TF, R (on the application of) v Secretary of State for Justice

A transfer direction under section 47 of the Mental Health Act 1983 is lawful only where the Secretary of State is satisfied, by reports from at least two medical practitioners, of every statutory condition. For psychopathic disorder, this includes that hospital treatment is likely to alleviate or prevent deterioration.

Where the statutory conditions are absent, the Secretary of State has no power to direct transfer and the resulting detention is unlawful. A court cannot preserve that detention by refusing judicial-review relief because further inquiries would hypothetically have produced evidence sufficient to justify a fresh decision.

The appellant was serving a sentence of imprisonment due to expire on 12 September 2008. On the previous day, the Secretary of State issued a section 47 transfer direction requiring his removal to a medium-secure hospital. He had expected release into the community.

Mrs Justice Cox held that the medical material did not permit satisfaction that treatment was likely to alleviate or prevent deterioration in his condition. She nevertheless refused relief because further inquiries would, in her view, have led to the same transfer decision: [2008] EWHC 2912 (Admin). The appellant appealed that refusal, while the Secretary of State challenged the finding that the statutory condition had not been met.

1. Appeal allowed unanimously. Waller LJ, with whom Thomas and Aikens LJJ agreed, held that the Secretary of State lacked power under section 47 to make the transfer direction. The appellant’s resulting detention was unlawful.

2. Section 47 required satisfaction, by reports from at least two medical practitioners, of both the relevant mental disorder and, for psychopathic disorder, the likelihood that hospital treatment would alleviate or prevent deterioration. A direction made at the end of a sentence deprives the person of liberty who would otherwise be released. That context requires rigorous scrutiny by both the decision-maker and the court. Public-danger concerns cannot substitute for evidence that the statutory medical and treatability criteria are met.

3. The two form reports signed by Drs Morris and Isweran contained bare declarations about treatability but gave no reasons for that conclusion. Their substantive reports addressed diagnosis and risk of further offending, not whether treatment would alleviate or prevent deterioration. Dr Ijomah’s report did address treatability, but it was only one report. The decision-maker’s evidence also did not show that she had considered whether she had two qualifying medical opinions on treatability.

4. The Court accepted that the reports could be treated as current on diagnosis because the condition was enduring and the appellant had refused recent examination. That did not answer the separate statutory question of treatability.

5. Applying the distinction in R v Secretary of State ex p Cheblak, a discretionary refusal of relief cannot make lawful a detention for which the Secretary of State had no statutory authority. The earlier decision in ex p Gilkes did not justify retaining the invalid warrant. Once quashed, any lawful hospital detention had to rest on another applicable statutory power.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal and held that the transfer direction had to be quashed: [2008] EWCA Civ 1457.
• High Court, Administrative Court: Held that the statutory evidence of treatability was insufficient, but refused relief in its discretion because further inquiries would have produced the same transfer decision: [2008] EWHC 2912 (Admin).