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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> W, R (on the application of) v Rampton Hospital Authority [2001] EWHC Admin 134 (14 February 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/134.html Cite as: [2001] EWHC Admin 134

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Wednesday, 14th February 2001

Wednesday, 14th February 2001

JUDGMENT
1. MR JUSTICE ELIAS:

Introduction

2. The applicant in this application for judicial review, Mr D. W., is currently detained in the Rampton Hospital. He alleges that his detention is unlawful. He says that a precondition to his lawful detention is not satisfied. Accordingly, he seeks judicial review of the decision to detain him. The particular decision in issue was one taken on 15th December 2000. He asks that that decision be quashed, and that alternatively a mandatory order be directed against the hospital requiring them to release him.

The Background

3. On 22nd August 1994, Mr W. was sentenced by the Chelmsford Crown Court to 30 months' imprisonment for offences of assault and arson. Taking account of time spent in prison on remand, he was due to be released on 8th May 1995. However, on 2nd May 1995 he was transferred to the Rampton Hospital, pursuant to section 47 of the Mental Health Act 1983. The effect of that transfer order is that he is treated as if he had been made the subject of a hospital order pursuant to section 37 of that Act, what is termed a "notional section 37 order": see section 47(3) of the Act. That in turn means that the effect is that he is to be dealt with as though he had been detained pursuant to section 3 of the 1983 Act, with certain modifications: see section 40(4) of the Act, read together with Schedule 1. The upshot of all this is that he was lawfully detained in hospital when his sentence ended. The category of mental disorder was said to be psychopathic disorder.
4. Detention under the hospital order has to be renewed in accordance with section 20 of the Act. The order automatically comes to an end after six months, unless renewed, and it may then be renewed initially for a further six months and thereafter annually. The responsible medical officer must certify that the criteria for detention can continue to be made out. These criteria include a requirement that the disorder be treatable. It is that requirement, or precondition, which it is said has not been met in this case. I will come back in due course to analyse that requirement in more detail.
5. Mr W.'s detention was renewed following an assessment made by the responsible medical officer Dr Page, on 4th May 2000. At that time, Mr W. was under investigation in relation to two allegations of assault within the hospital, which had occurred on 10th and 16th January 2000. These related to attempts to strangle another patient and a member of the nursing staff. On 3rd August 2000, Mr W. was prosecuted in respect of these two assaults; the offences being assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. Mr W. had pleaded guilty to the assaults and he was sentenced to two months' imprisonment for one assault and three months for the second assault, the two sentences to run concurrently. The magistrates had before them a letter from Dr Page, written on 2nd August 2000, which is an important document in this case and I will deal with it in more detail later.
6. The prison sentence came to an end in mid-September 2000, and Mr W. was then returned to the Rampton Hospital. It was accepted that his return was lawful and in accordance with the terms of the mental health legislation. On his return, he was assessed again by Dr Page, who confirmed that the criteria for detention had been made out. That was on 15th September 2000, and that is the decision which is the subject of challenge. It appears that, strictly, it may not have been necessary for that further assessment to have been made, and it is possible that Dr Page was acting under a misapprehension that such an assessment was necessary by virtue of section 21B of the Mental Health Act. Be that as it may, the assessment was made and resulted in the continued detention of Mr W..
7. Following his return to Rampton, consideration was given by the medical and other experts as to the best form of treatment for him. On 25th September 2000, he was offered treatment at Broadmoor Hospital, following an assessment that had occurred, and on 23rd October 2000, he was assessed as being suitable for treatment in the Personality Disorder Service. He had already been subject to some treatment as a day patient prior to that decision being taken. I have not, in setting out that chronology, dealt with all the various meetings and other events which occurred in that time period, but I will touch upon some of them when I consider the submissions made by the parties.

The Legal Background

8. The statutory provision in issue here is section 20(4) of the 1983 Act, but to put it in context I will also refer to subsections (3) and (8) of that section. Subsection (3):

"(3) Within the period of two months ending on the day on which a patient who is liable to be detained in pursuance of an application for admission for treatment would cease under this section to be so liable in default of the renewal of the authority for his detention, it shall be the duty of the responsible medical officer -

(a) to examine the patient; and

(b) if it appears to him that the conditions set out in subsection (4) below are satisfied, to furnish to the managers of the hospital where the patient is detained a report to that effect in the prescribed form; and where such a report is furnished in respect of a patient the managers shall, unless they discharge the patient, cause him to be informed.

"(4) The conditions referred to in subsection (3) above are that -

(a) the patient 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; and

(b) such treatment is likely to alleviate or prevent a deterioration of his condition; and

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained ..."

9. Subsection (8):

"(8) Where a report is duly furnished under subsection (3) ... the authority for the detention ... of the patient shall be thereby renewed for the period prescribed in that case by subsection (2) above."

10. The provision which is the focus of this challenge is subsection (4)(b), namely that the treatment must be likely to alleviate or prevent a deterioration of the patient's condition. That provision has been the subject of some consideration by the courts. In Reid v Secretary of State for Scotland [1999] 2 AC 512 it was considered by the House of Lords in relation to an appeal from Scotland. The case concerned the Scottish legislation, which is similarly worded to that in England. Lord Hope of Craighead referred to the definition of "medical treatment", found in section 125 of the Scottish Act and section 145 of the English legislation, which is as follows:

"Medical treatment includes nursing, and also includes care, habilitation and rehabilitation under medical supervision."

11. He then, having made reference to that definition, continued as follows at page 531B:

"The expression 'medical treatment' is, as I have said, given a wide meaning by section 125(1) of the Act. It includes nursing and it also includes care and training under medical supervision. The width of the expression is not diminished where it requires to be examined in the context of the 'treatability' test. Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them."

12. Lord Clyde, at page 542, after referring to the concept of medical treatment, said this:

"It is defined in section 125 of the Scottish Act as including nursing and also care and training under medical supervision. In section 145 of the English Act it is defined as inclusion nursing, and also care, habilitation and rehabilitation under medical supervision. Plainly the expression is wide in its scope. The inclusive character of the definition allows of other things to be comprehended in it and it was not suggested that the particular things noted in the English definition would not also fall within the scope of the Scottish definition, as indeed may much else."

13. The concept of treatability was also considered by the Court of Appeal in the case of R v Canons Park Tribunal ex parte A [1995] QB 60. The effect of that decision was overruled by the decision in the Reid case, but the consideration by the court of the concept of treatability was not affected by that decision. Roch LJ, at page 81, said this, in relation to the concept of treatability:

"I would suggest the following principles. First, if a tribunal were to be satisfied that the patient's detention in hospital was simply an attempt to coerce the patient into participating in group therapy, then the tribunal would be under a duty to direct discharge. Second, 'treatment in hospital' will satisfy the 'treatability test' although it is unlikely to alleviate the patient's condition, provided that it is likely to prevent a deterioration. Third, 'treatment in hospital' will satisfy the 'treatability test' although it will not immediately alleviate or prevent deterioration in the patient's condition, provided that alleviation or stabilisation is likely in due course. Fourth, the 'treatability test' can still be met although initially there may be some deterioration in the patient's condition, due for example to the patient's initial anger at being detained. Fifth, it must be remembered that medical treatment in hospital covers 'nursing and also includes care, habilitation and rehabilitation under medical supervision'. Sixth, the 'treatability test' is satisfied if nursing care etc. are likely to lead to an alleviation of the patient's condition in that the patient is likely to gain an insight into his problem or cease to be unco-operative in his attitude towards treatment which would potentially have a lasting benefit."

14. It is plain from both these authorities that the concept is a very wide one, and that the responsible medical officer making the assessment can look to the future and consider whether the treatment is likely, in the future, to achieve beneficial results.
15. Mr Gledhill, for the claimant, recognises that in this case Dr Page has on two occasions, both on 4th May and again on 15th September, stated in terms, on the appropriate form that the treatability test is satisfied. In other words, that in her opinion the mental disorder is of a nature which treatment is likely to alleviate or prevent from deterioration. He does not question Dr Page's good faith in making those statements, but he submits that she must have misunderstood the legal condition which has to be met. He says that if one looks at other documentation, in which she has expressed her views of the position, it is plain that she has confused the hope that treatment will alleviate or prevent deterioration with the belief that it is likely to have that result. He recognises that, if he is right, then the consequence is that Mr W. should be released into the community, notwithstanding that there is significant evidence to support the view that he is a continuing danger to the public.
16. But he submits, and I accept, that that is a consequence of the fact that there is no right to detain someone merely because they pose a danger to the public, the treatability test has to be satisfied. This is far from satisfactory, because of course it means that the court may be required, in effect, to direct the release of somebody who is a real danger to the public. Plainly the court cannot be sanguine about taking that step. Nevertheless, as Mr Gledhill quite correctly reminds me, if the treatability test is not satisfied then it is my duty to apply the law as laid down by Parliament and not to make good any deficiencies in the legislation.
17. The position has been rectified in Scotland, where the Scottish Parliament passed the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, but as yet no similar legislation has been passed in England. Accordingly, I accept that, however unsatisfactory the consequences, if the relevant treatability condition is not complied with then there is no power to detain Mr W.. I also accept that it would be wrong for me to distort the analysis of the evidence so as to give an improperly favourable view to the material in order to prevent an unsatisfactory result being achieved.
18. I turn then to consider the material on which Mr Gledhill relies in seeking to substantiate his contention that Dr Page has, in essence, applied the wrong test of treatability. First, he refers to a meeting of 5th May 2000, that is the day after Dr Page had signed the renewal of authority form. This meeting was a care programme approach review meeting, dealing specifically with Mr W.. In the course of that meeting, Dr Page is reported as having said that it is suggested that he is not benefiting from treatment in hospital. Then later, the minutes of the meeting report Dr Page as saying that:

"... there was very little evidence that he was amenable to treatment."

19. Mr Gledhill then secondly puts considerable weight on the letter of 2nd August, to which I have made reference, which Dr Page sent to the magistrates. It is right to say, as Ms Stern for the respondent has emphasised, that in writing this letter Dr Page was not considering the statutory concept of treatability, rather she was writing the letter to make the court better informed as to the way in which they may wish to deal with Mr W.'s case. But in the course of that letter, Dr Page said this:

"Mr W. suffers from a severe personality disorder with antisocial traits, with a risk of serious harm to others. There is little evidence that he has benefited from hospital treatment or that treatment has prevented a deterioration. He needs to accept responsibility for his actions (and be held accountable by the Criminal Justice System) before he could become amenable to treatment. Mr W. is aware of this advice and has expressed a preference for a prison sentence rather than hospital treatment."

20. Mr Gledhill submits that this makes it plain that not only is Dr Page saying that there is little evidence that there has been any past benefit resulting from the treatment that Mr W. has received, but that any future treatment has only any realistic prospect of being successful if Mr W. accepts responsibility for his actions.
21. Third, reliance is placed on the statement which is made by Dr Page in the form which comprises the authority for detention of 15th September, that is the decision under challenge. It is necessary for the responsible medical officer to indicate whether other methods of care or treatment, such as outpatient treatment, are available, and if so why they are not appropriate, and why informal admission is not appropriate. But in the course of responding to that requirement, Dr Page wrote this:

"His insight and ability to engage in treatment are limited."

22. Mr Gledhill submits that this was, of course, an assessment made after Mr W. had returned from prison and it indicates that Mr W. had not, as a consequence of his imprisonment, become any more ready to accept responsibility for his actions. Finally, Mr Gledhill also relies on a psychiatric report on Mr W., made by Dr Page on 5th December 2000, where Dr Page stated that:

"... there was no significant change in his clinical condition in prison."

23. Again, Mr Gledhill says that this shows that the required change in Mr W.'s attitude to his behaviour had not been achieved, and that this was being recognised in that report by Dr Page. Taking all these matters together, Mr Gledhill submits that it is plain that no successful treatment had in fact been given to Mr W., and that moreover, there was no prospect that he would be amenable to treatment given that the evidence was that he had not learnt to take any responsibility for his actions which, according to the letter of 2nd August, was a precondition to effective and beneficial treatment being given to him.
24. Ms Stern, for the respondent hospital, made a number of submissions in response to this. She pointed out that, both on 4th May and on 15th September, Dr Page had formally and in terms stated that the treatability test was satisfied. She did, however, accept that that would not be conclusive if the other material, relied upon by the claimant, did properly lead to the conclusion that Dr Page must have been applying the wrong test. But Ms Stern says that the other material, far from disclosing that the wrong test has been adopted, suggests that the treatability requirement manifestly was met in the circumstances of this case.
25. She puts her submissions on this point in two different ways. First, she says that there is clear evidence that some treatment had been beneficial to Mr W., and that it could be assumed that that benefit would continue. She recognised that, in the letter of 2nd August, Dr Page had said in terms that there was little evidence that Mr W. had benefited from the treatment. But she made two points in response to that. Firstly, she said that he was not saying that there was no evidence of any benefit but only little evidence; and secondly, she submitted that, in essence, what Dr Page was indicating was that there had not been the significant improvement which would satisfy a professional psychiatrist, but that that did not mean that there had not been some improvement which would satisfy the low threshold of the treatability test, as enunciated in the authorities to which I have made reference.
26. Further, she says that in any event the letter of 2nd August, and indeed the comments in the form on the 15th September, are both looking at the historic position, whereas the key question under the treatability test is to identify whether treatment in the future is likely to alleviate or prevent a deterioration of the patient's condition. She says that there plainly is evidence that Dr Page, and indeed many others involved in the treatment of Mr W., have taken the view that such beneficial treatment can be provided: witness the proposals for further treatment at Broadmoor and in the Personality Disorder Service.
27. As to the past beneficial effects, Ms Stern referred me to passages in a number of the documents which she submitted supported this conclusion. She made reference to the meeting of 5th May, to which I have already referred, in which it is stated that:

"... nursing care plans include identification of anger management techniques to promote more socially acceptable behaviour."

28. It was also noted that:

"... Mr W. had been encouraged by the facilitation of Occupational Therapy sessions on the ward and takes an avid interest."

29. In that same meeting there is a reference to the following interchange:

"Dr Page asked if he was better when he was kept busy. Mr W. agreed."

30. Ms Stern also referred to a file note relating to a discussion which was held between the Governor of Lincoln Prison, where Mr W. had served his three-month sentence, and Dr Page. It was reported that Mr W. may be deteriorating in prison, and the note records that:

"It was agreed that if Mr W.'s condition deteriorates he can be reassessed and consideration can be given to transferring him back to hospital under section 47/49."

31. Ms Stern says that that supports the view that the treatment he had been having had been having some beneficial effect, if only that it was stabilising the position and preventing further deterioration. Ms Stern then referred also to the psychiatric report of 5th December made by Dr Page, again to which I have already made reference. In the course of that report Dr Page had noted that there had been:

"... limited evidence that Mr W. was benefiting from treatment", and had referred to the other treatment plans which it was thought would benefit Mr W. in the future.

32. In the course of that report, in the summary and opinion at the end, Dr Page in terms stated that Mr W. should be detained in hospital because treatment was likely to alleviate or prevent a deterioration in his condition. Finally, Ms Stern also referred to an affidavit, which has been sworn by Dr Page for the purposes of these proceedings. In the course of that affidavit, at paragraph 8, Dr Page said this:

"In my letter dated 2nd August, I stated that Mr W. needed to accept responsibility for his actions and be held accountable by the Criminal Justice System, before he could become amenable to treatment. Any comments which I made as to the success of treatment of Mr W. in the past must be viewed in this context. Mr W. has certainly in the past, on occasions, shown that he is amenable to treatment and that this can alleviate his condition. In this regard I refer to page 6 of my report (KPI p.6) [that is the report of 5th December] which refers to Mr W.'s condition having improved in November 1998 such that he was transferred to a Villa Ward (albeit for only a short time). Mr W.'s condition is such that he requires a structured treatment programme and he may well be more receptive to treatment in the future. In saying this I recognise that treatment has only conferred limited benefits in the past, and this is largely because of Mr W.'s variable engagement with treatment."

33. Reviewing all this evidence, I am satisfied that, although the material discloses only very limited benefits to Mr W. of the treatment that he has received, there is enough evidence to show that Dr Page could properly have reached the view that the treatability criteria had been made out. I accept that the evidence of improvement is limited, but inevitably I put some weight on the affidavit which has been sworn by Dr Page in these proceedings. In my view, the material that has been provided, and to which I have made some reference, does bear out the limited benefits which Dr Page says have been achieved.
34. I should add that, in any event, it seems to me that whatever the benefit of the treatment meted out in the past, and which it is reasonable to assume, will achieve similar benefits in the future, there is evidence that further and different treatment might alleviate the condition or prevent a deterioration of it. I have referred to the proposals, initially for treatment at Broadmoor Hospital and subsequently for treatment in the Personality Disorder Service. Those are treatments with which Dr Page concurs.
35. I recognise that it may be said that those treatments have been proposed in hope rather than out of experience, and that it is possible that the various medical officers and social workers recommending such treatment do not necessarily believe that it is likely to achieve any benefits for Mr W.. But there are passages in the documents before me which make it plain that there is a belief that they will bring about an improvement: I refer, for example, to a letter which Dr Page wrote to the Medical Director of Broadmoor Hospital, in which she states:

"The view of the clinical team is that Mr W. would benefit from an alternative placement."

36. That is making a reference to Broadmoor Hospital. Again, Dr Page has said, in terms, in the affidavit to which I made reference, that:

"Whilst treatment has had limited benefit in the past, it is my professional opinion that treatment in hospital is likely to alleviate or prevent a deterioration in Mr W.'s condition."

37. In my view, therefore, Dr Page has not misdirected herself in the way she has approached the condition of treatability. She has reached a conclusion that the criterion is satisfied, and there is evidence which is sufficient to sustain that belief. Accordingly, this application fails.
38. I should add that Mr Gledhill had submitted that if the treatability criteria were not met then the letter of 2nd August itself constituted a discharge under section 23 of the Mental Health Act. That seems to me to be an impossible argument to sustain. Section 23 requires:

"... an order in writing discharging [the patient] from detention ..."

39. It is plain that the letter of 2nd August was not such a letter, it was not even directed to the claimant or to the hospital managers. It was simply a letter to the magistrates informing them whether Mr W. was fit to face a custodial sentence.
40. I accept Ms Stern's submissions that such vague intimations that are given in the letter of 2nd August could not possibly be construed as discharge orders, otherwise the operation of the Act would, as she puts it, descend into chaos. In fairness to Mr Gledhill, this argument was not pursued with any enthusiasm, and in my view rightly so. But in view of my finding on the first point, I need say no more about it.
41. MR GLEDHILL:Ancillary matters, my Lord.
42. MR JUSTICE ELIAS:Yes.
43. MR GLEDHILL:Mr W. has the benefit of public funding, so I would ask for a legal aid detailed assessment, and I trust that the appropriate form is within the file. If not, I will certainly make sure it is.
44. MR JUSTICE ELIAS:(Discussion with clerk).
45. MR GLEDHILL:There is certainly a copy of it in the bundle.
46. MR JUSTICE ELIAS:Right, then that should be all right.
47. MR GLEDHILL:It is there. I am obliged.
48. My Lord, the second question is that of permission to appeal. The test at present, or the new test, is even if your Lordship thinks that the appeal has some prospect of success, which I accept that unless your Lordship has changed your view in the last 30 seconds is not going to be a successful ground for appeal, but the other ground is whether there is some compelling reason for the Court of Appeal to deal with this matter.
49. In my submission, that part of the test is satisfied because of two grounds, essentially. First of all, this has been phrased as a "judicial review application". It could, perhaps, have been phrased as a "habeas corpus application", on the basis that there was inadequate evidence to support the detention, which is in the "no evidence" rule as to habeas corpus. If that had been done, permission to appeal would not have been required: there is a right to appeal in situations like that. So that is a matter that I pray in aid.
50. Secondly, your Lordship's judgment, in essence, is an assessment of the factual material that has been placed in front of the court in a review of Dr Page's assessment of that factual material. Because it affects the liberty of Mr W., and because it also affects, perhaps, the way that letters to courts are phrased and the effect of letters to court, and so on, matters of that nature, in my submission, are sufficiently important in the context of the mental health legislation, which does affect a large number of people and is developing at present, there being a review of the legislative scheme and so on, that it is appropriate for the Court of Appeal to look at this matter, despite your Lordship's conclusions on the matter.
51. So I ask for permission to appeal on that basis.
52. MR JUSTICE ELIAS:Is the problem not -- if you are right on the habeas corpus point, does that mean that every detention which is subject to some sort of challenge would automatically go up to the Court of Appeal?
53. MR GLEDHILL:No, it is a factor to be taken into account. Had I phrased it as "habeas corpus" it would have been dismissed, essentially for the same grounds, but your Lordship would have found a sufficiency of evidence to justify the detention. There is some case law which suggests that judicial review ought to be used in preference, and that is why the action was brought as a judicial review. But Mr W., perhaps, ought not to be disadvantaged from having the matter considered further, because he has followed a preference expressed by the courts to use judicial review, rather than the perhaps blunter tool and less satisfactory tool of habeas corpus. I do not say that gives him a right to have it heard further, because of course he has chosen to go by judicial review, but that is a factor I say should be taken into account.
54. MR JUSTICE ELIAS:All right. No I am afraid not, Mr Gledhill. I think this does turn very much on its facts, as is clear from my judgment. I do not really think there is any point of principle involved, so I refuse leave. Can I thank you both for the very helpful submissions you have made and for the tutorial on mental health law.
55. MS STERN: My Lord, before you rise, I would like to ask for our costs before it is treated as done and dusted. I would ask for our costs against the claimant on the usual -- I call it the "football cause order", and I am afraid I do not know the precise terminology. It used to be "not to be enforced without leave of the court", but it is just that order with the new language which I think is "not to be enforced ...
56. MR GLEDHILL:I think it is "adjourned to an assessment by the legal aid ...
57. MR JUSTICE ELIAS:I am sure the associate is here:

"Termination of the applicant's liability for payment of such costs be postponed pending further application."

58. MS STERN: That is precisely what I would like to ask for then.
59. MR JUSTICE ELIAS:I suppose you do not object to that.
60. MR GLEDHILL:No, certainly not, my Lord.
61. MR JUSTICE ELIAS:Then you have that order for costs on that basis. As I say, thank you both very much.
62. MR GLEDHILL:I am obliged.