Pickering, R (on the application of) v Ashworth Hospital Authority

At the permission stage of judicial review, the court should not resolve a mere difference of medical opinion. Permission may nevertheless be appropriate where the evidence arguably shows that a decision was based on a materially inaccurate understanding of relevant treatment or placement options, or where significant complaints remain unanswered. An objection that another remedy may be available may be left for substantive hearing where its proper effect has not been determined. Granting permission expresses no view on the merits.

The claimant, a restricted patient at Ashworth Hospital, challenged his transfer from Owen Ward to the higher-security Ruskin Ward after declining a sex-offender treatment programme. He also challenged restrictions on telephone, postal and personal contact, said to engage Articles 8 and perhaps 10 of the European Convention on Human Rights. Carnwath J refused permission on 10 November 2000, relying on an alternative remedy through the Mental Health Act Commission. On renewal, the Court of Appeal considered updated evidence, including a letter indicating that Kemple View had not required prior completion of the treatment programme. The central issue was whether the material disclosed an arguable basis for judicial review.

Laws LJ gave the first judgment, with Thorpe LJ agreeing.

1. Disposition. The renewed application was allowed. Permission to seek judicial review was granted and the matter was remitted to the Administrative Court. The court expressed no concluded view on the facts or merits.
2. Medical evidence and factual error. Judicial review was not a means of resolving a difference of medical opinion. The case was not confined to that issue. The letter from Kemple View suggested that the hospital’s understanding of the transfer prospects, and of the significance of the sex-offender treatment programme, might have been inaccurate. That possibility sufficiently justified permission because the decision to transfer the claimant to Ruskin Ward might properly be corrected by the court if based on a material misunderstanding.
3. Unanswered complaints. The evidence did not wholly and satisfactorily refute the allegation that the transfer had a punitive element. Nor was it clear that the complaints about contact with other persons, said to engage Articles 8 and perhaps 10 of the European Convention on Human Rights, had been answered.
4. Alternative remedy. Carnwath J had relied on the processes available before the Mental Health Act Commission. Laws LJ considered that, if the alternative-remedy issue remained, it should be addressed at a substantive hearing between the parties rather than determining the permission application on the material then available.
5. Order. Application granted; permission granted; matter remitted to the Administrative Court. Legal Aid detailed assessment ordered.

• Court of Appeal (Civil Division) — On the renewed application, permission to seek judicial review was granted and the matter was remitted to the Administrative Court: [2001] EWCA Civ 883.
• Administrative Court — Carnwath J refused permission on 10 November 2000. The Court of Appeal allowed the renewed application and remitted the matter.