Case No: CO/2108/6926
Neutral Citation Number: [2015] EWHC 2296 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/07/2015

Before :

THE HONOURABLE MRS JUSTICE McGOWAN
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Between:

	YZ	Claimant	
 	- and -		
	NHS Trust 1
NHS Trust 2	Defendant 1
Defendant 2	

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Susanna Rickard (instructed by Richard Charlton Solicitors) for the Claimant
Fenella Morris QC (instructed by Capsticks Solicitors) for the 1st Defendant
       Vikram Sachdeva QC( instructed by Bevan Brittan LLP) for the 2nd Defendant

Hearing dates: 21 May and 2 June 2015
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Judgment
Mrs Justice McGowan: 
1.	The Claimant, “YZ”, is a 22 year old transgender male. He has been detained in a medium secure psychiatric hospital run by NHS Trust 1, the “1st Defendant”. He has been detained in this MSU since July 2012.
2.	 I shall refer to the hospital as "the MSU” and I shall direct that no person other than the advocates and solicitors instructing them (and any other person identified by name in the judgment itself) may be identified by name or location and that in particular the name of the patient and all the doctors concerned must be anonymised.
3.	 YZ has been detained under s. 37 of the Mental Health Act 1983 by a hospital order with s.41 restrictions following his conviction in 2010 of an offence of grievous bodily harm with intent on a 12 year old boy. That offence occurred in 2009 when the Claimant was 15 years of age.
4.	YZ has been diagnosed as suffering from Emotionally Unstable and Dissocial Personality Disorder, with transient psychotic symptoms and gender dysphoria.
5.	The 1st Defendant proposes to transfer YZ to Broadmoor Hospital. That is a high security facility which is run by NHS Trust 2, the “2nd Defendant”, under its powers under s. 19 Mental Health Act 1983. The 2nd Defendant is willing to accept him, following a decision by its Admissions Panel, upheld on appeal to its Appeal Panel.
6.	YZ brings this claim, dated 7 May 2015, seeking a review of;
a.	The 1st Defendant’s decision to transfer him to Broadmoor,
b.	The 1st Defendant’s failure to seek an alternative medium secure place,
c.	The 1st Defendant’s failure to prescribe Clozapine,
d.	The 2nd Defendant’s decision of 26 March 2015 to accept YZ,
e.	The 2nd Defendant’s decision to convene an appeal panel rather that re-convene the original admissions panel.
7.	If permission was granted the Claimant would seek the following relief:
f.	A declaratory order, against the 1st Defendant, that the decision to withhold the option of Clozapine is unlawful, 
g.	A declaratory order that the decision to transfer him into Broadmoor Hospital is unlawful, (against both Defendants);
h.	A declaratory order that the transfer would breach his rights under Articles 3 and 8 ECHR, (against both Defendants); 
i.	A declaratory order that the constitution of the 2nd Defendant’s Appeals Panel on 26.03.2015 was unlawful;
j.	A quashing order in respect of that Appeals Panel decision dated 26.03.2015;
k.	Costs;
l.	Such further relief as the Court considers necessary.
8.	The matter was listed for urgent consideration before Patterson J on 11 May 2015 but on the Defendants’ undertaking not to transfer the Claimant pending the final hearing of the application the matter was adjourned for a “rolled up” hearing of the application for permission and the substantive claim.
9.	At the conclusion of the hearing which was adjourned into the new term as the Claimant’s submissions took considerably longer than originally envisaged, I gave my decision that permission would be refused. That was done in advance of the handing down of the judgment as the imperative in this case is that the Claimant receives the best available medical treatment in the appropriate setting. 
Claimant’s Chronology of Relevant Events

10.	
Date	Event	
1993	C born female	
xx.xx.09	Index offence committed age 15 (s. 18 GBH) against 12-year old “friend”; initially entered into voluntary foster care	
xx.08.09	C admitted to secure accommodation under s.25 Children Act 1989 	
20.11.09	Admitted to St Nicholas Hospital (Newcastle) under MHA 1983 	
01.10.10	C convicted of index offence: hospital order and restriction order made under ss.37/41 MHA	
xx.10.10	C begins living as male and adopts new name 	
24.04.12	Final psychiatric report from St Nicholas’ Hospital 	
04.06.12
	Incidents prior to trial leave to MSU “staff … felt both incidents were a direct result of [YZ]’s anxiety about commencing his trial leave to [the MSU]”	
06.06.12	Trial leave (2 days) to the MSU	
11.06.12	Dr A (at the MSU) seeks opinion of Broadmoor on security level 	
25.06.12	Broadmoor Consultant Forensic Psychiatrist rejects C for admission to high security; recommends specialist advice from Gender Identity Clinic at Charing Cross to “aid [YZ]’s management in a male medium secure setting”  	
28.06.12	Broadmoor admissions panel rejects C	
18.07.12	C transfers to the MSU age 19, under care of Dr A	
28.09.13	Assault by C against P1: shampoo bottle/pillow/strangulation for 4-5 seconds, C alerts staff that he “has done something really bad” 	
30.09.13
	Dr P refers C to Broadmoor, “his admission from 18.07.12 to very recently has been largely uneventful”	
21.10.13	Broadmoor Consultant Forensic Psychiatrist recommends admission to high security 	
07.11.13	Broadmoor admissions panel offer C a bed 	
25.11.13	Professionals meeting between Broadmoor and the MSU held in light of C’s transgender status: “he would need a minimum of 2:1 observation for his own safety which would impact on his progress”  	
23.12.13	C’s first appointment at Charing Cross Gender Identity Clinic and assessment by Consultant Psychiatrist and Psychosexual Therapist: “he is going to be changed to Clozapine this week which is a positive thing and I would advocate for assertive treatment of his psychotic illness which will also help the difficulties that he has with his personality” 	
25.02.14	C is reassessed; Broadmoor Consultant Forensic Psychiatrist recommends against admission to high security; of opinion it could be detrimental; states C does not meet criteria for high security - “At the current time the uncertainty of his future pathway is likely to be playing a role in the unsettled behaviour that has been observed and his sense of feeling rejected” 	
06.03.14	Broadmoor admissions panel consider C should not be admitted	
20.03.14	C’s last psychology session before the MSU, psychologist leaves; psychologist not replaced until November 2014	
03.06.14	C’s CPA review: C noted to be very stable, with discharge in Spring 2015 under consideration with referrals to a pre-discharge clinic and hostel service in preparation	
21.10.14	C absconds at gate of the MSU on return from psychology.  Approaches female member of public and asks for assistance to call the MSU to help him return to the unit; member of public stays with him until nurse arrives	
22.10.14	C assaults a patient by kicking him in the back	
04.11.14	C’s CPA review. “[YZ] has had a tumultuous time over the past 6 months.  He has intermittently disengaged with Clozapine, self-harmed, taken cannabis, absconded from the unit, and assaulted another patient.  This appears to have been in response to stressors such as missing his gender clinic appointment through no fault of his own, members of staff that he has developed strong attachments with leaving, and a recent influx of new residents to the clinic.  [YZ] has shown a great capacity for reflecting on his problems and has agreed to restart Clozapine in liquid form.  Over the past few days, there appears to have been an improvement in his presentation” Plan: for consideration of low-secure setting and referrals to appropriate units	
16.11.14	C’s “disengagement” with Clozapine	
19.11.14	Dr F tells C that he will start him on depot anti-psychotic instead of Clozapine, to start next day	
20.11.14	C kicks through fire door and goes to secure vehicle area; returns after persuasion 	
21.11.14	C discloses to Dr A that he and another patient made weapons, hands them over straight away; says he had not intended to use them 	
04.12.14	Dr F refers to Broadmoor in light of recent incidents	
11.12.14	C three weeks into depot of Risperdal Consta 	
14.12.14	C assaults nurse; is placed into MSU’s Intensive Care Ward (“ICA”) 	
02.01.15	Broadmoor Forensic Social Worker advises against admission to high security and suggests transfer to alternative MSU placement 	
05.01.15	SOAD authorises continuance of current depot antipsychotic medication “before reinstituting a trial of Clozapine” 	
16.01.15	Change in C’s psychiatrist/Responsible Clinician from Dr A to Dr M 	
16.01.15 at 17.23, by email	Broadmoor Consultant Psychiatrist communicates gist of report to Dr M by email: “In the end I have formed the opinion that he does not warrant high security.  During my initial discussion with [Dr A] I thought I would be recommending admission, but having gone through all the records in detail I have formed a different view.  I appreciate this might not be what [the MSU] had hoped for” 	
“	Broadmoor Consultant Forensic Psychiatrist’s report advises against admission to high security, notes “evident” breakdown in relationship between C and the MSU team “and possibly the MSU as a whole” and recommends transfer to an alternative MSU placement so that the Claimant can be treated in a therapeutic environment 	
12.02.15	Admissions panel sits	
19.02.15	“Conditional acceptance” by Broadmoor that they would take C if he was not taking Clozapine.  Panel notes that homemade weapons were not used but rather were self-presented to staff, that when C absconded he self-presented to someone shortly after escape; and that apart from the index offence “the single most worrying incident remains that of 28.09.13”. Panel further notes “even if the patient does recommence Clozapine and does improve, there is a real question for the panel members about whether the nature of the relationship between the patient and the staff at [the MSU] has been compromised to such an extent that some alternative medium secure placement should be considered”	
xx.02.15	C tells Dr M he “would rather go through the pain and discomfort of taking Clozapine than be transferred to Broadmoor” 	
03.03.15	C’s solicitor reiterates C’s request to take Clozapine 	
09.03.15	C’s solicitors send pre-action letter to D2	
23.03.15	Dr M provides letter regarding refusal to prescribe Clozapine 	
23.03.15	C’s solicitor writes to Broadmoor’s Clinical Director asserting “new” information has come to light since original decision 	
25.03.15	Broadmoor’s Clinical Director responds to C’s solicitor disagreeing that anything amounts to “significantly new information” 	
“	C’s solicitor responds noting disagreement and later enclosing submissions to the panel due to sit next day 	
26.03.15	Admissions Appeal Panel sits and decides to accept C, noting that two-to-one observations “would by no means be an inevitable feature of his entire admission” 	
02.04.15	Urgent pre-action letters sent to D1 and D2 	
“	D1’s email response confirming decision to suspend transfer “… this [transfer] will not now proceed pending further review and investigation” 	
“ 	D2’s email response “no action will be taken with regard to admitting [YZ] … without your prior notification and involvement”  	
21.04.15	D1’s Chief Exec (not via solicitors) sends a letter to C’s solicitors in response to an outstanding  complaint, and apparent response to pre-action letter 	
22.04.15	D2’s pre-action protocol Letter of Response 	
27.04.15	D1’s solicitors confirm that D1’s letter of 21.04.15 (above) is in lieu of a pre-action protocol Letter of Response 	
01.05.15	C due to be visited by Broadmoor, visit cancelled at short notice 	
05.05.15	C visited by Broadmoor  	
06.05.15 pm	D2 notifies C’s solicitors of transfer planned for 12.05.15	
08.05.15	Proceedings issued urgently with application for interim relief; hearing listed for 2pm on 11.05.15	
11.05.15	Confirmation that 2pm hearing vacated, following receipt of undertaking from D1/D2 not to transfer C pending resolution of proceedings	
15.05.15	D1 and D2’s Acknowledgments of Service, Grounds and statement of Dr M.	

11.	Not every comment in the above chronology is accepted by the Defendants as accurately representing the true position. It states the Claimant’s factual position at its highest. 
12.	It is clear that the Claimant’s psychiatric condition varies, occasionally rapidly and with serious consequences. There have been recent incidents of worrying violence or the threat of violence.
13.	On 16 November 2014 the Claimant is described as disengaging from treatment by Clozapine. “Disengagement” means the Claimant’s refusal to continue to accept the medication. Clozapine is an antipsychotic drug. It must be taken regularly, consistently and for a significant period of time before it begins to work to its full effect. In the Claimant’s case it had the unpleasant side-effect of causing severe constipation. Possibly for this reason, or this reason in combination with others, he refused to continue to take the medication. A sudden cessation of the medication can be dangerous in terms of general physical health. It is not a drug which can be stopped and started safely.
The Claimant’s Case
14.	The Claimant is a vulnerable psychiatric patient. The Defendants decided to transfer him from his medium secure psychiatric unit to conditions of greater security in Broadmoor Hospital.  The Claimant says this would be unlawful.
15.	He does not challenge his need for inpatient treatment.  He suffers from emotionally unstable and dissocial personality disorders.  He experiences recurrent psychotic symptoms, whether due to underlying mental illness or as a symptom of his emotionally unstable personality disorder.  These symptoms cause him distress, increase the risk he poses of violence and increase his risk of self-harm.  
16.	His condition is volatile. As recently as November 2014, he was being considered for a move from the MSU into a placement with a lower security rating.  By early December 2014, after deterioration in his mental state and incidents of violence or the threat of violence, the 1st Defendant’s psychiatrist referred the Claimant to Broadmoor Hospital for assessment. At that stage the 2nd Defendant did not feel admission to high security conditions was warranted. It is the subsequent acceptance of his admission that gives rise to this claim.
17.	The Claimant contends that transfer into Broadmoor would be unjustifiable.  Firstly because he would be subject to additional restrictions in that high security setting for his own protection as a vulnerable young transgender male.  Secondly and independently of that, the Claimant contends that transfer would be unlawful because:
(i)	     The antipsychotic drug, Clozapine, is available. It can be an effective treatment and could reduce the risk he poses to himself and others. He is aware of its effects and side-effects, and now says he wishes to re-start it.  
(ii)	     He contends that part of his current presentation is a result of his relationship with the MSU’s staff having broken down.  While this has had its own deleterious effect on his mental state, it is not a good reason to transfer him into high security; he says he should be transferred to another MSU.
(iii)	     The Claimant’s gender dysphoria, which has had an additional deleterious effect on his mental state and behaviour.  He says his condition is not being adequately treated. There is a demonstrable link between his dysphoria and his mental state, which has not been taken into account.  He has experienced a series of undue, and, he says, in all likelihood unlawful, delays in accessing appropriate medical treatment for his gender dysphoria while under the 1st Defendant’s care. The clinical evidence suggests that once it has commenced, his mental state will probably improve.
18.	In these circumstances the Claimant contends that his transfer into Broadmoor would be an unacceptable violation of the principle of least restriction in the Code of Practice to the Mental Health Act 1983 (“MHA”), and will violate his Article 3 and 8 Convention rights.  He should be managed by giving him appropriate treatment in medium security and not by transferring him to higher security. It is submitted that the conditions under which he would be detained in Broadmoor would be a violation of his Article 3 rights.
19.	There are a number of strands to the Claimant’s challenge.  He seeks permission for judicial review of:
(i)	The decision of the 1st Defendant (through his new psychiatrist, Dr M) to withhold Clozapine, which he says is the appropriate treatment, from him;

(ii)	The proposal of the 1st Defendant to transfer him to Broadmoor pursuant to its powers under s.19 MHA and Regulation 7 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 (SI 2008/1184), and 

(iii)	The proposal of the 2nd Defendant to accept him into Broadmoor pursuant to its Appeals Panel decision dated 26.03.2015 and its powers under the MHA;

(iv)	The 2nd Defendant’s decision to constitute its Appeals Panel on 26.03.2015 instead of referring the Claimant’s case back to the original Admissions Panel, contrary to its own published policy on “new information”.  It is said that there are two aspects to this challenge;

a.	That there was procedural unfairness, arising from a legitimate expectation that the mater would be referred back to the “original” admissions panel. It is submitted that this caused unfairness in that the original clinicians were already familiar with his case and that by not referring it back the Claimant was denied a further opportunity to appeal.
b.	It is additionally said to be irrational; based on an assertion that (i) the admissions criteria have not been followed, (ii) in any event the reasoning is insufficient, and (iii) relevant considerations have not been taken into account. 
The First Defendant’s Case
20.	The 1st Defendant submits that the Claimant’s applications for permission and for judicial review should fail, in summary for the following reasons:
(i)	Dr M has concluded in the exercise of his clinical judgement that it is not appropriate to treat the Claimant with Clozapine.  There is no other clinician willing and able to treat the Claimant with Clozapine.  In such circumstances, the Court should not order a clinician to treat a patient contrary to his professional judgment.
(ii)	The fact that the Claimant is detained does not alter that fundamental proposition of law.
(iii)	There are good and rational clinical reasons for not treating the Claimant with Clozapine. If that decision means that it is appropriate to transfer the Claimant to conditions of greater security, the decision does not give the Claimant a right, under Articles 3 and/or 8 of the ECHR, to treatment which is not appropriate in the view of the Responsible Clinician.
(iv)	The 1st Defendant is no longer able to manage the Claimant safely and effectively in its facility.  He is currently cared for in its Intensive Care Unit, largely segregated from other patients, and often in seclusion.  Despite this, he continues to threaten and attack staff, recently knocking a nurse unconscious.
(v)	There is no alternative MSU currently able to offer the Claimant treatment, and, contrary to the Claimant’s submission in writing, a placement at another hospital is not within the 1st Defendant’s “gift”.  In such circumstances, the Court should not order the 1st Defendant to transfer the Claimant to another Medium Secure Hospital.
(vi)	The 1st Defendant has decided to transfer the Claimant to Broadmoor Hospital because, in the professional opinion of the clinicians responsible for his care and treatment, that is where his needs for treatment and security will be best met.  The fact that another clinician, e.g. Dr P, has a different opinion does not render the decision of the 1st Defendant susceptible of judicial review.
(vii)	The arrangements proposed for the Claimant at Broadmoor Hospital do not reach the high threshold for a breach of Article 3 of the ECHR. Nor do they even reach the threshold for a breach of Article 8, since they are necessary and proportionate.  There is no evidence of a real risk to the Claimant upon transfer that reaches the minimum level of severity for a breach of Article 3.
(viii)	The Court must afford the clinicians and hospitals a margin of appreciation when asked to consider their decisions. 
(ix)	The 1st Defendant has had regard to all the relevant circumstances, including the Code of Practice under the Mental Health Act 1983 (MHA) in reaching its decision to transfer the Claimant to Broadmoor Hospital, and it has not, contrary to the Claimant’s submission “refused” to consider any relevant factor.
21.	In essence its case is that its clinical decisions about the treatment of a patient are not properly the subject of close scrutiny by the court. It is the primary decision maker; its doctors have the requisite expertise and skill. The supervisory jurisdiction of the court by judicial review is not engaged by the manner or effect of the decision taken in the Claimant’s treatment.
 The Second Defendant’s Case
22.	The 2nd Defendant acted properly in accordance with all relevant guidance and procedure in considering the referral by the 1st Defendant and all submissions made on behalf of the Claimant. It submits that:
m.	Prior to the decision to admit the Claimant, he had made lengthy written submissions relating to various matters including whether the admissions criteria were met, together with a report from an independent psychiatrist, Dr. P, all of which were properly considered.
n.	The first panel’s decision dated 19 February 2015 accepted the diagnosis of complex Personality Disorder with Anti-social and Emotionally Unstable traits. It concluded, by a majority, that the Claimant would be offered a bed at Broadmoor if he was not taking Clozapine. The conclusion did not depend on the reason why the Claimant was not taking Clozapine, merely the fact that he was not taking it. Nor was it “conditional” acceptance, as alleged by the Claimant. Further submissions were then drafted by the Claimant which were submitted to, and considered by, the Appeal Panel. 
o.	The Appeal Panel decision was dated 27 March 2015. It concluded unanimously that the Claimant should be admitted to conditions of high security. 
p.	The second Defendant contends that these decisions are matters of clinical judgment; that the decision to transfer is not subject to the court’s close scrutiny as a primary decision maker. 

Legal Framework
23.	The Claimant is detained under s. 37 of the Mental Health Act 1983. He is subject to restrictions on release under s. 41 of the MHA 1983.
s.37. Powers of courts to order hospital admission or guardianship.

(1)Where a person is convicted before the Crown Court of an offence punishable with imprisonment .......and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, ...............
 (2)The conditions referred to in subsection (1) above are that— 
(a)the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either— 
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or 
(ii)in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and 
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section. ................
s.41. Power of higher courts to restrict discharge from hospital.
(1)Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section. . . ; and an order under this section shall be known as “a restriction order”. 
(2)…………….. 
(3)The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows— 
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below; .....................................
 (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely— 
(i) power to grant leave of absence to the patient under section 17 above; 
(ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection 3 of that section; and 
(iii) power to order the discharge of the patient ........................

24.	The restrictions on his release under s. 41 of MHA 1983 do not affect his medical treatment and the duty to protect and safeguard him in the same way as those detained without restriction.
25.	“Medical treatment” is widely defined in s.145 MHA to include “nursing, [psychological intervention and specialist mental health habilitation, rehabilitation and care]” and s.145(4) provides that “any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”
26.	The rules for determining whether a patient has or lacks consent are the same as for any other person (Code of Practice, 24.30), i.e. it must be determined in accordance with the statutory test for capacity contained in the Mental Capacity Act 2005 (“MCA”), ss.1-3.
27.	A Code of Practice is provided by the Secretary of State pursuant to s.118 MHA.  S.118 (2A) provides that the Code “shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act”.  
28.	The guiding principles are set out and explained in Chapter 1 of the Code.  With regard to the principle of the least restrictive option, the Code requires that
1.4 “if the Act is used, detention should be used for the shortest time necessary in the least restrictive hospital setting available” and
1.5 “any restrictions should be the minimum necessary to safely provide the care or treatment required having regard to whether the purpose for the restriction can be achieved in a way that is less restrictive of the person’s rights and freedom of action”.
29.	Many authorities on “forced treatment” have been cited. That is not a helpful analogy. The treatment prescribed in this case is simply not the medication which he now says he wants to take. The Claimant now says he is willing to take it but the clinicians now say it is unsuitable. The Court will not order a clinician to treat a patient contrary to his professional judgment (AVS v A NHS Foundation Trust and A PCT [2011] EWCA Civ 7, following R (Burke) v GMC [2005] EWCA Civ 1003).
	38. The harsh fact is that, although Mr NT and Professor R are willing to replace the pump, there is no evidence of their present ability to do so. No hospital has been identified where that surgery can be undertaken. Without a new pump being inserted, there is nothing Dr P can do. This litigation is going nowhere. What the court is being invited to do is no more nor less than to declare that if a medical practitioner is ready, willing and able to operate and if a medical practitioner is willing, ready and able to replenish the supply of PPS, then it would be in the best interests of the patient to do so. The President was correct to identify the need for evidence from Dr P to plug this gap in the claimant's case. Without that evidence that someone is "able and willing to take over the care of [the patient] and treat him with PPS", we are dealing with a purely hypothetical matter. A declaration of the kind sought will not force the respondent hospital to provide treatment against their clinicians' clinical judgment. To use a declaration of the court to twist the arm of some other clinician, as yet unidentified, to carry out these procedures or to put pressure upon the Secretary of State to provide a hospital where these procedures may be undertaken is an abuse of the process of the court and should not be tolerated.
30.	Article 3 and 8 of the ECHR provide,
Article 3 Prohibition of torture 
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 8 Right to respect for private and family life 
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.

Discussion
31.	Many authorities on “forced treatment” have been cited. That is not a helpful analogy. In this case the 1st Defendant attempted to treat the Claimant by prescribing Clozapine. He refused to take it. The clinicians responded to that refusal and subsequent changes of circumstances by alternative treatment.
32.	The position in this case is similar to that in AVS. There is no clinician willing to prescribe Clozapine to this Claimant. The clinicians who currently treat him refuse to do so. In their professional judgment it would not be in his best interest. His recently declared willingness to take the drug to avoid the transfer does not alter that judgment. The court cannot and should not seek to decide what medical treatment is appropriate in these circumstances and declare an informed and justified decision unlawful. As Ward LJ said in AVS, “This litigation is going nowhere”.
33.	All three grounds pleaded against the 1st Defendant can be dealt with together as they are sequential decisions made by the 1st Defendant in the discharge of its duty to care for and detain the Claimant.
34.	The court will exercise a supervisory role through judicial review if the proper balance between promoting the best treatment of a patient in conditions of the least possible restriction and the need for that restriction in the best interest of the patient and the public is not achieved.
35.	It is not the duty of the court to investigate requests for alternative forms of treatment or “second opinions” from patients unhappy or dissatisfied with their treatment. 
36.	Just as it is no longer considered appropriate to treat the Claimant with Clozapine, it is no longer considered appropriate to detain him in conditions of medium security. The decision to transfer was taken carefully and through the correct procedures. It has, in fact, been ratified by Broadmoor’s decision to accept him as a proper candidate for detention in their facility.
37.	There is no alternative MSU able or willing to take the Claimant. The 2nd Defendant will detain him in circumstances which balance the least amount of restriction necessary with such measures required for his own safety and that of the other patients, staff and the public in general. There is nothing which comes close to creating any risk to his Article 3 rights.
38.	There is no basis upon which a judicial review of the decisions taken by the 1st Defendant could succeed. The claim is forensically hopeless.
39.	Equally the 2nd Defendant’s decision of 19 February 2015, to accept the Claimant cannot properly be the subject of judicial review. It was a rational decision open to the panel on the material before it. The rationale is clear.
“Aside from the index offence [presenting with weapons which the Claimant may have manufactured and secreted within a medium secure environment] which is disturbing, the single most worrying incident remains that of the 28.9.13 when YZ attempted to suffocate and strangle another patient. It was this piece of behaviour which persuaded a previous admissions panel that the risk should be managed in high security. Off clozapine, that is the risk which is currently ongoing i.e. a recurrence of the potentially life threatening assault in the context of disturbed and ‘acting out’ behaviour. 
The Panel agreed that off clozapine the risk of harm to others does in our view justify management within a high secure setting.”
40.	It is not a “conditional” acceptance. The decision is clear that when not taking Clozapine, as he was not at that date, the Claimant posed a risk serious enough to justify detention in conditions of high security.
41.	The declared willingness of the Claimant to re-start taking Clozapine followed within days. He appealed the decision of 19 February 2015.  On 12 March 2015 the 2nd Defendant wrote in response to the letter before claim stating that its practice was to decide whether any materially new information had been submitted, and in the view of the original panel chair there was no such new information, so an Appeal Panel would be convened, pursuant to its policy, rather than send the matter back to its admission panel. On 12 March 2015 the Claimant wrote seeking confirmation of the criteria to be used by the Appeal Panel. On 18 March 2015 the 2nd Defendant wrote confirming that the same criteria used by the original panel would be used by the Appeal Panel. On 23 March 2015 the Claimant wrote asserting that since the assessment by the 2nd Defendant there had been substantial changes to his treatment, circumstances and mental state, but as long as further evidence could be submitted, no issue was taken with the decision that an Appeal Panel would be convened. 
42.	The Appeal Panel sat and considered all the material before it, including all the further material submitted by the Claimant. Its rationale is clear,
“The panel were unanimously of the view that your client represents a significant risk to others that does meet the threshold for admission to conditions of high security. This risk is both chronic and acute and includes the risk of manufacturing or using weapons, a history of absconding, a risk of fire setting, a risk to children and a risk of subverting security. These risks were considered to be directly associated with YZ’s mental disorder and possibly exacerbated by the use of substances.”
43.	Additionally it considered the alternative option, now contended for by the Claimant, namely transfer to another MSU. It considered that not to be an appropriate course.
44.	There is nothing in the reasoning that is susceptible to judicial review. It is a clinical judgment. It was entitled to form the view it did about the need for security.
45.	The process was a rational one and one open to the 2nd Defendant. It found, on proper consideration, that there was no “new” material and accordingly it was not a proper course to hold another admissions panel. Rather it concluded it was being asked to reconsider its original decision, which it did. In any event no challenge to that process was raised at the time.
46.	There is no arguable ground for review made out. Accordingly permission is refused.