R (B) v SS, Dr AC and the Secretary of State for Health
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 2005 |
| Neutral Citation | [2005] EWHC 86 (Admin) |
| Date | 31 January 2005 |
| Court | Queen's Bench Division (Administrative Court) |
[2005] EWHC 86 (Admin)
Court and Reference: Administrative Court; CO/3489/2004
Silber J
Appearances: P Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for B; J Swift (instructed by Office of the Solicitor to the Department of Health) for the Secretary of State.
Whether a challenge to a decision to medicate a patient should proceed when the question had become academic; whether the statutory provisions allowing compulsory treatment of a capacitated detained patient violated Arts 3, 8 and 14 ECHR.
B was detained in high secure conditions under ss. 37 and 41 Mental Health Act 1983 following his conviction for rape. Dr SS, his Responsible Medical Officer, wished to administer anti-psychotic medication to him. B had capacity to consent, but did not do so.
Under s. 58(3) of the 1983 Act, where it is sought to administer medication more than 3 months after a patient has first been medicated following detention, in cases that are not urgent and where the patient does not consent, a second opinion doctor (SOAD) appointed by the Mental Health Act Commission must certify either that the patient is not capable of understanding the nature, purpose and likely effects of the treatment or is so capable but has not consented to it, but that having regard to the likelihood of it alleviating or preventing a deterioration of the patient's condition, the treatment should be given. Dr AC was appointed as SOAD, and on 15 July 2004 certified that the treatment should be given to B. The certificate was limited in duration to 3 months.
B sought to quash the decisions of his RMO and the SOAD. He also argued that, in light of Arts 3, 8 and 14 European Convention on Human Rights and s. 3 Human Rights Act 1998, s. 58(3)(b) of the 1983 Act should be construed to authorise the compulsory treatment of a capacitated patient who does not consent only where the treatment is necessary for the protection of the public from serious harm or serious harm is likely to result to the patient's health without such treatment. Alternatively, he argued that s. 58(3)(b) is incompatible with the requirements of the Convention.
On 19 July 2004 B obtained an interim injunction restraining Dr SS from treating him without his consent. On 30 July 2004, the injunction was continued; it was ordered that the claim for permission to apply for judicial review of the decisions and the substantive hearing be heard together, and that the doctors attend for cross examination. At a hearing on 4 October 2004, Dr SS indicated that the imminent expiry of the SOAD's certificate meant that he did not at that time intend to impose treatment upon B: it was agreed that the challenge to the decisions of Dr SS and Dr AC should be dismissed. B wished the claim in relation to the construction of the statute, in relation to which the Secretary of State was the defendant, to continue; the Secretary of State argued that it should not proceed as it was academic.
I Introduction
1. In the present proceedings, the claimant, who is a patient, initially sought to challenge decisions that he should receive certain medical treatment against his will. Shortly before this application was due to be heard, the first defendant, who is the claimant's responsible medical officer ("RMO"), indicated that he did not at that time propose to treat the claimant with this treatment without his consent. Thus, by consent, these main claims have now been dismissed and it leaves outstanding 1 claim, to which I will refer in this judgment as "the third claim" and which is the subject of this judgment.
2. The third claim is made against the Secretary of State for Health ("the Secretary of State") asserting that s. 58(3)(b) of the Mental Health Act 1983 ("the 1983 Act") when construed with the benefit of s. 3 of the Human Rights Act 1998 ("HRA") authorises the compulsory treatment of a patient who has capacity to refuse to consent only where it is shown that (a) such treatment is necessary for the protection of the public from serious harm or (b) without such treatment serious harm is likely to result to his health, alternatively is incompatible with the requirements of Art 3 and/or Art 8 and/or Art 14 of the European Convention on Human Rights ("the ECHR").
3. This application now raises 2 issues, the first of which is whether in the unusual facts of this case, the claimant can pursue the third claim, even though the Secretary of State contends that it is academic. The second issue which only arises if the claimant can pursue the third claim is whether the claimant can succeed in obtaining relief in respect of it.
4. It is common ground between the parties that the third claim is only of academic interest in the sense that the claimant cannot stand to benefitimmediatelyfrom any decision to be made on this claim. Mr Paul Bowen for the claimant contends first that the third claim arises in circumstances in which such an academic claim should be entertained by the court and second, that in any event the claimant should succeed in the third claim on its merits.
5. Mr Jonathan Swift for the Secretary of State submits first, that this third claim is not only academic but that it does not fall within any of the accepted categories for consideration by a court of an academic claim and second, that in any event, it is misconceived as a matter of law.
6. This is a rolled-up hearing in which I am dealing with both the permission and the substantive applications on the third claim. I heard submissions on both applications together so that I could determine whether permission should be granted and if so, whether substantive relief should also be granted. It seems that permission should be granted and I will now proceed to consider the substantive application.
7. In this judgment, I will comment on the matters raised in the following order:-
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(i) the background (paras 8-18)
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(ii) an overview of the dispute (paras 19-38)
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(iii) the Academic Point issue (paras 39-71)
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(iv) the Art 3 issue (paras 72-112)
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(v) the Art 8 issue (paras 113-147)
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(vi) the International Consensus issue (paras 148-189)
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(vii) the Art 14 issue (paras 190-217).
II The Background
8. The claimant is a patient at Broadmoor Hospital, which is a hospital providing high security psychiatric services within the meaning of s. 4 of the National Health Service Act 1977. He is detained under ss. 37 and 41 of the 1983 Act following his conviction for rape on 13 February 1995. The dispute, which led to the commencement of this application, concerns the wish of the first defendant, who is, as I have explained, the RMO for the claimant at Broadmoor Hospital to administer anti-psychotic medication to the claimant, even though he does not consent to its administration.
9. There is some treatment which can be given to a patient which does not require his consent as s. 63 of the 1983 Act provides that:-
"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 s. 57 or 58 above…"
10. The claimant, who has capacity to consent, opposed the proposed treatment, but as it was for the administration of medication more than 3 months after the claimant was first medicated following detention, the RMO had to rely on the provisions of s. 58 of the 1983 Act (see s. 58(1)(b)). Subsections (3) and (4) of s. 58 of the 1983 Act are central to the claim against the Secretary of State because they set out the conditions, which have to be satisfied before treatment can be imposed on any patient, as well as setting out the need for a certificate of the Second Opinion Appointed Doctor ("SOAD"). Those provisions provide that:-
"(3) Subject to s. 62 below" - [which makes provision for urgent treatment and which is not relevant to this case] - "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 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 appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
(4) Before giving a certificate under subs(3)(b) above the registered medical practitioner concerned shall consult 2 other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner".
11. The SOAD is the person referred to in s. 58(3)(b) of the 1983 Act. In this case, the RMO sought a second opinion and so the second defendant was appointed as the SOAD, who duly issued the requisite certificate on 15 July 2004, certifying that the treatment in question should be given to the claimant under the provisions of s. 58(3) of the 1983 Act. It is the issue of that certificate, which has led to the present proceedings being instituted.
12. On 19 July 2004, the claimant obtained an interim injunction from Wakerley J restraining the RMO from imposing treatment upon the claimant without his consent pending an inter partes hearing which was fixed for 21 July 2004. On the following day, the claimant's solicitors issued the claim for judicial review in which first, it challenged the decisions of the first...
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