"B" v Haddock & Ors

J U D G M E N T

1. LORD JUSTICE SCOTT BAKER: The applicant has been detained in Ashworth Mental Hospital since 1995 without limit of time under Sections 37 and 41 of the Mental Health Act 1983. He was sent there, having committed serious criminal offences, and was diagnosed as suffering from a psychopathic disorder. Dr Haddock, the First Defendant, decided that treatment with anti-psychotic medication would alleviate his condition. As the applicant did not consent, it was necessary to obtain, under Section 58 of the Mental Health Act, a certificate from a second opinion doctor appointed by the Mental Health Act Commission, known by the acronym SOAD. This was duly forthcoming from the second defendant.

2. The treatment commenced on 13th May 2004 and involved the administration of intramuscular depot injections of an anti-psychotic drug. The applicant obtained the opinion of an independent psychiatrist who said he was not suffering from any mental illness and that the proposed treatment was not necessary or appropriate. This evidence was supported by an independent psychologist. After the claim was lodged, the First Defendant undertook not to administer further medication until a further order of the court. Due to the passage of time, a further SOAD certification was required and duly obtained from the Third Defendant.

3. The applicant claimed that the administration of medication without his consent was a breach of his human rights. Collins J held that it was not. The case raised some difficult and important questions, including the nature of the review to be carried out by the Administrative Court and how it should deal with a conflict of expert opinion. The independent psychiatrist went so far as to say that this was one of the most obvious cases of psychiatric injustice that he had ever come across. The judge rejected this conclusion on the documents, without hearing oral evidence, but I would make it plain that neither party suggested that it was necessary for him to hear oral evidence on the basis that the dispute was perfectly clear from the voluminous reports that had been lodged.

4. Mr Pezzani, for the applicant, submits that the authorities are unclear about the nature of the review that it required to be conducted by the court and, in particular, that there is some tension between R (Wilkinson) v Broadmoor Special Hospital Authority[2002] WLR 419 and R(N) v M & Ors[2003] 1 WLR 562. Ms Eleanor Gray submits that, in reality, that issue does not arise in the particular circumstances of this case. Mr Pezzani also submits that there is an issue of law about the test to be applied before forcible treatment can be given. He says that the European Human Rights Court decision of Herzegfalvy v Austria[1993] 15 EHRR 437 refers to a two-stage test and that there is an issue between this decision and the obiter observations of this court in N v M, which suggested that it was not a two-stage test at all but rather a one-stage test. Ms Gray for the First Defendant submits that Herzegfalvy does not in fact propound a two-stage test and that this point is in reality doomed to failure. There are other issues, for example the relevance of a contemporaneous decision of the Mental Health Review Tribunal because there was a decision in this case at very close to the same time as the Judicial Review application.

5. Maurice Kay LJ, refusing permission on paper, said that he thought that Collins J's approach to his decision was entirely consistent with recent authority. Mr Pezzani has filed a statement under the rules explaining why the court should take a different view from Maurice Kay LJ. In short, he says that serious questions remain as to the correct application of the law in this area. Ms Gray says there may be some outstanding questions but they do not really arise in the particular circumstances of this case.

6. I have, for my part, some doubt as to whether, despite Mr Pezzani's able argument, he could persuade the full court that, in the result, Collins J came to a wrong conclusion but, in my view, there are a number of important issues which, at least arguably, arise in the circumstances of this case and, in these circumstances, and bearing in mind that this is a difficult and developing area of the law, I, for my part, would grant permission to appeal.

7. LORD JUSTICE NEUBERGER: While sharing my Lord's reservations I too, for the reasons he has given, would grant permission to appeal.

Order: Application for permission to appeal granted, to be held before three Lords Justices. Time estimate of one day to one-and-a-half-days.