R (L) v West London MH NHS Trust  EWCA Civ 47,  MHLO 49
(1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his representative, and that the patient be afforded an opportunity to make written submissions to the panel."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Patient — Detention — Transfer of patient from medium to high security hospital — Whether transfer engaging common law duty to act fairly — Whether patient entitled to make representations to decision-making panel— Mental Health Act 1983, s 37
R (L) v West London Mental Health NHS Trust
! ;  WLR (D) 44
CA: Moses LJ, Patten LJ, BeatsonLJ: 29 January 2014
The common law duty to act fairly was engaged when a decision was made as to whether to transfer a patient detained under the Mental Health Act 1983 from a medium to a high security hospital. Where the decision was largely a clinically-based decision with a rationing aspect, there was a need for circumspection as to what procedure was required. Absent urgency, a clinical reason precluding notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the "gists" of the letter of reference to the high security hospital by the hospital that wished to transfer the patient and the assessment by the clinician from the high security hospital ought to be provided to the patient and/or hisrepresentative, and the patient should be afforded an opportunity to make written submissions to the decision-making panel.
The Court of Appeal, Civil Division, so held when allowing an appeal by the defendant, the West London Mental Health NHS Trust, against the decision made by Stadlen J sitting in the Administrative Court on 13 November 2012, allowing in part L’s claim for judicial review of the decision made by the defendant to admit L to Broadmoor, a high security hospital, pursuant to a transfer from Stockton Hall, a medium security hospital, where he had been detained pursuant to a hospital order made by Chichester Crown Court under section 37 of the Mental Health Act 1983, following his convictions in June 2008 for offences including kidnapping and dangerous driving. Partnerships in Care and the Secretary of State for Health were joined as first and second interested parties, respectively.
The decision was challenged by L as being unlawful because it was taken following a procedure which failed to comply with, inter alia, common law standards of procedural fairness. The judge held that the nature of the decision-making process as to whether a patient detained under the 1983 Act should be transferred from a medium security hospital to a high security hospital and admitted to the latter was such as to engage a common law duty of fairness, and set out 12 requirements of fairness applying to such a decision (!, para 558). He held that the procedural requirements of that duty had not been complied with, in that the defendant had failed to provide L’s representatives with requested disclosure of documents before the decision-making panel or the gist of them, or to give him an opportunity to make representations to the panel, and L was therefore entitled to a declaration to that ef/fect, but that the decision to transfer a patient detained under the 1983 Act from a medium security hospital to a high security hospital was not a “determination” of his “civil rights” for the purpose of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
BEATSON LJ said that the judge had required a procedure which was inappropriately at the adversarial end of the spectrum of adjudicative methods of decision-making and, in so doing, went beyond what fairness required in the context. Paragraph 2 of his order was, in effect, a declaration that the 12 requirements in his judgment should, subject to the various qualifications, be complied with. It should be set aside. Where, as in L’s case, the decision in question was largely a clinically-based decision (evaluating the future risks to L and other patients) with a rationing aspect, there was a need for circumspection as to what procedure was required 8. The other factors in L’s case justifying circumspection were the need for urgency in executing the transfer due to the inability of the medium security hospital to continue to look after the patient safely, and the fact that the decision had a rationing aspect because of the scarcity of high security places in hospitals. The crucial question of substance was L's mental health and whether the risk he posed to himself and to others meant it was necessary for him to be transferred and held in conditions of high security. That was a clinical question made on the basis of his entire clinical and other history, taking into account L's own interests and health, the safety of other patients and staff and L's views. The decision did not turn on a stark factual issue. However it was possible that through carelessness, incompetence or even possibly maliciousness, an unpopular or particularly difficult patient might be the subject of a false accusation which was treated as a triggering event, but where it would be possible for him or her to show its falsity.
On the particular facts of L's case, relief should not have been given. L had no objection to the transfer, and the subsequent decision by his solicitor not to make such representations. He was able, either personally or through his solicitor, to put his side of the story about the weapons incident leading to his transfer to the authorities before a decision was made about his transfer. It was also noted that the nature of any disagreement as to the facts of the triggering incident and L's subsequent withdrawal of his challenge to the decision to detain him in conditions of high security was limited. However, the ability of the existing process to achieve fairness when considering transfer had an undesirable element of fortuity in it. In order to remove that fortuity, to give better practical effect to the provisions of the statutory code of practice and to ensure fairness, the transfer process ought to be improved. Absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the "gists" of the letter of reference to the high security hospital by the hospital that wished to transfer the patient and the assessment by the clinician from the high security hospital should be provided to the patient and/or his representative, and that the patient, if he disagreed, should be afforded an opportunity to make written submissions to the panel.
MOSES and PATTEN LJJ agreed.
Appearances: Jeremy Hyam (instructed by Capsticks Solicitors LLP) for the defendant Trust; Dan Squires (instructed by Deighton Pierce Glynn) for the Claimant; Sonia Hayes (instructed by Solicitor, Partnerships in Care) for Partnership in Care as first interested party; the Secretary of State for Health, as second interested party, did not appear and was not represented
Reported by: Sharene P Dewan-Leeson, Barrister
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