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

A transfer direction under the Mental Health Act 2003, which seriously restricts liberty, may be made only when the statutory safeguards are scrupulously satisfied. The Secretary of State must be able to rely safely and properly on the medical reports, but the Act prescribes no fixed level of reasoning. The decision-maker must check that the reports give adequate reasons, address material issues, and do not conflict with known facts or statutory requirements. Reports may be read sensibly: necessary implications need not be restated by the doctors. The decision-maker is not generally required to investigate treatment engagement where the reports do not identify it as a live issue. Treatment must nevertheless be appropriate in the circumstances of the individual case and actually available to that person.

The appellant, a serving prisoner approaching release, was transferred to Rampton Hospital under a Secretary of State’s transfer direction supported by reports from two registered medical practitioners. He sought judicial review, arguing that one report did not satisfy the amended statutory requirements, particularly as to the availability and appropriateness of medical treatment. Burnett J refused to quash the direction on 12 February 2010 and held it lawful. The Court of Appeal considered whether the decision-maker could rely on the reports, including matters conveyed by necessary implication, and whether further investigation of the appellant’s willingness to engage with treatment was required.

1. Disposition. The appeal was dismissed. The transfer direction was lawful.
2. Statutory safeguards. A transfer direction under section 47 imposed a severe restriction on personal liberty. The Secretary of State therefore had to ensure that the statutory conditions were scrupulously satisfied. The treatment whose availability had to be established under section 47(1)(c) was linked to the treatment identified for the assessment under section 47(1)(b), and had to be actually available to the particular individual.
3. Medical reports. Section 47 prescribed no particular level of reasoning. The required degree of reasoning depended on context. The Secretary of State had to ensure that the medical practitioners had given adequate reasons, had not failed to address material issues, and had not conflicted with known facts or statutory requirements. The court applied the principles in R v SSHD ex p Gaynor Gilkes [1999] EWHC Admin 47 and TF v The Secretary of State for Justice [2008] EWCA Civ 1457, including the need to reject manifestly unreliable reports.
4. Appropriate treatment. Appropriateness had to be assessed by reference to the nature and degree of the disorder and all the circumstances. A known rejection of all treatment could be relevant, but the Secretary of State was not required to investigate treatment amenability where the medical material did not identify it as a live issue. The more detailed tribunal approach in DL-H the Devon Partnership NHS Trust v Secretary of State [2010] UKUT 108 (AAC) arose in a different context. R(DK) v Secretary of State [2010] EWHC 82 (Admin) concerned the predecessor provision and did not govern the present issue.
5. Necessary implication. The Secretary of State could give the reports a sensible meaning and rely on matters necessarily implied, but could not invent reasons absent from them. Dr Poole’s report, read fairly, necessarily implied that appropriate treatment was available in a high-security DSPD unit and was appropriate for SP. Dr Krishnan’s letter confirmed that a bed was available. A later renewal under section 20 or First-tier Tribunal review did not cure any illegality in the original direction.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 1590, 23 November 2010: appeal dismissed and the decision below upheld.
• Queen’s Bench Division, Administrative Court — Burnett J, 12 February 2010: refused to quash the transfer direction dated 11 December 2008 and held it lawful.