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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Morley, (R on the application of) v Nottinghamshire Health Care NHS Trust & Anor [2002] EWCA Civ 1728 (27 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1728.html Cite as: [2002] EWCA Civ 1728, [2003] 1 All ER 784

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRTATIVE COURT
MR JUSTICE BURTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th November 2002

 
Lord Justice Pill:

1. This is an appeal against the judgment of Burton J dated 27 June 2002 whereby he dismissed an application by Patrick Morley ("the applicant") for judicial review of the decision of the Nottinghamshire Health Care NHS Trust (Rampton Hospital) ("the Trust") to notify the Secretary of State for the Home Department ("The Secretary of State") that no effective treatment for the applicant's disorder could be given in Rampton Hospital. It is also sought to quash the decision of the Secretary of State, made on 8 March 2002, by warrant to direct that the applicant be remitted to prison there to be dealt with as if he had not been removed to hospital. Both decisions were taken under section 50(1) of the Mental Health Act 1983 ("the 1983 Act").
2. On 5 July 1989, the applicant was convicted of three offences of rape, two offences of buggery, two offences of assault and two offences of false imprisonment. He was sentenced to life imprisonment. He had previously been convicted of many offences of dishonesty and had been placed on probation and sentenced to a term of three years imprisonment.
3. On 17 January 2000 the applicant was transferred by the Secretary of State from prison to Rampton Hospital by virtue of powers conferred by section 47 of the 1983 Act. Section 47(1) provides:

"If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners-

(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and

(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;

the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as a 'transfer direction'."

The classification in this case was one of psychopathic disorder.

4. One of the doctors recommending transfer was Dr I A P Keitch, who had stated in a report of 15 June 1988:

"Although classifiable as Physchopathically Disordered under the Mental Health Act 1983 the question of treatability has been one which has exercised all those psychiatrists who have previously examined him. Variable opinions have been expressed with regard to treatability and unfortunately those who were more optimistic have not been able to proceed with therapeutic interventions. As a result Patrick Morley has become 'stuck' within the Prison System and is, at present, going nowhere. In my opinion, if no therapeutic interventions are attempted, he will be in the same situation at subsequent Discretionary Lifer Panel Hearings to the one he is in now."

Dr Keitch added:

"I would point out that no guarantees can be given with regard to admission at this stage and it must be clearly understood that any admission, should it take place, would be for the purpose of assessment and should Mr Morley prove 'untreatable' he would be remitted to prison. I would anticipate, in the event of an assessment admission taking place, that he would need to be hospitalised for at least 6 months for the necessary comprehensive assessments to be undertaken."

5. When giving the transfer direction, the Secretary of State exercised his power under section 49 of the 1983 Act to direct that the applicant should be subject to the special restrictions set out in section 41 of the Act. That restriction direction restricts the circumstances in which the prisoner subject to it may be discharged from hospital. Certain powers are exercisable only with the consent of the Secretary of State, though application may be made to the Mental Health Review Tribunal ("MHRT"). The combined effect of section 47 and 49 orders, while subsisting, is similar to the effect of a sentence by a Court to a hospital order under section 37 of the Act and a restriction under section 41.
6. Section 49(3) provides that while a person is subject to a restriction direction, the responsible medical officer ("RMO") shall "(at such intervals not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require". There is an identical requirement with respect to a restriction order in s 41(6). Guidance has been issued by the Secretary of State as to what the report under s 41(6) should contain. It includes the requirement:

"That the annual report should be based on an assessment of the patient by the clinical team responsible for his treatment, and it should advise the Home Secretary on whether it is considered that the patient should or should not continue to be detained and for what reasons, and whether continued detention in a special hospital is necessary."

7. Section 50(1) of the Act empowers the Secretary of State in defined circumstances by warrant to direct that the person subject to a transfer direction be remitted to prison. Section 50(1) provides:

"Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may-

(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or

(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect."

8. Section 55(1) of the Act, an interpretation section, provides that, in the relevant part of the Act, "responsible medical officer" means, for present purposes, "the registered medical practitioner in charge of the treatment of the patient". Dr Hayden became the applicant's responsible medical officer ("RMO") on 5 September 2001, replacing Dr Krishnan. By letter dated 8 March 2002, Dr Hayden, locum consultant in forensic psychiatry, gave the Secretary of State a notification under section 50(1). An "urgent return" to prison was requested. On the same day, the Secretary of State issued a warrant under the sub-section directing a remission of the applicant to prison. The transfer took place on 26 March. Permission to appeal against Burton J's refusal to quash the decisions and the judge's refusal to permit an amendment to the application has been given on limited grounds by Sedley LJ.
9. The letter of the Home Office dated 8 March stated:

"Further to our conversation of yesterday afternoon, I write to request Mr Morely's urgent return to prison.

On 24 August 2001, Mr Morley was transferred from Connaught Ward to Evans Ward for ongoing assessment and treatment. The move to Evans Ward involved a change of RMO from Dr Krishnan to Dr Hayden.

Since moving to Evans Ward Mr Morley has repeatedly presented significant management problems and attitudes and behaviour demonstrating that he is not benefiting from the overall treatment package available to him. He has consistently demonstrated a lack of meaningful reflection on his behaviour and attitudes. Until such time as he is in a position to contemplate and meaningfully reflect on his attitudes and behaviour he will not meaningfully benefit from treatment and there is no evidence that change is imminent in this respect.

Mr Morley has repeatedly resisted accepting necessary therapeutic challenge from his Named Nurse and RMO. Mr Morley has repeatedly attempted to dictate his own treatment needs. He has this month demanded that his Named Nurse be changed.

At present Mr Morley is ward based as he is the subject of investigation into an alleged sexual assault on a fellow patient.

Reasons for requesting urgent return to prison include recent behaviours of Mr Morley whereby hospital security has been compromised, a recent threat to a staff member in which Mr Morley threatened to put the staff member's head through the window, and his general undermining effect on the therapeutic ethos of the ward.

I have on 7 March 2002 spoken to Dr Faruq, Senior Medical Officer at HMP Full Sutton, and been informed that a place may be available for Mr Morley at HMP Full Sutton on 11 March 2002."

It is accepted by Mr Bowen, for the applicant, that the letter does address the statutory language in section 50(1) ("no effective treatment for his disorder can be given"). I mention that because the letter, in requesting urgency, does also refer to hospital security. That consideration does not appear in the statutory language but, if the statutory test is satisfied, could be relevant to the urgency with which an order under section 50(1) can be made and take effect.

The amendment

10. Counsel for the respondents, Mr Clayton QC for the Trust, and Miss Richards for the Secretary of State, have drawn attention to the manner in which the grounds of the application changed and were sought to be changed. The submission now sought to be made that the Trust had failed, when making the notification, to present a fair and balanced picture to the Secretary of State was made only in the course of the hearing before the judge and the judge refused permission to amend to add it. The applicant seeks to overturn that decision and to rely on the point and also seeks to introduce fresh evidence by way of reports on the applicant, prepared in March 2002 shortly after the challenged decisions were made.
11. The Court has heard submissions as to why the application to amend was made so late and as to whether material from the hospital should have been disclosed at an earlier stage. On behalf of the applicant it is submitted that he was not in a position to make the allegation without the disclosure of documents. For the first respondents, it is submitted that appropriate disclosure was made at the appropriate time. The application to introduce fresh evidence is opposed though no objection is taken to the Court considering the reports in order to decide on their admissibility and assess their relevance.
12. I would allow the documents to be admitted and allow the amendment. I do so on the ground that in the circumstances it is desirable in the interests of justice to approach the case on the basis of all material now available, and the arguments based on it. I do so without resolving the somewhat complex dispute between the parties as to why events have taken the course they have.

Duty on the Trust

13. For the applicant, Mr Bowen submits that the power of the RMO to give a notification to the Secretary of State under s 50 incorporates a duty to provide the Secretary of State with a fair and balanced picture of the applicant's position. In present circumstances, that duty involved disclosure to the Secretary of State of the reports prepared by members of the care team in March 2002 and also a report from Dr Brugha, Professor of Psychiatry and Honorary Consultant Psychiatrist, dated 12 January 2002.
14. Mr Bowen underlines the important potential impact of a section 50 order on the applicant's future. Under the hospital regime, the applicant is entitled to the annual report to the Secretary of State and to annual access to the MHRT, with the potential for the exercise of its powers. Moreover, he is assured of medical treatment aimed at creating a situation in which release may be achieved. In prison, the applicant is not assured of such treatment and has access only to the Discretionary Lifer Panel. It follows from the prejudice which potentially follows from a section 50 order that there is a duty on the Trust to provide a full and fair picture of the applicant's treatability in terms of section 50(1). The reports of March 2002 were prepared as discharge reports for use by the prison authorities upon the return to prison. Programmes are available in prison but, it is submitted, in less favourable circumstances. It is now clear, it is submitted, that the psychologists operating the sex offender treatment programme ("SOTP") did not support the transfer back to prison.

The course of events

15. On 27 March 2002, an individual therapist in dialectical behaviour therapy ("DBT") stated that her impression of the applicant was that "He had consistently demonstrated motivation and commitment to engaging in DBT and had made an effort to communicate his experiences and how he perceives and interacts with the world around him". On 20 March 2002, a clinical nurse specialist in cognitive behaviour therapy recommended that any therapeutic interventions with the applicant should only be undertaken by an experienced clinician familiar with the concept of narcissistic personality disorder and cognitive therapy. On 28 March, a trainee clinical psychologist supervised by Dr Sue Evershed, acting consultant psychologist, highlighted concerns about barriers to treatability but concluded that she and the applicant had "developed a firm and rewarding therapeutic relationship".
16. Most reliance is placed on a report described as a "Summary of the introductory module of the sex offender treatment programme and discharge report". It was signed by or on behalf of Mr Lawrence Jones, Consultant Forensic Psychologist, Dr Evershed, both described in the report as SOTP Groupwork Facilitators, and four Trainee Groupwork Facilitators. The recommendations were:

"If Mr Morley had not left Rampton we would be recommending that he continue with the Core Programme here. We have some concerns about his ability to re-engage in the Prison Service Core Programme, having previously dropped out. We feel that he required Sex Offender Interventions but alongside this he will require individual work to address responsivity issues as outlined by Mr Lawrence Jones in [an earlier report]. The pattern of his alienating staff has occurred in the Prison Service and at Rampton Hospital. We feel that without this work to address responsivity, the same behaviours are likely to recur. "

17. Mr Clayton refers to the novelty of a concept whereby there is imposed on a public body, with a power to notify another public body, a duty of fairness to supply all information in its possession concerning the patient to that other public body, the Secretary of State. If there is a duty, it is limited to disclosing the material relied on in making the clinical judgment leading to the notification together with the duty to respond to reasonable requests by the Secretary of State for further information.
18. In one of his two statements prepared for the purposes of this application, Dr Hayden referred to the SOTP. He stated:

"In fact, the Sex Offender Treatment Programme was only a small part of the overall treatment package provided in the Claimant's case, which also included participation in other groups and regular one-to-one sessions with his Named Nurse. Regrettably, the Claimant failed to incorporate into every day life any of the benefits that he may have obtained from his overall treatment, and in reality, his therapeutic relationships – with his RMO, Named Nurse and Social Worker – had broken down by March 2002."

19. Dr Hayden also gave detailed evidence in the statements of the problems which had arisen at the hospital in the course of treatment from January to March 2002 and of decisions taken. No objection is taken to the statements being considered as evidence of the circumstances in which the decision to notify was taken and acted upon.
20. This material can be considered in the context of the findings the MHRT had previously made on 12 December 2001 when refusing to discharge the applicant under section 74 or to recommend his return to prison under section 50. The Tribunal found:

"The patient has begun to engage in psychotherapeutic treatment; including in particular the Sex offender Treatment Programme which at Rampton Hospital takes a very different from that available in the Category A prison from which he was transferred to the mental health system and may be more appropriate for the features of the patient's personality disorder. The process of assessment of the patient is continuing. The current SOTP course is in its early days; and it is too early to say whether and to what extent the patient will ultimately respond or benefit; but there are prospects that he will and we have no doubt that the present treatment plan at Rampton Hospital should be pursued."

21. In his annual report to the Secretary of State dated 14 January 2002 Dr Hayden stated:

"Since transfer to Evans Ward, Mr Morley continues to undergo further assessment/treatment. It is not yet appropriate to comment in detail as to whether Mr Morley will benefit from treatment. His interpersonal style causes difficulties in the ward environment. Mr Morley is controlling, demanding, undermining of the therapeutic regime and persists in dictating his own treatment needs and when they should be granted.

In summary, Mr Morley continues to undergo assessment and treatment of his personality disorder. At this point in time there is no conclusive indication that he has benefited from treatment. He remains appropriately detained at Rampton Hospital under the classification of Psychopathic Disorder."

22. Dr Hayden described a meeting which took place on 6 March 2002:

"11. On 6 March 2002, a discussion took place involving he following members of Hospital staff: myself; Dr R G Peckitt, consultant forensic psychiatrist; Dr A Brown, senior registrar in psychiatry; Mary Lilley, clinical nurse specialist. (No psychology input was available.) The issues discussed included Mr Morley's progress, his problematic behaviours and attitude towards members of the multi-disciplinary team, the allegation reported on 4 March 2002,and various security issues.

12. The consensus at the meeting on 6 March 2002 was that a recommendation should be made that Mr Morley be returned to prison. This consensus was reached because it was noted that Mr Morley:

(a) had behaved in a way that interfered with therapy;

(b) was undermining of the therapeutic ethos of the ward;

(c) had attempted to subvert hospital security

(d) was not demonstrating benefit of note from the global package of treatment available to him;

(e) lacked maturity;

(f) had not yet reached a stage where he could meaningfully contemplate treatment;

(g) might acquire from his continued participation in the Sex Offender Treatment Programme ('SOTP') a veneer of knowledge which would make it difficult to assess the true extent of his progress in the Programme.

[The allegation of sexual assault was not taken into consideration]

13. It was therefore decided at the meeting on 6 March 2002:

(a) that Mr Morley should remain ward-based; and

(b) that I would discuss with the Clinical Director of the Personality Disorder Directorate and with psychology staff their views upon the proposal to return him to prison.

14. On 7 March 2002, I discussed the issues referred to in paragraphs 11 and 12 above with Dr Krishnan, the clinical director of the Hospital's Personality Disorder Directorate. Dr Krishnan supported the proposal that a request be made for Mr Morley to be remitted to prison.

15. On 8 March 2002., I telephoned Dr Sue Evershed, a consultant clinical psychologist at Rampton hospital, and discussed the proposal to have Mr Morley remitted to prison. I informed Dr Evershed of the ongoing problems that were being experienced in Mr Morley's management, and informed her that any apparent benefits and apparent improvements as a result of the SOTP programme and other psychological interventions were not reflected in his behaviours and attitudes outside group settings. Dr Evershed accepted these reasons for requesting that Mr Morley be returned to prison.

16. On 8 March 2002, I wrote to the Mental Health Unit of the Home Office requesting that Mr Morley be returned to prison."

23. A further multi-disciplinary team meeting was held on 18 March 2002. Nine staff members were present, including on this occasion Dr Evershed and Mr Jones. Dr Hayden stated that the main body of clinical opinion supported the making of a recommendation that Mr Morley be returned to prison. There was a further meeting on 20 March 2002. A written report was received from Mr Sanderson, a senior social worker at the hospital, in which he also expressed the opinion that the applicant was not, at that time, treatable. The applicant was present at that meeting and challenged the opinions expressed, which were put to him. He expressed the opinion that the hospital had failed him. He sought to rely on a report dated 12 January 2002 of Professor Brugha, who stated:

"In conclusion, I have little doubt that if Patrick returned to a purely custodial setting in which there was no understanding of his deficits and no capacity to work with him the risk of repetition of his former antisocial behaviours on returning to the community would be considerable. I am impressed by the level of understanding demonstrated in the psychological reports I have seen at Rampton Hospital and believe that a long-term programme of rehabilitation within secure NHS settings followed by a gradual, closely and skilfully supervised return to the community will significantly reduce the risk to the public in the longer term."

In his statement, Dr Hayden has also expressed his opinions upon the report of Professor Brugha and a report from Professor Grubin.

24. On 22 March 2002, at his request, the applicant was seen by the Mental Health Act Managers at the hospital. They reported:

"The managers noted that there were irreconcilable differences between the patient and the Clinical Team in their differing understanding of the progress (or lack of it) made by Mr Morley during his admission to Rampton Hospital.

The Managers were satisfied that the Clinical Team had made a joint decision to return Mr Morley to prison and had consulted with members of the previous Clinical Team. It is a matter of regret that in the view of the Clinical Team the therapies provided have not been successful. The Managers hoped that Mr Morley would be able to access continuing therapies on his return to prison."

25. Dr Hayden concluded his second statement in these terms:

"My recommendation and the conclusion upon which it was based were arrived at only with the very greatest reluctance. I would not have recommended that Mr Morley be transferred from Rampton Hospital unless, having carefully considered all the clinical information in this case. I felt that such a course was a necessary and appropriate one to take."

Submissions

26. Mr Bowen submits that the effect of section 50 is to require the RMO to present a full and fair picture to the Secretary of State and that extends to drawing the Secretary of State's attention to any differences of opinion within the clinical team or expressed in an independent psychiatric report, such as that of Dr Brugha. The other grounds pursued against the Secretary of State are that he was under a duty to afford to the applicant the opportunity to make informed representations before a warrant was issued, that the breach of natural justice (or the procedural safeguards in Article 8 of the Convention) required a reconsideration of the applicant's position and that the report of Dr Brugha should have been treated as a material consideration. The last issue stands or falls, submits Mr Bowen, with the issue as to whether the report should have been disclosed by the Trust.
27. Reliance is placed on Article 8 of the Convention. The level of safeguard required by the common law and by Article 8 are, it is submitted, equivalent but Article 8(2) places a burden on the public authority to justify interference with the right to respect for private life. The consequences of transfer are sufficiently serious to affect the applicant's "physical and psychological integrity" and to amount to a breach of Article 8(1). Mr Bowen relies on the judgment of the European Court of Human Rights in Botta v Italy [1998] 26 EHRR 241. Mr Botta was physically disabled and complained that at a seaside resort where he was on holiday the bathing establishments were not equipped with the facilities needed to enable disabled people to gain access to the beach and the sea. The Court stated, at paragraph 31 of its judgment, that it "must determine whether the right asserted by Mr Botta falls within the scope of the concept of 'respect' for 'private life' set fourth in Article 8 of the Convention".

"32. Private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ... ."

The Court held (paragraph 35) that the right asserted by Mr Botta "concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."

The duty on the Secretary of State

28. In exercising his powers under section 50, the Secretary of State was performing a quasi-judicial function, it is submitted, and a duty of fairness involves giving the applicant an opportunity to make representations especially as there is no right of appeal against a decision under section 50. Mr Bowen does not submit that the right extends to the right to be legally represented or to an oral hearing.

The authorities

29. The fairness of the procedures must be considered in the statutory context and as a whole. Mr Bowen relies on the statement of Lord Bridge of Harwich in Lloyd v McMahon [1987] AC 625 at 702:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by the way of additional procedural safeguards as will ensure the attainment of fairness."

30. Reference has also been made to the statement of Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 at 411:

"What procedure will satisfy the public law requirement and procedural propriety depends upon the subject matter of the decision, the executive functions of the decision maker. and the particular circumstances in which the decision came to be made."

31. The statement of principle by Lord Mustill in R v Secretary of State for the Home Department ex p Doody [1994] AC 531 at 560 is apt upon a consideration of the duties both of the Trust and the Secretary of State in the present statutory context and circumstances:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

32. Mr Bowen relies on the approach of Rose LJ to the question of categorisation of prisoners in R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277 at 288. A prison governor had decided that an applicant serving a mandatory life sentence for murder should be in Category A. Rose LJ stated:

"So long as a prisoner remains in Category A, his prospects for release on parole are, in practice, nil. The inescapable conclusion is that which I have indicated, namely a decision to classify or continue the classification of a prisoner as Category A has a direct impact on the liberty of the subject."

Rose LJ recognised the need for speedy categorisation on admission to prison, and added:

"But on the first and subsequent annual reviews, fairness, in my view requires that the gist of reports be revealed in order to give the opportunity for comment and that reasons be given subsequently."

33. Mr Bowen also relies on the decision of Lightman J in R v Secretary of State for the Home Department ex p Harry [1998] 1 WLR 1737. The context was a proposal, following an MRHT recommendation that a prisoner subject to an order under section 41 of the 1983 Act be transferred to conditions of less security, that the applicant be given a period of trial leave in a less secure unit under section 17 of the Act. The proposal was submitted to the Secretary of State's Advisory Board on Restricted Patients for its consideration and a non-medical member of the Board interviewed the applicant and hospital staff and reported adversely to the Board which recommended that the application be rejected. The Secretary of State refused consent to the transfer.
34. It was held that the procedure did not comply with the requirements of procedural fairness in that the applicant was not provided with the information in the member's report or invited to make representations on it to the Board or to the Secretary of State. That, submits Mr Bowen is analogous with the present situation in that the MRHT has not recommended a transfer to prison.
35. Counsel for the respondents submit that both those situations are different from the present situation and, generally, the situation under section 50. In Harry, the decision of the Secretary of State was not upheld because the recommendation by an MHRT, following an oral hearing, was not acted upon as a result only of interviews by a non-medical member of an Advisory Board. The procedure was quite different from that now under consideration.

The treatability test

36. The concept of treatability, under the so-called treatability test, is fundamental to the operation of Part III of the 1983 Act, entitled "Patients concerned in criminal proceedings or under sentence", when considering offenders suffering from psychopathic disorder. The test has to be satisfied before a court can sentence by way of a hospital order under section 37. If, as in this case, a sentence of imprisonment is imposed, the test must be satisfied before removal to hospital can be ordered under section 47. If the test is no longer satisfied, in that no effective treatment for the disorder can be given in the hospital, the Secretary of State may, upon a notification to that effect by the responsible medical officer, direct remission to prison. A clinical diagnosis by a registered medical practitioner or practitioners specified in the relevant section is required at each stage. The Secretary of State's power to make a transfer direction under section 47 gives the custodial regime flexibility and acknowledges that detention in a hospital for medical treatment may become appropriate where a person has been sentenced to a term of imprisonment. Given that the sentence is one of imprisonment, in this case life imprisonment, it is not surprising that there is a power to remit to prison, if the circumstances which led to the transfer direction, including satisfying the treatability test, no longer exist. The treatability test must of course be applied in good faith and not used as a cover for decisions taken on other grounds.
37. No challenge is made to the rationality of the section 50 notification. There was ample material on the basis of which it could be given. What is alleged is a procedural irregularity in failing to inform the Secretary of State when giving the notification under the section of the views of the psychologists, as expressed in the reports now available, and also the report of Dr Brugha. That allegation must be considered in the context that two psychiatrists, one a consultant forensic psychiatrist, a clinical nurse specialist and the clinical director of the hospital's personality disorder directorate were involved in the decision to notify. Dr Hayden says that he also discussed the applicant's management with Dr Sue Evershed, consultant clinical psychologist at the hospital, before giving his notification.

Conclusion on Trust's duty

38. Mr Bowen submits that the duty on the RMO is higher than simply to state his opinion and provide the material on which he relies in reaching it. The attention of the Secretary of State should have been drawn to the fact that the team of psychologists had considered the applicant to be benefiting from treatment. Moreover, Dr Brugha had been commissioned by the hospital to give a second opinion. As a matter of principle, both the views of the psychologists and the report of Dr Brugha should have been disclosed; otherwise the Secretary of State only has one side of the argument. While there was a discussion between Dr Hayden and Dr Evershed, Mr Bowen points out that Dr Hayden said that he "informed" Dr Evershed on 8 March and she accepted his reasons so that he did not go to her with an open mind.
39. In the statutory context, I do not consider that Dr Hayden needed to disclose either the views of the psychologists or the report of Dr Brugha. The view of the psychologists now appears in the discharge reports prepared. Had the applicant not left the hospital, they would be recommending that he continue with the core programme at the hospital. Concern is expressed about his ability to re-engage in the prison service core programme, having previously dropped out. The applicant's difficulties, including his pattern of alienating staff, are also mentioned. As RMO, Dr Hayden was required to take an overall view when applying the treatability test. It does not follow from progress in the introductory module of SOTP that the test is satisfied. If, which Dr Hayden does not accept, there was a dissenting view from Dr Evershed, it was still for him to make the clinical judgment required by section 50 when deciding whether to notify the Secretary of State. The responsibility was his and the rationality of his judgment is not challenged. He was not in the circumstances under a duty to disclose reports on individual components of the applicant's medical regime or to present to the Secretary of State contrary views which may have been expressed by some members of the inter-disciplinary team.
40. As to Dr Brugha's report, Dr Hayden acknowledges Dr Brugha's expertise and standing in the psychiatric world. Dr Hayden disagreed with his opinion and pointed out that he was not involved in the day to day care and clinical experience of the applicant. He was not the treating doctor. The examination on which the report was based was conducted as long before the notification as 8 September 2001 and there were many subsequent developments, as the evidence before the Court demonstrates. Dr Brugha recognised that it is "perhaps not for me to speculate on treatment in this case". His comments are understandably of a general kind and indeed highlight that his perspective was not that of the treating doctor. In those circumstances, there was no duty on the RMO to send the report to the Secretary of State. Nor was the Secretary of State required to consider its contents. The responsibility for the clinical judgment is that of the RMO.
41. I do however express surprise and concern that the decision was taken with the speed it was though I do have regard to the need, for the reasons given by Dr Hayden, for urgency and for the decision not to tell the applicant of the notification until some time after it was made. In the event, enquiries were made and meetings took place, including the meeting at which the applicant made known his views, after the decision to notify had been taken. In my judgment, there is a duty upon an RMO before giving a section 50(1) notification to make proper enquiries within the hospital as to whether the treatability test is satisfied and to consider views expressed, as well as his own first hand knowledge and experience, before making a recommendation. The extent of enquiry and of disclosure of information will depend on the circumstances of the particular case and will normally be judged as at the moment of decision. In my judgment, Dr Hayden did enough in the circumstances of this case to discharge that duty and did so before the notification was given. Moreover, nothing arose following the giving of the notification which required the RMO, in the proper performance of his duties, to withdraw it or request that action not be taken. It is the judgment of the RMO which is the central feature of the section 50 procedure.
42. In the understandable absence of a challenge to the rationality of Dr Hayden's judgment and, subject to my observations about timing, the facts of this case show the transfer procedure working as intended. The applicant had been observed to show potential for a section 47 transfer, as demonstrated in the report of Dr Keitch. Following conscientious enquiries, a transfer direction was made. Equally conscientious attempts were made, it appears to me, to treat the applicant at Rampton Hospital. By March 2002, on the basis of the information available to him, Dr Hayden was entitled to make a clinical judgment that the treatability test was not met.
43. As already stated, no objection has been taken to a consideration of Dr Hayden's post-decision statements. I accept that such statements are necessary in many cases to deal with points raised on an application and on occasions to inform the Court in more detail as to the course of events. It is however important to good decision making, in my judgment, if the basic reasoning is set out at the time of the decision and in the notification given to the Secretary of State. However, I have come to the conclusion that given the statutory position of the RMO in making the judgment he was required to make, sufficient information was included in the notification to comply with the duty on the RMO. Moreover, the post-notification events before the transfer occurred, that is the series of meetings already described, confirmed the rationality of the decision and, given the statutory status of the RMO, justify his actions.
44. While I have accepted Mr Clayton's submission that the disputed documents need not have been disclosed to the Secretary of State, he puts it too high when submitting as a matter of principle there cannot be a general free-standing duty on one public body to pass information to another public body. Under the statutory procedure, the Secretary of State can be expected to give considerable weight to the RMO's opinion and judgment. That involves a correlative duty upon the RMO, the content of which I have attempted to specify, to make full and fair enquiries at the hospital before making the clinical judgment and notification required by section 50(1)

Conclusion on Secretary of State's duty

45. On the view I have formed of the procedure contemplated by section 50(1) of the 1983 Act, as already expressed, I can deal with this allegation briefly.
46. The applicant submits that he should have been given an opportunity to make formal representations to the Secretary of State. That involved disclosure of at least the gist of the material upon which the decision of the Secretary of State was to be based and includes the material considered in the last section of this judgment. There should have been an opportunity to make representations upon that material. It is not suggested that a right to legal advice or representation arises. I accept that the return to prison could adversely affect the applicant's prospects of future release. I approach the question on the basis of the extent of the RMO's duty to disclose, as I have found it to be.
47. In the present statutory context, a right to make representations does not on the present facts arise. The issue is treatability and the Secretary of State's decision necessarily turns upon a clinical judgment, that of the RMO, and if that judgment was fairly and rationally made, a duty in the Secretary of State to permit and consider representations does not in my judgment arise. The statutory intention was not to create a right, when the Secretary of State received a notification, to make representations. There will be cases in which circumstances, including information available to the Secretary of State, either in the documents by which the notification is given, or from other sources, create a duty in the Secretary of State to make further enquiries or take further action or both but that situation has not arisen in the present case. On the facts of the case in the statutory context, I see no unfairness in the Secretary of State accepting the RMO's request and making an order under section 50(1). Moreover, in the statutory context, I see no room for a half-way house between the right to make full representations prepared by a lawyer, which is not claimed, and the procedure I have found sufficient. The right of a mentally disordered prisoner to make his own written representations on his treatability would be an empty shell in many cases.

47A. Since the judgment was handed down in draft, Mr Bowen has submitted that he did not make the concession described in paragraph 47. The Court understood that concession to have been made. The right to legal representation was not advocated in the skeleton argument before the Court and the nature of the legal representations and the procedures now contemplated was not addressed in oral argument as we would have expected it to have been if that was part of the case. The present issue should not however be determined on the presence or absence of a concession and we are content to record counsel's position.

48. I would decide the case on those grounds and without recourse to the argument that, even if the procedure sought had been followed, the result would in this case have been the same. I do not consider that, on the facts of this case, the applicant has been treated unfairly. If the further stage is considered, Mr Bowen and Miss Richards accept, for that purpose, the test I stated in R (Davies) v Secretary of State for the Home Department (unreported, transcript 31 October 2000):

"In my judgment, the question is not whether the Secretary of State, following further inquiries, would have been entitled to reach the decision he did. He may well have been entitled to reach that decision following the further inquiries which had been contemplated in this case. The question is whether there is a reasonable possibility that, upon appropriate inquiries having been made, he would have cancelled the revocation."

I would go on to hold, as did the judge, that in this case there was not a reasonable or even a real possibility that the outcome would have been different.

Article 8

49. I do not consider that there was a breach of Article 8 of the Convention. The applicant was serving a sentence of imprisonment for life. In the absence of a breach of another Article or Articles, the Convention does not render unlawful that interference with private life which inevitability follows from a lawfully imposed custodial sentence. Transfer from prison to hospital and hospital back to prison, as a part of a high-security custodial regime, cannot in present circumstances be said to breach the Article notwithstanding the differences in medical treatment which may occur. I do not of course exclude the possibility that some aspects of a custodial regime might attract a case for a breach but the decisions complained of do not fall within the concept of respect for private life in Article 8.
50. I would dismiss this appeal.

Thorpe LJ:

51. I agree that this appeal should be dismissed and for the reasons given by My Lord.

Scott Baker LJ

52. I also agree.