F, R (on the application of) v Secretary of State for the Home Department

Under section 47 of the Mental Health Act 1983, the Secretary of State must be satisfied, on reports from at least two registered medical practitioners, that the statutory conditions for transfer to hospital are met. Reports must provide reliable evidence on each condition, including treatability. Ambiguous or inconsistent medical opinions require further investigation before a transfer warrant is issued. A failure to satisfy the statutory test makes the decision unreasonable in the Wednesbury sense and may render detention contrary to article 5. However, the court retains discretion over relief. Subsequent evidence may justify refusing to quash the decision where it demonstrates that a properly conducted decision would inevitably have produced the same result.

The claimant, whose custodial sentence was due to expire, was transferred directly from prison to a medium-security psychiatric hospital under a warrant issued pursuant to section 47 of the Mental Health Act 1983. He challenged the warrant on grounds including irrationality, failure to comply with the statutory medical requirements, breach of article 5 of the European Convention on Human Rights, and lack of power to transfer him on the day of release.

The Secretary of State relied on reports from three psychiatrists, but two of the relevant reports raised doubts about treatability and were not recent. The central issue was whether the statutory requirement concerning the likelihood that treatment would alleviate or prevent deterioration had been satisfied.

1. The application was dismissed and relief was refused. The Secretary of State was entitled to rely on the medical evidence to conclude that the claimant suffered from psychopathic disorder and that detention in hospital was appropriate. The first two statutory requirements were therefore met.
2. The position was different regarding treatability. Although two doctors had signed forms expressing the statutory opinion, their detailed reports raised serious doubts about whether treatment was likely to alleviate or prevent deterioration. Those reports were ambiguous and inconsistent with the declarations on the forms. Further investigation and clarification were required before the warrant was issued.
3. The decision-maker did not demonstrate that treatability had been considered. The inquiry had focused on the validity of the reports, the claimant’s mental disorder and the hospital’s security level. The Secretary of State therefore could not have been satisfied, on reports from at least two registered medical practitioners, that the statutory treatability requirement was met. The decision was unreasonable in the Wednesbury sense.
4. The resulting detention was also contrary to article 5(1) of the European Convention on Human Rights because it was not in conformity with domestic law or pursuant to a lawful order for the detention of a person of unsound mind.
5. The court nevertheless declined to quash the warrant. Later detailed reports from both doctors addressed the statutory requirements and established that, had proper clarification been sought before the decision, the same transfer direction would have been made. In those circumstances, the court considered it inappropriate to grant relief.
6. The Secretary of State had power to transfer the claimant on the day his sentence expired. The lateness of the transfer was an undesirable and relevant circumstance, but it did not itself invalidate the power. The application for permission to appeal was refused.

First-instance judicial review proceedings. Permission to apply was granted by Bennett J on 31 October 2008. No earlier judgment in the proceedings is stated.