YZ, R (On the Application Of) v Oxleas NHS Foundation Trust & Anor

Judicial review of a decision to transfer a restricted patient into high security is not a full merits appeal. The statutory decision-makers retain responsibility for assessing risk and placement. The court must pay the highest regard to the responsible clinician’s bona fide professional judgment and should intervene only on compelling evidence that the judgment cannot safely be relied upon. A high-security hospital may be the least restrictive setting where lesser security cannot safely manage the risk. The court cannot require treatment contrary to the clinician’s bona fide judgment. Challenges to transfers should be rare, and an alleged inadequacy of reasons must not become a collateral merits challenge.

The claimant, detained under sections 37 and 41 of the Mental Health Act 1983, challenged Oxleas NHS Foundation Trust’s decision to seek his transfer from a medium-security unit to Broadmoor and Broadmoor’s decision to accept him. He relied on Articles 3 and 8, the least-restrictive principle, clinical treatment issues concerning clozapine and gender dysphoria, and procedural unfairness.

McGowan J refused permission after a rolled-up hearing and later gave reasons holding the decisions lawful in [2015] EWHC 2296 (Admin). By the appeal hearing the proceedings were moot because the claimant had been treated at Broadmoor and was being transferred to another medium-security unit. The central issue was the proper scope of judicial review of a transfer into high security.

1. Disposition. The Court of Appeal unanimously dismissed the claim. Although the proceedings had become moot, the court addressed the legal issue because it had been pursued for guidance. The claim also failed on the facts.
2. Scope of review. The court followed the approach in R(P) v Mersey NHS Trust [2003] EWHC 994 (Admin) and R(IR) v Shetty [2003] EWHC 3022 (Admin). Parliament had entrusted the relevant risk and placement judgments to statutory decision-makers. The court’s role was to examine whether the decision-making process was proper, relevant evidence had been considered, and the conclusion was reasonably open on the evidence. It was not to substitute its own judgment.
3. Clinical judgment and high security. The approach in R(L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 was applied. A transfer is a clinically based evaluation of future risk, often requiring urgency and consideration of the patient’s complete clinical history. The court must pay the highest regard to bona fide professional judgment by the responsible clinician. Compelling evidence would be required before that judgment could not safely support the decision. Judicial review applications concerning transfers into or out of high-security hospitals should therefore be very rare.
4. Full merits review distinguished. R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419, concerning compulsory treatment under section 58 of the Mental Health Act 1983, justified a full merits review in its different context. That approach did not extend to hospital transfers.
5. Application to the facts. The claimant could not safely be managed at Bracton or another medium-security unit. Broadmoor was therefore the least restrictive available regime and its restrictions were necessary and proportionate under Article 8. The anticipated conditions did not reach the Article 3 threshold. The refusal to prescribe clozapine was a bona fide clinical judgment which the court could not override where regular adherence was necessary and could not safely be relied upon.
6. Procedure and reasons. Broadmoor was entitled to proceed through its appeal panel. Its reasons were clear and cogent. A challenge to reasons must not be used as a collateral attack on the merits. The transfer decision and the panel decision were lawful.

• Court of Appeal (Civil Division) — In [2017] EWCA Civ 203, Lord Thomas CJ, with Hallett LJ and Underhill LJ agreeing, dismissed the claim and rejected the challenge to the transfer and Broadmoor appeal-panel decision.
• Administrative Court — McGowan J refused permission after a rolled-up hearing and gave reasons on 31 July 2015 holding the decisions lawful in [2015] EWHC 2296 (Admin).