R (on the application of L) v West London Mental Health NHS Trust & Ors

Decisions to transfer a detained patient from medium-security to high-security psychiatric conditions engage the common-law duty of fairness where they may impose materially greater restrictions and delay ultimate discharge. Fairness is context-sensitive. Subject to urgent safety considerations, the patient should receive the gist of the reasons and relevant reports, an opportunity to make representations, sufficiently detailed reasons, and consideration of an oral hearing where material facts are disputed.

Article 6 was not engaged. Although transfer automatically exposed the patient to more restrictive postal arrangements, the decision was an administrative risk classification and did not determine a dispute about a civil right.

The claimant was detained under a hospital order made pursuant to section 37 of the Mental Health Act 1983 in a medium-security hospital. Following an incident involving weapons, Stockton Hall referred him to Broadmoor. Broadmoor’s Admissions Panel accepted him and he was transferred in October 2010.

He challenged the process as procedurally unfair at common law and contrary to article 6 of the European Convention on Human Rights. By the hearing he no longer sought to challenge his continued detention or the substantive proportionality of the transfer. The issues were whether the court should nevertheless determine the generally important procedural questions, whether common-law fairness applied and what it required, and whether article 6 was engaged.

1. Academic issue. Although the claimant had abandoned his substantive challenge and sought no transfer back, the court proceeded to determine the procedural issues because they were of general public importance and likely to recur, while recognising that the value of deciding fact-sensitive academic issues was limited.
2. Common-law fairness. The decision-making process for transfer from medium to high security engaged a duty of fairness. The transfer could expose the patient to materially greater restrictions and was likely to delay ultimate discharge. The duty applied to the decision-making process as a whole, including the effective role of the receiving hospital, notwithstanding that the formal statutory power to authorise transfer lay with the transferring hospital.
3. There was no rigid procedure applicable in every case. Safety and urgency could justify postponing some safeguards. Ordinarily, however, the patient and advisers should be told the gist of the referral reasons and reports, given sufficiently detailed reasons, allowed to make written representations, and told that an oral hearing might be possible. Where material factual disputes required resolution, an oral hearing should normally occur before the final decision or transfer, unless that would imperil safety; in that event it should occur as soon as reasonably practicable afterwards.
4. The blanket policy excluding patients and representatives from meaningful participation, and the failure to provide the claimant with the gist of the material or an opportunity to make representations before transfer, breached the common-law duty. The claimant was entitled to a declaration to that effect.
5. Article 6. The court held that transfer did not determine a civil right. Restrictions on telephone monitoring and withholding correspondence arose only if later statutory powers were exercised. Although postal interception was automatically triggered by transfer, the decision remained an administrative classification of clinical and public-safety risk, not a determination of a dispute or contestation about civil rights. The article 6 issues concerning an independent tribunal and incompatibility therefore did not arise.