R (Taylor) v (1) Dr Haydn-Smith (2) Dr Gallimore
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 2005 |
| Neutral Citation | [2005] EWHC 1668 (Admin),[2005] EWHC 1008 (Admin) |
| Date | 27 May 2005 |
| Court | Queen's Bench Division (Administrative Court) |
[2005] EWHC 1668 (Admin)
Court and Reference: Administrative Court; CO/201/2005
Collins J
Appearances: U Burnham (instructed by Stuart Miller & Co) for T; N Greaney (instructed by Capsticks) for Dr H; S Broadfoot (instructed by the Treasury Solicitor) for Dr G.
T was detained under ss. 37 and 41 Mental Health Act 1983. His Responsible Medical Officer, Dr H, was of the opinion that he suffered from persistent delusional disorder and wished to treat him with medication. T refused to consent to that medication. The RMO sought a certificate authorising such treatment under s. 58(3)(b) of the 1983 Act from a Second Opinion Appointed Doctor. Dr G, the second defendant, provided such a certificate on 30 April 2005. T had obtained the opinion of an independent psychiatrist, Dr A, that he did not suffer from mental illness and did not require treatment with medication. He issued proceedings by way of judicial review, challenging the decisions of the RMO and the SOAD. He also applied for an order that the psychiatrists should attend the hearing to be cross-examined.
1. The claimant, Roger Taylor, is now 51 years old. He was a patient at Ashen Hill Hospital. He was formally admitted to that hospital in October 2000 by the Crown Court following his conviction for offences of affray and common assault. He had been at Ashen Hill in the Regional Secure Unit since May 2000 for the purpose of assessment. The court, having received the necessary reports, ordered his detention at Ashen Hill pursuant to s. 37 of the Mental Health Act 1983 and further ordered that he be subject to a restriction order under s. 41.
2. This claim concerns whether he should receive treatment in the form of anti-psychotic medication without his consent. Section 63 of the 1983 Act enables treatment to be given to a patient by or under the direction of the responsible medical officer ("RMO") without the need for the patient to consent, but that provision is subject to ss. 57 and 58. Section 57 deals with particular forms of treatment of an especially invasive nature, and s. 58 is the provision which is applicable in this case. It provides as follows:
"(1) This section applies to the following forms of medical treatment for mental disorder -
(a) such forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State;
(b) the administration of medicine to a patient by any means (not being a form of treatment specified under para (a) above or s. 57 above) at any time during a period for which he is liable to be detained as a patient for whom this Part of the Act applies if 3 months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.
(2) The Secretary of State may by order vary the length of the period mentioned in subs(1)(b) above.
(3) Subject to s. 62 below, 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 the 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 subs(3)(b) above the registered medical practitioner concerned shall consult 2 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."
3. Part 4 of the Act, in which these provisions relating to consent to treatment are to be found, applies to the claimant so long as he is liable to be detained. He is liable to be detained if suffering from mental disorder; that is to say mental illness, arrested or incomplete development of mind, psychopathic disorder or any disorder or disability of mind, or from severe mental impairment which make it necessary for him to be detained in hospital to receive treatment for the protection of other persons or for his own health and safety. (See ss. 1(2), 3(2) and 37(2) of the 1983 Act).
4. It is, I think, convenient, simply because I have recently set out the relevant statutory and other provisions in R (B) v Haddock and Others [2005] Mental Health Law Reports 317, to direct attention to that case. I do not think I need cite from it in this judgment. I simply refer to the code of practice which deals with how the SOAD (namely the medical practitioner appointed under s. 58) should act. But it makes the point that the SOAD must satisfy himself that the treatment is indeed necessary, ensure that he thinks it desirable to carry it out, and consult with the 2 statutory consultees and others including, with the patient's consent, the patient's family, carers or advocate.
5. The first defendant is the RMO, the second the SOAD. Each is satisfied that the claimant suffers from persistent delusional disorder and that the medication is needed to alleviate his condition. The second defendant, Dr Gallimore, so certified on 30 April of this year. An earlier certificate had been given by a different SOAD on 28 December 2004, a Dr Browne, and he reached the same conclusion. He was of the opinion that the claimant was suffering from mental illness in the form of a deep-seated paranoia. He was included in the original claim which was lodged on 17 January 2005 (following the obtaining of an injunction on 14 January, the duty judge prohibiting the administration of the treatment pending consideration of an application for judicial review which had to be lodged by Monday 17th) but Dr Browne's certificate lapsed. In due course, Dr Gallimore's certificate was obtained so he was joined in the place of Dr Browne.
6. The claim is founded on evidence obtained from a Dr Azuonye, a consultant psychiatrist, who originally saw the claimant on 12 January of this year and expressed the view that he showed no signs of mental disorder and that no medication should be administered.
7. There is little, if any, dispute about the approach the law requires me to adopt. Following Strasbourg jurisprudence, in particular Herczegfalvy v Austria 15 EHRR 437, the defendants have to satisfy me that the medical necessity for the treatment is has been convincingly shown to exist according to the psychiatric principles generally accepted. Since human rights are at stake, whether under Art 3 or, more probably, Art 8, the Court of Appeal has decided in Wilkinson v Broadmoor Special Hospital [2001] Mental Health Law Reports 224, [2002] 1 WLR 419 that, albeit the challenge is through judicial review, the court must reach its own conclusion on the evidence. This could (and on one view the decision in Wilkinson is consistent with the conclusion that it should) involve the attendance and cross-examination of the doctors concerned. But in R (N) v M [2003] Mental Health Law Reports 157, [2003] 1 WLR 562 the Court of Appeal indicated that it should not often be necessary to adduce oral evidence. In the case of R (B) v Haddock, which I have already referred to, I considered the authorities and expressed some doubts about the decision in Wilkinson and the approach that the court had to decide for itself on the merits. However, I need not go into those matters in this judgment. Suffice it to say that I accept, as I have to, that I am bound by the decisions of the Court of Appeal in Wilkinson and N.
8. An application was made to have the doctors called and cross-examined. I refused that application. The various reports have been considered and commented on in detail. I am satisfied that I would not have been assisted by hearing the doctors cross-examined. I have all the information that I need to reach my decision. I only confirm, and perhaps put into more positive form, what the Court of Appeal said in N about the need to adduce oral evidence. In my view it will only be in rare cases that such a course will be appropriate. If the court has the relevant medical notes, the reasoned decisions by the doctors concerned, statements from the doctors and other professionals, and comments on any opposing views, it is difficult to see why oral evidence should be needed.
9. I must start by setting out, although not in any more detail than necessary, the claimant's history. He was a singularly difficult child, terrorising his siblings and wreaking havoc in his home. At the age of 14 he was regarded as totally beyond his parents' control. He married a lady who was a prostitute - indeed he had met her as her client - in 1983. They separated after about a year. He returned to her but was angry at her because he felt that she was still pursuing her activities as a prostitute. His wife died following a quarrel, and for about a month he lived with her dead body. He was arrested because he raped a lady after he forced his way into her flat, threatened her with a knife and bound her hands.
10. For these offences he was sentenced by the Crown Court judge to 11 years' imprisonment but that was reduced on appeal to 8 years. He was released from that sentence in April 1991. The Probation Service, recognising that there were substantial mental problems, having regard to his history and the nature of the offences, referred him to psychiatric...
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