Mental health law briefing 191 – Objecting to a S.19 transfer between hospitals
Section 19 of the Mental Health Act deals with the transfer of detained patients between hospitals. However, to what extent is the patient entitled to object to this? A recent case has considered the position.
The patient sought to challenge a transfer from a medium secure unit to Broadmoor. He objected to the transfer because of the potential delay to his eventual discharge that this would cause, and because of the potential for more restrictive detention conditions if he were to be detained at Broadmoor.
The Court held that the decision making process when transferring patients from medium to high security did engage a common law duty of fairness. Although this would be subject to the need to protect persons from the risk of harm or some other substantial reason, that duty would require:
- informing the patient and his advisors of an intention to refer him to high security.
- providing reasons for the referral and any relevant reports.
- ensuring that the explanation was sufficiently detailed to enable representations to be made.
- provision as appropriate of additional information and in such time for relevant representations to be made before implementing the decision.
- In the current case the Court felt that this had not been done and made a declaration that there was a breach of the common law duty of fairness.
It had also been claimed that the transfer was a breach of Article 6 but this was rejected by the Court on the basis that the transfer was not a determinative of the patient’s civil rights. However, if that was wrong and Article 6 did apply, the Court did not feel that it was necessary to make a further decision on the legal issues so arising (including whether an independent panel should decide on the transfer).
 R(L) v West London MH NHS Trust (2012) EWHC 3200
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.