MENTAL DISORDER — Secretary of State’s powers — Leave of absence — Patient granted leave of absence by registered medical officer — Patient wishing to make trial transfer to private sector medium security hospital — Secretary of State refusing to fund transfer — Whether Secretary of State (or his delegate) obliged to fund placement — Whether opinion of registered medical officer binding on Secretary of State — National Health Service Act 1977, s 3 — Mental Health Act 1983, s 17

Regina (K) v West London Mental NHS Trust [2006] EWCA Civ 118

CA: Waller, Arden and Dyson LJJ: 22 February 2006

A mental health trust was not obliged to fund a placement for trial leave which a patient’s registered medical officer had decided under s 17 of the Mental Health Act 1983 was clinically appropriate. The opinion of a registered medical officer on a matter of clinical judgment was not binding on the Secretary of State for Health (or his delegate) performing functions under s 3 of the National Health Service Act 1977.

The Court of Appeal so stated in a reserved judgment when dismissing the appeal of the claimant, K, a patient in Broadmoor Hospital, against the decision of Lightman J on 6 July 2005 in the Administrative Court [2005] EWHC 1454 (Admin) refusing his application for judicial review of a decision by the West London Mental Health NHS Trust, by its panel on 19 April and 16 May 2005, to refuse to fund the claimant’s transfer from Broadmoor to Farmfield, a medium security hospital in the private sector.

DYSON LJ said that the fact that a detained patient’s registered medical officer was given power to grant a leave of absence subject to conditions did not entail the proposition that the Secretary of State was obliged to provide any services so as to enable the patient to take advantage of that leave of absence. The decision whether or not any particular service should be provided under s 3 of the 1977 Act was one for the Secretary of State or his delegate. There was no express statutory duty on a Secretary of State (or delegate) to facilitate decisions lawfully made under the 1983 Act. Thus the Secretary of State was not obliged to use his best or reasonable endeavours to give effect to a decision by an RMO under s 17 of the 1983 Act. The decision of Sullivan J in R (F) v Oxfordshire Mental Health NHS Trust [2001] EWHC Admin 535 was correctly decided. When performing functions under s 3 of the 1977 Act, the Secretary of State was not bound to accept and act on the clinical judgment of the RMO. He was entitled to have regard to any relevant information available to him. The decision as to what services were to be provided for any individual under s 3 of the 1977 Act was not one for the RMO and the Secretary of State was not legally obliged to accept whatever the RMO might say on matters of clinical judgment. The weight to be given to an RMO’s opinion must be a matter for the decision-maker having regard to all relevant circumstances which would include how long the RMO had been in charge of the treatment of the patient, the strength of conviction with which the RMO’s clinical judgment had been expressed, the weight of other clinical opinion and the reasons given by the other medical practitioners for their disagreement with the opinion expressed by the RMO.

ARDEN and WALLER LJJ agreed.

Appearances: Richard Drabble QC and Natalie Lieven (Scott-Moncrieff, Harbour & Sinclair) for the claimant; John Howell QC and Angus McCullough (Capsticks) for the NHS trust.

Reported by: Alison Sylvester, barrister