McKay v Secretary of State for Justice

A public decision-maker faced with conflicting expert opinions may exercise an independent clinical judgment, provided the competing views are taken into account and the decision is rationally explained. The court will not substitute its own assessment of the expert evidence or the appropriate treatment pathway. A decision to refer a prisoner for assessment for dangerous and severe personality disorder may be lawful even where another expert and the Parole Board favour a Therapeutic Community, particularly where the referral is investigative and does not exclude alternative treatment. The decision is not irrational merely because it gives greater weight to the decision-maker’s own specialist assessment.

The claimant, a serving prisoner subject to a discretionary life sentence, challenged the defendant’s continuing decisions to refer him to a Dangerous and Severe Personality Disorder Unit for assessment. He relied on an expert opinion favouring sentence progression through a Therapeutic Community and on criticisms made by the Parole Board. Following reconsideration, the defendant maintained the referral in letters dated 24 May and 13 September 2013.

At the rolled-up hearing, the court considered whether permission should be granted to challenge those decisions on grounds including inadequate reasons, failure to follow the Parole Board’s view, preference for DSPD assessment over Therapeutic Community treatment, failure to assess in prison, and failure to interview the claimant.

1. Permission refused. The claimant disclosed no arguable ground of challenge to the decision letters of 24 May and 13 September 2013.
2. Where experts disagree about a prisoner’s suitability for specialist treatment, the court must not substitute its own clinical view for that of the responsible decision-maker. The relevant question is whether the decision is arguably irrational on ordinary public-law principles.
3. The decision-maker had properly considered both Dr Hill’s opinion and the Parole Board’s conclusions. The Parole Board’s view arose from a single hearing, and the weight to be given to it was for the decision-maker. The decision-maker was entitled, and required, to exercise her own clinical judgment rather than defer to the Parole Board.
4. The reasons given adequately explained why DSPD assessment was preferred at that stage. The assessment would investigate unresolved questions concerning personality disorder and psychopathy. Therapeutic Community treatment was not excluded if the claimant proved unsuitable for DSPD, although his previous difficulties with group work justified further exploration of his motivation and expectations.
5. The additional arguments concerning assessment in prison and failure to interview did not disclose arguable grounds. The court therefore refused permission on the rolled-up hearing.

The judgment was a first-instance decision of the Administrative Court. Permission had previously been granted at an oral hearing by His Honour Judge Stephen Davies, sitting as a Judge of the High Court, but the present court reconsidered permission in light of the subsequent decision letters and refused it.