R (JB) v Dr A Haddock and Others

JurisdictionEngland & Wales
JudgeLord Justice Auld,Lord Justice Scott Baker,Lord Justice Neuberger
Judgment Date11 July 2006
Neutral Citation[2006] EWCA Civ 961
Docket NumberCase No: C1/2005/1504
CourtCourt of Appeal (Civil Division)
Date11 July 2006

[2006] EWCA Civ 961






Royal Courts of Justice

Strand, London, WC2A 2LL


The Rt Honourable Lord Justice Auld

The Rt Honourable Lord Justice Scott Baker and

The Rt Honourable Lord Justice Neuberger

Case No: C1/2005/1504

The Queen on the Application of Jb
1) Resonsible Medicial Officer, Dr A Haddock
2) Mental Health Act Commission Second Opinion Appointed Doctor Dr Rigby
3) Mental Health Act Commission Second Opinion Appointed Doctor Dr Wood

Ms Alison Foster QC & Mr Roger Pezzani (instructed by Roberts Moore Nicholas Jones) for the Appellant

Miss Eleanor Grey (instructed by Capsticks) for the First Respondent

Mr Jeremy Hyam (instructed by Treasury Solicitor) for the Second and Third Respondents

Lord Justice Auld



This appeal concerns a challenge by JB, the appellant, a person detained and subject to restrictions in a high security hospital, pursuant to orders of the Crown Court under sections 37 and 41 of the Mental Health Act 1983 ("the Act") , to the Hospital's administration to him of anti-psychotic medication without his consent, purportedly pursuant to section 58(3) (b) of the Act. The appeal is from an order of Collins J of 20 th May 2005 dismissing his claim for judicial review of the decision forcibly to treat him in that way.


The appellant, who is 28 years old, is detained in Ashworth Hospital, one of three high security hospitals, for detention and treatment of persons liable to be detained under the Act who "require treatment under conditions of high security on account of their dangerous, violent or criminal propensities". 1 He has been at the hospital for over ten years, having been detained there at the age of 18, classified as suffering from "psychopathic disorder".


The scheme of the Act, in its application to admission to and detention in a hospital of persons suffering from mental disorder, as non-exhaustively defined in section 1(2) , is to identify, four forms, or "classifications" of mental disorder, namely mental illness, psychopathic disorder, severe mental impairment and mental impairment. Secondly, the Act makes it a condition of admission and detention, whether on application by two registered medical practitioners – section 3 – or by order of the court –section 37 – that the form of mental disorder in question is "of a nature or degree" to make detention and treatment "appropriate". And, thirdly, it imposes in the case of one or both of two of those forms of mental disorder, namely psychopathic disorder and mental impairment, a further condition of admission and detention, namely that the treatment "is likely to alleviate or prevent a deterioration of his condition" – sections 3(2) (b) and 37(2) (a) (i) , known as the "treatability test".


Despite the distinction in the Act between, on the one hand, mental illness and severe mental impairment, and, on the other, psychopathic disorder and mental impairment, seemingly by reference to their different clinical or non-clinical characteristics, the distinction may, in practice, be hard to draw, as Baroness Hale observed in R(B) v Ashworth Hospital Authority, [2005] 2 WLR 695 at paras 20 and 31, with particular reference to the theoretical difference between psychopathic disorder as a form of personality disorder, and mental illness. Collins J referred, in paragraphs 26 and 27 of his judgment, to this "overlap" and to medical evidence before him describing the distinction as "probably more imagined than real".


However, the issue in this case is not as to the classification of the appellant's mental disorder for the purpose of his detention and treatment in Ashworth, but to the different, albeit partly overlapping, issue of the treatment that he may be given forcibly while there.


6. The Act, in sections 57 and 58, provides special safeguards for particularly intrusive or long-term treatments without the patient's consent "for mental disorder", without confining consideration of the treatment in question to the classified or any other particular form of mental disorder under which he has been detained. Such invasion of a mentally disordered person's being and privacy without his consent should, in any civilised system of law, only be permissible on clear proof of medical necessity, which is a composite of a number of considerations. These include the likelihood of the treatment benefiting the patient therapeutically and/or otherwise for his protection and/or for the protection of others, the availability of viable alternatives and—to the extent that they may not be covered by therapeutic benefit—the best interests of the patient.


The central issue in this appeal is whether a court, as an Article 6 compliant tribunal, can only uphold a decision forcibly to treat a mentally disordered patient detained in a hospital where it is satisfied that he is suffering from a particular form of mental disorder for which the treatment is medically necessary. Here, it is claimed, on behalf of the appellant, that the only candidate for the treatment proposed for the appellant was mental illness, not psychopathic disorder, and that the Judge should have found there was insufficient proof to establish either and, therefore, no medical necessity for the treatment.


Returning to the statutory framework, I should first set out the terms of section 58(3) of the Act, which, as Hale LJ, as she then was, observed in R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419, at para 70, although cast in terms of a prohibition, confers permission to treat. It provides as follows for certain forms of specified treatment and for the administration of medicine by any means on a long-term basis following detention:

"(3) … 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 the Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or

b) a registered medical practitioner appointed as foresaid has (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 section (3) (b) , above, the registered medical practitioner concerned shall consult two 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."


As the appellant has not consented to the treatment, this appeal concerns the certification of the second and third respondents, the Second Opinion Appointed Doctors ("SOADs") , Drs John Rigby and Simon Wood under section 58(3) (b) . It is important to note the independent role of the SOAD, in the provision's requirement that he should form his own view, not only as to the patient's capacity to consent to the proposed treatment, but also to have regard to the "likelihood" of it alleviating or preventing a deterioration in the patient's condition, the consideration peculiar to psychopathic disorder and mental impairment.


The Act also makes general provision in section 63 for treatment of a patient without his consent by or under the direction of the RMO, not attracting the special safeguards in section 57 or 58, "for the mental disorder from which he is suffering", again without tying the treatment in question to the classified form of mental disorder for which he has been admitted or detained.


As Baroness Hale held in R(B) v Ashworth, at paras 21 – 29, classification for the purpose of detention in hospital has no bearing on what treatment may be given while so detained. Whilst the issue in that case specifically concerned treatment without consent under section 63 of the Act, the same reasoning must govern treatment without consent under section 58, which, as I have said, also does not limit its application by reference to the classification of the mental disorder from which detention was ordered, or, indeed, to any particular form of mental disorder for which he is suffering. However, as accepted by Baroness Hale in the following passage in paragraph 26 of her speech in that case, section 58, like section 63, is concerned with treatment "for the mental disorder from which [the patient] is suffering"

"… [The Act] enacted the general power in section 63, defined in section 56 the patients to whom it applied, and provided safeguards for the most controversial treatments specified in or under sections 57 and 58. It did not … expressly link section 63 to the classified form of disorder, although it could easily have done so."


The section 58(3) power to treat a patient capable of consent against his will or a patient incapable of consent is potentially a violation of his Article 3 right not to be subjected to degrading treatment and/or his Article 8 right to respect for his private life. However, it is common ground that, while the risk of infringement of those rights may be greater when the patient is capable of giving or refusing consent, it is not necessarily an infringement to treat him against...

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