L, R (On the Application Of) v West London Mental Health NHS Trust & Anor

Common law fairness applies when a detained mental health patient is considered for transfer from medium to high security. Ordinarily, the patient or representative must receive the gist of the referring clinician’s letter and the receiving clinician’s assessment, with an opportunity to make written submissions to the admissions panel.

Urgency, clinical considerations or risks to patients or staff may justify withholding notification. Fairness does not ordinarily require disclosure of the full documents, representations before the initial referral, an oral hearing or participation in the panel’s deliberations. The procedure must remain sensitive to the clinical, risk-management and resource-allocation character of the decision.

L was detained under section 37 of the Mental Health Act 1983 in a medium security hospital. Following an incident involving makeshift weapons, the hospital referred him to Broadmoor Hospital. Broadmoor’s Admissions Panel accepted him without first providing him or his solicitor with the documents before it, their gist, or an opportunity to make representations to the Panel.

On judicial review, Stadlen J held in [2012] EWHC 3200 (Admin) that the process was unfair and formulated twelve procedural requirements. The NHS Trust appealed. L did not pursue his cross-appeal concerning article 6 of the Convention.

The central issue was what common law procedural fairness requires when a detained patient is considered for transfer from medium to high security.

1. Appeal allowed. The declarations and relief granted by Stadlen J were set aside. His twelve-part procedure placed the process too far towards adversarial adjudication and exceeded what fairness required for a predominantly clinical, risk-based decision involving the allocation of scarce high-security beds.

2. Procedural fairness nevertheless applied. Its content depended on the character of the decision, the statutory and administrative framework, the clinical assessment of future risk, the possible need for urgency and the interests of other patients and staff. The potential for stricter conditions and delayed progress towards discharge strengthened the patient’s claim to meaningful participation.

3. Absent urgency, a clinical reason precluding notification, or a risk of harm to patients or staff, the patient or representative should receive the gist of the referring hospital’s letter and the receiving clinician’s assessment. They should be told that written submissions disputing the factual or clinical triggers may be made to the admissions panel. This gives practical effect to paragraphs 30.15 and 30.17 of the Mental Health Act Code of Practice.

4. Fairness did not ordinarily require the full reports, an opportunity to make representations before the referring hospital made its referral, an oral hearing, or participation beyond written submissions to the receiving hospital’s panel. A possible exception could arise if an assessing doctor participated in the panel’s deliberations.

5. On the particular facts, L had known the triggering incident and had opportunities, personally and through his solicitor, to put forward his account before the decision. The factual dispute was limited and the central assessment remained clinical. Although the existing process contained an undesirable element of fortuity, L had not suffered procedural unfairness warranting relief.

Patten LJ agreed. Moses LJ agreed with the result and reasoning, save that he did not share Beatson LJ’s concern about the adequacy of the doctors’ discussions with L.

1. Court of Appeal (Civil Division): Allowed the Trust’s appeal and set aside paragraphs 1 and 2 of the order below. No substitute declaration was made: [2014] EWCA Civ 47.
2. High Court, Administrative Court: Stadlen J allowed L’s judicial review claim and declared that the transfer process engaged, but failed to comply with, common law procedural fairness: [2012] EWHC 3200 (Admin).