R (Gilkes) v SSHD [1999] EWHC Admin 47

One of the two medical reports was too out-of-date to be reasonably relied upon for a s47 transfer to hospital; a transfer at the end of a prison sentence was not inherently unlawful; based on subsequent material from the same doctor, no relief would be granted as if the Secretary of State had insisted on an up-to-date report he would have made a transfer direction anyway.

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 1999 are available here: MHLR 1999.

Reasonableness of a transfer from prison to hospital at the end of the sentence; lawfulness of reliance on medical report based on 6-week old examination - R v Secretary of State for the Home Department ex p Gaynor Gilkes [1999] MHLR 7

Points Arising: There is no time limit between medical assessments and transfers under s47 MHA, but the medical reports had to be reliable: an out of date report will not meet this test; and it is unlikely that a report prepared for a s37 order will be reliable. A transfer from prison to hospital at the end of the sentence may be reasonable: such a transfer is not limited to exceptional circumstances.

Facts and Outcome: G was transferred from prison to hospital on the last date of her 3-month sentence (at the half-way point of it); the Home Secretary relied on a medical report that was just over 2 weeks old and another that was just over a week old but relied on an examination that was some 6 weeks old (and had been carried out for the purpose of recommending a s37 hospital order). It was held that, whilst a transfer should not usually occur at the end of the sentence, it might sometimes happen, was not limited to exceptional circumstances and was not unreasonable on the facts, it was wrong to have relied on a report based on an examination that was not recent when it related to a patient whose condition was not stable. It was also commented that a report prepared for a s37 order was unlikely to be reliable for s47 purposes. However, the court’s discretion was exercised against quashing the decision because up to date medical evidence revealed that the criteria for detention in hospital were made out.

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