R (B) v (1) Dr Haddock (2) Dr Rigby (3) Dr Wood
| Jurisdiction | England & Wales |
| Judgment Date | 20 May 2005 |
| Date | 20 May 2005 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference: Administrative Court; CO/3610/2004
Collins J
Appearances: R Pezzani (instructed by Roberts Moore Nicholas Jones) for B; P Kaufmann (instructed by Capsticks) for Dr H; J Hyam (instructed by the Treasury Solicitor) for the SOADs, Drs R and W.
Whether treatment with anti-psychotic medication violated a detained patient's rights under Arts 3 and 8 of the Convention.
In 1995, having been convicted of affray and causing actual bodily harm, B was made subject to a hospital order under s. 37 Mental Health Act 1983 with a restriction order without limit of time under s. 41. He was classified as suffering from psychopathic disorder and detained at Ashworth Hospital, a high secure psychiatric hospital; he was still held there. B's Responsible Medical Officer, Dr H, formed the opinion that he suffered from a mental illness as well as psychopathic disorder, and that treatment with anti-psychotic medication would alleviate his condition. As B did not consent to the medication, Dr H sought a certificate authorising the proposed treatment under s. 58(3) of the 1983 Act from a Second Opinion doctor appointed by the Mental Health Act Commission (a SOAD). This was granted by Dr R, and medication was administered to B by force, commencing in May 2004.
B obtained the opinion of an independent psychiatrist that he was not suffering from any mental illness and that the treatment was not necessary or appropriate, an opinion supported by the evidence of an independent psychologist. B commenced judicial review proceedings, following which Dr H undertook not to administer further medication until further order of the court. In September 2004 the certificate issued by Dr R was withdrawn because of the passage of time, and Dr H sought a second SOAD certification, which was granted by Dr W in October 2004.
A Mental Health Review Tribunal in March 2005 rejected B's application for discharge, but also rejected an application that he be reclassified: it decided that it could not find on the balance of probabilities that he also suffered from a mental illness and so declined to reclassify.
B submitted that the proposal to continue medication was treatment for mental illness which was unlawful because he was classified as suffering only from psychopathic disorder and that it violated his rights under Art 3 and Art 8 European Convention on Human Rights.
1. The claimant, whom I shall refer to as B, is now 27 years old. He is detained at Ashworth Hospital pursuant to a hospital order under s. 37 of the Mental Health Act 1983 ('the 1983 Act') coupled with a restriction order without limitation of time under s. 41 of the 1983 Act. These orders were made following his conviction for offences of affray and causing actual bodily harm. This was in September 1995 when he was just 18. He has remained in Ashworth Hospital since then and is still regarded as too irresponsible to be released into the community because of his lack of co-operation with those who seek to treat him and his continuing threats and acts of violence.
2. That view is challenged by a psychiatrist and a psychologist who have submitted reports on his behalf. Professor Sashidharan, a consultant psychiatrist, maintains that the claimant is not suffering from mental disorder but that his problems are a result of "long standing emotional difficulties, dating back to his childhood, which remain poorly understood and largely unresolved, in spite of almost 10 years of close psychiatric supervision and treatment". Professor McGuire, an eminent psychologist, is of the same view and concerned that B is fundamentally a case of "psychiatric injustice". He says:
"[B] experienced a series of emotional problems in adolescence, was involved in an unfortunate incident in a children's home with the consequence that he almost by default ended up in secure psychiatric care. His pattern of behaviour since then has had 2 major features. One is a rejection of, resistance of and hostility towards the system which detains him and towards its representatives. The other is a fairly abject emotional insecurity and developmental delay which manifested itself in inappropriate attachments. The most troubling phenomena, which are the concern of other reports, [B's] verbal abusiveness and physical aggression at various points, become comprehensible when viewed in that broader context. In my opinion, his steadily deteriorating predicament is a function of development and situational factors rather than of underlying severe mental disorder. It is important that staff responsible for management of his care address that broader perspective".
3. There can be no doubt that this is a depressing tale. B is a very bright young man who could achieve much but for the undoubted problems which are resulting in his remaining in Ashworth. There has been no improvement in recent months: indeed, the contrary appears to be the case.
4. By May 2004 Dr Haddock, the first defendant and the claimant's responsible medical officer (RMO), decided that treatment with anti-psychotic medication would alleviate the claimant's condition. Confirmation in the form of a certificate authorising the treatment was obtained from the second defendant. Treatment commenced on 13 May 2004 and comprised forcible administration of intra-muscular depot injections of an anti-psychotic drug. Following the lodging of this claim at the end of July 2004, Dr Haddock undertook not to administer anti-psychotic medication to the claimant without his consent until further order of the court and that formed part of an order of the court when permission was granted on 20 August 2004. It was hoped that the claim might be heard in September, but that did not prove possible and the certificate issued by the second defendant, whose existence was an essential prerequisite to the administration of the challenged treatment, was withdrawn. The claimant's representatives were informed that the RMO was still satisfied that the treatment was needed and that another doctor was being instructed to consider whether to grant a certificate that it was. The third defendant was instructed, read the documentation and interviewed the claimant. On 30 October 2004 he granted a certificate; but restricted the type and the amount of the medication. The claim was amended to add the third defendant and to take account of this development.
5. Two grounds were relied on in the claim. The first alleged that to administer the medication without consent was a breach of the claimant's human rights. This can be subdivided into a number of issues. These, briefly, are:
(1) Is the claimant suffering from mental disorder?
(2) Does the claimant have capacity to refuse consent to the proposed treatment?
(3) Is the proposed treatment necessary?
(4) Is the proposed treatment likely to be in any way effective?
These issues overlap and I shall in due course expand on and explain them.
6. The second ground relied on the decision of the Court of Appeal in R (B) v Ashworth Hospital Authority [2003] Mental Health Law Reports 250, [2003] 1 WLR 1886. The treatment in the present case was said to be effective to treat mental illness. The claimant is classified as suffering from psychopathic disorder, not mental illness. In the B case (above), the Court of Appeal decided that non consensual treatment would only be administered for the condition from which according to his classification a patient was suffering. When the hearing took place on 14 March 2005, the House of Lords was due to give judgment in an appeal from the Court of Appeal. Judgment was given on 17 March - see [2005] Mental Health Law Reports 47, [2005] 2 WLR 695 - the day before the Easter vacation. I indicated that further submissions could be made once the decision of the House of Lords was known. The House of Lords reversed the Court of Appeal and decided that treatment of any disorder from which a patient suffered could be given irrespective of whether it fell within the form of disorder from which he was classified as suffering. Thus classification is not relevant in deciding whether a particular treatment is needed. So long as a patient is suffering from mental disorder and it is necessary for his health and safety and for the protection of the public that he be detained in a hospital, any treatment which is regarded as necessary to alleviate his condition can (subject to safeguards to which I shall refer) be administered to him. In the light of the decision of the House of Lords, Mr Pezzani has indicated that he cannot pursue the second ground. His concession is undoubtedly correct.
7. Following that brief introduction, I should refer to the material statutory provisions. Section 63 of the 1983 Act enables treatment to be given by or under the direction of the RMO without the need for the patient to consent. But that is subject to s. 57, which deals with particular forms of treatment of a particularly invasive nature, and s. 58, which applies in a case such as this. It provides, so far as material; -
"58(1) This section applies to
(b) the administration of medicine to a patient by any means at any time during a period for which he is liable to be detained as a patient to whom this part of this Act applies if 3 months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.
(3) [A] patient shall not be given any form of treatment to which this section applies unless -
(a) he has consented to that treatment and either the [RMO] or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or
(b) a registered medical practitioner...
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