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

Detention of a pre-operative male-to-female transsexual in a male high-security psychiatric hospital does not automatically breach Articles 3 or 8 of the Convention. The legality and proportionality of the detention depend on the individual circumstances, including clinical risk, treatment needs, available facilities, the patient’s dignity and privacy, and the availability of a suitable alternative placement. Article 3 requires careful restraint and is not engaged by distress or indignity falling substantially below the required threshold. Under Article 8, detention may remain justified where the Secretary of State acts on reasonable and responsible grounds, no appropriate alternative bed is available, and the patient is treated sensitively with due regard to gender-related needs. Transsexuality alone does not require placement in a female ward.

The claimant, a male-to-female transsexual without operative gender reassignment treatment or a certificate under the Gender Recognition Act 2004, was transferred from prison to Ashworth Hospital under sections 47 and 49 of the Mental Health Act 1983. She challenged both the transfer and the continuing failure to move her to a female or mixed-sex unit, alleging breaches of Articles 3 and 8.

After the claim was issued, she was transferred to the Caswell Clinic. The claim continued principally as an amended claim for damages and declaratory relief concerning her detention at Ashworth. The central issues were whether the original transfer was unlawful, whether the continuing detention at Ashworth breached Articles 3 or 8, and whether the Secretary of State should have exercised his power under section 123 of the Mental Health Act 1983.

1. The claim failed. The decision to transfer the claimant to Ashworth under section 47 of the Mental Health Act 1983 was lawful. It was supported by substantial psychiatric evidence that she posed a serious risk, was treatable, and required high security. The Secretary of State was entitled to prefer that evidence despite the Ashworth team’s view that a medium-secure placement might ultimately be preferable.
2. The claimant’s detention at Ashworth did not reach the Article 3 threshold. The evidence did not establish self-harm, assault, acute distress, or significant psychiatric detriment caused by the placement. The hospital provided sensitive and individualised treatment, respected her privacy and dignity, and accommodated her gender-related needs as far as its security arrangements permitted.
3. Article 8 was engaged because detention in a secure psychiatric unit intruded into private life. It was nevertheless justified and proportionate. The claimant’s transsexuality did not, by itself, require detention in a female ward. The assessment had to take account of her particular clinical needs, the risk to herself and others, the nature of the treatment required, and the practical suitability of alternative hospitals.
4. The Secretary of State was entitled not to exercise the transfer power under section 123 at the relevant time. The absence of an appropriate available bed, the need for a suitable care package, the clinical unsuitability of Rampton, and the ongoing efforts to secure a medium-secure placement supplied reasonable and responsible grounds for retaining the claimant at Ashworth temporarily.
5. The court accepted the general principles concerning dignity, personal autonomy and transsexual identity stated in I v United Kingdom [2003] 36 EHRR 967, but held that those principles had to be applied to the particular facts. The court declined to assess damages because no Convention breach was established, while expressing disquiet about the amended damages claim and directing that the judgment be sent to the Legal Services Commission.

This was a first-instance judicial review and human-rights claim in the Administrative Court. Permission had been granted by Bean J on 29 June 2005. The claimant was later transferred to the Caswell Clinic, but the amended damages and declaratory claims proceeded.