Morley (R on the application of) v Nottinghamshire Health Care NHS Trust & Anor

Under section 50(1) of the Mental Health Act 1983, the responsible medical officer must make proper and fair enquiries within the hospital before notifying the Secretary of State that no effective treatment can be given. The officer need not disclose every report or contrary clinical view, provided the statutory clinical judgment is made on an adequately informed basis. The Secretary of State may ordinarily rely on a fairly and rationally made notification and need not permit representations before directing remission to prison. The treatability test must be applied in good faith and must not be used as a cover for decisions taken on other grounds. A lawful transfer between hospital and prison during a life sentence did not, on the facts, engage or breach Article 8 of the Convention.

The applicant, serving a life sentence, had been transferred from prison to Rampton Hospital under sections 47 and 49 of the Mental Health Act 1983 because he suffered from psychopathic disorder and was considered treatable. His responsible medical officer later notified the Secretary of State under section 50(1) that no effective treatment could be given at the hospital. The Secretary of State issued a warrant remitting him to prison.

Burton J dismissed the application for judicial review. The Court of Appeal allowed an amendment and admitted fresh evidence, then considered whether the Trust had failed to make fair enquiries or disclose contrary clinical material, whether the Secretary of State owed a duty to receive representations, and whether the decisions breached Article 8.

1. Appeal dismissed. The Court held that the statutory responsibility for the clinical judgment under section 50(1) lay with the responsible medical officer. The treatability test had to be applied in good faith and could not be used as a cover for decisions taken on other grounds.
2. The responsible medical officer owed a correlative duty to make proper and fair enquiries within the hospital before notifying the Secretary of State. The extent of enquiry and disclosure depended on the circumstances and was normally assessed at the time of decision. That duty did not require disclosure of reports dealing with individual components of treatment or every contrary view within the multidisciplinary team. The officer had to take an overall clinical view.
3. Progress in one treatment programme did not necessarily establish that the statutory treatability test was satisfied. Nor was an independent psychiatric report necessarily required to be disclosed where it was based on an earlier examination, reflected a different perspective, and the responsible medical officer had considered and rejected it.
4. The notification contained sufficient information. The responsible medical officer had made adequate enquiries, and the rationality of his clinical judgment was not challenged. Subsequent meetings confirmed rather than undermined the decision.
5. In this statutory context, the Secretary of State was not required to give the applicant an opportunity to make formal representations before issuing the warrant. Further enquiries or action might be required where the information available created such a duty, but no such circumstances arose.
6. The decisions did not breach Article 8. Transfer between prison and hospital as part of a lawful high-security custodial regime did not, on these facts, fall within the concept of respect for private life. The Court also accepted that, even if further inquiries had been required, there was no reasonable possibility that the outcome would have differed.

• Court of Appeal (Civil Division) — appeal from Burton J in the Administrative Court, whose judgment dated 27 June 2002 dismissed the application for judicial review. Appeal dismissed.