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A person detained under the Mental Health Act does not have a higher priority for treatment than a person who is a voluntary patient, even if a responsible medical officer recommended the detained person's treatment.

That was the decision in the administrative court, in the case of R v Oxfordshire Mental Healthcare NHS Trust & Oxfordshire NHS Health Authority ex parte F. The case was dealt with by Mr Justice Sullivan who was treated to the sight of doctors disagreeing about treatment, location, which authority pays and also had to decide whether a voluntary patient has different rights to a detained patient.

The facts were quite simple. Miss F had been convicted of manslaughter in 1992. The events had taken place in Oxfordshire. Her parents moved to Blackpool in 1998. Miss F and her psychiatrist (Responsible Medical Officer (RMO) under the Mental Health Act 1983, Dr Orr) took the view that she was nearly ready for transfer from Broadmoor to a less secure unit, initially on trial leave, preferably to a medium secure unit in the north west for eventual return to that area, which would be nearer to her parents' home. It would have the advantage of not being near Oxford where the death took place.

Oxfordshire Mental Healthcare NHS Trust & Oxfordshire NHS Health Authority have a Priorities Forum which deals with referrals from Dr Rose, their Consultant Psychiatrist who evaluates cases for referral out of their area (as in this case). Dr Rose wrote to Dr Orr saying that he was extremely sympathetic but that the referral out of area would cost approximately £200,000 over a two-year period and the trusts simply did not have that kind of money. He listed five reasons why he could not support Miss F's request:

1. High quality care was available locally. Indeed a local psychiatrist (Dr Bullard) had been involved with Miss F for over nine years already. Continuity of care could be guaranteed.

2. The nature of the offence did not warrant moving away from Oxfordshire.

3. There was disagreement between the medical practitioners about whether rehabilitation should be attempted even with the parents being near.

4. The patient will need a long time in medium care.

5. The cost of sending the patient to Manchester was not justified at this stage given the uncertainty about the questionable benefits.

After much deliberation, after reconsidering the question when requested to do by solicitors for Miss F, those issues were the ones which were the subject of Judicial Review Proceedings commenced on 1 March 2001. Dr Orr said that there were four good reasons why Miss F should go to Manchester, not Oxford:

1. The unusual nature and high profile of the offence would make rehabilitation difficult in Oxford.

2. Miss F's memories of Oxford were all negative. Rehabilitation would be harder there than Manchester.

3. Family work would be easier if her parents were near

4. She had no network of support in Oxford.

Dr Bullard disagreed with Dr Orr. Miss F's barrister went into great detail about Dr Orr's responsibilities as RMO saying that her views as the psychiatrist treating Miss F should be given precedence over those who were not treating her. Mr Justice Sullivan considered the matter in very great detail but his starting point was very clear - "Treatment is provided to all patients in the real world where the availability of facilities is constrained by resources". He went on to say "that since resources are limited, there is bound to be a queue of patients seeking treatment. I do not accept the proposition that the RMO's position under the 1983 Act is to propel his or her Part II or Part III patients to the head of the queue." He decided that it is for the health authority to decide (subject to Wednesbury review) what weight to give to the RMO's clinical judgement in any particular case.

The judge concluded that the health authority had acted fairly. He concluded with this stark warning "Decisions on funding affect lives, not just liberty. That is not a good reason to judicialise them. They are agonisingly difficult decisions, and they will not be made any easier or better if they are encumbered with legalistic procedures."

Bernadette Livesey

Human Rights Solicitor

Walker Morris