T, R (on the application of) v Nottinghamshire Healthcare NHS Trust & Ors

A policy for transferring detained patients between hospitals is lawful if it preserves consideration of each patient’s clinical needs and requires a proper balancing exercise. Judicial review is not a merits appeal against expert clinical judgment. An informal, post-decision explanation does not necessarily confine the authority to that explanation, unlike a formal decision letter recording the reasons for the decision.

The claimant, detained at Rampton Hospital, sought permission to challenge his proposed transfer to Broadmoor Hospital under section 19 of the Mental Health Act 1983 and regulation 7 of the Mental Health (Hospital Guardianship and Consent to Treatment) Regulations 1983. He alleged unlawful fettering, failure to consider clinical evidence, irrationality, breach of article 8, procedural unfairness and non-compliance with the Code of Practice.

The court considered whether the repatriation policy unlawfully constrained individual clinical judgment, whether the clinical evidence made the proposed transfer irrational, and whether the claimant had a fair opportunity to make representations.

1. Permission to apply for judicial review was refused. The claim was unarguable on the evidence. Interim relief therefore lapsed, and permission to appeal was also refused.
2. The repatriation policy was lawful in general terms. It recognised that a patient might have a clinical need to remain at the existing hospital and did not fetter the clinical judgment of the Trust or hospital managers.
3. The letter to the claimant’s mother was an informal, ex post facto explanation. It did not form part of a formal decision-making process. The defendants could therefore provide further explanation. The court distinguished R. v. Secretary of State for the Home Department, ex p Nelson and R. v. Criminal Injuries Compensation Board, ex p Cummins, which concerned formal decision letters.
4. Judicial review was not a merits review of expert clinical opinion. The issue was whether the psychiatrists’ views were irrational, in the sense that they could not reasonably have held them. That threshold was not met.
5. The claimant had an opportunity to express his views, including at a section 117 review, and those views were considered. There was no procedural unfairness or material breach of the Code of Practice. The evidence also did not show sufficient clinical or travel-related impact to engage article 8.
6. It was not irrational to consider the general need for high-security mental-health services among prisoners without identifying a particular prisoner, where the transfer was beneficial or broadly neutral for the claimant.

Ouseley J directed an oral hearing of the permission application and granted interim relief pending that hearing. Mr Justice Sullivan refused permission for judicial review and permission to appeal.