Freeman v Home Office (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHEN BROWN,THE MASTER OF THE ROLLS,LORD JUSTICE FOX |
| Judgment Date | 07 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0307-3 |
| Docket Number | 84/0105 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 1984 |
[1984] EWCA Civ J0307-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE McCOWAN)
Royal Courts of Justice
The Master of the Rolls
(Sir John Do Naldson)
Lord Justice Fox
and
Lord Justice Stephen Brown
84/0105
1979 F. No. 1449
MR. LOUIS BLOM-COOPER, Q.C. and MISS JUDITH BEALE (instructed by Messrs. Bindman & Partners) appeared on behalf of the Appellant.
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal by the plaintiff, David Freeman, from the judgment of Mr. Justice McCowan of the 19th May, 1983 whereby the learned judge dismissed his claim for damages against the Home Office and ordered that judgment should be entered for the defendants. The plaintiff is and was at all material times a prisoner serving a life sentence imposed upon him on the 30th July, 1970 at the Central Criminal Court following conviction for a number of offences of indecent assault and buggery and certain other offences.
By a writ issued on the 15th October, 1979 and served on the 17th October, 1979 the plaintiff claimed damages from the Home Office for alleged "assault and/or battery and/or trespass to the person by the administration to him of certain drugs, namely Stelazin and/or Modecate and/or Serenace by or under the direction of a Dr. Xavier, the servant or agent of the defendants and/or certain prison officers at H.M. Prison, Wakefield, between September 1972 and December 1972 against the plaintiff's will and/or without his consent". Secondly, for "negligence in administering the drugs to him as aforesaid". By their defence the Home Office denied trespass to the person and negligence, and alleged that at all material times the plaintiff expressly consented to the administration of each of the said drugs and that no drug was administered without his consent.
The defence also pleaded the Limitation Act, and an application was made by the defendants for an order that the plaintiff's claim should be dismissed or stayed on the grounds that it was statute barred. They further alleged that they were prejudiced in the conduct of the action by reason of the plaintiff's delay, in particular because the doctor named in the writ and statement of claim, Dr. Xavier, had died on the 1st October, 1977. The plaintiff invoked the power conferred on the court under section 2D of the Limitation Act 1980 and on the 23rd January, 1981 Mr. Justice Taylor rejected the defendant's application. On appeal to the Court of Appeal the court allowed the defendant's appeal holding that having regard to the death of Dr. Xavier it would not be equitable to allow the plaintiff to pursue his claim in negligence and that claim was struck out of the writ. However, the Court of Appeal held that it would be equitable to permit him to pursue his claim in respect of the alleged trespass to the person, since it appeared from his affidavit that he was not alleging that the doctor was present when prison officers allegedly forcibly injected him.
The case before Mr. Justice McCowan proceeded, therefore, upon the claim laid in trespass against the person and not in negligence. In November 1970 the plaintiff had been transferred to Wakefield Prison. His evidence was that in July 1972 Dr. Xavier, a consultant psychiatrist, came to Wakefield Prison as one of a team of five medical officers at the prison under the principal medical officer, Dr. Pendry Williams, and took over the psychiatric care of the plaintiff. The plaintiff was in the highest security category "A" and consistently protested his innocence of all the charges of which he was convicted. Whilst in prison he suffered from bouts of depression; he attempted suicide on a number of occasions. Some of the attempts were considered to have been genuine and some considered to have been gestures.
In February 1972 Wakefield Prison had considered the possibility of transferring the plaintiff to Broadmoor Special Hospital under the provisions of section 72 of the Mental Health Act 1959. He was examined by a consultant psychiatrist, Dr. McQuaid of Broadmoor Hospital who reported that he obviously had a very severe personality disorder but doubted whether he was susceptible to treatment and accordingly did not consider him suitable for transfer to Broadmoor. Thereafter the plaintiff was moved from the prison hospital in Wakefield to the ordinary wing where he behaved in a disruptive way, smashing a television set amongst other things. A prison officer is said to have found him attempting to hang himself with his vest and shirt, although the plaintiff denied that that in fact occurred.
The medical records before the judge showed that on the 25th February, 1972 he was examined by the principal medical officer, Dr. Penry Williams, who noted that he was not chronically depressed at interview, "He is evasive and not very truthful. Says he smashed up the T.V. normally used for general viewing on a landing, as he was annoyed with a prisoner opening his cell door, and saw this as a means of getting into hospital. States he attacked television with a chair after repeated blows. Says set was quickly replaced thereafter. A man of moods, who behaves as a spoilt child. Little time for feelings of fellow inmates or society at large. Abnormality is of personality and character". It is relevant to note that the records before the court showed that from February 1971 upon the recommendation of the senior medical officer, a Dr. Knox, the plaintiff had been under the care of a visiting consultant psychotherapist, a Dr. Goddard. In December 1971 Dr. Goddard had prescribed E.C.T. for the plaintiff but the plaintiff had not accepted this and it was not carried out. It was after this that the attempt to have him transferred to Broadmoor was made.
In July 1972 Dr. Xavier took over the psychiatric care of the plaintiff. The first record in the plaintiff's case papers of Dr. Xavier having dealt with him appears on the 3rd August, 1972. On the 10th August, 1972 Dr. Xavier is recorded as having prescribed Stelazin to be taken orally. The plaintiff refused to take it. There are also entries in the case papers relating to the 17th, 24th and 30th days of August, 1972 which record that the plaintiff refused oral medication prescribed by Dr. Xavier.
On the 31st August, 1972 Dr. Xavier is recorded as having prescribed Stelazin again. The records show that the plaintiff refused to take the Stelazin and on the 31st August, 1972 there is an entry by a Prison Officer Copley to the effect that the plaintiff "states he does not want anything to do with Dr. Xavier".
The case papers show that on the 1st September, 1972 the plaintiff still refused to take medication orally and on that day Dr. Xavier is recorded as having prescribed Serenace to be injected intra-muscularly and the plaintiff was injected on that day. It is not disputed that injections of Serenace were also given on the 2nd and on the 3rd days of September, 1972. The plaintiff's claim was that these injections were administered by force against his will. Subsequently, on the 3rd November, the 20th November and the 4th December, 1972, he was injected with Modecate prescribed by Dr. Xavier. Again the plaintiff's contention was that these injections were administered against his will and were administered by force.
The plaintiff's evidence was that he first remembered meeting Dr. Xavier on the 10th August, 1972 for two minutes or so in the Chief Hospital Officer's room at the prison and that Dr. Xavier asked him to try his mixture, saying "It will make a new man of you." The plaintiff said that he replied "No, I don't want it. I feel better. I don't need the drugs" and that that was all that happened on that occasion. He then saw Dr. Xavier each week whilst he was attending the workshop and again he was asked by the doctor if he would have his mixture, and that each time he refused.
On the 31st August, 1972 he had a brief meeting with Dr. Xavier when he was again asked to accept his mixture. On no occasion did the doctor tell him what the mixture was and he did not ask him. The plaintiff said that he told the doctor that he wanted nothing to do with him or his treatment.
On the 1st September, 1972 the plaintiff said that he was working normally in the workshop between 10.00 a.m. and 11.00 a.m. when he was called out by an officer and taken back to the prison hospital and to his cell. He said he was not told why and he did not ask and then he was locked in his cell. "A few minutes after," he told the court, "at least four or five prison hospital officers unlocked my cell and came in. No doctor was present. I particularly remember the officer holding the syringe, a Mr. Clark, the younger of the two officers called Clark. Mr. Copley may have been present, I can't remember the identity of any of the others. They were with me no more than five minutes, if that. The officers entered. Mr. Clark was holding the syringe with the needle upwards. With his other arm he held a wad of cotton wool over the needle. There was a strong smell of surgical spirit. Clark said 'Drop your trousers and lie down'. I said 'I don't want any drugs'. One of them said 'It's on doctor's orders. You can have it the easy way or the hard way.' I continued to protest and put my back to the wall and said 'I'm not having it'. At least four or five men seized me and manhandled me to the bed. They held me down and wrenched my trousers off. I threshed about on the bed and shouted. Clark said 'If you don't keep...
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