R (B) v (1) Dr SS (2) Dr G (3) Secretary of State for the HealthDepartment
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 2006 |
| Date | 26 January 2006 |
| Court | Court of Appeal (Civil Division) |
Lord Phillips CJ, Thorpe and Rix LJJ
Appearances:P Bowen & A Gerry (instructed by Scott-Montcrieff, Harbour & Sinclair) for B; O Thomas (instructed by Capsticks) for Dr SS; J Hyam (instructed by Treasury Solicitor) for Dr G; C Lewis & Ben Hooper (instructed by Office of the Solicitor to the Department of Health) for the Secretary of State.
Whether medical treatment could lawfully be given to a detained patient without his consent.
B was detained in high secure conditions under ss. 37 and 41 Mental Health Act 1983, following his conviction for rape. He was classified as suffering from mental illness, with a diagnosis of bipolar affective disorder. B's Responsible Medical Officer, Dr SS, wished to treat him with medication. As B did not consent, Dr SS had previously sought certification for the treatment from a Second Opinion Appointed Doctor under s. 58(3)(b) of the 1983 Act: when this was granted, B obtained independent psychiatric reports disagreeing with the treatment proposed and sought judicial review of the treatment plan. The treatment proposal was withdrawn and the claim was dismissed as academic on 31 January 2005: R (B) v (1) Dr SS (2) Dr AC (3) Secretary of State for the Health Department [2005] MHLR 96.However, an injunction restraining treatment made by Silber J on 4 October 2004 remained in force.
Dr SS again decided that treatment with medication should be commenced and obtained fresh SOAD certification from Dr G. He applied to lift the injunction; fresh proceedings for judicial review were issued, B relying on the opinion of Prof H. B's challenge to the decisions of Dr SS and Dr G was on 4 grounds: (i) for the purposes of Arts 3, 8 and/or 14 ECHR, compulsory treatment under s. 58(3)(b) of the 1983 Act may only lawfully be given to a competent patient against his will where it is not only a 'therapeutic necessity' but also where that treatment is necessary for the protection of the public or to prevent the patient from suffering serious harm; (ii) alternatively, for the purposes of Arts 3 and/or 8, such treatment may not lawfully be given unless the responsible authority has demonstrated a convincing medical necessity for it; (iii) the SOAD's decision was unlawful in any event because he did not take account of a relevant consideration, namely that Prof H, B's independent expert, was of the opinion that B was not currently suffering from mental disorder; (iv) s. 58 MHA was incompatible with B's rights under Arts 3, 8 and/or 14 ECHR, because it authorised the compulsory treatment of patients who have capacity to refuse the treatment without specifying in sufficiently precise terms the circumstances in which a competent refusal to consent may be overridden. However, B accepted that grounds (i) and (iv) had been determined against him in the earlier proceedings and the judge should follow that decision (so as to allow an appeal to be mounted); and ground (iii) was not pursued on the evidence.
Charles J dismissed the claim, [2005] Mental Health Law Reports 347, finding that B lacked capacity, that the proposed treatment was unlikely to result in physical or mental suffering of such a degree that Art 3 would be engaged and in any event was convincingly shown to be a therapeutic necessity and so not in breach of Art 3, did not breach Art 8, and was within both the statutory test set in s. 58 of the 1983 Act and was in B's best interests. B appealed, arguing that the judge was wrong to conclude that he did not have capacity, and that compulsory treatment of a patient with capacity violates Arts 3, 8 and 14 of the Convention unless the treatment is necessary for the protection of the public or to prevent the patient from suffering serious harm.
This is the judgment of the Court.
1. We shall follow the example of the judge below and refer to those who feature in this litigation by initials. This is an appeal from the judgment of Charles J dated 8 September 2005 whereby he dismissed claims for judicial review which challenged decisions to subject the appellant, 'Mr B', to medical treatment to which he did not consent.
2. Mr B, is a patient detained at Broadmoor Hospital under ss. 37 and 41 of the Mental Health Act 1983 ('the MHA') following his conviction for rape in 1995. He has been diagnosed as suffering from Bipolar Affective Disorder. He has not received medication for this condition since 2003.
3. The first respondent, 'Dr SS', is his responsible medical officer ('RMO'). Dr SS believes that Mr B's condition is deteriorating and wishes to treat him with anti-psychotic medication, administered by injection, and a mood stabiliser. Mr B has refused to consent to this treatment. Dr SS seeks to medicate him by compulsion. He contends that he is entitled so to do pursuant to s. 58 MHA. He has obtained the certificate required under that section from the second respondent, 'Dr G', the Second Opinion Appointed Doctor ('SOAD'). The fundamental issue in this case is whether to treat Mr B without his consent pursuant to s. 58 of the MHA would infringe theEuropean Convention on Human Rights ('the Convention'). The third respondent, the Secretary of State for the Department of Health, has been joined because Mr B contends that, unless it can be appropriately 'read down', s. 58 is incompatible with the Convention.
4. It is necessary at the outset to outline the rather complicated proceedings that have culminated in this appeal. Earlier proceedings were brought by Mr B in 2004 against Dr SS, a different SOAD and the Secretary of State in objection to an attempt to treat him compulsorily. Before the hearing Dr SS wrote to the solicitors for Mr B stating that the SOAD certificate had expired and that he did not propose at that time to treat Mr B without his consent. In these circumstances, on 4 October 2004, Silber J by consent granted an injunction against imposing treatment on Mr B without his consent that was to continue unless and until varied or discharged and dismissed the proceedings against Dr SS and the SOAD. The action proceeded, however, against the Secretary of State. In a judgment delivered on 31 January 2005, R (B) v Dr SS & Ors[2005] Mental Health Law Reports 96, Silber J held that Mr B's claim was academic but went on to hold, notwithstanding, that there was no need to 'read down' s. 58 and that the section was compatible with the Convention.
5. In May 2005 Dr SS decided that circumstances had changed and that compulsory treatment was now warranted. He obtained the necessary certificate from Dr G and then, on 2 June 2005 applied to the Administrative Court to discharge the injunction granted by Silber J. On 8 June Mr B commenced fresh proceedings for judicial review in order to challenge the legality of what was proposed. It was agreed that Dr SS's application should be determined in the judicial review proceedings.
6. The judicial review proceedings were heard before Charles J over 5 days between the 19 and 27 August. Mr Bowen, on behalf of Mr B, raised the 2 issues on which he had failed before Silber J. These were:
i) In order to avoid infringing Arts 3, 8 and 14 of the Convention can treatment only be given to a competent patient against his will provided that the treatment is not only a 'therapeutic necessity' but also necessary for the protection of the public or to prevent the patient from suffering from serious harm?
ii) If s. 58 cannot be read down so as to be subject to the requirements in i) above, is it incompatible with Art 3, Art 8 and Art 14 of the Convention or any of these?
Silber J gave a negative answer to each of these issues. Counsel for Mr B accepted that in these circumstances Charles J should do likewise, reserving the right to challenge Silber J's judgment on appeal.
7. The ground for attacking the decision to impose compulsory treatment on Mr B that was argued before Charles J was that such treatment could not lawfully be given in the absence of 'convincing medical necessity' and this was not demonstrated because (a) Mr B had capacity to refuse medical treatment and (b) the evidence did not convincingly establish that he was suffering from Bipolar Affective Disorder that was relapsing.
Medical evidence
8. Dr SS diagnosed Mr B as suffering from Bipolar Affective Disorder. This diagnosis was disputed in the proceedings before Silber J and in hearings before Mental Health Review Tribunals. In the earlier proceedings Mr B relied upon reports of Dr A expressing the opinion that B did not suffer from any mental disorder. He also relied upon a report from Prof H. Both Dr SS and Prof H gave oral evidence before Charles J. Professor H agreed with Dr SS's diagnosis that Mr B suffered from Bipolar Affective Disorder. In these circumstances those acting for Mr B ceased to rely on the evidence of Dr A and accepted, before Charles J, that Dr SS's diagnosis was correct.
9. A person who suffers from Bipolar Affective Disorder has periods of time when he is in full remission, when he experiences no symptoms of the disease. Such periods of remission are interspersed with periods of illness, which characteristically takes the form of elevated, expansive or irritable moods, with or without features of psychosis, namely hypomania or mania, and periods of depression.
10. Apart from the oral evidence a substantial volume of written medical evidence, consisting of reports from no less than 4 psychiatrists was placed before Charles J. His judgment focussed, reasonably, on the 2 psychiatrists who gave oral evidence. There proved to be less between them than had at first appeared. Dr SS wished to subject Mr B to anti-psychotic medication, delivered by injection under compulsion if necessary. He wished also to administer a mood stabiliser, but this required the co-operation of Mr B. There was...
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