JB, R (on the application of) v Resonsible Medicial Officer

This appeal concerns a challenge by JB, the appellant, a person detained and subject to restrictions in a high security hospital, pursuant to orders of the Crown Court under sections 37 and 41 of the Mental Health Act 1983 (“the Act”), to the Hospital’s administration to him of anti-psychotic medication without his consent, purportedly pursuant to section 58(3)(b) of the Act. The appeal is from an order of Collins J of 20^th May 2005 dismissing his claim for judicial review of the decision forcibly to treat him in that way.

The appellant, who is 28 years old, is detained in Ashworth Hospital, one of three high security hospitals, for detention and treatment of persons liable to be detained under the Act who “require treatment under conditions of high security on account of their dangerous, violent or criminal propensities”. (Footnote: ¹) He has been at the hospital for over ten years, having been detained there at the age of 18, classified as suffering from “psychopathic disorder”.

The scheme of the Act, in its application to admission to and detention in a hospital of persons suffering from mental disorder, as non-exhaustively defined in section 1(2), is to identify, four forms, or “classifications” of mental disorder, namely mental illness, psychopathic disorder, severe mental impairment and mental impairment. Secondly, the Act makes it a condition of admission and detention, whether on application by two registered medical practitioners – section 3 – or by order of the court –section 37 – that the form of mental disorder in question is “of a nature or degree” to make detention and treatment “appropriate”. And, thirdly, it imposes in the case of one or both of two of those forms of mental disorder, namely psychopathic disorder and mental impairment, a further condition of admission and detention, namely that the treatment “is likely to alleviate or prevent a deterioration of his condition” – sections 3(2)(b) and 37(2)(a)(i), known as the “treatability test”.

Despite the distinction in the Act between, on the one hand, mental illness and severe mental impairment, and, on the other, psychopathic disorder and mental impairment, seemingly by reference to their different clinical or non-clinical characteristics, the distinction may, in practice, be hard to draw, as Baroness Hale observed in R(B) v Ashworth Hospital Authority, [2005] 2 WLR 695 at paras 20 and 31, with particular reference to the theoretical difference between psychopathic disorder as a form of personality disorder, and mental illness. Collins J referred, in paragraphs 26 and 27 of his judgment, to this “overlap” and to medical evidence before him describing the distinction as “probably more imagined than real”.

However, the issue in this case is not as to the classification of the appellant’s mental disorder for the purpose of his detention and treatment in Ashworth, but to the different, albeit partly overlapping, issue of the treatment that he may be given forcibly while there.

The Act, in sections 57 and 58, provides special safeguards for particularly intrusive or long-term treatments without the patient’s consent “for mental disorder”, without confining consideration of the treatment in question to the classified or any other particular form of mental disorder under which he has been detained. Such invasion of a mentally disordered person’s being and privacy without his consent should, in any civilised system of law, only be permissible on clear proof of medical necessity, which is a composite of a number of considerations. These include the likelihood of the treatment benefiting the patient therapeutically and/or otherwise for his protection and/or for the protection of others, the availability of viable alternatives and - to the extent that they may not be covered by therapeutic benefit - the best interests of the patient.

The central issue in this appeal is whether a court, as an Article 6 compliant tribunal, can only uphold a decision forcibly to treat a mentally disordered patient detained in a hospital where it is satisfied that he is suffering from a particular form of mental disorder for which the treatment is medically necessary. Here, it is claimed, on behalf of the appellant, that the only candidate for the treatment proposed for the appellant was mental illness, not psychopathic disorder, and that the Judge should have found there was insufficient proof to establish either and, therefore, no medical necessity for the treatment.

Returning to the statutory framework, I should first set out the terms of section 58(3) of the Act, which, as Hale LJ, as she then was, observed in R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419, at para 70, although cast in terms of a prohibition, confers permission to treat. It provides as follows for certain forms of specified treatment and for the administration of medicine by any means on a long-term basis following detention:

“(3)

… 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 the 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 foresaid has (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 section (3)(b), above, the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner.”

As the appellant has not consented to the treatment, this appeal concerns the certification of the second and third respondents, the Second Opinion Appointed Doctors (“SOADs”), Drs John Rigby and Simon Wood under section 58(3)(b). It is important to note the independent role of the SOAD, in the provision’s requirement that he should form his own view, not only as to the patient’s capacity to consent to the proposed treatment, but also to have regard to the “likelihood” of it alleviating or preventing a deterioration in the patient’s condition, the consideration peculiar to psychopathic disorder and mental impairment.

The Act also makes general provision in section 63 for treatment of a patient without his consent by or under the direction of the RMO, not attracting the special safeguards in section 57 or 58, “for the mental disorder from which he is suffering”, again without tying the treatment in question to the classified form of mental disorder for which he has been admitted or detained.

As Baroness Hale held in R(B) v Ashworth, at paras 21 – 29, classification for the purpose of detention in hospital has no bearing on what treatment may be given while so detained. Whilst the issue in that case specifically concerned treatment without consent under section 63 of the Act, the same reasoning must govern treatment without consent under section 58, which, as I have said, also does not limit its application by reference to the classification of the mental disorder from which detention was ordered, or, indeed, to any particular form of mental disorder for which he is suffering. However, as accepted by Baroness Hale in the following passage in paragraph 26 of her speech in that case, section 58, like section 63, is concerned with treatment “for the mental disorder from which [the patient] is suffering” –

“… [The Act] enacted the general power in section 63, defined in section 56 the patients to whom it applied, and provided safeguards for the most controversial treatments specified in or under sections 57 and 58. It did not … expressly link section 63 to the classified form of disorder, although it could easily have done so.”

The section 58(3) power to treat a patient capable of consent against his will or a patient incapable of consent is potentially a violation of his Article 3 right not to be subjected to degrading treatment and/or his Article 8 right to respect for his private life. However, it is common ground that, while the risk of infringement of those rights may be greater when the patient is capable of giving or refusing consent, it is not necessarily an infringement to treat him against his will where such treatment can be convincingly shown to be medically or therapeutically necessary. The starting point for that proposition is the following passage in the judgment of the European Court in Herczegfalvy v Austria (1992) 15 EHRR 437, at para 82, which concerned alleged violation of Articles 3 and 8 through forcible injection of sedatives and use of handcuffs and a security bed:

“… 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 necessity has been convincingly shown to exist.”

This Court, in R (Wilkinson) v Broadmoor, held in judicial review of an RMO’s decision to treat a detained mentally ill hospital patient without his consent pursuant to section 58(3)(b), that the court should conduct a “full merits review” as to whether the proposed treatment infringed his human rights, and that, to that end, he is entitled to require the attendance of witnesses to give evidence and to be cross-examined. As appears later in this judgment, the rigour of that ruling may be qualified to the extent that resolution of challenges to section 58(3)b) decisions may not always or even mostly require oral evidence. However, it is authority for the proposition that a court, albeit exercising a judicial review function, does so, not on a Wednesbury basis, but by deciding the matter for itself on the merits after a full consideration of the evidence whether oral or in writing. The importance of this is the further safeguard it provides to vulnerable, detained mental patients in addition to that of the independently appointed SOAD for scrutiny of medical decisions with a potential to violate their human rights.

Nevertheless, courts, in determining whether forcible treatment of a patient has been “convincingly shown” to be medically necessary, should, as the Court said in R(B) v Dr SS(RMO) & Ors [2005] EWHC 86 (Admin), pay particular regard to the views of those charged with his care and well-being. And, as Simon Brown LJ, as he then was, observed in R(Wilkinson) v Broadmoor, at paragraph 31, courts should not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following the required consultation with two others concerned with the patient’s care; see also Herczegfalvy, at para 86.

The appellant has remained in Ashworth Hospital since first detained there because those treating him there regard him as too irresponsible to be released into the community because of his lack of cooperation and violent behaviour.

The appellant’s RMO, the first respondent, Dr Andrew Haddock, formed the view that the appellant had begun to suffer from mental illness, namely delusional disorder, as well as psychopathic disorder, and that treatment with antipsychotic medication would alleviate that condition and also provide a “gateway” for the treatment of the psychopathic disorder.

The appellant did not consent to the proposed treatment. Dr Haddock, not being satisfied that the appellant was capable of consent within the meaning of section 58(3)(a), sought and obtained from the second respondent, Dr Rigby, as a SOAD, a certificate authorising the proposed treatment pursuant to section 58(3)(b) The treatment began in May 2004, consisting of the forcible administration of intramuscular depot injections of an anti-psychotic drug.

The appellant, in June 2004, obtained the opinion of an independent psychiatrist, Professor S.P Sashidharan, that he was not suffering from any mental illness, or indeed any mental disorder under the Act, and that the proposed treatment was not necessary or appropriate. This opinion was supported in July 2004 by a report from an independent psychologist, Professor James McGuire. There was, however, a body of medical and other evidence the other way, to which Collins J referred and considered in his judgment.

In July 2004 the appellant lodged a claim in judicial review, challenging the lawfulness of the treatment. Following notice of the claim, Dr Haddock in August 2004 ceased it, undertaking not to resume it pending further order of the court. In September 2004 Dr Rigby’s certificate under section 58(3)(b) expired because of the passage of time, and Dr Haddock then sought a second SOAD certification. In October 2004 the second respondent, Dr Wood, granted a further certificate.

In the meantime, the appellant applied, pursuant to section 72 of the Act, to the Mental Health Review Tribunal (“MHRT”) for discharge from his detention at Ashworth Hospital on the ground that he did not suffer from a mental disorder or from one warranting his continued detention and treatment there. Dr Haddock, in turn, applied to the Tribunal to reclassify the appellant as suffering from mental illness in addition to psychopathic disorder, based largely on episodes of delusional behaviour in 1998/99 and 2004. In early March 2005, before the hearing of the appellant’s judicial review claim, the MHRT heard the appellant’s application for discharge and Dr Haddock’s application for reclassification, taking evidence in the course of its hearing from a number of medical witnesses.

In mid March 2005, before the MHRT gave its decisions on the applications before them, the appellant’s claim for judicial review against the three doctors came on for hearing before Collins J. By the claim he maintained, first, that the treatment was for mental illness, and was therefore unlawful because he was classified as suffering only from psychopathic disorder, secondly that he was not suffering from psychopathic or any other mental disorder and, thirdly, that the treatment, in any event, violated his rights under Articles 3 and 8. Dr Haddock’s defence to the claim included an indication of his expectation that the MHRT would reclassify the appellant as also being mentally ill, and he asserted a right at common law to resume the treatment as a matter of necessity and urgency to treat the appellant’s mental illness and psychopathic disorder. Dr Wood supported Dr Haddock’s stance, stating that there was a possibility or probability of mental illness for which the proposed treatment was likely to be appropriate. The evidence before Collins J, including various medical reports, was entirely in writing, no application having been made by any of the parties to him to hear oral evidence, other than that of the appellant himself, which the Judge refused.

On 29^th March 2005, before Collins J gave judgment in the judicial review claim, the MHRT gave its decision on the applications before it, rejecting that of the appellant for discharge and also Dr Haddock’s application for reclassification to include mental illness, stating that they were not satisfied on a balance of probabilities that the appellant was suffering from mental illness. However, they accepted that he continued to suffer from a psychopathic disorder, making his continued detention for treatment in hospital both appropriate and necessary.

Collins J did not give judgment on the judicial review claim until 20th May 2005, which meant that he had an opportunity to consider in the meantime the MHRT decision and the decision of the House of Lords, in R(B) v Ashworth. In the latter, which concerned forcible treatment without a detained patient’s consent under section 63, that is, where the treatment was not of a kind to which the safeguards in sections 57 or 58 applied, the House held that the form of mental disorder under which a detained patient is classified is not the only form of disorder for which he may be treated without his consent. The rationale of this decision is, in my view equally applicable to forcible treatment under sections 57 and 58.

Collins J considered a number of issues of law and then, on his own findings on the written medical evidence before him, dismissed the claim. In brief, he held that:

The appellant now appeals to this Court against Collins J’s decision.

The central issue as put by Miss Alison Foster QC, on behalf of the appellant, is whether the Judge should have found that he was not suffering from mental illness, as distinct from psychopathic disorder, and that, in consequence, the proposed treatment, was not medically necessary and was, therefore, unlawful. There are two erroneous premises to that characterisation of the main issue: first that, although the appellant suffered from psychopathic disorder, the treatment was not for that condition, and secondly, that mental illness and psychopathic disorder are, as a matter of medical diagnosis, quite different conditions. Before Collins J, the issue was put differently by Mr Roger Pezzani, then appearing on his own for the appellant, namely that he was not suffering from any mental disorder at all. Dr Haddock’s case was, as I have said, that the treatment was necessary for the psychopathic disorder as well as mental illness.

As I have indicated, I regard the central issue in the appeal as whether a court, as an Article 6 compliant tribunal, can only uphold a decision forcibly to treat a mentally disordered patient detained in a hospital where it is satisfied both as to the precise form of mental disorder from which the patient is suffering and that the treatment is medically necessary for that form of disorder. The following four heavily overlapping issues identified by the parties for the purpose of this appeal, all go to that main issue:

I shall consider each issue in turn, though, as I have said, there is considerable overlap between them.

Collins J’s approach, as I have said, was that there was one question for him, namely whether there was convincing proof of the necessity for the treatment. In paragraph 13 of his judgment, he said:

“It seems to me that there is … a single question. That is consistent with ECHR’s approach in Herczegfalvy. It must be obvious that the test will not be met unless the RMO and SOAD are convinced that the treatment will alleviate the patient’s condition and so they must, after considering all the evidence, be at least persuaded that the patient is indeed suffering from a mental disorder for which treatment is needed. It is, I think, important to bear in mind that precise diagnosis of mental disorders is not always possible and psychiatrists are often unable to be certain from what form of disorder the patient is suffering. But they may properly be convinced that a particular form of treatment will alleviate a condition from which they have good reason to believe the patient is suffering. It is clear that the more drastic the treatment, the more the doctor must be satisfied of the need for it and in this respect there is no difference in principle between physical and mental disorders.”

In that passage, and in a further passage at the end of paragraph 27, following consideration of observations of Baroness Hale observation in R(B) v Ashworth, at para 31 (see paragraph 38 below) as to the imprecision of the system of classification of mental disorders in the Act, he said:

“… The MHRT decided that they could not say, on the balance of probabilities, that B was suffering from mental illness. In the circumstances, I do not think that it is necessary for me to decide for myself whether he is suffering from mental illness as well as from psychopathic disorder. Provided the proposed treatment is convincingly needed to alleviate whatever mental disorder afflicts him.”

Now, while the House of Lords in R(B) v Ashworth ruled that section 58(3)(b) was not concerned with classification, it said nothing specially about diagnosis, which was not there in issue. However, classification and diagnosis are closely related, since diagnosis at the time of a decision to detain a patient for treatment in a mental hospital, leads to his classification. Nevertheless, Miss Foster built the appellant’s case essentially on a distinction between the two, maintaining that diagnosis, as one of the steps to considering medical necessity for treatment is a matter which itself must be convincingly established. She submitted that the test of “medical necessity” derived from Herczegfalvy required Dr Haddock to establish convincingly three independent matters: first, that B suffered from a particular form of mental disorder, secondly, that the treatment proposed was for that condition, and, thirdly that the appellant would benefit from the treatment. She submitted that the first, which concerned the concept of diagnosis, as distinct from classification, required proof to a convincing standard, and that it was not open to a court to decline to answer the question “what is the relevant diagnosis?”. She maintained that this was the “seminal” question in this claim because the main thrust of Dr Haddock’s case was that the medication was a therapeutic necessity for treatment of mental illness, not psychopathic disorder. Whilst she acknowledged that there may have been some evidence before Collins J that such medication could also treat the latter condition, that was not, she said, “the framework to this case”. In short, she maintained that diagnosis is an essential component of the Herczegfalvy question whether there is convincing proof medical necessity for the treatment.

In a late amendment to the appellant’s notice of appeal permitted by the Court, but really as an addendum to Miss Foster’s submissions of insufficiency of evidence of medical necessity for the proposed treatment, it is said that the report of Dr Wood, the second SOAD, accompanying his section 58(3)(b) certificate, is wanting because he only acknowledged the possibility that the appellant was suffering from mental illness and did not appear to have considered the best interests of the appellant.

Miss Eleanor Grey, for Dr Haddock, and Mr Jeremy Hyam, for Doctors Rigby and Wood, submitted that the Judge rightly rejected the appellant’s case on this issue for the following reasons.

In my view, the Judge’s approach and Miss Grey’s and Mr Hyam’s submissions on this issue carry the day. They rightly emphasise that there is three-stage process, but leading to one question for the court:

I should add here a few comments and references to authoritative judicial treatment of the issue of what has to be established to the court’s satisfaction to uphold section 58(3)(b) treatment, and which, because that issue overlaps heavily with that of diagnosis, stray into the next issue.

First, the discipline of psychiatry is one which, notoriously, poses particular difficulties of diagnosis and distinction between mental illness in a clinical sense and personality disorders or other failings. An overly prescriptive or compartmentalised treatment of the processes provided by the Act, with a view to attempting precise and mutually exclusive diagnoses, would bear little relationship to the practicalities of psychiatrists’ therapeutic and associated forensic work.

In R(N) v M, Dyson LJ said, obiter, but in my respectful view, powerfully, at paragraphs 19 and 20:

“19.

… the argument before us proceeded on the basis that, in determining whether the proposed treatment was medically necessary, the correct approach was to ask whether it had been convincingly shown that the claimant suffered from a psychotic illness and (b) depot medication was a medical necessity. In other words, the Herczegfalvy test had to be applied sequentially to (a) and (b). We did not, therefore, hear argument as to whether this is indeed the correct approach. It seems to us that 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? The answer to that question will depend on a number of factors, including (a) how certain is it that the patient does suffer from a treatable mental disorder, (b) how serious a disorder is it, (c) how serious a risk is presented to others, (d) how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition, (e) how much alleviation is there likely to be, (f) how likely is it that the treatment will have adverse consequences for the patient and (g) how severe may they be?

20.

Suppose that there is a good chance (but it has not been convincingly shown) that the patient is suffering from a treatable mental illness which, if he were suffering from it, would unquestionably be alleviated by the proposed treatment. On the compartmentalised approach as we understand it, the Herczegfalvy test would not be made out. That is a surprising and, we would suggest, not a sensible outcome, at any rate in the case of a patient who does not have the capacity to consent to treatment.”

In R(B) v Ashworth Baroness Hale said, at paragraphs 30 and 31:

“30.

… compulsory patients are a vulnerable group who deserve protection from being forced to accept inappropriate treatment. But restricting their treatment to that which is designed for the ‘classified’ disorder is so haphazard as to be scarcely any protection at all. … ECT might have been thought appropriate to one kind of mental illness but not to the other. His classification of mental illness would not have protected him from the wrong kind of drugs or the inappropriate use of ECT. But section 58 is expressly designed for that purpose.

Secondly, psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. As this case shows, co-morbidity is very common: see also Mental Health Act Commission, Tenth Biennial Report 2001-2003, Placed amongst strangers, … at para 7.31 …:

‘If there is widespread co-morbidity between personality disorders and mental illness irrespective of Mental Health Act classification, then the “dichotomy imposed by legal classification is misleading and obscures the multiple problems shared by patients in the two categories”.’

31.

It is not easy to disentangle which features of the patient’s presentation stem from a disease of the mind and which stem from his underlying personality traits. The psychiatrist’s aim should be to treat the whole patient. … 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. It would be absurd if a patient could be detained in hospital but had to be denied the treatment which his doctor thought he needed for an indefinite period while some largely irrelevant classification was rectified.”

In my view, those observations of Dyson LJ and Baroness Hale demonstrate the need for realism and practicality in satisfying the important but inevitably somewhat abstract notion of proof of medical necessity for forcible administration of intrusive treatment. In some of Miss Foster’s submissions, she appeared to treat it as requirement for the RMO and SOAD to evidence their sureness to the criminal standard of each one of the matters going to such a conclusion. In the light of this Court’s ruling in R(Wilkinson) v Broadmoor the requirement, is rather one for the court to be satisfied that medical necessity has been established. Nevertheless, for practical purposes it is clearly a threshold that the SOAD should have in mind when the he certifies that the treatment in question should be given.

As to the rigour of the test - for what is, after all, a composite and amorphous medical value judgement - the summation by the European Court of its discussion on this point in Herczegfalvy in paragraph 82 of its judgment should be regarded in its context. It is one of clear recognition by the Court of a general need in these cases to respect medical expertise, a recognition also illustrated by its disposal of two of the particular issues in case, namely whether, in the circumstances, the forcible treatment violated the applicant’s Article 3 and Article 8 rights. For this purpose, I set out the whole of paragraphs 82 and 83, as to Article 3, and a passage from paragraph 86 as to Article 8:

“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. 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 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 necessity has been convincingly made out.

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. …

86.

…the court attaches decisive weight here to the lack of specific information capable of disproving the government’s opinion that the hospital authorities were entitled to regard the applicant’s psychiatric illness as rendering him entirely incapable of taking decisions for himself.”

It is true, as I have said, that diagnosis may have an important role in the decision-making process under section 58(3)(b), but the clinical reality for psychiatrists is that the precise forms of mental disorder are not always readily diagnosable one from the other; there is overlap and there is often co-morbidity. To require of psychiatrists a state of mind of precision and sureness in matters of diagnosis akin to that required of a jury in a criminal case, even in this fraught context of forcible treatment potentially violating detained patients’ human rights, is not sensible or feasible. The same applies to the suggestion of clear and firm attribution of the proposed treatment to a particular form of mental disorder where there is uncertainty as to the boundary line between it and another disorder or where there is co-morbidity. And, as to whether the treatment will do any good, it is unreal to require psychiatrists, under the umbrella of a requirement of medical or therapeutic necessity, to demonstrate sureness or near sureness of success, especially when the Act itself, in section 58(3)(b) hinges the SOAD’s certificate on his conclusion as to “the likelihood” of it benefiting him.

Accordingly I do not consider that the requirement on a court to be convinced, in this context, of medical necessity in the light of the medical evidence and other evidence, is capable of being expressed in terms of a standard of evidential proof. It is rather a value judgement as to the future - a forecast - to be made by a court in reliance on medical evidence according to a standard of persuasion. If it is to be expressed in forensic terms at all, it is doubtful whether it amounts to more than satisfaction of medical necessity on a balance of probabilities, or as a “likelihood” of therapeutic benefit - the test in section 58(3)(b) for triggering a decision on medical necessity for the treatment in question. I would, therefore, be uneasy about endorsing Charles J’s obiter suggestion in B v Dr SS & Ors, at para 23, that the test lies somewhere between the criminal and civil standard.

But, whatever the precise formulation in domestic terms of the Herczegfalvy test, it is plain, from Baroness Hale’s observations in R(B) v Ashworth, that it does not have to be applied, step by step, to each of the questions, answers to which, considered individually, particularly that of diagnosis, may not always be capable of sureness or even likelihood (see the example posed by Dyson LJ in paragraph 20 of his judgment in R(N) v M (see paragraph 37 above), but which, when considered with all the other answers, could satisfy a court of the medical or therapeutic necessity for the treatment in question.

Where, as here, the situation has reached what Dr Wood described in his report as a “therapeutic impasse” and there is perceived to be no alternative to continued and indefinite incarceration in conditions of high security, the likelihood - maybe even the chance - of success is a consideration to be fed into the final decision as to medical necessity, an approach implicit in the following observation of the Court in B v Dr SS(RMO), at para 62:

“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 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. … Thus while the specified criteria are obviously critical to the decision of whether the treatment should be given, they are not the only considerations 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.”

Considerations such as those, and those of Dyson LJ and Baroness Hale, underline the composite nature of the question of medical necessity. It is one to which the answer will always be one of value judgment derived from other value judgments on often difficult and complex questions of diagnosis and prognosis on which there may be some difference of medical opinion.

As to Miss Foster’s criticism of Dr Wood’s report for not identifying the particular mental disorder for which the treatment was said to be necessary, it are founded on two misconceptions. The first is the claimed inclusion in the convincing proof of necessity test of a need to prove as a matter of diagnosis the precise mental disorder for which the proposed treatment is intended. The second is a misconception of the role of a SOAD, which is that of a statutory and independent watchdog, albeit one who, nevertheless, should have regard for the RMO’s greater experience than his of the patient. His, the SOAD’s, task under Section 58(3)(ii) is likely to include an objective consideration of the patient’s best interests.

In this case, Dr Wood, consistently with his statutory task, expressly disclaimed, at paragraph 4 of his report, any role as to classification of the appellant’s condition for the purpose of the Act, and was necessarily diffident on the subject of diagnosis. He concluded, at paragraphs 46 to 49, that:

As to Miss Foster’s additional complaint that Dr Wood’s report suggests that he did not consider the interests of the appellant, I can only say that, on my reading of it, such considerations clearly underlaid or were integral to his whole treatment of the matter.

In any event, as Mr Hyam noted, this argument is really directed at Collins J rather than Dr Wood, suggesting that the Judge had insufficient evidence for holding, as he did, that it had been convincingly established that the treatment was medically necessary for the appellant’s psychopathic disorder. In my view, there was ample evidence to justify the Judge’s conclusion on that ultimate question, which was for him.

This question, whether the Judge, in considering whether medical necessity for the treatment had been convincingly established, erred by failing to decide for himself whether the appellant suffered from mental illness as well as psychopathic disorder, is an extension of the Herczegfalvy Question, namely including whether such a two-or-more-stage process of reasoning was required at all. If, as I would hold, the appellant fails on the first issue, it would follow that that he should also fail on this issue. If the appellant, contrary to my view, were to succeed on the first issue, it still falls for consideration how in fact the Judge determined the issue of fact as to medical necessity.

Miss Foster submitted that where, as here, Human Rights obligations are engaged, it is necessary to show convincingly, by reference to whatever elements are in dispute that the treatment is a medical necessity. The burden of proof is upon the treating doctor and the standard is to a high degree. The question of diagnosis of the mental disorder for the treatment in question is, she submitted, quite distinct from that of classification, and was central to the proof of medical necessity for the treatment in this case. As I have mentioned earlier in this judgment, her contention was that the Judge should have found that the appellant was not suffering from mental illness, thereby removing that form of mental disorder as a candidate for the treatment. However, such a finding would only have been of assistance to the appellant if the Judge had not accepted, as he clearly did, that he was suffering from psychopathic disorder, for which the treatment was also, in his view, necessary.

Miss Grey, in her response, made two points. First a judge is entitled to approach the matter by answering the single question whether medical necessity for the form of treatment proposed had been convincingly established regardless of the precise nature, whether as a matter of classification or diagnosis, of the form or forms of mental disorder it was intended to treat. Secondly, she pointed out that Collins J, notwithstanding his acceptance in principle of the single question approach, in fact, in his treatment of the evidence and in his findings, adopted the two question approach. He found, on the evidence, that the treatment was necessary for the appellant’s psychopathic disorder on its own and in conjunction with mental illness to the extent, if at all in this case, the latter was present and/or the two forms of mental disorder could be distinguished.

In my view, Miss Grey’s submissions provide a short and conclusive answer to this complaint, having regard to the well-known difficulties of precise diagnosis in psychiatry. As I have indicated in my summary of Collins J’s findings and conclusions at paragraph 24 above, he identified the central question for him as whether the appellant was suffering from “mental disorder” for which the proposed treatment was “necessary”. He correctly recorded in paragraph 6 of his judgment that, in the light of the House of Lords’ ruling in R(B) v Ashworth, classification for the purpose of detention of the particular form or forms of mental disorder from which the appellant was suffering was irrelevant to the decisions whether the proposed treatment was necessary.

“… So long as a patient is suffering from mental disorder and it is necessary for his health and safety and for the protection of the public that he be detained in a hospital, any treatment which is regarded as necessary to alleviate his condition can (subject to …[sections 57 and 58] be administered to him.”

Later in his judgment, at paragraphs 12 and 13, Collins J returned to the point, not as a matter of classification, but as one of diagnosis, stating, consistently with the approach of the European Court in Herczegfalvy, there was just one question, namely whether there is convincing proof of medical necessity for the treatment for a mental disorder from which a patient is suffering, whether or not diagnosis of the precise form of that disorder was possible. However, despite that - in my view, correct - approach to the law, and despite his unease at the Wilkinson guidance that a court should answer the question itself in the light of the evidence before it, he went on, not only to do that, but to consider the evidence before him as to the form of the mental disorder from which the appellant was suffering. So far as material, he reached a conclusion on the conflicting psychiatric and other evidence as to the appellant’s condition. In doing so, he noted the weight of the evidence of his seriously aggressive, disruptive, destructive, delusional and generally unco-operative behaviour before and throughout his period of detention in Ashworth Hospital. He took account of the evidence before him of the uncertain border-line between mental illness and personality disorders such as psychopathic disorder, the recognition by the House of Lords of that uncertainty in R(B) v Ashworth and the MHRT’s unsureness as to whether he was suffering from mental illness as well from psychopathic disorder, all leading him to comment at the end of paragraph 27 of his judgment:

“… I do not think it is necessary for me to decide for myself whether he is suffering from mental illness as well as from psychopathic disorder. Provided that the proposed treatment is convincingly needed to alleviate whatever mental disorder afflicts him, it is immaterial what classification is applied.”

Notwithstanding that comment, which, in my view, as I have said, reflects the law, he went on to consider whether the proposed treatment was appropriate for the treatment of psychopathic disorder, and, if so, whether, in the circumstances, Dr Haddock had shown a convincing need for it. As to appropriateness, he considered and rejected Professor Sashidharan’s assertion - in conflict with much other medical evidence - that it was not appropriate. As to need, in paragraph 32 of his judgment, he properly identified the test:

“The fact that no other form of treatment has had any beneficial effect is a matter to be put in the balance but it is obvious that it would be wrong to seek to administer such medication in the hope that it might do some good. That would not cross the threshold of convincing need. It is therefore important to see whether there are indications that it would alleviate the claimant’s condition. …”

Having thus directed himself, Collins J returned to the evidence, looking in particular at the history of the appellant’s response to a previous period of administration of the same or similar medication in 1996, exhibiting some improvement in his behaviour. In the light of that evidence, he concluded, at paragraph 34 of his judgment:

“I am satisfied that antipsychotic medication has resulted in an alleviation of the claimant’s condition and that there is therefore good reason to believe that it is likely to do so again. That being so, the decision reached by the defendants is not open to challenge.”

That summary rehearsal of the Judge’s journey to his final conclusion as to the establishment in this case of a convincing need for the proposed treatment to alleviate the appellant’s psychopathic disorder, is demonstration enough, it seems to me, that there is no sensible or factual basis for the appellant’s complaint that Collins J did not consider the nature of his mental disorder, whatever its classification or appropriate diagnosis, when deciding whether the proposed treatment was necessary to alleviate it.

As to the effect of the MHRT’s unsureness whether the appellant was suffering from mental illness in addition to psychopathic disorder, Miss Foster submitted that Collins J failed to have sufficient regard to that unsureness; he should have given it more, even determinative, weight. If the appellant fails, as in my view he should, on the first two issues, the weight to be given to the MHRT’s conclusion, or lack of it, as to classification or diagnosis of the appellant’s condition calling for treatment cannot assist him - a fortiori, where, as here, the evidence and Judge’s finding were that there was a medical necessity for the treatment for either or both mental illness (if it existed) and psychopathic disorder. In addition, as Miss Grey pointed out, the thrust of the complaint, which is presumably that Collins J should have followed the MHRT by declaring himself equally unsure as to mental illness, conflicts with Miss Foster’s submission on the last issue, which was that he wrongly failed to decide the matter for himself.

Nevertheless, Miss Foster submitted that where an MHRT “has decided the very issue that an RMO or a SOAD is required to decide for the purposes of section 58, the doctors should follow the decision of the Tribunal, (whose procedures are Convention compliant) in the absence of further material unknown to the Tribunal putting a significantly different complexion on the case”. Miss Foster submitted that the primary feature of the appellant’s condition relied upon by Dr Haddock in support of his diagnosis of mental illness was the Appellant’s delusional behaviour, which, she maintained, the MHRT “rejected”.

Miss Foster cited a number of authorities in support of that proposition and the more general one that considerable weight should be given to the views of an MHRT on matters of diagnosis and detainability. These included: R(MH) v Secretary of State for Health & Mental Health Review Tribunal [2004] EWCA Civ 1609; [2004] MHLR 345, per Buxton LJ at para 24; R (Von Brandenburg) v E London and City NHS Trust [2004] 2 AC 280; R(B) v Dr SS & Ors [2006] EWCA Civ 28, per Lord Woolf CJ, at paras 65 and 66.

However, as Lord Woolf observed in paragraph 65 of the last of those cases, although there is some overlap, the jurisdiction of MHRTs concerns the propriety of detention for treatment, it is not concerned with issues of diagnosis going to the propriety of treatment pursuant to section 58(3). And, as is now clear from the ruling of the House of Lords in R(B) v Ashworth, it is not necessary in section 58 cases to classify or to diagnose with sureness the precise form of mental disorder necessitating the treatment in issue. In this case, given the only positive finding of the MHRT, namely that the appellant should continue to be detained on account of his psychopathic disorder, there is no overlap of any relevance to the question of the propriety of the proposed treatment in its unsureness as to whether he was also suffering from mental illness - an unsureness which is, in any event, reflected in Collins J’s judgment. There is also the point, made with some emphasis by Miss Grey, that where there is a finding or conclusion of an MHRT on a point involving some overlap with the section 58 question for a court, the evidence is rarely likely to be the same or even close in time.

In addition, for Miss Foster to say that the Tribunal “rejected” a diagnosis of mental illness and that accordingly, the Judge should have given that weight, or even regarded it as determinative, is somewhat artificial, since the Tribunal’s state of mind was simply that it was unsure on balance of probabilities. It did not follow from that unsureness as to mental illness that the proposed treatment of the appellant for psychopathic disorder was not justified or necessary. Moreover, Collins J’s own state of mind on the issue of mental illness was not dissimilar, given his consideration, in paragraphs 26 and 27 of his judgement, of the uncertain boundary between it and psychopathic disorder, concluding with his non-committal stance on the point. As Miss Grey put it, his judgment is consistent with the decision of the MHRT, and certainly does not undermine it. And, as Mr Hyam observed, far from being crucial to his decision, it was irrelevant to it in the light of the opinion of Dr Haddock and Dr Wood that there was a therapeutic necessity even if the appellant was not suffering from mental illness.

As to the nature and intensity of a review by the court of a SOAD’s conclusion that a patient should be treated without his consent pursuant to section 58(3)(b), where the patient claims that such treatment will violate his Convention rights, Miss Foster submitted that a court should decide the contentious medical issues in the case by way of a full hearing on the merits, that is to say, on the evidence, not merely by way of “review”. She added that, depending upon the issues and the circumstances, interests of justice may or may not require oral evidence and cross examination.

As I have said, the effect of the ruling of this Court in R (Wilkinson) v Broadmoor is that a court must conduct a “full merits review” as to whether the proposed treatment infringed the patient’s human rights, and that, to that end, a patient is entitled to require the attendance of witnesses to give evidence and to be cross-examined. Miss Foster suggested that Collins J, at paragraph 15 of his judgment, wrongly suggested that the Court in R(N) v M purported to qualify the full merits approach of the Court in Wilkinson by suggesting that, in most cases, such an approach should not require the hearing of oral evidence. This, rather than any suggestion that he should have sought oral medical evidence, seems to have been the main burden of her complaint. This is how Dyson LJ, giving the judgment of the Court in R(N) v M, put it a paragraph 39:

“We suggest that it should not often be necessary to adduce oral evidence with cross-examination where there are disputed issues of fact and opinion in cases where the need for forcible medical treatment of a patient is being challenged on human right grounds. Nor do we consider that the decision in .. Wilkinson … should be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally. Much will depend on the nature of the right that has allegedly been breached, and the nature of the alleged breach. Furthermore, although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court’s role is essentially one of review: see per Lord Steyn in R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 547, para 27.”

I do not see any inconsistency of approach between the two decisions of the Court. Nor did this Court in R(N) v SS (RMO) & Ors [2006] EWCA Civ 28, where it stated, at paragraph 64, that issues requiring cross-examination of medical witnesses should not often arise if the SOAD complies with section 58(3)(b) by giving clear reasons why, in his opinion, treatment is a therapeutic necessity and should, therefore, be given. Whilst that expectation could prove to be somewhat optimistic, the Court, in Wilkinson, could not have intended or contemplated that every case would require the hearing and testing of oral medical evidence, especially where, as here, none of the parties requested it. Moreover, despite Collins J’s reservation as to the Wilkinson approach, he did not apply a Wednesbury or even a modified Wednesbury test, but a merits review on a full consideration, analysis and assessment of the evidence, directing himself to apply, and applying, the stringent standard of proof derived in Wilkinson from Herczegfalvy. True, the evidence upon which he acted was all in writing, but, as I have said, none of the parties sought otherwise, save for an application on behalf of the appellant to call him. The Judge, rightly in my view, was content to take his witness statement at face value and did not consider that oral evidence from him could conceivably have assisted him in reaching his decision (paragraph 14).

For all those reasons, I would dismiss the appeal. In doing so, I should record that I have seen and considered observations on behalf of the appellant submitted after the hearing of the appeal on evidence before the Court on the hearing of the appeal as to the appellant’s health and progress following resumption of the treatment since Collins J’s dismissal of his application.

I agree.

I also agree.