Mental health law briefing 205 – Procedure for transferring detained patients
We previously reported on the case of R(L) v West London Mental Health NHS Trust1.
The court’s decision was appealed, and the Court of Appeal has now handed down judgment2.
In summary, patient L was detained at Stockton Hall, but following an incident when he made a makeshift weapon, his case was referred to Broadmoor Special Hospital who agreed to admit him. His solicitor was refused permission to attend the admission panel hearing, and not given any of the documents considered by the panel. The procedure for implementing a transfer under the Mental Health Act was challenged by the patient, and at first instance the Judge set out twelve requirements of procedural fairness to follow when the managers of a medium security hospital contemplate the referral of a patient detained under the Act to a high security hospital.
The Trust appealed the decision on the basis that the procedures proposed by the Judge would “judicialise” what is essentially a clinical judgment.
The Secretary of State was joined as a party, as the patient also alleged that the transfer procedure was in breach of his rights under Article 63 of the European Convention on Human Rights, albeit that the Judge had held that the decision to transfer a patient was not a determination of civil rights, so no Article 6 issue arose.
Decision of the Court of Appeal
The Court of Appeal concluded that the Judge had required a procedure which was inappropriate, and that the decision should be set aside. The Court felt the current process was usually fair. The Code of Practice to the Mental Health Act should be amended however, so that unless there was urgency, a clinical reason for excluding notification or some other reason (eg, risk of harm to other patients or staff), the gist of any letter of reference to a high security hospital, and the assessment by the clinician at the high security hospital, should be provided to the patient or his representative, who should have the opportunity to make written representations.
This would be part of the patient’s involvement in the process, as required by paragraph 30.17 of the Code of Practice which makes it plain that it is important to explain the reasons for a transfer to the patient and, where appropriate, their nearest relative and family, and to record them. The Code states that patients should be transferred to another hospital without warning only in exceptional circumstances.
The Court considered whether the patient should be given an opportunity to make representations to the transferring hospital before a reference is made. The Court felt this was not a requirement of fairness. However, as ultimately the decision would be made by the receiving hospital, the Court felt that this was not necessary.
The Court of Appeal clearly took a less “procedural” view of transfer between hospitals than the Judge at first instance. The decision certainly serves to reduce the administrative burden arising in such cases where a patient is being transferred from a medium secure to a high secure unit. That said, the Court did highlight the steps that should be taken in anything other than urgent situations, and transferring hospitals must clearly take heed of these.
Does the same apply to transfers between any hospitals? Technically no; the case referred to transfer of a restricted patient from medium secure to high secure provision. However, paragraph 30.17 of the Code appears to apply to all hospital transfers and requires patients to be involved in the process leading to any decision to transfer them to another hospital. The Code refers to this as including a need to explain the reasons for a proposed transfer to the patient, and where appropriate, their nearest relative and other family members, and for this to be recorded. Transfer without doing this should only take place in exceptional circumstances.
The approach adopted in that case is therefore likely to be appropriate for all transfers between psychiatric hospitals.
It should also be noted that paragraph 30.15 of the Code makes it plain that there should be good reasons for any transfer, and that the needs and interests of the patient should have been considered. It refers to the fact that transfers are potentially an interference with the patient’s right to respect for privacy and family life under Article 8 of the European Convention on Human Rights and therefore care should be taken to comply with the Convention.
t: 020 7227 7282
1 See Mental Health Law Briefing number 192
2  EWCA Civ 47
3 The Right to a fair trial
This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.