ASK v Secretary of State for the Home Department

At the permission stage, an appeal should proceed where at least one ground has a realistic prospect of success or there is another serious reason for hearing it. Where the issues concern prolonged detention of a person diagnosed as requiring transfer to hospital, the appellate court may require a detailed understanding of the facts and of the respective responsibilities of the Home Office, the health authorities and the Secretary of State for Justice. Related appeals raising the same systemic issue may properly be listed and heard together.

These were two appeals, ASK and MDA, from decisions of Green J in the Administrative Court. Both concerned persons detained after being diagnosed as requiring transfer to hospital because of serious mental health conditions. The appeals raised concerns about substantial periods spent in detention while transfer arrangements were delayed.

The Court of Appeal, comprising Underhill LJ and Hickinbottom LJ, considered permission to appeal, the need to understand the factual circumstances and the allocation of responsibilities between the Home Office, health-service bodies and the Secretary of State for Justice, and the appropriate case-management directions.

1. Permission and listing. Permission to appeal was granted in both appeals and on all grounds. The court held that at least some grounds had a realistic prospect of success and/or that there was a serious reason for hearing the appeals because they raised points of principle.

2. Issues requiring examination. The broad concern was the continued detention, for substantial periods, of persons diagnosed as needing transfer to hospital for serious mental health conditions. The court required a precise account of what had occurred in each case. Although the appeals were not appeals on the facts in the true sense, that factual understanding was necessary to assess the legal and systemic issues.

3. Responsibilities of public bodies. The court identified an unresolved issue concerning the allocation of responsibility between the Home Office and the responsible organs of the Health Service, with an additional role for the Secretary of State for Justice. The involvement of NHS England and the Secretary of State for Health was therefore substantive, rather than merely formal, and their participation could assist the court if guidance on responsibility proved necessary.

4. Case management. The appeals were directed to be listed together for a three-day hearing. NHS England, the Secretary of State for Justice and, as proposed, the Secretary of State for Health were to be served with notice and treated as interested parties. The usual bundle limits were disapplied, and the court indicated that more than the specified maximum number of authorities might be required.

• Court of Appeal (Civil Division): permission to appeal granted in ASK and MDA; the appeals were directed to be heard together.
• Administrative Court: decisions of Green J were under appeal; no citation for those decisions was stated in the judgment.