How to be fair about transfer to Broadmoor

hospitalR (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] 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.

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