In R (YZ) v Oxleas Foundation Trust and another [2017] EWCA Civ 203 the Court of Appeal rejected YZ’s appeal against the refusal of permission for judicial review of the decision of YZ’s responsible clinician (RC) to seek his transfer from a medium secure unit to Broadmoor. The judgment was delivered by the Lord Chief Justice.

The background facts are these: YZ was born female in 1993 and had a difficult childhood with periods in care; and a history of serious violent offending. This led to him being accommodated in secure accommodation under s25 Children Act. In 2010 he pleaded guilty to assault occasioning grievous bodily harm with intent to a 12 year old victim. YZ had been 15 years old at the time. On 1 October 2010 he was made the subject of an order under section s 37/41 Mental Health Act 1983 (“MHA”). He had been diagnosed as having paranoid schizophrenia, emotionally unstable personality disorder and anti-social personality disorder.

Also in October 2010, YZ was diagnosed with gender dysphoria and he was supported, after specialist advice was taken, in his decision to live as a man. By 2012 he had been referred to the Gender Dysphoria Service at Charing Cross Hospital. He was still described as showing a range of aggressive behaviours.

On 18 June 2012 he was placed at the Bracton Centre on a male ward, consideration having been given to placing him at Broadmoor; however he was not found to meet the admission criteria. Broadmoor was considered again in 2013; the admissions panel agreed to YZ’s admission but a decision was taken to seek the advice of a consultant at the gender identity clinic, who recommended that YZ should be managed in a male unit, make a transition to clozapine and when he had attained greater stability should be referred for assessment at the Gender Identity Clinic. A further assessment from Broadmoor concluded that YZ could be managed in medium security.

During 2014 YZ was due to attend appointments at the Gender Identity Clinic but these did not take place due to administrative problems. YZ intermittently refused clozapine and stated through his solicitors that this was because he had not been able to attend the appointments. On 31 October 2014 YZ pleaded guilty to an offence of assault occasioning actual bodily harm. In December 2014 the Bracton Clinic again referred YZ to Broadmoor on the basis that he was becoming unmanageable in medium security. He was placed in the intensive care unit following an attack on a nurse. Clozapine was discontinued on the basis that the hospital wanted to stabilisie YZ’s mental health before it was restarted. In January 2015 YZ’s solicitors sent a formal letter of complaint addressing the failure to deal with YZ’s gender dysphoria, the conditions of his treatment and asserting that the decision to refer him to Broadmoor was irrational.

Dr Dillon, a consultant psychiatrist from Broadmoor who had seen YZ in 2014, reassessed him and concluded he did not meet the threshold for admission to Broadmoor but should be placed in an alternative medium secure unit as the relationship with the Bracton Centre had broken down. An independent psychiatrist instructed to report for the purpose of the admissions panel decision recommended that he remain in medium secure conditions and that he should be treated urgently at the Gender Clinic.

On 12 February the admissions panel at Broadmoor decided that if YZ was not taking clozapine he should b e offered a bed: if he was taking clozapine it was suggested that he be referred to another MSU. YZ appealed and said he was willing to take clozapine.

On 27 March 2015 the appeal panel concluded that YZ met the criteria for admission to Broadmoor, concluding that his commitment to take clozapine was unlikely to be sustained. This would not preclude treatment for gender dysphoria. The responsible clinician decided not to treat YZ with clozapine. A decision was made to place YZ at Broadmoor.

A decision to transfer YZ was made on 6 May 2015 and on 8 May 2015 YZ issued an application for judicial review. An expedited rolled up hearing took place. YZ asserted that the decision to transfer paid inadequate attention to the relevant provisions of the Code of Practice and to YZ’s article 3 and 8 rights; and the court should subject the decision to admit to Broadmoor to intense scrutiny. The refusal to prescribe clozapine was irrational; YZ’s gender dysphoria was not being properly treated and this had an impact on his mental health. Instead of being moved to Broadmoor he should be admitted to another medium secure unit.

The Court of Appeal characterized the evidence before the judge at first instance as demonstrating that:

- The RC considered treatment with clozapine was inappropriate and no other clinician was willing to treat YZ with clozapine.

- The Bracton Centre could not manage YZ safely (he had recently knocked a nurse unconscious).

- No other MSU would be appropriate.

- All relevant factors had been considered by both Oxleas and Broadmoor.

The judge dismissed the claim as “forensically hopeless” and refused permission and YZ moved to Broadmoor on 3 June 2015. By mid-July he was in a position to start testosterone treatment. He was not treated with clozapine. However YZ was treated with “a degree of success” and at the time of the hearing before the Court of Appeal he was due to start a trial period at an MSU. A further order under s37/41 placing YZ at Broadmoor on 18 September 2015 and by October 2015 a Tribunal was told he would be ready to move to conditions of medium security.

The appeal was pursued:

“i) to give the court an opportunity of setting out the legal safeguards (including judicial scrutiny) where a vulnerable person was transferred into high security conditions;

ii) to obtain the declaration that the transfer to Broadmoor was unlawful as it would highlight the importance of transgender issues being given proper weight because the real problem here had been the failure to treat the claimant's gender dysphoria.”

It was argued that Articles 3 and 8 were engaged and that the need for the high level of security at Broadmoor had not been convincingly shown to exist. The claimant argued that:

“Article 3 was engaged as, particularly given the claimant's gender dysphoria, the anticipated conditions of detention at Broadmoor could amount to inhuman or degrading treatment; the restrictive conditions would be exacerbated by the denial of treatment by clozapine (which the claimant wanted) and the non-consensual treatment by anti-psychotic injections and the delay in treating his gender dysphoria. For the same reasons, Article 8 was also engaged.”

The Court of Appeal held that the claim failed on its facts and should have been withdrawn after the Crown Court had made the findings it did in September 2015. The Court considered that full and appropriate weight had been given to the transgender issues and he had been able to access treatment in Broadmoor. Criticism was made of the costs involved and the Court directed that the judgment should be sent to the Legal Aid Agency, with the comment that (at [13])

“As these were proceedings brought through legal aid, the Chief Executive of the Legal Aid Agency should ensure for the future that the Agency carefully examines the circumstances in which the Agency allows such cases to be pursued, particularly to this court, given the very significant costs that the NHS incurs as a result, quite apart from the need carefully to use the small resources that Parliament has made available for legal aid.”

The Court of Appeal proceeded to give guidance “in the hope that such waste of public funds can be avoided for the future” (emphasis added):

84. The position in relation to such transfers was clear from two first instance decisions by Richards J and Munby J (as each then was):

i) In R(P) v Mersey NHS Trust [2003] EWHC 994 (Admin), a challenge was made to the refusal by the Secretary of State to direct the removal of a patient subject to a s.37/41 hospital order from a High Security hospital to a medium security hospital. In refusing relief Richards J said:

"[25] In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Article 8 rights.

[26] Who is to decide that question of risk? That is really the stark issue raised by Mr Bowen's submissions. Is it the persons upon whom the statutory powers have been vested by Parliament? Is it the Tribunal or the court? In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision- maker.

[27] The process contemplated in Wilkinson in hearing expert evidence, including cross-examination, which is the process that the claimant invites the court to adopt in the present case, seems to me to relate to a very different context. This is a situation where the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court's role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence."

ii) In R(IR) v Shetty [2003] EWHC 3022 (Admin), an attempt by a convicted prisoner who had been transferred to hospital under s.47 of the MHA 1983 and opposed his return to prison, Munby J (as he then was) expressly followed and affirmed the decision of Richards J.

85. This approach is entirely in line with the decision of this court in R(L) v West London Mental Health NHS Trust [2014] 1 WLR 3103; [2014] EWCA Civ 47. In that case this court had to consider a challenge by way of judicial review to a decision to transfer a patient detained under a s.37/41 hospital order from a Medium Secure Unit to a high security unit (Broadmoor). After considering what was required by way of a fair procedure, the court said:

78. There are, however, several other factors in the present case which justify circumspection. They do this in a similar way to the way that the factors to which I refer at para 76 have limited the requirements of what material must be made available or the scope of the individual's participation. The first factor is that, as recognised by this court in R v Secretary of State for the Home Department, Ex p Pickering [1990] COD 455, the decision in this case is a clinically-based medical evaluation of future risk to the patient and to others. See also the references to the need for respect for clinical judgment in different mental health contexts in R (Wilkinson) v Broadmoor Special Hospital Authority, para 79, per Hale LJ in relation to imposed treatment (proper respect for "therapeutic necessity") and in R (K) v Camden and Islington Health Authority [2002] QB 198, para 58, per Sedley LJ. The second is that the evidence in these proceedings shows there is often a need for transfers to be executed with urgency because of the inability of the medium security hospital to continue to look after the patient safely, and the immediate risk to that patient and other patients, and to staff. The third factor is that the decision has a "rationing" aspect because of the scarcity of high security places in hospitals. The admission criteria are inter alia directed to ensuring consistency in the admissions standards used by the three high security hospitals. …

80. The clinical decision is one that is made on the basis of the entire clinical and other history of the patient in question. The incident which is the trigger to the reference is typically only part of a much larger picture that has to be considered, and subtle nuances in the description of the facts of that incident are unlikely to affect the overall decision

86. The issues relating to transfer as set out in these cases are quite different from the circumstances that arose in R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419. The court was there concerned with a case of the compulsory imposition of treatment under s.58 of the MHA 1983 without the consent of a patient detained under a hospital order. As Hale LJ said, there was no reason to distinguish as regards consent between a person who lacked capacity but was not detained under a hospital order and a person detained under a hospital order. In that case a full merits review was justified.

87. I cannot see any basis for extending the scope of the Wilkinson decision as it would involve a major change in the law which has been clear since the two first instance decisions to which I have referred and which were plainly right. Moreover, if a full merits review were required, some cases might involve the full panoply of oral evidence and cross-examination: see R(JB) v Haddock [2006] EWCA Civ 961. If such a process was required, then it would impose severe delay and high cost to no public benefit to a case such as the present where the considerations are much broader.

88. In my view, when a challenge is made in the Administrative Court to the lawfulness of decisions involving the transfer into or out of a High Security Hospital, the court will pay the highest regard to the bona fide professional judgement of the responsible clinician. If the decision is bona fide (and there can, as I have explained, be no possible doubt that the judgement of the responsible clinicians in this case was bona fide), it would require compelling evidence to show that that judgement is one to which the court should not pay the highest regard. In my view, such judgement would generally be sufficient evidence on which a court could determine the lawfulness of the decision to transfer, absent compelling evidence to the contrary. There was no evidence (let alone compelling evidence) in this case to show that the judgment of the responsible clinician was not one on which the court could safely rely in determining the lawfulness of the decision.

The Lord Chief Justice went on to comment that “Parliament has …..given a clear role to the Secretary of State and provided for review of determination by the First Tier Tribunal. Applications for judicial review should therefore be very rare indeed” as these would interpose in a carefully balanced system (he referred to the guidance in R v Vowles and others [2015] 1 WLR 5131 on the use of hospital orders). Furthermore the decision not to treat with clozapine was purely a matter for the RC’s clinical judgment.

Comment: This appeal was dismissed in terms that are, putting it at its lowest, robust, with the court giving short shift to YZ’s underlying concern that the fact that his health needs (his gender dysphoria) were not met; and that this had propelled him into a spiral of non-compliance, increasingly unstable mental health, aggression and escalating restrictions.

The judgment raises the threshold for challenges to transfer cases by stating expressly that as long as the RC’s decision to transfer is “bona fide” then this will generally dispose of the claim unless there “compelling evidence” to the contrary. The comments about funding will no doubt be noted by the Legal Aid Agency.

The findings in relation to the decision not to prescribe clozapine are unsurprising.

It is worth noting that the FTT has a statutory power to make recommendations about transfers between hospitals under s72 MHA, but not for those like YZ detained under the forensic sections of the MHA. Even for civil patients recommend in the limited circumstances set out in s72 MHA (“with a view to facilitating his discharge on a future date”): the Upper Tribunal has advised caution in making recommendations given the “tenuous nature” of the Tribunal’s control (RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC). There is no statutory power to make recommendations for the transfer of restricted patients and the Court of Appeal has made it quite clear in C v Birminghamshire and Solihull Mental Health NHS Trust [2013] EWCA Civ 701 that there is no obligation on the FTT even to entertain such applications.

Finally, in almost equally trenchant terms, the Court of Appeal has recently made it crystal clear in the SSJ v MM, PJ v Welsh Ministers [2017] EWCA Civ 194 that the FTT has no powers other than to apply the statutory criteria and that alleged human rights violations resulting from the conditions of treatment should be pursued by judicial review. If such challenges arising from transfers, they will be harder to advance following this decision.