Mental Health - July 2010
Transfer responsibility
Where a mental health patient is transferred from prison
to hospital, there can be problems if out-of-date forms are
used
A recent High Court case concerned the
transfer of a patient from HMP Frankland to Rampton Hospital
(R (SP) v Secretary of State for Justice, 12
February 2010). The transfer was made under section 47 of the
Mental Health Act 1983 (MHA), and it had the same effect as a
hospital order made under that Act.
The patient in question had been sentenced to
seven years’ imprisonment, and he was considered both dangerous and
to be suffering from mental disorder within the meaning of the MHA.
Any hospital transfer would be at the direction of the Secretary of
State, and he would have to be provided with reports from at least
two registered medical practitioners, stating that the prisoner
suffered from a mental disorder, that the disorder was of a nature
or degree that made it appropriate for him to be detained in
hospital for medical treatment, and that appropriate medical
treatment was available for him. This last requirement proved to be
troublesome.
When the Secretary of State made the ‘transfer
direction’, he relied upon reports provided by Dr A, who used a new
form that reflected amendments to section 47 made in 2008, and by
Dr B, who used an old form that reflected the un-amended
provision. The significant difference lies in Section
47(1)(c). The old form deals with the question of ‘treatability’
and asks whether medical treatment “is likely to alleviate or
prevent a deterioration of” the patient’s condition. The new
form, however, asks whether “appropriate medical treatment is
available for him”.
It was accepted that when filling in the new
form, Dr A had applied the appropriate test. The patient
argued, however, that Dr B had failed to do that, because, when
using the old form, she had neither considered the availability of
appropriate treatment nor provided any reasons why the proposed
treatment was appropriate.
Giving judgment, Burnett J said that when a
transfer direction is challenged, two questions must be considered:
did the decision-maker actually apply her mind to the statutory
criteria and was there sufficient material before her to sustain
the conclusion?
The judge was clear that Dr B had not applied
her mind to the new statutory criteria. But he nevertheless
found that the reports of the two doctors did provide a sound
foundation for the conclusion that ‘appropriate medical treatment'
was ‘available’ for the patient. Dr B had recommended treatment in
a special hospital because, she said on the form, she thought such
treatment was likely to alleviate or prevent deterioration of the
patient’s condition. He needed to go to a unit that could
provide treatment for a dangerous and severe personality disorder,
and outside the prison system, such treatment was only available at
Rampton Hospital. In those circumstances, the judge said it was
implicit in the information provided by Dr B that she believed the
treatment was available at Rampton. The patient’s transfer would
therefore be lawful.
The, no doubt inadvertent, use of an old form
caused confusion in this case and gave the patient an opportunity
to challenge a transfer that most seem to have accepted was
clinically appropriate. The changed wording of the new form
reflects changes made by the Mental Health Act 2007. It should be
borne in mind that those changes were fundamental (as well as
controversial) and, as this case perhaps makes plain, affected
rather more than the mere surface of the Act.
Simon Charlton,
Associate
Weightmans LLP
The case mentioned in this article may be
found here.