How to be fair about transfer to Broadmoor
23 February 2014
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health  EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
A tiny bit more about the facts. Whilst in the first hospital, Stockton Hall, L took against another patient, SW. He made two weapons from the arms of his spectacles and a metal sharpened pen. He handed one in but kept the other. He later told staff he intended to stab SW in the neck. Stockton Hall referred the case to Broadmoor, who interviewed L, who seemed to be keen to make the move. The Broadmoor Admission Panel then met. It had not answered L’s solicitor’s request for documents relating to the proposed transfer, and did not allow the solicitor to attend. It recommended transfer.
L started proceedings, and sought and was granted an interim order preventing transfer, and was granted permission to seek judicial review of the decision. However it then emerged that L found it difficult to contemplate staying where he was and thought that in practice Broadmoor was his only option. So the practical issue fell away. The judge considered whether this meant that the proceedings should cease. With some reservation, he decided against that, because the issue was one of considerable importance. The Court of Appeal agreed, though it shared the judge’s reservations.
Absent a focused factual matrix and dispute, there is a real risk of abandoning the adjudicative exercise which is the principal and in many cases the sole function of litigation, and conducting into what is, in substance, an inappropriate quasi-legislative exercise.
That said, and for reasons which will become apparent, the CA set out a helpful set of criticisms of the current procedures for such transfers without deciding that there had been unfairness on the facts. That is the plain public interest of the case.
Duty to be fair
Ultimately, the Trust responsible for Broadmoor accepted that the transfer to a high-security hospital was subject to the requirements of common-law fairness. A transfer had the potential of delaying the ultimate date of discharge and also carried the risk of more restrictive detention conditions. The real issue was what was required to discharge that common law duty of fairness.
Beatson LJ reminded us that the demands of fairness are acutely sensitive to context, and that the law ought to be flexible about what a given context required : . But saying that fairness was flexible does not really help, because in practice the courts have, unsurprisingly, devised court-like procedures: . This is what the judge did, creating
what is virtually a mini-CPR and what is in substance an adversarial form of adjudication
But being flexible carried its own risks. It threatened to draw together two distinct concepts, of procedural and of substantive fairness – was it fair? and – did it affect the outcome? Recent judges have tended to say that in many cases it was impossible for the court to be confident that a fair hearing really would make no difference, and that was value in those affected being able to participate in the decisions made about them, providing that they have something to say which is relevant: -.
The second risk, graphically put at , was
a Tennysonian “wilderness of single instances” in which all the contextual factors will be relevant in considering what the requirements of procedural fairness are in a given situation without any factor or group of factors having decisive weight in shaping what is in practice required. The consequence may either risk obscuring the overarching principle or stating it at a level of generality which is not of use as a practical tool to decision-making. The result could be undue uncertainty and unpredictability. There is a need for principled guidance which is practical and does not constitute either a procedural straitjacket, a “safe harbour” for longstanding ways of doing things in a particular context, or operate with centripetal force towards an adversarial adjudicative process.
So what were the factors of relevance to this type of case, and in the light of them what was necessary for a procedure to be fair?
The basic issue here, as the Trust argued, was really one of psychiatric judgment. In the light of L’s views towards SW, just how high a risk did L present? Decisions to transfer may be urgent and involve issues of confidentiality, both which might limit the information what might be given to a patient. Decisions also required some consistency in admission standards to high-security places in hospitals, because of their scarcity: . Decisions were not simply binary [hospital v. patient] but “polycentric”, because “they involved the interests of the security of the institution as a whole”.
As a general principle, Beatson LJ decided that a patient should be provided with (i) the gist of the letter of reference by the medium-security hospital to the high-security hospital, and (ii) any clinical assessment by the high-security hospital – unless there was urgency, a clinical reason precluding such notification or some other reason such as the exposure of patients or staff to harm: . To that extent, the current statutory Code of Practice was defective. He did not think that there was an obligation to allow a patient to participate in any meeting of the Panel, other than via any written representations he may wish to make in response to the above written material.
But Beatson LJ found that on the facts L and his solicitor did know enough about what was concerning Stockton Hall to “participate in the procedure.” :  This meant that the CA allowed the Trust’s appeal, and set aside the judge’s declaration that the decision-making process had been unfair.
But this finding had an element of fortuity about it, hence the CA’s wish to improve transfer procedures by the provision of gists and any assessment. It was a matter for the bodies responsible to devise a practical way of doing this: 
In agreeing, Moses LJ put pungently the effect of the judge’s 859-paragraph judgment and its quasi-legislative list of requirements on the Trust: it
was likely to induce in those doctors who are charged with the difficult task of deciding whether a patient’s condition requires his move from a medium to high-security hospital with a sense not only of despair but of a belief that judges do not understand the practical consequences and difficulties inherent in the exercise of clinical judgments respecting patients suffering from mental illness.
He agreed that the evidence had failed to establish any procedural unfairness on the facts.
This is a perfect illustration of why public law proceedings can be valuable, even though, as in this case, L eventually lost his case. It is a reminder that Grayling’s over-concentration on the outcome for the individual claimant fails to reflect the public interest conferred by judicial review in many different areas.
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