R (B) v Ashworth Hospital Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Scott Baker,Lord Justice Simon Brown |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] EWCA Civ 547 |
| Docket Number | Case No: C3/2002/1463 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2003 |
[2003] EWCA Civ 547
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(Sir Richard Tucker)
Lord Justice Simon Brown
Lord Justice Dyson and
Lord Justice Scott Baker
Case No: C3/2002/1463
Mr Richard Gordon QC and Mr Hugh Southey (instructed by Messrs Roberts, Moore, Nicholas and Jones) for the Appellant
Mr Oliver Thorold (instructed by Messrs Capsticks) for the Respondent
The issue
Section 63 of the Mental Health Act 1983 ("the Act") provides:
"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer."
The sole issue that arises on this appeal is whether this provision sanctions compulsory treatment of a detained patient for any mental disorder which has been diagnosed by the clinicians, or whether it only authorises such treatment (in the case of a patient who has been made the subject of a restriction order under section 41(1)) for the mental disorder specified by the court under section 37(7) or by the Mental Health Tribunal ("the tribunal") under section 72(5). The judge, Sir Richard Tucker, preferred the first interpretation. He said:
"11. Mr Thorold, on behalf of the defendants, observes that it is common ground that a patient can be dual qualified and submits that the reference in the section to the disorder from which he is suffering must refer to the actual disorder as diagnosed by the clinicians, and need not, and should not, be confined to the disorder or that part of the disorder classified by the Tribunal.
12. I prefer Mr Thorold's submissions. If Parliament had intended the mental disorder to be that classified by the Tribunal it would have said so. It is clearly a matter for the professional judgment and expertise of the clinicians in charge of B's case to decide upon the best therapeutic regime for the disorder from which they assess him to be suffering. To conclude otherwise would be to put an artificial and strange interpretation upon the words of the section."
The mental disorder specified by the court under section 37(7) in this case was a mental illness. At all times, B was classified as suffering from a mental illness. At no time has the tribunal specified the mental disorder from which he is suffering as a psychopathic personality disorder within the meaning of section 1(2) of the Act.
The facts
Save for certain brief interludes, B has been a patient at Ashworth Hospital ("Ashworth") since 1987. He is 47 years of age. He is currently detained under sections 37 and 41 of the Act pursuant to an order made by the Crown Court at Birmingham on 25 August 1987. He had been convicted of the manslaughter of his girlfriend. The mental illness specified by the court in making the hospital order was schizophrenia. Most, if not all, of the clinicians who have had B under their care have been of the view that B also suffers from a psychopathic disorder, being a personality disorder (dissocial type). B's case has been considered by the tribunal from time to time. He has always been classified as suffering from a mental illness, and not a personality disorder.
B has been transferred on several occasions to the Raeside Clinic, a medium secure unit. But on each occasion, there have been problems, and B has been returned to Ashworth.
On 17 August 2000, he applied to the tribunal for an order that he be discharged from liability to be detained. At that time, he was on the Shelley Ward at Ashworth, and his responsible medical officer ("RMO") was Dr Kumurajeewa. He submitted a report to the tribunal for the purposes of the hearing, stating that B most probably had a schizo-affective disorder of the manic type. Keith Scholey, a psychologist, also submitted a report recommending that B should be placed on a "comorbidity" ward suitable for the needs of patients suffering from problems of both mental illness and personality disorder. Reports were obtained from experts instructed on behalf of B. Professor Sashidharan, a psychiatrist, advised that a diagnosis of personality disorder would be "totally inappropriate". Eric Bromley, a psychologist, questioned whether B should be detained either for mental illness or personality disorder.
Dr Hughes became B's RMO on 16 August 2001. In his witness statement dated 27 June 2002, he explains that B is "one of the few patients for whom the traditional classification systems do not provide a straightforward diagnosis. He has been diagnosed as suffering from both a mental illness (schizophrenia) and a psychopathic disorder being a personality disorder (dissocial type), a diagnosis with which I completely agree".
B was transferred to the Newman Ward at Ashworth on 15 December 2000, and was there at the time of the hearing before the tribunal on 8 May 2001. This is a personality disorder ward as is the Shelley Ward where he had been previously. At para 5 of his statement, Dr Hughes explains that the reason for the transfer was "to treat the personality disorder traits of the patient".
On 8 May 2001, the tribunal refused B's application for a discharge from liability to be detained, and did not reclassify his mental disorder. He, therefore, remained classified as a patient suffering from a mental illness, and not a personality disorder. They said:
"We heard the witnesses and studied the reports listed.
On that evidence we are satisfied that the patient suffers mental illness (schizo-affective disorder) of a nature or degree that requires his continued treatment in hospital for his welfare and for the safety of others."
On 13 August 2001, B's solicitors wrote to Ashworth expressing concern that he was in a ward for patients diagnosed with a psychopathic disorder. They referred to a number of reports which, they said, suggested that there was no reason to conclude that B was suffering from a psychopathic disorder.
On 15 January 2002, the Chief Executive of Ashworth wrote to B's solicitors saying:
"The current clinical team who recognise that, clinically, Mr B has a mental illness and personality disorder consider that his needs are best met, at this time, in the Personality Disorder Service. I am sure you are aware of the difference between a clinical diagnosis of personality disorder and mental health classification of personality disorder.
The fact that there has not been a re-classification or added classification having been obtained or requested from the Tribunal is because the matter has been re-examined at Ashworth. Your client's mental illness is controlled by medication and it would not be appropriate to transfer him to a mental illness ward given the comorbidity that exists and the outstanding difficulties as regards his personality disorder presentation. These should be addressed, as now, in a PD ward. This is not to say the best placement of your client in the Hospital will not be reviewed on a regular basis."
It was in these circumstances that B sought judicial review of the decision to detain him in a personality disorder ward. The stark issue raised by these proceedings is whether Ashworth could lawfully treat B for a personality disorder despite the fact that he was only classified as suffering from a mental illness. The judge below held that they could do so, and dismissed the application.
There was no material before the judge as to the nature of the regime and treatment which B has been receiving for the personality disorder which the clinicians have diagnosed. He is now accommodated in Owen Ward, which is another ward within the personality disorder unit at Ashworth. On 15 October 2002, Alan Hazlehurst, B's solicitor made a witness statement which contained the following:
"2. The Appellant advised me that when he was initially admitted to Ashworth Hospital, he spent a considerable period of time on mental illness wards, and that there is a difference between the present circumstances of his being on a personality disorder ward compared to his being placed on a mental illness ward.
3. The Appellant has described to me that there are broadly the following distinctions between the wards:-
i. That there is 24 hour access to rooms on a mental illness ward. On Owen Ward and on the personality disorder unit, rooms are locked off denying patients access from 8.30am in the morning. They are then re-opened from approximately 12.30pm to 1.30pm but again locked off until 4.30 in the afternoon when they are re-opened. This means that if a patient is unwell or is unable to attend at a workshop and is kept on the ward, he must stay in the day area and is denied access to his room.
ii. The Appellant is not permitted to have parole i.e. access off his ward on to the hospital site. Occasionally the Appellant and other patients are permitted access of the ward if there is sufficient staff, for a short break outside but this occurrence permitting access off the ward occurred much more frequently on the mental illness wards than on the personality disorder unit.
iii. The personality disordered patients are required to attend workshops, and effectively they are compulsory whereas this is not the case on the mental illness unit. When a mental illness patient feels on a particular day he is not up to attending at the workshops he need not attend. In the event of not attending at the workshop from the personality disorder unit, then...
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