P, R (on the application of) v Mersey Care NHS Trust (Ashworth Hospital) & Ors

Where Parliament has entrusted decisions about a restricted patient’s transfer or leave to specified statutory decision-makers, the court must not substitute its own assessment of clinical risk. Article 8 does not convert the court into the primary decision-maker or make a Mental Health Review Tribunal’s recommendation binding. The statutory decision-makers must form their own judgment, considering all relevant evidence and any Tribunal recommendation. The court’s role is supervisory: it examines whether the decision-making process was lawful and whether the conclusion was reasonably open on the evidence. A Tribunal recommendation is an important input, but remains non-determinative.

The claimant was detained at Ashworth Hospital under a restriction order made under the predecessors to sections 37 and 41 of the Mental Health Act 1983. A Mental Health Review Tribunal decided that he should not be discharged but recommended an opportunity for trial leave in medium-security conditions. The hospital’s responsible medical officer had not supported the move, and the Secretary of State had decided that it was inappropriate until the claimant participated in relevant treatment.

The claimant challenged the failure to implement the recommendation by judicial review and under section 7 of the Human Rights Act 1998. The central issues were whether the Tribunal’s recommendation was binding, whether Article 8 required the court to determine the risk question for itself, and whether the statutory decision-makers had acted unlawfully.

1. Permission refused. The claimant’s challenge was not arguable. The question was whether the risk posed was sufficiently low to make medium-security accommodation appropriate rather than continued high-security detention.
2. That question had to be decided by those to whom Parliament had entrusted the relevant powers. Under sections 17 and 19 of the Mental Health Act 1983, the responsible medical officer’s powers were subject to the Secretary of State’s consent. Section 123 gave the Secretary of State a separate power concerning patients in special hospitals. The Secretary of State therefore had ultimate responsibility for the necessary judgment.
3. The court was not entitled to substitute its own view on risk. The approach in R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1945, [2002] 1 WLR 419, arose in the materially different context of forcible medical treatment.
4. The court’s role was supervisory. It had to examine whether relevant evidence had been considered, whether the Tribunal’s extra-statutory recommendation had been properly taken into account, and whether the decision reached was reasonably open on the evidence.
5. The Tribunal’s recommendation was an important input but was not determinative. The statutory decision-makers had to reach their own judgment and were not bound by the recommendation. The Secretary of State’s conclusion was reasonably open on the evidence. Article 8 did not alter the legal position established by the earlier authorities.

The wider policy question concerning transfer decisions and independent bodies was not decided. The time for appealing was extended to 28 days, and there was no order as to costs.

First-instance judicial review application. Permission to apply for judicial review was refused. The time for appealing was extended to 28 days.