in supportof the
view that they were
of the
opinion that
the
treatment would alleviate or prevent deterioration. Indeed
the
point each seems to make is that
the
appellant's condition makes him likely to commit further offences if he is released into
the
community."