R (B) v S (Responsible Medical Officer, Broadmoor Hospital)
| Jurisdiction | England & Wales |
| Judgment Date | 08 September 2005 |
| Neutral Citation | [2005] EWHC 1936 (Admin) |
| Date | 08 September 2005 |
| Court | Queen's Bench Division (Administrative Court) |
[2005] EWHC 1936 (Admin)
Court and Reference: Administrative Court; CO/3695/2005
Charles J
Appearances: P Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for B; O Thomas (instructed by Capsticks) for Dr SS; J Hyam (instructed by the Treasury Solicitor) for Dr G; B Hooper (instructed by 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 The treatment proposal was withdrawn and the claim was dismissed as academic on 31 January 2005: R (B) v (1) Dr SS (2) Dr AC (3) Secretary of State for the Health Department [2005] MHLR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.
Introduction
1. This case concerns the issue whether the Claimant (Mr B) who is detained under the Mental Health Act 1983 (MHA) may lawfully be given treatment which he refuses to consent to. An issue is whether Mr B has capacity. He maintains that he has. As appears later in this judgment I have concluded that he does not.
2. The issue of the lawfulness of compulsory treatment generally has come before the Court of Appeal on 2 recent occasions, R (Wilkinson) v Broadmoor SHA [2001] Mental Health Law Reports 224, [2002] 1 WLR 419, R (N) v Dr M [2003] Mental Health Law Reports 157, [2003] 1 WLR 562, and more recently before the Administrative Court in R (PS) v (1) Dr G (2) Dr W [2004] Mental Health Law Reports 1 and in a case involving the Claimant himself, R (B) v (1) Dr SS (2) Dr AC (3) Secretary of State for the Health Department [2005] Mental Health Law Reports 96. There has also been a very recent decision of Collins J in R (B) v Dr Haddock [2005] Mental Health Law Reports 317. Thus the issues that underlie this judicial review have been the subject of a body of recent authority. However as the argument before me demonstrated a number of issues remain to be resolved. Naturally in respect of those issues I am bound by the ratio of the decisions in the Court of Appeal. I have also been invited to follow the decision of Silber J in the earlier case involving Mr B and this has limited the grounds for judicial review that require a substantive decision. If this case goes to the Court of Appeal grounds that were not argued before me because of the decision of Silber J may be pursued.
The Grounds
3. The Claimant challenges the decision of his responsible medical officer (RMO), Dr SS and the second opinion appointed doctor (SOAD), Dr G, respectively to seek and to authorise compulsory treatment under s. 58(3) MHA, on the grounds set out below with some comments. I was only asked to make a substantive decision on Ground 2.
(i) Ground 1: That, for the purposes of Art 3 and/or 8 and/or 14 of the Convention, such treatment may only lawfully be given to a competent patient (my emphasis) against his will where it is not only a 'therapeutic necessity' but also that treatment is necessary for the protection of the public or to prevent the patient from suffering serious harm (the 'threshold requirements'). This requires the resolution of an issue of law, namely whether Art 3 and/or 8 and/or 14 require s. 58 to be read and given effect to in this way; and an issue of fact, namely whether such necessity has been demonstrated by the Defendants. (This issue of law was decided against the Claimant by Silber J in the previous case of R (B) v Dr SS (1) Dr AC (2) Secretary of State for the Health Department [2005] Mental Health Law Reports 96. Permission to appeal that case was sought (C1/2005/0295) but the appeal was withdrawn, with the Court of Appeal's leave, on the understanding that the issue may more properly be resolved on an appeal from these proceedings. The Claimant accepted that I should follow the judgment of Silber J and asked that the claim on this ground be formally dismissed, either with permission to appeal or leaving the issue of permission to the Court of Appeal. However, the Claimant submitted that I should decide the issue of fact (namely whether the "threshold criteria" asserted by the Claimant are in fact met) so that the issue of law can be resolved, should the matter go further. I return to this but pause to comment that this basis of challenge is dependent on a finding that Mr B has capacity. As appears later, in my judgment he does not.
(ii) Ground 2: Alternatively, that, for the purposes of Art 3 and/or 8 and/or 14 of the Convention, such treatment may not lawfully be given unless the responsible authority has demonstrated a convincing medical necessity for it, and that threshold has not been reached, given (i) the Claimant has capacity to refuse medical treatment; (ii) the evidence does not convincingly establish that he is suffering from Bipolar Affective Disorder that is relapsing. (In argument the Claimant did not pursue any argument under Art 14 and I have treated that aspect of this ground of challenge as having been abandoned.)
(iii) Ground 3: The Second Defendant's decision is unlawful in any event in that he did not take account of a relevant consideration, namely Prof H's views set out in a number of reports to the effect that the Claimant is not currently suffering from mental disorder. (In the light of Dr G's evidence in his witness statement of 5 July 2005 this ground was no longer pursued, but it gave rise to submissions on behalf of Dr G as to the part that a SOAD should play in proceedings of this type.)
(iv) Ground 4: The Claimant also challenges s. 58 MHA (and, by implication, s. 63, although not in play in his case) in so far as it is incompatible with the Claimant's Convention rights, Arts 3 and/or 8 and/or 14, in that the provision authorises the compulsory treatment of those, like the Claimant, who have capacity to refuse the treatment and do so refuse without specifying in sufficiently precise terms the circumstances in which a competent refusal to consent may be overridden, namely where (i) such treatment is necessary to protect other persons from serious harm, or (ii) without such treatment, serious harm is likely to result to the patient's health. If, as the Claimant submits, Arts 3 and/or 8 and/or 14 only permit the imposition of compulsory treatment in these limited circumstances it is a matter for the Court whether s. 58(3)(b) can be read and given effect to so as to 'read in' these limitations using s. 3 Human Rights Act 1998(HRA) (in which case Ground 1 falls to be determined) or whether the only remedy available is a declaration of incompatibility under s. 4 HRA. Again, this issue was not contested by the Claimant at first instance before me but was expressly reserved for the purposes of any appeal.
4. To avoid any doubt, the Claimant made clear that the claim includes a claim under s. 7 HRA 1998.
Brief background facts
5. The earlier claim for judicial review brought by Mr B challenging the decision to compulsorily medicate him was brought in July 2004 and was later withdrawn (as against the first defendant, Dr SS, and the second defendant, a previous SOAD, Dr C) after Dr SS withdrew his treatment proposal. A final injunction restraining further treatment was made by Silber J on 4 October 2004. Dr SS has applied to discharge the injunction. It is accepted that if these fresh proceedings for judicial review should fail then that injunction should be lifted. Thus counsel for Mr B opened the case, and it was treated as a new judicial review.
6. Mr B is a patient at Broadmoor Hospital, a hospital providing high security psychiatric services within the meaning of s. 4 National Health Service Act 1977 and run by the West...
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