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

A decision-maker considering a transfer direction under section 47 of the Mental Health Act 1983 must address the statutory criteria and have material sufficient to support the conclusion that appropriate medical treatment is available. In a case transferring a prisoner into hospital detention at the end of the custodial period, both the decision-maker and the court must apply anxious scrutiny. The decision-maker may draw proper inferences from the medical reports and surrounding material. The reports need not specify in detail the precise treatment programme available, provided that, read fairly and in context, they establish the statutory criteria. An existing or renewed detention cannot cure an unlawful original transfer direction.

The claimant challenged the Secretary of State’s transfer direction under section 47 of the Mental Health Act 1983, which authorised his removal from prison to Rampton Hospital shortly before the custodial part of his sentence expired. He accepted that one medical report addressed the statutory requirement that appropriate medical treatment be available, but argued that the second report did not. He relied on the Court of Appeal’s decision in TF v Secretary of State for Justice [2008] EWCA Civ 1457, concerning the former statutory treatability criterion. The central issue was whether the Secretary of State could properly infer from the reports and supporting material that appropriate medical treatment was available.

1. The application was dismissed. The transfer direction was lawful. The claimant’s identity remained anonymised under CPR 39.24, and costs were payable from the Community Legal Service Fund.
2. The Secretary of State could direct a transfer only if satisfied that the statutory criteria in section 47 were met. Particular care was required because the transfer occurred at the end of the custodial period and therefore had the practical effect of extending detention into the licence period. The court would review the decision with anxious scrutiny.
3. The decision-maker had to ask two questions: whether she had actually applied her mind to the statutory criteria, and whether the material before her was sufficient to sustain the conclusion. Unlike the decision-maker in TF v Secretary of State for Justice [2008] EWCA Civ 1457, Geraldine Marsh had expressly considered each criterion.
4. The new requirement that appropriate medical treatment be available was different and less specific than the former treatability criterion. The decision-maker was entitled to draw proper inferences from the medical reports and other evidence. It was unnecessary for a doctor to set out the precise nature of the treatment expected at the receiving hospital.
5. Read fairly and in context, Dr Poole’s report explained that the claimant required treatment in a dangerous and severe personality disorder setting and that such treatment was unavailable to him in prison. Dr Krishnan’s letter confirmed that Rampton offered assessment and treatment and that a bed was available. That material provided an adequate foundation for the Secretary of State’s conclusion under section 47(1)(c).
6. The court declined to determine the time-limit issue because it was unnecessary. Had the direction been unlawful, relief would not have been refused solely because the claim was brought out of time.

First-instance judicial review. The judgment records no prior merits decision. Permission to appeal to the Court of Appeal was to be sought in writing within the extended period specified in the order.