H, R (on the application of) v Ashworth Hospital Authority [2001] EWHC Admin 872 (30th October, 2001)

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England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> H, R (on the application of) v Ashworth Hospital Authority [2001] EWHC Admin 872 (30th October, 2001)
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Cite as: [2001] EWHC Admin 872

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ROBERT H, EX P. v ASHWORTH HOSPITAL AUTHORITY [2001] EWHC Admin 872 (30th October, 2001)

		Neutral Citation Number: [2001] EWHC Admin 872

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

CO/41/2001
The Royal Courts of Justice
The Strand
LONDON WC2A 2LL

30 October 2001

B e f o r e :

SIR CHRISTOPHER BELLAMY QC
(sitting as a deputy High Court Judge)
____________________

THE QUEEN

on the application of

ROBERT H Claimant

and

ASHWORTH HOSPITAL AUTHORITY Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Robert Jay QC and Fenella Morris, instructed by Hogans, 10 Station Street, Rainhill, Merseyside, appeared on behalf of the Claimant
John Howell QC and Oliver Thorold, instructed by Messrs Reid Minty, 14 Grosvenor Street, London W1K 4PS, appeared on behalf of the Defendant
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

The issue

The claimant, Robert H, is a patient detained under section 3 of the Mental Health Act at Ashworth Hospital. He has been diagnosed as suffering from a psychopathic disorder. A “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned (section 1(2) of that Act). A person suffering from such a disorder may only be admitted to treatment if such treatment is likely to alleviate or prevent a deterioration of his condition (section 3(2)(b)).

Ashworth Hospital is one of three special hospitals (the other two being Broadmoor and Rampton) established under section 4 of the National Health Service Act 1977 for persons so detained who in the opinion of the Secretary of State require treatment under conditions of special security on account of their dangerous, violent or criminal propensities. The defendant, Ashworth Hospital Authority, is responsible on behalf of the Secretary of State for the provision of high security psychiatric services at Ashworth Hospital pursuant to regulations made under that Act.

The claimant is a carrier of hepatitis C and states that he is a practising homosexual. In this application for judicial review he challenges one (but only one) of the defendant’s Hospital Patients’ Relationship Policy, namely the policy that condoms are not issued.

The challenge is mounted on three grounds (i) it is illegal because it admits of no exceptions; (ii) it is irrational; and (iii) it is in breach of Articles 2 and 8 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”).

The admission criteria at Ashworth Hospital

The kind of patients for whom Ashworth Hospital is appropriate is illustrated by the following extracts from the hospital’s Admissions Criteria:

“3) Dangerousness

The high levels of care and observation at Ashworth Hospital can only be justified when the highest levels of security are required, and a lesser degree of security would not provide a reasonable safeguard to the public. It is an unacceptable infringement of a patient’s civil rights to detain them in a higher level of security than they require. The special security available within Ashworth Hospital is of such a kind and degree to detail patients who, if at large, would present a grave danger to the public and who could not be safely contained within the security available at a regional secure unit.

Factors the Admission Panel Consider

In considering what represents grave danger requiring conditions of special security, one or more of the following factors, in addition to mental disorder, must be present before admission to Ashworth Hospital can be contemplated.

a. Serious unprovoked or random assaults on members of the public.

b. Serious sexual assaults on members of the public.

c. Aggressive feelings towards a particular person which, in the absence of that person, may be replaced by serious violence to others (displaced aggression).

d. Psychotic symptoms involving specific people which could lead to violent acts against them.

e. Arson.

f. The use of poison or drugs to cause harm to others.

g. Persistent, scheming, determined absconding.

...

h. Sadistic behaviour.

i. Use of firearms, knives, explosive devices, missiles and other weapons.

j. Hostage taking.

This list is not meant to be exhaustive, nor should it be used simply as a checklist. Each case is considered on its own merits, taking full account of patterns of behaviour including escalation of dangerousness and such clinical factors as the presence of sadistic sexual fantasies with an inclination to act on them.”

The Patients’ Relationships Policy

The defendant’s Patients’ Relationships Policy was adopted in October 2000. I quote it as fully as necessary:

“1. AIM AND OBJECTIVES

1.1 Patients are admitted to Ashworth Hospital to be treated for mental disorder in conditions of high security as they are considered to present a grave and immediate risk to others. The Hospital has certain statutory functions and implied responsibilities, and it is necessary to have the Patients’ Relationship Policy as set out below.

1.2 This policy provides for the management of relationships between patients and between patients and visitors in Ashworth Hospital. It aims to:

(i) Clarify what behaviour is defined as acceptable and unacceptable within relationships between patients and between patients and visitors.

(ii) Provide a framework of procedures to manage relationships and their consequences.

(iii) Provide a framework of accountability and clinical practice which ensures that direct care staff are supported in working to the hospital policy.

(iv) Apply the Policy consistently across the Hospital.

2. DEFINITION AND SCOPE

2.1 The relationships addressed by this policy are defined as attachments between two persons of the same or opposite gender that may or may not include the following qualities: feelings of love, specialness, caring, exclusivity, romance, sexual attraction, secretiveness. These qualities may be unevenly shared between the two parties. This policy is intended to address issues which may result from relationships between patients and between patients and visitors.

3. PRINCIPLES

3.1 Forming relationships is a normal human activity. The importance of relationships must be recognised.

3.2 By the nature of the policies and procedures that are necessary the hospital environment imposes restrictions on individual patient’s privacy, on the time that the patients may spend together and the availability of appropriate partners.

3.3 Patients come to the hospital with a range of disorders and problems related to their mental health. Some patients have histories of offences or behaviours involving sexual and/or physical violence, abuse, exploitation, intimidation. There are also patients who have been the victims of such violence, abuse, exploitation, intimidation and continue to be vulnerable.

3.4 Previous experience within Ashworth Hospital has demonstrated the adverse consequences of sexual relationships between patients and the risks associated with sexual relationships.

3.5 The hospital will operate a no sex policy.

3.6 This policy also promotes an environment which aids in the prevention of the transmission of blood borne viruses.

3.7 In order to manage relationships it is essential that the issues raised by intimate relationships and the sexual feelings of patients are not avoided but openly and sensibly addressed so that patients and staff must be consistent in their approach to relationships and must be made aware of the dangers of inappropriately expressing moral or ethical opinions or beliefs towards patients which are inconsistent with hospital policy.

3.8 Staff who work closely with a patients and particularly those in the clinical team of a patient, will take responsibility for any information given to them of a developing relationship and subject it to full assessment. Plans for the management of the relationship should be clearly documented in the care and treatment plan. The clinical team for each individual must ensure that each patient understands as fully as possible the boundaries for their behaviour in the relationship. Staff will have access to relevant and effective supervision for this aspect of their work.

4. SPECIAL CONSIDERATIONS OF SECURITY AND RISK MANAGEMENT WITH HIGH SECURE HOSPITALS

4.1 Ashworth has had experience of the serious consequences of inconsistent policies and policies that have been inconsistently applied. Previous enquiries have highlighted this and recommended particular stringency around the application of policies. Recent enquiries have also been followed by the issuing of Security Directions which have described in detail policies relating to the searching of patients, the searching of their possessions, the management of those possessions, the searching of rooms and have led to rigorous controls around patients’ possessions whilst in Hospital.

4.2 The Relationships policy must take into account the existing Security Policies and the paramount importance of consistency in the application of policies within the high secure setting.

4.3 There is an acknowledged risk that unacceptable sexual activity may occur between patients whilst they are within the Hospital. This Policy manages, but cannot remove that risk. The management of the risk involves proper supervision, detailed care planning and the outcomes of other policies that have been introduced for reasons related to the general care and treatment and security of patients, staff and public. It is the responsibility of all staff to ensure that there is no breach of this Policy.

4.4 In institutions such as prisons, condoms have been issued to manage the health risk of high risk sexual behaviours. Condoms are considered within the high secure hospital to represent a security risk in relation to secretion of prohibited items, and the possibility of their use in harm to self and others. They are therefore not allowed in the possession of patients. If found they would be removed on the basis of the risk to security. The presence of a condom if found during a routine search procedure or checking of possessions would lead to the consideration of their being a risk to security or a risk that high risk sexual behaviour was occurring. Staff are expected to respond appropriately within the Security Policies and the Relationships Policy.

4.5 Condoms are not issued. Their issuing would place those staff involved in a position where they were not able to follow policies consistently and would place serious tensions and possibly compromise multi-disciplinary working arrangements with the Hospital.

5. REVIEW MECHANISMS

5.1 In the event of a dispute between clinicians or between the patient and clinician in relation to decisions under this policy those concerned at any time may seek a review of such a decision by the Medical Director or his/her deputy. That will take into account any representation by the patient and any member of staff and make a decision having regard to all of the circumstances and the application of the policy.

6. BEHAVIOUR DEFINED AS ACCEPTABLE AND UNACCEPTABLE

6.1 The policies and procedures of the hospital dictate that patients are not allowed to be with other patients in ward and rehabilitation areas unless under observation by staff. The patients must be encouraged to behave in a way that reflects this. Physical contact such as hugging and kissing may be acceptable in certain circumstances whereas intimate contact with others including sexual intercourse is not acceptable. Open mouth kissing is not acceptable.

6.2 For an individual masturbation is viewed as a normal outlet for sexual feelings provided it is discreetly conducted in the relative privacy of the patient’s own room. In any other context, it would be viewed as unacceptable.

6.3 Expectations of acceptable conduct apply to contact between people of the same or different genders.

6.4 Hospital policies and procedures allow that patients granted grounds access may meet other patients within the secure area with a lower level of staff observation. However the policy continues to apply to them. It is expected that patients will not be granted grounds access where a risk assessment raises significant concerns that they may engage in unacceptable relationships when unobserved. (See Grounds Access Policy.)”

The part of the policy that is in issue in these proceedings is the prohibition on condoms which is dealt with at paragraphs 4.2 to 4.5. The no-sex policy explained in paragraphs 3.3 to 3.6 is not challenged.

The claimant’s evidence

The application is supported by the claimant’s witness statement of 18 May 2001. He states that since he was admitted to Ashworth Hospital in November 1996 he has engaged in sexual activity with other patients, even after the diagnosis of hepatitis C in January 1998, and continues to be so engaged. He alleges that he knows of three other patients in his own ward and “at least twenty” patients in the Ashworth Hospital North Campus who engage in homosexual activities with other patients. He states that although the defendant maintains that patients are kept under observation, at times this observation falls to an extent which gives patients the opportunity to indulge in active sexual behaviour. He claims that in October 2000 his patient care team approved the use of condoms in his case.

There is also a witness statement by Dr Akintunde Olufolahan Williams, who was a consultant psychiatrist at Ashworth Hospital from November 1985 to April 1997. He states that despite close monitoring and observation of interactions between patients, it is unlikely that all interactions, especially sexual activities, would be witnessed by staff, especially between patients on ground parole or during social and recreational activities.

The claimant further relies on a report by Dr N J Beeching, Senior Lecturer and Honorary Consultant in Infectious Diseases at the Regional Infectious Disease Unit, University Hospital, Liverpool. Dr Beeching has been testing the claimant since August 1997, when hepatitis C was first diagnosed. It appears that the claimant has not himself suffered the effects of hepatitis C but he is a carrier of the hepatitis C virus. Dr Beeching states:

“Double anti-viral therapy has currently been recommended for certain categories of hepatitis C carriers by the NICE Committee and it is possible that Mr H may be eligible for this in the future, pending [the] result of further investigations. In the meantime he continues to carry the virus and will undoubtedly be an infection risk to others should he share needles, any injecting paraphernalia, razors, toothbrushes and perhaps even sharp implements such as nail scissors which might draw blood. The risk of transmission of hepatitis C to others by other casual contact is effectively nil. There is a small risk of transmission by sexual activity, although this is difficult to quantitate. In the past it was thought that up to 5% of long-term spouses of hepatitis C positive males acquired hepatitis C from their partners sexually over a period of many years. Even this relatively small risk is now believed to be lower than 5%, as these early studies did not rule out other means of hepatitis C transmission in the household. Similar methodological constraints apply to published studies of the hepatitis C risks in anally receptive male homosexuals, in whom the risk of being hepatitis C positive may be up to twice that of homosexuals who do not have anal intercourse. Current thinking remains imprecise and suggests that there is a small long-term risk from receptive anal sex, and which reduces sequentially for anal penetrative sex, oral receptive sex, oral penetrative sex and mutual masturbation. In the latter category the risk is probably minimal. It is presumed that any risk is reduced by the use of condoms.”

The defendant’s evidence

Dr Diane James, the Medical Director of Ashworth Hospital, has prepared two witness statements dated 23 May 2001 and 18 June 2001. Dr James’s evidence is supported by that of Dr Peter Gravett, who is a Consultant Psychiatrist at Ashworth Hospital, and Chairman of the Medical Advisory Committee on which all consultants are represented. The defendant’s evidence may be summarised as follows.

— The defendant’s view of the claimant’s statements

Dr James states that the claimant is on a ward for those suffering from personality disorders. She questions the weight to be accorded by the court to the claimant’s evidence in circumstances where he is suffering from a psychopathic disorder, and states that clinicians dealing with allegations by such a patient would always seek independent corroboration. Dr Gravett also cautions against accepting the claimant’s evidence in relation to his own sexual activity without uncorroborated evidence in support.

It is strongly denied by Dr James, who has had the allegation double checked, that the patient care team has ever approved the use of condoms for the claimant. Dr James states that she has been informed by Dr Hughes, the Medical Officer in charge of his care team, that the claimant has been repeatedly told that he is not allowed sexual relations, either homosexual or heterosexual According to Dr James, the claimant is quite capable of entering into exploitative relationships, and has stated to Dr Hughes that, if he were to be released from hospital, he would be a danger to children up to the age of 16. Dr Hughes doubts whether the claimant would be able to cope with unwelcome sexual advances from other patients.

— The patients at Ashworth

There are currently about 405 patients at Ashworth Hospital, of whom the “restricted” patient population is 306, both men and women.

Ashworth Hospital has to care for a large number of individuals with mental disorders, many of whom have had experience of physical and sexual abuse and a significant group of whom have history of being perpetrators of sexual offences or behaviour which could be deemed sexually abusive. A high proportion of patients have previously committed offences of a sexual nature (some 266 offences altogether). Dr James states that there are 138 convictions of a sexual nature attributable to a total of 101 male patients suffering from personality disorders, and 128 such offences attributable to a total of 259 male patients suffering from other mental illness or impairment, in both cases including the unrestricted patients among those totals. There is thus, broadly speaking, 1.3 convictions for a sexual offence for every one male patient suffering from a personality disorder, and 1 such conviction for every two male patients suffering from other mental illness. Many of the patients have a continued potential for sex offending or unresolved and serious sexual pathology.

— The no-sex policy

Dr James states that the Patients’ Relationships Policy, of which the no-sex policy forms part, has been the subject of long and anxious consideration by the defendant, and has been widely consulted upon, particularly as regards the Medical Advisory Committee on which all the hospital’s consultants are represented. The basis of the policy is that, unlike the community at large, or prison communities, the hospital tries to provide a therapeutic environment in which patients are safe from perpetrating sexual offences, or sexual abuse and in turn are safe from being the victims of sexual abuse. It is an intrinsic part of the care of these patients that they are protected from further abuse and from perpetrating further abuse. Given the nature of the patients’ continuing disorders, the extreme vulnerability of many of the hospital’s patients, and the complexity of the risk assessments that would need to be undertaken if sexual contact were permitted, the only safe way to manage the possibility of abusive sexual relationships is to provide an environment in which sexual relationships do not occur.

In relation to the no-sex policy, Dr James states at paragraphs 24 to 29 as follows:

“24 If sexual activity were permitted for individual patients, which it is not, assessing the risk of allowing individual patients to engage in sexual activity would be incredibly complex. Relationships between “normal” people are sufficiently complex. Within “normal” relationships feelings of betrayal and loss are common and one person in a “normal” relationship may be dominant.

25 If one considers how such feeling in relationships would impact on patients who are mentally ill, mentally impaired, personality disordered or psychopathic then one has some idea of the immense task that the staff would be presented with. For example, patient X’s care team might be quite willing to let him enter a relationship but what if patient Y, whom X is interested in, is completely unsuitable? What if two patients wanted an approved relationship with the same patient? There are so many concerns that the entire situation would be completely unworkable.

26 We already have concerns about physical and emotional reaction by patients who have been emotionally hurt. I believe that this would be made worse if sexual relationships were allowed to develop. It is for these reasons that no sexual activity whatsoever is allowed under the Hospital’s Policy pursuant to that that no condoms are permitted. For each type of risk the Hospital has to consider the level of intervention and environmental control it should introduce. In so doing the Hospital has to consider the individual patient’s care and treatment in detail.

27 The Hospital has to balance the individual needs for patients’ treatment plan with security risks. A patient might require more time associated with his or her fears without obtrusive observation for treatment purposes. Though the Hospital also needs to protect the patients both from themselves and others. This applies equally to violent episodes, as it does to sexual activity be it either as the perpetrator or victim.

28 This type of behaviour occurs, be it sexual or violent, it is not accepted by the Hospital and each such occurrence, however rare, should lead to review of that patient’s risk management plan. In order to highlight my concerns regarding the potential for exploitative relationships I would draw the court’s attention by analogy to the Possessions’ Policy. This deals with what might be seen as non-sexual relationships but the Hospital is still concerned about the abusive relationships between patients developing the selling, buying and passing of goods. The Possessions’ Policy can be found in the exhibit DJ3.

29 There is a general clinical concern for all mental health service providers, which is not just a special hospital issue. There is now an increased sensitivity and awareness across all mental health service providers, from the least secure to the special hospital, about the potential for sexual abuse, as well as an increased awareness of the sexual vulnerability of patients with mental health problems. These concerns are not as important for prisons by their very nature.”

Dr James also refers to the fact that in 1990 one patient died at the hands of another in his bedroom, an incident which resulted in the Rowe report. That report found that, at that time, staff were turning a blind eye to certain sexual relationships between patients, and it became impossible to supervise the patients in question, or to prevent those who were unsuitable for sexual relationships from engaging in one. The result was a very safe and unsecure ward which led to the death of the patient concerned. Dr James states

“In practice a situation where some patients are, and some patients are not, allowed to have sex is fraught with danger to the patients as the hospital has found. It is also very difficult for staff and impossible to manage. I am certain that any policy allowing some patients to engage in sexual activity but not others would constantly subject to challenge and abuse and would be impossible to manage satisfactorily.”

She continues

“One difficulty for staff at that time and now is that patients can exert considerable pressure upon each other. Deciding whether a relationship involves the consent of both the individuals involved will in many circumstances be impossible in practice. The situation is further complicated by the connection of such a relationship with other clinical issues regarding the treatment of individual patients. It should be remembered that a high proportion of the patients had been involved in abusive relationships either as the perpetrator of abuse or as the victim.”

— The no-condoms policy

While it is accepted that condoms are important in controlling the spread of sexually transmitted diseases, there are two reasons for not making them available. The first reason is the impact on the no-sex policy. Dr James states “It is our belief that no sexual activity should take place or indeed should be permitted to take place and therefore condoms should not be provided. We also believe that if condoms were supplied, by whatever method, patients are more likely to seek ways in which to conduct sexual activity. That may have relatively little impact for those who seek such activity but we also have to consider the impact on those who are approached and may be exploited in such situations.”

Dr James states that it would be inconsistent with the no-sex policy if one member of the staff was asked to provide, or did provide, a condom for a patient, thus knowing that there was a risk of sexual activity occurring, while other members of staff, with whom that information would have to be shared, were responsible for putting in place measures to prevent the very sexual activity that had just been facilitated by provision of a condom. Making condoms available in some neutral way upon the ward would also be inconsistent with the no-sex policy, and would simply encourage patients to secrete the condom, which would be contrary to the hospital’s policy of encouraging openness between staff and patients. If the condom was then found, measures would have to be taken to prevent sexual activity taking place. In effect, the whole idea of making condoms available conflicts with the therapeutic necessity of ensuring that sexual activity does not occur.

Secondly, there is the issue of security. Condoms given to one patient may be passed to another, who might be quite unsuitable, and who might thereby be encouraged to engage in sexual activity without the knowledge of the hospital authorities, and to the detriment of his own treatment and that of any other person who was concerned. A “black market” would arise in condoms. Moreover, condoms are a known way of transporting illicit substances. Given the levels and type of personal searching that takes place at Ashworth, patients will seek to avoid detection, by either rub-down searches or “sniffer” dogs, and they could use condoms to swallow drugs or other items which can be then “accessed” at a later date.

Dr James also states that the possibility of setting up a system whereby sexual relationships could be allowed to occur on some selective basis has also been considered and rejected. Apart from the difficulty of envisaging a situation where such a relationship would be beneficial to both patients, the risk assessment that would be needed in order to establish whether or not such a relationship was mutually beneficial would have to be so detailed as to be prohibitively time consuming. In those circumstances, and in the light of the enormous demands on resources involved, it was decided that the wishes of any individual patient who might potentially be capable of maintaining such a relationship should be subject to what is best for the entire population of the hospital.

Dr James differentiates the situation at Ashworth Hospital with the situation in prison. In prison prisoners routinely share rooms and spend a great deal of time together, often locked up, with minimal or no observation. That is quite different from the situation at Ashworth.

Dr Gravett confirms that both the Medical Advisory Committee and Dr Gravett personally support the Patients’ Relationships Policy, including the no-condoms policy, which has been the subject of long discussion and consultation. He emphasises

“4. It should be borne in mind that Ashworth is a high security mental hospital and we are charged with the care of the most dangerous patients in the country. In order that patients can be cared for in the most safe and secure way it is vital to have clear, unambiguous policies which staff can understand and apply uniformally. It is therefore important that in addition to all the clinical arguments surrounding the issues on this case there should be one rule for all the patients. In relation to the Patients’ Relationship Policy these concerns led to the prohibition on sexual activity and the decision that condoms should not be made available.

5. If any alternate arrangements were made, in which condoms were made available to patients, this would place the Hospital management and the individual staff in a very difficult position. This is because of all the reasons set out in Dr James’ statement, which would lead to inconsistencies in patients gaining access to condoms, the ability of patients to use the condoms and the Hospital’s ability, or lack of ability, to effectively monitor whatever system is introduced making condoms available, whilst maintaining the prohibition on sexual activity.”

— The security arrangements at the hospital

Dr James states that as a result of the Fallon enquiry which reported in 1999, following the death of a patient in 1997, and a further report by Sir Richard Tilt in February 2000, there have been major improvements and changes in the safety and security arrangements in force at Ashworth Hospital. These are incorporated in The Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000, made by the Secretary of State under the National Health Service Act 1997, which Dr James exhibits to her witness statement.

Wards are single sex and there are about 18 patients on a ward. Each patient in the ward has a single room and patients are not allowed in another patient’s room without the express permission of staff following a detailed assessment of that patient, nor are they allowed in communal areas with other patients without observation. A patient will only be allowed time in communal areas of the Hospital with other patients without close observation after a detailed risk assessment which concludes that the risk of sexual activity is negligible.

All high risk patients and all newly-admitted patients are subject to a high level of observation at all times. It is expected that these patients will never be alone with other patients without visual observation by staff. The levels of observation decrease as the individual patient’s care and treatment progresses, but observation levels remain high for patients who are considered to be a particular risk from sexual abuse or being sexually abusive.

Some patients who have been subject to detailed assessment are afforded time in the company of other patients without close observation. In these instances, however, review of a patient’s sexual risk is specifically considered by staff before allowing, for example, access to the grounds.

The high dependency wards will normally have between seven and nine members of staff on duty in the morning and afternoon shifts, and up to seven at night. The lower dependency wards will have between five and seven staff on the morning and afternoon shifts with about five staff at night. The total number of nursing staff (qualified and unqualified) who work on the wards is 749. The ratio of nursing staff to patients is thus far higher than in other institutions. There is 24-hour care for the patients on the ward provided by around-the-clock nursing teams. The total staff at Ashworth number 1,558 permanent staff altogether, in addition to which there are 153 “ad hoc” staff who can be called on as necessary, caring for just over 400 patients.

On high risk and admission wards patients are not allowed into each other’s rooms at any time. This is mainly because of the risk of violent or self-harming activity, but the hospital is also concerned with sexual activity. On some of the wards there is a prohibition on a patient even sitting outside another’s room. Patients in low risk wards are allowed into each other’s rooms but only with express permission and supervision. If there is a perceived risk of sexual activity taking place the patient will not be allowed into another patient’s room. If two patients are in a room together the door will not be closed and the staff are expected to have a higher level of vigilance than the usual level of supervision, i.e. greater than general observation. On many wards patients are now allowed access to their own rooms for long periods during the day.

When patients are in their bedrooms two members of staff are present in the bedroom area at all times. Those two members of staff have particular responsibility for regular checks on each occupied bedroom. Each patient will be observed by a member of staff at a minimum once every 45 minutes, such check being conducted on an irregular basis. On higher dependency wards the period will be once every 15 minutes. Dr James states

“Whilst it is conceivable that unsupervised access by one patient to another’s bedroom may occur this is a very rare occurrence. The prevention of such access is a high priority for the nursing staff. The corridors are under constant supervision by two staff who can see all the bedroom doors and regular checks are made on the occupants. Thus, while patients may attempt to engage in sexual activity or violence, the policies are designed to ensure immediate staff intervention to stop it.”

There are certain shared and recreational areas which have specific arrangements for monitoring. On some higher risk wards an area such as the day room will always have a member of staff present, whereas in others the observation may be by a line of sight from staff in the main communal area of the ward. The most common area of the ward for patients to be is in the day room, which is usually the most easily observable area of the ward.

The ward bathroom, showers and toilets present particular difficulties for observation. Bathing and showering areas are locked when not in use. In the majority of wards throughout the hospital only one patient will use the bath or shower at any one time. However, curtains or cubicle walls divide baths and showers on some wards and there is the possibility of two patients showering or bathing at a time. When this occurs, staff will be directly outside the bathroom and specific checks are to be made. Whilst there is a risk of sexual activity at this time in these areas, there is also, historically, a greater risk of self-harm and violence towards others. The hospital’s priority is the prevention of self-harm and violence and staff are therefore alert to the risks that are posed at such times. Whilst the possibility of patients attempting to engage in consensual sexual acts exists, the high levels of supervision at such times will prevent that from happening. There is a high level of staff vigilance around the toilet areas. There is observation of the television rooms and the laundry room. The kitchen is normally kept locked and only accessible to patients if staff are available to supervise. Grounds access is allowed to certain patients who are trusted, but not if there is any significant and continuing risk of them engaging in sexual activity. Access to the grounds is during daylight hours in good weather conditions and at certain specified times. Patients are subject to observation by staff moving around the grounds and staff within the buildings. There is a CCTV system in place.

In the light of all those measures, Dr James believes that, at least since 1998, the actual risk of sexual activity taking place is greatly reduced. Certain types of sexual acts such as anal intercourse are made extremely unlikely by the observation levels as patients will not have time to commit such acts. At the other end of the scale, same-sex patients may try to touch each other in an inappropriate way, this is also prevented by the observations of patients. Dr James is thus confident about the extreme unlikelihood of planned, penetrative anal sex and other activities and also that any condoms in a patient’s possession would be discovered.

Dr James’s evidence is supported by Dr Gravett who states that, in view of the levels of security within the hospital following the Fallon and Tilt reports, he finds

“it very difficult to believe that any patient, either homosexual or heterosexual, could participate in the sexual activities the claimant alleges, if at all. Whilst I accept that patients can and do attempt to engage in sexual activity on occasion they are prevented from doing so by staff vigilance. Indeed whenever two patients meet they are subject to general observations at the very least.”

— The risk of transmissible disease

As regards the risk posed by transmissible diseases within the hospital, the defendant has established an infection control team including a full-time nurse and a consultant employed on what is described as a sessional basis. There are hospital policies in this regard, notably that entitled “The Infection Control Blood Borne Virus Policy HIV, Hepatitis B and C, Recommendations Applying to all Patients and Staff”. The Introduction to this Policy, which I will call the Infection Control Policy, reads as follows:

“Human Immunodeficiency Virus (HIV), Hepatitis B (HBV) and Hepatitis C (HCV) are all blood borne viruses. This means that they can be transmitted by blood transfusion or via blood contaminated (dirty) needles or by direct inoculation of blood as a non-accidental injury (violence eg deliberate bite). The other mode of transmission is via sexual intercourse, these viruses are also present in semen and saliva, (DOH 2000).

Although HIV has been isolated in tears, urine, cerebrospinal, synovial and amniotic fluids these have not been implicated in the transmission of infection. Neither is HIV spread by close social contact with infected people.

The outcome of infection depends on the particular virus: in the case of HIV progression to AIDS-Acquired Immune Deficiency Syndrome is likely. Hepatitis B and C infections may clear up completely (resolution) or lead to a chronic carrier state with possible progression to cirrhosis of the liver.

Prevention of the transmission of blood borne viruses is achieved by using sterile needles and syringes and avoiding unsafe sexual practices.

Research indicates that the prevalence of infection is increased in drug misusers and residents of long term institutions, and that certain occupational groups have a higher risk of infection, (Rowland 1990), (Van Damme et al 1995) and DOH 1996. Hepatitis B is a preventable disease and the Department of Health recommends that staff should be vaccinated, this Hospital encourages both staff and patients to be immunised against Hepatitis B, (HSC 1998/063).”

Paragraphs 5 and 6 of the Infection Control Policy read as follows:

“5. Key Points to Minimise Infection

(i) In this hospital all patients potentially present a risk of infection. Therefore, consider all blood and body fluids to be possibly infectious.

Take your time.

Avoid spillages of blood or body fluids.

(ii) Effective hand washing is the single most important factor in preventing infection. Use the soap provided, wash all areas of the hands, rinse thoroughly and dry with paper towels.

Cover cuts and abrasions with waterproof dressings.

(iii) Exercise great care with all sharps to prevent puncture wounds, cuts or abrasions.

Protect existing wounds, skin rashes or lesions, conjunctivae and mucosal surfaces from all blood and body fluids.

When the use of sharps is essential, exercise particular care in handling and disposal of same.

Only use approved sharps containers.

Never put needles or other sharps into clinical or household waste bags.

Never resheath needles.

(iv) Control surface contamination by blood or body fluids by containment and disinfection.

...

6. Occupational Risk

The risk of transmission of blood borne viruses is greater from patient to health care worker than from health care worker to patient.

Occupational risks of transmission of blood borne viruses arise from the possible exposure to blood or other body fluids or tissues contaminated with blood from an infected patient. Semen and breast milk may pose a risk of infection but exposure to these body fluids is rare in most health care settings.

Many exposures result from a failure to follow Infection Control guidelines regarding the safe handling and disposal of sharps. Even when infection control guidelines and safe working practices are adopted there is still the possibility of accidents and malicious acts resulting in exposure to blood borne viruses.

Most cases of occupationally acquired HIV infection have arisen from percutaneous exposure to HIV infected materials, and of these the majority have followed injury from hollow needles in association with a needle or canula being placed in a vein, eg venepuncture, others have arisen through exposure of mucous membranes or non intact skin to blood.

Transmission of blood borne viruses may result from contamination of mucous membranes of the eyes or mouth, or of broken skin, with infected blood or other infectious material, and by human bites if the skin is broken.

There is no evidence of blood borne viruses being transmitted by contamination of intact skin, by inhalation or by faecal – oral contamination.

Please Note: Not all patients with blood borne viruses have had their infections diagnosed. Therefore it is important that all blood and body fluids and tissues are regarded as potentially infectious, and health care workers should follow Universal precautions scrupulously and in all circumstances to avoid contact with them.”

In relation to HIV, the risk of infection is described in the Infection Control Policy as follows:

“The risk of acquiring HIV infection following a needle stick injury or a bite is small. Although HIV transmission may occur in health care settings most transmission occurs:-

by unprotected penetrative sexual intercourse with an infected person (between men or between man and woman).

by inoculation of infected blood. At present in the UK this results mainly from drug misusers sharing blood contaminated injecting equipment.

from an infected mother to her baby before or during birth or through breast feeding.

There is no vaccine to prevent HIV.”

In relation to hepatitis B and C the Policy states:

“8. Hepatitis B Virus (HBV)

Hepatitis means inflammation of the liver. Viruses are the commonest cause but drugs and alcohol can also disturb the bodies immune system. Since the 1960s many hepatitis viruses have been identified and all cause similar acute illness but the differences are in long term effect.

World wide hepatitis B virus is the most common cause of liver disease and more than 2 million people die from it each year.

Hepatitis B is transmitted in the same way as HIV but it is far more infectious. Hepatitis B infection can vary from having no noticeable symptoms to mild flu like symptoms, nausea, vomiting, fever, jaundice, hepatic failure, coma and death within 8 weeks. Hepatitis B virus may be found in blood and virtually all body fluids of patients with Hepatitis B and carriers of the virus, but blood, semen and vaginal fluids are the source of spread of HBV infection. Transmission usually occurs by:-

unprotected sexual intercourse.

injecting drug misusers sharing contaminated injecting equipment.

from an infected mother to her baby before or during birth or through breast feeding.

The most important measures that health care workers can take is to be vaccinated against HBV.

9. Hepatitis C Virus (HCV)

Hepatitis C is an unusual hepatitis virus as 90% of infected people do not show any symptoms when first infected. About 10% of infected people will develop acute jaundice and others will develop cirrhosis between 20 and 40 years after the initial infection. A small proportion of these people will eventually develop liver cancer.

HCV is most frequently acquired by direct blood to blood contact, and the commonest mode of transmission in the UK is by sharing of blood contaminated injecting equipment by injecting drug misusers. Both sexual and perinatal transmission can occur though rarely.

There is no vaccine for Hepatitis C virus.”

Dr James’s evidence is that there are ten patients with hepatitis C (2.5%), six with hepatitis B (1.5%), and none with HIV at Ashworth Hospital. These percentages are considerably lower than the equivalent levels of infection among the prison population. As a precaution, however, the hospital assumes that all patients are at high risk of having blood borne diseases. Blood tests cannot, however, be taken without the consent of the patient.

Dr Rothburn, a Consultant Microbiologist, is the Control of Infection Medical Officer at Ashworth Hospital. He states in his witness statement that as far as he is aware, all the viral infections identified by patients in the hospital were contracted prior to their admission. Surveillance of the levels of infection is by laboratory reports and physical health checks. Patients are screened routinely for the carriage of hepatitis B and vaccination is offered. There is no ongoing testing at regular intervals for hepatitis C, but appropriate infection control precautions are in place. There is no power to carry out compulsory blood tests.

Dr Rothburn points out that in 1997/98, 7% of the total prison population sample had hepatitis C and 8% had hepatitis B, with 0.4% for HIV. The levels at Ashworth are considerably lower, partly because the conditions of confinement are different and partly because the proportion of drug users (who may become infected through the use of needles) is lower at Ashworth than in the prison system generally. Dr Rothburn does not believe that any of the patients in Ashworth Hospital have caught the virus from which they suffer from any other patient. He concludes:

“13. It is my view that condoms do provide a good protection from the risk of contraction of infections such as the viruses that I have mentioned above and ordinarily I would prescribe their use. However the conditions of the patients’ detention in Ashworth mean that the situation is far more complex and other therapeutic and security issues have to be considered.

14. I am aware and firmly believe from the statistics that I have that no patient has contracted hepatitis B or C or HIV from another patient since I began in my position in 1994. Furthermore I am aware that the levels of infection within the Hospital are markedly lower than the levels of infection in prisons.

15. Given the differences and the conditions of the detention, the accommodation of the patients, the level of observation, I believe that the risk of sexual activity taking place contrary to hospital policy is minimal. Indeed, in light of the statistics that we have I can also say that the risk of infection as a result of any activities is close to nil. However I would point out the risk of infection cannot be ruled out altogether because we have infected patients who are detained because of mental disorders, therefore their actions can be both violent and unpredictable. Infection could technically occur through a number of sources. I believe that the risk of infection through sexual activities is one of the lowest risk causes within what is already a very low risk environment in comparison to prisons.”

— Broadmoor and Rampton

The Rampton Hospital Authority Patient Relationships Policy states at paragraph 9.1.1 that in general relationships between patients should not be discouraged subject to considerations of safety, security and any clinical risk relationship may create for a patient. According to paragraph 9.2.1, this policy applies to all established relationships whether heterosexual or homosexual. At paragraph 10.2.1 it is said “Hospital security does not permit two patients to be alone together unobserved. It is unreasonable and contrary to public decency to expect staff to observe patients engaged in sexual activity, if this were permitted. It is hospital policy, therefore to prohibit sexual activity and/or sexual intercourse between patients.”

Paragraph 14 of the Rampton Patient Relationship Policy reads as follows:

“Policy

14.1.1 Intimate contact and sexual intercourse between patients or between patients and other persons is prohibited (Section 10.2.1) and the Authority will expect staff to take all reasonable steps to prevent this taking place. However, since it is still possible that some patients may engage in sexual intercourse, condoms, the most practical protection against HIV and other sexually transmitted diseases, will be made available to patients along with sex and health education programmes.

Notes

14.2.1 Under Hospital Policy, sexual intercourse is prohibited (see Section 10.2.1). However, it is recognised that there is potential for situations to arise where sexual intercourse could take place covertly, and as a result, patients may be putting their health or the health of others at risk. Under these circumstances the Hospital still has a responsibility for patients health.

14.2.2 Safe sex is an issue in both homosexual and heterosexual relationships.

Procedure

14.2.1 The Hospital will ensure that safe sex education is available to all patients within the context of health education programmes.

14.3.2 Condoms will be made anonymously available to patients in the patients’ shop.

14.3.3 Where staff discover patients engaged in sexual intercourse (or other inappropriate sexual activity), the patients should be sensitively but firmly told to stop, and the matter reported to their MDT(s).

14.3.4 Multi-disciplinary teams must take into account the risks to the patients involved and, in particular, consider the risk to either patient of exploitation or abuse (see Section 15: “Exploitative and Abusive Relationships”) in deciding what course of action to follow.

14.2.6 Patients on escorted home visits should be observed at all times as still under the direct care of the Hospital.”

A letter to Dr James dated 13 March 2000 from John Hodge, Head of Professional Practice at Rampton Hospital Authority, states that

“Although the argument for distributing condoms are very sound – i.e. health and safety and reduction of corporate risk, we still have not yet progressed to actually distributing condoms to patients.” The principal difficulties identified by Mr Hodge are how to find an appropriate means of distributing condoms, i.e. on prescription, on the wards, through some kind of vending machine, or in the patients’ shop, and the need to ensure that patients both understand the need for condoms and are able to use them. He states that he is not able to give any indications as to whether the hospital will be providing condoms in the future.”

Mr Hodge concludes “The Hospital Authority Board has accepted the arguments that they should be provided, but, as I am sure you are aware, there are many concerns about actually providing these condoms.”

The Broadmoor policy statement “Hospital Policy – Relationships Policy & Guidance Paper HP 42” is dated May 1996. That document provides at paragraph 1.1

“It is essential that patient relationships are recognised by carers in the hospital. Sexual activity between patients is not condoned, however it is necessary to acknowledge that it sometimes takes place.”

Paragraph 1.4 states

“In accepting the above statement, the protection of individual patient becomes the priority, therefore:

“1.4.1 The HMT acknowledges the risks and confirms its intention to eliminate large dormitories. HMT is aware that opportunities exist for exploitation and coercion of the vulnerable patients. In all future physical design of accommodation this must be taken into account.

1.4.2 Clinical Teams must be clear about their responsibilities and be open to audit on their practice in the matter of addressing patient relationships. Responsibility for sharing information about relationships lies with all those who are in contact with patients.

1.4.3 Education and awareness training regarding patient relationships and their consequences must be made available to staff and patients where needed.

1.4.4 Condoms must be made available to patients”.

Under the heading “Guidelines for safer sex”, it is stated:

“3.1 Sexual activity between patients is not condoned, however part of the duty of care is to provide Safer Sex education for patients. Education can be done fully when provision is made of the means to reduce the risk of spread of sexually transmitted diseases, i.e. condoms.

3.2 Condoms will be available on prescription from the Consultant Psychiatrists or from the Pharmacy. A varied range of condoms will be available including extra strong together with water based lubricating jelly. Sex between women is not thought to present the same degree of risk of HIV transmission. There are some uncertainties about the risk of mouth to vagina oral sex. It may carry risk of infection particularly during or just after a woman’s period. For this reason dental dams will be made available to patients. Education in their use will be given in the awareness sessions described below.

3.3 Patients will be encouraged to requisition from the Pharmacy, rather than asking their visitors to bring them in. This will not remove the right of the patient to request free condoms from their Consultant Psychiatrist. The patient will retain the right to requisition from the Pharmacy even if the Consultant Psychiatrist refuses to prescribe to that individual.”

Under the heading “Guidance in respect of prevention of conception and management of a pregnancy or suspected pregnancy” it is stated at paragraph 4.2:

“4.2 Issues of Protection

Very few risks can be eliminated completely, most have to be managed.

There are likely to be occasions when, in spite of good observation, assessment, planning and subsequent management patients manage to push the boundaries to full sexual intercourse. This may happen between couples of the same or opposite sex. It may happen in long term relationships or after the briefest of meetings.

Pregnancy is an additional concern where heterosexual intercourse is a risk. It would be advisable for the clinical teams of both patients to consider with the patients concerned the risks of conception and the various risks and problems in having a child in the circumstances, not least the risks to the individual patients themselves. It may also be advisable for the clinical team for each patient to offer contraceptive advice.

If either patient requests contraceptive assistance, and if there is no medical indication to the contrary, it may be wise to make this available, in conjunction with further advice, tailored for the individuals concerned on acceptable limits for their behaviour. In any event the reasons for not providing assistance in these circumstances should be clearly documented.

If it is thought that, in spite of adequate staffing levels and capacity of observation, that the woman may take part in intercourse, for whatever reason, it is essential to ensure that she is in receipt of contraceptive protection in a form most medically appropriate for her as an individual.”

A letter from Dr Basson, Medical Director of the Broadmoor Hospital Authority to Dr James of 14 March 2000 states that the pharmacist at Broadmoor has given out six condoms prescribed by two psychiatrists over two years. Appendix 4 from the Broadmoor Community Policy CM15 – Patients Relationships annexed to that letter states as follows:

“Health Promotion – Aids/HIV awareness and safe sex policy

1. Intimate contact and sexual intercourse between patients (or between a patient and another person) is prohibited ... and the Authority expects all staff to take reasonable steps to ensure it does not take place. However, it is recognised that there is a potential for a situation to occur where it could take place covertly. As a result patients may put their health or the health of others at risk of contracting a sexually transmitted disease e.g. HIV/Aids. Under these circumstances the hospital has a duty of care and a responsibility for patients’ health. Procedure to therefore:

(a) That the hospital ensure that safe sex education is available for all patients within the context of the Health Education Programmes and

(b) Condoms will continue to be available to patients through their consultants (on prescription) or by requisition from the pharmacy.”

Dr James states that she is informed by the Director of Security at Broadmoor that no further condoms have been issued since March 2000.

In her witness statement Dr James considers that neither Broadmoor nor Rampton have found ways of dealing with the practical problems she refers to in her statements; hence the nil or negligible number of patients that have been issued with condoms in those hospitals.

Arguments of the parties

The claimant submits that the defendant’s “no condoms” policy (i) unlawfully fetters its discretion to make exceptions in appropriate cases; (ii) is irrational; (iii) is contrary to Articles 2 and 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The claimant submits, first, that the defendants have a duty to protect the health of those for whom they are responsible by preventing the transmission of disease: see, in the context of the prison service, R v Secretary of State for the Home Department ex parte Fielding [1999] COD 525 (Latham J). The obligation on those such as the defendant, who detain patients and thereby restrict their ability to protect their own health, is a heavy one.

On the evidence before the court, the risk of infection from transmissible disease, although said by the defendant to be ‘remote’, none the less exists, even under the defendant’s ‘no-sex’ policy which is not challenged. Sexual activity in a secure hospital cannot be prevented; it can only be managed. The risk that viruses such as hepatitis B, hepatitis C or HIV are transmitted by such sexual activity is, on the evidence, a perceptible risk.

In these circumstances, by imposing a blanket ban on the availability of condoms the defendant is acting in breach of its obligation to take appropriate steps to prevent the transmission of communicable and sometimes life-threatening diseases.

The claimant does not submit that condoms should be generally available, but the defendant is under an obligation to protect those patients that remain at risk from infection by sexually active, infected patients, by the provision of condoms on prescription. The decision whether or not to provide condoms in an individual case should be a matter of clinical judgment taking into account the circumstances of each individual case, and weighing those circumstances against the policy considerations involved. The kind of factors which the prescribing psychiatrist or GP could bear in mind would be the health of the patient, the possibility of persuading the patient to desist, the credibility of the claim that condoms would be used if prescribed, the likelihood of ‘safe sex’ if condoms were provided, and the risk to health if they were not provided.

In fettering its discretion to exclude these possibilities, the defendant has acted unlawfully: R v Port of London Authority ex parte Kynoch [1919] 1 KB 176, British Oxygen Ltd v Board of Trade [1971] AC 610. For the same reasons the defendant’s policy is irrational on Wednesbury grounds.

None of the defendant’s arguments are sufficient to justify the blanket policy adopted. The obligation to protect the life of the patient which is put at risk cannot reasonably be overridden by the considerations flowing from the defendant’s no-sex policy, or the administrative difficulties on which the defendant relies. The latter could be overcome by clear guidelines and communication between members of the multi-disciplinary care teams. Neither of the other two special hospitals, Broadmoor and Rampton, follow a no condoms policy. Broadmoor in particular recognises that patients may put their health or that of others at risk of contracting a sexually transmissible disease and that the hospital has a duty of care and a responsibility for the patient’s health.

Gillick v West Norfolk Area Health Authority [1986] AC 112 decided that it was not illegal to prescribe oral contraceptives to girls under 16, even though the contemplated sexual activity was unlawful. This case is a analogous to Gillick. Even if the issue of condoms were to lead to an increase in sexual activity, by analogy with Gillick that is no reason for refusing to issue condoms: see Lord Templeman at pp. 202D-203H. In any event, it is not accepted that there would be an increase in sexual activity, or a risk of more patients being exploited, given that the no sex policy would continue to be policed and that the majority of patients are not acting rationally anyway.

The claimant further submits – in the event this became the principal submission – that the defendant’s policy is contrary to Articles 2 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”). It is in breach of Article 2 of the Convention in that it gives rise to a threat to life without any lawful justification. Furthermore, it is in breach of Article 8 of the Convention, under which the State owes positive obligations to ensure the effective protection of the rights, notably the right to respect for private and family life: see by analogy Guerra v Italy 26 EHRR 357; LCB v United Kingdom 27 EHRR 212; Osman v United Kingdom 29 EHRR 245; and Botta v Italy, judgment of 24 February 1998. The right to respect of private and family life must include a right not to be subjected to the risk of sexually transmissible diseases, and the defendant must have a duty to protect the health of the patients in its care: see ex parte Fielding already cited. The claimant wishes to avoid a situation where he exposes others to risk of infection, but the blanket nature of the defendant’s policy prevents the defendant from safeguarding the patients against that risk. Following R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, it is up to the court itself to strike the balance between the different interests involved without any ‘due deference’ to the defendant. The approach of Dyson LJ in Samaroo (CA, 17 July 2001, unreported) is not necessarily applicable here.

The defendant argues, first, that the legality of its no-condoms policy must be placed in the context of the hospital’s functions, the type of patients it has to treat, and the regime of security and observation required and the no-sex policy which is not at issue in these proceedings. The hospital is providing treatment in the form of high security psychiatric services to mentally disordered persons who are required to be detained by reason of their dangerous, violent and criminal tendencies. The hospital’s duty is to maintain a safe therapeutic environment for all patients and for the safety of staff and visitors even if that means overriding the therapeutic requirements of an individual patient: R v Broadmoor SHA ex parte S, H and D [1998] COD 199. A large number of patients have convictions for sexual offences, and/or have experienced physical and sexual abuse and exploitation. The nature of the patients and intrinsic nature of the hospital’s functions mean that high levels of security and surveillance must be maintained at all times.

The evidence is that the hospital’s no-sex policy is aimed at creating a safe therapeutic environment in which patients are safe from perpetrating further sexual offences or abuse, or being the victims of sexual abuse and exploitation. The only safe way of managing the risks associated with sexual relationships between patients at Ashworth is to ensure so far as possible that sexual relationships do not occur. The claimant accepts that the no-sex policy is sound.

In order to implement that policy, there is an effective system of high security and observation in place to ensure that sexual activity is prevented. As the evidence shows, it is extremely unlikely that planned penetrative anal sex and other activities will occur, and indecent assaults will be quickly observed and prevented from continuing. The claimant’s assertions regarding sexual activities should not, on the evidence, be accepted without corroboration, at least as regards the period following the Fallon inquiry and Tilt Reports. In addition, the number of patients infected with hepatitis B (six), hepatitis C (ten) or HIV (nil) is very small. On the evidence, the risk of infection as a result of sexual activity in the hospital is close to nil.

The essential reasons for the no condoms policy are, first, to support in a clear way the no sex policy, accepted as sound in these proceedings, which provides an appropriate and safe therapeutic environment for the treatment of patients. The provision of condoms would cut across that policy, increase the risk of sexual activity (and thereby the risk of infection) and oblige the staff to act inconsistently, notably by taking preventative measures to frustrate the sexual activities which the issue of condoms has facilitated. Secondly, the no condoms policy is necessary to exclude the security risk that condoms present in relation to the secretion of prohibited items, and the possibility of their use in harm to self and others.

Against that background, it is accepted that the hospital has a duty to provide such treatment to its patients as it reasonably considers appropriate having regard to its resources (R v Cambridgeshire Health Authority ex parte B [1995] 1 WLR 898), the need to maintain high security and the need to protect other patients, staff and visitors. Within those parameters it is accepted that the hospital has an obligation to do what it reasonably considers appropriate to protect its patients from injury or harm which other parties may cause them.

The hospital discharges that obligation by providing high security and close observation and by implementing its no-sex policy by preventing sexual activity between patients. The no-sex policy (including the no-condoms requirement) has been carefully developed with full consultation and represents the defendant’s judgment as to where the balance of risk and advantage lies. The judgment made by the defendant as the primary decision maker should be accorded due deference by the court.

There is no breach of Article 2(1) of the ECHR since (a) there is no evidence that there is an immediate and real risk to the life of any identified patient from any sexually transmissible disease; (b) it is not shown that the defendant has failed to do all that could reasonably be expected of it to prevent any such risk materialising: see Osman v United Kingdom [1998] 29 EHRR 245, §116 and Kennan v United Kingdom (3 April 2001) at §§90-92. There can be no positive obligation to supply condoms. The patients are protected by the high levels of security and observation and the risk of infection is virtually non existent.

Nor is there any breach of Article 8 of the ECHR: the denial of a condom does not in itself constitute an interference with the exercise of the right to respect for a patient’s private and family life. Nor is there any evidence of any failure to take the precautions necessary to prevent the risk of sexually transmissible disease (see by analogy Asselbourg v Luxembourg (1999) no.292195 and Passannante v Italy [1998] 25 EHRR CD 153). The analogy with environmental pollution is in any event not apt, since here the exposure to risk is something within the claimant’s control, and he does not contend that the hospital’s policy should permit him to engage in sexual activities. The hospital has struck a fair balance between the interests of the individual and the community, and due deference should be given to the hospital’s judgment: Lopez Ostra v Spain [1994] 20 EHRR 277, §51.

R v Secretary of State ex parte Fielding is not relevant. The issue in that case (whether condoms should be freely available or only on prescription) was different. The evidence shows that conditions at Ashworth as regards the patients’ problems, rates of infection, levels of observation and the therapeutic regime, are significantly different from those of normal prisons. Similarly the policies adopted at Broadmoor and Rampton are legally irrelevant. The evidence is that Rampton has found no acceptable system for issuing condoms, and that hardly any have been issued at Broadmoor.

As to the argument that the hospital should retain a discretion to issue condoms on prescription as a matter of clinical judgment in an individual case, the defendant is entitled to have both a no-condoms and a no-sex policy for the reasons already given. To make exceptions would undermine the therapeutic regime those policies are designed to create and lose the element of consistency which is vital when treating mentally disturbed patients. If condoms were made available on prescription to any patient alleged to be at risk of infection, that would mean in practice that they were freely available, which the claimant accepts to be undesirable. They could not usefully be made available to ‘sexually active infected patients’ because under the no-sex and security policies immediate measures would have to be taken to prevent such sexual activity and remove the condom. Innumerable other practical difficulties arise, as the evidence shows.

As regards exceptional cases, the hospital keeps its Patients’ Relationships Policy under review and there is a mechanism for the review of any decision in a particular case under paragraph 5.1 of the Policy. If the situation were to change, for example if for some reason there were a higher risk of infection, the hospital would review its policy: its policy is not that it will never in any foreseeable circumstance supply condoms, but that it will not do so in the present circumstances. The defendant stresses that in this case there is no specific decision affecting the claimant which is challenged, but the no condoms policy in general.

Following Daly, the defendant is well within the proper area of its discretion, or margin of appreciation, taking into account the principle of proportionality, and the weight to be accorded to all the relevant factors: see also Samaroo. The same arguments apply even more strongly to the challenges based on the British Oxygen, and on irrationality in the Wednesbury sense.

Analysis

It is convenient to deal first with the submissions based on violations of Articles 2 and 8 of the Convention as applied by the Human Rights Act 1998 since 2 October 2000. By virtue of section 6(1) of that Act, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Article 2 of the Convention provides that:

“Everyone’s right to life shall be protected by law.”

Article 8 provides that

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The claimant as a victim

Although the defendant takes no point on this issue, since it is presumably anxious to have a judgment in these proceedings, in my view the first matter to be addressed, albeit briefly, is the status of the claimant as a ‘victim’ for the purposes of this case. That issue arises because the effect of section 7(1) and 7(3) of the Human Rights Act 1998 (“the Act”) is that the claimant may maintain a violation of the Convention in these proceedings only if he is, or would be, a victim of the unlawful ‘act’ complained of. In this case it seems to be common ground that the unlawful ‘act’ alleged is the maintenance in force of the refusal to issue condoms pursuant to the defendant’s Patients Relationships Policy. Pursuant to section 7(7) of the Act, the claimant is a victim only if he would be a victim for the purposes of Article 34 of the Convention in proceedings brought before the European Court of Human Rights. It appears that under Article 34 of the Convention the concept of a ‘victim’ may include a potential victim, for example where a person faces extradition to a country where he is likely to face the death penalty (Soering v United Kingdom (1989) 11 EHRR 439). However, the Court has also said that: “It is only in wholly exceptional circumstances that the risk of a future violation may nevertheless confer the status of “victim” on an individual applicant, and only then if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally: mere suspicions or conjectures are not enough in that respect.” Such a potential victim “must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote” Asselbourg v Luxembourg, decision of 29 June 1999, citing the Court’s earlier judgment in Soering.

The factual situation in this case is that the claimant is a carrier of hepatitis C, but has not been infected while detained at Ashworth. Nor, on the evidence, has any other patient at Ashworth been infected with a sexually transmissible disease by the claimant, or anyone else, while detained. It might appear at first sight that the only ‘victims’ here in question are not the claimant but other patients who might, potentially, be infected with that disease by having unprotected sex with the claimant. On that point, however, two arguments are advanced. The first argument is that the claimant himself could become infected (or further infected) by engaging in sexual activities with another patient infected with, for example, hepatitis B. I accept that that argument would constitute the claimant himself as a ‘victim’, at least potentially. The second argument is that the claimant is entitled to maintain that he is an “indirect” victim, i.e. a victim of a breach of a Convention right affecting another person. Examples of ‘indirect’ victims are given at paragraph 22.41 of Clayton & Tomlinson. The examples cited mainly concern close relatives of victims, but I am prepared to accept, at least for argument’s sake, that the persons with whom the claimant claims to seek to have sexual relations who, according to him, thereby risk infection, may be regarded, at least in theory, as victims for the purposes of section 7 of the Act, albeit that such victims are both potential and indirect victims.

I am prepared, therefore, to assume that the claimant and his potential sexual partners are to be treated as at least potential victims for the purpose of establishing the claimant’s locus in these proceedings. I do not therefore need to consider whether the claimant would have had locus to bring these proceedings under section 11(b) of the Act, which provides that the claimant’s reliance on the Convention does not preclude him from bringing any proceedings which he could have brought apart from section 7, for example by relying on the common law of human rights.

Article 2 of the Convention

— The jurisprudence of the European Court of Human Rights

The right to life protected by the first sentence of Article 2(1) is the most fundamental of the rights protected by the Convention. It is well established that the first sentence of Article 2(1) not only enjoins the state to refrain from the intentional and unlawful taking of life, but also obliges the state to take appropriate steps to safeguard the lives of those within its jurisdiction: LCB v United Kingdom (1998) EHRR 212, at paragraph 36.

The LCB case involved the daughter of a serviceman who had been diagnosed with leukaemia in 1970. Her father had witnessed nuclear tests on Christmas Island while serving in the forces in 1958. The European Court of Human Rights said, also at paragraph 36 of the judgment:

“It has not been suggested that the respondent State intentionally sought to deprive the applicant of her life. The Court’s task is, therefore to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk.”

The Court considered whether, on the assumption that the claimant’s father had been exposed to radiation, it was incumbent on the state to give advice to her parents and monitor the applicant’s health. The Court held at paragraph 38

“that the State could only have been required of its own motion to take these steps in relation to the applicant if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health.”

In Osman v United Kingdom (1998) 29 EHRR 245, a teacher had formed an obsessive attachment for one of the pupils at a school, which eventually led to a series of incidents against the boy’s family, culminating in an incident in which the teacher, who was seriously mentally disturbed, shot and killed the boy’s father and seriously injured the boy. The case was argued on the basis that the state had been in breach of Article 2 in that the police had failed to take adequate and appropriate steps to protect the life of the boy and his father. At paragraphs 115 to 116 of its judgment, the European Court of Human Rights stated the principles to be applied in such a case in the following terms:

“... It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. ...

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of the powers which, judged reasonably, might have been expected to avoid that risk. ... For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to like of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”

The Court held on the facts, by a majority, that it was not established that the police knew or ought to have known that the teacher represented “a read and immediate risk” to the life of the boy’s father, and that “their response to the events as they unfolded was reasonable in the circumstances and not incompatible with the authorities’ duty under Article 2 of the Convention to safeguard the right to life”: see paragraph 128.

In Keenan v United Kingdom, judgment of 3 April 2001, the mother of a 28 year old man who had hanged himself while serving a four-month sentence in Exeter Prison alleged a breach of Article 2, on the basis that the authorities knew or ought to have known that her son was seriously mentally disturbed and had taken inadequate steps to prevent him from committing suicide. At paragraph 89 of its judgment, the Court turned to consider the application of the principles of Osman in circumstances where the risk to the individual arose not as a result of the criminal acts of a third party, but from the risk of self-harm. Having acknowledged, at paragraph 90, that “persons in custody are in a vulnerable position and that the authorities are under a duty to protect them” the Court examined:

“whether the authorities knew or ought to have known that Mark Keenan posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk.”

The Court held, by a majority, that the state had not been in breach of its obligation under Article 2. Although the prison authorities knew of the son’s seriously disturbed mental state, the steps taken to place him in hospital care and under watch constituted “a reasonable response” and that “it is not apparent that the authorities omitted any step which they should reasonably have taken” (paragraph 18).

This case is not a case of protection from the criminal acts of a third party as in Osman, nor is it self-harm leading to suicide as in Keenan. In so far as the claimant alleges that he is a victim because he might suffer infection through sexual relations with other patients, the means to protect himself lie in the first instance in his own abstention from such activities. I have no direct evidence that the claimant’s particular mental disorder makes it more difficult for him than for a normal person to control his sexual activities, though that may be the case. In so far as the claimant relies on the danger that he, as a carrier of hepatitis C, poses to other patients (the ‘indirect’ victims) the situation is, in a sense, the reverse of the situation in Osman: rather than a contention that the State failed to protect him from harm by others, the claimant is alleging a failure to protect others from harm by him.

The present situation seems to me, therefore, to be taking Keenan and Osman significantly further. Nonetheless, in view of the claimant’s personality disorder, and the seriously mentally disturbed nature of the patients in Ashworth, I propose to apply the principles to be derived from Osman and Keenan by analogy in the present case. That in my view involves addressing two questions (1) has the claimant established that the defendant’s no-condoms policy is such as to involve “a real and immediate” threat to life? (2) has the claimant established that the defendant is doing “all that can be reasonably expected” in order to obviate the threat, if any, posed.

— A real and immediate threat to life?

Although these are judicial review proceedings in which the Court is exercising a supervisory jurisdiction, it seems to me very difficult for the Court to exercise that jurisdiction in the present case without making its own assessment of the evidence in order to determine whether that evidence discloses “a real and immediate threat to life”, which is what the claimant must show in order to succeed under Article 2. Since, in particular the claimant challenges the defendant’s factual assumption that the risk of infection is close to nil, it is in my view incumbent on the Court to examine the factual evidence for itself, in order to determine whether it compels a conclusion different to that arrived at by the defendant and capable of supporting the position of the claimant. Since the right involved here – the protection of life – is both absolute and fundamental, it seems to me that any ‘discretionary area of judgment’ the defendant may have when it comes to assessing the facts regarding the risk of infection is very narrow indeed: see Simon Brown LJ in R v Secretary of State for the Home Department ex parte Turgut [2000] UKHRR 403 at 413B to E.

It seems to me that I should make an assessment of the facts, on the basis of the evidence before the court, on two issues: (i) what is the likelihood of sexual activity of a kind to which condoms could be relevant occurring on the hospital’s premises? (ii) what is the likelihood of the transmission of disease as a result of that activity?

— The likelihood of the relevant sexual activity actually occurring

The sexual activity to which the use of condoms is most likely to be relevant in the present case is anal penetrative intercourse. I take it that such activity may damage the internal mucous membranes of the anus and thus permit infection. No other kind of sexual activity has been specifically mentioned in the course of argument.

The claimant states that he has engaged in homosexual activities while at the hospital, and knows of other patients who have done so, but he does not specify the kind of activities in question. It is not specifically stated that such activities have continued after the review of security measures which took place following the Fallon report in 1999 and the Tilt report in 2000. There is no corroboration for what the claimant says.

Although I can up to a point understand why his evidence may be vague as to detail, the lack of corroboration puts the court in a difficulty when it comes to accepting the claimant’s evidence at face value, given that he is suffering from a psychopathic disorder, that is to say a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on his part: section 1 of the Mental Health Act 1983. In principle, it seem to me that I should be slow to accept the evidence of such a witness without corroboration: see Cross and Tapper on Evidence, 9th Edition, at pp. 217 to 218.

On one specific point, namely whether the claimant was told by his patient care team in October 2000 that condoms would be made available to him, I prefer the evidence of the defendant. It seems to me to be unlikely that such a thing was said to the claimant, in flat contradiction to the Patients’ Relationships Policy in force at the time. Similarly it seems to me probable that the claimant has exaggerated the number of other patients that he knows of who have engaged in sexual activities, none of whom have chosen to give a witness statement or corroborate the claimant’s evidence.

Doing the best I can on evidence untested in cross-examination, I cannot exclude the possibility that the claimant, and some others, have engaged in some kind of unspecified homosexual activity at the hospital at some time in the past. However, there is no reliable evidence that such homosexual activity has taken place since the introduction of the Safety and Security Directions in 2000, nor that such activity has involved anal penetrative sex, nor with what frequency it might have taken place, if indeed it did so.

It seems, however, a reasonable assumption that, despite the warnings and admonitions of his care team, and however irresponsible it may be therapeutically, the claimant would wish, and might well seek, to have anal penetrative sex with other likeminded patients in the hospital, if he thought he could get away with it undetected. Whatever may have been the position in the past, it is necessary to consider the likelihood of such activity occurring in the future.

On that issue, the defendant’s Patients’ Relationships Policy states at paragraph 4.3 “There is an acknowledged risk that unacceptable sexual activity may occur between patients whilst they are within the hospital. This policy manages, but cannot remove that risk.” Under the Rampton Patient Relationship Policy “it is recognised that there is a potential for situations to arise where sexual intercourse could take place covertly” (paragraph 14.2.1). That is also recognised by the Broadmoor Relationships Policy which indicates (paragraph 4.2) “Very few risks can be eliminated completely, most have to be managed. There are likely to be occasions when, in spite of good observation, assessment, planning and subsequent management patients manage to push the boundaries to full sexual intercourse. This may happen between couples of the same or opposite sex”.

In the light of these statements, and indeed common sense, it is impossible for this court to find that there is no risk of relevant sexual activity occurring between patients detained in the defendant’s hospital. The question is: what is the degree of risk?

On that question, the claimant’s evidence is that the levels of observation at the hospital sometimes fall to an extent that sexual activities go undetected. Again, however, the claimant does not specify the precise nature of the activities or the particular time period referred to. His view is supported by Dr Williams, who states that it is unlikely all sexual activities would come to the attention of staff, especially between patients on ground parole or doing social and recreational activities. Dr Williams, however, left the hospital in April 1998, since when considerable improvements have been made to the security regime.

As against that evidence, I have had the benefit of a very detailed account of the security and observation regimes in force at Ashworth Hospital, which have as their object not only the enforcement of the no-sex policy but also, and perhaps primarily, the prevention of violence or self-harm. That evidence covers the security and observation regime as it applies to the bedrooms, the wards, the recreational areas, the bathing areas, the lavatories, and grounds. On the basis of that evidence, summarised above, I see no real basis for disagreeing with Dr James’s conclusion that in normal circumstances acts such as anal sexual intercourse are unlikely to occur. Her view is shared by Dr Gravett who considers it “very difficult to believe” that any patient, homosexual or heterosexual, could participate in the sexual activities alleged by the claimant. Although Dr Gravett accepts that patients can and do attempt such activities, he believes that such attempts are thwarted by staff vigilance. Dr Rothburn is similarly of the view that the risk of sexual activity taking place contrary to hospital policy is minimal.

On the basis of the improved security in place since 2000, which is not referred to in the claimant’s evidence, it seems to me on the material before me that in normal circumstances the likelihood of sexual activity to which the use of condoms could be relevant taking place between patients is low.

I would, however, remind myself that “normal circumstances” do not always prevail. However vigilant the staff, it seems to me that the possibility that a determined and devious patient might in some circumstances defeat the system cannot be wholly ruled out – for example, in the event of the level of staff cover falling through unexpected illness or leave, or when staff attention might be diverted, because of a disturbance or incident, or because of greater difficulties of maintaining observation in certain areas, for example the baths and showers on some wards, and perhaps parts of the grounds. I would conclude that the risk of any relevant sexual activity taking place, though low, cannot be wholly eliminated, as the defendant’s own Patients’ Relationships Policy itself makes clear. I would have thought, however, that any such activity, if it occurs, is not likely to be on any regular basis.

— The risk of infection

The next question is: if such sexual activity did occur, despite the defendant’s best endeavours, what is the risk of infection by virtue of such activity? The claimant’s own evidence suggests that the risk is not very great so far as hepatitis C is concerned. In contrast to other means of infection such as needles, syringes, razors, or toothbrushes, Dr Beeching’s evidence on behalf of the claimant is that the risk of transmission of hepatitis C by sexual activity is small. Even in the case of spouses of hepatitis C positive males, the risk of acquiring the disease through many years of sexual activity is thought to be less than 5%. Dr Beeching suggests that there is “a small long-term risk from receptive anal sex, and reduces sequentially for anal penetrative sex, oral receptive sex, oral penetrative sex and mutual masturbation. In the latter category the risk is probably minimal”. Dr Beeching’s emphasis on the risk being small even over the long term does not suggest that much risk arises from any episodes that might from time to time slip through the net at Ashworth, where there would seem, on the evidence, to be no question of any ‘long term’ sexually active relationships arising.

Dr Beeching’s evidence is reinforced by that of the defendant. The Control of Infection Policy aims to identify, so far as possible, any patients at risk. There are at present ten patients at Ashworth with hepatitis C, six with hepatitis B and none with HIV, out of a total of some 400 patients. None have contracted the virus whilst at the hospital. It is not known whether the 15 infected patients, other than the claimant, are sexually active, or, even if they were, whether they would have any interest in sexual contact with the claimant. On the available evidence, there is nothing specific to show that the claimant is himself at risk from infection from another patient.

As regards the risk that the claimant might himself infect others with hepatitis C, Dr Rothburn is not prepared to rule the risk out altogether, but he does state that the risk of infection is “close to nil” and that “the risk of infection through sexual activities is one of the lowest risk causes within what is already a very low risk environment in comparison to prisons.”

HIV is not present at Ashworth, so the only sexually transmissible disease at issue in this case is hepatitis B or C. As I have just indicated, in my view sexual activity capable of transmitting hepatitis B or C is unlikely to occur or, if it did, not on any regular basis. It therefore seems to me, on the evidence of Dr Beeching and Dr Rothburn, that at present the likelihood of a patient at Ashworth Hospital in fact being infected with hepatitis B or C as a result of sexual activity with another patient may reasonably be regarded as very low.

— Conclusion as to “real and immediate” risk of infection

In these circumstances I find myself unable to say that the defendant’s no-condoms policy presents “a real and immediate threat to life” for the purposes of Article 2 of the Convention, even assuming that in some circumstances hepatitis B or C could be life-threatening illnesses, as to which there is no evidence before the Court. There are three main reasons for my conclusion.

The first reason is that the existence of the “no-sex” policy itself, which the claimant does not challenge in these proceedings, minimises the risk of infection. As the defendant’s Policy itself states, quite apart from therapeutic considerations, that policy “promotes an environment which aids in the prevention and transmission of blood borne viruses” (paragraph 3.6). That policy does not ignore the issues that arise from sexual desires and possible relationships between patients, but seeks to ensure that the issues are addressed and managed in an environment where sexual activity, as such, does not take place.

In the claimant’s own case, Dr James’s evidence is that it has been explained repeatedly to the claimant that active sexual relationships with other patients are not allowed. To the extent that the hospital’s therapeutic approach is successful, there are no sexual relations and the issue of sexually transmissible diseases does not arise.

Secondly, on the supposition that, in the case of at least some mentally disordered patients, neither the counselling of the patient care team, nor the patient’s own sense of responsibility or level of awareness, will be enough to ensure that sexual activities between patients never occur, the system of observation and security in force at the hospital since the new Security Directions were adopted in 2000, is likely to thwart most such activities. For the reasons already given, it seems to me that the risk of sexual activity between patients to which the use of condoms is likely to be relevant, is low.

Thirdly, even if, despite the hospital’s best efforts to the contrary, sexual activity does take place between patients, the risk of infection is, as I have already found, very low. For those reasons it does not seem to me that any alleged threat to the claimant’s life can fairly be characterised as “real and immediate”.

— Is the defendant doing “all that can reasonably be expected”?

In those circumstances, whether the defendant is doing “all that can reasonably be expected” of it to prevent such risk as there is, does not, strictly speaking, arise. However, I consider that question in the alternative, as a precaution, in case it be thought, contrary to the view I have formed, that the risk of infection, though very low, is or might be sufficient to constitute a risk capable of attracting the application of Article 2.

That takes me to the standard of review applicable where the question at issue is the “reasonableness” of a decision maker’s policy when challenged under the Convention. Recent cases such as R (Mahmood) v Secretary of State for the Home Department, [2001] 1 WLR 840, Daly, and Samaroo, have explored the test to be applied, albeit in the context of a positive interference by the decision maker with a claimed Convention right. In this case, there is no positive interference with a right, since the right to have sexual relations is not claimed, but rather a failure to protect against harm potentially caused or contributed to by the claimant himself. In those circumstances, questions such as whether a given practice interferes with a Convention right and whether the interference is, or is not, proportionate, do not strictly speaking arise, at least not in quite those terms.

However, in the light of the recent case law, notably Daly and Samaroo, it seems to me, first, that in assessing the “reasonableness” of the hospital’s policy, there is a “discretionary area of judgment” in which the court should accord due weight to the views of the decision maker, particularly when it comes to striking a balance between competing interests: see the judgment of Dyson LJ in Samaroo, at paragraphs 29 (citing Thomas J as first instance) and 45. I would regard the concept of “discretionary area of judgment” as approximating to what in European Community Law would be described as the “margin of appreciation” to be accorded to the European Commission when receiving the legality of administrative decisions involving an element of policy: see Brealey and Hoskins, ‘Remedies in EC Law’, 2nd edition, p.32. However, I avoid the phrase “margin of appreciation” in the present context so as not to cause confusion with the distinct concept used by the European Court of Human Rights to describe the latitude accorded by that international court to the national legal systems when dealing with issues that may legitimately admit of different solutions depending on the national legal context in which they arise: see e.g. Clayton & Tomlinson, pp. 273 et seq.

Similarly, in a case such as the present, which lies outside the political sphere, I would, for myself, prefer the expression “giving due weight” to the views of the decision maker rather than the expression “due deference” suggested in argument. Although there is little potential difference in meaning between the two ideas, the use of the former, rather than the latter, might avoid giving, even inadvertently, the mistaken impression that the court starts with some kind of predisposition in favour of the defendant decision maker, which is not perhaps an appropriate starting point where fundamental human rights are in issue.

Within the discretionary area of judgment I have identified, the Court’s task is to subject the contested policy to anxious scrutiny on an objective basis to satisfy itself that there is no other step which might reasonably have been required of the defendant, giving proper weight to all the various factors, including the absolute nature of the right in issue under Article 2: see Dyson LJ in Samaroo at paragraph 35. However, where what is alleged is a failure to take action, it must in my view be up to the claimant at the end of the day to persuade the court that there is some further step which the decision maker could not reasonably have omitted to take. In the case of a potential victim, a cogent and realistic basis for alleging a potential violation of the Convention must be shown: see Asselbourg v Luxembourg, cited above.

In the present case, the steps taken by the defendant to protect the patients from the risk of sexually transmissible disease are essentially (i) the no-sex policy and the therapeutic support available to the patient through the patient care team and (ii) the system of security and observation which prevents relevant sexual activities taking place. Is it reasonable for the defendant to resist taking the further step of making condoms available on prescription, as the claimant suggests?

The reasons why the defendant resists that further step are: (i) it is therapeutically important to have a clear, easily understood policy on sexual activities between patients; (ii) that policy consists of the no-sex policy, which is not challenged by the claimant; (iii) it would be inconsistent with the no-sex policy to issue condoms, since a decision to do so would be seen as condoning the very activities which the no-sex policy is designed to prevent; (iv) such a decision would place staff in an impossible situation: if it were done covertly, trust and openness would be lost, whereas if it were done openly the enforcement of the no-sex policy would be compromised; (v) such a decision, by implicitly condoning sexual activity, could itself give rise to the danger of violence and sexual abuse, leading in turn to the risk of repeating the kind of incidents which gave rise to the deaths of patients in 1990 and 1997; (vi) the issue of condoms would pose serious problems from the point of view of security; (vii) to make exceptions would compromise both the no-sex and the security policies of the hospital; (viii) any such exceptions would absorb a disproportionate amount of resources since detailed assessments would have to be made in individual cases; (ix) the risk of infection is in any event virtually nil; and (x) the policy has the full support of the hospital’s Medical Advisory Committee with whom it has been fully discussed.

Taking into account the kinds of patient with whom Ashworth Hospital deals, the therapeutic need to have a no-sex policy, the need to apply that policy consistently, and the security issues, to all of which Dr James refers in the evidence summarised at paragraphs 14 to 24 above, I am unable to say that the defendant has acted unreasonably in adopting, as part of its no-sex policy, a no-condoms policy. If, as it seems to me the defendant has done, one then balances those needs of consistent treatment, safety and security, on the one hand, against the very low risk of infection, on the other hand, I am equally unable to say that the defendant has unreasonably failed to make exceptions to the policy.

With regard in particular to the claimant’s main argument, which is that condoms should be available on prescription in circumstances where the individual case can be fully assessed, I give due weight to Dr James’s views on this specific point, as summarised at paragraphs 17 and 18 above. It seems to me to be of major importance, as both Dr James and Dr Gravett emphasise, that the hospital should have a consistent and easily understood policy on sex, dealing as it does with highly disturbed and violent patients. The clarity and consistency of the present policy would be put at risk if exceptions were made. I give weight to Dr James’s evidence that a situation where some patients are, but some are not, allowed to have sex is “fraught with danger” in an institution such as Ashworth. There have been violent and, tragically, fatal incidents in the past. Moreover, as Dr James says, patients at Ashworth are particularly vulnerable sexually and open to abuse. It would be difficult to assess in any individual case whether sexual activities should be permitted, and with whom, and the risks, both physical and emotional, in permitting any such relationships are in my view likely to be considerable. The task of assessment if individual exceptions were allowed would divert staff from other aspects of treatment, and generally place the staff in a difficult and fundamentally inconsistent position.

In my view, there is no getting away from the fact that to make individual exceptions would involve a breach of the no-sex policy set out in paragraph 3.5 of the Hospital Relationships Policy, and a breach of the security rule, set out in paragraph 4.4 of the Policy, that patients are not allowed to have condoms in their possession. It would be absurd, in my view, to authorise the issue of condoms on prescription and then immediately confiscate them, and very difficult credibly to maintain that the sexual relationships presupposed by the decision to issue the condoms should not take place. The opening of such a breach in the core policies of the hospital would in my view risk the serious adverse consequences which Dr James describes, both as regards the treatment of patients and as regards security.

I do not find the evidence about Rampton and Broadmoor sufficiently strong to undermine that conclusion. I have no evidence about the physical configurations or security regimes in force at those hospitals, nor the degree to which the patients in their care suffer from sexually transmissible diseases. I do not have direct evidence from either hospital clearly articulating he reasons for their policy on condoms, and how that policy is reconciled with the prohibition on sexual relationships between patients which both hospitals impose. In the case of Rampton, it appears that the policy as written has not in fact been implemented, because of the practical difficulties involved in actually making condoms available without creating additional problems; so the Rampton evidence is inconclusive. As regards Broadmoor, it is not wholly clear on the documents whether or not condoms are only available on prescription, but a negligible number have in fact been prescribed. That evidence suggests that, in practice, there is no more than the occasional exceptional case in which a prescription is issued. Without knowing more about the exceptional cases in question, and indeed the situation at Broadmoor in general, I do not feel that any firm conclusions can be drawn from the evidence about Broadmoor.

Nor do I derive much assistance from the decision of Latham J (as he then was) in Fielding. The issue in that case was different, that is to say the reasonableness of making condoms available in prison only on prescription by the prison medical officer as distinct from making them generally available. The question whether condoms should not be issued at all did not arise. I would also accept that the situation in normal prisons is different from the situation in Ashworth. Normal prisoners are not in general undergoing treatment in a therapeutic environment. There is not the same imperative to maintain and enforce a no-sex policy. The security and observation regime is quite different, prisoners often sharing cells in conditions of close confinement. The risks of infection, such as they are, are higher in prisons. In those circumstances I do not think that the parallel drawn with prisons is a useful one in the present case. Similarly, I would not regard the decision in Gillick as particularly helpful in the present context. That case concerned the lawfulness of a policy to give advice on contraception to under-age girls, and raised different legal and factual issues.

For all those reasons I do not think it can be said that the defendant could reasonably be expected to go further than it has in taking steps to protect patients from the low risk of being infected by a sexually transmissible disease. Nor is it shown that the defendant has acted unreasonably in maintaining its no-condoms policy. I therefore reject the claimant’s arguments based on Article 2 of the Convention.

Article 8 of the Convention

The issue under Article 8(1) is whether there has been a violation of the claimant’s “right to respect for his private ... life”. Article 8(2) prohibits interference by a public authority with the exercise of that right except in closely defined circumstances, but as I have already said this is not a case of ‘interference’ with a right, but a ‘failure to protect’ the right in question.

In this case the claimant does not assert a right to have sexual relations with other patients, and he does not challenge the lawfulness of the no-sex policy. The right asserted is not therefore akin to that in issue in such cases as Dudgeon v United Kingdom (1981) 4 EHRR 149 or Smith and Grady v United Kingdom (1999) 29 EHRR 493 where the issue was the freedom to conduct (homo)sexual relationships. It is common ground that no such freedom is claimed for the patients lawfully confined in the Ashworth secure hospital. The right that the claimant asserts, on behalf of other patients and himself, is the right not to be infected with a sexually transmissible disease if, in breach of the no-sex policy, sexual relations to which the use of condoms could be relevant do, in fact, take place.

It is well recognised that the protection of a person’s physical integrity forms part of the concept of ‘respect for private life’, and that the State has a positive obligation to ensure effective respect for that right: see X and Y v Netherlands (1985) 8 EHRR 235. I would have thought that, to become infected with a sexually transmissible disease such as hepatitis C, was a violation of a person’s physical integrity, which is in principle protected by Article 8. Further support for the proposition that failure to protect a person’s health may be a breach of Article 8 is found in two cases on environmental pollution decided by the European Court of Human Rights which have been drawn to my attention, even though in those cases the issue was a wider one than purely health. In Guerra v Italy (1998) 26 EHRR 357, the applicants lived close to a chemical factory that emitted noxious fumes. On one occasion 150 people had to be hospitalised with acute arsenic poisoning following an explosion. The Court held that “direct effect of the toxic fumes on the applicants’ right to respect for their private and family life means that Article 8 is applicable” (paragraph 57) and that “it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection” of the applicants’ right under Article 8 (paragraph 58). In Lopez Ostra v Spain, (1994) 20 EHRR 277, a water treatment plant released fumes and smells causing health problems to local residents. The Court held that severe environmental pollution may affect individuals’ well-being or prevent them from enjoying their homes, in such a way as to affect their private and family life adversely even if their health is not seriously endangered (paragraph 51).

A failure to protect a person’s physical integrity being potentially a breach of Article 8, the main issue, so it seems to me, is how far the State has to go to ensure the protection of the individual in an individual case. In Lopez Ostra the Court said at paragraph 51:

“Whether the question is analysed in terms of a positive duty on the State – to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 –, as the applicant wishes in her case, or in terms of an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance.”

In LCB v United Kingdom, cited above, the Court considered that, having examined the matter from the standpoint of Article 2, and rejected the claim, there was no further need to examine the matter from the point of view of Article 8 (paragraph 46). In Osman v United Kingdom, cited above, the Court said at paragraph 128:

“The Court recalls that it has not found it established that the police knew or ought to have known at the time that Paget-Lewis represented a real and immediate risk to the life of Ahmet Osman and that their response to the events as they unfolded was reasonable in the circumstances and not incompatible with the authorities’ duty under Article 2 of the Convention to safeguard the right to life. In the Court’s view, that conclusion equally supports a finding that there has been no breach of any positive obligation implied by Article 8 of the Convention to safeguard the second applicant’s physical integrity.”

It seems to me that it may reasonably be inferred from LCB and Osman that the test to be applied in the case of an allegation under Article 8 that the State has failed to protect a person’s physical integrity is in principle the same test as that to be applied to an allegation that the State has failed to protect life in breach of Article 2. That approach in my view has the advantage both of logic and symmetry, especially in cases where it may be fortuitous whether the injury complained of has resulted in death as distinct from merely physical injury.

On that approach, which I propose to apply, in order to succeed under Article 8 the claimant would again have to show that there was “a real and immediate” risk to his health from which the defendant has failed to protect him, and that the defendant had not taken such steps as were “reasonably to be expected” of it to obviate that risk. The only difference is that, under Article 8, the claimant does not face the hurdle of establishing that his possible exposure to sexually transmitted disease is a threat to life, he would only have to establish a threat to health.

However, in my view the claimant faces the same difficulty in establishing his claim under Article 8 as he does under Article 2, both as regards any “real and immediate” threat to his health, and as regards the question whether the defendant ‘could reasonably be expected’ to take any further steps to protect the physical integrity of the claimant or other patients. For the reasons I have already given under Article 2, I the claim under Article 8 must in my view equally fail.

I would reach the same conclusion if the test under Article 8 is the ‘fair balance’ test between the competing interests of the individual and of the community as a whole, referred to in paragraph 51 of Lopez Ostra. A considerable element of a ‘fair balance’ test is incorporated in the ‘reasonably to be expected’ test in Osman, when the Court specifically refers to the need not to impose a burden that is ‘impossible or disproportionate’, given the difficulties of policing modern societies, the unpredictability of human conduct, and the policy choices that have to be made in terms of priorities and resources (paragraph 116). For the reasons I have already given when dealing with Article 2, in my view the claimant has not established that the defendant has failed to achieve a ‘fair balance’ between his interests and those of the patients as a whole detained in Ashworth Hospital. I add that, as a matter of domestic law, there is no doubt that the defendant is entitled to give precedence to the interests of the patients as a whole over the interests of an individual patient: R v Broadmoor Special Hospital ex parte S, H and D [1998] COD 199.

In the result the claimant’s case under both Article 8 and Article 2 of the Convention fails.

Wednesbury

It was, I think, common ground that if the case could not be maintained by the standards of review applicable to cases argued under the Convention, it could hardly succeed by applying traditional principles of Wednesbury unreasonableness. For the reasons already given, the hospital’s policy does not seem to me to be Wednesbury unreasonable.

Fettering discretion

With regard, finally, to the claimant’s argument that the defendant had wrongly “fettered its discretion” by having a “blanket policy”, the principle appears to be that there is no objection to an authority such as the defendant having a policy, and consistently applying that policy, so long as the authority concerned is prepared “to listen to a substantial argument reasonably presented urging a change of policy” or “willing to listen to anyone with something new to say”; see Lord Reid’s speech in British Oxygen Co v Board of Trade [1971] AC 610, at 625C to F. Such a willingness to listen does not necessarily imply a readiness to change a policy adopted after long and careful consideration, but it does imply that the authority should not close its mind in advance, especially if a new or more detailed argument is drawn to its attention, or if circumstances change.

In the present case, the defendant has stated to the court that its Patients’ Relationships Policy applies in the circumstances as they appear to the defendant at present. Dr James has stated in her second witness statement:

“48. To date neither the other consultants nor I have been satisfied that any of the conditions presented by patients have merited a change in the Hospital policy that sexual activity be prohibited and condoms should not be made available.

49. If a patient, or staff member representing a patient, made a cogent case for departure from the Policy then that would be considered. There have been circumstances when the Hospital has departed from its policies in the past and we recognise, at the time of drafting any policy, that we cannot envisage every circumstance that may arise. It is for this very reason that our own Relationships policy has a review clause within it. However I would stress that we have still not been presented with a set of circumstances in which we have been persuaded that the need to review the policy has arisen.”

Paragraph 5.1 of the Policy provides:

“5.1 In the event of a dispute between clinicians or between the patient and clinician in relation to decisions under this policy those concerned at any time may seek a review of such a decision by the Medical Director or his/her deputy. That will take into account any representation by the patient and any member of staff and make a decision having regard to all of the circumstances and the application of the policy.”

Although that provision refers to “decisions under this policy” I would not construe it as a legal document. Clause 5.1 would, I would have thought, give the Medical Director the possibility of examining the circumstances of an individual case.

In the light of that evidence, it does not seem to me to be established that the defendant has a closed mind, or has determined ‘not to hear any application of a particular character by whomsoever made’ to use the words of Bankes LJ in Kynoch’s case [1919] 1 KB 176 at p. 182. I can find nothing to suggest that the authority would refuse to listen to a “substantial argument reasonably presented” urging a change of policy, especially if there was “something new to say”.

More generally, it seems to me that if new or exceptional circumstances were to arise (for example if the risk of infection were for any reason to be substantially greater than at present, or if HIV were, for example, to present a substantial risk), the defendant would be under a legal duty to review its policy. Quite apart from the rule in British Oxygen, the defendant’s continuing duty to ensure that there is no violation of Articles 2 and 8 of the Convention, or for that matter it’s duty at common law, means that the Patients’ Relationships Policy, including the no-condoms policy, can never be immutable. It can, however, be said that, on the present evidence before the Court, the claimant has not succeeded in establishing that the defendant’s no-condoms policy is unlawful. I must, therefore, dismiss the application.

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> H, R (on the application of) v Ashworth Hospital Authority [2001] EWHC Admin 872 (30th October, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/872.html Cite as: [2001] EWHC Admin 872

		CO/41/2001 The Royal Courts of Justice The Strand LONDON WC2A 2LL
		30 October 2001

	THE QUEEN
	on the application of
	ROBERT H	Claimant
	and
	ASHWORTH HOSPITAL AUTHORITY	Defendant