R (N) v M
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,LORD JUSTICE DYSON |
| Judgment Date | 06 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1789 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2002/2157 |
| Date | 06 December 2002 |
[2002] EWCA Civ 1789
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Silber)
The Lord Phillips of Worth Matravers, Mr
Lord Justice Rix and
Lord Justice Dyson
Case No: C/2002/2157
Mr M. Kelly QC and Mr K. Gledhill (instructed by Messrs David Turner) for the Appellant
Mr P. Havers QC and Mr J. Hyam (instructed by Messrs Capsticks) for the First and Second Respondents
Miss E. Laing (instructed by The Treasury Solicitors) for the Third Respondent
This is the judgment of the court.
Introduction
Ms N ("the claimant") has been a patient at X hospital since January 1999. On 10 May 2002, Dr M, a consultant forensic psychiatrist at the hospital who was then her responsible medical officer ("RMO"), presented the claimant with a treatment plan which included administering depot (ie by injection) anti-psychotic medicine for the prevention or the alleviation of her psychotic illness. The claimant did not consent to this treatment. Dr M then asked for another consultant psychiatrist, to be appointed as a Second Opinion Appointed Director ("SOAD") by the Mental Health Act Commission ("the Commission"). Dr O was duly appointed, and on 17 May, he issued a certificate under section 58(3)(b) of the Mental Health Act 1983 ("the Act") in which he stated that the claimant was suffering from paranoid psychosis/severe personality disorder, and that she required regular anti-psychotic treatment. By proceedings issued on 24 May 2002, the claimant sought to challenge the decisions of both doctors. Permission was granted by Goldring J. On 26 September, in a careful and impressive judgment, Silber J dismissed the application. He gave permission to appeal on the grounds that he thought that the case raises issues of some general importance.
The history and the medical evidence
For the purposes of resolving the issues that arise on this appeal, it is not necessary to explore the history or the details of the medical evidence as thoroughly as the judge did. His exposition appears at paragraphs 14–39 of the judgment. The following is a brief summary. The claimant was born a male on 13 February 1962. She had gender reassignment surgery in 1993 and now uses a female first name and a new surname. She has a bad record of criminal convictions for serious offences committed both before and after 1993. In June 1997, she was arrested for making threats to kill. Whilst on remand, she was assessed by a consultant from X Hospital in August and October 1997 and found to be psychotic and unfit to plead. According to the Claim Form, on 20 April 1998 she was found to have committed the actus reus of the offence of making threats to kill, and an admission order was made against her pursuant to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 together with a restriction order. This order has the same effect as a hospital order and a restriction order under sections 37 and 41 of the Act. She can be returned to court if and when she becomes fit to stand trial. This has not yet happened.
She was admitted to the Y Clinic on 19 March 1998 where she was described as experiencing auditory hallucinations and delusional beliefs. She was treated initially with depot anti-psychotic medication, and her mental state improved. The medication was later stopped when Dr V, her RMO at the time, said that he did not consider that she was suffering a psychotic illness. But she became increasingly difficult to manage: on one occasion she claimed that she had a knife in her vagina and threatened to kill a man with it. On another occasion, she made an obviously unfounded allegation that she had been raped.
On 12 January 1999, she was transferred to X hospital where she remains. The judge refers to a number of instances of worryingly aggressive behaviour. A number of psychiatrists made reports on her mental condition during 2000 and 2001, and they expressed differing opinions as to whether she was suffering from a psychotic illness or a personality disorder or both.
In early 2002 Dr M, in her capacity as the claimant's RMO, came to the conclusion that depot medication should be administered on the basis that the claimant was suffering from a psychotic illness. She obtained a second opinion from Professor Coid, who is a consultant in forensic psychiatry and professor of forensic psychiatry at St Bartholomew's and the Royal London School of Medicine and Dentistry. His report is dated 27 March 2002. He advised that the claimant was suffering from paranoid psychosis, delusional disorder and severe personality disorder. He also considered that she did not have the capacity to make decisions about her treatment. He believed that treatment in the claimant's best interests included the use of forced anti-psychotic medication for the purpose of treating her delusional disorder.
When the claimant refused to consent to depot anti-psychotic medication, Dr M requested the Commission to appoint a SOAD. Dr O was appointed. In the meantime, the claimant's solicitor had sought an opinion from Dr Lock, who is an independent psychiatrist. Dr Lock's report is dated 9 April 2002. He advised that the claimant was fit to stand trial, that she was very unlikely to be suffering from a psychotic illness and that she was certainly not a schizophrenic. He concluded, therefore, that she should not be given anti-psychotic medication, and that she retained the capacity to make treatment decisions. He thought that she suffered from a complex personality disorder which was probably untreatable.
On 17 May, Dr O diagnosed the claimant as suffering from "paranoid psychosis/severe personality disorder", and certified that regular anti-psychotic treatment was required. More recently, the claimant has been transferred to a different ward in the X hospital, and a new RMO has been allocated to her with whom, we are told, the claimant has formed a good relationship. But the question of the lawfulness of the decisions under challenge remains, at least potentially, a live issue.
The relevant statutory provisions
So far as material, section 58 of the Act provides:
"(3) subject to section 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 effects 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 subsection (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."
Section 63 provides:
"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 section 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer."
Summary of the judge's conclusions
It was submitted to the judge on behalf of all three defendants that he ought to allow cross-examination of the doctors in order to enable him resolve the conflict in the medical evidence disclosed by the written material before him in relation to whether the claimant (a) was suffering from a psychotic illness (as well as an untreatable personality disorder), and (b) had the capacity to give her consent to the treatment proposed by Dr M and Dr O. On behalf of the claimant, it was submitted that cross-examination was inappropriate, and that the judge should decide the issues simply on the basis of the written evidence before him. The judge decided to allow cross-examination. He heard evidence from Dr Lock, Dr M and Dr Parrott. Dr Parrott is a Consultant Forensic Psychiatrist and Clinical Director at the Bracton Centre, Oxleas NHS Trust. She prepared a report dated 18 June 2002 on behalf of Dr M and Dr O for the purpose of the judicial review proceedings.
At paragraphs 60–72, the judge considered the claimant's capacity to give her consent, and concluded in the light of the medical evidence that she could not do so. He then turned to the diagnosis of the claimant's mental condition, and discussed this at paragraphs 73–85. Having assessed the medical evidence, he concluded that the claimant was suffering from a psychotic illness.
The judge then considered whether permission should be given to the proposed treatment notwithstanding that she did not consent to it. He discussed the application of the "best interests" test at common law (paragraphs 88–106) and concluded (paragraph 106) that it was "necessary that the claimant should have the proposed depot treatment as being in her best interests". Next he...
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