R M v (1) Central and North West London Mental Health Nhs Trust (2) The Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WALKER |
| Judgment Date | 01 February 2007 |
| Neutral Citation | [2007] EWHC 491 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7234/2006 |
| Date | 01 February 2007 |
[2007] EWHC 491 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Walker
CO/7234/2006
MR PAUL BOWEN (instructed by Kaim Todner Solicitors, London N1 2HY) appeared on behalf of the Claimant
MR GERARD CLARKE (instructed by Messrs RadcliffesLeBrasseur, London SW1P 3SJ) appeared on behalf of the First Defendant
MR BEN HOOPER (instructed by the Office of the Solicitor, Department for Work and Pensions, Department of Health, New Court, 48 Carey Street, London WC2A 2LS) appeared on behalf of the Second Defendant
( As approved by the Court )
This is a renewed application for permission to apply for judicial review, following the refusal of such permission by Bean J on the papers.
The grounds have been set out with conspicuous clarity in a document prepared by Mr Bowen, who appears on behalf of the claimant today. They identify three decisions which it is sought to challenge.
Decision 1 is the compulsory administration of medication to the claimant on 31 May 2006 while detained, under section 3 of the Mental Health Act 1983, at a centre managed by the first defendant, the Central and North West London Mental Health NHS Trust. It is said that this compulsory treatment was a breach of the claimant's right to respect for her private life, under Article 8 of the European Convention on Human Rights.
Decisions 2 and 3 are of a quite different nature. They are probably not appropriately regarded as decisions in the ordinary sense of the word. I suspect they have been described as decisions simply because the claim form asks a claimant to identify the decision that is to be the subject of review. The complaint in relation to this part of the case is that specific provisions in the 1983 Act are incompatible with the Convention. In that regard, as against the second defendant, the Secretary of State for Health, declarations of incompatibility are sought.
What is described as "decision 2" concerns one aspect of section 63 and section 58(1)(b) of the 1983 Act. Those provisions permit the imposition of compulsory treatment for mental disorder by way of medication for a period of up to three months after the first occasion on which medication was administered. It is claimed that they do so without the approval of the court or other "competent body", in breach of the claimant's right to respect for private life under Article 8.
Decision 3 concerns a different aspect of section 63 of the 1983 Act. That section authorises compulsory treatment for mental disorder of those who have capacity to refuse the treatment and (submits the claimant) actually refuse such treatment in circumstances where the treatment is not necessary to protect either the public or the patient from serious harm. This, it is suggested, is a breach of Articles 8 and 14 of the European Convention.
Acknowledgements of service were filed by the first defendant and the second defendant, in each case contesting the claim. Bean J, in a decision dated 20 November 2006, indicated that in his view, for the reasons given in the acknowledgements of service, there was no arguable case that the treatment of the claimant pursuant to section 63 of the Act was unlawful, nor that the relevant provisions of the Act were incompatible with the claimant's Convention rights.
When applying for reconsideration the claimant lodged grounds for seeking that reconsideration. Again, these have been drafted by Mr Bowen with conspicuous clarity.
As regards decision 3, the grounds lodged when seeking reconsideration accept that the Administrative Court is bound by the Court of Appeal's decision in R (B) v Dr SS [2006] EWCA Civ 28.
In oral submissions Mr Bowen put it slightly differently. There was a possible ground for distinguishing the case of B, for that case concerned a patient who was incompetent, whereas the claimant in this case was not suggested to have been incompetent. However, realistically Mr Bowen accepted that this court would not depart from the reasoning of the Court of Appeal in the case of B. That reasoning would result in his client failing on the claim in relation to decision 3. Accordingly, it was accepted that this court must refuse permission and the only application that Mr Bowen made was that there should be an extension of time for seeking permission to appeal to the Court of Appeal from that refusal in the event that permission were granted in relation to other aspects. Accordingly, I need say no more about decision 3.
I turn to decision 1. I asked Mr Bowen whether that decision could realistically be challenged if the claimant's complaints about decisions 2 and 3 were rejected. Mr Bowen's response, with characteristic candour, was that, while in law a challenge might nevertheless be made to decision 1, in the circumstances that I have described it would be disproportionate to pursue the first defendant, and accordingly the claimant would not be advancing a challenge to decision 1.
The result is that for the purposes of this court the real question is whether there is an arguable case in relation to decision 2. Here Mr Bowen acknowledged that the question of compatibility with the Convention on the aspect that is the subject of decision 2 had been considered by the Court of Session in the case of Petition of WM ...
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