R (K) v West London Mental Health NHS Trust [2005] EWHC 1454 Admin

The Claimant (K) a restricted patient, sought permission to challenge the decision of the Defendants (the Trust) not to fund his placement at a hospital in the private sector.  K wished to move from a high security hospital for which the Trust were responsible, to a private medium secure hospital.(Farnfield)  K’s responsible medical officer (RMO) supported this move and application for permission to apply for judicial review.  The application raised questions about the interpretation of s17 of the Mental Health Act 1983 (the Act)  and whether following the grant of leave by an RMO under this section, a Trust could refuse to fund the placement on grounds of clinical judgment or resource considerations.

The Trust’s Forensic Services Division (FSD) were responsible for managing funding decisions, the transfer of patients between the Trust’s hospitals and for granting periods of leave of absence to patients.  Section 17 of the Act sets out under what circumstances leave of absence may be granted.  Since K was a restricted patient under s37 and 41 of the Act, no transfer or grant of leave was possible without the consent of the Home Secretary.  Following ECT treatment and new medication, K was reviewed and following some improvement, his RMO and a psychiatrist recommended that he be transferred to Farnfield which they were satisfied could meet his needs. However a second Trust psychiatrist disagreed.  In any event, his RMO applied to the Home Office for consent for 1 day’s trial leave, which was granted.  The RMO then made request for funding a placement at Farnfield.  The FSD stated that funding would not be available for a placement in a private hospital where the treatment could be provided by the Trusts own medium secure hospitals.  Their own consultant forensic psychiatrist felt that a placement at Farnfield was clinically inappropriate and K should be transferred from a high to a low dependency ward at a high security hospital before a transfer to a medium secure hospital. This view was disputed by K’s RMO.  Despite some deterioration in K’s mental health, the Home Office approved a period of trial leave at Farnfield, subject to K’s mental health stabilising. The Medical Director of the FSD maintained that the Trust firmly opposed this transfer for clinical reasons.

The court examined s17 and decided that it did not empower the RMO to authorise funding or any other expenditure on behalf of his health authority.   This was a choice for the hospital managers.  The second issue was then what considerations the managers should take into account in deciding whether or not to fund the cost of a stay at another hospital for which the RMO has granted leave of absence.  It was necessary to balance clinical judgement against resource considerations.  If managers were to disagree then they should have good and substantial reasons for doing so.  If they accepted the clinical ground to stay in another hospital they had to decide whether the benefit justified the expenditure.

The critical issue was whether the decision to refuse to fund K at Farnfield on clinical grounds, was one that was open to challenge as being Wednesbury unreasonable.  Although the judge criticised the dearth of up to date reports from the Trust, he decided that the decision taken by the Trust on clinical grounds that K was not ready for transfer was a decision that they could reasonably have reached.  Application denied

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