R (PS) v G
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber,MR JUSTICE SILBER |
| Judgment Date | 10 October 2003 |
| Neutral Citation | [2003] EWHC 2335 (Admin) |
| Docket Number | Case No: CO/5824/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2003 |
[2003] EWHC 2335 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Silber
Case No: CO/5824/2002
Mr. Kris Gledhill and Mr. Roger Pezzani (instructed by Donovan Newton of Nottingham) for the Claimant
Mr. Christopher Baker (instructed by Mills and Reeve of Birmingham) for the First Defendant
Miss. Elisabeth Laing (instructed by The Treasury Solicitor) for the Second Defendant
Introduction
1. PS (“the claimant”), who is a patient detained under Section 37 of the Mental Health Act 1983 (“the Act”), seeks to prevent Dr. G, the first defendant, his responsible medical officer (“RMO”) from administering treatment by way of anti-psychotic medication to him without his consent. The claimant has the capacity to make decisions on his treatment but he does not wish to have the treatment. The first defendant considers that this treatment is justified and that it should be given. He is supported in this view by Dr. W, the second defendant who is the second opinion appointed doctor (“SOAD”), who has certified for the purposes of Section 58(3)(b) of the Act that the anti-psychotic treatment should be administered. There is a dispute between the claimant's expert psychiatrist and the defendants about the correct diagnosis of the illness suffered by the claimant, who stresses that as he has the capacity to make decisions on treatment, his personal choice to refuse treatment should be respected. In these proceedings, the claimant obtained permission from Wall J to challenge the decisions of the first and second defendants.
Structure of Judgment
2. In this judgment, I will deal with matters in the following order:-
The claim and procedural matters (paragraphs 3 to 19);
Two preliminary matters (paragraphs 20 to 25);
The claimant's background and history (paragraphs 26 to 60);
The diagnosis issue (paragraphs 67 to 95);
The Article 3 issue (paragraphs 96 to 130);
The Article 8 issue (paragraphs 131 to 147) and
The Article 14 issue (paragraphs 148 to 154).
The Claim and Procedural Matters
3. The issue on the original claim was whether the administration of the proposed medication to PS infringed his rights under Articles 3 and 8 of the European Convention on Human Rights (“the Convention”). In the claimant's skeleton argument for the substantive hearing, his counsel Mr. Kris Gledhill and Mr. Roger Pezzani also raised for the first time three other legal issues, which entailed considering:-
(a) whether PS was lawfully detained;
(b) whether the administration of the proposed medication is in PS's best interests;
(c) the administered proposed medication under Article 14 of the Convention.
4. Mr. Christopher Baker, counsel for Dr. G and Miss. Elisabeth Laing, counsel for Dr. W did not object to these additional issues being raised on the basis that, in relation to (b) above, it would not be sought to use the best interests test in order to go beyond the medical issues which had hitherto been the focus of this case and to which the evidence of the parties has been directed. The best interests test goes wider than medical necessity and embraces emotional and all other welfare issues (see In re S (Adult patient: sterilisation) [2001] Fam 18, at 24G-H per Butler-Sloss P). The claimant was content to pursue issue (b) on the basis put forward by the defendants. It has also been agreed in respect of issue (a), that I will not determine whether PS is lawfully detained as that issue is due to be determined by a Mental Health Review Tribunal (“the Tribunal”). Initially at the oral hearing of this application on 15, 16 and 17 July 2003, it was agreed that I would postpone giving judgment until after the Tribunal had given its decision at its hearing fixed for 4 August 2003. It was envisaged at the time of the July 2003 hearing that the Tribunal would give its decision in August and that I would hear further representations on 8 September 2003. Indeed, all parties appeared content with that approach. On 4 August 2003, the Tribunal adjourned its hearing until October and at the request of the parties in September, I proceeded to produce this judgment without waiting any longer for the Tribunal's determination. I will therefore consider only issues (b) and (c).
5. Unusually for judicial review proceedings, I was asked to resolve disputed issues of diagnosis and the consequent justification for the proposed treatment after hearing expert psychiatric evidence from Dr. Hambidge on behalf of PS, as well as from the present Responsible Medical Officer (“RMO”), namely the first defendant, from Dr. B who was PS's previous RMO, and from the second defendant. Each of these psychiatrists supplemented their witness statements with oral evidence and they were all cross-examined for reasons that I will explain in paragraphs 20 to 23 below. Although the nature of the challenge in this case is such that the court cannot decide the ultimate question without determining for itself the disputed facts, it must not be overlooked that the court's role is essentially one of review (see R (on the application of N) v. Dr. M [2003] 1 WLR 562, [39]).
6. As I have stated, a fundamental dispute between the claimant and the defendants relates to the nature of any mental illness that is presently suffered by the claimant. Dr. Hambidge, the claimant's expert, considered that the claimant is suffering from a schizophreniform disorder, while Dr. B, Dr. G and Dr. W disagree and consider that the claimant is suffering from either paranoid psychosis or schizophrenia.
7. Schizophrenic disorders are characterised in general by fundamental and characteristic distortions of thinking and perception. Schizophrenia is defined in Diagnostic and Statistic Manual of Mental Disorders (Fourth Edition 1995 page 273) as a disturbance that lasts for at least six months and includes at least one month of active phase symptoms, namely two or more of delusions, hallucinations, disorganised speech, grossly disorganised, catatonic behaviour or negative symptoms. The same book explains that schizophreniform disorder “is characterised by a symptomatic presentation equivalent to schizophrenia except for its duration (i.e. the disturbance lasts [up] to six months) and the absence of a requirement that there be a decline in functioning”. It is appropriate that I should now explain the relevant statutory material and then the issues raised on this application.
Statutory Material
Detention, Release and Recall Provisions
8. Under Section 37 of the Act, a court may order the detention in hospital of a person convicted of an imprisonable offence if it is the most suitable method of dealing with the case and various preconditions are met, namely that (i) there is medical evidence from two doctors that the offender is suffering from a mental disorder, (ii) the disorder is of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment (and the treatment will work in the case of psychopathic disorder). In 1995, the claimant was made subject to such an order by a Crown Court for the manslaughter of his mother and son on grounds of diminished responsibility.
9. The effect of such an order is set out in Section 40 of the Act, which provides insofar as is relevant to this application that:-
“(1) A hospital order shall be sufficient authority –
(i) [to convey to hospital within 28 days]
(ii) for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act.
…
(4) A patient who is admitted to a hospital in pursuance of a hospital order … shall, subject to the provisions of this subsection, be treated … as if he had been so admitted … on the date of the order in pursuance of an application for admission for treatment … duly made under Part II of this Act” (with various modifications set out in Schedule 1 of the Act, the only substantive one of which is that the patient's nearest relative cannot order their discharge).
10. A Crown Court may impose a restriction order as was done in the case of the claimant on 15 May 1995 without any limit of time under Section 41 of the Act if “it is necessary for the protection of the public from serious harm so to do”. The effect of such an order is first that the exercise of various powers, namely leave of absence, transfer to another hospital and discharge by the RMO or hospital managers, require the consent of the Home Secretary and second, that the hospital order continues in effect until it is set aside; whereas a simple Section 37 order has to be renewed at intervals.
Treatment provisions
11. Section 145 defines “medical treatment” widely to include “nursing and … care, habilitation or rehabilitation under medical supervision”.
12. Section 63 of the Act provides, with my emphasis added, that:-
“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”.
13. The proposed treatment for the claimant falls within Section 58 of the Act as it is for the administration of medication more than three months after the patient was first medicated following detention (see Section 58(1)(b)). The issue on this application is...
To continue reading
Request your trial
-
R (B) v SS, Dr AC and the Secretary of State for Health
...and Others[2001] Mental Health Law Reports 224, [2002] 1 WLR 419 and of the Administrative Court in R (PS) v Dr G and Dr W [2004] Mental Health Law Reports 1, to which I will hereinafter respectively refer as "Wilkinson" and "PS". It is now appropriate to explain the present approach of Eng......
-
R (B) v S (Responsible Medical Officer, Broadmoor Hospital)
...Health Law Reports 157, [2003] 1 WLR 562, and more recently before the Administrative Court in R (PS) v (1) Dr G (2) Dr W [2004] Mental Health Law Reports 1 and in a case involving the Claimant himself, R (B) v (1) Dr SS (2) Dr AC (3) Secretary of State for the Health Department [2005] Ment......
-
R (B) v Dr SS
...a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs." 48 In R (PS) v Dr G [2003] EWHC 2335 Admin) ; [2004] 1 MHLR 1 at paragraph 134 Silber J accepted the submission that: "the decision to administer anti-psychotic......
-
R (B) v (1) Dr SS (2) Dr G (3) Secretary of State for the HealthDepartment
...treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs."48. In R (PS) v Dr G [2004] 1 MHLR 1 at para 134 Silber J accepted the submission that: "the decision to administer anti-psychotic medication has to be considered in the context th......