R (B) v Dr SS
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 2006 |
| Neutral Citation | [2006] EWCA Civ 28 |
| Docket Number | Case No: C1/2005/2080 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2006 |
[2006] EWCA Civ 28
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE CHARLES
CO/3695/2005
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Thorpe and
Lord Justice Rix
Case No: C1/2005/2080
Paul Bowen & Alison Gerry (instructed by Messrs Scott-Montcrieff, Harbour & Sinclair ) for the Appellant
(1) Owain Thomas (instructed by Messrs Capsticks ) for the Respondent(2) Jeremy Hyam (instructed by Treasury Solicitor ) for the Respondent
(3) Clive Lewis & Ben Hooper (instructed by Office of the Solicitor to the Department of Health ) for the Respondent
Lord Phillips CJ:
This is the judgment of the Court.
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.
Mr B, is a patient detained at Broadmoor Hospital under sections 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.
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 section 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 section 58 of the MHA would infringe the European 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', section 58 is incompatible with the Convention.
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] EWHC 86 (Admin), Silber J held that Mr B's claim was academic but went on to hold, notwithstanding, that there was no need to 'read down' section 58 and that the section was compatible with the Convention.
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.
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 two issues on which he had failed before Silber J. These were:
i) In order to avoid infringing Article 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 section 58 cannot be read down so as to be subject to the requirements in i) above, is it incompatible with Article 3, Article 8 and Article 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.
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
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 Professor H. Both Dr SS and Professor 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.
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.
Apart from the oral evidence a substantial volume of written medical evidence, consisting of reports from no less than four psychiatrists was placed before Charles J. His judgment focussed, reasonably, on the two 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 a possibility that one effect of the anti-psychotic medication might be to induce Mr B to agree to take the mood stabiliser. It was Dr SS's view that Mr B's condition had deteriorated and that he lacked capacity to consent to the treatment proposed. Dr G endorsed the opinion of Dr SS that the treatment that he proposed should be given.
Professor H approved of the treatment proposed by Dr SS, but did not agree that it should be administered by compulsion. He considered that Mr B had the capacity to consent. In these circumstances the appropriate course was to seek to persuade him to have the treatment, but not to force him to do so. Were he to lack capacity to consent, Professor H would approve the administration of the treatment by compulsion. Equally, were his condition to deteriorate to a state of hypomania or mania, compulsory administration of the treatment would be justified.
The statutory provisions
The MHA empowers compulsory treatment of both capable and incapable detained patients under Part IV of the Act (sections 56–64).
Section 63 provides:
"63. 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."
Section 57 requires the patient's consent and a second opinion before specified treatment can be carried out, including surgical operations for destroying brain tissue. In relation to treatment falling within section 58 (namely Electro-Convulsive Therapy and medication beyond an initial 3 month "trial" period) , an additional safeguard is created, namely the requirement for consent by an independent doctor appointed by the Mental Health Act Commission (the SOAD).
Section 58 provides:
"58.—(1) This section applies to the following forms of medical treatment for mental disorder— (a) … ; (b) the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section 57 above) 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 three 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.
(2) ….
(3) Subject to section 62 below, 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 responsible medical officer or a registered medical practitioner appointed for the...
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