B e f o r e :
THE HONOURABLE MR JUSTICE
SILBER
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Between:
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THE QUEEN ON THE APPLICATION OF
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Claimant
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- and -
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DR. SS (1)
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Defendants
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DR. AC (2)
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THE SECRETARY OF STATE FOR THE
DEPARTMENT OF HEALTH (3)
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Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair of
London NW1) for the Claimant on all occasions except on 21 December 2004 when
Mai-Ling Savage represented the Claimant
Jonathan Swift (instructed by Office
of the Solicitor to the Department of Work and Pensions and the Department of
Health) for the Third Defendant
The First and Second Defendants were not
represented nor present
Hearing dates : 6, 7 October 2004, 21 December 2004
and 17 January 2005
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Silber:
I Introduction
- In the present proceedings, the claimant, who is a
patient, initially sought to challenge decisions that he should receive
certain medical treatment against his will. Shortly before this application
was due to be heard, the first defendant, who is the claimant's responsible
medical officer ("RMO"), indicated that he did not at that time propose to
treat the claimant with this treatment without his consent. Thus, by consent,
these main claims have now been dismissed and it leaves outstanding one claim,
to which I will refer in this judgment as "the third claim" and which is the
subject of this judgment.
- The third claim is made against the Secretary of
State for Health ("the Secretary of State") asserting that section 58(3)(b) of
the Mental Health Act 1983 ("the 1983 Act") when construed with the benefit of
section 3 of the Human Rights Act 1998 ("HRA") authorises the compulsory
treatment of a patient who has capacity to refuse to consent only where it is
shown that (a) such treatment is necessary for the protection of the public
from serious harm or (b) without such treatment serious harm is likely to
result to his health, alternatively is incompatible with the requirements of
Article 3 and/or Article 8 and/or Article 14 of the European Convention on
Human Rights ("the ECHR").
- This application now raises two issues, the first of
which is whether in the unusual facts of this case, the claimant can pursue
the third claim, even though the Secretary of State contends that it is
academic. The second issue which only arises if the claimant can pursue the
third claim is whether the claimant can succeed in obtaining relief in respect
of it.
- It is common ground between the parties that the
third claim is only of academic interest in the sense that the claimant cannot
stand to benefit immediately from any decision to be made on this
claim. Mr. Paul Bowen for the claimant contends first that the third claim
arises in circumstances in which such an academic claim should be entertained
by the court and second, that in any event the claimant should succeed in the
third claim on its merits.
- Mr. Jonathan Swift for the Secretary of State
submits first, that this third claim is not only academic but that it does not
fall within any of the accepted categories for consideration by a court of an
academic claim and second, that in any event, it is misconceived as a matter
of law.
- This is a rolled-up hearing in which I am dealing
with both the permission and the substantive applications on the third claim.
I heard submissions on both applications together so that I could determine
whether permission should be granted and if so, whether substantive relief
should also be granted. It seems that permission should be granted and I will
now proceed to consider the substantive application.
- In this judgment, I will comment on the matters
raised in the following order:-
(i) the background (paragraphs 8 – 18)
(ii) an overview of the dispute (paragraphs 19 – 38)
(iii) the Academic Point issue (paragraphs 39 – 71)
(iv) the Article 3 issue (paragraphs 72 – 112)
(v) the Article 8 issue (paragraphs 113 – 147)
(vi) the International Consensus issue (paragraphs 148 –
189)
(vii) the Article 14 issue (paragraphs 190 – 217).
II The Background
- The claimant is a patient at Broadmoor Hospital,
which is a hospital providing high security psychiatric services within the
meaning of section 4 of the National Health Service Act 1977. He is detained
under sections 37 and 41 of the 1983 Act following his conviction for rape on
13 February 1995. The dispute, which led to the commencement of this
application, concerns the wish of the first defendant, who is, as I have
explained, the RMO for the claimant at Broadmoor Hospital to administer
anti-psychotic medication to the claimant, even though he does not consent to
its administration.
- There is some treatment which can be given to a
patient which does not require his consent as section 63 of the 1983 Act
provides 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.."
- The claimant, who has capacity to consent, opposed
the proposed treatment, but as it was for the administration of medication
more than three months after the claimant was first medicated following
detention, the RMO had to rely on the provisions of section 58 of the 1983 Act
(see section 58(1)(b)). Subsections (3) and (4) of section 58 of the 1983 Act
are central to the claim against the Secretary of State because they set out
the conditions, which have to be satisfied before treatment can be imposed on
any patient, as well as setting out the need for a certificate of the Second
Opinion Appointed Doctor ("SOAD"). Those provisions provide that: -
"(3) Subject to section 62 below" – [which makes provision for
urgent treatment and which is not relevant to this case] – "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 effect 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 subsection (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".
- The SOAD is the person referred to in section
58(3)(b) of the 1983 Act. In this case, the RMO sought a second opinion and so
the second defendant was appointed as the SOAD, who duly issued the requisite
certificate on 15 July 2004, certifying that the treatment in question should
be given to the claimant under the provisions of section 58(3) of the 1983
Act. It is the issue of that certificate, which has led to the present
proceedings being instituted.
- On 19 July 2004, the claimant obtained an interim
injunction from Wakerley J restraining the RMO from imposing treatment upon
the claimant without his consent pending an inter partes hearing which was
fixed for 21 July 2004. On the following day, the claimant's solicitors issued
the claim for judicial review in which first, it challenged the decisions of
the first defendant to compulsorily medicate the first defendant with
anti-psychotic medication. Second, it sought to quash the decision contained
in the SOAD certificate that anti-psychotic medication should be given to the
claimant and third, the claim was made against the Secretary of State to which
I referred in paragraph 1 above as the third claim and which is the subject of
the present judgment. As I have explained, the first and second claims have
now been dismissed by consent and it is only the third claim with which this
judgment is concerned.
- At the inter partes hearing held on 30 July 2004,
Harrison J continued the injunction granted by Wakerley J, subject to an
exception which is not relevant on this application. He also ordered the
matter to be heard as a matter of expedition as a rolled-up permission and
substantive hearing and at which the relevant doctors were to attend for
cross-examination at the hearing; this hearing was subsequently fixed to start
on 6 October 2004.
- On 1 October 2004, the solicitors for the RMO, the
first defendant, made an application for the hearing of the claimant's
application to be adjourned on the basis that the SOAD's certificate was
limited in time to a period of three months from 15 July 2004 with the result
that the RMO's treatment plan to administer medication without consent could
only lawfully be implemented within that time period.
- In support of the application for the adjournment,
the first defendant's solicitors explained that the first defendant accepted
that with the hearing date so close to the date of expiry of the certificate,
it would not be appropriate or indeed possible properly to implement the
treatment plan within that time period irrespective of whether or not the
claimant's challenge failed. In other words, the claimant's challenge to the
certificate had, in the words of the first defendant's solicitors, "been
overtaken by the imminent expiry of the certificate". It was also stated that
"having considered the matter carefully, the RMO does not propose at this time
to treat the claimant with medication without his consent".
- The matter came before me on Monday, 4 October
2004 when I was due to hear various other applications concerning the conduct
of the hearing of this claim. On that occasion, all parties sensibly agreed
that the main claim of the challenge first, to the SOAD's certificate and
second, to the commencement of treatment pursuant to it had become academic
and for that reason, the main claim against the first and second defendants
should not be pursued. It was agreed that the injunction granted originally
granted by Wakerley J on 19 July 2004 should continue and that subject to that
and the matters of costs with which I am not now concerned, the claim was to
be dismissed against the first and second defendants.
- This left outstanding the third claim against the
Secretary of State to which I referred in paragraph 1 above and which the
claimant still wishes to pursue against the Secretary of State, even though
the RMO had indicated that he did not propose at that time to treat the
claimant with the proposed medication without his consent. In any event, the
RMO is subject to the injunction to which I referred in paragraphs 12 and 13
above not to do so, although he can always apply for a variation of that
order.
- The thrust of Mr. Bowen's complaint is that, in
the words of his skeleton argument: -
"In the case of a competent patient, neither Article 8 nor
Article 3 provide an absolute bar to the compulsory treatment of a
non-consenting, competent patient .. However, as the law currently stands,
the patient's right of autonomy can be overridden on the basis only that the
doctor considers it to be in his 'best interest'. The fact that the patient
has capacity is a relevant consideration but that is all. It is this aspect
of the law as it currently stands that the claimant contends is
wrong".
III An Overview of the Dispute.
(i) A Summary of the Rival Contentions
- Mr. Bowen submits that the basis of the third
claim is that when a capable patient refuses to consent to treatment, the
court should not permit compulsory treatment of him or her unless the State in
the form of the hospital authority has established convincingly both
(i) that the treatment is medically necessary ("the medical necessity
treatment requirement") and (ii) that the treatment is necessary either to
prevent the patient causing harm to others or to protect the patient from
serious harm ("the threshold requirement"). In other words, the claimant's
case is that the right of autonomy of a capable patient means that the medical
necessity requirement is not enough in itself to justify the compulsory
treatment of a competent patient who refuses to consent to its use on him.
Thus, according to Mr. Bowen, the views of the competent non-consenting
patient must invariably override the wishes of the hospital authority
where it cannot convincingly show that both the threshold and the medical
necessity requirements have been satisfied.
- He accepts that under English law, a capable
patient, who refuses to agree to treatment, can be compelled to be treated if
the SOAD issues a certificate that in the words of section 58(3) of the 1983
Act "having regard to the likelihood of [the treatment] alleviating or
preventing a deterioration of the patient's condition, the treatment should be
given". Mr. Bowen relies on four matters to support his argument that, save
where the proposed treatment is necessary to protect other persons from harm
or that without such treatment, serious harm is likely to result to the
patient's health, a patient with capacity should be entitled to refuse
treatment to which he does not consent. These four matters are first Article 3
of the ECHR, second Article 8 of the ECHR, third an international consensus
and finally Article 14 of the ECHR.
- Mr. Bowen further contends that if his approach is
correct, it will be necessary for this court to determine whether section
58(3)(b) of the 1983 Act can be "read and given effect to" by invoking section
3 of the HRA so as to read in the threshold and medical necessity requirement
by applying the approach adopted by the House of Lords in Ghaidan v.
Godin-Mendosa [2004] 2 AC 557.
Mr. Bowen further submits if section 58(3)(b) of the 1983 Act cannot be read
in this way, it then becomes necessary to consider whether a declaration of
incompatibility can be made under section 4 of the HRA.
- Mr. Swift disagrees and contends that the law is
clear and consistent with the ECHR in that it requires the court to consider
as a very important factor the refusal of a capable patient to agree to
treatment but this refusal can be overridden because of the medical necessity,
even though there is no risk of danger to the patient or others. He relies on
the decisions of the Court of Appeal in R (Wilkinson) v. Broadmoor Special
Health Authority and Others [2002] 1 WLR 419 and of the Administrative Court in R (PS) v. Dr. G and Dr. W [2003] EWHC 2335 (Admin), to which I will hereinafter respectively refer as
"Wilkinson" and "PS". It is now appropriate to explain
the present approach of English law to a patient with capacity who refuses to
agree to treatment.
(ii) The Present Approach of English law to the Patient with Capacity,
who Refuses to Consent to Treatment
- As I have explained, the critical provision for
the purpose of this application is Section 58 of the 1983 Act, which I have
already quoted in paragraph 9 above and which in accordance with Section 3 of
the HRA, "so far as is possible to do so…. must be read and given effect in a
way which is compatible with the Convention Rights", and, in particular, those
set out in Articles 3 and 8 of the ECHR. It is important to bear in mind that:
-
(i) although section 58 of the 1983 Act is not phrased in terms
of a permission to treat "the only sensible construction is that it does
confirm permission to treat in .. two circumstances" per Hale LJ in
Wilkinson [2002] 1 WLR 419, 444 [71].
(ii) those two circumstances specified in section 58(3) of the
1983 Act are that first, the claimant had given consent to the treatment and
either his RMO or a SOAD had certified that he "is capable of understanding
its nature, purpose and likely effects". The second is that the patient has
not given his consent and a SOAD has certified that he is not capable, but
in either event a SOAD has certified that "having regard to the likelihood
of its alleviating or preventing a deterioration of his condition, the
treatment should be given". It is only the second situation that has to be
considered in this case.
(iii) "the SOAD is.. performing a statutory watchdog function on
behalf of the public, to protect detained persons who are in an especially
vulnerable position" (Wilkinson per Hale LJ at page 441 [60]). In
that capacity, the SOAD has to form his own independent opinion on the
existence of the statutory criteria (Wilkinson [71]).
(iv) "the decision to impose treatment without consent upon a
protesting patient is a potential invasion of his rights under Article 3 or
Article 8 of the Convention" (per Hale LJ in Wilkinson at page 447
[83]). Section 3 of the HRA has the effect that section 58 must therefore be
read so as to ensure compliance with Article 3 and 8.
- There are judicial comments that refusal to
consent to treatment by a capable patient does not preclude the court
permitting the treatment to be administered, even if such treatment is not
needed for the protection of the patient or others. First and very
significantly in Wilkinson, Hale LJ (as she then was) explained that: -
"I do not take the view that detained patients who have the
capacity to decide for themselves can never be treated against their will.
Our threshold of capacity is rightly a low one. It is better to keep it that
way and allow some non-consensual treatment of those who have capacity than
to set such a high threshold for capacity that many would never qualify.
Whether the criteria for non-consensual treatment of the non-capacitated
should be limited to treatment which is for their own safety (as opposed to
their health) is a difficult and complex question. Mr. Bowen tried to
persuade us that there was a developing consensus to that effect. There are
indeed indications that the issue of capacity is assuming greater importance
in the context of psychiatric treatment. But we have not yet reached the
point where it is accepted norm that detained patients who fulfil the In
Re MB [1997] 2 FLR 426 criteria for capacity can only be treated
against their will for the protection of others or for their own safety"
([80] page 446).
- The last sentence supports the view that the
threshold test does not have to be met before a capable but non-consenting
patient can be treated against his or her will but, as I will explain, Mr.
Bowen contends that this statement should not represent the law in respect of
non-consenting patients for whom treatment is not needed for their own safety
or for the protection of others. Although the certificate in Wilkinson
was issued before the HRA came into effect, the argument in the Court of
Appeal took place after it had come into force and the judgments clearly took
into account the HRA and the ECHR.
- In Wilkinson, Simon Brown LJ (as he then
was) said, with italicisation added, that: -
"If in truth this claimant has the capacity to refuse
consent to the treatment proposed here, it is difficult to suppose that he
should nevertheless be forcibly subjected to it" ([30] page
433D).
- The learned Lord Justice was not saying there that
a capacitated refusal "overrode" all other considerations, but he was stating
that it would be difficult on the facts of the Wilkinson case to
authorise it. In other words, this was a case-sensitive comment and it is very
significant that Simon Brown LJ started his comments by using the words "this
claimant" rather than the words "any claimant". In Wilkinson,
there was a risk of sudden death if the treatment was administered because of
that patient's health problems. As I understand his submissions, Mr. Bowen
understandably does not rely on Simon Brown LJ's comment.
- Subsequently, in R (N) v. M and others
[2003] 1 WLR 562 ("N"), the Court of Appeal had to consider whether a
challenge to decisions of a RMO and the SOAD to permit treatment against the
views of a patient could be successful. In that case, there was a finding at
first instance, which was not challenged in the Court of Appeal that the
claimant did not have capacity to give her consent [11]. Therefore, the Court
of Appeal's reasoning in that case is not of assistance in the present case in
which the claimant did have capacity and the issue is the importance to be
attached to a capacitated patient's refusal to consent.
- In PS, the claimant contended that the
views of a capable patient, who refused to agree to treatment, would be an
overriding factor. In giving judgment, I said that: -
".. the fact that the claimant has capacity to consent to
treatment but refuses to consent is a very important factor. There is,
however, no basis whether derived from statute or from decided cases for
concluding as [counsel for the claimant] contends to be the case, that such
objections of the claimant automatically and inevitably override all other
issues except where the interests of other people would be affected if the
medication was not administered" [123].
- Thus, where a patient with capacity refuses to
consent to treatment, this refusal can be overridden in appropriate
circumstances. Indeed, Mr. Bowen states as he explained in his skeleton
argument, that: -
"As the law currently stands, the patient's right of autonomy
can be overridden on the basis only that the doctor considers it to be in
'his best interests'. The fact that the patient has capacity is a relevant
consideration but that is all".
- The present state of our law is that the views of
the patient with capacity, who refuses treatment is "a very important factor"
and it would need an especially powerful case from the RMO to override it. As
I have already explained, Mr. Bowen submits that the law has to be
reconsidered in the light of Articles 3, 8 and 14 of the ECHR as well as the
growing international consensus. He points out that the submission that he is
now making was not advanced in the PS case so that the PS case
is not binding or authoritive against the position that he is putting forward
in the present case. Alternatively, he says that the decision in PS
should not be followed because it fulfils the test of being "clearly
wrong" so that it should not be followed (see R v. Manchester Coroner ex p
Tal [1985] QB 67). I propose to reconsider my comments in the light of the
helpful and thoughtful arguments adduced by counsel in the present case, which
were more far-reaching than those advanced in PS.
IV The Issues
- The five issues which are raised on this
application are: -
(a) whether the issues in the third claim are academic with the
result that the claimant should not be entitled to pursue them ("The
Academic Point Issue");
(b) if the claimant is entitled to pursue the third claim
against the Secretary of State in spite of its academic nature, whether it
should succeed substantively on the Article 3 point ("The Article 3
Issue");
(c) if the claimant is entitled to pursue the third claim
against the Secretary of State in spite of its academic nature, whether it
should succeed substantively on the Article 8 point ("The Article 8
Issue");
(d) if the claimant is entitled to pursue the third claim
against the Secretary of State in spite of its academic nature, whether it
should succeed substantively on the basis of an international consensus
supporting the claimant's case ("The International Consensus
Issue")
(e) if the claimant is entitled to pursue the third claim
against the Secretary of State in spite of its academic nature, whether it
should succeed substantively on the Article 14 point ("The Article 14
Issue").
- Before I turn to the issues, I should add that I
was left in no doubt at the end of the hearing that the parties did not
require my decision with any degree of urgency because the SOAD's certificate
under challenge would shortly cease to have any effective force. Thus, if the
RMO wished subsequently to administer the treatment, there would have to be a
new SOAD certificate and any challenge to it would depend on fresh and updated
evidence. Significantly, the RMO had also indicated that he had no current
intention of treating the claimant without his consent and he was subject to
an injunction not to do so.
- Thus, I gave priority to writing other judgments
until early December 2004, when the claimant's solicitor wrote to state my
judgment would be "an important factor" at a forthcoming Mental Health Review
Tribunal hearing to be held on 18 January 2005 for reasons, which I am bound
to say that I had difficulty in comprehending. This was an important assertion
in the light of the controversy on whether this claim was academic and I could
not complete my judgment until this matter had been considered further. Thus
it seemed desirable to hold a further hearing in December but Mr. Bowen was
abroad and I only received his comments earlier this month.
- Mr. Bowen explained on his return that my decision
"would not directly affect the Tribunal's decision". In order to ensure that
the tribunal did not have to speculate about my decision, I informed the
parties of my decision to dismiss the claim on 12 January 2005 and I formally
announced this in court on 17 January 2005. Another reason why I could not
finalise my judgment earlier was that I had difficulties in ascertaining the
facts against which I should consider this claim.
- Unlike many of the cases in which the courts have
been prepared to consider an academic issue, there is a significant
controversy on the precise material facts, which I should assume to be correct
for the purpose of resolving the third issue. This has been a source of
difficulties for me. During the hearing in October 2004, I asked counsel to
agree the assumptions on which I should determine the claim if I held that it
was not an academic claim. Difficulties arose in reaching an agreement and
there followed an exchange of e-mails which led to some measure of agreement.
When I came to writing the judgment, I realized that agreement still had not
been reached on some significant matters and so I circulated my understanding
of what the assumptions should be. Mr. Swift gave me his comments in December
2004 but because of his absence abroad, Mr. Bowen was only able to respond
earlier this month.
- I set out in Appendix I to this judgment a copy of
the document prepared by the claimant setting out the assumptions on the
question of whether the claimant contends that the third issue should be
resolved if, but only if, I reject Mr. Swift's submission that this court
should not consider the third issue because it is academic. I have also noted
the Secretary of State's reservations to these assumptions. I will return to
consider the difficulties caused by the lack of agreement on the assumptions
on which I should consider the claim when I examine the academic point issue
to which I will shortly turn. At this stage I stress that the difficulties in
determining the basis on which I should consider the claim are very
unfortunate and they have led to a great deal of the time of counsel and my
time being spent in ascertaining those assumptions.
- It also became clear to me during the course of
the hearing and other similar cases that in this case and in other cases in
which a SOAD's certificate has been obtained that difficulties arise because
the certificate only lasts for three months, but under the present
arrangements, the challenge in the courts to the certificate is invariably not
completed in time for the treatment to be administered within the three month
period. I have received helpful comments from solicitors from the parties, the
lead judge in the Administrative Court and the Head of the Administrative
Court Office, and I make suggestions on how to resolve this problem in
Appendix II to this judgment.
V The Academic Point Issue
(i) The Rival Submissions
- The Secretary of State contends that the court
should not consider the third claim because it is academic in the sense that
it will have no impact on the claimant because the SOAD certificate under
challenge has expired. As I have explained, no attempt is currently being made
to administer any treatment to the claimant against his will and no request
has been made to the claimant to agree to any treatment to which he has
objected. Thus, section 58(3)(b) of the 1983 Act is not being invoked. The
claimant, on the other hand, contends that the court should entertain the
present dispute, even though there is no threat at present that any treatment
will be administered to the claimant against his wishes.
- I had understood that during his detailed oral
submissions, Mr. Bowen accepted that the starting point for considering
whether the court should permit an academic application in a public law case
to be pursued is the statement of Lord Slynn of Hadley in R v. Secretary of
State for the Home Department ex parte Salem [1999] 1 AC 450 in
a speech with which other members of the Appellate Committee agreed when he
explained that: -
".. I accept, as both counsel agree, that in a cause where there
is an issue involving a public authority as to questions of public law, your
Lordships have a discretion to hear the appeal, even if by the time the
appeal reaches the House, there is no longer a lis to be decided which will
directly effect the rights and obligations of a party's inter se .. the
discretion to hear disputes, even in the area of public law, must however,
be exercised with caution and appeals which are academic between the parties
should not be heard unless there is good reason in the public interest for
doing so, as for example (but only by way of example) when a discrete point
of statutory construction arises which does not involve detailed
consideration of facts and where a large number of similar cases exists, or
are anticipated so that the issue will most likely need to be resolved in
the near future" (at pages 456G-457B).
- When the draft of this judgment was circulated,
Mr. Bowen stated that he did not accept that Salem was the starting
point. Nevertheless, I consider that it is the starting point expresses as it
does the correct approach to claims in which an academic point is raised. Mr.
Bowen accepts correctly in my view that this statement shows that there is a
presumption that the courts will not hear academic applications in public law
cases, unless there is a good reason in the public interest to hear the
application. He nevertheless contends that where declarations of
incompatibility are sought, the presumption should operate the other way so
that once the incompatibility is identified, the declaration should be refused
only if there is a good reason in the public interest to do so. He was unable
to point to any authority to support that contention, which assumes that the
court should first ascertain if there is incompatibility and then
determine if there is a public interest in pursuing it. Mr. Bowen also
contended that the claimant was a victim for the purposes of section 7 of the
HRA and Article 34 of the ECHR and has standing for the purposes of section
31(2) of the Supreme Court Act and so he should be permitted to pursue the
third claim.
(ii) The Correct Approach
- I am unable to agree with Mr. Bowen's contention
that where declarations of incompatibility are sought or incompatibility is
identified, a different principle applies from that set out in Salem.
There is no authority or basis for contending that academic claims for
declarations of incompatibility should have to be treated differently in this
respect than other claims. It must not be forgotten that Lord Rodger of
Earlsferry explained recently in R (on the application of Rusbridger) v.
Attorney General [2004] 1 AC 357 at
377 [58], that "it is not the function of the courts to keep the statute book
up to date". It follows that the courts should not normally regard it as their
duty to grant relief in the absence of disputes affecting the parties before
them. In the same case, Lord Hutton stated that:-
"it is not the function of the courts to decide hypothetical
questions which do not impact on the parties before them" (page 371E [35]).
- Lord Hutton expressly adopted at page 371 [35] the
statement of Lord Justice-Clerk (Thomson) in Macnaughton v. Macnaughton's
Trustees [1953] SC 387, 392: -
"Our courts have consistently acted on the view that it is their
function in the ordinary run of contentious litigation to decide only live,
practical questions, and that they have no concern with hypothetical,
premature or academic questions, nor do they exist to advise litigants as to
the policy which they should adopt in the ordering of their affairs. The
courts are neither a debating club nor an advisory bureau. Just what is a
live practical question is not always easy to decide and must, in the long
run, turn on the circumstances of the particular case".
- Lord Scott of Foscote also pointed out in
Rusbridger that: -
"the valuable time for the courts should be spent on real
issues" (page 373E [45]).
- It is significant that those comments in
Rusbridger were made in a case in which the claimant sought first, a
declaration on how section 3 of the Treason Felony Act 1848 should be
construed in the light of section 3 of the HRA and second, as an alternative,
a declaration of incompatibility. Similar relief is being claimed in the
present case. In Rusbridger, Lord Steyn said that any suggestion that
section 3 "could survive scrutiny under the [HRA] is unreal" (page 369 [28]).
The courts rejected the claims in that case on the grounds that no purpose
would be served by requiring the courts to accommodate unnecessary litigation.
Nothing was said in that case to support Mr. Bowen's contention that the
presumptions in favour of not allowing public law claims to be pursued should
be reversed where declarations of incompatibility are sought or
incompatibility is identified, even though Salem was not referred to.
- The comments in the speeches in Rusbridger,
which I have quoted, suggest a much greater reluctance to consider academic
points than was indicated in Salem. In Rusbridger, the Appellate
Committee was concerned with the issue of when it would be proper for a member
of the public to bring proceedings against the Crown for a declaration that
certain proposed conduct is lawful. I am prepared to assume that the Salem
principles still apply bearing in mind that a claim that a statutory
provision is incompatible with the ECHR might in the appropriate cases mean in
Lord Slynn's words in Salem mean that "there is a good reason in the
public interest" for considering an academic issue.
- It therefore becomes necessary to consider how the
Salem principles affect the present application. Mr. Bowen points out
correctly that there have been a number of cases in which the courts have been
content to hear cases where the dispute would be academic. Thus, for example
in R (on the application of C) v. London South and West Region Mental
Health Review Tribunal [2002] 1 WLR 176, the Court of Appeal considered that it was appropriate to consider
whether Article 5 of the ECHR had been infringed when there was an invariable
eight week period between first, the time when the application was made by a
patient detained under the 1983 Act for his or her discharge and second, the
hearing of his discharge application. Clearly, that was a case where, in the
words of Lord Slynn in Salem "a large number of similar cases exist or
are anticipated". Similar reasoning explains why the Court of Appeal heard an
appeal, which had become academic, concerning the continuing detention of a
mental patient where his release had been ordered on conditions, with which
the health authority was later unable to comply (R (on the application of
K) v. Camden and Islington Health Authority [2002] QB 198). More recently the Court of Appeal in R (on the application of MH)
v. Secretary of State for the Department of Health ([2004] EWCA Civ 1690) considered it appropriate to hear an academic issue concerning the
compatibility of Article 5 of the ECHR with various arrangements made by the
1983 Act but in that case, there was no dispute concerning the factual basis
on which the claim should be considered.
- Incidentally, it is not apparent that in any of
these cases or in any of the other cases relied on by Mr. Bowen where academic
issues were resolved by the courts that it was contended or determined that
the Salem principles needed any modification or, perhaps most
significantly, that there was any serious dispute between the parties about
whether the particular academic case should be heard concerning the factual
basis on which the case should be considered.
(iii) Discussion
- In my view, there are five factors, which
individually or cumulatively indicate that the third claim should not be heard
and I mention them in no particular order of importance.
- First, there is a critically important factual
dispute between the claimant and his RMO and the SOAD, which shows that the
third claim is best considered in a case in which the facts are not in
dispute. It seems that in many if not all the cases in which the courts have
decided to hear academic claims, there has been neither a factual dispute
between the parties nor any disputed facts, which would require oral evidence.
A decision in the claimant's favour on the third claim is dependent on the
claimant showing that there is no risk of the claimant causing harm to himself
or others, which is what Mr. Bowen calls "the threshold requirement". In this
case, there is a serious dispute on this crucial issue, although it is true
that the claimant contends the proposed treatment is not necessary either to
prevent the patient causing harm to others or to protect the patient from
serious harm so that in other words the threshold requirement has not been
satisfied.
- The RMO and the SOAD disagree. In his witness
statement, the RMO states of the claimant that "sadly, the continuing
deterioration in his condition has left the clinical team with no choice but
to override his refusal in the interests of his health, safety and protection
of others" (paragraph 19). Later he says, "it has … now become imperative for
the sake of [the claimant's] own health and safety and for other's
protection, to give him the prescribed medication" (paragraph 22).
- Simon Brown LJ said in Wilkinson [2002] WLR 419, 422 "courts, after all, are very likely to pay very particular regard to
the views held by those specifically charged with the patient's care and
well-being" [31]. So the RMO's view in this case might well stand a good
chance of being accepted, especially as in this case the SOAD takes a similar
view because he said in paragraph 23 of his witness statement that: -
"Whilst [the claimant] is not actively ill he is beginning to
deteriorate and it was considered appropriate to institute treatment to
prevent any further deterioration. This would be both in his interests and
with a view to protection of himself and others. It would be likely, should
he further deteriorate, that his judgement would become seriously impaired
and he would quite likely be involved in altercations with other residents,
which may cause physical harm to him and/or others. The benefits of
treatment to him, therefore, would be to hopefully return him to some
semblance of normality".
- The SOAD summarised his position in paragraph 29
of his witness statement when he said of the claimant: -
"He is beginning to show signs of decompensation and it is my
opinion that [the claimant] deserves the opportunity of being treated with
medication to prevent any worsening of his illness, to prevent any further
psychiatric damage or psychological damage to himself and in the interests
of his own health and welfare, as well as that of other people. It was in
the light of this that I gave a considered independent opinion that it would
be appropriate to offer him treatment".
- It seems clear that there is a serious factual
dispute on this fundamental issue in this case and in my view, it would be
wrong to resolve the third issue, which is the only issue left for
determination in this case on a factual basis, which is so strongly disputed.
It is true that Assumption 7 provides that:-
"The RMO and SOAD are not satisfied that … (ii) the proposed
treatment is necessary to protect other persons from harm or that without
such treatment, serious harm is likely to result to the claimant's
health".
- The Secretary of State only agreed to that
assumption on the basis that "this is an assumption and not any form of
concession as to the actual position that applies to the claimant". It follows
that any decision on the third issue on this assumption in favour of the
claimant would not be determinative of the issues between the parties, as the
RMO, the SOAD and the Secretary of State would contend that it was reached on
a false factual basis.
- Second, the third claim is not a case where in
Lord Slynn's words in Salem a "large number of similar cases exists or
are anticipated so that the issue [in the third claim] will need to be
resolved in the near future"; that means that this case does not fall within
one of the examples given in Salem in which a court should hear an
academic case. According to my information obtained from the Administrative
Court Office, this is only the fourth case in the period of more than four
years since the HRA came into force in October 2000 in which there has been a
challenge to a SOAD's certificate.
- In the three previous cases, the issue raised in
the third claim did not arise. In R (on the application of Wooder) v.
Feggetter [2003] QB 219, the Court of Appeal had to consider the adequacy of the reasons given
by the SOAD. In R (N) v. M and Others [2003] 1 WLR 562 (which I will
hereafter refer to as "N"), it was found at first instance that the
claimant did not have capacity to give her consent and this was not challenged
on appeal (page 567 [11]) while in PS there were findings that the
claimant in that case could not function properly when he was under stress and
second, more significantly that he then behaved bizarrely and unpredictably
thereby making him a potentially dangerous individual to himself and to others
and particularly to those known to him [125].
- Richard Jones explains in the Mental Health
Manual ((2004) – 9th Edition) ("Jones") that according to
paragraph 10.34 of the Mental Health Act Commission's Tenth Biennial Report
2001-2003, there were 9,400 requests for second opinions received by the
Commission from 2002 to 2003, but only three per cent of these requests led to
"a significant change in the treatment of the patient" (MHAC Annual Report
2002-2003 (page 3). This limited number of occasions on which the SOAD's
certificates have been challenged suggests that the patient has not had
capacity in the vast majority of cases in which the SOAD's certificate has
been obtained.
- These facts indicate that unlike the position in
the cases of C, K and MH to which I have referred in paragraph
47 above and in which the decisions of the court would be of great value in
many actual or anticipated cases, there is perhaps surprisingly no realistic
likelihood of a large number of similar cases or indeed any similar case
existing or being anticipated in which the third issue would need to be
resolved. I repeat what I explained in paragraphs 50 to 53 above that there is
a major dispute between the parties about the correctness of Assumption 7.
- I reach that decision regardless of the fact that
the Government has now introduced a Mental Health Bill, which I am told by Mr.
Bowen includes different provisions for dealing with the authorisation of
medical treatment to patients. If anything, that factor militates against the
notion that it is important to have a test case on the third issue claim.
- Third, there might soon be a ruling from the
Strasbourg Court on the issues raised in the third claim and such a decision
would obviously be a much more authoritative decision than any order which I
might make. Mr. Bowen told me that in Wilkinson v. United Kingdom
(Application no. 14659/02) which is the follow-up to the Wilkinson
case to which I referred in paragraph 22 above, the United Kingdom
Government has been asked by the Strasbourg Court for its observations on
exactly the same issues as are contained in the third claim and a response was
duly lodged in December 2003. It is not certain that the Strasbourg Court will
pursue this point or that if it does, that a judgment on it will be given
speedily, but there must be some prospect that the Strasbourg Court will
resolve this issue. That factor suggests that the English court does not now
need to resolve this matter.
- A. Fourth, a decision on the third issue in the
present proceedings would not be of any immediate or likely value to the
claimant for two reasons. First, there is no imminent risk of infringement of
any of the rights of the claimant that justify a determination of the issue in
the present case. The RMO has, as I have explained, indicated that he does not
presently intend to administer any treatment to the claimant without his
consent. It is significant that the RMO did not seek and has not sought to
obtain a further certificate from the SOAD since the last certificate expired
more than three months ago so as to permit any further treatment to which the
claimant does not agree. As I will explain in the postscript to this judgment,
I received an e-mail from the claimant's counsel about a week after I
circulated a draft of this judgment in which he enclosed a letter from the
Chief Executive of the NHS Trust, which manages the hospital in which the
claimants is being treated. According to the claimant's counsel, this letter
"supports the claimant's position that he is at risk of being subjected to
future compulsory treatment and that this claim is not 'academic' for this
reason". For the reasons set out in the postscript to this judgment, I do not
consider that this letter shows this, as it gives no likelihood of any
treatment being given to the claimant in the future. Second, even if the RMO
did now wish to administer treatment to the claimant against his wishes, it is
by no means clear that the RMO or the SOAD could not meet what Mr. Bowen
describes as "the threshold requirement" by showing that the treatment was
necessary either to prevent the patient causing harm to others or to protect
the patient from serious harm.
- B. I should add that about two months after the
hearing, it was suggested by the claimant's solicitors that my decision would
be "an important factor" in respect of the claimant's forthcoming application
to the Mental Health Review Tribunal. I was not convinced that there was any
force in this point, which was surprisingly not raised during the hearing but
which was brought up for the first time two months later. The point could have
been significant on the academic issue and so a hearing was held on 21
December 2004 at which Mr. Swift explained why my decision would not be of any
relevance to the Tribunal. Subsequently, Mr. Bowen (who had been taking a
well-deserved holiday in mid-December 2004 and was not present at the hearing)
accepted that this decision on this application "would not directly affect the
Tribunal's decision". I was not satisfied that my decision would have any
effect on the Tribunal's decision.
- C. I should add that I doubt that the claimant is
a "victim" under the HRA and the Convention as contended by the claimant,
because the RMO did not propose at the time of the application to treat the
claimant with medication and thus it does not, in the words of section 7(1) of
the HRA "propose(s) to act in a way 'which is made unlawful' by the HRA". In
addition, the injunction referred to in paragraphs 12 and 13 above precluded
the RMO from treating the claimant against his consent. I am prepared to
assume that the claimant is a "victim" because Mr. Swift does not argue to the
contrary but this does not enable the third claim to be brought because it
would have no practical value for the reasons, which are set out in paragraph
67A below.
- Fifth, the approach that is required by section 58
is a highly fact-sensitive one. It is apparent from the reasoning of the Court
of Appeal in N and in other cases that the decisions were reached in
the light of the background of a number of facts, which had been determined
after cross-examination of witnesses. Indeed challenges to certificates of the
SOAD form an exception to the general rule that cross-examination is not
permissible on judicial review applications as was explained in
Wilkinson and N. There is also a major factual dispute between
the parties about whether the treatment proposed was necessary to protect the
claimant and others from harm (see paragraphs 50 – 55 above).
- In order to decide if the views of the RMO and the
SOAD should be overridden by the views of a capable patient, it may be
relevant to take into account very many matters, such as
i. the nature and extent of the patient's objections. He might
be vehemently opposed to the treatment or he might be somebody, who is on
balance opposed but who would not be troubled if he had to take it. This
could be important because, as I will explain in paragraphs 92 to 102
below, the threshold for engaging Article 3 depends on the victim
suffering a high degree of suffering and that depends on the effect of the
treatment on the patient;
ii. the level of his understanding. I will explain in
paragraphs 85 to 88 below that the present low threshold for capacity is
low as explained by Hale LJ in the passage from Wilkinson referred to in
paragraph 22 above. A patient might be regarded as having capacity not
only when he understands every aspect of the proposed treatment and to
properly weigh every aspect of it as part of his process of arriving at a
decision but also when, as Lord Eassie describes, he lacks insight or
understanding of his problems (see paragraph 85 below). These differences
might be important;
iii. the basis on which the patient has been detained. It
might be for treatment. A patient may be ordered to be admitted, as the
claimant in this case was, pursuant to section 37 of the 1983 Act and one
of the grounds for such an order might be that the court is satisfied on
the evidence of the registered medical practitioner that among other
things,
"The mental disorder for which the offender is suffering is
of a nature or degree which makes it appropriate for him to be detained
in a hospital for medical treatment and in the case of psychopathic
disorder or mental impairment, that such treatment is likely to
alleviate or prevent a deterioration of his condition" (section 37(2)
(a) (i) of the 1983 Act).
iv. the extent to which the patient might be assisted by the
proposed treatment and the side effects on him. There is a relevant and
significant difference between, for example on the one hand, treatment,
which has no side effects, which would enable a patient to be discharged
so as to lead a fairly normal life in the community, and on the other
hand, treatment with disturbing side effects and with a low prospect of
success.
- Indeed, it is noteworthy that in this case, the
claimant agreed to an order that the doctors should be cross-examined. I
therefore agree with Mr. Swift that if there is to be a serious reappraisal of
the issues raised by the third claim, such an exercise should only take place
after a hearing in which the court has had the opportunity to explore the
possible consequences of upholding or rejecting the third claim in the context
of a live case. The court would then have obtained a full appreciation of the
specific factual situation with the benefit, if necessary of live evidence
from expert witnesses. This point may have a little greater force because as
is accepted by Mr. Bowen for reasons which appear in paragraphs 24 and 29
above, his core submission concerning the third claim is contrary to existing
authority, both in the Court of Appeal and at first instance. That suggests
that if the authorities are to be reconsidered, this should be in the context
of a fully contested case.
- When I circulated this judgment in draft, Mr.
Bowen stated that I had not dealt expressly with his submission that the
claimant should be allowed to pursue the third claim on the basis of Lord
Steyn's statement in Rusbridger [21] – [28] that four key factors fall
to be considered in deciding if a claim can be pursued, namely (a) whether
there is a genuine dispute about the subject matter, (b) whether the
resolution of the issue is fact-sensitive, (c) whether there is a cogent
public or individual interest which could be advanced by the grant of a
declaration and (d) whether resolution of the issue would serve any purpose. I
had considered that point before reaching my decision and indeed, the answer
to that submission is to be found in the reasons to which I have referred.
Although there is a genuine dispute about the subject matter, the claimant
runs into difficulties on the other points for the reasons set out in the last
two paragraphs. The dispute is fact-sensitive and Lord Steyn considered this a
factor of "great importance" [23]. In the light of the matters set out in
paragraphs 56 – 63 above, there is no cogent public or individual interest
which would be advanced by the grant of a declaration so that I doubt if a
resolution of the third issue would serve any purpose.
- All those factors indicate that I should not
permit the third claim to be pursued because of its academic nature, and I
decline to do so. When I circulated this judgment in draft, Mr. Bowen also
contended that I had not dealt with his submission that because the claimant
was a "victim" under the HRA and had standing, the court should hear the third
claim. I had considered that point and had concluded that the factors set out
above provide an answer to the claimant's point that he should be permitted to
pursue the third claim because no practical purpose would be served by
determining that claim for the reasons, which I have sought to explain as
leading to the conclusion that this claim cannot be pursued. In other words, a
decision on the third claim would have no practical value, bearing in mind,
for the reasons, which I have sought to explain, first that the claimant will
not benefit from any decision on the present application, second that there is
a dispute on the crucial facts, which would have to be determined before the
third claim could be resolved and third that there is a possibility of a
judgment from the Strasbourg Court on this issue in a case awaiting to be
heard by it
- If I had been in any doubt about this, I would
have been persuaded to come to the same conclusion that this claim should not
be pursued because of the new approach to civil litigation embodied in the
Civil Procedure Rules 1998 ("CPR"). The "overriding objective" of those rules
is to enable the court to "deal with cases justly" (CPR Part I 1(1)). The CPR
explains that dealing with a case "justly" includes, as far as practicable,
among other things,
"allotting to it an appropriate share of the court's resources
while taking into account the need to allot resources to other cases" (CPR
Part I 1.1(2)(e)).68.Although the CPR is primarily concerned with private
law cases, in my mind it shows that a factor, which a court should take into
account in determining whether a party should be entitled to pursue an
academic issue, is, "the need to allot resources to other cases". As I have
explained, this point was echoed in a public law case by Lord Scott of
Foscote, who pointed out in Rusbridger that, "the valuable time for
the courts should be spent on real issues" (page 373E [45]).
- As is widely known, the Administrative Court at
present is inundated not only with applications for judicial review, but also
with statutory review applications and cases arising in its recently acquired
appellate jurisdiction in respect of the medical and dental professions. So
there is at the present time a great demand for judicial time in the
Administrative Court with many cases relating as they do to social services
requiring urgent final and interim relief. The demands on judicial time are
compounded by the fact that all applications for judicial review have to be
considered on paper by a judge in order to ascertain if permission should be
given to pursue them. In all the circumstances, it would not be in keeping
with the overriding objectives to give this case the resources, which could
and should have been allocated to other cases where the parties would actually
be affected by the decision and in respect of which delay would be
undesirable.
- I should add that I have assumed until now that
the correct approach on this issue is that stated in Salem but the test
on whether courts should consider academic issues which was more recently
advocated in Rusbridger and which is set out in paragraphs 42 to 44
above makes it more difficult for the courts to hear academic issues which "do
not impact on the parties before them" and which are not "real issues". Thus
the claimant would have been unable to pursue his third claim if the
Rusbridger approach has to be adopted. It is unnecessary to decide on
this application if the Rusbridger approach is limited to the type of
unusual facts, which arose in that case or if it is applicable more generally.
- This means that this application must be
dismissed. I did hear submissions on the substantive points because they
overlapped with arguments on the academic point issue; the debate on the
substantive issues helped to convince me that the third claim should not be
pursued. As I have heard argument on those other substantive issues, I propose
now to comment on them.
VI. THE ARTICLE 3 ISSUE
(i) The Claimant's Criticism of the Present Domestic Law Approach in the
Light of Articles 3 and 8 of the ECHR
- At the forefront of Mr. Bowen's submissions on
this point is his contention that English law permits all people, who are not
patients but who have capacity, to refuse treatment and that refusal cannot be
overridden by doctors except in very limited cases, such as emergencies. So he
says that a mental patient with capacity should be in the same position.
- Mr. Bowen points out that first, the rights to
integrity of the person and the right to self-determination are fundamental
human rights (Airedale NHS Trust v Bland [1993] AC 789, per Lord Goff
at 863 – 864) and second, that medical treatment is always an
interference with the right to integrity of the person so that it constitutes
an unlawful assault and battery in the absence of some lawful justification
for it (Re. F [1990] 2 AC 1, 73-74). At common law, consent provides
lawful justification for medical treatment, but only if the patient has
capacity to consent. The right to give consent or to refuse to such
treatment is, what Mr. Bowen calls the "right of autonomy".
- A capable person's refusal to consent must
be respected, however drastic the consequences for the individual concerned.
In Secretary of State v. Robb [1995] Fam. 127, Thorpe J accepted as
correct the statement of principle that: -
"Secondly, the principle of self-determination requires that
respect must be given to the wishes of the patient. So that if an adult of
sound mind refuses, however unreasonably, to consent to treatment or care by
which his life would or might be prolonged the doctors responsible for his
care must give effect to his wishes, even though they do not consider it to
be in his best interest to do so" (130C-D).
- Mr. Bowen's submission is that capacity is, then,
the key to the existence of possibly the most fundamental of individual
rights, the right of autonomy or self-determination and to the exercise
of the right of inviolability of the person. The importance that the
common law places on capacity is further illustrated by the fact that there is
a presumption in favour of capacity: see Re MB [1997] 2 FLR 426, 436,
which is a principle to which I will have to return.
- The thrust of the claimant's case is that the
position of people other than patients at common law is therefore in striking
contrast to that of patients with capacity under the 1983 Act. Treatment of a
competent patient against his or her will is not lawful, even where the
consequences of non-treatment are that the patient or the child of a pregnant
woman would die. As Judge LJ explained in St. George's Healthcare NHS Trust
v S [1999] Fam 26, 46 – 47:-
"That said, however, how can a forced invasion of a competent
adult's body against her will even for the most laudable of motives (the
preservation of life) be ordered without irremediably damaging the principle
of self-determination? When human life is at stake the pressure to provide
an affirmative answer authorising unwanted medical intervention is very
powerful. Nevertheless the autonomy of each individual requires continuing
protection even, perhaps particularly, when the motive for interfering with
it is readily understandable, and indeed to may would appear commendable:
hence the importance of remembering Lord Reid's warning against making 'even
minor concessions'".
- This leads Mr. Bowen to stress that at common law,
even the most fundamental of state interests – the preservation of the unborn
child – is not considered sufficiently important to outweigh the principle of
autonomy. This position he submits is in striking contrast to the position of
a capable patient who is detained under the Act and who does not consent to
treatment.
- Mr. Bowen then contends that Articles 3 and 8 of
the ECHR and the common law protect the right of autonomy of all citizens
including patients with capacity. His complaints are that section 58, as
currently interpreted by Hale LJ in Wilkinson and by me in PS,
effectively extinguish the right of autonomy of detained, competent patients.
He accepts that compulsory treatment of a competent patient under the 1983 Act
may be justified in exceptional circumstances where the right of autonomy is
outweighed by the more compelling state interest of what he calls the
threshold requirement, which arises where the treatment is necessary to
prevent harm to others (as at common law) or in order to protect the patient
from serious harm (which is not justified at common law). Mr. Bowen's case is
that no further interference with the risk of autonomy should be justified
because to permit compulsory treatment of a competent patient in any other
circumstances is an unjustifiable and therefore unlawful interference with the
patient's right of autonomy. He submits that this is contrary to Article 3
where the proposed treatment reaches the necessary level of severity and
contrary to Article 8 in all cases where treatment is given without consent.
- Mr. Bowen makes the additional point that in order
to ensure compliance with the principle of legality inherent in Articles 3 and
8, the circumstances in which the right of autonomy may be overridden must be
expressly and clearly defined in the law. He contends that the legal position
of a capable patient, who refuses medical treatment is not now clear. I am
unable to accept that submission, which fails to take account of first, what
was said by Hale LJ in Wilkinson and second in PS, which is
inconsistent with what Mr. Bowen himself accepts to be the law as I explained
in paragraph 18 above.
- Mr. Swift contends that the provisions of section
58(3)(b) of the 1983 Act comply with Article 3 and of course that section has
to be read in the light of section 3 of the HRA so as to ensure compliance
with Article 3. He also relies on Hale LJ's statements in Wilkinson that "it
is better to keep [the threshold of capacity as low] and allow some
non-consensual treatment of those who have capacity than to set such a high
threshold for capacity that many would never qualify" ([80] at page 446).
This, Hale LJ explained, means that non-consensual treatment of those with
capacity has to be permitted even where it is not necessary for the protection
of others or for their own safety.
- In this case, the fourth assumption is that "the
claimant has capacity to decide if he wishes to have the treatment proposed by
the RMO but he does not wish to have the treatment". That still raises the
issue about the claimant's level of understanding because if it is low
or defective, this would, as Hale LJ suggested, mean that it would be easier
to justify allowing the RMO and the SOAD to override the claimant's refusal to
agree to the treatment. The basis of Mr. Bowen's submissions is that a
patient, who is deemed to have capacity, has the same relevant powers of,
among other things, understanding facts and making a balanced judgment on
whether to agree to accept proposed medical treatment as any person, who is
not a patient. It is that assumption, which requires investigation because if
a patient does not need to have the same intellectual powers as a non-patient
in order to be regarded as having capacity, then I would have difficulties in
accepting Mr. Bowen's submissions.
- Thus, it is appropriate to consider the
submissions of Mr. Bowen by first ascertaining whether a patient, who is
deemed to have capacity, has the same relevant powers of, among other things,
understanding facts and making a balanced judgment on whether to agree to
accept proposed medical treatment as any person, who is not a patient and then
secondly determining what level of ill-treatment is required before a
patient's rights under Article 3 are infringed so as to determine if, in the
words of the issue for determination in paragraph 10(1) in the assumed facts,
"the proposed ECHR treatment would amount to a breach of Article 3, merely
because the patient had capacity to consent but did not consent".
(ii) Has the patient, who is deemed to have capacity, the same relevant
powers of, among other things, understanding facts and making a balanced
judgment on whether to agree to accept proposed medical treatment as any
person, who is not a patient?
- The basis of Mr. Bowen's submissions is that
(subject to exceptions like emergencies) those with capacity are well able to
make decisions about what treatment they should have. His submission assumes
that the patient, who is deemed to have capacity has the same relevant powers
of, among other things, understanding facts and making a balanced judgment on
whether to agree to medical treatment as any other person, who is not a
patient. This assumption is not supported by Hale LJ's comments that the
threshold for capacity for a mental patient is low. Simon Brown LJ however,
said in Wilkinson [29] that "the precise equivalence under section
58(3)(b) between incompetent patients and competent but non-consenting
patients seems to me increasingly difficult to justify". It is therefore
appropriate to analyse Mr. Bowen's assumption and then to consider whether
this is correct and what has to be established before a patient can be
regarded as having capacity to consent because if there is a high threshold
for capacity, then a refusal by a competent patient has even greater potency
and merits greater respect than if the threshold was lower.
- The present test for capacity was explained in
Re MB (Medical Treatment) [1997] 2 FLR 426 by Butler-Sloss LJ giving
the judgment of the Court of Appeal, which stated that: -
"…(4) A person lacks capacity if some impairment or disturbance
of mental functioning renders the person unable to make a decision whether
to consent to or to refuse treatment. That inability to make a decision will
occur when:
(a) the patient is unable to comprehend and retain the
information, which is material to the decision, especially as to the likely
consequences of having or not having the treatment in question;
(b) the patient is unable to use the information and weigh it in
the balance as part of the process of arriving at the decision. If, as
Thorpe J observed in Re C, a compulsive disorder or phobia from which
the patient suffers stifles belief in the information presented to her, then
the decision may not be a true one. As Lord Cockburn CJ put it in Banks
v. Goodfellow (1870) LR 5 QB 549, 569:
"… one object may be so forced upon the attention of the invalid
as to shut out all others that might require consideration".
(5) The "temporary factors" mentioned by Lord Donaldson MR in
Re T … (confusion, shock, fatigue, pain or drugs) may completely
erode capacity but those concerned must be satisfied that such factors are
operating to such a degree that the ability to decide is absent.
(6) Another such influence may be panic induced by fear. Again,
careful scrutiny of the evidence is necessary because fear of an operation
may be a rational reason for refusal to undergo it. Fear may also, however,
paralyse the will and thus destroy the capacity to make a decision" (page
437).
- The authorities indicate that the threshold for
capacity is low. First as Mr. Swift pointed out, when Lord Eassie was sitting
in the Court of Session considering the Scottish equivalent of the 1983 Act,
he pointed out in Petition of WM (AP) for Judicial Review [2002]
MHLR367 that: -
"Mental illness differed from physical illness in the important
respect that even arguably "consent competent" patients may lack insight or
understanding of their problem, which lack of insight might have to be
addressed by medication" [22].
- Second, as Butler-Sloss LJ explained in Re MB
(supra at page 436),"every person is presumed to have capacity to consent
to or to refuse medical treatment unless and until that presumption is
rebutted". Thus if there is some doubt whether a patient has capacity, the
presumption that the patient has capacity will not be rebutted. It might mean
that if a doctor or a judge has serious doubts about whether a patient has
capacity but is not quite satisfied that he lacks capacity, the patient will
still be regarded as having capacity.
- Third, the test for determining capacity in
section 58 is whether the patient concerned is "capable of
understanding the nature, purpose and likely effects of the treatment" and not
whether the person actually understands the nature, purpose and likely
effects of the treatment (cf the comments of Stuart-Smith LJ in R. v Mental
Health Act Commission ex parte X (1988) 9 B.M.L.R.77at 85 quoted in Jones
(supra) page 298). This might mean that a patient might be regarded as having
capacity even if he does not actually understand the nature, purpose
and likely effects of the treatment.
- Finally, the test for capacity merely requires the
patient to be able to use and weigh in the balance the information material to
the decision. It does not go on to require the patient to be able to use it or
weigh it in the balance to a particular standard. Thus, a patient might
be regarded as having capacity if he could understand, retain, use and weigh
in the balance this information but could reject it for an irrational but
undisclosed reason. In some instances, such as in Re MB itself (where
the reason for refusing to undergo a caesarean operation was a fear of
needles), it might be held that the person concerned was "temporarily
incompetent". In other cases, the court might not be able to reach that
conclusion, even though the MB guidelines would have led to a person
being regarded as competent, even though it is very difficult to understand
the reasoning of the patient who seems, for example, a little confused but not
sufficiently confused that in Butler-Sloss LJ's words "the ability to decide
is absent".
- Thus a patient could be regarded as having
capacity to decide if he wishes to have treatment even though, as Lord Eassie
pointed out, he lacked insight or understanding of his problems, which insight
might have to be addressed by medication. He could similarly be considered to
have capacity not because he was shown to have capacity but because the
evidence of, for example, his confused mind, did not go quite far enough to
rebut the presumption of capacity.
- All these factors show why the threshold of
capacity is low and explain why a patient who reaches the threshold of
capacity should not, as Hale LJ indicated, be regarded as being able to make a
balanced and rational decision, which should not be overridden by the RMO and
the SOAD. Mr. Bowen did not persuade me that Hale LJ erred when she referred
to the low threshold for capacity. Indeed it is this low threshold, which
explains why patients with capacity are not to be regarded as being in the
same position as those, who are not patients.
- If the capacity threshold were raised, it would
mean as Hale LJ explained, that fewer patients would be regarded as having
capacity and the doctrine of personal autonomy would be eroded in the sense
that there would be a reduced number of cases in which the views of the
patient would be taken into account. The present low threshold for capacity
recognises correctly the great importance to be attached to principles of
autonomy, but it also means that the case for non-consensual treatment of
those with capacity is increased. I will return to consider this further.
(iii) The Effect of Article 3 of ECHR.
- The next matter, which I will have to consider is
whether, as Mr. Bowen contends, Article 3 of the Convention supports his
contention that the views of the doctors cannot override the patient with
capacity who refuses to consent to treatment where the threshold requirement
has not been satisfied. Mr. Bowen's submission can be tested by looking at the
situation in which the doctors wish to administer treatment not for the sake
of preventing the patient causing harm to others or protecting the patient
from serious harm, but to enable the patient to be able to leave hospital and
lead a normal life outside hospital.
- As is set out in paragraph 10(1) of the
Assumptions on which this application has to be considered and which is set
out in Appendix 1 below, the issue which I have to determine is whether the
proposed treatment of anti-psychotic medication amount to a breach of Article
3 of the Convention "merely because the [claimant] had capacity to
consent but did not consent"(italicisation added). In other words, it is being
contended on behalf of the claimant that there would be a breach of Article 3
merely because he is being subjected to treatment against his will
irrespective of the benefits of the treatment and the strength and nature of
the claimant's objections.
- Article 3 of the ECHR provides that, "No one shall
be subjected to torture or to inhuman or degrading treatment or punishment".
This prohibition is absolute and it is not limited by exceptions. Article 3 is
relevant as "the decision to impose treatment without consent upon a
protesting patient is a potential invasion of his rights under Article 3 or
Article 8 of the Convention" (per Hale LJ in Wilkinson at page 447
[83]). Section 3 of the HRA has the effect that section 58 must therefore be
read so as to ensure compliance with Articles 3 and 8. The issue can be
refined to be whether the proposed treatment of anti-psychotic medication
amounts in the words of Article 3 "to torture or…inhuman or degrading
treatment" merely because the claimant had capacity to consent but did
not consent. This entails considering when Article 3 is infringed.
- For Article 3 to be engaged, the Strasbourg Court
has said that:-
"Ill-treatment must attain a minimum level of severity if
it is to fall within the scope of Article 3. The assessment of the minimum
is, in the nature of things relative; it depends on all the circumstances of
the case, such as the nature and context of the treatment or punishment, the
manner and method of its execution, its duration, its physical or mental
effects and in some instances, the sex, age and state of health of the
victim" (T and V v. UK (1999) 7 BHRC 659) (with my emphasis
added).
- The Strasbourg Court has also explained the
significance of Article 3 to the problem of imposing forced treatment on
patients in psychiatric units when it stated, with my italicisation added,
that: -
"The court considers that the position of inferiority and
powerlessness which is typical of patients confined in psychiatric hospitals
calls for increased vigilance in reviewing whether the Convention has been
complied with. While it is for the medical authorities to decide, on the
basis of the recognisable rules of medical science, on the therapeutic
methods to be used, if necessary by force, to preserve the physical and
mental health of patients who are entirely incapable of deciding for
themselves and for whom they are responsible, such patients nevertheless
remain under the protection of Article 3 whose requirements permit no
derogation. The established principles of medicine are admittedly in
principle decisive in such cases; as a general rule, a method which is a
therapeutic necessity cannot be regarded as inhuman or degrading. The court
must nevertheless satisfy itself that the medical necessity has been
convincingly shown to exist" (Herczegfalvy v. Austria (1992) 50
EHRR 437, 484 at paragraph 82).
- In N, Dyson LJ giving the judgment of the
Court of Appeal said of the Herczegfalvy test in relation to a claimant
patient that: -
"it seems to us that there is much to be said for the view that
in these cases, there is but a simple question: has the proposed treatment
been convincingly shown to be medically necessary?" [19].
- There is no English appellate authority on when
Article 3 is engaged by reason of medical treatment being administered to a
patient with capacity in spite of his refusal to consent. In Wilkinson,
there was no authority on whether Article 3 had been infringed while in
N, the Court of Appeal "did not find it necessary to hear argument on"
whether Article 3 had been engaged [15]. In PS, I concluded that even
in the face of PS's capacitated opposition, the administration of
anti-psychotic medication to that claimants would not reach the threshold of
engaging Article 3 in the light of the possible benefits to the claimant and
the limited adverse consequences [120]. Mr. Bowen submits that PS was
incorrectly decided and so I must go back to some basic principles on the
circumstances in which Article 3 might be engaged and which are referred to in
PS.
- In Keenan v. UK ((2001) 30 EHRR 38), the
Strasbourg Court said that the assessment of the threshold for engaging
Article 3 was relative as it depended on all the circumstances of the case,
which included the duration of the treatment, its physical or mental effects
and in some cases, the age, health and sex of the victim. The court recalled
that "the authorities are under an obligation to protect the health of persons
deprived of liberty" [110]. The Court said that in considering whether
treatment was degrading, it would have regard to whether the object of
treatment was to humiliate or debase the person and whether the consequences
would adversely affect him in a manner incompatible with Article 3 (paragraph
109). A further relevant factor would be whether the treatment evoked feelings
of fear, anguish or inferiority, which were capable of humiliating or debasing
the person and possibly breaking their physical or moral resistance or driving
them to act against his will or conscience. The case established that the
public authorities are under an obligation to protect the health of such
persons.
- The threshold to be reached before finding a
breach of Article 3 has been restated and significantly the Strasbourg Court
has recently observed that: -
"Having regard to the fact that the Convention is a 'living
instrument which must be interpreted in the light of present day
conditions', the Court considers that certain acts which were classified in
the past as 'inhuman and degrading treatment' as opposed to 'torture' could
be classified differently in future. It takes the view that the increasingly
high standard being required in the area of the protection of human rights
and fundamental liberties correspondingly and inevitably, requires greater
firmness in assessing breaches of the fundamental values of democratic
societies" (Selmouni v. France (2000) 29 EHRR 403 at para
101).
- The kinds of ill-treatment, which fall within
the scope of Article 3, have to be very serious as
"The [Strasbourg] Court's case-law refers to "ill-treatment"
that attains a minimum level of severity and involves actual bodily injury
or intense physical or mental suffering". (Pretty v. United
Kingdom (2002) 35 EHRR 1 at paragraph 52 with my emphasis added).
- The Strasbourg Court has also recently stressed
that:-
"Ill-treatment must attain a minimum level of severity before it
will be considered to fall within the provision's code" and "the practice of
the Convention requires compliance with standard of proof beyond reasonable
doubt that ill-treatment of such severity occurred" (Orhan v. Turkey
App 25656/94 18 June 2002 paragraph 352).
- There are two matters that have to be considered
in respect of Article 3 , namely first whether there is a breach of Article
3 merely and automatically because of the administration of treatment
against the will of a patient with capacity (" the automatic breach
sub-issue") and if so, second whether the principle explained in
Herczegfalvy and N (namely that Article 3 rights are not
infringed where treatment is required because of medical necessity)
also applies where treatment is administered to a capacitated
patient, who had refused to agree to its administration ("the Herczegfalvy
sub-issue"). For the claimant to succeed in showing that Article 3 will be
infringed, he has to succeed on both the automatic breach sub-issue and on the
Herczegfalvy sub-issue.
(iv) The Automatic Breach Sub-Issue
- Mr. Bowen contends that the administration of
the proposed treatment would amount to a breach of Article 3 merely
because a patient had capacity to consent but did not consent and then had
the treatment. In other words, the administration of the treatment of
anti-psychotic medication amounts in the words of Article 3 "to torture
or…inhuman or degrading treatment" merely because the claimant had
capacity to consent but did not consent without any further evidence or
assertion of any adverse consequences for the claimant.
- I am not persuaded that this is correct as an
invariable rule as is contended for by the claimant. As I have sought to
explain, the threshold for an infringement of Article 3 is high and the ill
treatment must reach a "minimum level of severity". Keenan shows that
all the circumstances have to be considered and these will include the
duration of the treatment, its mental and physical effects and the object of
the conduct complained of. There may be cases in which the Article 3 threshold
is not reached because the patient is not over concerned about it and/or
because the adverse effects on him of the treatment are minimal. The stark
fact is that it is not every case in which the Article 3 threshold will be
reached. In each case, the court has to reach a fact-sensitive decision.
- I am fortified in reaching that conclusion by
what the Strasbourg Court has said about the threshold for Article 3 when it
referred to the need to take account of the need for ill-treatment "that
attains a minimum level of severity and involves actual bodily injury or
intense physical or mental suffering" (Pretty v. United Kingdom
(supra)).
- The parties have not for example suggested, let
alone agreed, any particular consequence of administering the treatment on the
claimant. This is an important issue because whether Article 3 is engaged
depends on the effect on the person, who is claiming that his Article 3 rights
have been infringed. There is no evidence agreed or adduced to show the
consequences of administering treatment on the claimant or any capable
patient, who has treatment administered against his will. That patient might
be seriously affected or he might shrug his shoulders and he might not be too
troubled by having the treatment administered. What is clear is that it does
not invariably follow that Article 3 will be infringed in every case of the
administration of treatment to a patient, who had capacity but who had refused
to consent.
- That means that the claimant is not entitled to
relief. Even if the claimant's treatment had infringed his Article 3 rights,
there remains the additional issue of whether it can be justified as being a
medical necessity in the light of Herczegfalvy, which is the sub-issue
to which I now turn.
(iv) The Herczegfalvy Sub-Issue
- In both Herczegfalvy and N, the
patient did not have capacity. Thus, it seems from the excerpts of the
judgments to which I have referred that it is settled law and common ground
between counsel that if the proposed treatment for a patient without
capacity has been convincingly shown to be medically necessary, Article 3
is not infringed. That leads to the issue on this application, which is
whether the legal position is or should be different if the patient has
capacity to consent to the treatment, but he refuses to consent. Mr. Bowen
contends that the fact that the patient has capacity but refuses to consent is
a decisive factor with the result that what was said in Herczegfalvy
does not apply to the patient with capacity. Mr. Swift disagrees and
contends that the Herczegfalvy establishes that there cannot be an
infringement of Article 3 if the treatment in question is a "therapeutic
necessity".
- The answer is, I believe, to be found in the
reasoning in Herczegfalvy in which the Strasbourg Court stated, with my
italicisation added, that: -
"The established principles of medicine are admittedly in
principle decisive in such cases; as a general rule, a method which
is a therapeutic necessity cannot be regarded as inhuman or degrading"[82].
- It is noteworthy first, that the Strasbourg
Court explained that a therapeutic necessity "cannot be regarded as inhuman or
degrading" and second, that it is those words "inhuman or degrading" which
constitute the threshold for an infringement of Article 3. In my view, the
mere fact that a patient has capacity but does not consent would not
automatically mean that if treatment was administered against his or
her consent, this would amount to a breach of Article 3,in situations in which
"medical necessity has been convincingly shown to exist". The test of "medical
necessity" is different from and in some ways wider than Mr. Bowen's suggested
threshold requirement. This test justifies the present approach that the
patient's right of autonomy can in appropriate cases be overridden on grounds
of medical necessity, even where the treatment is not required for the
protection of the patient or of others.
- Thus, in answer to the issue raised in paragraph
10(1) of the assumptions, I conclude that for the reasons that I have sought
to explain, the proposed treatment would not amount to a breach of article 3
of the ECHR merely because a patient had capacity to consent but did
not consent. I reach that conclusion not only because of the low threshold for
capacity but also because there is no evidence that the administration of
treatment "would amount to a breach of Article 3 merely because the
claimant had capacity to consent", but did not consent. Another reason why I
rejected the claim on this issue is because the Strasbourg Court has held that
a therapeutic necessity cannot be regarded as inhuman or degrading.
VII. THE ARTICLE 8 ISSUE.
(i) The significance of Article 8(2)
- Article 8 provides that:-
"(1) Everyone has the respect for his private and family life,
his home and correspondence.
(2) There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interest of national security,
public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others".
- Assumption 9 is that:-
"The administration of the proposed treatment (i) would amount
to a breach of ECHR Article 8(1) that would require justification under
Article 8(2), (ii) would be a proportionate and lawful response in the
interests of the protection of health and therefore justifiable under
Article 8(2), if administered to an incompetent patient. (As the law is
currently understood and applied following R (PS) v. Dr. G and Dr. W,
it would also be justifiable under Article 8(2) if administered to a
competent patient but whether PS is a correct statement of the law is
the issue that falls to be determined in these proceedings)".
- Thus, the RMO will be interfering with the
claimant's rights under Article 8(1) by administering the proposed treatment
on the claimant unless such interference is justified under Article 8(2) of
the Convention. Mr. Bowen contends that such interference is not justified for
the reasons, which I have summarised when considering his contentions on the
Article 3 issue in Section VI above. The Article 8 issue in this case
therefore becomes refined to whether the proposed treatment is justifiable
under Article 8(2). The Secretary of State contends that any breach of Article
8(1) is justifiable under Article 8(2) in this case because the proposed
treatment was:-
"in accordance with the law and is necessary in a democratic
society … for the protection of heath".
- This requirement together with the additional
requirement of proportionality is best examined by considering in turn
different aspects of those requirements in the light of the relevant assumed
facts, which are, according to the claimant, that:-
"5. In the opinion of the RMO and the Second Opinion Appointed
Doctor ("SOAD"), the proposed treatment for the claimant satisfies the best
interests test and should be given having regard to the likelihood of the
proposed treatment alleviating or preventing a deterioration of the
claimant's condition,.
6. In reaching this conclusion, the requirements of section 58
of the MHA 1983 have been complied with (as they are presently understood).
As part of this process the RMO and SOAD have:-
(i) taken into consideration the fact that the claimant is
competent to refuse the treatment and has declined to consent to it;
and
(ii) given such weight to that factor as they consider
appropriate (i.e. they have applied the approach stated in R (PS) v.
Dr. G and Dr. W) [2003] EWHC 235 (Admin)."
- The Secretary of State would wish words to be
inserted in Assumptions 5 and 6 to the effect that the proposed treatment
would be lawful in the light of the requirements of section 58 of the 1983 Act
as they are presently understood.
- In order to determine if the proposed treatment
would constitute a breach of Article 8 "merely because the patient had
capacity to consent but did not consent" (Assumption 10(2)) and not be
justifiable under Article 8(2), it is appropriate to consider in turn the
following aspects of Article 8(2):-
(a) "necessary in a democratic society … for the protection of
health";
(b) "in accordance with the law" and
(c) proportionality.
(ii) "..necessary in a democratic society.. for the protection of
health.."
- The aim of the provisions in section 58(3) (b)
regime for enabling the consent of the competent patient to be overridden and
treatment to be given are` clearly "for the protection of health" as the SOAD
has to certify that in spite of the fact that the capable patient has not
consented "having regard to the likelihood of [the treatment] alleviating or
preventing a deterioration of his condition the treatment should be given".
The next issue is whether the provisions in section 58(3)(b) of the 1983 Act
are "necessary in a democratic society" for that purpose.
- The word "necessary" in Article 8(2) is not
synonymous with the word "indispensable" but the treatment would be justified
"if the interference complained of [which in this case was the proposed
treatment] corresponded to a pressing social need, whether it was
proportionate to the legitimate aim pursued, whether the reasons given by the
national authority to justify it are relevant and sufficient" (Sunday Times
v. UK (1979) 2 EHRR 245 at 275 and at 277-278 respectively). This approach
is logical because inherent in the interpretation of the Convention is its aim
to strike a "fair balance between the demands of the general interest of the
community and the requirements of the protection of the individual's
fundamental rights" (see Sporrong and Lonnroth v. Sweden (1992)
5 EHRR 35 at 52). Any restriction on a guaranteed freedom, such as that set
out in Article 8(1) of the Convention, must be proportionate to the legitimate
aim pursued (Handyside v. United Kingdom (1976) 1 EHRR 737) and I will
consider the requirements of proportionality in due course as a separate
issue.
- In order to determine if the provisions of
section 58(3) (b) of the 1983 Act meet these requirements, it is necessary to
bear in mind the limited circumstances in which those provisions actually
enable the consent of a capable patient to be overridden and seven features
need stressing.
- First, those provisions only apply, subject to
certain exceptions to "any patient liable to be detained under this
Act"(s56(1) of the 1983 Act). Thus the provisions in section 58(3) (b) of the
1983 Act, which allow the courts to override the consent of capable patient
only apply to patients detained subject to an application under either Part II
of the 1983 Act, which deals with "compulsory admission to hospital or
guardianship" or Part III of the 1983 Act, which deals with "parties concerned
in criminal proceedings or under sentence". Thus, for example, voluntary
patients are excluded and the provisions in section 58(3)(b) of the 1983 Act
only apply to those compulsorily detained.
- Second, the category of patients covered by
section 58 is further limited as there are also compulsorily detained patients
within that category, who are not subject to the regime in section 58 and they
include patients liable to be detained under an emergency application (s 56
(1)(a) of the 1983 Act). Third, the provisions of section 58 only apply to
"medical treatment for mental disorder" (s58 (1) of the 1983 Act) and the
"mental disorder" must be the mental disorder from which the patient is
suffering. Section 58 gives no power to impose treatment for physical
disorders against the consent of a capable patient. Fourth, section 58 cannot
be used for some very radical forms of treatment including "any surgical
operation for destroying brain tissue or for destroying the functioning of
brain tissue" as this requires the consent of the patient (s57(1)(a) and (2)
of the 1983 Act). That consent of the patient cannot be overridden.
- Fifth, before giving the certificate, the SOAD
is required to consult two other persons who have been professionally
concerned with the patient's treatment, of whom one shall be a nurse and the
other neither a nurse nor a registered medical practitioner (s 58 (4) of the
1983 Act).
- Sixth, the SOAD has the important role of
"performing a statutory watchdog function on behalf of the public to protect
detained persons who are in an especially vulnerable position" (Wilkinson
per Hale LJ at page 441 [60]). In that capacity, the SOAD has to form his
own independent opinion on the existence of the statutory criteria
(Wilkinson [71]).
- Seventh, the SOAD is obliged to give his reasons
in writing for issuing a certificate (R (on the application of Wooder) v.
Feggetter and MHAC [2003] QB 219. This is important because a dissatisfied
patient has the right to challenge the SOAD's certificate by means of a
judicial review application in which it would be necessary for the court to
reach its own view on the dispute issues with cross-examination being ordered
in appropriate cases as it was in this particular case. As I have explained
the views of the competent patient, who refuses to consent to treatment, are
very important. As to the issue for the court on such applications:-
"there is much to be said for the view that in these cases there
is but a single question; has the proposed treatment been convincingly shown
to be medically necessary?" (per Dyson LJ in N[19]).
- It follows that the circumstances in which
section 58 (3) can be invoked to compel a patient to be subjected to treatment
are limited and are closely defined so as not to apply to voluntary patients,
to treatment for physical disorders or to certain very radical forms of
treatment. In addition, section 58(3) only applies to those patients
compulsorily detained. There are also important safeguards, which I have
sought to explain in the last three paragraphs.
- The very limited circumstances in which the
views of the competent patient can be overridden together with the remedies
for the patient to which I have referred satisfy me that the provisions of
section 58 (3) of the 1983 Act are in the words of Article 8(2) "
..necessary in a democratic society.. for the protection of health..".
I am fortified in reaching that conclusion by the similar decision reached in
respect of similar legislation in Scotland by Lord Eassie sitting in the Court
of Session in Petition of WM (AP) for Judicial Review [2002]
MHLR367, who explained that :-
"It accordingly appears to me that in enacting the provisions of
the 1984 Act, Parliament was endeavouring to define with at least some
precision the circumstances in which departure from the principle of not
treating the competent patient without his consent might be justified in
what was then and now a free and democratic society".
- Until now I have been considering the claimant's
challenge on Article 8 grounds without taking account of the assumed facts.
They in fact constitute further reasons for not granting any relief because
the assumed facts in this case are, as I have explained, that the claimant
"suffers from bi-polar affective disorder, a treatable mental illness" and
that "the nature and extent of the claimant's illness are such that it is
appropriate for him to be detained in hospital for treatment" (Assumptions 1
and 2).
- The fact that the claimant suffers from an
illness, which justifies his detention for treatment provides an additional
ground for justifying the provisions in section 58(3) (b) of the 1983 Act as
being, in the words of Article 8(2), "..necessary in a democratic
society.. for the protection of health..".
- If I had been in any doubt about whether the
provisions in section 58 (3) (b) of the 1983 Act were "necessary in a
democratic society", I would have reached the conclusion that they were for
the additional reason that:-
"in determining whether an interference was 'necessary in a
democratic society', the [Strasbourg] Court will take into account that a
margin of appreciation is left to Contracting States" ( Matter v.
Slovakia (2001) E.H.R.R. 32 [66] cited in Petition of WM (AP)
for Judicial Review (supra)[18]).
- To my mind, the margin of appreciation allowed
to the United Kingdom would lead to the provisions in section 58(3)(b) being
"necessary in a democratic society".
(iii) "..in accordance with the law.."
- There are two relevant requirements of the law
of this country relating to the circumstances in which treatment can be given
to a patient, who does not consent. First, there are the common law
requirements and second the statutory requirements in the 1983 Act, which have
to be considered separately. Starting with the common law requirement, it is
necessary to remember that "the best interests test" is the common law
rule which, shows the recognised criteria for establishing whether it is
permissible to perform any proposed treatment is whether the proposed
treatment is in the best interests of the patient.
- This rule shows that the recognised criterion
for establishing whether it is permissible to perform any proposed treatment
on an incompetent adult is whether the proposed treatment is in the best
interests of the patient. The idea or concept of medical necessity was
established by the House of Lords in the case of In Re F (Mental Patient:
Sterilisation) ([1990] 2 AC 1) especially by Lord Brandon at 55E and 56 D,
by Lord Goff at 78B and by Lord Bridge at 52C) as being a medical necessity
which is the justification for treatment in a patient's best interests.
Butler-Sloss P. has pointed out in NHS Trust A v. Mrs. M [2001] Lloyds
Rep. Med 27, 35 that the "best interests" test at common law provides a more
stringent safeguard than the Convention does.
- In Re S (Adult Patient's Best Interests)
[2000] 2 FLR 389 at 400, Butler-Sloss P explained, with my emphasis added,
that:-
"I would suggest that the starting point of any medical decision
would be the principles enunciated in the Bolam test and that a doctor ought
not to make any decision about a patient that does not fall within the broad
spectrum of the Bolam test. The duty to act in accordance with responsible
and competent professional opinion may give the doctor more than one option
since there may well be more than one acceptable medical opinion. When the
doctor moves on to consider the best interests of the patient he/she has to
choose the best option, often from a range of options. As [counsel for the
Official Solicitor] has pointed out, the best interests test ought,
logically, to give only one answer".
- The President was in essence stating that the
courts have to approach the best interest test in two stages; they have first
to see whether the proposed treatment was in accordance with "responsible and
competent professional opinion" and, if so, then the court's second task is to
choose the single best option. The President accepted that her two-stage
approach, with which Thorpe LJ agreed, was at variance with the comments of
Lord Browne-Wilkinson in his speech in Airedale NHS Trust v. Bland
[1993] AC 789 at 884 (which were not agreed with or followed by other
members of the Appellate Committee) which was that in accordance with Bolam, a
number of different courses, rather than a single course, may be lawful in a
particular situation.
- Thorpe LJ in that case also explained the basis
of the two-stage test and the width of the second stage, when he stated, with
my emphasis added, that:-
"In deciding what is best for the disabled patient the judge
must have regard to the patient's welfare as the paramount consideration.
That embraces issues far wider than the medical. Indeed, it would be
undesirable and probably impossible to set bounds to what is relevant to a
welfare determination. In my opinion, Bolam has no contribution to make to
this second and determinative test of the judicial determination … It is the
judge's function to declare that treatment which is in the best interests of
the patient and … only one treatment can be best".
- In that case, the President's approach similarly
required that the court when dealing with the second stage should consider all
relevant issues when she explained, with my emphasis added, that:-
"the principle of best interests as applied by the courts
extends beyond the considerations set out in Bolam. The judicial decision
will incorporate broader ethical, social, moral and welfare
considerations".
- As I have explained, assumption 5 in the view of
the Secretary of State is that it is the opinion of the RMO and the SOAD that
the proposed treatment satisfies the best interests test, which is the common
law requirement and thus in his view the proposed treatment is in accordance
with the common law. The claimant does not agree with that assumption but no
evidence has been put forward to show that the proposed treatment does not
satisfy the "best interests" requirement, which is significant as the RMO and
the SOAD consider that it will "alleviate or prevent a deterioration of the
claimant's condition". Thus, I am satisfied that the proposed treatment should
be regarded as satisfying the common law requirement.
- The statutory requirement is that set out in the
1983 Act and in particular section 58, which I set out in paragraph 10 above.
In Wilkinson, Simon Brown LJ regarded this statutory test as one that
"essentially mirrors the best interests test". Assumption 5 when read with
assumption 6, both of which I have quoted in paragraph 116 above, show that
these requirements have been satisfied because the RMO and the SOAD are of the
opinion that the proposed treatment should be given having regard to the
likelihood of the proposed treatment alleviating or preventing a deterioration
of the claimant's condition having taken into consideration and in making that
decision, they gave such weight as they considered appropriate to the fact
that the claimant was competent but had declined to consent to treatment.
- That means that the proposed treatment thereby
meets the requirement of being, in the words of Article 8(2), "in accordance
with the law" but that leads to the further issue of whether a decision to
require the claimant to have treatment is proportionate.
(iv) Proportionality
- In order to decide whether the provisions of
section 58(3)(b) are proportionate, it is necessary to apply the test of Lord
Clyde in DeFreitas v. Permanent Secretary of Ministry of Agriculture
[1999] 1 AC 69, 80 quoted and amplified by Lord Steyn in Daly v. Home
Secretary [2001] 2 AC 532,
547 [27] where he said that:-
"In determining whether a limitation (by an act, rule or
decision) is arbitrary or excessive the court should ask itself 'whether:
(i) the legislative objective is sufficiently important to justify limiting
a fundamental right; (ii) the measures designed to meet the legislative
objective are rationally connected to it; and (iii) the means used to impair
the right or freedom are no more than is necessary to accomplish the
objective'".
- In this case, as to (i) the legislative
intention of enabling treatment to be given pursuant to section 58(3) was to
enable it to be given to the claimant where there was a likelihood of the
treatment "alleviating or preventing a deterioration of [the patient's ]
condition". Assumption 5 shows that the RMO and the SOAD both considered that
the proposed treatment satisfied this test. This aim was important in this
case because the claimant had been ordered to be compulsorily detained and the
treatment was sufficiently important to justify limiting the claimant's
Article 8 rights.
- As to (ii), the measures set out in section
58(3) of the 1983 Act were clearly rationally connected to it. Finally, as to
(iii), the means used to permit the treatment to be given were no more than
necessary to accomplish that objective. I have already explained in paragraphs
122 to 126 above the limited circumstances in which treatment can be given
against the wishes of a competent patient and the remedies given to the
patient. These factors convince me that (iii) is satisfied as the means used
to impair the claimant's Article 8 rights were no more than necessary to
accomplish that objective. Thus the provisions in section 58(3) are
proportionate.
- In those circumstances, I conclude that the
administration of the proposed medication is not only "proportionate" but
also, as I have explained, that it is also "necessary" for "the protection of
health" of the claimant. Thus, the Article 8 claim fails.
- In any event, even if I was wrong on that
approach, then the SOAD and the RMO are entitled to an appropriate margin of
discretion in making their decision in relation to the administration of the
proposed treatment. This provides an additional reason why I reject the
contention that to administer the proposed medication to the claimant would
infringe his Article 8 rights.
- Nothing that has been said by Mr. Bowen in this
case has shown that the approach of Hale LJ to which I have referred in
paragraph 24 should not be followed. Thus, subject to the position in respect
of the developing international consensus, I respectfully agree with Hale LJ
that even taking account of Articles 3 and 8 of the Convention: -
"we have not reached the point where it is an accepted norm that
detained patients who fulfil the .. criteria for capacity can only be
treated against their will for the protection of others or for their own
safety".
VIII. The Developing International Consensus Issue
(i) Introduction
- Mr. Bowen contends, as he did in his submissions
in Wilkinson in the Court of Appeal, that there is now a developing
international consensus which ought to be given effect to by the English
courts to the effect that treatment may only be given in the face of a
competent patient's refusal to consent where it is necessary to protect that
patient from serious harm or to protect other persons from harm. Those
submissions did not convince the Court of Appeal. He now submits that Articles
3 and 8 of the ECHR and the rights which they protect are to be construed in
the light of those developments because, as Lord Bingham has explained, as:-
"the Convention is a living instrument, the standards guaranteed
by the Convention are to be reinterpreted in accordance with changing
perceptions of individual right" [Dyer v. Watson [2004] 1 AC 379,
401 [49]].
- Mr. Bowen points out that Lord Bingham's
"changing perceptions of individual rights" may be found in developments not
only within any particular Convention State, but within the Convention States
generally and also by what the Strasbourg Court has called the "general
principles of law recognised by civilised States" (Golder v. United Kingdom
(1979-80) 1 EHRR 524, 535 [35]). Thus, he submits that irrespective of the
present state of English law, the developing international consensus means
that the circumstances in which a capable patient's refusal to consent should
be overridden is limited to cases in which the threshold requirement is met.
- The starting point for Mr. Bowen's contentions
are that both Article 3 and Article 8 impose obligations on the State, which
in this case is the Secretary of State, to provide adequate protection for the
rights protected by Articles 3 and 8. This means that the law should be
accessible and comprehensible. He points out that section 58 of the 1983 Act
does not stipulate that the treatment of competent patients is permitted only
where the threshold and the medical necessity requirements are met.
- At the heart of his submissions is his
contention that although there is no Strasbourg case directly in point, even
in Wilkinson, the Court of Appeal accepted that some consensus was
beginning to develop and he, for example, relies on the statement by Hale LJ
to which I have referred in paragraph 24 above, but he says that in any event,
matters have moved on since October 2001, when that decision was handed down.
- Mr. Bowen referred to a number of statements in
different international documents, as well as decisions of the United States
and Canadian Supreme Courts, which he contends are relevant to the issue of
when it was possible to override a refusal of a capable patient to propose
treatment. Mr. Swift submits that these statements do not assist in
determining what English law is and that in any event, the views of
international organisations and courts were not similar or necessarily
supportive of Mr. Bowen's submissions.
- There are two matters to which I must refer,
which are relevant in considering Mr. Bowen's submissions on this issue.
First, there is apparently no universally accepted view of what has to be
established before a patient can be regarded as having capacity and it is
quite possible that in some of the material to which Mr. Bowen referred, there
was a different approach to the meaning of "capacity" from how it is
understood in English law. This might mean that a patient who is regarded as
having capacity in English law might not be regarded as having capacity under
the proposals to which Mr. Bowen refers or in the United States or in Canada.
Second, Mr. Bowen made reference to many of these matters to which he now
refers in Wilkinson where his point was not accepted; there are only
two recommendations or reports, which have arisen since Mr. Bowen made his
submissions in that case.
(ii) The Council of Europe Recommendations
- The Council of Europe produced a White Paper on
the Protection of Human Rights and the Dignity of Persons Suffering from
Mental Disorder on 3 January 2000, which has now been followed by
recommendations published in June 2004. On 22 September 2004, the
recommendations were adopted by the Committee of Ministers but
"The Permanent Representative of the United Kingdom indicated in
accordance with …the Rules of Procedure for the meetings of Minister's
Deputies for the meetings of the Minister's Deputies, he reserved the right
of his Government to comply or not with the Recommendation as a
whole".
- It is important to bear in mind that the
recommendations take the form of recommendations to the Governments of Members
that "the governments of member states should adapt their laws and practice to
the guidelines contained in this Recommendation". It would seem that the only
right given to the Committee of Ministers in respect of such recommendations
is to request the Government of Member States to inform it of the action taken
by the governments with regard to such recommendations (Article 15.b of the
Statute of the Council of Europe). As I have explained the United Kingdom
Government has indicated in adopting the decision, that it reserved its right
to comply or not to comply with the recommendation. Thus, the United Kingdom
Government has not accepted the provisions of the recommendations and there is
no evidence that they have been adopted or implemented by any or how many
other states. Thus, it is difficult to see how the recommendation shows any
form of international consensus. The terms of the recommendations to which I
now turn have to be considered in the light of these factors in order to
ascertain if there is any international consensus.
- Under Article 12 (2) of the Recommendation, it
is stated with my italicisation added that, subject to certain exceptions,
"treatment may only be provided to a person with mental disorder
with his or her consent if he or she has the capacity to give such
consent".
I add that I could not find a definition of "capacity" in the
Recommendations.
- One of those exceptions is set out in Article 18
of the Recommendations, which provides that: -
"A person may be subject to involuntary treatment only if all
the following conditions are met: -
the person has a mental disorder;
ii. the person's condition represents a significant risk of
serious harm to his or her health or to other persons;
iii. no less intrusive means of providing appropriate care are
available;
iv. the opinion of the person concerned has been taken into
consideration".
- Article 28 of the Recommendations provides that
treatment for mental disorder that is not aimed at producing irreversible
physical effects but may be particularly intrusive should only be carried out
if no less intrusive means of providing appropriate carers available and that
member States ensure that the "use of such treatment is… (iii) except in
emergency situations… with the person's informed, written consent".
- The two recommendations do not mirror the narrow
approach contended for by Mr. Bowen even if the definition of "capacity" in
the recommendations is the same as that adopted in English law.
- Article 28(2) of the Recommendations is similar
to section 58 of the 1983 Act, to which I referred in paragraph 10 above as it
stipulates that the use of treatment for medical disorder with the aim of
producing irreversible physical effects should be exceptional and that it
should not be used in the context of an involuntary placement but that:-
"such treatment should only be carried out if the person
concerned has given free, informed and specific consent in
writing".
(iii) United Nations General Assembly Resolution 46/119 of 17 December
1991
- This resolution was passed about 10 years before
the decision in Wilkinson. The United Nations General Assembly
Resolution of 46/119 of 17 December 1991, which is entitled "Principles for
the Protection of Persons with Mental Illness" contains two relevant
principles, of which the first is Principle 9.4, which states, "the treatment
of every patient shall be directed towards preserving and enhancing personal
autonomy". Second, Principle 11.1 provides that "no principal treatment should
be given to a patient without his or her informed consent".
- This Principle is expressed to be subject to a
number of exceptions of which the relevant ones are set out in Principle 11.6
are that, subject to certain exceptions:-
"… a proposed plan of treatment may be given to a patient
without a patient's informed consent if the following conditions are
satisfied … (a) the patient is, at the relevant time, held as an involuntary
patient;
(b) an independent authority having in its possession all
relevant information including [the information regarded as material to the
provision of informed consent if this can be freely obtained] is satisfied
that, … if domestic legislation so provides, that, having regard to the
patient's own safety or the safety of others, the patient unreasonably
withholds consent
(c) the independent authority is satisfied that the proposed
plan of treatment is in the best interests of the patient's health
needs".
- This principle enables treatment to be given to
a patient with capacity who refuses to consent. To some extent, the use of "an
independent authority" is similar to the function and the role of the SOAD in
this country. It is noteworthy that Principle 11 is subject to the General
Limitation Clause, which qualifies each of the Principles referred to in the
resolution and it provides that:-
"The exercise of the rights set forth in the present Principles
may be subject only to limitations as are prescribed by law and are
necessary to protect the health or safety of the person concerned or of
others, or otherwise to protect public safety, order, health or morals or
the fundamental rights and freedoms of others".
- These Principles are, according to Footnote 8 to
the judgment in the case of Victor Rosario Congo v. Ecuador
(Inter-American Commission on Human Rights 63/99 Case 11.427):-
"regarded as the most complete standards for the protection of
the rights of persons with mental disability at the international level.
These Principles serve as a guide to States in the design and/or reform of
mental health systems and are of utmost utility in evaluating the practices
of existing systems".
- These principles assist the Secretary of State's
case because it enables the patient's informed consent to be overridden if an
independent body (which would include the SOAD) considers that the patient
unreasonably refuses consent and that the proposed treatment is in the
patient's best interest. In any event, the General Limitation Clause is of
critical importance in governing and overriding Principle 11 and it
establishes that this Principle is subject to limitations "prescribed by law
and are necessary to protect the health of the person concerned". In my view
that is what section 58(3) (b) of the 1983 Act achieves by requiring the SOAD
to certify "having regard to the likelihood of [the treatment to which the
patient objects] alleviating or preventing a deterioration of [the patient's]
condition". Thus principle 11(6) does not support the claimant's case but is
supportive of the approach in section 58(3)(b) of the 1983 Act.
(iv) The report of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment in August 2000,
8th General Report (CPT) Int (98) (12)
- Mr. Bowen referred to this Report, which was
also cited by Simon Brown LJ in Wilkinson [28] in which it was said in
paragraph 41 of the Report with my italicisation added that: -
"Patients should, as a matter of principle, be placed in a
position to give their free and informed consent to treatment. The admission
of a person to a psychiatric establishment on an involuntary basis should
not be construed as authorising treatment without his consent. It follows
that every competent patient, whether voluntary or involuntary, should be
given the opportunity to refuse treatment or any other medical
intervention. Any derogation from this fundamental principle should be based
on law and only relate to clearly and strictly defined exceptional
circumstances".
- I do not consider that this passage assists the
claimant's case because it gives the patient the "opportunity" and not the
"right" to object. In addition, it recognizes that there can be derogations
from the general principle, which are "based on law and only relate to clearly
and strictly defined exceptional circumstances". For the reasons which I have
set out in paragraph [] above, section 58(3)(b) of the 1983 Act sets out
"clearly and strictly defined exceptional circumstances". Thus, if anything,
this report supports the Secretary of State's case.
- Mr. Bowen submitted that Simon Brown LJ in
Wilkinson cited this passage from this report with approval but I could not
infer from his judgment that this passage was approved as Simon Brown LJ's
only comment on it was
"That gives some indication of modern thinking on this sensitive
subject. The precise equivalence under section 58(3)(b) between incompetent
patients and competent but non-consenting patients seems to me increasingly
difficult to justify"[29].
- I respectfully suggest that there is not a
position of "precise equivalence" because the refusal of the competent but
non-consenting patient constitutes a very important factor to which great
attention has to be paid by the RMO, the SOAD and by the courts if there is a
challenge in the courts. The position of the incompetent patient, who refuses
to consent is obviously different. In any event, a competent patient may have
certain limitations as I sought to explain at paragraphs 85 to 88 above. I
should also add that as I am seeking to explain in this section that there are
a number of indications of modern thinking, which show that the refusal of a
competent patient can be overridden, as I explain in paragraph 188 below.
(v) The Bioethics Convention
- Mr. Bowen also sought to derive support from the
European Bioethics Convention, which was signed by 31 members of the Council
of Europe but not by the United Kingdom. This Convention, which has as its
full title "The Council of Europe's Convention for the Prevention of Human
Rights and Dignity of the Human Being with regard to the Application of
Biology and Medicine: Convention on Human Rights and Biomedicine" was open to
signature at Oviedo on 4 April 1997. This was another development which
preceded the decision in Wilkinson.
- This Convention was signed about four years
before the decision in Wilkinson. Article 5 of it provides that: -
"An intervention in the health field may only be carried out
after the person concerned had given free and informed consent to
it….".
- Article 6, which deals with the "protection of
persons not able to consent", provides that:-
"where, according to law, an adult does not have the capacity to
consent to an intervention because of a mental disability, a disease or for
similar reasons, the intervention may only be carried out with the
authorisation of his or her representative or an authority or a person or
body prescribed by the law".
- It is difficult to see what has to be shown or
not shown before a person is regarded as "not (having) the capacity to
consent to an intervention".
- Article 7 deals with the protection of persons,
who have a mental disorder and it provides that: -
"Subject to protective conditions prescribed by law, including
supervisory, control and appeal procedures, a person who has a mental
disorder of a serious nature may be subjected, without his or her consent,
to an intervention aimed at treating his or her mental disorder only where,
without such treatment, serious harm is likely to result to his or her
health".
- I agree with Mr. Bowen that this provision is
different from English law. Mr. Bowen points out that this Convention to which
the United Kingdom has not signed up was applied by the Strasbourg Court in
Glass v. United Kingdom – 9 March 2004 (Application No. 61827-00), when
determining the ambit of the rights contained in Article 8. This Convention
was apparently not referred to in Wilkinson.
- It is important to bear in mind that the United
Kingdom has neither signed, nor ratified nor incorporated this Convention into
English law. Thus the Convention does not form part of English law and the
English courts do not have any jurisdiction to apply it in the absence of
incorporation (see In Re McKerr [2004] 1 WLR 1289
[26], [50] and [65] per Lord Nicholls, Lord Steyn and Lord Hoffmann
respectively). I agree with Mr. Swift that in those circumstances it would not
be correct to regard the provisions of the Convention as being an aid to the
construction of section 58(3)(b) of the 1983 Act either in its own right or by
means of section 3 of the HRA.
- I am not persuaded by Mr. Bowen that the
Bioethics Convention shows an international consensus as it seems from the
Secretary of State's Summary Grounds that as at 30th July 2004,
this Convention had only been ratified by 18 of the 44 member states of the
Council of Europe and this does not show any form of consensus, especially as
countries like Austria, Belgium, Finland, France, Germany, Italy, the
Netherlands, Norway, Sweden and Switzerland have apparently not ratified it.
Although the claimant relies on Glass v United Kingdom (supra), this
case was concerned with parental objection to treatment for a child in the
United Kingdom and the Strasbourg Court stated that
"it does not consider that the regulatory framework in place in
the United Kingdom is in any way inconsistent with the standards laid down
in the [Bioethics Convention] in the area of consent"[75].
(vi) The Draft United Nations Convention of January 2004
- Mr. Bowen next refers to Article 11 of a draft
United Nations Convention on the Protection and Promotion of the Rights and
Dignity of Persons with Disabilities which is dated 27 January 2004 and which
deals with freedom from torture or cruel, inhuman or degrading treatment or
punishment. This is a matter which obviously post-dates Wilkinson.
Article 11 provides, among other things, that: -
"2. In particular, State Parties shall prohibit, and protect
persons with disabilities, from medical or scientific experimentation
without the free and informed consent of the persons concerned, and shall
protect persons with disabilities from forced interventions or forced
institutionalisation aimed at correcting, improving or alleviating any
actual or perceived impairment".
- It is important to bear in mind that the draft
Convention as being attached to a report of the Working Group, which explained
that it saw its role was "to prepare and present a draft text which would be
the basis for negotiations at the Ad Hoc Committee" and it said that it was
"not mandated to negotiate a final text and was not tasked with being a
drafting Committee" (paragraph 9). It was also pointed out that the draft text
was "not the position of any particular delegation in the Working Group" and
that "delegations represented in the Working Group made clear that they wished
to discuss many issues further in the ad hoc committee (paragraph 10).
- I agree with Mr. Swift that the contents of the
draft Convention do not even represent the views of the Working Group and they
are only meant to be the basis for future detailed negotiations. In those
circumstances, the draft Convention does not show or even purport to show any
consensus and so it cannot and should not be relied upon for any purpose.
(vii) American and Canadian authorities
- Mr. Bowen also seeks to derive assistance from
the way in which the American and Canadian courts have dealt with the
circumstances in which the absence of consent by a capable patient to
treatment can be overridden. He pointed out that in Sell v. United States
(2003) 539 US 1, the Supreme Court of the United States held by a majority
that a person with mental illness could not be forced to take anti-psychotic
medication in order to ensure that he could stand trial. The view of the
majority of the Supreme Court was that there were only limited circumstances
in which the government could involuntarily administer anti-psychotic drugs to
render a mentally-ill defendant competent to stand trial on serious criminal
charges. On the basis that the government had a significant interest in
ensuring that an individual accused of serious crime was brought to trial, the
courts had to consider each case's facts in evaluating this interest because
special circumstances could lessen its importance; examples of that would be
that a defendant's refusal to take drugs might mean lengthy confinement in an
institution, which would diminish the risks of freeing without punishment a
person who had committed a serious crime. It was also pointed out that the
government had a concomitant interest in assuring that a defendant had a fair
trial.
- The Supreme Court considered that before
permitting involuntary medication, a court had to be satisfied that medication
was substantially likely to render the defendant competent to stand trial and
substantially unlikely to have side effects, which would interfere
significantly with the defendant's ability to assist his lawyers in conducting
a defence. The court also was required to conclude that involuntary medication
was necessary to further those interests and find that alternative and less
intrusive treatment was unlikely to achieve substantially the same results.
Finally, the court had to conclude that administering the drug was medically
appropriate.
- The facts of that case were very different than
those assumed to be relevant in this case. In any event, a critical feature in
determining whether a refusal to agree to treatment by a person regarded as
competent should be overridden is the height of the threshold of capacity. I
do not know what that threshold for capacity is in the United States. Another
significant difference between Sell's case and the present case is that
in Sell, the court was not considering the position of a patient like
the claimant for whom the proposed treatment would be likely to alleviate or
prevent a deterioration of his condition. Further, I am not persuaded that the
decision in Sell would mean that a patient with capacity could not be
treated if he refused treatment, which would have no adverse effect and which
would not meet the threshold requirement but which would enable him to be
released from detention.
- Mr. Bowen also relies on the decision of the
Canadian Supreme Court in Fleming v. Schutzman [2003] SCC32, in which
it was decided that in the light of the statutory definition of capacity, a
patient had capacity to refuse treatment. That is a different issue from that
with which I am now concerned.
(viii) Discussion on the International Consensus Issue
- Mr. Bowen in his skeleton argument contends that
these international developments, when considered cumulatively, show: -
"the extent to which an international consensus is developing
that requires adequate protection against mistaken or arbitral treatment to
be afforded to vulnerable, detained mental patients, including a restriction
on the imposition of compulsory treatment to competent patients to
situations where treatment has been shown to be necessary to protect the
public from harm or to protect the patient from serious harm".
- For the reasons which I will now seek to
explain, I am unable to accept Mr. Bowen's contention that these statements
undermine or alter in any way the principle set out by Hale LJ and in
PS, which is that the refusal of a capacitated patient does not
automatically override the views of the RMO and the SOAD on the likelihood of
the proposed treatment alleviating or preventing a deterioration of the
claimant's condition even in cases in which it cannot be shown that the
proposed treatment is necessary to protect other persons from harm or that
without such treatment, serious harm is likely to result to the claimant's
health.
- First, none of the interesting material to which
Mr. Bowen refers is binding on the English courts. Second, the English law
does not permit me as a first instance judge to depart from established
principles merely because of recommendations or international conventions,
which have not been incorporated into English law or even ratified by the
United Kingdom Government.
- Third, in any event, there is discrepancy
between many of these reports and it is not possible to establish a general
and universally accepted principle. Indeed, the United Nations General
Resolution and the European Committee's Report are consistent with construing
section 58(3) so as to override the views of a competent patient, who refuses
to accept treatment. Other material relied on by Mr. Bowen either does not
explain the threshold for capacity on which it was based or is provisional or
does not have universal or much support. Fourth, there is no generally
accepted definition on what threshold of mental capacity has to be reached
before a person can be regarded as having capacity and that is a matter of
critical importance. Thus, it is quite possible and perhaps reasonably likely
that the various international bodies adopted different approaches to what is
meant by "capacity" of a patient.
- At the end of the day, I am not persuaded by the
submission of Mr. Bowen that the right of autonomy has become such a
fundamental right that legislation cannot lawfully override it, other than in
those exceptional circumstances in which the countervailing state interests of
protecting the public and the patient from serious harm justify it. In
my view, the refusal of a patient with capacity to consent to treatment does
not automatically and inevitably override the views of the doctors, except
where it is necessary for the protection of others or of the patient. In my
view, the refusal of a capable patient is a very important consideration which
can in appropriate circumstances be overridden, particularly bearing in mind
the circumstances in which the patient came to be detained and the benefits
that could accrue from the treatment, especially where it may not have any
adverse consequences for the patient and when it may enable the patient to be
released from detention.
IX – THE ARTICLE 14 ISSUE
(i) Introduction
- Mr. Bowen submits that there has been unfair
discrimination against a patient with capacity because his refusal can be
overridden in circumstances in which the consent of anybody other than a
patient cannot be overridden. Article 14 of the ECHR deals with the
prohibition of discrimination and it provides that:-
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any grounds such as
sex, race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth or
other status".
- In Ghaidan v. Godin Mendoza [2004] 2 AC 557, Baroness Hale of Richmond accepted as correct in paragraph 133 of her
speech the approach advocated in Wandsworth LBC v Michalak [2003] 1 WLR 617, 625 [20] by Brooke LJ as amplified in R (Carson) v. Secretary of State
for Work and Pensions [2002] 3 All ER 994 paragraph 52, that it would
usually be convenient for a court when invited to consider an Article 14 issue
to approach its task in a structured way. This approach required the court to
ask itself four questions. If the answer to any of those questions was in the
negative, the claim was likely to fail with the consequence that it was
unnecessary to proceed to consider the next questions.
- Those four questions are:-
(i) Do the facts fall within the ambit or one or more of the
substantive Convention provisions (for the relevant Convention rights see
s1(1) of the 1998 Act)?
(ii) If so, was there a difference of treatment as respects that
right between the complainant on the one hand and the other persons put
forward for comparison ("the chosen comparators")?
(iii) Were the chosen comparators in an analogous situation to
the complainant's situation?
(iv) If so, did the difference in treatment have an objective
and reasonable justification?: in other words, did it pursue a legitimate
aim and did the differential treatment bear reasonable relationship
proportionality to the aim sought to be achieved? [19].
- Brooke LJ, with whom the other members of the
Court of Appeal agreed on this issue in the Wandsworth case, pointed
out that sometimes there may be a need for caution about treating these four
questions as a series of separate hurdles that have to be surmounted in turn,
particularly because there is a potential overlap between the considerations
that are relevant when determining at any rate the last two and probably the
last three questions [22].
- Baroness Hale of Richmond in Ghadian
[134] expressed a similar opinion and she stated that "a rigidly formulaic
approach is to be avoided" pointing out that there was an additional question
to be considered which was question (v) namely "whether the difference in
treatment is based on one or more of the grounds proscribed – whether
expressly or by inference – in Article 14" [134].
- Mr. Swift reminded me that in Wilkinson,
Simon Brown LJ (as he then was) had said that he could not "see that Article
14 adds anything to the debate" [26]. Mr. Bowen says that his Article 14 claim
is a live issue in this case as the appropriate comparator to the claimant is
any person with capacity other than a patient because in his or her case,
treatment can be refused and that capacitated refusal cannot be overridden.
Mr. Bowen's submission is that those people ("the selected comparators") are
entitled to refuse treatment to treat the consequences of their mental or
other disorder because they are not held under the Act. He pointed out that in
Re MB (Medical Treatment) [1997] 2 FLR 426, Butler-Sloss LJ giving the
only judgment of the Court of Appeal said that:-
"A competent person who has the capacity to decide may, for
religious reasons, other reasons, for rational or irrational reasons or for
no reason at all, choose not to have medical intervention, even though the
consequence may be the death or serious handicap of the child she bears or
her own death. In that case, the courts do not have the jurisdiction to
declare medical intervention lawful and the question of her own best
interests objectively considered, does not arise" (page 436 – 437 and
repeated in almost identical terms at page 444).
- More recently, Judge LJ said in giving the
judgment of the Court of Appeal in St. George's Health Care NHS Trust v. S
[1999] Fam 26, 50H that a woman with capacity:-
"is entitled not to be forced to submit to an invasion of her
body against her will, whether her own life or that of her unborn child
depends on it. Her right is not reduced or diminished because her decision
to exercise it may appear morally repugnant".
- Mr. Bowen for the claimant, however, contends
that if the refusal of a capable patient is not of overriding importance where
no danger to the patient or others is established as in the present case, each
of the questions referred to by Brooke LJ in the Wandsworth case must
be answered in the affirmative with the result that a breach of Article 14 can
be established.
- It was not disputed that the first two questions
posed by Brooke LJ must be answered in the affirmative because the
administration of treatment to the claimant fell within the ambit of Articles
3 and 8 (question (i)) and there was different treatment between capacitated
refusing patients and the selected comparators (question (ii)).The dispute
between the parties thus centres essentially on questions (iii), (iv) and (v)
.
(ii) Question (iii) ("Were the chosen comparators in an analogous
situation to the complainant's situation?")
- Question (iii) must be answered in the negative
as the selected comparators were not in the same position as patients with
capacity for the following reasons, which I will now set out in no particular
order of importance.
- First, there is a material and significant
difference between the condition and needs of a capable patient such as the
claimant detained under section 37 of the 1983 Act and the selected
comparator, because the selected comparator (unlike the claimant) does not
suffer from mental illness, the nature and extent of which justifies the
orders which have been made under sections 37-41 of the 1983 Act. A section 37
order can only be made by a court if the requirements of section 37(2) are
met. These conditions are stringent as they require that:-
"(a) the court is satisfied, on the written or oral evidence of
two registered medical practitioners, that the offender is suffering from
mental illness, psychopathic disorder, severe mental impairment or mental
impairment and that either -
(i) the mental disorder from which the offender is suffering is
of a nature or degree which makes it appropriate for him to be detained in a
hospital for medical treatment and, in the case of psychopathic disorder or
mental impairment, that such treatment is likely to alleviate or prevent a
deterioration of his condition; or
(ii) in the case of an offender who has attained the age of 16
years, the mental disorder is of a nature or degree which warrants his
reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the
circumstances including the nature of the offence and the character and
antecedents of the offender and to the other available methods of dealing
with him, that the most suitable method of disposing of the case is by means
of an order under this section".
- In R v Birch (1989) 11 Cr App R (S) 202,
210, the Court of Appeal Criminal Division explained in relation to a hospital
order that:-
"The sole purpose of the order is to ensure that the offender
receives the medical care and attention which he needs in the hope and
expectation of course that the results will be to avoid the commission by
the offender of further criminal acts".
- The non-consenting patient committed under
section 37 of the 1983 Act has probably been placed in hospital in the hope
and expectation that he will be treated or because he is a danger to the
public and thus society has an interest in the patient receiving treatment. A
second reason why the claimant and the selected comparators are not in
analogous positions is that the claimant was detained under section 41, which
means that it appeared to the court that his detention was "necessary for the
protection of the public from serious harm". This position is markedly
different from the selected comparator who either will not have a mental
illness or (if he does suffer from a mental illness), his mental illness does
not meet the high threshold of sections 37 – 41.
- It is also noteworthy that there is also built
into the statutory regime in the 1983 Act various other provisions which apply
to mental patients and which do not apply to comparators. It is not suggested
that these provisions in the 1983 Act fall foul of Article 14. The provisions
in the 1983 Act to which I am referring include section 63, which provides
that the consent of a patient shall not be required for any medical treatment
for the disorder from which he is suffering but which treatment falls outside
sections 57 and 58.
- In my view, the selected comparators are not in
an analogous position to the claimant's position and question (iii) must be
answered in the negative with the result that the Article 14 claim fails.
(iii) Question (iv) ("Did the difference in treatment have an objective
and reasonable justification and did the differential treatment bear a
reasonable relationship of proportionality to that aim?")
- In case I am wrong on question (iii), I must now
turn to question (iv), which is whether the difference in treatment have an
objective and reasonable justification by pursuing a legitimate aim and did
the differential treatment bear a reasonable relationship of proportionality
to that aim.
- The justification for the difference in
treatment between the claimant and the comparator is that the claimant, unlike
the comparator, in the words of the assumptions "suffers from a bi-polar
affective disorder, a treatable mental illness" (Assumption 1) and that "the
nature and extent of [his] illness is such that it is appropriate for him to
be detained in a hospital for treatment". These assumptions show that there
was a need for treatment for the disorder from which the claimant was
suffering with the result that the difference in treatment of the claimant and
the comparator did have an objective and reasonable justification.
- I would have great difficulty in accepting Mr.
Bowen's submission that the difference in treatment between the selected
comparator and the refusing capable patient did not have an objective and
reasonable justification where not only those factors to which I have
mentioned are present, but also where the sentencing court had been satisfied,
as it must have been the position in the case of the claimant, that the
patient was suffering from a mental illness or psychopathic disorder.
"which makes it appropriate for him to be detained in a hospital
for treatment and, in the case of a psychopathic disorder or mental
impairment, that such treatment is likely to alleviate or prevent a
deterioration of his condition" (1983 Act s37(2)(a)(i)).
- In my view, there is an objective and reasonable
justification for the difference for the limited circumstances in which
consent can be overridden.
- In answering the second part of question (iv) on
whether the differential treatment bore a reasonable relationship of
proportionality to that aim, it is worth bearing in mind the very limited
circumstances in which section 58(3)(b) of the 1983 Act can be invoked in
respect of a capable patient, who does not consent. I set out the limitations
on the use of these provisions when I was considering in paragraphs 122 to 127
above whether the provisions in section 58 (3)(b) of the 1983 Act were
"necessary in a democratic society … for the protection of health".
- It follows from this that a competent patient
will only have treatment administered against his will where there is a
convincing case to justify its administration in the light of the extensive
safeguards for the patient, to which I have referred.
- As I have already explained in paragraph 31 in
those circumstances, the fact that consent could have been given by a patient
but has not been given is a consideration of very high importance, which must
receive significant weight but the present position under English law is that
where the case of a medical necessity for treatment has been convincingly
shown, this can, in certain circumstances override the decision of the capable
person to refuse to consent. In my view, the very high threshold that has to
be met before the refusal of a capable patient can be overridden for the
claimant who has a treatable illness which justifies his detention (namely
that the court has to be satisfied that the proposed treatment was in the
patient's best interest and was convincingly shown to be medically necessary)
is very significant. It constitutes an objective and reasonable justification
for the difference in treatment between the refusing capable patient and the
selected comparators, especially in the light of the conditions which have to
be satisfied before a section 37 order can be imposed.
- In order to decide whether section 58 is
proportionate, it is necessary to apply the test quoted by Lord Steyn in
Daly v. Home Secretary [2001] 2 AC 532
[27], which I quoted in paragraph 142 above.
- The relevant limitations under challenge have
the objective of protecting health, curing the patient and of protecting the
rights of others. I did not understand Mr. Bowen to dispute that these are
legitimate objectives, but his complaint is the extinction of the right of
autonomy in the case of consenting detained parents is not proportionate. I am
unable to accept that submission because of the mental illness suffered by the
claimant which justifies his detention, as well as the very limited
circumstances in which section 58(3) can be invoked for the reasons to which I
have already referred.
- Mr. Bowen then contends that this raises the
question why those who, like the claimant, suffer from a mental disorder,
which allows their detention in hospital should be subject to an entirely
different regime in relation to issues of consent. For those reasons, Mr.
Bowen submits that the claimant's Article 14 rights are infringed because
Brooke LJ's questions can be answered in the affirmative.
- In answer, there are significant and relevant
differences between the claimant and somebody who is not a patient because
first the claimant, unlike that other person, has a condition requiring and
resulting in their compulsory detention under the Act and second, that the
claimant unlike that other person meets the criterion of treatability. I
regard all these points as valid and decisive in showing that question (iv) in
the Wandsworth case and set out in paragraph 192 above must be answered
in the affirmative.
(iv) Question (v) Is the difference in treatment between the claimant
and the comparators based on one or more of the grounds proscribed expressly
or inferentially in Article 14?
- In any event, question (v) must be answered in
the negative because the difference in treatment between the claimant and the
selected comparator is not based on any ground proscribed expressly or
inferentially by Article 14. The reason for the difference is based on first
the mental condition of the claimant, second the need for his detention for
the protection of the public from serious harm and third the probable need for
the claimant to be treated. None of those matters individually or collectively
constitutes any ground proscribed in any way by Article 14.
- In consequence, the Article 14 claim also fails.
An additional reason why it must fail is, as was explained by the Strasbourg
Court, "the Contracting States enjoy a margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations justify
a different treatment" (Pretty v. UK (2002) 35 EHRR [58]).
X Conclusion
- For the reasons which I have endeavoured to
explain, I have concluded that permission should be given, that the claim
cannot be pursued because of its academic nature and in any event, that the
proposed treatment would not amount to a breach of Articles 3 or 8 of the
ECHR, "merely because the patient had capacity to consent but did not
consent". I also reject the claim that the present law amounts to unlawful
discrimination in breach of Article 14 against a patient with capacity because
his refusal cannot be overridden in circumstances in which the consent of
anybody other than a patient cannot be overridden. Thus, the claim has to be
dismissed.
POSTSCRIPT
Just over a week after I circulated a draft of this judgment for
corrections and shortly before I handed down this judgment, I received an
unsolicited e-mail from counsel for the claimant, which enclosed a letter from
the Chief Executive of the NHS Trust, which manages the hospital in which the
claimant is being treated. According to the claimant's counsel, this letter
"supports the claimant's position that he is at risk of being subjected to
future compulsory treatment and that this claim is not 'academic' for this
reason".
The enclosed letter is a response to an earlier letter, which has not been
sent to me. Nothing in the enclosed letter gives any indication about the
likelihood of the doctors wishing to give any particular treatment to the
claimant now or in the future. The letter merely sets out the legal position
particularly in the light of the injunction to which I referred in paragraphs
12,13 and 16 above. I am unable to infer from the letter anything, which
suggests that the claimant is "at risk of being subjected to future compulsory
treatment". Thus my conclusions on the academic nature of this claim remain as
set out in the body of this judgment.
APPENDIX I
LIST OF NECESSARY ASSUMPTIONS PUT FORWARD BY COUNSEL FOR THE CLAIMANT FOR
THE PURPOSE OF CONSIDERING THE CLAIMANT'S CASE[1].
- The claimant is a patient lawfully detained for
treatment under the Mental Health Act 1983 ("MHA") pursuant to orders under
section 37-41 of the 1983 Act. He suffers from bi-polar affective disorder, a
treatable mental illness.
- The nature and extent of the claimant's illness is
such that it is appropriate for him to be detained in a hospital for
treatment[2].
- The proposed treatment is a course of medication
falling within the scope of section 58(1)(b) of the MHA.
- The claimant has the capacity to decide if he
wishes to have treatment proposed by his Responsible Medical Officer ("RMO")
but he does not wish to have the treatment and he has refused to give consent.
- In the opinion of the RMO and the Second Opinion
Appointed Doctor ("SOAD"), the proposed treatment for the claimant[3] should be given having regard to the likelihood of the
proposed treatment alleviating or preventing a deterioration of the claimant's
condition.
- In reaching this conclusion[4], the RMO and SOAD have:-
(i) taken into consideration the fact that the claimant is
competent to refuse the treatment and has declined to consent to it;
and
(ii) given such weight to that factor as they consider
appropriate (i.e. they have applied the approach stated in R (PS) v. Dr.
G and Dr. W) [2003] EWHC 235 (Admin).
- The RMO and SOAD are not satisfied that:-
(i) the proposed treatment is required as a matter of emergency
(i.e. section 62 of the MHA is not relied on); and
(ii) the proposed treatment is necessary to protect other
persons from harm or that without such treatment, serious harm is likely to
result to the claimant's health[5].
- The administration of the proposed treatment:-
(i) could be sufficient to reach the threshold level of
degrading treatment for the purposes of ECHR Article 3; but
(ii) would be regarded as constituting a medical necessity (as
explained in Herczegfalvy v. Austria (1992) 15 EHRR 437 and R (N)
v. Dr. M [2003] 1 WLR 562) and would not amount to a breach of Article
3, if administered to an incompetent patient. (As the law is currently
understood and applied following R (PS) v. Dr. G and Dr. W, nor would
it amount to a breach of Article 3 if administered to a competent patient,
but whether PS is a correct statement of the law is the issue that
falls to be determined in these proceedings).
- The administration of the proposed treatment:-
(i) would amount to a breach of ECHR Article 8(1) that would
require justification under Article 8(2);
(ii) would be a proportionate and response (sic) in the
interests of the 'protection of health' and therefore justifiable under
Article 8(2), if administered to an incompetent patient. (As the law is
currently understood and applied following R (PS) v. Dr. G and Dr. W,
it would also be justifiable under Article 8(2) if administered to a
competent patient, but whether PS is a correct statement of the law
is the issue that falls to be determined in these proceedings).
- The issues for determination are whether by
reason of the state of affairs assumed under paragraph 7(ii) above and on the
basis of the assumptions set out above:-
(1) the proposed treatment would amount to a breach of ECHR
Article 3 merely because the patient had capacity to consent but did not
consent; and/or
(2) the proposed treatment would amount to a breach of ECHR
Article 8 merely because the patient had capacity to consent but did not
consent; and/or
(3) the present state of law amounts to unlawful discrimination
in breach of ECHR Article 14 against a patient with capacity because his
refusal can be overridden in circumstances in which the consent of anybody
other than a patient cannot be overridden.
Note: Paragraph 7(ii) above identifies the "threshold requirement"
identified by the claimant at paragraph 6 of his skeleton argument (and
assumes that in the present case its requirements are not met). So far as the
Secretary of State understands the claimant's case, it is simply that both in
relation to the application of ECHR Article 3 and in relation to ECHR Article
8, if the "threshold requirement" is not satisfied compulsory, non-consensual
treatment of a competent patient will be a breach of (i) Article 3 in those
cases where the treatment reaches the necessary level to engage Article 3 and
(ii) of Article 8 in every case.
APPENDIX II
- The purpose of this Appendix is to draw attention
to the problem of resolving challenges to SOAD's certificates before the
certificate lapses and the ensuing difficulties. This is a difficulty, which
has arisen in a number of previous cases in which a patient has sought to
challenge a decision of a RMO and of a SOAD to administer compulsory
medication to a patient, who does not or who cannot consent to being subjected
to the treatment. The problem arises because the SOAD's certificate permitting
the treatment sometimes lasts for only three months not because of any
statutory requirement, but because of medical practice. I asked counsel for
the claimant and for the Secretary of State why the SOAD certificates, which I
have seen, were only in force for three months and I was told that this was a
customary practice, which might well be justified because the patient has a
right to have his or her treatment reviewed regularly with the result that a
three-month period might be the appropriate duration.
- After I circulated a draft of this judgment, I was
helpfully informed by Mr. Jeremy Hyam, counsel for the SOAD, that it is not
customary for a three month period to be inserted in SOAD's certificates which
are often of much longer or of indefinite duration. I gratefully accept that
point. Nevertheless, even in cases where there is a SOAD's certificate of
unlimited duration, there is usually a need for the treatment to be started
promptly and that requires the court to consider any challenges to the SOAD'S
certificate speedily but that is often difficult to achieve.
- The difficulty can be shown by studying the course
of a challenge to a SOAD because a patient challenging such a certificate and
the proposed treatment usually make a prompt and successful application for an
injunction prohibiting any further treatment until the hearing of the
substantive challenge (see for example Wilkinson [6], PS [59]
and in the present case as explained in paragraphs 12 and 13 above).
- Unfortunately, in each of these cases, there has
been a certificate lasting for three months and it has not been possible for a
court to hear the substantive judicial review application until either after
the end of the three-month period or as in the present case, very close to the
end of the three month period. Even if the application for a challenge to the
SOAD's certificate is rejected very close to the end of the three month
period, it will not be possible for there to be any meaningful course of
treatment in what little is left of the three month period. More importantly,
even where the SOAD's certificate is for a longer period, the treatment is
required urgently and this means that the courts should expedite the hearing
of those challenges while ensuring that the claimant's position is
safeguarded.
- The difficulty for a court in trying to resolve a
challenge to the SOAD application is that the requirement of a fair hearing
for the patient's challenge means that there is often an inevitable delay
while the claimant adduces expert medical evidence and in some cases, there is
an extended hearing of the substantive application when the doctors are
cross-examined (see N [31] – [39] at pages 572 to 579 for circumstances
in which cross-examination of doctors should take place).
- The worrying aspect of the problem caused by the
need for the treatment to be started speedily and the limited life of some of
the SOAD's certificate can be seen in the timetabling of some of the decided
cases in which the SOAD certificates are challenged. In Wilkinson, it
is not clear when the SOAD certificate was issued but proceedings were
commenced on 15 March 2000 and it is probably right to assume that the SOAD
gave his opinion just before that time. On 18 May 2000, Jowitt J refused the
claimant's application for an order that all the doctors attend for
cross-examination. The SOAD's certificate must have expired before 15 June
2000, but the hearing of the appeal from that order started in the Court of
Appeal on 9 and 10 April 2001 before being continued on 30 July 2001, with
judgment being given on 22 October 2001; by that time the certificate of the
SOAD had long ceased to be valid.
- In N, the certificate was issued on 17 May
2002 and the application to challenge the SOAD's certificate was dismissed in
the High Court on 26 September 2002. This decision was upheld by the Court of
Appeal in a reserved judgment handed down on 6 December 2002, by which time
the certificate was again long out-of-date.
- Similarly, in PS, the SOAD issued his
certificate on 10 December 2002 and the judicial review application was only
heard in July 2003, by which time the SOAD's certificate had also expired. In
the present case, the rolled-up hearing of the permission and the substantive
was due to take place on 6-8 October 2004 which was just before the SOAD
certificate was due to expire on 15 October 2003. Thus, even if I had been
able to give judgment at the end of the hearing and there had been no appeal,
the treatment is unlikely to have been effected before the SOAD's certificate
expired.
- I stress that none of the claimants and certainly
not the claimant in the present case has deliberately delayed or prevaricated
in any way in pursuing their challenge to the SOAD. Nevertheless, it is
noteworthy that claimants' legal advisors have no incentive to obtain an early
hearing for the substantive judicial review application when, as is usual, the
claimant is protected from receiving the treatment specified in the SOAD's
certificate by an interim injunction restraining the doctors from
administering it. The problem therefore rises as to how these challenges to
SOAD's certificates can be resolved speedily, while ensuring that the claimant
is given sufficient time to adduce and serve suitable expert evidence. I have
had the benefit of thoughtful and helpful written submissions on this point
from the claimant's solicitors and from the legal advisers for the RMO.
- The claimant's solicitor points out correctly
that if a SOAD's certificate is about to expire while the litigation is in
progress, he can issue another certificate if appropriate. That is true but
the issue of such a certificate would lead to a further application to
challenge the new certificate, which would lead to a further flurry of witness
statements from experts and a probable delay while the statements are being
prepared and served. It is by no means certain that the hearing of the
challenge to the second certificate would take place before it expired.
- It is clearly desirable that the directions for
an expedited hearing are given at the earliest possible stage. It is, however,
not possible to set a pro-forma timetable to be applied in all cases because
the timing of the ultimate hearing will depend on how long it takes the
claimant to obtain a witness statement from his or her experts, who not only
will have to examine the patient, but will also have to study with care the
patient's medical records. I am very conscious that in almost cases, the
claimant will need to obtain community funding and this is likely to delay
matters.
- The best way forward would be to ensure that when
any claim is brought challenging the decision of the RMO or the SOAD to
authorise medical treatment to a patient who does not consent, there should be
a speedy and automatic oral case management hearing two working days after the
challenge application is brought. The Mental Health Act Commission has
suggested that at that case management hearing "one of the relevant factors to
take into account when making directions at such a hearing is whether the SOAD
has advised on the Form 39 that a further second opinion be obtained, and if
so, at what stage". I agree with that suggestion. Unless an application for
interim relief is made very quickly, it is unlikely that an interim order
would be appropriate without at least a hearing at which other parties were
represented. All parties should attend that hearing and the court could then
consider a timetable for steps leading up to the hearing of the substantive
claim within a timetable, which would be speedy and which would enable all
parties to have sufficient time in which to present their cases. In many
cases, it would be appropriate at the initial hearing to order a rolled-up
hearing at which the court could consider the permission application and then
proceed to deal with the substantive application.
- I have discussed these proposals with Mr. Justice
Collins, the lead judge of the Administrative Court and Ms. Lynne Knapman, the
Head of the Administrative Court Office and they support these proposals.
