Text:ICLR [2017] WLR(D) 224
Court of Appeal
Regina (YZ) v Oxleas NHS Foundation Trust and another
2016 Dec 12, 13; 2017 March 29
Lord Thomas of Cwmgiedd CJ, Hallett , Underhill LJJ
Mental disorder — Patient — Detention — Patient subject to restriction order seeking judicial review of transfer from medium to high security psychiatric hospital — Proper approach of court — Mental Health Act 1983 (c 20),ss 37, 41
When a challenge is made in the Administrative Court to the lawfulness of a decision involving the transfer into or out of a high security hospital of a patient detained pursuant to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 the court will pay the highest regard to the bona fide professional judgment of the responsible clinician. Such judgment would generally be sufficient evidence on which a court could determine the lawfulness of the decision to transfer, absent compelling evidence to the contrary. Since Parliament has given a role to the Secretary of State and provided for review of detention by the First-tier Tribunal, applications for judicial review of decisions to transfer should be very rare indeed. The interposition of challenges to transfers, save in rare circumstances, would interfere with the proper operation of a carefully balanced system which seeks to protect the public from a convicted criminal who continues to pose a serious risk to the public in a way that also protected the interests of the convicted criminal. Once a decision to transfer is made, the extent of the detailed operation of that regime, such as the observations necessary for the safety of others and of the patient, is a matter for the detailed operation of the regime and not for the court (paras 83–92, 94, 95).
R (P) v Mersey NHS Trust [2003] EWHC 994 (Admin)M and R (IR) v Shetty [2003] EWHC 3022 (Admin)M approved.
R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419, CA distinguished.
Decision of McGowan J [2015] EWHC 2296 (Admin)M; [2015] MHLR 394 affirmed.
Appearances:
Richard Gordon QC and Susanna Rickard (instructed by Richard Charlton Solicitors) for the claimant.
Fenella Morris QC (instructed by Capsticks LLP) for the first defendant NHS trust.
Vikram Sachdeva QC (instructed by Bevan Brittan) for the second defendant NHS trust.
Reported by: Matthew Brotherton, Barrister