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

When consent is required for trial leave by a restricted patient, the Secretary of State must make an independent judgment whether the risks to other people are acceptable. That responsibility includes patients and staff in the proposed receiving hospital, not only the public at large. The Secretary of State is not bound by unanimous clinical advice and need not obtain a second clinical opinion, although the discretion must be exercised lawfully and on an informed evidential basis. The court reviews the process and rationality of the decision and does not substitute its own assessment of risk.

The claimant was detained at Ashworth Hospital under the Mental Health Act 1983 and subject to a restriction order. His responsible clinician applied under section 17, with the Secretary of State’s consent required under section 41, for 12 months’ trial leave to Thornford Park Hospital in medium security.

Clinical professionals considered that he no longer required high security, but recognised that his risk to the public remained high. The Secretary of State refused consent, relying on the previous unsuccessful period in medium security, the claimant’s ambivalence about proposed conditions, and his limited insight. The claimant sought judicial review, alleging unfairness, irrationality, disproportionality, insufficient inquiry and an error of fact.

1. Claim dismissed. Permission was granted, but the substantive claim was rejected and the Secretary of State’s decision was held lawful. Detailed assessment of the claimant’s publicly funded costs was ordered.
2. Under sections 17 and 41 of the Mental Health Act 1983, the Secretary of State had to decide for himself whether the risks arising from trial leave were acceptable. The protective duty extended to the patients and staff of Thornford Park.
3. The Secretary of State was entitled to differ from the unanimous clinical opinion that the claimant could be managed safely in medium security, provided that he had cogent reasons. He was not required to obtain a second clinical opinion.
4. The relevant reasons were the previous failure of medium-security leave, the claimant’s ambivalence about its conditions, his relatively unchanged attitude towards his offences and his limited insight. These matters justified the judgment that safe management depended on the claimant’s willingness to accept the proposed regime.
5. The court rejected the complaints of insufficient inquiry, unfairness, irrationality, disproportionality and factual error. Even applying more intense scrutiny, the decision remained lawful.

First-instance judicial review in the Administrative Court. Permission was granted, but the claim was dismissed. Permission to appeal was refused by the judge; any application was to be made to the Court of Appeal.