R (JW) v Dr G Feggetter and Mental Health Act Commission; R (Wooder) v Feggetter
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Sedley,Lord Justice Potter |
| Judgment Date | 25 April 2002 |
| Neutral Citation | [2002] EWCA Civ 554 |
| Docket Number | Case No: C/2000/3655 QBCAF |
| Court | Court of Appeal (Civil Division) |
| Date | 25 April 2002 |
[2002] EWCA Civ 554
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Sir Richard Tucker (sitting as a deputy high court judge)
Lord Justice Potter
Lord Justice Brooke and
Lord Justice Sedley
Case No: C/2000/3655 QBCAF
Edward Fitzgerald QC & Dermot Casey (instructed by Kaim Todner) for the Appellant
Nathalie Lieven (instructed by the Treasury Solicitor) for the Respondents
This is an application by the claimant John Wooder for judicial review of a decision of Dr Craig Stewart Feggetter, a Second Opinion Appointed Doctor ("SOAD") under Part IV of the Mental Health Act 1983 ("the 1983 Act"), to the effect that he should be given medical treatment for a psychiatric condition against his will. The decision in question was made on 25th October 2000. On 30th November 2000 Sir Richard Tucker, sitting as a deputy high court judge, refused permission to apply for judicial review. On 19th March 2001 Henry LJ granted appeal against that decision on one of the points Mr Wooder sought to argue, and also granted him permission to seek additional relief. He directed that the full hearing of the application for judicial review should be reserved to this court.
The nature of the relief now being sought is conveniently set out in the "amended details of remedies sought" which were lodged at this court on 20th February 2002. Mr Wooder now seeks:
i) A declaration that fairness demands that a SOAD should provide him with written and adequate reasons when certifying under section 58 of the 1983 Act that he should be given medication against his will, and furthermore that this is a general requirement of fairness applicable to all section 58 decisions;
ii) A declaration that fairness requires that when a section 58 certificate is sought, the patient's Responsible Medical Officer ("RMO")'s report to the SOAD must be disclosed to the patient in order that the patient can address its contents when interviewed by the SOAD.
The facts are conveniently set out in a statement of facts lodged with Mr Wooder's application. He is now aged 52. He moved to the United States with his mother when he was 11 years old. In 1969 he joined the US Army as a driver and was posted to Korea. In 1970 he was attacked by other recruits. In this attack he suffered a head injury and was rendered unconscious. He was honourably discharged from the US Army in 1972. Since his assault he has complained of dizziness, nystagmus, tinnitus, vertigo, hearing loss, balance problems and temporal lobe epilepsy.
In about 1980 he became convinced that he had been hypnotised shortly before his discharge from the army and subconsciously implanted with codes which in turn are activated by experiences he has with other people. He has consistently requested that he should be hypnotised in order to debrief him of these codes.
In June 1984 he returned to London, hoping to establish a new life for himself in this country. Unhappily an incident occurred in a shop in New Bond Street in January 1985, when he killed a man. He believed that a shop assistant was acting in a dismissive manner towards him and he therefore stabbed him in the neck with a knife. In July 1985 he was convicted of manslaughter on grounds of diminished responsibility and made subject to orders under sections 37 and 41 of the 1983 Act without restriction of time.
On conviction he was admitted to Broadmoor Hospital. He was originally not prescribed any medication, but since October 1985 he has been treated with a range of anti-psychotic medication, and also medication to treat its side effects. This treatment started after it was said that he had threatened to stab another patient. The only act of violence actually recorded against him is the January 1985 offence.
He was admitted to Three Bridges Regional Secure Hospital on trial leave from Broadmoor Hospital on 22nd October 1991, and was formally transferred there on 6th August 1993. He has lived there ever since. He is said to retain the delusional system which was operative at the time of the offence in 1985. His advisers have therefore cast doubt on the efficacy of his treatment with medication.
The side-effects of the anti-psychotic medication of which he has made complaint are very unpleasant. Medication prescribed to ameliorate them has little impact.
He has consistently complained of physical conditions that are related to the 1970 assault. In this context he has asked that his condition might be investigated in the absence of anti-psychotic medication, in order to establish how his physical condition might be treated appropriately. Another reason why he has asked to be allowed a period without anti-psychotic medication is to ascertain how he would be if he were "drug free". He maintains that he has not presented as a management problem, although this is disputed by those who are responsible for his care.
In the past he has withdrawn his consent to treatment with anti-psychotic medication due to the side-effects he has experienced. In those circumstances certification for medical treatment without his consent was sought and granted. In October 2000 the renewal of a certificate under section 58 of the 1983 Act was deemed to be necessary, and Dr Feggetter carried out an assessment of him as a SOAD on 25th October 2000. He certified that anti-psychotic medication should be administered to him without his consent. Before the new treatment started on 26th October, there had been a 17-day period, following the expiry of his last certificate, in which Mr Wooder received no treatment. It is maintained on his behalf that there is no evidence to suggest that his condition deteriorated or that he presented a risk of violence to anyone during that period.
His solicitors conducted correspondence with the Mental Health Act Commission ("MHAC") on his behalf between 15th October and 3rd November 2000. They initiated these proceedings following the receipt of MHAC's letter of 3rd November. In their opening letter dated 15th October they set out fully the reasons why they wished a SOAD to recommend a drug-free period in their client's care. They were told that their letter would be faxed to the designated SOAD. On 25th October, the day when Dr Feggetter saw their client and issued his certificate sanctioning further medication, they wrote to MHAC requiring the reasons for this decision.
On 30th October Mr Kinton (MHAC) wrote a three-page letter in reply. After setting out relevant extracts from the MHAC's Code of Practice and from its Guidance to SOADs, he went on to quote a passage from a leading text book as to the proper approach to be adopted by a SOAD when the reasonableness of non-consensual treatment is in issue. His letter continued:
"Dr Feggetter has confirmed that he did receive a copy of your letter of the 15 October 2000 prior to his visit and that he carefully considered its content before reaching his decision. I understand that Dr Feggetter also spoke with you on the day of his visit. You will be aware that Dr Feggetter met with your client and that your client was able to state his views on the treatment that he has received in the past and on the treatment proposed by his RMO. Dr Feggetter also consulted with the RMO and the statutory consultees. The RMO presented Dr Feggetter with a 25-page document as a background to her decision to seek authority to treat your client.
Dr Feggetter accepted the view of the RMO and ward staff that your client did not have mental capacity to give or withhold consent to the proposed treatment. Dr Feggetter had found your client to lack insight into the nature of his illness and his potential for further violent behaviour, given the thought disorder and active delusion evident at interview, particularly on the subject of his index offence. The RMO and ward staff expressed concern about the possibility that, untreated, your client's illness may pose a serious risk of violence and potential harm to others. Dr Feggetter accepted that there is an issue with side-effects that can be addressed by the care-team but that these issues in themselves do not outweigh the potential benefits of the treatment proposed, which he therefore concluded was reasonable.
If you wish to discuss this matter further I am happy to do so."
On 3rd November Mr Kinton elaborated a little, following a further letter from the claimant's solicitors. He identified the 25-page document which had been provided to Dr Feggetter, and said that the solicitors should approach the RMO if they required access to it. He corrected one matter in his earlier letter. He now said that Dr Feggetter did not certify that Mr Wooder was incapable of giving consent to his treatment. Dr Feggetter's view was that although Mr Wooder lacked insight into his illness, he was able to give valid consent to treatment but refused to do so.
Mr Kinton said that the RMO must remain the primary point of information and discussion with the patient about the treatment plan which the SOAD had authorised as reasonable. He rejected the solicitors' contention that someone other than the RMO should explain the rationale for treatment to a patient who has received a statutory second opinion.
On 30th November 2000 Sir Richard Tucker refused permission to apply for judicial review. He was at that time concerned, so far as is relevant to this appeal, only with the first of the declarations mentioned in...
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