K, R (on the application of) v West London Mental Health NHS Trust

A responsible medical officer may grant leave under Mental Health Act 1983, including leave requiring residence at another hospital, on clinical and safety grounds. That grant does not itself authorise or require the responsible health authority to fund the placement. The authority must separately balance the clinical advantages and disadvantages against its available resources. It must give due weight to the responsible medical officer’s opinion, but may reach a different clinical view for good and substantial reasons. A decision based on an unreasonable clinical assessment may be challenged on Wednesbury grounds. The court’s role is to review the reasonableness of the authority’s decision, not to substitute its own clinical judgment.

The claimant was a restricted patient detained at Broadmoor Hospital under sections 37 and 41 of the Mental Health Act 1983. His responsible medical officer supported a trial placement at Farmfield Hospital, a private medium secure hospital, and the Secretary of State agreed to the move in principle.

The defendant NHS Trust refused to fund the placement. It relied principally on the contrary clinical assessment of another consultant, who considered that the claimant should remain at Broadmoor. The claimant sought judicial review, arguing that the grant of leave under section 17 required the Trust to fund the proposed stay and that its clinical decision was unreasonable.

1. Permission and substantive outcome. Permission to bring judicial review proceedings was granted, but the relief sought was refused.
2. Separate statutory functions. A grant of leave under section 17 of the Mental Health Act 1983 is distinct from a transfer under section 19. Section 17 permits the responsible medical officer to authorise absence, including a trial stay at another hospital. It does not empower the officer to commit the health authority to expenditure. The responsible medical officer decides whether leave is clinically appropriate; the hospital managers decide whether the authority’s resources should fund the proposed stay.
3. Funding decision. In deciding whether to fund a stay for which leave has been granted, the managers must balance clinical and resource considerations. They must give due weight to the responsible medical officer’s opinion, but are not bound by it. If they reject that opinion, they should have good and substantial reasons. Differences of expert medical opinion are not unusual. The principles were supported by R on the application of F [2001] EWHC Admin 535, at paragraphs 60–72.
4. Judicial review standard. The issue was whether the Trust could reasonably conclude that the claimant was not clinically fit to leave Broadmoor for any medium secure hospital. Although substantial medical evidence supported the proposed move, the Trust was entitled to prefer the recent assessment of Dr Bustos. The court could not substitute its own view of the clinical evidence. On the material available, the decision was one the Trust could reasonably reach and was not Wednesbury unreasonable.
5. The court nevertheless considered it desirable for the Trust to obtain a full and current report specifically addressing a trial stay at Farmfield, following a visit to Farmfield and consultation with its consultant psychiatrist. The clinical issue might then require reconsideration.

Not stated in the judgment. This was a first-instance judicial review decision of the High Court (Administrative Court).