Mental Health - April 2010
The importance of procedure
Where the law requires reports from
doctors, it is they, and they alone, who must provide
them.
That, at least, was the finding of the High
Court in a recent case concerning DK, a man who was imprisoned in
November 2001, having been convicted of three offences of violence
(R (DK) v Secretary of State for Justice [2010]
EWHC (Admin) 82). DK’s release date was 29 August 2008.
In April 2006, however, he was transferred to Broadmoor Hospital
under section 47 of the Mental Health Act 1983, so that he could be
treated for psychopathic disorder. On 12 July 2007, a Mental
Health Review Tribunal decided that DK could be discharged from
hospital, a decision that would have seen him returned to
prison.
The Tribunal was not satisfied that the
‘treatability test’ had been met in DK’s case; it felt that, in
part because of his own failure to co-operate, he had not received
any treatment that assisted his condition. For his part, DK wished
to ensure that he was returned to prison, so that he could
qualify for release on a particular date, rather than being
detained in hospital indefinitely.
Once DK was back in prison, it became clear to
the doctors treating him that he was suffering from psychopathic
disorder, and the possibility was mooted of his being returned to
hospital. The psychopathic disorder alone would not suffice, of
course: for any transfer to be warranted, hospital treatment would
have to be likely to “alleviate or prevent a deterioration” of DK’s
condition, and the Secretary of State would have to be satisfied
that that was the case on the basis of reports from at least two
registered medical practitioners.
This ‘treatability’ issue had been recognised
as crucial by the Ministry of Justice, and a report was
commissioned that confirmed that treatment would prevent further
deterioration of DK’s condition. That report was based on the views
of a Dr Ross, a registered medical practitioner, and a Dr Walker,
who is a psychologist.
In his judgment, Mr Justice Collins carefully
examined the relevant provisions of the Mental Health Act, and he
reviewed the forms used when a patient becomes a prisoner (and
vice versa). The judge noted that alongside Doctors
Ross and Walker, three registered medical practitioners had
produced reports, but that none of them had explicitly dealt with
the question as to whether DK was treatable. Thus, only one
registered medical practitioner – Dr Ross - had addressed the
‘treatability’ issue and the correct procedure had not been
followed.
It was held, therefore, that the Secretary of
State’s decision once again to return DK to Broadmoor had been
unlawful. Collins J found that if DK had not been detained in
hospital, he would have been released from prison on 31 August
2008, and his license would have expired at the end of June
2009. The judge therefore ordered that DK be released
forthwith. (It is apparent from the note of exchanges between the
judge and DK’s barrister that, because of his ongoing mental
disorder, DK was to be detained afresh immediately upon his
release, this time under section 3 of the Mental Health Act).
The exact circumstances of this case are
unlikely to repeat themselves, not least because, as from November
2008, it is the availability - rather than the taking
of - treatment that is material to the question whether an
individual should be detained under the Mental Health Act.
This is, nevertheless, a cautionary tale for those who do not
adhere to the relevant procedures, especially when the liberty of
an individual turns upon their decisions.
Simon Charlton,
Associate
Weightmans LLP
The full judgment in this case may be found
here.