Mental Health – treatment – resources – informal patient – priority – target duty – absolute duty
F, who was a restricted patient at Broadmoor, applied for judicial review of the Trust and Health Authority’s refusal to fund a placement for her treatment at a Medium Secure Unit at Manchester. It was common ground that F was ready to be transferred to a medium secure unit. The question was whether that transfer should be to a unit in Oxford or Manchester.
At the time of her admission to Broadmoor, F had been ‘usually resident’ in Oxfordshire, which was therefore her ‘responsible authority’. F’s RMO argued that F should be transferred to the Manchester unit as the nature and high profile of her offence meant that all her memories of Oxford were negative ones, making rehabilitation there difficult. Further, F had no network of support in Oxford: her parents had since moved to Blackpool and family work would be easier if her parents were within reasonable travelling distance.
The HA’s Consultant Psychiatrist (CP) countered with a number of reasons why the HA should fund F’s continued treatment in Oxford rather than Manchester, including the availability of local high quality continuity of care and the cost of funding the Manchester placement. The matter was eventually referred to the HA’s Priorities Forum (which dealt with disputes over extra contractual or ‘out of area’ referrals), which supported the CP’s views.
At the JR hearing, F argued, inter alia, that the Forum’s decision was unlawful in that it failed to give sufficient weight to her RMO’s clinical judgement which, given the RMO’s statutory role, should have been determinative of the question of where F should be transferred to, in the absence of irrationality. Further, the s117 MHA duty to provide aftercare was an absolute duty and it would be anomalous if the HA were to owe an absolute duty to patients whose treatment had been successful enough to allow their discharge, but were to owe a lesser target duty to those who still required treatment in hospital.
The judge, however found that the starting point was s3 National Health Service Act 1977, under which all health authorities owe the same target duty to the physically or mentally ill. There was nothing in the MHA 1983 which provided for an ‘enhanced’ duty to the mentally ill. The significance of s117 was that it showed that, where Parliament was not content to rely on a general or target duty owed by the health authority or the local social services authority towards those in need of their services, it imposed an enhanced duty in express terms.
As far as resources were concerned, the judge said, ‘treatment is provided to all patients in the real world where the availability of facilities is constrained by resources’. The additional powers conferred on RMOs by the 1983 Act were in relation to the RMO’s patient, not the HA, and the RMO’s position under the Act was not such as to as to propel his or her Part II or III (ie formally detained) patients to the head of the queue for treatment. The HA was bound to consider the RMO’s views as to what facilities to provide for the patient, but it was for the HA to decide (subject to Wednesbury review) what weight to give to the RMO’s clinical judgment in any particular case.
The judge also said that decisions on funding, which affected lives and not just liberty, were agonisingly difficult to take and would not be made any easier or better if they were encumbered with legalistic procedures.