R (on the application of N) v Doctor M and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Year | 2002 |
| Date | 2002 |
| Court | Court of Appeal (Civil Division) |
Medical treatment – Mental health – Treatment without consent – Medical necessity – Reasonable body of opinion that patient not suffering from treatable condition – Whether body of opinion preventing it being shown that proposed treatment was medically necessary.
The claimant, Ms N, had been a patient at a hospital since January 1999. In May 2002, Dr M, a consultant forensic psychiatrist at the hospital who was then her responsible medical officer, presented Ms N with a treatment plan which included the injection of anti-psychotic medication for the prevention or alleviation of her psychotic illness. Ms N did not consent to this treatment. Dr M then asked for another psychiatrist to be appointed as a second opinion appointed director by the Mental Health Act Commission. Dr O was appointed and subsequently issued a certificate under s 58(3)(b) of the Mental Health Act 1983 in which he stated that Ms N was suffering from paranoid psychosis/severe personality disorder, and that she required regular anti-psychotic treatment. Ms N sought to challenge the decisions of both doctors, however, her application was dismissed. The judge allowed cross-examination of the expert witnesses and concluded that Ms N lacked the capacity to consent to treatment, and was suffering from a psychotic illness. Ms N appealed, contending that, in a case where there was a reasonable body of opinion that a patient was not suffering from a treatable condition, it could not convincingly be shown that the treatment proposed was medically necessary.
Held – The fact that there was a responsible body of opinion against a proposed treatment was relevant to the question whether it was in the patient’s best interests or medically necessary, but it was no more than that. The court had to decide in the light of all the evidence in a case whether the treatment should be permitted. In the instant case, the judge was right to apply the best interests test and the medical necessity test in accordance with the principle that the standard of proof required in the light of art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was that the court should be satisfied that medical necessity had been convincingly shown. On the facts of the instant case, the judge’s conclusion was unassailable. Therefore, the appeal would be dismissed; Herczegfalvy v Austria (1992) 15 EHRR 437 considered.
Per curiam. It should not often be necessary to adduce oral evidence with cross-examination where there are disputed issues of fact and opinion in cases
where the need for forcible medical treatment of a patient is being challenged on human rights grounds. Much will depend on the nature of the right that has allegedly been breached and the nature of that breach. Furthermore, although in some cases the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court’s role is essentially one of review.
Cases referred to in judgmentA (medical treatment: male sterilisation), Re[2000] 1 FCR 193, [2000] 1 FLR 549, CA.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, [1998] AC 232, [1997] 3 WLR 1151, HL.
Grare v France (1993) 15 EHRR CD 100, E Com HR.
Herczegfalvy v Austria (1992) 15 EHRR 437, [1992] ECHR 10533/83, ECt HR.
R (on the application of Daly) v Secretary of State for the Home Dept[2001] UKHL 26, [2001] 3 All ER 433, [2001] 2 AC 532, [2001] 2 WLR 1622, HL.
R (on the application of Wilkinson) v Broadmoor Special Hospital Authority[2001] EWCA Civ 1545, [2002] 1 WLR 419.
SL (adult patient) (medical treatment), Re[2000] 2 FCR 452, [2000] 3 WLR 1288, [2000] 2 FLR 389, CA.
AppealThe claimant, Ms N, appealed from the decision of Silber J by which he refused her application to quash decisions by two consultant psychiatrists that she required treatment involving the injection of anti-psychotic medicine. The facts are set out in the judgment of the court.
Matthias Kelly QC and Kris Gledhill for the appellant.
Philip Havers QC and Jeremy Hyam for the first and second respondents.
Elisabeth Laing for the third respondent.
DYSON LJ.This is the judgment of the court.
Introduction[1] 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 s 58(3)(b) of the Mental Health Act 1983 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[2] 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 paras 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 ss 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.
[3] She was admitted to 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.
[4] 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.
[5] 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 C, who is a consultant in forensic psychiatry and professor of forensic psychiatry. 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.
[6] 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 L, who is an independent psychiatrist. Dr L’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...
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