R (B) v Ashworth Hospital Authority
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD CARSWELL,LORD STEYN,BARONESS HALE OF RICHMOND,LORD PHILLIPS OF WORTH MATRAVERS |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] UKHL 20 |
| Date | 17 March 2005 |
| Court | House of Lords |
[2005] UKHL 20
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Phillips of Worth Matravers
Baroness Hale of Richmond
Lord Carswell
and another
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in complete agreement with it, and for the reasons she gives would allow the appeal and make the order which she proposes.
My Lords,
I have read the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it. I would also make the order which she proposes.
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. For the reasons which she gives I also would allow the appeal and make the order which she proposes.
My Lords,
The issue in this case is whether a patient detained for treatment under the Mental Health Act 1983 can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as suffering for the purpose of the order or application authorising his detention.
The history
The patient was convicted of manslaughter in 1987. At the time of his offence he was acutely mentally ill with symptoms of a florid psychotic illness. The court made a hospital order with a restriction order of indefinite duration under sections 37 and 41 of the 1983 Act. He was classified in the order as suffering from mental illness, namely schizophrenia. He was first admitted to Ashworth Hospital in April 1988, having absconded from a medium secure unit (MSU). On admission the diagnosis was paranoid psychosis, a mental illness, but the psychiatrist also noted features of personality disorder in a setting of limited intellectual ability. He returned to the MSU between October 1992 and January 1994, when he was readmitted to Ashworth Hospital. He was then thought to be demonstrating features of 'hypomanic' illness and recommenced oral and depot anti-psychotic medication. For a time he was given medicine appropriate to an affective disorder (a disorder of the mood) rather than for a thought disorder (such as schizophrenia). His condition became more stable on anti-psychotic medicine and in February 1999 a Mental Health Review Tribunal (MHRT) recommended that he be transferred to less secure conditions.
During 2000 he was given personality tests on which he scored 'very high' for psychopathic disorder, but his classified form of disorder remained mental illness alone. In December 2000, he was transferred to a ward where the milieu was particularly designed to address the traits of personality disorder. This was different in a number of respects from the regime of wards designed to treat mental illnesses. The precise extent of those differences is not agreed, but some aspects of the new regime were less agreeable to the patient than the regime which he had previously enjoyed. The patient also saw the further therapeutic work which might be expected of him there as placing new obstacles in the way of his transfer to a less secure hospital.
In May 2001, a Mental Health Review Tribunal concluded that he was still suffering from a 'schizo-affective disorder' (a mental illness). They were aware of the difference of opinion between his Responsible Medical Officer (RMO) and the patient's independent psychiatrist, Professor Sashidharan, as to whether he was also suffering from a personality disorder. Although the Professor's opinion was that the further therapeutic requirements were unnecessary and unjustified, the tribunal concluded that 'much work remains before a transfer would be appropriate'. They did not, however, reclassify him to show both mental illness and psychopathic disorder.
In August 2001, his solicitors wrote to the hospital arguing that he should never have been transferred to a ward for patients with psychopathic disorder. The hospital's response was that, his mental illness having been successfully controlled by medication which he continued to take, the current ward was appropriate to address the remaining problems of his personality type.
Judicial review proceedings were started early in 2002, seeking an order to quash the decision to place him on the ward, a declaration that the placement was unlawful, and a declaration that his treatment for personality disordered behaviour was unlawful. That claim was dismissed by Sir Richard Tucker in July 2002 but his appeal was allowed by the Court of Appeal, which made the following declaration (see R (B) v Ashworth Hospital Authority [2003] 1 WLR 1886):
"The treatment without consent of the claimant for a psychopathic disorder is unlawful unless and until the claimant is classified as suffering from such disorder by the Mental Health Review Tribunal under section 72(5) of the Mental Health Act 1983."
The Hospital now appeals to this House.
Before turning to the law, there are a few comments to be made on these facts. The first is that there is nothing intrinsically unlawful, ie tortious, about the treatment given for personality disorder. A patient may be offered various forms of psycho-therapy from, for example, a psychologist, but clearly these can only take place with his co-operation. Otherwise the treatment is counselling and guidance from the nursing staff, with a view to helping patients to observe appropriate boundaries in their behaviour and controlling their impulsivity. The patient may, of course, experience this as stricter than the regime in a ward devoted to patients with mental illnesses, but it will not be unlawful unless the staff use unlawful means to control the patients and enforce discipline: see R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58; R v Bracknell Justices, Ex p Griffiths [1976] AC 314. Treatment for mental illness, on the other hand, often involves the administration of psycho-tropic drugs which would be unlawful without the consent of the patient or some other lawful justification. It is ironic, therefore, that this issue should have arisen in the context of a patient classified as mentally ill, and thus on any view legally liable to be treated with powerful anti-psychotic medicine against his will, who objects to the regime and 'talking treatments' in a personality disorder ward. But the same legal issue would arise the other way round: where a patient classified as suffering from psychopathic disorder is later diagnosed as suffering from a mental illness for which he is given psycho-tropic medication against his will.
The Law
Section 63 of the 1983 Act deals with the treatment of compulsory patients in hospital:
"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 section 58 above, if the treatment is given by or under the direction of the responsible medical officer."
Section 57 provides an exception and extra safeguards for the most controversial treatments for mental disorder, namely psycho-surgery and the surgical implantation of hormones for the purpose of reducing male sex drive: see section 57(1) and Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 ( SI 1983/893), reg 16. These can only be administered to any patient, compulsory or informal, with their independently certified informed consent and a second independent medical opinion: see section 57(2). Section 58 provides extra safeguards for two other treatments which have given rise to concern: electro-convulsive therapy (ECT) and (put shortly) the administration of medicine by any means once three months has elapsed from the first time the patient was given medicine for his mental disorder: see section 58(1) and reg 16. These treatments require either the patient's informed consent, certified by his RMO or an independent doctor, or a second independent medical opinion: see section 58(3).
Section 63 is contained in Part IV of the Act. Part IV applies to 'any patient liable to be detained under this Act', except for patients detained under emergency applications before a second medical opinion has been obtained (section 4); informal in-patients who are detained for short periods on the authority of one doctor or nurse (section 5); accused persons or offenders remanded to hospital for reports (section 35); patients admitted to a place of safety pending admission under a hospital order (section 37(4)), or after being removed by warrant from their homes (section 135) or picked up from a public place by the police (section 136); and restricted patients who have been conditionally discharged from hospital: see section 56(1). This means that Part IV, including section 63, applies to the full range of patients, whether civil or criminal, who are liable to be detained in hospital for more than 72 hours, unless remanded by a criminal court for reports.
Civil patients fall into two categories: those detained for assessment under section 2 and those detained for treatment under section 3. Under section 2, a patient may be admitted and detained for up to 28 days on the grounds (section 2(2)) that:
"(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other...
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