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

A transfer direction under section 47 of the Mental Health Act 1983 cannot lawfully rest only on the risk posed by a prisoner. For psychopathic disorder, the statutory reports must address whether treatment is likely to alleviate or prevent deterioration. The Secretary of State must be able reasonably and safely to rely on reports which deal with that statutory criterion. Although a report need not be written, the evidence should clearly establish each precondition, particularly where detention engages the claimant’s liberty. General evidence that hospital treatment is appropriate, or that the claimant presents a danger, does not necessarily establish individual treatability. Failure to address the crucial criterion rendered the transfer decision unlawful.

The claimant had been transferred from prison to hospital under section 47 of the Mental Health Act 1983 because he was said to have psychopathic disorder and to require treatment. A Mental Health Review Tribunal had previously directed his release from hospital because the treatability requirement was not satisfied. After further reports were obtained, the Secretary of State made a transfer direction shortly before the claimant’s release date.

The claimant sought judicial review, arguing that the medical reports did not establish that treatment was likely to alleviate or prevent deterioration in his condition. The central issue was whether the reports and the decision-making process satisfied section 47(1)(b), particularly in light of TF v Secretary of State for Justice [2008] EWCA Civ 1457.

1. Statutory requirements. Section 47 required reports from at least two registered medical practitioners establishing, in the case of psychopathic disorder, both the relevant mental disorder and that treatment was likely to alleviate or prevent deterioration. Detention could not be justified solely by the claimant’s danger to the public. The statutory purpose required particular care because the decision deprived the claimant of his liberty.
2. Reliability and content of reports. Following the approach in TF v Secretary of State for Justice [2008] EWCA Civ 1457, the Secretary of State had to consider whether the medical reports were sufficiently reliable to establish the statutory conditions. The reports did not expressly address whether treatment was likely to benefit this claimant. They principally recorded risk, deterioration, the need for specialist treatment, or the appropriateness of hospital detention.
3. The evidence of Dr Ross, including discussions outside the formal report, indicated that he regarded the claimant as treatable. However, the formal reports of the doctors relied upon for section 47 did not properly set out the crucial conclusion or its supporting reasons. It was not appropriate to treat that omission as cured merely by inference from a recommendation for hospital treatment.
4. The court accepted that the question of non-co-operation might differ according to whether it formed part of the disorder or was a deliberate decision for ulterior motives. That issue had become largely academic because the Mental Health Act 2007 had changed the relevant requirement from likely treatment benefit to availability of treatment.
5. The transfer direction was unlawful and was quashed. The court did not direct immediate release in specific terms, although quashing the decision meant that detention under that direction could not continue. The damages claim was adjourned, and the usual costs order was made.