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Since the purpose was to avoid patients being detained in state hospitals when adequate security arrangements were available elsewhere, section 264(2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage two, where a decision favourable to the patients ... |
Secondly, the tribunal had been influenced at stage two by the risk posed by the appellant to women. ARG |
Risk was however an irrelevant consideration at stage two: the tribunal only reached stage two after it had already decided at stage one that the patient could be managed within a medium secure hospital. ARG |
Thirdly, the tribunal had placed weight on a finding that the State Hospital offered better resources for the treatment of the appellant than were available in the medium secure estate. ARG |
The unavailability of suitable resources elsewhere was not however a relevant factor: otherwise, the provisions of sections 265 and 266 would be otiose. ARG |
Fourthly, the tribunal had failed to have regard to the wishes and feelings of the appellant, and to the need to avoid discrimination against patients, contrary to section 1(3)(a) and (g) respectively. ARG |
Fifthly, the tribunal had misunderstood the relationship between section 1(3) and section 1(4). ARG |
It had elevated the importance of providing maximum benefit to the patient (section 1(3)(f)) above the least restrictive alternative principle (section 1(4)), thus inverting the proper approach. ARG |
I shall consider each of these contentions in turn. ARG |
The width of the discretion exercised at stage two Ratio |
If the tribunal reaches a conclusion favourable to the patients application at stage one, it must then exercise its discretion whether to grant the application in accordance with the principles set out in section 1 and in accordance with the policy underlying section 264. Ratio |
Putting the matter broadly, if the patient does not require to be detained under conditions of special security available only in a state hospital, this approach should lead to the granting of the application unless in the particular circumstances there is some good reason to refuse it. Ratio |
It would therefore be potentially misleading to describe the tribunals discretion as unqualified: the range of matters which it may take into account is not subject to any express restriction, and is necessarily wide, but its discretion must nevertheless be exercised in a manner which is consistent with the intention o... |
On the other hand, it would also be wrong to say that it is only in exceptional circumstances that an application should be refused at stage two: it is impossible to say a priori whether the circumstances in which an application may properly be refused will be exceptional or not. Ratio |
There is no legal reason why they need be. Ratio |
Indeed, exceptional circumstances cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself. Ratio |
The relevance of risk at stage two Ratio |
The risk posed by the patient to the safety of others is plainly relevant to the tribunals assessment at stage one, since the conditions of security under which the patient requires to be detained are dependent upon the nature and extent of any risk which he poses. Ratio |
If the tribunal concludes at stage one that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it is by implication finding that the conditions of security that can be provided elsewhere are equally capable of addressing the risk posed by the ... |
The tribunal cannot rationally exercise its discretion at stage two on a basis which is inconsistent with that conclusion. Ratio |
In those circumstances, the tribunal was correct to consider one aspect of the issue of risk namely, the necessity for security arrangements available only in a state hospital - at stage one, and other aspects namely, the risk to female patients in a medium secure hospital, and the implications of that risk for restric... |
The relevance of the quality of the resources available in medium secure hospitals Ratio |
As I have explained, when the tribunal is taking a decision under section 264(2), the unavailability of accommodation for the patient at another hospital where he could be detained in appropriate conditions does not preclude the granting of the application. Ratio |
That does not however entail that the quality of treatment available at other hospitals, as compared with the treatment available at the State Hospital, is irrelevant to the tribunals exercise of its discretion. Ratio |
There is nothing in section 264 which expressly or implicitly bars the tribunal from taking such a clinical comparison into account. Ratio |
Under section 1, the quality of the treatment available elsewhere may be a relevant consideration, notably under section 1(3)(f) and section 1(6), both of which were relevant in the present case. Ratio |
Furthermore, the quality of treatment available in a medium secure hospital, and in particular the availability of the particular form of treatment required by the patient, may affect the risk posed by the patient in that setting. Ratio |
The potential raising of the level of risk is in itself a matter to which the tribunal is entitled to have regard, under section 1(4)(c), and it may have consequences which are also relevant to the tribunals decision, for example under section 1(3)(f) or section 1(4). Ratio |
In the present case, the tribunals focus was upon the availability of the most suitable treatment for the appellants particular needs in the State Hospital and in a medium secure hospital, the likelihood of his accepting appropriate treatment in each of those settings, and the implications of those matters for the risk... |
Although the tribunal might have given a fuller explanation of its factual findings in relation to these matters, its approach to them did not involve any error of law. Ratio |
The tribunals failure to refer to section 1(3)(a) and (g) Ratio |
The tribunal made no express mention of section 1(3)(a), and did not refer in terms to the appellants wishes or feelings in the reasons it gave for its decision. Ratio |
It is nevertheless clear that the tribunal had regard to the appellants wishes and feelings so far as relevant, as required by section 1(3)(a). Ratio |
In particular, it took account of his wish to be transferred to a medium secure hospital, and it considered his attitude towards different forms of treatment. Ratio |
I am unable to accept the submission on behalf of the tribunal, seemingly endorsed by the Inner House at para 14 of the opinion delivered by Lord Bonomy, that the non-discrimination principle set out in section 1(3)(g) is irrelevant to the tribunals discharge of its function under section 264, since a patient is not co... |
In the present case, it was argued that section 1(3)(g) required the tribunal to respect the appellants right to decline to accept the most beneficial form of treatment. Ratio |
No reference was made to section (1)(3)(g) by the tribunal. Ratio |
In reaching its decision, however, the tribunal bore in mind that the appellant might decline to participate in an appropriate course of treatment if transferred to a medium secure hospital. Ratio |
It was partly for that reason that it concluded that his application should be refused. Ratio |
Generally, in relation to this aspect of the appellants contentions, it is necessary to have regard to general guidance relevant to the duty of tribunals to give reasons for their decisions, such as that given by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, 49-50; [1997] 1 ... |
Applied in the present context, that guidance does not require a formulaic rehearsal of every matter referred to in section 1 of the Act, regardless of its importance in the particular case. PRE |
It is also necessary to bear in mind general guidance given to courts scrutinising the reasoning of expert tribunals, such as that given by Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678, para 30 and that given by Sir John Dyson in MA (Somalia) v Secre... |
In the present case, the reasons given by the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. PRE |
That was enough. PRE |
The relationship between section 1(3)(f) and section 1(4) PRE |
It is not readily apparent from the tribunals decision that it understood the structure of section 1, and the potential significance of section 1(4) in particular. Ratio |
On the facts of the present case, however, it does not appear that any misunderstanding can have affected the substance of the tribunals decision, as opposed to the manner in which it was expressed. Ratio |
The tribunal considered section 1(4), which it referred to as the least restrictive option. Ratio |
It stated that if the appellant moved to a medium secure hospital, then until a psychotherapy course was satisfactorily completed he would have to endure greater restrictions on his movements than currently experienced in the State Hospital. Ratio |
Such a course could take 12 to 18 months. Ratio |
If the implication of that statement is that the tribunal considered that the refusal of the application would result in the minimum restriction on the appellants freedom that was necessary in the circumstances, then it could have stopped there: that would have been a proper basis for refusing the application. Ratio |
It appears more likely however that the tribunal did not reach a clear conclusion as to the least restrictive option, perhaps because of the uncertainties as to the appellants likely attitude to treatment in a medium secure hospital, and as to the timescale and outcome of such treatment. Ratio |
In those circumstances it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. Ratio |
It concluded that it would be of maximum benefit to the appellant to undertake the necessary course of treatment at the State Hospital, because (1) the State Hospital had carried out the necessary groundwork to offer him such treatment, and was best placed to offer him the most suitable treatment for his needs, (2) he ... |
On that basis, it exercised its discretion to refuse the application. Ratio |
In the light of the matters to which it referred, all of which were relevant, its decision cannot be regarded as unreasonable. Ratio |
Conclusion RPC |
For these reasons, and those given by Lady Hale, I would dismiss the appeal. RPC |
A fundamental modernisation of the system for detaining and treating mental patients took place in Scotland under the Mental Health (Scotland) Act 1960 and in England and Wales under the Mental Health Act 1959. Ratio |
The aim was to integrate and normalise the treatment of mental patients within the mainstream National Health Service. Ratio |
But there remained the high security institutions, in Scotland the state hospital at Carstairs and in England and Wales what were then known as the special hospitals at Broadmoor, Rampton, Moss Side and Park Lane (which at that stage were not run as part of the NHS but now are). Ratio |
It soon became clear that there were many patients detained in the high security hospitals who did not need to be there but who could not be transferred to other settings and thus became trapped. Ratio |
There were many reasons for this. Ratio |
These patients were most unlikely to be able to move directly from the highly structured setting of the special hospital into a community setting. Ratio |
Many would be unable to move directly into an ordinary psychiatric hospital or unit. Ratio |
But there was a lack of facilities with an intermediate level of security which could enable the patient to move on without endangering either his own health or safety or that of others. Ratio |
There was also some reluctance among hospital staff, as well as local communities, to having former special hospital patients in their midst. Ratio |
The problem was recognised as long ago as 1974, when the Butler Committee on Mentally Abnormal Offenders published an Interim Report (1974, Cmnd 5698), ahead of its main recommendations, urging the setting up of secure units in each NHS region. Ratio |
This became government policy, and eventually medium and low secure units were established and became an attractive if challenging area of forensic psychiatric practice. Ratio |
According to the Care Quality Commission, 11% of all psychiatric hospital inpatients in England and Wales on census day in 2010 were on medium or high security wards, compared with 76% in general wards and 13% on low security wards (Count me in 2010, p 27). Ratio |
The proportions of detained patients on high, medium or low security wards are likely to be double that, as something over half of all inpatients are detained. Ratio |
This was achieved through government policy and professional commitment rather than through asserting the individual rights of patients. Ratio |
Mr Ashingdane was a Broadmoor patient who was deemed ready for transfer back into his local hospital, but was denied a bed there because the nurses trade union operated a ban on taking special hospital patients. Ratio |
He launched proceedings against the trade union branch secretaries, the Secretary of State and the area health authority. Ratio |
We shall never know whether his claim against the Secretary of State and the local health authority might have succeeded on the grounds that it was unlawful for them to take the union ban into account, because at that stage both were virtually immune from suit under section 141 of the 1959 Act and so his claim was stru... |
He then complained to the European Court of Human Rights that, among other things, his detention in Broadmoor did not fall within the lawful detention of persons of unsound mind permitted by article 5(1)(e) of the Convention, because he did not need to be in Broadmoor. Ratio |
The Court held that there had to be a relationship between the grounds of detention and the place and conditions of detention, so that a person detained because of mental disorder had to be kept in some sort of hospital or clinic appropriate to that purpose (Ashingdane v United Kingdom (1985) 7 EHRR 528). Ratio |
But beyond that article 5 is not concerned with the conditions under which a patient is detained; keeping him in Broadmoor longer than he needed to be there did not change the character of his detention and was not a violation of article 5. Ratio |
Since then, beyond the very remote possibility of judicial review, patients in England and Wales have been unable to complain that they are being detained in conditions of excessive security. Ratio |
It was therefore progressive and far-sighted of the Millan Committee to recommend that individual patients in Scotland should have the right to challenge the place of their detention on that basis and of the Scottish Parliament to pass what became sections 264 to 273 of the Mental Health (Care and Treatment) (Scotland)... |
Despite all the recent changes to the Mental Health Act 1983 (which consolidated the 1959 Act with later amendments), the law in England and Wales still lags behind the law in Scotland in this respect. Ratio |
No doubt those with an interest in the subject south of the border will be keeping a close eye on experience with the Scottish jurisdiction. Ratio |
It would obviously defeat the object of the legislation if the authorities were able simply to say that no bed was available in another, less secure, hospital. Ratio |
It must be the case, as Lord Reed observes (para 38), that this is irrelevant to the first stage: deciding whether (in the case of a state hospital patient) he requires to be detained under conditions of special security that can be provided only in a state hospital (section 264(2)) or (in the case of a patient in anot... |
It must also be the case, as Lord Reed says (paras 41 and 54), that having decided that question in favour of the patient, the expectation is that the tribunal will make an order unless in the particular circumstances of the case there is some good reason not to do so. Ratio |
More difficult is whether the non-availability of a bed constitutes a good reason at the second stage, the exercise of the tribunals discretion in the light of the guidance given in section 1(2), (3), (4), (5) and (6) of the 2003 Act. Ratio |
I agree with Lord Reed (para 43) that it would be unreasonable to make an order under section 264, or indeed section 268, if there were no conceivable possibility of an appropriate bed being found elsewhere. Ratio |
But that is a conclusion which a tribunal should be slow to reach. Ratio |
I would add that the search for an appropriate bed need not be confined to Scotland. Ratio |
If there are appropriate facilities in England, Wales or Northern Ireland, then the patient can be transferred there. Ratio |
The difficult case is the one like this, where the patient is not being denied a bed in a medium secure unit, but it is said that the conditions and treatment there will not be appropriate to his particular needs. Ratio |
These are not for the high level of security which can only be provided at the state hospital, but to be kept away from unsupervised contact with women until he has properly addressed the problem which brought him into the hospital in the first place. Ratio |
One can easily see how such a case could develop into an unseemly contest between the state hospital doctors, who wish their patient to move on, and the medium secure unit doctors who consider their facilities unsuitable. Ratio |
A principal object of giving patients individual rights is to stimulate the authorities into providing appropriate facilities for them, so it is important to ask whether such facilities could be provided in less secure settings. Ratio |
There is the further problem in a case like this, that the reason why the experts do not consider a medium secure unit suitable is that the patient has not undergone a particular course of treatment. Ratio |
One must beware the Catch 22 where the patient does not need a high level of security, but the facilities offered are not in fact suitable to the level of security he does need, and the reason for that is the lack of appropriate work which has been done with him in the state hospital. Ratio |
This is akin to the problem of those post-tariff life or indeterminate sentence prisoners who are denied the opportunity of demonstrating that they are safe to be moved on or out by the lack of appropriate courses for them: see R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1 AC 553 and J... |
If Ashingdane is right, this does not engage article 5(1) in the way it was said to be engaged in James. Ratio |
Nevertheless, being denied the opportunity of moving on because the state hospital has not provided the treatment which would enable the patient to move on is likely to engender a sense of injustice which might, at the very least, be considered anti- therapeutic. Ratio |
Fortunately, it looks as if this patients treatment needs are now being addressed in a way which he can accept. Ratio |
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