R (S) v Broadmoor Special Hospital Authority [1997] EWHC Admin 875
Broadmoor's random and routine search policy was lawful.
Related cases
R (S) v Broadmoor Special Hospital Authority [1998] EWCA Civ 160
- R (S) v Broadmoor Special Hospital Authority [1997] EWCA Civ 2875 (permission hearing)
Judgment (Crown Copyright)
R v Broadmoor Special Hospital Authority and Another, ex parte S and Others
[1997] Lexis Citation 4309
(Transcript: Smith Bernal)
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
POTTS J
15 OCTOBER 1997
15 OCTOBER 1997
R Gordon QC and P Bowen for the Applicants
E Fitzgerald QC and O Thorold for the First Respondent
K Parker QC and P Saini for the Second Respondents
Scott Moncrief, Harbour & Sinclair; Reid Minty; Office of the Solicitor,
Department of Social Security, Department of Health
POTTS J
The Applicants apply for Judicial Review of Security Policy S1 (the Policy), of
Broadmoor Special Hospital Authority, (the first Respondent) to be implemented
as from 1 July 1997, to conduct random and routine searches on patients detained
under the Mental Health Act 1983 (the 1983 Act). Leave to move was granted by
Scott Baker J on 15 July 1997, when he also granted leave to join the Secretary
of State for Health as second Respondent.
The first Respondent is the Manager of Broadmoor Hospital which is a "special
hospital". The Secretary of State has a duty under s 4 of the National Health
Service Act 1977 (the 1977 Act) to provide special hospitals for:
"... persons subject to detention under the Mental Health Act 1983 who
in his opinion require treatment under conditions of special security
on account of their dangerous, violent or criminal propensities."
There are three "special hospitals": Broadmoor, Ashworth and Rampton. Broadmoor
was established as a criminal lunatic asylum in 1863 and as such was the
responsibility of the Home Secretary. The Criminal Justice Act 1948 vested
criminal lunatic asylums in the Minister of Health and placed them under the
management of a Board of Control. The Mental Health Act 1959 introduced the
concept of "special hospitals", abolished the Board of Control and placed
special hospitals under the direct management of the Minister of Health, albeit
without the National Health Service. In 1973 responsibility for special
hospitals became an NHS function, but they continued to be directly managed by
the Secretary of State for Health. In 1986 Hospital Boards were created to
manage all three special hospitals. From 1 July 1989 these Boards were abolished
and replaced by the Special Hospital Service Authority (SI 1989/947, 948 and
949). This Authority was replaced by three new Special Hospital Authorities from
1 April 1996 of which Broadmoor is one and Ashworth and Rampton the others (SI
1996/488, 489, 490).
The Applicants are all patients at Broadmoor. Applicants 'S' and 'H' are both
detained under s 3 of the 1983 Act. Applicants 'D' and 'L' are both detained
under ss 37 and 41 of the 1983 Act.
The Legislative Regime
Underpinning the relevant provisions of the Mental Health Act 1983 is a
condition that a patient admitted to and detained in hospital will there receive
"medical treatment". Thus, s 3 of the Act provides:
"3. (1) A patient may be admitted to a hospital and detained there for
a period allowed by the following provisions of this Act in pursuance
of an application (in this Act referred to as 'an application for
admission for treatment') made in accordance with this section.
(2) An application for admission for treatment may be made in respect
of a patient on the grounds
that -
(a) he is suffering from mental illness, severe mental impairment,
psychopathic disorder or mental impairment and his mental disorder is
of a nature or degree which makes it appropriate for him to receive
medical treatment in a hospital."
Whilst s 37 provides that:
"(1) Where a person is convicted before the Crown Court ... the court
may by order authorise his admission to and detention in ... hospital
..."
if satisfied that:
“(2)(a)(i) ... the mental disorder from which the offender 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 of his condition."
"Hospital" means-
"(a) any health service hospital within the meaning of the National
Health Service Act 1977." (1983 Act, S.145).
This is a wide definition. Therefore in addition to the three special hospitals
provided under section 4 of the 1977 Act the definition includes hospitals that
do not specialise in mental disorder as well as those which do. "Medical
treatment":
"includes nursing, and also includes care, habilitation and
rehabilitation under medical supervision." (1983 Act, S.145).
Thus, all Broadmoor patients must satisfy the criteria for admission of (i) the
1983 Act (to a hospital) and (ii) of the 1977 Act (to a secure hospital).
Moreover, the test applied by the Broadmoor Admissions Panel is that a patient
should not be admitted unless representing "a grave danger to the public" and
where that patient cannot safely be contained within a Regional Secure Unit.
This applies as much to patients detained under section 3 as to those detained
under hospital orders with or without restriction orders.
The Policy under Review
Before July 1997 there was no policy of random search at Broadmoor.
On 18th August 1986 a patient attacked a visiting priest with a drinking mug in
Broadmoor Chapel. This attack could have proved fatal. The patient who carried
out the attack was not regarded by staff as at particular risk of behaving
violently. In consequence, on 19th August 1996, a policy of random rub-down
search of patients was instituted. This was withdrawn on 22nd August 1996
pending the recommendations of an Internal Inquiry.
The report of the Internal Inquiry was submitted in October 1996. It drew
attention to the defects in the existing system of searching only "for cause"
and recommended consideration of a system of random and routine searches for all
patients. There was extensive consultation concerning this recommendation. In
particular the Responsible Medical Officers (RMOs) at the Hospital were
consulted. Following this the Policy under review was formulated and approved by
the Executive Directors and the Hospital Board as "Broadmoor Hospital Authority,
Security Policy - S1".
Those parts of the Policy particularly relevant to the present application are:
"1.2. We have a statutory duty to provide a therapeutic and safe
living and working environment for patients and staff and to protect
the public. To achieve and maintain a safe therapeutic environment it
is essential that all staff employed by Broadmoor Hospital Authority
are responsible for security. Searching practices, including random
and routine searching are an essential element of security, and are
necessary. (This includes not only protecting others from the
consequences of a patients activity but protecting themselves from
their own actions (eg, self harm, drugs, pornography and fraud)).
1.3 Searching, including random and routine searching, shall include
inspection of written material (including letters or other
communications stored on disc) to ensure its bona fides and that such
does not contain inappropriate material (contrary to health and/or
safety/security). If such material contains privileged communications
under s 134(3) of the Mental Health Act (eg. communications with
Solicitors, Mental Health Act Commission) inspection shall be the
minimum necessary to ensure the identity and address of sender or
recipient is genuine (and not for any other purpose so that the
confidentiality of privileged communication is maintained).
...
5. Patients Consent/Refusal to Co-operate
5.1 Before commencing a personal search of a patient and/or his/her
personal possessions every effort must be made to obtain the consent
and co-operation of the patient.
5.2. If a patient refuses to co-operate with a search they must be
kept under observation, isolated from other patients and the nurse in
charge of the patients ward informed. The nurse in charge must discuss
the management of the situation which his Line Manager and the
Consultant Psychiatrist. If refusal to co-operate continues, a further
attempt to obtain consent must be made and if unsuccessful "the
patient must be told that in the absence of consent a search will be
undertaken and, if necessary, by using the minimum amount of force
necessary in order to conduct the search.
...
7. Individual Patient Searches
7.1 There are three levels of personal searches:
a. Level 1 Search - This is a rub down search which may be carried out
at random and without reasonable suspicion. It is non-intrusive but
does include inspection of pockets on clothing and the removal of any
jacket type garment.
b. Level 2 Search - This is a search where clothing (in addition to a
jacket as referred to in the above) is removed. There should be
reasonable grounds for suspicion that a patient may have, on his/her
person, items which could pose a threat to health and/or
safety/security.
c. Level 3 Search - This is a search of a patients body orifices. Such
searches will be rare. There should be reasonable grounds for
suspicion that a patient may have, on his/her person, items which
could pose a threat to health and/or safety/security. It can only be
conducted by a doctor after consultation with the Medical Director (or
his deputy) and the On-Call Senior Manager.
...
9. Level 1 Search Procedure
9.1 Level 1 searches must be carried out by a member of staff of the
same gender as the patient and in sight of a second member of staff.
9.2. All level 1 searches must be recorded in the ward/department
security folder detailing the patients name, date, time and name of
the staff member conducting the search ..."
This application is concerned with level 1 searches. Paragraphs 10 and 11 of the
Policy provides for level 2 and level 3 searches which should be conducted:
"... if staff have reasonable grounds for suspecting that the patient
has on his/her person a substance or item which could affect the
safety/health/security of themselves, others or the hospital. Consent
must be requested."
The Evidence
The first Respondents have adduced evidence from Ms Lezli Boswell, Director of
Patient Care Services, Broadmoor, Mr Alistair McNicol, Head of Security,
Broadmoor, and Dr John Basson, Medical Director, Broadmoor.
In her affidavit Ms Lezli Boswell concentrates on the problems caused by illicit
drugs:
"5. Broadmoor is a special hospital which receives its patient either
directly through the Courts or upon transfer from the Prison Service.
I would say the majority of patients bring with them an element of
drug misuse. I am convinced, as is the Hospital Authority Board, that
without random searching, we will not be able satisfactorily to
prevent illicit substances reaching the hospital and being circulated
within it upon arrival.
6. The sources by which patients can acquire drugs are as follows.
When a patient leaves the hospital on trial leave and then returns. By
visitors coming to the hospital. Potentially by some staff. By post.
7. At the hospital, circulation can take place for example at social
events, from the female side of the hospital and in the parole wards
where opportunity for trafficking in drugs is very much greater given
the much greater freedom that such patients have by access around the
site but within the secure perimeter. Placement of patients throughout
the hospital presents such an opportunity.
8. I note that it is the Applicant's case that they consider that
random searching may be upsetting for them. The difficult balance that
one has to strike is that we must aim for a drug free and "safe
environment and we do have to consider the greater good and, in my
view, the objective of our policy. The hospital would not wish to
conduct a search except in the most dignified manner and indeed the
policy itself is very much a staged process and which seeks to obtain
the consent of patients before there is any question of a search being
conducted against anyone's will.
...
10. I would wish to refer to the negative consequences as a result of
misuse of drugs. Within a special hospital, there are many different
types of mental illness. Some patients are very much more vulnerable
than others and some are very much more manipulative than others. For
example, I know that vulnerable patients (for example in Somerset
House), have been coerced into not only carrying drugs for other
patients but trading in them as well. We would not normally suspect
the more vulnerable patients to be associated with drugs and if
reasonable suspicion was to be a necessary criteria, it would be
extremely difficult to search them. I know such vulnerable patients
are so involved and they need protection, but unless we find it about
their person or in their room, we are not going to be aware of who is
involved.
...
15. Patients taking psychotropic medication can have their mental
state seriously and adversely effected by the use of illegal drugs.
Additionally their physical well being can be compromised. If a
patient has an unwelcome cocktail of drugs, they could not only
hallucinate but they may have paranoid ideas or disturbed behaviour
which could lead to a violent incident. It is not possible to predict
the effect of the drug on any patient. I do believe that we have
responsibility to protect them from the consequences of this. For
example, it is not difficult to foresee a paranoid patient having
paranoia re-enforced as a result of illegal drugs or increasing a
feeling of worthlessness and that people are against them."
In his affidavit of July 1997 Mr McNicol refers to dangerous items:
"10. ... Patients do, to my knowledge, "conceal items which are
potentially injurious to themselves or "others or otherwise present a
security risk. Sharp instruments, glass, crockery can be very
dangerous within the hospital, whether to themselves or others, and I
include to staff also.
11. I would like to give 2 examples. In May 1997 a stanley knife went
missing in a workshop. I should first of all that the patient being
allowed to go to a workshop has been deemed to behave in a
sufficiently responsible manner to be allowed this facility. It was
secreted amongst a number of pieces of wood. The question is what
activity did the patient have in mind in secreting this? It is
suspected there was an intention to move it out of its hiding place.
The patient was a triple murderer.
A second example would be also during the summer of 1996, a patient
was in the workshop and had barricaded himself in a room. As a result
of secreting food and drink on his person he had built up a stock pile
and would have been able to have survived for at least 48 hours. The
patient started to self harm but fortunately staff talked to him and
the crisis was resolved in that manner.
12. Rub down searches of a random nature are required to stop the
circulation of materials within the hospital and to stop patients
carrying items such as I have illustrated in any event. Many patients
have parole status within the hospital and I am of the view that small
amounts of drugs and pornography can and are circulated in this
manner.
13. It is very, very rare that we have any definite information to go
on upon any individual. This is why routine and random searches are
desirable in all of the circumstances that we have to consider. All of
the patients at Broadmoor are potentially involved in or a victim of
the above activity. I believe this is an appropriate context to
warrant random and routine searching as per the policy without having
any particular information on any particular individual. We seek to
treat our patients and this needs to be in a drug free environment."
Dr Basson states (affidavit July 1997):
"10. There are suggestions in the attendance note exhibited to Ms
Scott-Moncrieff's affidavit that some or all of the applicants have,
or will, resort to violence or self harm if the policy is "introduced.
Insofar as specific threats of self harm are made, the Court is
invited to treat these with some scepticism. But in my case, if the
policy is necessary, it must be introduced, though all care will be
taken to minimise the risk of adverse reaction by appropriate
sensitivity and restraint in its application. I should also make clear
that the policy will be kept under review and that the hospital will
always consider representations from the clinical team or patients for
its relaxation. But, at present, I am not persuaded that the need for
the policy to be implemented consistently and fairly so as to apply to
all patients is overridden by the threats made, or particular concerns
expressed, by individual patients. In particular, many of the patients
who are threatening to harm themselves if the policy is applied to
them, have frequently resorted to self harm in many other
circumstances simply because they could not get their own way or were
frustrated for some other reason. Female patients on Leeds Ward - from
which all the female applicants come - are placed there because of
particular personality problems which typically involve self harm and
threatening behaviour to others.
11. ... Put simply the policy was introduced because the previous
policy did not sufficiently provide for the protection of patients and
staff. It failed adequately to prevent the circulation of illicit
drugs and alcohol within the establishment and to address the problem
of the secreting of dangerous objects.
...
13. I can confirm that one of the key incidents that gave rise to a
rethink of the pre-existing policy was that which involved the assault
on the Roman Catholic Chaplin, Father Laker, by a patient who had
secreted a heavy drinking mug. This could have proved a fatal attack.
The enquiry team reported:
'it was accepted by the enquiry team that there was no reason for the
house staff of those who escorted X to the chapel to regard him as at
risk of showing violent behaviour.
The escorting staff were not in a position to know that X was carrying
a potentially dangerous item hidden in his clothes.'
16. One of the reasons for random searches is that "searches focused
solely on specific suspicions do not necessarily identify those in
possession of drugs or dangerous objects. Thus it is clear that
certain patients, by reason of their nature, history and presentation,
do not appear suspicious to staff. But they can easily be pressured by
other patients - who are rightly the object of suspicion - to carry
drugs, alcohol or other contraband objects by acting as 'mules'. ...
17. I can confirm also the problem of the introduction and circulation
of drugs in Broadmoor is of particular concern. This is because, if a
patient who is mentally ill, takes cannabis, cocaine heroin or similar
substance, there is a danger of provoking dangerous mood states in
which the patient can present a special danger to himself or herself
and to others."
Affidavits before the Court from members of staff at Rampton (Sharpe), Ashworth
(Paterson) and Carstairs State Hospital (a secure hospital) in Scotland
(McGuire), indicate that random searching without cause takes place in these
hospitals. All attest to the necessity of the Policy and the absence of any
serious adverse reaction.
Reference must be made to the reaction of certain clinicians and social workers
to the Policy. In her affidavit of 9 July 1997, Dr Chandra Ghosh, Consultant
Psychiatrist and RMO at Broadmoor puts her concerns thus:
"1. ... At present, I am responsible for two wards in Broadmoor - a
medium dependency ward and a pre-discharge ward. This means that I am
responsible for two Clinical Teams and, as it happens, am responsible
for more patients in Broadmoor than any other Consultant.
2. I accept that the staff in the hospital are responsible for
securing a safe environment, for the patients, the staff and the
public. To achieve this, it is necessary to develop therapeutic
alliances between the staff and patients. Therefore, if the
therapeutic alliance is not to be damaged, intrusive security searches
"of patients, without consent, should only be carried out if there is
an overriding clinical necessity, as perceived by members of the
Clinical Team.
3. I am aware of the provisions of the new random and routine rub-down
search policy that was due to be introduced on 1 July. In my view,
this policy is over-inclusive, does not allow Clinical Teams to make
decisions based on individual patients' needs and requires members of
the Clinical Team to carry out the intrusive searches without giving
them any responsibility in deciding whether or not the searches should
be carried out.
...
7. I have spoken to an Official at the British Medical Association and
have discussed the BMA Resolution on intimate searches. He advised me
that it is my personal responsibility to balance the requirements of
security with the dignity of my patients. This is not something that I
can delegate to Management. In my view, rub-down searches would be as
intrusive to some of my abused and personality disordered patients as
an intimate search and I would, therefore, feel obliged to follow the
BMA Resolution on intimate searches. I believe I would be personally
liable for any decision that did not accord with the BMA Resolution
and would not be willing to authorise rub-down searches except in
accordance with the guidelines."
Dr Andrew Hoare, Consultant Psychiatrist and RMO at Broadmoor by an affidavit
sworn in August 1997 adduced his paper "THOUGHTS ABOUT SEARCHING PATIENTS":
"3) The consultant psychiatrist is ultimately responsible for the
treatment and care of his patients in the hospital, and he or she
makes decisions in consultation with the other members of his clinical
team of other doctors, nurses, psychologists, social workers,
occupational therapists and others. An awareness of the particular
kinds of risk that the patient presents is always present in these
discussions. Security, which some are apt to suggest is opposed to
treatment, in fact makes treatment possible. Clinical teams do discuss
patients' security needs, make decisions about whether extra security
precautions are needed in particular circumstances, "whether a patient
is fit to be granted parole within the hospital with the freedoms and
responsibilities that that entails, and so on. Members of the security
department are allocated to the clinical teams to assist them in the
making of tricky decisions about security matters, but their role is
purely advisory.
4) That is the context in which the proposals in the Search Policy
must be considered.
...
11) Given that the clinical teams are handling other aspects of the
management of patients' security needs, it seems only reasonable that
they should determine the nature and rate of any searching of the
patient and/or his belongings. To search all patients at a fixed
frequency is a waste of resources which could be focused better.
...
17) I do not think that there needs to be any specific suspicion to
justify a patient being searched. The nature and frequency of
searching should be determined by the clinical teams. The likelihood
of benefits and the magnitude of the benefits arising from searching a
particular patient need to be balanced against the likelihood of
disadvantages arising and the magnitude of those disadvantages, and
the costs of searching. Patients' rooms should be searched randomly,
at a frequency that is appropriate for the patient in question. It may
be appropriate for all patients returning from visits to be given a
rub-down search, but this probably depends on whether a decision is
taken to search visitors before they come in. Patients should be
subject to rub-down searches in other situations as determined by
their clinical teams."
Dr James McKeith, Consultant Psychiatrist, now of the Dennis Hill Unit,
Beckenham (a Medium Secure Unit), who was at Broadmoor between 1974 and 1977,
has stated (affidavit of 7 July 1977):
"2. An indispensable component of the treatment and management of
patients in such a setting is the fostering of an alliance between
patients and staff. Whilst security issues must not be set "aside, the
maintenance of a hospital culture requires that the management of
patients and the constraints applied to them must be used electively,
(Sic) in accordance with the clinical judgment of the
multi-disciplinary team. Unlike a prison, the unselective application
of intrusive security measures must be avoided.
3. Unless these principles are maintained, a hospital culture will
disappear and be replaced by that of a prison. The price of
compromising these principles is the loss of an environment in which
effective treatment can take place. It is unlikely that skilled,
professional staff would be willing to work in such an environment.
4. A central feature of risk assessment is to engage the co-operation
of the patient to discover attitudes and thoughts which may have a
bearing on behaviour. Such co-operation is put at risk when ill
considered blanket security practices are applied.
5. I have been informed that Broadmoor Hospital wishes to implement a
policy of random and routine rub-down searches of all patients. I
understand that this policy would include the rub-down searching of
all patients returning from social visits, the rub-down searching of
20% of patients leaving the ward for occupational education and the
rub-down search of all patients, whether or not they leave the ward,
at least once per week. I understand that the consent of the patients
will be sought, but that if that patient does not consent, then the
search will still take place, using the minimum force necessary.
6. On the basis of my experience, I would advise that this policy
could be foolhardy, but may well result in such damage to
relationships between staff and patients that security may be
impaired, rather than improved as intended."
These passages identify the issues raised by this application. The view of
clinicians (shared by two psychiatric social workers, William Jackson (affidavit
of 4 August 1987) and Anne Gordon (affidavit of 4 August 1997) are that random
and routine searches of patients is likely to disrupt the relationship of trust
and respect that is essential between clinician and patient to enable effective
therapeutic work to be done. Such searches are likely to cause patients extreme
distress and may trigger incidents of self harm and violence as statements made
by the Applicants in July 1997 for the purpose of this litigation purport to
demonstrate.
The Issues
The Applicants contend that the Policy insofar as it contemplates "random and
routine rub-down" searches of patients is not authorised by the express or
implied powers of the first Respondent. The Applicants rely on the principle
laid down in Raymond v Honey [1983] AC 1, [1982] 1 All ER 756 that a prisoner:
"retains all civil rights which are not taken away expressly or by
necessary implication." (per Lord Wilberforce 10G).
and contend that it has like application to patients.
The first Respondents accept this test and its applicability to patients under
detention in hospital. But they submit that the legislation expressly confers a
power to detain patients who are subject to civil sections or hospital orders -
and to detain "for medical treatment" such patients - and that such a power of
detention necessarily implies a power to take all steps to ensure their safety
including a general power to conduct searches, where it is reasonable and
necessary. Further and in any event, it is submitted, section 137(2) of the Act
confers an express power to order routine random searches.
The second Respondent accepts that the Raymond v Honey principle applies to
patients, points to the sections of the Mental Health Act whereby various
categories of patients may be admitted to, and detained in, hospital for the
purposes of medical treatment as defined in section 145(1) of the Act and
submits that:
(i) a general power to search patients in order to prevent escape and harm to
others must be implicit in the express power to detain and,
(ii) a general power to search patients must necessarily be implied as part of
the duty to give medical treatment by reason of the need to ensure therapeutic
environment for patients.
(iii) Since Broadmoor is a special hospital under section 4 of the 1977 Act,
conditions of special security "must include the ability" to carry out random
searches so as to reduce risks to the health and safety of patients and staff.
Express Power
Mr Fitzgerald QC for the first Respondent did not place the existence of an
express general power of search at the forefront of his arguments. It is,
however, logical to deal with this first.
By definition Broadmoor patients are mentally disordered and are "dangerous,
violent or criminal". From time to time they will include mentally disordered
offenders, transferred from prison under the provisions of section 47(1) of the
1983 Act. Whilst section 47(1) of the Prison Act 1952 (as amended), empowers the
Secretary of State for the Home Department to make rules for "the regulation and
management of prisons" (The Prison Rules), there is no similar provision in the
Mental Health Act, or in the legislation relating to special hospitals and no
"Rules" for their regulation and management.
But Mr Fitzgerald QC submitted that section 137(2) of the 1983 Act conferred
express authority on the Hospital Authority to require routine (and if necessary
random) searches of patients. Moreover, when the first Respondents came to make
the Policy they stated:
"3.1 The legal powers for staff to search patients have not been
expressly laid down in statute. However, legal advice is that staff
acting in good faith and with reasonable care, are entitled to conduct
searches to maintain security and prevent harm ... The opinion is
based upon various statutory provisions including section 137 of the
Mental Health Act 1983..." (My emphasis).
The side heading to section 137 indicates that the section contains provisions
relating to "custody, conveyance and detention". Section 137(2) provides that:
"A constable or any other person required or authorised by ... this
Act to take any person into custody, or to convey or detain any person
shall, for the purposes of taking him into custody "or "conveying or
detaining him, have all the powers, authorities, protection and
privileges which a constable has within the area for which he acts as
constable."
Mr Fitzgerald submitted that the powers conferred by s 137(2) are not limited to
situations where patients are in transit and places no limit on the types of
detention covered by the subsection. Thus, it is said, in relation to a patient
admitted under the 1983 Act, s 137(2) confers the powers of a constable on the
Hospital Authority and these powers include the powers of search conferred by
(for example) the Police and Criminal Evidence Act.
I reject this submission for the following reasons:
(i) By s 137(1) of the Act a "... person ... authorised by ... this Act to be
conveyed ... kept in custody or detained in a place of safety ... shall, while
being so conveyed, detained or kept ... be deemed to be in legal custody". This
deeming provision serves no practical purpose in respect of patients already
detained in hospital by virtue of the 1983 Act. The individual sections
governing admission make such detention lawful.
(ii) s 138 of the Act confers powers on certain constables and social workers to
retake patients held in legal custody by virtue of s 137 when those patients
escape. But s 18(1) of the Act confers powers on ... social workers, officers of
the staff, constables or authorised persons to take into custody and return to
hospital a patient liable to be detained "under this part of the Act (Part II)
in a hospital" where that patient:
"(a) absents himself from the hospital without leave ..."
This suggests that the detention "in hospital" under Pt II of the Act is a
different concept to detention by virtue of s 137.
(iii) s 128 of the Act creates an offence of assisting patients to absent
themselves from hospital without leave and distinguishes between those held in
hospital and those held by virtue of s 137. Thus s 128(1) provides that:
"Where any person induces or knowingly assists another person who is
liable to be detained in a hospital within the meaning of Part II of
this Act ... to absent himself without leave he shall be guilty of an
offence."
Section 128(2) provides that:
"Where any person induces or knowingly assists another person who is
in legal custody by virtue of section 137 ... to escape from such
custody he shall be guilty of an offence."
This again leads to the conclusion that "detention" in hospital and "detention"
by virtue of s 137 are different concepts.
(iv) "All the powers ... which a constable has within the area for which he acts
as a constable" (s 137(2)), while including s 54(6)(A) of the Police and
Criminal, Evidence Act 1984 (searches of detained persons) are strictly limited
in time by s 41 of that Act. I am unable to accept that it was Parliament's
intention in s 137 to confer on hospital authorities the powers of a constable
(themselves limited by time) for an indefinite period of time.
(v) In any event it cannot sensibly have been Parliament's intention to equate
the day-to-day management powers of a Special Hospital Authority with those of a
"constable". Their functions are entirely different.
Thus I conclude that s 137(2) does not confer on a Special Hospital Authority a
random power to search without cause. The section is concerned with the
detention and conveyance of patients to hospital and is limited to that. It is
not apt to cover the regime in hospital once a patient has been conveyed there.
The requirement and power to detain in s 137(2) refers to detention outside
hospital. For example, when a court, having made a Hospital Order under s 37 of
the Act, a patient is held at court by hospital staff pending the arrival of
transport.
Implied Power
On behalf of the Applicants, Mr Gordon QC submitted that the test for
determining whether a power arises "by necessary implication" is a rigorous one,
"going far beyond the proposition that it would be reasonable or even conducive
or incidental to" an existing statutory power (R v Richmond LBC, ex parte
McCarthy [1992] 2 AC 48, [1991] 4 All ER 897 per Lord Lowry, 70H-71B of the
former report). The question, he submitted, is whether there is a "self evident"
or pressing need for the existence of an implied power (R v Home Secretary, ex
parte Leech CA [1994] QB 198, [1993] 4 All ER 539 per Steyn LJ 212E-F), provided
always that the more fundamental the right interfered with, and the more drastic
the interference, the more difficult becomes the implication of the power. The
policy under attack contemplates interference with a fundamental right since
interference with a patient's person without consent which goes beyond that
degree of physical contact generally acceptable in the ordinary conduct of daily
life amounts to an assault unless legally justified. I accept that this
formulation of principle is correct and I adopt it in the present case.
Mr Gordon submitted that the Broadmoor authorities have a power to search for
cause deriving from their power as citizens to use reasonable force to prevent
crime, to effect the arrest of persons unlawfully at large, or to prevent a
breach of the peace. He accepted that members of staff would be justified in
searching a patient where they had reasonable cause to suspect that a patient
was in possession of an implement with which he or she intended self harm; this
under the doctrine of "necessity". Here Mr Gordon referred me to the speech of
Lord Goff in In Re F [1990] 2 AC 1 [1989] 2 All ER 545 at p 74B of the former
report et seq. It does not seem to me that the principle of necessity, as
enunciated by Lord Goff in the passage cited, is apt to cover the situation
identified by Mr Gordon. In any event, I cannot accept that Parliament passed
the legislation under review intending that the powers of hospital authorities
to control mentally disordered patients could be adequately and safely equated
to the common law powers of citizens in the outside world.
When he came to reply, Mr Gordon abandoned certain of his earlier submissions
and advanced the following propositions:
(1). That the burden is on the Respondent to demonstrate a "self evident and
pressing need" to introduce a policy of without cause searches to be applied
randomly on a hospital-wide basis that admits of no exceptions whatever
notwithstanding the objection on behalf of an individual patient by that
patient's RMO on clinical grounds.
(2). The extent of any power that may be implied must be the minimum necessary
to achieve the desired purpose.
(3) The purpose of detention is treatment and under the Mental Health Act regime
treatment and security cannot be separated.
(4) There cannot, in law, be a self-evident and pressing need for any policy
that allows for no exceptions in the event of a conflict with an individual
patient's treatment.
The 4th proposition raises the central issue in the case. The history of the
legislation is relevant to any consideration of it and of Mr Gordon's
submissions generally.
The Mental Health Act 1959 (the predecessor of the 1983 Act) gave no express
powers to those managing hospitals, and to those treating patients within them,
to do any of the following:
(a) to impose compulsory treatment,
(b) to seclude patients,
(c) to search patients,
(d) to restrain patients,
(e) to deprive patients of personal possessions for their own safety,
(f) to regulate visiting.
All the functions (a) to (f) inclusive were and are necessary features of the
management of a special hospital, indeed of any psychiatric hospital. The fact
that the 1959 Act did not set out any express powers in any of these areas
suggests that in the past Parliament has been content to leave extensive areas
of patient treatment and management to necessary statutory implication.
The 1959 Act was considered by the House of Lords in R v Bracknell Justices, ex
parte Griffiths [1976] AC 314, [1975] 2 All ER 881. At page 335 of the former
report Lord Edmund-Davies referred to the 1959 Act and said:
"The Act contains frequent provision for the detention of patients, or
for their detention and treatment ... It is furthermore important to
observe that, where a person ordered to be kept in custody during Her
Majesty's pleasure (such as this respondent) is directed by the
Secretary of State, acting under section 71 of the Act, to be removed
to a special hospital, subsection (4) thereof provides that the
direction is to have the like effect as a hospital order made under
section 60, together with an order under section 65 restricting his
discharge without limitation of time. Section 60 orders are made where
the mental disorder of the named person 'warrants the detention of the
patient in a hospital for medical treatment' (section 60(1)(a)(ii)),
and that necessarily involves the exercise of control and discipline.
Suitable arrangements for visits to patients by family and friends are
an obvious part of a patient's treatment. Such visits inevitably
involve the ushering of him back to his quarters when the permitted
visiting time is ended. The appellant was accordingly acting in
pursuance of the Act of 1959 when the incident complained of occurred
...
Such, in effect, was the view expressed about this case by Lord
Widgery CJ, who said, ante, p319C-D:
'In my judgment where a male nurse is on duty and exercising his
functions of controlling the patients in the hospital, acts done in
pursuance of such control, or purportedly in pursuance of such
control, are acts within the scope of section 141, and are thus
protected by the section.'" (My emphasis)
(Section 141 of the 1959 Act provided protection for "acts done in pursuance of"
the Act. As will appear from the speech of Lord Edmund-Davies, the Bracknell
Justices case concerned the ambit of section 141. Sections 60 and 65 of the 1959
Act equate with but are not identical to sections 37 and 41 respectively of the
1983 Act).
The 1983 Act did not alter the fundamentals of the 1959 Act or the statement of
principles set out above. Part IV of the 1983 Act clarified the extent to which
treatment for mental disorder can be imposed on detained patients in hospital
and mental nursing homes. But, in all other respects of patient care and
control, the 1983 Act left the position as it had been under the 1959 Act.
The following general observations are also relevant: (i) Mr Gordon argued that
the Policy was unlawful because it eroded and impinged upon the treatment power
of the patients' Clinician or RMO. But this is inconsistent with the concession
made by him that the hospital authorities have a power to search for reasonable
cause. As Mr Parker QC pointed out, even a power to search for reasonable cause
could conflict with the treatment power of the clinician if the clinician
concluded that such a search would be detrimental to the medical treatment of
his patient.
(ii) In the absence of a consistent policy of minimum requirements throughout
Broadmoor every RMO in the hospital would be free to exempt their patients and
adopt their own policy. This would jeopardise security and create a sense of
grievance in those patients on the wards subject to the more onerous search
policies.
(iii) Broadmoor is a special hospital under section 4 of the 1977 Act for the
detention of persons who require treatment under conditions of special security
on account of their, "dangerous, violent or criminal propensities". In an
environment characterised by danger, violence and criminality, conditions of
special security must include the ability to carry out routine searches with a
view to minimising the risks to health and safety of patients and staff.
I draw the following conclusions from the whole of the above:
(1) Since "detain" means "keep in confinement" a general power to search
patients in order to prevent escape from detention must be implicit in the
express power to detain conferred by the 1983 Act;
(2) the power to exercise control which is part of the power to "detain for
medical treatment" conferred by the 1983 Act as explained by Lord Edmund-Davies
in the passage cited above necessarily implies a power to create and maintain a
safe and therapeutic environment in which that medical treatment can take place;
(3) A general power to search patients must necessarily be implied as part of
the duty to create and maintain that safe therapeutic environment. In the
exercise of that power the decision of the Hospital Authority must necessarily
prevail over an objection by an RMO on behalf of a patient on medical grounds.
The Respondents accept, in my judgment, correctly, that once it is established
that the hospital has a general power to search patients, the sole remaining
issue as to whether the Policy is lawful is one of Wednesbury reasonableness (
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223,
[1947] 2 All ER 680); that is whether such power to search may be rationally
exercised on a routine and random basis in the conditions prevailing at
Broadmoor. The Applicants have directed their argument to the first Respondent's
power to make and implement the Policy. Mr Gordon has not sought to attack the
Policy on Wednesbury grounds. I, therefore, confine myself to saying that the
Wednesbury reasonableness of the Policy here cannot be doubted, bearing in mind
the very serious risks to be prevented or reduced, the practice and experience
of other special hospitals, and the limitations of the pre-existing search
policy based upon reasonable cause or suspicion identified in the evidence.
It follows that whilst all hospitals admitting patients under the 1983 Act have
the power to make and maintain a policy such as that under review, whether that
policy is Wednesbury reasonable will depend on the circumstances in which it is
sought to be implemented. What may be reasonable for a special hospital would
not necessarily be reasonable for other institutions containing less dangerous
patients.
The Code of Practice
In reaching the above conclusion I have not overlooked policy guidance afforded
by the Code of Practice issued by the Secretary of State under section 118 of
the 1983 Act:
"25.1 Authorities should ensure that there is an operational policy on
the searching of patients and their belongings. Such a policy should
be checked with the health authority's legal advisers.
25.2 It should not be part of such a policy routinely to carry out
searches of patients and their personal belongings. If, however, there
are lawful grounds for carrying out such a search, the patient's
consent should be sought. In undertaking such a search staff should
have due regard for the dignity of the person concerned and the need
to carry out the search in such a way as to ensure the maximum privacy
..." (My emphasis)
It is accepted on all sides that the Code is not binding on the first
Respondents or the Court. It is no more than the Secretary of State's view as to
the best practice to be followed in hospitals in general. It fails to draw any
distinction between the different types of detaining hospitals covered by the
1983 Act by reference to the level of security required. To this extent, and in
view of the conclusions expressed above, the terms of paragraph 25 may be
thought to require reconsideration.
Mr Fitzgerald QC submitted that it is doubtful whether the Secretary of State
had jurisdiction to issue a Code of Practice in relation to search procedures. I
reject this submission. I prefer that advanced by Mr Parker QC on behalf of the
Secretary of State.
Section 118 of 1983 Act provides that:
"(1) The Secretary of State shall prepare ... a code of practice...
(b) for the guidance of registered medical practitioners and members
of other professions in relation to the medical "treatment of patients
suffering from mental disorder."
"Medical treatment" is widely defined and includes "care ... under medical
supervision" (s 145). In my judgment, the provision of a safe environment in
which a patient can be treated is part and parcel of the "care" and "medical
treatment" of that patient. Paragraphs 25.1 and 25.2 are clearly directed at
providing and maintaining that safe environment. It follows that the Secretary
of State had jurisdiction to make them by virtue of his power to give guidance
"in relation to the medical treatment of patients".
Conclusion
In my judgment the Policy is lawful. The power to make it must necessarily be
implied from the provisions of the 1983 Act. The Respondents have demonstrated a
self-evident and pressing need for such a power and its exercise. This
application, therefore, fails.
MR BOWEN: My Lord, in view of the length of my Lords' judgment, it would,
perhaps, involve me to make some submissions at this stage as to the question of
leave to appeal. I do ask for leave to appeal, my Lord? My Lord might have
already made up his mind, but ----
POTTS J: I never make up my mind without listening to counsel.
MR BOWEN: My Lord, I do make the application formally under Ord. 59, r.1(b) for
leave to appeal? What I would ask is: could I have more time, perhaps, to make
submissions in writing which could be addressed to my Lord via his Clerk in due
course once myself and Mr Gordon has had an opportunity to analyse my Lord's
judgment? That may be one way of doing it, but my Lord may prefer to make a
final decision today. However, I do make that application.
POTTS J: I will hear what Mr Fitzgerald and Mr Parker have to say about this
first of all.
MR FITZGERALD QC: My Lord, I do oppose it, without denying that this is
obviously a very important case and the issues are of very great importance, we
simply say, for two reasons. Firstly, that your Lordship has made a clear
finding that there is a self-evident and pressing need. There is no dispute
between the parties that that is the test. We would submit that once that is the
case, once the test is clear between all parties and your Lordship having, from
all the material, concluded that there is a self-evident and pressing need, that
this is not a case which necessarily needs to go further.
The second point we simply make, although your Lordship will be fully aware, is
that there is some need upon the part of the Special Authorities for this matter
to be resolved. Of course, I appreciate that the Applicants might decide, if
your Lordships were to refuse leave, in any event to go to the Court of Appeal.
We say, so be it. If they do go to the Court of Appeal they ought to make a
decision on that, but in the meantime the Hospital Authority does need to know
where it stands and may well wish to implement the Policy immediately. Your
Lordship is aware of the concern expressed that there may be at risk to lives
and serious injury if the Policy cannot be implemented. Those are the
submissions.
MR PARKER QC: My Lord, I adopt Mr Fitzgerald's submissions.
MR BOWEN: My Lord, I make two points. The first is, of course, if this matter is
to go to the Court of Appeal, it must do so with the greatest of expedition for
all the reasons that my learned friend, Mr Fitzgerald, has given, and the
quickest way for this matter to go before the Court of Appeal is for my Lord to
grant leave to appeal rather than requiring us to go to the Court of Appeal for
leave.
The second point I make is that while I do accept that Broadmoor would wish to
implement their Policy as quickly as possible, given that they have not had such
a Policy in the past and had managed, if I may say so, without too great a
difficulty (inaudible).
POTTS J: I do not think that is the evidence. I have spent a good deal of time
in this judgment rehearsing parts of the evidence because it seemed to me that
it should be rehearsed, and the evidence in this case strongly suggests that
what you have just said is not right.
MR BOWEN: My Lord, I do apologise for that. The point I seek to make is, given
that this is an important point, given that the Policy has not been in force in
the past, it would make more sense if this matter is quickly dealt with before
the Court of Appeal and in the meantime the status quo is preserved. However,
the important element is, of course, speed. That is why I make this application
for leave; that is why I urge my Lord to grant leave rather than requiring us to
go before the Court of Appeal.
POTTS J: Is there anything else?
MR BOWEN: My Lord, those are my submissions on that point. I only ask for legal
aid taxation in relation to costs, but that is another matter.
POTTS J: That is something to come.
MR BOWEN: My Lord yes.
RULING AS REGARDS LEAVE TO APPEAL
POTTS J: Mr Bowen, I am not prepared to grant you leave. I appreciate that this
is an important case, but I am satisfied that it is a case in which leave should
be refused. In my judgment, the legal principle is clear and it is highly
desirable that there is some finality. Therefore, if you wish to seek to
persuade the Court of Appeal to grant leave you will have to go there.
I would say this, Mr Bowen - perhaps it is unnecessary: no doubt before going to
the Court of Appeal you and Mr Gordon will give careful thought to the contents
of my judgment, bearing in mind that, presumably, the Legal Aid Fund will have
to be advised as to whether it is appropriate to grant legal aid or not.
MR BOWEN: My Lord, of course, very careful thought will be given to my Lord's
judgment.
POTTS J: That is another reason for refusing leave, it seems to me.
MR BOWEN: Yes, my Lord.
POTTS J: Do you want legal aid taxation?
MR BOWEN: My Lord, that is the only Order for costs.
POTTS J: If you require that Order from me, then you can have it.
MR BOWEN: I am obliged, my Lord.
POTTS J: Mr Fitzgerald, is there anything else that I require to do this
afternoon in this matter?
MR FITZGERALD QC: No, my Lord, the injunction had been discharged on an earlier
occasion. The only other matter is, I think, there is in force an Order that the
names be not disclosed.
POTTS J: I had something at the back of my mind, but I was not quite sure what
the present position was. I referred to them by initial. As the hearing went on,
I think it became clear to all of us that the precise circumstances in which
each of them came to be in Broadmoor were not relevant to the determination of
the case, so I dealt with them as shortly as possible. Just one moment, I am
receiving some information.
THE ASSOCIATE: My Lord, the Order was made on 3 July for anonymity and it was
without condition as to the expiry of time.
POTTS J: I am grateful to you for mentioning it because sometimes these things
get overlooked. It is simply sufficient for me to say that the Order for
anonymity stands and continues to stand until further Order.
I would like to thank all counsel for their enormous assistance in this case.
Thank you.
Application refused.
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