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

A responsible medical officer’s power under the Mental Health Act 1983 to grant leave of absence, including leave for a trial move to another hospital, does not oblige the Secretary of State or a delegated NHS body to fund the placement.

Under section 3 of the National Health Service Act 1977, the funding decision-maker may assess reasonable requirements, resources, priorities, likely treatment success and the seriousness of the condition. The RMO’s clinical opinion is relevant but not binding. Its weight depends on all the circumstances, including the RMO’s experience, the strength of the opinion, other clinical views and the reasons for disagreement.

The claimant was detained at Broadmoor Hospital under a hospital order and restriction order. His responsible medical officer considered that he should have trial leave to move to Farmfield, a medium-security hospital. The defendant NHS Trust’s panel refused to fund the proposed placement, relying on contrary clinical views.

Lightman J dismissed the claimant’s judicial review challenge. He held that the RMO decided whether leave under the Mental Health Act 1983 was clinically appropriate, while the funding managers decided whether resources should be committed. The appeal concerned whether the RMO’s decision was binding, whether the funding decision-maker could disagree with it, and whether the decision-making process unlawfully failed to take proper account of the RMO’s opinion.

The appeal was dismissed unanimously. Lord Justice Dyson gave the judgment, with Lady Justice Arden and Lord Justice Waller agreeing. The claimant was not entitled to the relief sought.

1. Section 17 of the Mental Health Act 1983 gives the RMO power to authorise a detained patient’s absence from hospital, subject to conditions. It may be used to permit a trial move to another hospital, but it does not confer power to direct the Secretary of State, a Primary Care Trust, an NHS Trust or a funding panel. The Secretary of State therefore had no duty to implement or fund the RMO’s decision. The court held that R(F) v Oxfordshire Mental Health NHS Trust [2001] EWHC Admin 535 was correctly decided.
2. Section 3 of the National Health Service Act 1977 assigns the service-provision judgment to the Secretary of State or delegate. That judgment may include consideration of available resources, priorities, the likely success of proposed treatment and the seriousness of the condition. The statutory duty is not specially restricted by an RMO’s decision under section 17. The specific and limited after-care duty under section 117 of the Mental Health Act 1983 provided no basis for implying a wider funding duty.
3. The decision-maker may consider all relevant information, including the RMO’s opinion and the views of clinicians responsible for medium- or low-security services. The RMO’s clinical judgment is relevant but is not legally determinative. It would be irrational to prevent the decision-maker from considering other expert clinical opinions or the competing demands for secure services.
4. The court declined to declare that the Panel or Secretary of State must generally give great weight to an RMO’s opinion. Weight is for the decision-maker in the circumstances of the particular case. Relevant considerations include the length of time the RMO has been responsible for treatment, the strength of the opinion, the weight of other clinical views and the reasons for disagreement. Although the RMO had not been invited to a Panel meeting, an undertaking to invite him meant that no declaration was pressed. It was unnecessary to decide whether the Panel had relied solely on clinical considerations.

• Court of Appeal (Civil Division) — The appeal from Lightman J was dismissed. The claimant was not entitled to relief on any of the three issues argued. [2006] EWCA Civ 118
• Administrative Court — Lightman J dismissed the judicial review challenge to the refusal to fund a placement at Farmfield. He held that the RMO determined the clinical appropriateness of leave, while the funding managers decided whether resources should be committed and could balance clinical and resource considerations.