R (Wilkinson) v Broadmoor Hospital
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE BROOKE,LADY JUSTICE HALE |
| Judgment Date | 22 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1545 |
| Docket Number | Case No: C/2000/2267 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 2001 |
[2001] EWCA Civ 1545
Lord Justice Simon Brown
Lord Justice Brooke and
Lady Justice Hale
Case No: C/2000/2267
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(Mr Justice Jowitt)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Paul Bowen (instructed by Scott Moncrieff, Harbour & Sinclair of London NW5 1LB) for the Appellant
Mr Edward Fitzgerald QC and Miss Phillippa Kaufmann (instructed by Reid Minty of London W1K 4PS) for the First Respondent
Mr Nigel Pleming QC and Mr Timothy Mould (instructed by The Treasury Solicitor) for the Second Respondent
Miss Jenni Richards (instructed by the Department of Social Security) for The Secretary of State
The appellant is a 69 year old mental patient who has been detained at Broadmoor continuously (save only for two short periods of trial leave in lower security hospitals) for the past thirty-four years. He was convicted in October 1967 of the rape of a 9 year old girl and made subject to hospital and restriction orders under ss.60 and 65 of the Mental Health Act 1959 (now ss.37 and 41 of the Mental Health Act 1983 (the Act)).
In July 1999 the appellant came under the care of Dr Horne (the first respondent) as his responsible medical officer (RMO). It is Dr Horne's view that the appellant needs treatment by way of anti-psychotic medication. The appellant himself, however, is vigorously opposed to this and, from the outset, he has made it plain that he would physically resist it. S.63 of the Act provides:
"63. 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 ss. 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer."
Since, however, this treatment did fall within s.58 of the Act being the administration of medication more than three months after the patient was first medicated following detention (see s.58(1)(b)) s.58 applied. Sub-sections (3) and (4) of s.58 are central to this appeal:
"58(3)Subject to s.62 below [which makes provision for urgent treatment], 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 sub-section (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."
Since the appellant was plainly not consenting to the treatment – indeed, in Dr Horne's opinion was "not capable of understanding [its] nature, purpose and likely effects" and was therefore incapable of giving a valid consent – the treatment had to be certified as appropriate under s.58(3)(b) by "a registered medical practitioner appointed … by the Secretary of State" (ordinarily called a second opinion appointed doctor (SOAD)) following upon consultation by the SOAD with two other persons as specified by s.58(4). Dr Hettiaratchy (the second respondent) was the SOAD appointed in the present case and on 17 February 2000 he issued the requisite certificate, certifying that the appellant was incapacitated "but that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, it should be given". The certificate authorised a plan of treatment whereby the specified drugs would be administered on a number of occasions. Recognising that the appellant's reaction to compulsory medication would be one of great anxiety and agitation, Dr Horne and the other members of his clinical team arranged that he should have no notice of the SOAD's arrival and that the injection should be administered immediately after the certificate was obtained.
Armed with Dr Hettiaratachy's certificate, on 17 February 2000 and then again on 2 March 2000 Dr Horne treated the appellant by forcibly injecting him with anti-psychotic drugs. On each occasion the appellant fought as he had said he would and so had to be physically restrained on his bed. Dr Horne states that the appellant's "rigid and fiercely antagonistic attitude in this matter is very unusual"; ordinarily, once a SOAD's opinion is obtained, the patient "gives in to the inevitable and offers no physical resistance." Because further such treatments were imminent, the appellant then consulted his solicitors.
On 15 March 2000 the appellant obtained permission to apply both for judicial review of the treatment decisions already taken by the first and second respondents and for an injunction prohibiting any further such treatment until the hearing of the substantive challenge; his solicitors had by then obtained a report from an independent consultant psychiatrist, Dr Grounds, expressing very different views from the first and second respondents on all the important medical issues in the case, notably (i) the nature of the appellant's mental disorder, (ii) whether or not he is incapacitated, (iii) whether the proposed treatment would benefit the appellant's condition and be justified even with his consent, and (iv) whether such treatment is justified if it has to be given under restraint. It is the appellant's case that the court has no option but to decide between these competing views and reach its own conclusions on the various contested issues, not least as to whether the planned treatment should be continued.
On 18 May 2000 Jowitt J refused the appellant's application for an order that all three doctors (the first and second respondents and Dr Grounds) attend the substantive judicial review hearing for cross-examination upon their witness statements. That application was, of course, made and determined before the Human Rights Act 1998 came into force on 2 October 2000. Now before us is the appellant's interlocutory appeal against Jowitt J's order refusing cross-examination of the doctors, permission to appeal having been granted by Schiemann LJ on 2 October 2000. Although as a result of these proceedings the second respondent has long since withdrawn his authorisation for this treatment, the first respondent has made it clear that he intends to seek a further such SOAD certificate unless precluded from doing so by the outcome of this challenge. Clearly, therefore, the appeal is not academic. Rather, as will become clear, it raises a number of important questions as to the compulsory treatment of detained patients and the correct approach to be taken by the court when challenges arise in this field.
The facts of the present case are before us in the greatest profusion. Each of the three doctors (all well-qualified consultant psychiatrists) has prepared several statements and reports and the court's papers include reference to many other views about this appellant expressed down the years. Recognising, however, that it is not on any view this court's task to resolve the factual issues arising, the following brief summary of the disagreements between the doctors is, I believe, sufficient.
i. The nature of the appellant's mental disorder
The appellant is presently classified as suffering from psychopathic disorder, namely a personality disorder resulting in abnormally aggressive conduct, and that, indeed, has been the view of most of the psychiatrists who have assessed him over the years. It is Dr Horne's view, however, that the appellant's pronounced paranoid beliefs and attitudes – his conviction that all the doctors and staff at Broadmoor are involved in a conspiracy to keep him there are due not only to his personality disorder but also to an underlying psychotic mental illness. In either event Dr Horne believes that the treatment is appropriate for the appellant's paranoia.
Dr Hettiaratchy shares this view:
"Whether such paranoid ideation was associated with his primary diagnosis of personality disorder or was symptomatic of mental illness unconnected with that diagnosis, it was reasonable in my view to attempt to relieve the patient of this symptom, and would be in the patient's best interest to do so."
Given that the appellant exhibits paranoid ideation about medical and nursing staff, he regards it as "within the bounds of acceptable medical practice to treat him with anti-psychotic medication."
Dr Grounds takes a different view. He does not regard the appellant as suffering from a psychotic mental illness and has concluded that the prospects of anti-psychotic medication improving the appellant's personality characteristics are "low".
ii. The appellant's capacity to decide whether to accept this medication
Dr Horne is "entirely satisfied" that the appellant does not have capacity with regard to this decision: "it is clear that he is not able to believe...
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