B, R (on the application of) v SS (Responsible Medical Officer) & Ors

We shall follow the example of the judge below and refer to those who feature in this litigation by initials. This is an appeal from the judgment of Charles J dated 8 September 2005 whereby he dismissed claims for judicial review which challenged decisions to subject the appellant, ‘Mr B’, to medical treatment to which he did not consent.

Mr B, is a patient detained at Broadmoor Hospital under sections 37 and 41 of the Mental Health Act 1983 (‘the MHA’) following his conviction for rape in 1995. He has been diagnosed as suffering from Bipolar Affective Disorder. He has not received medication for this condition since 2003.

The first respondent, ‘Dr SS’, is his responsible medical officer (‘RMO’). Dr SS believes that Mr B’s condition is deteriorating and wishes to treat him with anti-psychotic medication, administered by injection, and a mood stabiliser. Mr B has refused to consent to this treatment. Dr SS seeks to medicate him by compulsion. He contends that he is entitled so to do pursuant to section 58 MHA. He has obtained the certificate required under that section from the second respondent, ‘Dr G’, the Second Opinion Appointed Doctor (‘SOAD’). The fundamental issue in this case is whether to treat Mr B without his consent pursuant to section 58 of the MHA would infringe the European Convention on Human Rights (‘the Convention’). The third respondent, the Secretary of State for the Department of Health, has been joined because Mr B contends that, unless it can be appropriately ‘read down’, section 58 is incompatible with the Convention.

It is necessary at the outset to outline the rather complicated proceedings that have culminated in this appeal. Earlier proceedings were brought by Mr B in 2004 against Dr SS, a different SOAD and the Secretary of State in objection to an attempt to treat him compulsorily. Before the hearing Dr SS wrote to the solicitors for Mr B stating that the SOAD certificate had expired and that he did not propose at that time to treat Mr B without his consent. In these circumstances, on 4 October 2004, Silber J by consent granted an injunction against imposing treatment on Mr B without his consent that was to continue unless and until varied or discharged and dismissed the proceedings against Dr SS and the SOAD. The action proceeded, however, against the Secretary of State. In a judgment delivered on 31 January 2005, R (B) v Dr SS & Ors [2005] EWHC 86 (Admin), Silber J held that Mr B’s claim was academic but went on to hold, notwithstanding, that there was no need to ‘read down’ section 58 and that the section was compatible with the Convention.

In May 2005 Dr SS decided that circumstances had changed and that compulsory treatment was now warranted. He obtained the necessary certificate from Dr G and then, on 2 June 2005 applied to the Administrative Court to discharge the injunction granted by Silber J. On 8 June Mr B commenced fresh proceedings for judicial review in order to challenge the legality of what was proposed. It was agreed that Dr SS’s application should be determined in the judicial review proceedings.

The judicial review proceedings were heard before Charles J over 5 days between the 19 and 27 August. Mr Bowen, on behalf of Mr B, raised the two issues on which he had failed before Silber J. These were:

The ground for attacking the decision to impose compulsory treatment on Mr B that was argued before Charles J was that such treatment could not lawfully be given in the absence of ‘convincing medical necessity’ and this was not demonstrated because (a) Mr B had capacity to refuse medical treatment and (b) the evidence did not convincingly establish that he was suffering from Bipolar Affective Disorder that was relapsing.

Dr SS diagnosed Mr B as suffering from Bipolar Affective Disorder. This diagnosis was disputed in the proceedings before Silber J and in hearings before Mental Health Review Tribunals. In the earlier proceedings Mr B relied upon reports of Dr A expressing the opinion that B did not suffer from any mental disorder. He also relied upon a report from Professor H. Both Dr SS and Professor H gave oral evidence before Charles J. Professor H agreed with Dr SS’s diagnosis that Mr B suffered from Bipolar Affective Disorder. In these circumstances those acting for Mr B ceased to rely on the evidence of Dr A and accepted, before Charles J, that Dr SS’s diagnosis was correct.

A person who suffers from Bipolar Affective Disorder has periods of time when he is in full remission, when he experiences no symptoms of the disease. Such periods of remission are interspersed with periods of illness, which characteristically takes the form of elevated, expansive or irritable moods, with or without features of psychosis, namely hypomania or mania, and periods of depression.

Apart from the oral evidence a substantial volume of written medical evidence, consisting of reports from no less than four psychiatrists was placed before Charles J. His judgment focussed, reasonably, on the two psychiatrists who gave oral evidence. There proved to be less between them than had at first appeared. Dr SS wished to subject Mr B to anti-psychotic medication, delivered by injection under compulsion if necessary. He wished also to administer a mood stabiliser, but this required the co-operation of Mr B. There was a possibility that one effect of the anti-psychotic medication might be to induce Mr B to agree to take the mood stabiliser. It was Dr SS’s view that Mr B’s condition had deteriorated and that he lacked capacity to consent to the treatment proposed. Dr G endorsed the opinion of Dr SS that the treatment that he proposed should be given.

Professor H approved of the treatment proposed by Dr SS, but did not agree that it should be administered by compulsion. He considered that Mr B had the capacity to consent. In these circumstances the appropriate course was to seek to persuade him to have the treatment, but not to force him to do so. Were he to lack capacity to consent, Professor H would approve the administration of the treatment by compulsion. Equally, were his condition to deteriorate to a state of hypomania or mania, compulsory administration of the treatment would be justified.

The MHA empowers compulsory treatment of both capable and incapable detained patients under Part IV of the Act (sections 56-64).

Section 63 provides:

"63.

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer."

Section 57 requires the patient's consent and a second opinion before specified treatment can be carried out, including surgical operations for destroying brain tissue. In relation to treatment falling within section 58 (namely Electro-Convulsive Therapy and medication beyond an initial 3 month "trial" period), an additional safeguard is created, namely the requirement for consent by an independent doctor appointed by the Mental Health Act Commission (the SOAD).

Section 58 provides:

"58.—(1) This section applies to the following forms of medical treatment for mental disorder— (a) … ; (b) the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section 57 above) at any time during a period for which he is liable to be detained as a patient to whom this Part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.

(2)

… .

(3)

Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless— (a) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.

(4)

Before giving a certificate under 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."

Section 62, authorises "emergency" treatment to which sections 57 and 58 do not apply. It provides:

"62.

- (1)   Sections 57 and 58 above shall not apply to any treatment— (a) which is immediately necessary to save the patient's life; or (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or (c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or (d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.

(2)

Sections 60 and 61(3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 57 or 58 above if the responsible medical officer considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.

(3)

For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard."

The Mental Health Act Code of Practice provides that the presence or absence of capacity is relevant to the decision-making process (Code of Practice, paragraphs 15.25 and 16.38).

This is, in effect, an appeal against the judgments both of Silber J and of Charles J. Each was of great length, and we will attempt to summarise them shortly.

Counsel for the Secretary of State argued that, because Dr SS no longer intended to subject Mr B to compulsory treatment, the application to seek judicial review was academic and should not be entertained. At a ‘rolled up’ hearing, Silber J granted permission to claim judicial review, but rejected the claim on the ground that it was academic. He went on, however, to express his views on the substantive issues raised and it is these views which Mr Bowen seeks to challenge on this appeal.

The hearing before Silber J proceeded on the basis that Mr B had capacity to consent to treatment. The issue was whether, in these circumstances, the imposition of treatment without his consent would infringe his rights under the Human Rights Convention. Mr Bowen argued that, if the Convention was to be complied with, it would be necessary to show convincingly (i) that the treatment was medically necessary (‘the medical necessity requirement’) and (ii) that the treatment was necessary either to prevent the patient causing harm to others or to protect the patient from serious harm (‘the threshold requirement’). Mr Swift for the Secretary of State argued that the medical necessity requirement was all that needed to be satisfied to comply with the Convention.

Silber J rejected the argument that the Convention required that the threshold requirement be satisfied. He held that neither Article 3 nor Article 8 would be infringed by compulsorily subjecting a competent patient to treatment that was a therapeutic necessity. Treatment that was a therapeutic necessity could not be regarded as ‘inhuman or degrading’ for purposes of Article 3. So far as Article 8 was concerned, Article 8 (1) was engaged but treatment that was a therapeutic necessity could be justified under Article 8 (2) provided that it was in accordance with the law. Thus it had to satisfy both the ‘best interests’ test of the common law and the express requirements of Section 58. In deciding whether treatment was a therapeutic necessity, the fact that the patient did not consent to it was a very important factor. There was no breach of Article 14 for reasons which included the fact that the suggested comparators were not in an analogous position and there was an objective and reasonable justification for overriding the wishes of a patient where section 58 applied.

As we shall explain, Charles J held, on the evidence, that Mr B lacked capacity. Capacity was not, however, a critical factor in deciding whether treatment infringed the Convention. Whether or not a patient had capacity, the fact of refusal of treatment was an important consideration in determining whether treatment could be justified.

So far as Article 3 was concerned, inhuman or degrading treatment would not be demonstrated where it was convincingly shown that the treatment was a therapeutic or medical necessity. Where the treatment was of sufficient severity to raise the issue of compliance with Article 3, the Court had itself to resolve the issue of therapeutic necessity on the evidence. Having formed a view there was no scope for deferring to a contrary view expressed by an RMO or SOAD. So far as concerned the standard of proof implicit in the phrase ‘convincingly shown’, this fell somewhere between the criminal standard and the civil standard at English law.

So far as Article 8 was concerned that Article was engaged, whether or not Mr B had capacity. The issue was justification under Article 8(2). Such justification did not necessarily require that it should be convincingly shown that the treatment was a therapeutic necessity. The conventional three-fold test fell to be applied: Was the treatment: (i) in accordance with the law; (ii) for a legitimate aim and (iii) necessary in a democratic society. Treatment would be in accordance with the law if it fell within the terms of section 58. Silber J erred in postulating that it also had to satisfy the common law ‘best interests’ test.

Charles J then turned to apply these principles to the facts. He analysed the evidence at great length and reached the following conclusions as to the proposed treatment:

“147.

The purposes of giving medication are to alleviate Mr B’s current symptoms and to produce a stability, to improve his chances of rehabilitation (i.e. to improve his functioning in terms of eventual progress in employment and parole), to improve his level of insight into his illness so that he can come to co-operate in his treatment plan and also engage in other therapy designed to address his insight into his offending, to increase the chances of him proceeding to a lower security setting sooner (or indeed at all), to protect him against the chance of future relapse of his life-long condition (the prophylactic effect), to reduce the risk of him suffering harm at the hands of others and to reduce the risk of him causing harm to others.

148.

In my judgment there are sound and compelling reasons to believe that the treatment will achieve many, or all, of those purposes to a significant degree and thus overall be of considerable benefit.”

Dealing with the question of whether Mr B had capacity, Charles J held that he had not and that, if it was necessary for this to be convincingly shown, it had been. The fundamental reason for this conclusion was that Mr B did not accept that the underlying diagnosis of mental illness was correct, or realistically accept the possibility that it might be. He was not able to process information about his treatment and condition at a cognitive level because his mental condition so coloured his comprehension of that information.

Charles J then turned to consider Article 3. He concluded that the proposed compulsory administration of anti-psychotic medication was unlikely to reach a level of severity sufficient to engage Article 3. In any event it had been convincingly shown that the treatment was a medical or therapeutic necessity. His finding that Mr B lacked capacity was not critical to this conclusion.

The finding that it had been convincingly shown that the proposed treatment was a medical or therapeutic necessity led to the following further conclusions. The treatment satisfied the test in section 58 MHA, it was justified under Article 8(2) and it was in Mr B’s best interests.

The claim for judicial review was dismissed and the injunction granted by Silber J was discharged, subject to a stay pending this appeal.

This appeal raises the following issues:

English law attaches great importance to the freedom of the individual to decide what should or should not be done by way of physical interference with or invasion of the body. As a general proposition, deliberate physical interference with or invasion of the body of another without that person’s consent will constitute a criminal offence and give rise to a claim in tort. Conversely, where there is consent to such conduct, this will normally provide a defence to any allegation of criminal or civil fault. There are exceptions to these general propositions. In particular the law recognises that there are circumstances in which consent, or apparent consent, should not carry the legal significance that normally attaches to it. One such exception arises where the individual lacks the mental capacity to give the consent in question. In such circumstances neither refusal of consent nor apparent grant of consent will necessarily be the factor that governs the legality of the conduct in question. The legality of the conduct may fall to be determined by other considerations, such as the common law doctrine of necessity.

The position described above is recognised and provided for by the MHA. The speech of Baroness Hale of Richmond in Regina (B) v Ashworth Hospital Authority[2005] UKHL 20; [2005] 2 WLR 695 at paragraphs 25 and 26 gives a useful summary of the history of the provisions of the MHA which deal with the effect of consent, or lack of it, in the case of mental patients.

This appeal is concerned with the effect of section 58 of the MHA. This section seems to lay down the relevant test of capacity when it speaks of the patient being “capable of understanding the nature, purpose and likely effects of” the treatment. Arguably these words do not go far enough to define capacity. In R(Wilkinson) v Broadmoor Hospital Authority [2001] EWCA Civ 1545; [2002] 1 WLR 419 at paragraph 66 Hale LJ suggested that the test of capacity laid down by this court in relation to treatment for a physical disorder in In re MB (medical Treatment) [1997] 2 FLR 426 at 437 was suitable for assessing capacity for the purpose of section 58(3)(B) of the MHA. That test includes the requirement that the patient is able to use the information “as to the likely consequences of having or not having the treatment” and “weigh it in the balance as part of the process of arriving at the decision”.

Whatever the precise test of the capacity to consent to treatment, we think that it is plain that a patient will lack that capacity if he is not able to appreciate the likely effects of having or not having the treatment. The judge found that this was the position so far as Mr B was concerned in that he did not accept even the possibility that he might be mentally ill and thus in need of treatment.

Mr Bowen submitted that Mr B’s refusal to accept the possibility that there was anything wrong with him was no indication of irrationality or lack of capacity in that this was an opinion shared by Dr A and Mr B’s understanding of the position might have been influenced by Dr A. Mr Owain Thomas, who appeared for Dr SS, comprehensively demolished this suggestion. Dr A, whose evidence was, as we have indicated, abandoned by those acting for Mr B, thought that Mr B had suffered from a drug induced psychosis. Mr B did not accept this. He did not accept that there was or had been anything wrong with him, or even that there was a possibility that he might be ill. There is no evidence to suggest that Mr B was influenced by Dr A’s views.

Charles J dealt with the issue of Mr B’s capacity at paragraphs 178 to 195 of his judgment. He described his consideration of this issue as ‘anxious scrutiny’ of the cogency of the evidence. Two psychiatrists had concluded that Mr B had capacity, in Professor H’s case ‘by a fine balance’, and two that he had not. For the reasons given at paragraph 34 the judge concluded that the latter two were correct. We find the judge’s reasoning compelling. We reject Mr Bowen’s challenge to the finding that Mr B lacked capacity.

On this issue Mr Bowen sought permission to adduce additional evidence. One might have thought that there had been enough psychiatric evidence in this case, but those acting for Mr B appear to have persuaded the Legal Services Commission that they should fund the obtaining of a report from a further Consultant Psychiatrist. This report, provided by Professor Sashidharan on 24 August 2005, was based largely on two interviews with Mr B. He appears to have accepted a version of the events relevant to Mr B’s conviction for rape that were wholly at odds with the evidence that had led to his conviction. Professor Sashidharan reached the conclusion that Mr B did not suffer from any form of mental disorder and that, accordingly, he ought to be discharged.

It was not clear to us what use Mr Bowen wished to make of this evidence. Before Charles J it had been common ground that Mr B suffered from Bipolar Affective Disorder for which, at least if he consented, it was desirable that he should receive the proposed treatment. Mr Bowen had not sought permission to depart from this common ground. Quite apart from this, the admission of this additional evidence could not satisfy the requirements of Ladd v Marshall [1954] 1 WLR 1489. Mr Bowen argued that this evidence was not available at the hearing below, but this was simply because it had not been obtained at that stage. Professor Sashidharan was instructed about a month before the hearing before Charles J. Had there been need for further psychiatric evidence we can see no reason, had it been sought promptly, why such evidence should not have been adduced before Charles J.

For all these reasons we can see no justification for admitting this additional psychiatric evidence and we do not do so.

Mr Bowen’s appeal is largely founded on the premise, demonstrated to be false, that Mr B had capacity at the material time. As we indicated at the outset of the appeal, it does not seem to us that this fact should result in dismissal of the appeal without considering the issues that Mr Bowen seeks to raise. The reason for this is the nature of the illness of Bipolar Affective Disorder. The evidence suggests that, with treatment, Mr B may achieve a state of full remission where his capacity to consent to treatment is restored. Charles J made it clear that such circumstances would not necessarily mean that further treatment without consent would infringe the Convention. In anticipation of the possibility that Mr B may recover capacity we think that it is right to address the third issue.

Mr Bowen submits that the three Articles of the Convention will be violated if a competent patient is subjected to invasive treatment to which he does not consent unless the treatment is necessary for the protection of the public or to prevent the patient from suffering serious harm. Mr Bowen’s submissions have, implicitly, been founded on two premises, each of which we believe to be unsound. Mr Bowen’s first premise is that compliance with the threshold requirement has to be demonstrated at the stage when it is proposed to administer the treatment. Thus the question is posed in relation to a patient who is detained in a mental hospital and whose capacity for harming the public or experiencing harm himself is mitigated by the security and the access to care that is implicit in that situation. As we shall show this premise is at odds with the overall scheme of the MHA, a scheme which we do not believe to be incompatible with the Convention.

Mr Bowen’s second premise is that autonomy, and thus capacity, is of critical importance in deciding whether a particular treatment can be imposed upon the detained patient. In a case such as that of Mr B this produces the following result. Mr B suffers from a disease whose effect is intermittent. There are spells of remission when he is without symptoms and spells when the illness produces symptoms which can vary from depression to hypomania. Anti-psychotic medication helps to produce or prolong the periods of remission. For this reason it is, objectively, in Mr B’s own interest that he should accept the medication. When he is in remission and has capacity those caring for him cannot subject him to medication against his will, notwithstanding that the consequence is that he is rendered more likely to relapse into a condition where he loses capacity. Once he loses capacity, however, the medication can be administered, even though he does not consent to it. This scenario borders on the absurd. It also conflicts with the position that prevails in relation to treatment of physical illness, where doctors must have regard to the wishes of the patient expressed when he has capacity in relation to his treatment should he lose capacity. We have concluded that Charles J was correct to hold that capacity is not the critical factor in determining whether treatment can be administered without consent.

The MHA is primarily concerned with the compulsory detention of patients suffering from mental disorders in order that they may receive treatment for those disorders. The compulsory detention is justified because it is necessary in order to ensure that the patient receives the treatment. Ensuring that the patient receives the treatment is justified because this is necessary for the health or safety of the patient or for the protection of others.

The initial justification for detaining Mr B for treatment is demonstrated by the gravity of the crime that he committed. This was at one end of the wide spectrum of anti-social behaviour that can justify detention for the protection of the public. Where the offender is of sound mind the detention will be imprisonment. Where, however, the anti-social behaviour is attributable to treatable mental illness, the preferable alternative is likely to be detention for treatment in a mental hospital. And such detention can be justified both where criminal conduct has demonstrated the need to protect the public and where there are other grounds for concluding that the public is at risk from the patient.

Whether detention is in prison or in hospital it will necessarily interfere with a number of human rights. It will interfere with the right to liberty (Article 5). It will interfere with family life (Article 8). It may interfere with the right to teach or practise one’s religion (Article 9). It may interfere with freedom of assembly (Article 11). It may interfere with the right of enjoyment of one’s possessions, or with education (Articles 1 and 2 of the First Protocol).

The MHA makes lawful further interference with Article 8 rights in permitting treatment without consent. As Baroness Hale pointed out in B v Ashworth, until 1983 the legislation dealt expressly only with the right to detain for treatment, taking it for granted that it would be lawful compulsorily to treat those detained. Part IV of the MHA now deals expressly with the power compulsorily to treat where that is the object of the detention. A distinction is drawn between the most invasive treatment, which can only be administered with the capacitated consent of the patient (section 57), medical treatment for mental disorder, which requires capacitated consent or the opinions of two medical officers that the treatment should be given having regard to the likelihood that it will alleviate or prevent a deterioration of the patient’s condition (section 58) and other medical treatment for the patient’s mental condition, which can be administered without consent (section 63).

Thus the MHA provides for an integral package of detention and treatment and imposes restrictions designed to ensure that individual treatment is justified. It is not logical to consider the latter question in isolation from the overall objective of the package. The most important question is likely to be whether the package is justified, and that is a question that falls within the remit of the Mental Health Review Tribunal under Part V of the MHA. If detention of a patient for treatment pursuant to section 3 is justified on the ground that the treatment is necessary for the protection of others, it is illogical to contend that a higher standard has to be applied to justify the administration of the treatment itself. We endorse the comment made by Baroness Hale in R(B) v Ashworth at paragraph 31:

“Once the state has taken away a person’s liberty and detained him in a hospital with a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs.”

In R (PS) v Dr G [2003] EWHC 2335 Admin); [2004] 1 MHLR 1 at paragraph 134 Silber J accepted the submission that:

“ the decision to administer anti-psychotic medication has to be considered in the context that the medication is likely to lead to the claimant being rehabilitated rather than remaining subject to long-term incarceration ”

We agree that this submission was sound. The overall objective of detention of a dangerous patient ought to be that the patient should be rehabilitated and able to return to society. This of itself militates against an approach that ignores the overall object of the MHA package, looks at the patient in detention, and imposes a threshold requirement that treatment without consent can only be justified if that treatment is necessary to stop the patient causing harm to others or to protect the patient from serious harm.

As for the significance of capacity, this is an important, but by no means straightforward concept under English law. Thus in In re T [1993] Fam. 95 at 113 Lord Donaldson MR remarked that the capacity must be commensurate with the gravity of the decision purported to be made. “The more serious the decision, the greater the capacity required”. The test is particularly difficult in the present context. Where it is common ground that a patient has a mental disorder, that treatment would alleviate that disorder, that it would be in his interest to consent to that treatment and that he refuses to do so, the question of whether he has capacity is bound to be problematic.

The concept of capacity is not developed in the Strasbourg jurisprudence. We are here concerned with whether compulsory medical treatment infringes Articles 3, 8 and 14 of the Convention. We think that Charles J was correct to conclude that, when considering the severity of treatment the fact that it is imposed by compulsion is more significant than the question of whether the patient has or has not capacity to consent to the treatment.

With these general observations we turn to consider whether the authorities lend support to Mr Bowen’s submission. We shall start with domestic authority. It is sparse on this point. Wilkinson was concerned with procedure, and we will return to it in that context. The facts were very close to those of the present case. The claimant, a convicted mental patient compulsorily detained in Broadmoor challenged the decision compulsorily to administer anti-psychotic medication. In the course of his judgment Simon Brown LJ made the following observations:

“28.

One document usefully brought to our attention on the adjourned hearing of the appeal was a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in August 2000, 8^th General Report (CPT/Inf (98) 12), paragraph 41 of which reads:

“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 upon law and only relate to clearly and strictly defined exceptional circumstances.”

29.

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.

30.

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.”

Hale LJ, who has great experience in this field, commented at paragraph 80:

“80.

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 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 an 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.

81.

This is well illustrated by the report of the expert committee chaired by Professor Genevra Richardson, “The Review of the Mental Health Act 1983” (Department of Health, November 1999). This discusses the treatment of the detained patient with capacity in paras 7.19 to 7.24. There was considerable support on consultation both for detention without forced treatment and for detention with enforced treatment. The dilemma could only be resolved by a moral judgment which it was ultimately for politicians to make.”

Mr Bowen has referred us to international material which was, no doubt, what Hale LJ referred to as “indications that the issue of capacity is assuming greater importance”. The Council of Europe “White Paper” on the Protection of the Human Rights and Dignity of People Suffering from Mental Disorder, 3 January 2000, recommends an absolute embargo on imposing compulsory treatment on patients who have capacity. Thus this does not accept the threshold requirement for which Mr Bowen contends – it goes further than his position.

United Nations General Assembly Resolution 46/119 of 17 December 1991 “Principles for the Protection of Persons with Mental Illness” contains the following relevant principles:

Principle 9: Treatment

9.4: The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

Principle 11: Consent to Treatment

1.

No treatment shall be given to a patient without his or her informed consent, except as provided for by paragraphs 6, 7, 8, 13 and 15 of the present principle.

11.

Except as provided … (b) … the patient lacks capacity … or, if domestic legislation so provides, that, having regards to the patient’s own safety or the safety of others, the patient unreasonably withholds such consent.”

This comes closer to the propositions advanced by Mr Bowen.

Further support for Mr Bowen’s submissions can be derived from Article 7 of the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (1997):

“Article 7 Protection of persons who have a mental disorder

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.”

In Glass v United Kingdom (2004) 39 EHRR 15 the ECtHR referred to these principles under the heading of ‘Relevant international materials’. That was a case concerning medical treatment of a child and we do not consider that the ECtHR can be taken to have endorsed, without discussion, the entirety of that Convention.

We are concerned with whether the express provisions of the MHA are compatible with the Human Rights Convention, not with other international instruments which are not directly binding on this court. We turn, therefore, to the Strasbourg jurisprudence.

The leading authority is Herczegfalvy v Austria (1992) 15 EHRR 437. The applicant was detained in an institution for ‘mentally deranged offenders’. While detained he was subjected to the forcible administration of food and neuroleptics and to handcuffing to a security bed. He complained of violation of his Article 3 and 8 rights. In dismissing these complaints, the court held:

“82.

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 recognised 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 therefore responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit of no derogation.

The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessary has been convincingly shown to exist.

83.

In this case it is above all the length of time during which the handcuffs and security bed were used which appears worrying. However, the evidence before the Court is not sufficient to disprove the Government’s argument that, according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue.”

These general principles were advanced in relation to a patient who lacked capacity. It is significant, however, that the ECtHR recently applied these principles to a complaint by an applicant, who was not mentally ill, that he had been force-fed while in criminal detention and that this had infringed Article 3. In Nevmerzhitsky v Ukraine (decision of 12 October 2005) the court was referred to international materials that advocated that patients or prisoners who had capacity should not be subjected to compulsory treatment or force-feeding. Nonetheless it rejected the complaint, holding:

“94.

The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist (see Herczegfalvy v Austria).”

The second ground of appeal contended, in the alternative to Mr Bowen’s primary submission in relation to the threshold requirement, that compulsory treatment would only satisfy the Convention if there was a convincing medical necessity for it and that this had not been demonstrated because (i) Mr B had capacity and (ii) the evidence did not convincingly establish that he was suffering from Bipolar Affective Disorder which was relapsing.

There was debate before Charles J as to the extent to which the test of medical or therapeutic necessity equated with the test of the patient’s best interests and as to whether treatment would only be ‘in accordance with the law’, as required by Article 8(2) if it satisfied both the requirements of section 58 and the best interest test. Charles J did not accept that it was necessary to show that there was medical or therapeutic necessity or that the treatment was in the best interests of the patient in order to satisfy the requirements of Article 8 (2). All that had to be shown was that the express requirement of section 58 was satisfied, namely that the treatment should be given ‘having regard to the likelihood of its alleviating or preventing a deterioration’ of Mr B’s condition.

The debate was rendered academic by the fact that Charles J found that the proposed treatment in this case was convincingly shown to be a medical necessity, was in the best interests of the patient and satisfied the requirements of section 58. Mr Bowen only challenged the first two findings on the premise that Mr B had capacity. He did not challenge the findings that we have set out in paragraph 25 above. In the light of those findings we consider that the judge was entitled to find that the treatment was in Mr B’s best interests and that it had been convincingly shown that it was a medical necessity. In these circumstances it is not necessary for us to decide whether these two tests are the same. We would however make the following observations.

The express criteria in section 58(3)(b), namely ‘the likelihood of its alleviating or preventing a deterioration of his condition’ should not be equated with the test of whether treatment is in the best interests of the patient. That question will depend on wider considerations than the simple question of the efficacy of the treatment, such as whether an alternative and less invasive treatment will achieve the same result. The distress that will be caused to the patient if the treatment has to be imposed by force will also be a relevant consideration. English common law and medical ethics both require that medical treatment shall not be imposed without the consent of the patient unless the treatment is considered to be in the best interests of the patient. Thus, while the specified criteria are obviously critical to the decision of whether the treatment should be given, they are not the only considerations that are relevant to that question. The SOAD has to certify that the treatment should be given and we do not see how he can properly do that unless satisfied that the treatment is in the best interests of the patient.

We summarise our conclusions shortly as follows. On the findings of fact made by Charles J the imposition of the proposed anti-psychotic medication will be lawful under English law and will not infringe the Convention.

It was suggested in the course of argument that this court in Wilkinson established the principle that where treatment under Article 58 was in issue in judicial review proceedings the claimant was entitled to require the medical witnesses to attend to give evidence and to be cross-examined and that the observations of Dyson LJ in R(N) v M [2002] EWCA Civ 1789; [2003] 1 WLR 562 at paragraphs 35 to 37 were in conflict with that principle. Those observations were that cross-examination of medical witnesses in such a case should be ordered if necessary.

We see no conflict between the observations of Dyson LJ and Wilkinson. Those observations were themselves based on a comment by Hale LJ in Wilkinson. It is manifestly undesirable that medical practitioners should have to attend court to give evidence rather than devote themselves to their patients if this can be avoided. There are a number of further observations that we would make about litigation such as this. Part VI of the MHA provides for applications to Mental Health Review Tribunals (MHRTs) to resolve issues arising under various provisions of the Act. MHRTs are specialist tribunals well qualified to deal with medical issues. The same is not true of the Administrative Court. Whilst the jurisdiction of MHRTs extends to the propriety of detention for treatment it does not extend to issues relating to the propriety of treatment pursuant to section 58. There is, however, an obvious overlap between the question of whether a patient is suffering from mental illness which justifies admission for treatment and the question of whether treatment should be administered under section 58. In each case an issue can arise as to whether the proposed treatment is likely to alleviate or prevent a deterioration of the patient’s condition. Equally, there may be a seminal question as to whether the patient is suffering from a relevant mental illness at all.

Where the real issue is whether the patient should be detained in a mental hospital at all, that issue is one that should be referred to a Mental Health Review Tribunal in the first instance, rather than be the subject of judicial review proceedings. It seems to us that, at times at least, this was the real issue in this case. In such circumstances the appropriate course may well be on the application for permission to grant an interim injunction and adjourn the application pending a hearing before the MHRT.

Where the challenge is not to the grounds for detention but to the treatment itself, careful consideration must be given to the procedure to ensure, in so far as is possible, that there are not protracted and expensive legal proceedings requiring oral evidence from medical witnesses where there is no prima facie case that anything untoward has occurred. Both Silber J and Charles J gave consideration to procedure at the end of their judgments. We heard no argument about this and will not comment on it, save to say that some of the observations might be thought to suggest that any mental patient ought to be able to challenge treatment proposed under section 58 by a full hearing with evidence from medical experts additional to those already involved. It is, of course, essential that the requirements of Article 6 of the Convention are satisfied but this does not mean that permission must be given for judicial review proceedings where the papers do not disclose any arguable grounds for this.

Section 58 imposes preconditions to compulsory treatment which ought to ensure that this is not imposed unless there is a convincing therapeutic case for it. They will only do so, however, if the SOAD satisfies himself or herself that the treatment in question should be imposed. This requires a truly independent assessment, not merely approval of the RMO’s decision on the basis that it is not manifestly unsound. If section 58 is properly complied with issues requiring the cross-examination of medical witnesses should not often arise.

For the reasons that we have given this appeal is dismissed.