D, R (on the application of) v Secretary of State for Home Department & Anor

The Secretary of State’s power under Mental Health Act 1983, section 47 is accompanied by a duty to act in appropriate circumstances. Once the prison service has reasonable grounds to believe that a prisoner requires hospital treatment, the Secretary of State must expeditiously obtain appropriate medical advice and, if the advice confirms the need for transfer, take reasonable steps within a reasonable time to secure it.

The steps required depend on the circumstances, including the risk to the prisoner’s health. A lack of an appropriate hospital place or disagreement between psychiatrists may explain delay. Inappropriate detention in prison may engage Articles 8 or, in sufficiently severe cases, Article 3 of the Convention. The National Assembly for Wales had a duty to take reasonable steps to obtain appropriate specialised child and adolescent mental health services, but not to provide those services itself.

The claimant, a young person detained at a young offenders institution, repeatedly self-harmed and displayed symptoms of mental disorder. Various psychiatric assessments considered whether he should be transferred to hospital under section 47 of the Mental Health Act 1983. He was eventually transferred to St Andrew’s Hospital after interim orders made during the proceedings.

He sought declarations and damages against the Secretary of State for the Home Department and the National Assembly for Wales, alleging unlawful delay in obtaining medical recommendations, making a transfer direction, and securing an appropriate hospital placement. The central issues were the scope of the Secretary of State’s duty, the National Assembly’s commissioning duty, and whether either defendant had breached his Convention rights.

1. The claim was dismissed. The claimant had suffered considerable distress and pain, but the delay in transfer was not shown to result from a breach by either defendant of his Convention rights.
2. Section 47 of the Mental Health Act 1983 requires sufficiently consistent medical reports, an appropriate hospital, and a place available within 14 days. The provision must be applied with regard both to the benefits of transfer and to the serious consequences of changing the basis of detention from a finite custodial sentence to potentially indefinite detention under the Act.
3. Once the prison service has reasonable grounds to believe that a prisoner requires treatment in a mental hospital in which he may be detained, the Secretary of State must expeditiously obtain appropriate medical advice. If that advice confirms the need for transfer, he must take reasonable steps within a reasonable time to effect it. The steps required depend on the circumstances, including the apparent risk to the prisoner’s health.
4. Agreement by the receiving hospital is not an express statutory precondition to a transfer direction. In practice, however, it will normally be necessary because the hospital must be able to provide suitable treatment and have an available place. The power cannot reasonably be used to compel a hospital without a vacancy or without appropriate treatment.
5. Inappropriate retention in prison may infringe Article 8 of the Convention. If sufficiently severe, it may amount to treatment contrary to Article 3, engaging an absolute duty on the state to prevent or end it. Domestic legislative difficulties do not justify a breach of Convention rights, although they may explain the Secretary of State’s domestic liability.
6. The National Assembly’s statutory commissioning function included taking all reasonable steps to obtain appropriate specialised child and adolescent mental health services for the claimant. It did not impose a duty on the Assembly to provide those services itself.
7. The evidence showed conscientious efforts by the prison staff and the National Assembly’s officers. The transfer was impeded by the absence of suitable adolescent placements and inconsistent psychiatric opinions. The Home Office Mental Health Unit should have been involved earlier, but it was not shown that earlier involvement would have secured an earlier transfer.
8. As procedural guidance for complex claims involving alleged fault, the allegations should ordinarily be pleaded before witness statements are finalised, with chronological bundles and directions where necessary.

This was a first-instance judicial review and human-rights claim. Interim orders were made by Silber J on 3 October 2003 and by Davis J on 13 October 2003, resulting in the claimant’s transfer to hospital on 14 October 2003. The substantive claim was then determined by the Administrative Court.