PS, R (On the Application Of) v Responsible Medical Officer & Anor

PS (“the claimant”), who is a patient detained under Section 37 of the Mental Health Act 1983 (“the Act”), seeks to prevent Dr. G, the first defendant, his responsible medical officer (“RMO”) from administering treatment by way of anti-psychotic medication to him without his consent. The claimant has the capacity to make decisions on his treatment but he does not wish to have the treatment. The first defendant considers that this treatment is justified and that it should be given. He is supported in this view by Dr. W, the second defendant who is the second opinion appointed doctor (“SOAD”), who has certified for the purposes of Section 58(3)(b) of the Act that the anti-psychotic treatment should be administered. There is a dispute between the claimant’s expert psychiatrist and the defendants about the correct diagnosis of the illness suffered by the claimant, who stresses that as he has the capacity to make decisions on treatment, his personal choice to refuse treatment should be respected. In these proceedings, the claimant obtained permission from Wall J to challenge the decisions of the first and second defendants.

In this judgment, I will deal with matters in the following order:-

The issue on the original claim was whether the administration of the proposed medication to PS infringed his rights under Articles 3 and 8 of the European Convention on Human Rights (“the Convention”). In the claimant’s skeleton argument for the substantive hearing, his counsel Mr. Kris Gledhill and Mr. Roger Pezzani also raised for the first time three other legal issues, which entailed considering:-

Mr. Christopher Baker, counsel for Dr. G and Miss. Elisabeth Laing, counsel for Dr. W did not object to these additional issues being raised on the basis that, in relation to (b) above, it would not be sought to use the best interests test in order to go beyond the medical issues which had hitherto been the focus of this case and to which the evidence of the parties has been directed. The best interests test goes wider than medical necessity and embraces emotional and all other welfare issues (see In re S (Adult patient: sterilisation) [2001] Fam 18, at 24G-H per Butler-Sloss P). The claimant was content to pursue issue (b) on the basis put forward by the defendants. It has also been agreed in respect of issue (a), that I will not determine whether PS is lawfully detained as that issue is due to be determined by a Mental Health Review Tribunal (“the Tribunal”). Initially at the oral hearing of this application on 15, 16 and 17 July 2003, it was agreed that I would postpone giving judgment until after the Tribunal had given its decision at its hearing fixed for 4 August 2003. It was envisaged at the time of the July 2003 hearing that the Tribunal would give its decision in August and that I would hear further representations on 8 September 2003. Indeed, all parties appeared content with that approach. On 4 August 2003, the Tribunal adjourned its hearing until October and at the request of the parties in September, I proceeded to produce this judgment without waiting any longer for the Tribunal’s determination. I will therefore consider only issues (b) and (c).

Unusually for judicial review proceedings, I was asked to resolve disputed issues of diagnosis and the consequent justification for the proposed treatment after hearing expert psychiatric evidence from Dr. Hambidge on behalf of PS, as well as from the present Responsible Medical Officer (“RMO”), namely the first defendant, from Dr. B who was PS’s previous RMO, and from the second defendant. Each of these psychiatrists supplemented their witness statements with oral evidence and they were all cross-examined for reasons that I will explain in paragraphs 20 to 23 below. Although the nature of the challenge in this case is such that the court cannot decide the ultimate question without determining for itself the disputed facts, it must not be overlooked that the court’s role is essentially one of review (see R (on the application of N) v. Dr. M [2003] 1 WLR 562, [39]).

As I have stated, a fundamental dispute between the claimant and the defendants relates to the nature of any mental illness that is presently suffered by the claimant. Dr. Hambidge, the claimant’s expert, considered that the claimant is suffering from a schizophreniform disorder, while Dr. B, Dr. G and Dr. W disagree and consider that the claimant is suffering from either paranoid psychosis or schizophrenia.

Schizophrenic disorders are characterised in general by fundamental and characteristic distortions of thinking and perception. Schizophrenia is defined in Diagnostic and Statistic Manual of Mental Disorders (Fourth Edition 1995 page 273) as a disturbance that lasts for at least six months and includes at least one month of active phase symptoms, namely two or more of delusions, hallucinations, disorganised speech, grossly disorganised, catatonic behaviour or negative symptoms. The same book explains that schizophreniform disorder “is characterised by a symptomatic presentation equivalent to schizophrenia except for its duration (i.e. the disturbance lasts [up] to six months) and the absence of a requirement that there be a decline in functioning”. It is appropriate that I should now explain the relevant statutory material and then the issues raised on this application.

Under Section 37 of the Act, a court may order the detention in hospital of a person convicted of an imprisonable offence if it is the most suitable method of dealing with the case and various preconditions are met, namely that (i) there is medical evidence from two doctors that the offender is suffering from a mental disorder, (ii) the disorder is of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment (and the treatment will work in the case of psychopathic disorder). In 1995, the claimant was made subject to such an order by a Crown Court for the manslaughter of his mother and son on grounds of diminished responsibility.

The effect of such an order is set out in Section 40 of the Act, which provides insofar as is relevant to this application that:-

“(1)

A hospital order shall be sufficient authority –

(i)

[to convey to hospital within 28 days]

(ii)

for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act.

…

(4)

A patient who is admitted to a hospital in pursuance of a hospital order … shall, subject to the provisions of this subsection, be treated … as if he had been so admitted … on the date of the order in pursuance of an application for admission for treatment … duly made under Part II of this Act” (with various modifications set out in Schedule 1 of the Act, the only substantive one of which is that the patient’s nearest relative cannot order their discharge).

A Crown Court may impose a restriction order as was done in the case of the claimant on 15 May 1995 without any limit of time under Section 41 of the Act if “it is necessary for the protection of the public from serious harm so to do”. The effect of such an order is first that the exercise of various powers, namely leave of absence, transfer to another hospital and discharge by the RMO or hospital managers, require the consent of the Home Secretary and second, that the hospital order continues in effect until it is set aside; whereas a simple Section 37 order has to be renewed at intervals.

Section 145 defines “medical treatment” widely to include “nursing and … care, habilitation or rehabilitation under medical supervision”.

Section 63 of the Act provides, with my emphasis added, that:-

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

The proposed treatment for the claimant falls within Section 58 of the Act as it is for the administration of medication more than three months after the patient was first medicated following detention (see Section 58(1)(b)). The issue on this application is therefore whether the proposed treatment is permitted under Section 58 in the face of the opposition of the claimant, who has capacity to consent.

I should explain that Dr. G has been the RMO for the claimant since late October 2002, when he took over that position from Dr. B. Subsections (3) and (4) of Section 58 of the Act are central to this application as they set out the conditions which have to be satisfied before treatment can be imposed on a patient including the role of the SOAD. They provide that:-

“(3)

Subject to Section 62 below [which makes provision for urgent treatment], a patient shall not be given any form of treatment to which this section applies unless –

(i)

he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purpose 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

(ii)

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 subs(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”.

Dr. W performed the role of “Registered Medical Practitioner” referred to in Sections 58(3)(b) and Sections 58(4) of the Act and he produced the necessary certificate. It is common ground that the claimant has not consented to the proposed treatment and significantly that he had and has the capacity to make that decision. So, the issue on the particular facts of this case can be refined to being whether in the light of the facts of this case, Section 58(3)(b) of the Act permits the proposed treatment to be forced on the claimant, who is a patient and who has capacity to consent but has not done so. It is now appropriate to consider the impact on those provisions of Articles 3, 8 and 14 of the Convention, to which I now turn.

The thrust of the case for the claimant has been that his rights under Articles 3, 8 and 14 of the Convention would be infringed by the implementation by the first defendant of the SOAD’s opinion that permits the proposed medication to be applied to the claimant who does not consent. The defendants say that medical necessity requires that it should be carried out.

As I have explained, the critical provision for the purpose of this application is Section 58 of the Act, which I have already quoted in paragraph 14 above and which in accordance with Section 3 of the Human Rights Act 1998, “so far as is possible to do so…. must be read and given effect in a way which is compatible with the Convention Rights”, and, in particular, those set out in Articles 3 and 8 of the Convention. It is important to bear in mind that:-

Accordingly, permission can be granted to treat the claimant by medication only if that proposed treatment satisfies the “best interests test” and that additionally it also does not interfere with the claimant’s rights under Articles 3, 8 and 14. I will later in this judgment explain the significance and relevance to the present dispute of each of these three relevant requirements. I agree with counsel for the claimant that the mere fact that the proposed treatment meets one test does not mean that it automatically satisfies any of the other two requirements and that section 58 has to be read, subject to Articles 3, 8 and 14 rights; so far as is possible to do so. In this case, I have no difficulty in doing so as there is no inconsistency between those rights and section 58.

The issues in this case are therefore:-

First, all counsel considered that it would be appropriate or did not contend that it would be inappropriate in this case for there unusually to be cross-examination of Dr. Hambidge, of the first defendant, of the second defendant and of Dr. B. In R (Wilkinson) v. Broadmoor Special Hospital Authority [2002] 1 WLR 419, a patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent. The claimant also sought to challenge a certificate issued by the SOAD. The Court of Appeal allowed an appeal by the claimant against the refusal by the Judge to permit cross-examination of the relevant medical witnesses.

The approach of the Court of Appeal in Wilkinson was that where the issue was whether the administration of proposed treatment would violate a claimant’s human rights, cross-examination of the medical witnesses would be ordered so as to ensure that there was compliance with the Article 6 rights of the patient.

In R (N) v. M [2003] 1 WLR 562, Dyson LJ giving the judgment of the Court of Appeal pointed out that in Wilkinson, Hale LJ had said that where there were disputed issues of fact, they would only have to be determined “by cross-examination if necessary”. Dyson LJ considered that Hale LJ “was right to introduce the qualification that cross-examination should only be ordered if this is necessary to enable the court to determine the factual disputes for itself” [36]. He explained that the decision of a court may well be clear in favour of or against treatment in the light of the written material so that there would then be no need for oral evidence. I therefore considered if the present case would constitute a case in which I could reach such a decision on the basis of the written evidence, bearing in mind that it would only be in an exceptional case that oral evidence would be needed.

Having read the written evidence in this case, I concluded that this case, unlike my view in N’s, case was an exceptional case in which cross-examination of the psychiatrists was necessary to determine the factual disputes. It was not possible for me to reach a decision on the correct diagnosis of the claimant on whether to permit the proposed treatment solely by reading the written statements. I was also conscious of the importance of this issue to the claimant, who was able to consent but who refused to do so. Indeed, each of the witnesses added substantially and helpfully to what was said in their witness statements when giving examination-in-chief and I benefited from this evidence, as well as from what emerged during cross-examination.

A second preliminary issue to which I must refer is that in her helpful skeleton argument, Miss. Laing explained that irrespective of my decision in this case, there would in any event have to be a further and subsequent request for a certificate from a SOAD to permit treatment because the certificate under challenge in this case was given over seven months before the hearing in front of me. The certificate under challenge was therefore regarded in July 2003 as being stale and out-of-date. I then inquired of counsel whether it would be a useful exercise and a proper use of valuable court time for me then to hear this application because irrespective of the conclusion at which I arrived, there was inevitably to be a further application for a certificate by a SOAD and if it was granted, there would then be the likelihood or, at least, the possibility of further judicial review proceedings. In addition, the Tribunal was and is still about to consider whether PS should be released and so if it decided to do so unconditionally, my judgment would be of no value.

I was assured by all counsel that a decision given by me on the merits on this application is very likely to have very great, if not decisive, effect on the future use of anti-psychotic medicine on the claimant. In those circumstances and as all the appropriate psychiatric witnesses were actually present at court waiting to give oral evidence, I was eventually persuaded that it was appropriate to go ahead with the present hearing and I must now explain the background to this application as the expert evidence used it to give their opinions on the claimant’s condition and how he should be treated.

As I have explained, in 1995, PS was ordered to be detained under Section 37 of the Act upon his conviction, on a plea of diminished responsibility, for the manslaughter of his mother and of his son (M). The Crown Court then made a restriction order under Section 41 of the Act, without limit of time.

Those offences were committed after PS had said to members of his family that “There’s going to be a revolution”. Both PS’s victims were strangled in bed. When he was interviewed by the police, PS said that he believed that the world was going to end on the day on which he killed his mother and his son. So PS said to the police that he wanted to spare his mother and his son this ordeal.

While on remand for these offences, on 17 February 1995, PS was transferred from prison to a medium secure hospital where he was placed under the care of Dr. Cameron Boyd. In a report dated 21 April 1995 and prepared for PS’s erstwhile solicitors, Dr. Boyd concluded that PS killed his mother and his son. Another consultant at a medium secure hospital, Dr. James Higgins, provided a report dated 2 May 1995 for the CPS in which he stated that PS had started to develop a depressive illness followed by what can only be described as “an acute psychotic episode” in relation to which there was “objective evidence of severe psychological disturbance and disturbed and bizarre behaviour”. As I will explain, both Dr. Boyd and Dr. Higgins saw PS many years later in 2000 and 2001 respectively when they reviewed and reconsidered their opinions of him.

Until June 1995, PS was prescribed anti-depressant medication and Thioridazine, which is an anti-psychotic drug. A Mental Health Review Tribunal considered PS’s case on 23 August 1996 and it determined that PS “continues to suffer from mental illness in the nature of a treated psychotic depression followed by a depression reactive to the index offences”. It concluded that this disorder was “of a nature and degree, which makes detention in a hospital appropriate … this is currently necessary for [PS’s] safety, the protection of others and [PS’s] health in that order of priority”.

On 29 January 1997, PS was transferred to another medium secure hospital where he is still detained. He then came under the care of Dr. B, who as I have explained gave oral evidence at the hearing and who continued to act as PS’s RMO until October 2002. There were a number of reasons for the transfer of PS and they included concerns about the safety of PS and of his erstwhile solicitors; these concerns arose as a result of threats to PS’s erstwhile solicitors and of acts of vandalism to a car belonging to him.

In addition, the move was prompted by divisions among the staff at the first hospital and a sense of “stalemate” by them relating to the proper treatment of PS. At that time, according to Dr. B, PS showed no evidence of mental illness. “A striking feature” was noted in Dr. B’s report when she stated that “it is difficult to talk to [PS] about any issue without the introduction of his religious belief” and she considered that this approach of PS allowed him to avoid discussions about his past. I should explain that PS had become a Born Again Christian after he had committed the 1995 offences and that his religious views as a result of these beliefs have great importance in this case. Dr. B also referred in that report to “the limited co-operation and insight shown by [PS]”.

On 22 September 1997, Dr. S.M. Havers, who was the clinical psychologist for PS, prepared a report for the Tribunal, in which he explained that PS was then “struck by the strong parallels between [PS’s] presentation prior to the offences and his presentation now”. He also referred to the “clear parallel” between witnesses’ description of PS’s obsession with astrology and related subjects at the time of the 1995 offences and three features that he had noted in 1997; these were first his current “reliance on God and the Bible to tell him what to do”, second, his suspected morbid jealousy of Y, who was the mother of M, for whose manslaughter PS had been convicted and finally, the current rejection of PS’s advances towards P.

On 17 December 1997, after a further hearing, the Tribunal ordered PS to be conditionally discharged, but the operation of this order was to be deferred while among other things suitable accommodation was found for him. It considered that PS was not exhibiting any psychotic symptoms, but the Tribunal noted that he remained “vulnerable to a recurrence of depression”. It concluded that if personal relationships break down on other unfortunate life experiences reoccur, such as “excess alcohol, substance abuse or financial problems”, then “there is a very high risk he will again become ill … The patient’s personality is damaged and the damage has by no means been fully investigated, understood or repaired”. In her report to the Tribunal dated 18 November 1997, Dr. B said that it seemed that PS’s religious beliefs were “being used as a barrier” to psychotherapy.

On 2 April 1998, PS was conditionally discharged upon the conditions that he:-

On 19 April 1999, PS applied to the Tribunal to be absolutely discharged. Until shortly before the preparation of the report, Dr. B, his erstwhile RMO, had been intending to support his application for the absolute discharge. What changed her mind was the information that she received on 10 May 1999 from Reverend T and H, who had expressed concerns about PS and his activities within their church, including the influences that he was having on other parishioners. They also said that PS had proposed to H and that she had declined the offer. Dr. B noted that this was “clearly at odds with what [PS] told me”. In her report of 19 May 1999, Dr. B was concerned about PS’s lack of truthfulness to her about his relationship with H, because the account of Reverend T and H did not correspond with that of PS in the light of what Dr. B described as PS’s “lack of truthfulness about his relationship with H”. In those circumstances, Dr. B doubted whether PS would keep the promises that he had made.

Dr. B’s report also stated that:-

On 11 August 1999, the Tribunal rejected PS’s application for an absolute discharge. The Tribunal accepted Dr. B’s view that PS showed a lack of reliability. Moreover and significantly in relation to later developments, the Tribunal concluded that:-

“On the whole of the material before it the Tribunal accepted Dr. B’s opinion that the [claimant’s] personality is fragile. If he is subjected to stress that his faith cannot absorb or if he loses that faith there is a risk he will suffer further mental illness”.

On 15 November 1999, Dr. B prepared a further report for the Home Office, in which she confirmed that PS was not then mentally ill, but that “he remains vulnerable to a relapse of his depressive illness, but so far, I have seen no evidence of this”.

The position changed dramatically during December 1999, because according to Dr. B’s report dated 24 January 2000:-

On 6 March 2000, a Tribunal decided to discharge PS conditionally again, but on the same conditions as before. The Tribunal accepted that PS had suffered a relapse, but that he had quickly recovered when he returned to hospital. Although PS was not then showing any symptoms, the Tribunal concluded that he was suffering from a recurrent mental illness and that he lacked insight into his mental condition and the need for treatment. The Tribunal said of the claimant that, “if he were to relapse again in the community there could be a serious risk of him becoming a danger to himself and other people”.

PS then decided that he would not accept the conditional discharge. Thus, an impasse had been reached. So Dr. B invited Dr. Boyd who had, as I have explained in paragraph 28 above, had reported on the claimant in 1995 to review the situation. Dr. Boyd reported on PS on 3 July 2000 and he concluded that there were “certainly grounds to suggest that he is in fact psychotic” and that the stresses over Christmas 1999 “tipped him into a more florid paranoid psychosis again”. He considered that PS was “quite overwhelmed by religion to the point that it is abnormal” and that at times PS was “almost thought disordered”. PS’s feelings that H had been unfaithful to him “did sound like morbid jealousy” which “is often seen in the early stages of a functional disorder”. Dr. Boyd thought there was more evidence than when he had last seen PS in 1995 to suggest an “underlying schizophreniform illness and that “he remains a potentially dangerous individual”.

Dr. B then asked Dr. Angus Campbell, a retired consultant, whom she knew to be an evangelical Christian, to give an opinion on the claimant. As I have already explained by this time, the claimant held and expressed, as he still does, strong Christian beliefs. Dr. Campbell attended on 18 July 2000 and in a report dated 1 February 2001, Dr. Campbell stated that he did not consider PS to be a “religious maniac”, nor using his faith as a shield to prevent Dr. Campbell from obtaining a clear picture of him. He did not share Dr. Boyd’s view that PS was “almost thought disordered”. Dr. Campbell thought it was likely that PS was transiently psychotic in December 1999, despite PS’s denial. In her report dated 16 October 2000 to the Tribunal, Dr. B concluded that PS remained vulnerable to relapse given sufficient stress and that when he was ill, PS was a high risk to others.

In an annual report dated 21 December 2000, Dr. Emanuel recorded that the clinical team wondered if PS’s religious beliefs were held with delusional strength and that there was ongoing debate among psychiatrists about whether PS was in fact thought-disordered.

On 23 January 2001, at Dr. B’s request, PS was seen by Dr. Higgins, who, as I have explained, had previously seen PS in 1995. Dr. Higgins subsequently produced a report dated 23 March 2003 which was to have a major influence on the understanding by the relevant psychiatrists of PS’s condition.

As I have explained in paragraph 28 above, Dr. Higgins had the advantage of having had previous knowledge of the case from 1994 and he concluded that his original formulation of the case had been incorrect. The features that had caused him to conclude that PS was suffering from a chronic functional psychosis without consistent affective features had developed considerably before the 1995 offences. Dr. Higgins concluded that PS suffered from chronic paranoid schizophrenia and he explained that conclusion by referring to:-

On 29 January 2001, in consequence of speaking to Dr. Higgins before his report became available, Dr. B changed her mind about supporting a conditional discharge for PS because “on balance” she was then persuaded that PS should be treated. For the Tribunal hearing on 3 April 2001, PS’s erstwhile solicitors commissioned a report from another psychiatrist, Dr. Rix, who concluded that PS was suffering from a mental illness which had manifested itself at the time of the 1995 offences and in December 1999, but that in 2001 it was in remission. He advised that detention in hospital was not necessary provided that PS complied with anti-psychotic drug therapy as PS’s behaviour in 1999 and at the time of the 1995 offences showed that there was an innate mental illness in PS’s constitution, which would manifest itself when he was under stress. He considered that anti-psychotic medication would probably reduce the risk of a deterioration in PS’s condition.

The Tribunal on 3 April 2001 ordered a conditional discharge of PS. The Tribunal noted the guarded way in which Dr. Higgins and Dr. B had then expressed their views while Dr. Campbell and Dr. Rix did not then consider PS to be mentally ill. The Tribunal was satisfied that PS had a relapse at the end of 1999, the seriousness of which he did not appreciate. It decided first that PS’s condition fluctuated, second that he presented himself as a person, who was difficult to follow in thought and third that he was a witness on whom no member of the Tribunal would rely in ordinary civil proceedings. On this material, the Tribunal was not satisfied that PS was mentally ill and it ordered his conditional discharge, but explained that “there are clear risks of the patient relapsing while in the community”. Discharge was deferred until there was compliance with the conditions which were the same as those which had been imposed in 1998.

On 28 January 2002, PS was conditionally discharged. Unfortunately, his condition deteriorated quickly and he was recalled on 27 February 2002 after a number of disturbing events, which I must now describe. On 20 February 2002, a community psychiatric nurse (“CPN”) had reported a change in PS’s demeanour.

On 27 February 2002, PS had telephoned his social worker to say that his flat had been “compromised” and that he was ten miles away but he would not say where he was. He was persuaded to attend. When PS returned there, he was unkempt and he was carrying camping and other equipment in a rucksack. PS said his life was in danger and that he had witnessed a man on two occasions, who appeared to be watching him. He also stated that he had heard voices from outside his flat who either were or were sent by “mercenaries” in the area in which he committed the 1995 offences. PS also stated that a letter from the Home Office addressed to AG, which was PS’s former name, had been pushed through his door rather than being placed in his post box; PS considered that this was a sign that people were out to get him. He said that, through prayer, God had revealed to him that he was in danger, but that he would not give details of the way this had happened. PS also stated that he “knew” by spiritual means that there was a conspiracy against him which went “high up”. It is noteworthy that PS would not account for his whereabouts between 20 February 2002 and 27 February 2002.

Following readmission to the hospital, PS implied that information had been leaked to “vigilantes”. He spoke at length about this in March 2002 to a member of staff, referring to a dossier, which might have been compiled on him. PS also expressed concern that an address book belonging to him was missing and that this might have been passed on, but it was later found in his room. He also made enquiries about staff tampering with or opening his mail.

Dr. B discussed the situation with the police, who concluded after an investigation, that there was no evidence for PS’s concerns. It was therefore felt by the clinical team that PS had again developed a paranoid psychotic illness.

On 13 March 2002, Dr. B concluded that the claimant was temporarily incapable of managing his affairs by reason of mental disorder because he appeared “highly stressed and disorganised”. She noted that PS was planning to publicise his case against legal advice to him that such a course could be harmful to his well-being. Dr. B stated that it was very difficult to follow his logic.

The clinical team considered that medication should be given to PS but he objected. On 23 April 2002, Dr. David Myers duly provided a second opinion under Section 58(3)(b) of the Act authorising the administration of anti-psychotic medication. A care co-ordination review on 13 June 2002 decided, however, that since there was to be a Tribunal hearing shortly, the administration of the medicine should be postponed until after the Tribunal’s determination.

On 9 July 2002, a further SOAD report was provided by Dr. Lowe in which he certified that a trial of anti-psychotic medication should be given within BNF limits. On 9 September 2002, a Tribunal considered oral and written evidence and it concluded that PS was suffering from a paranoid psychotic mental illness with the result that it was necessary for the health of PS as well as the protection of other persons and of PS to receive treatment. The Tribunal considered PS’s history and it determined that his 1995 convictions for manslaughter and his two relapses in 1999 and 2002 showed some common features, which supported the diagnosis of continuing mental illness and the necessity for treatment for his safety and for the protection of others. The Tribunal accepted Dr. B’s view that PS’s condition was chronic and that over the years there had been some deterioration in his condition.

Quetiapine, in a dosage which was in the middle of the treatment range, was accordingly administered to the claimant between 17 September 2002 and 26 November 2002. As I have explained, Dr. G became PS’s RMO in late October 2002, when Dr. B moved to another job. He summarised the changes in PS observed during and after medication and he noted in particular that after medication, PS was observed spending more time chatting. Dr. G also recorded that PS complained about side effects, including shortness of breath and poor concentration, as well as mind sedation. Nevertheless, it is significant that after he took Quetiapine, PS was observed to be more sociable and relaxed, as well as being less focused on religious topics and PS was considered to be compliant with the medication regime though he liked to see the packet beforehand. On 7 November 2002, PS asked nursing staff when he had started the medication in order to establish when the trial period would be completed. When the trial period ended and medication was discontinued, it is significant that there appeared to be a marked change in PS’s behaviour, in which he used gestures instead of words and there was a noticeable increase in the religious content of his conversation. I will explain in paragraph 58 below that PS told Dr. Hambidge that he had stopped taking Quetiapine on about 29 September 2002 as well as the steps that were then taken to verify that contention.

In her report to the MHRT dated 26 November 2002 (as revised on 27 February 2003), Dr. Rowe noted that there had been no concerns regarding PS’s compliance with the medication and that it was felt by the clinical team that PS benefited from anti-psychotic medication. This conclusion and the reasons for it are in the notes of the case co-ordination review held on 26 November 2002. Following the case co-ordination review on 26 November 2002, Dr. G obtained a further second opinion from DR. W on 10 December 2002. Dr. W’s witness statements deals with the provision of this opinion in accordance with Section 58 of the Act. He considered schizophrenia to be the appropriate diagnosis and that anti-psychotic medication was necessary. Dr. W added to the treatment plan an anti-muscarinic drug. Dr. G therefore proposed to proceed with medication if PS did not consent.

Meanwhile, Dr. Hambidge had been asked by PS’s solicitors to provide a psychiatric evaluation of PS and as a matter of urgency, he assessed PS on 3 December 2002 before preparing a report dated 4 December 2002. PS told Dr. Hambidge that he had stopped taking the trial medication on about 29 September 2002, which was an allegation that had not previously been made by PS. On the limited material then available to him, Dr. Hambidge concluded that PS was not exhibiting psychotic symptoms and he also had grave doubts whether PS had experienced any for many years.

Despite PS’s assertion to Dr. Hambidge that he had not swallowed the medication from about 29 September 2002, scientific testing of some of PS’s hair procured by Dr. Hambidge reveals “evidence of repeated dosing with Quetiapine in the approximate period of end of September 2002 to the end of November 2002”. This is an important conclusion although this evidence does not contain any conclusions about the amount consumed or whether it was used intermittently for a restricted period or whether the drug was used continuously at a lower dose. It was not disputed on PS’s behalf at the hearing that he had consumed Quetiapine in October and November 2002. Indeed in any event, I am satisfied that PS took Quetiapine in repeated doses for at least some of the time from late September 2002 to the end of November 2002 with the result that the effects on him of that medication during that period are of some importance.

On 18 December 2002, PS obtained an injunction on a without notice application made to Gray J to stop the first defendant from proceeding with medication without PS’s consent and on 19 December 2002 the present claim was issued.

The first defendant then applied to have the injunction lifted, or in the alternative for the hearing of the claim to be expedited. He, together with the second defendant opposed the grant of permission. In support, the first defendant made the witness statement in which he explains that PS suffered from a recurrent psychotic illness. Wall J granted permission on paper to pursue the present application on 5 February 2003 and at the same time he continued the injunction imposed by Gray J while ordering expedition of the present application, but unfortunately the present hearing did not commence until more than five months later in July 2003.

In the meantime, Dr. Hambidge had prepared a further report dated 18 January 2003, after having interviewed PS again and after having read medical notes relating to PS for the period after September 2001. He did not change his opinion. Dr. B’s diagnosis is that PS suffers from either a paranoid psychosis or a schizophrenic illness. Quetiapine was chosen as the medication because of its “cleaner” side effect profile, with a relatively short half life from which side effects could be picked up quickly with the consequence that the administration of the medication could then be stopped if that was necessary.

In her report to the Tribunal dated 22 April 2003, Dr. Rowe refers to a number of recent features. There were several episodes where there had been inconsistencies in what PS has said to different staff, evoking different reactions from staff members. This form of a patient’s behaviour is known in psychiatric hospitals as “splitting” and had, as I have explained, been one of the reasons for his earlier transfer. At a multi-disciplinary meeting on 8 April 2003, it became increasingly difficult to understand PS’s train of thought and he was unable to answer direct questions. It was felt by all members of the clinical team that PS showed evidence of formal thought disorder. This, however, was not apparent on a later examination on 22 April 2003 and though evident when PS had been under stress was often not apparent at other times. In consequence, there has been confusion about the correct diagnosis. Dr. Rowe and the clinical team considered that PS was suffering from mental illness.

A Tribunal hearing which had been due to take place on 28 May 2003, was adjourned until 4 August 2003, as a result of the existence of the present judicial review hearing. I heard evidence and submissions on the present application in July 2003 but, as I have explained, I deferred giving judgment until after the adjourned Tribunal hearing, which has now been further adjourned so that at the request of the parties, I am giving the present judgment.

I must also mention that at the multi-disciplinary review on 20 May 2003, it was reported that PS had been seen by Dr. Briscoe, who believed that PS had suffered three psychotic breakdowns and that he was exhibiting thought disorder during examination. Dr. Briscoe suggested that PS should be placed on medication. Dr. Biscoe has not made a witness statement in the present proceedings and so I do not attach any importance to his opinion. On 2 June 2003, PS reported seeing someone whom he said had recognised him from the area in which he committed the 1995 offences in the hospital grounds and so he later requested a transfer to another hospital.

Dr. G has made a request to the Home Office for escorted community leave. The first defendant considered that transfer to another hospital is neither necessary nor likely to happen. His diagnosis of PS remains unchanged.

Dr. Hambidge has made a further updated report on PS, in which he concluded that first that he “has been fully fit for discharge for many months”, second that there is “no evidence that [PS] requires anti-psychotic medication” presently and third that it is “unlikely” that the very specific circumstances of the 1995 offences will happen again. It is now necessary to turn to the first issue and to ascertain from what mental disorder PS is suffering.

As I have already explained, Dr. Hambidge contends that the claimant was suffering from schizophreniform disorder, while Dr. B considered that the claimant was suffering from paranoid psychosis. Dr. G and Dr. W both considered that the claimant was suffering from schizophrenia. In essence, there is no significance between the views of Drs. B, G and W as they all agree first, that PS was not suffering from a schizophreniform disorder, which was Dr. Hambidge’s view and second, that PS should be given anti-psychotic medication.

The essential difference between a diagnosis of schizophreniform disorder and schizophrenia is, as I have already explained in greater detail in paragraph 7 above, that although the symptoms for both conditions can be the same when a patient is ill, they settle more quickly in the case of schizophreniform disorder than when a patient is suffering from schizophrenia or paranoid psychosis. Dr. B considered that schizophreniform disorder differed from schizophrenia because the symptoms were shorter in duration. Dr. G held a similar view believing that schizophreniform disorder was used to describe short-lived episodes of psychosis.

Mr. Gledhill for the claimant points out that there are a number of factors which favour a diagnosis of schizophreniform disorder. He accepts that the claimant has had at least two episodes of experiencing psychotic symptoms which occurred at the time when he committed the 1995 offences and also in 2002. He submits that the third alleged incident at the time of the Millennium is more difficult to analyse because the Millennium was significant for many Christians and in addition, there were then serious worries about computer and similar problems emerging at the start of 2000.

It is also pointed out by Mr. Gledhill that there was no evidence of what the claimant was planning to do in the area in which he committed the 1995 offences at the time of the 1999 episode, although he rightly and realistically accepted as is clearly correct that a cautious view had to be taken with good reason by those in charge of the claimant’s intentions because he had previously killed two people in that area when he committed the 1995 offences.

So, it is said by Mr. Gledhill that the only evidence of any form of disorder suffered by the claimant at the end of 1999 was his call to the police indicating that he was scared because he had recognised certain people. It is however contended on behalf of PS that this was not necessarily a paranoid delusion bearing in mind first that there had been death threats made against him and second that his former partner had been engaged in a campaign, which had meant that his case had remained in the media. Those points might well, according to Mr. Gledhill, have had the consequence of fostering an exaggerated concern by the claimant for his own safety but it is said by Mr. Gledhill that this concern fell short of being delusional. This was the view of Dr. Hambidge who has had a significant experience of treating schizophreniform disorder and it was also supported by Dr. Magapu in his report of 8 February 2000. A further significant point relied upon by Mr. Gledhill in support of the contention that the claimant was only suffering from schizophreniform disorder and nothing more serious was that his symptoms were apparently all resolved without the need for medication. This, Mr. Gledhill says, is important because although the symptoms of schizophrenia and schizophreniform disorder are similar, the symptoms of schizophreniform disorder settle more quickly.

In support of the contention that the appropriate diagnosis of the claimant was schizophreniform disorder, Mr. Gledhill stressed that Dr. W agreed in cross-examination that in the words of paragraph 5 of Mr. Gledhill’s helpful skeleton argument for his closing address “the suggestion of there having been triggers causing the flare-up of an episodic illness was as consistent with the facts as was his suggestion that there was an underlying illness which came to fore on those triggers”. Dr. G also accepted first, that he had not seen a similar case to that of the claimant and second, that schizophreniform disorder was a possible diagnosis that could have been arrived at by a different RMO.

Mr. Gledhill then contends that it is necessary to analyse the three cases of psychosis being relied upon by the defendants as showing schizophrenia. The first of which was at the time of the 1995 offences when he submits that the evidence establishes that the claimant had been prescribed Paroxetine for depression and that this medication of which the claimant had taken an overdose was capable of causing a psychotic reaction. Dr. W accepted that this was a possibility while Dr. G said that it was perhaps the first episode of developing schizophrenic illness on the part of the claimant although he accepted that he only regarded this as being so on the balance of probabilities and not to any higher degree of likelihood.

The second case of alleged or possible psychotic behaviour occurred at the end of 1999 and Mr. Gledhill points out that Dr. W accepted that the stresses of the Millennium occurring at that time and which I have already referred could have been a trigger for or a cause of the claimant’s behaviour at that time.

The third episode of psychotic behaviour occurred in early 2002 and it was regarded by Dr. W as being possibly a reaction of a man who reacted badly to some stressful situations.

In the light of this history, Mr. Gledhill contends that the analysis of the claimant is a man with a personality which may be susceptible to stress. He says that there is inadequate evidence of a more permanent form of delusional features in the claimant. Mr. Gledhill asked me to bear in mind that psychiatry is often imprecise and that once a diagnosis is made, it thereafter becomes natural for the person who made the diagnosis to see further symptoms as confirming the initial diagnosis, even though the initial diagnosis was not an accurate or was not a fair interpretation of the symptoms.

Four important features are stressed by Mr. Gledhill in support of his submission that there is little evidence that PS has at present permanent symptoms suggestive of a chronic or permanent disorder. The first is that in April 2001, the Tribunal concluded after reviewing the evidence that PS was an eccentric man, who had suffered two previous episodes of mental illness but who was not then currently medically ill and so was discharged.

Second, Mr. Gledhill reminded me that the religious beliefs of the claimant are expressly not relied upon by the defendant as constituting evidence of his delusional state. It is said by him that the contrary views expressed by Dr. Higgins that there was on the balance of probabilities a good case for mental illness cannot be relied as that view was described by the Tribunal in April 2001 as “guarded”. In this respect, Mr. Gledhill points out that it is noteworthy that it was Dr. Higgins who persuaded Dr. B to change her views as to medication and the treatment of the claimant.

Third, it is also said by Mr. Gledhill that the presentation of the claimant in December 2002 when he was described as hostile to some members of staff is not evidence of illness but that it should be regarded as an understandable reaction by the claimant to the stressful situation of potentially being forced to take anti-psychotic medicine against his wishes and contrary to his religious beliefs. Mr. Gledhill contends that this factor would explain the hostility of the claimant towards Dr. B at the end of her involvement with him. Fourth, although there is evidence that the claimant was thought-disorientated during a meeting in April 2003 and concerns had been expressed that he saw someone he recognised in early June 2003, Mr. Gledhill contends that that all the other medical reports refer to the claimant as being pleasant and behaving appropriately without any evidence of psychotic illness.

There is agreement by the defendants that psychiatric analysis is an imprecise science but the defendants submit that the claimant was suffering from schizophrenia or, on Dr. B’s alternative formulation, from paranoid psychosis. They point out that the RMOs for the claimant, Dr. B and Dr. G, who have been looking after him since January 1997 both took that view and that they together have cumulatively substantial experience of the claimant over a period of more than five years. The point is also made that during his interview in December 2002, the claimant continued to harbour what the SOAD considered to be paranoid delusions especially in relation to serial visits by people from the area in which he committed the 1995 offences acting against him and a realisation that his accommodation had been unsafe to him. Dr. W said on the MHAC2 form that he was required to complete that the claimant suffered from “mild persecutory ideas” because they were described by him in a matter-of-fact way without any emotion attached whereas Dr. W would have expected a patient to be more emotional when giving such a description. In cross-examination, Dr. W was asked if there was another explanation for those ideas but he said that if “pushed into a corner” he would say that there was not. Dr. W explained that he had been given adequate time in which to make his diagnosis.

I have concluded that six reasons individually or collectively satisfy me that PS is not suffering from schizophreniform disorder but from schizophrenia.

My starting point must be to consider the views of the RMO as the Court of Appeal have explained that “courts are likely to pay a very particular regard to the views held by those specifically charged with a patient’s care” (N’s case [39] per Dyson LJ, with emphasis added). This approach echoed a similar view expressed by Simon Brown LJ in Wilkinson [31] at pages 433G – 434B.

Mr. Gledhill submits that this is an unusual case and that no more weight should be attached to the views of the RMO than to other experts. He points out in support that Dr. G had been the RMO for a few weeks when these proceedings were commenced and that Dr. B, who had been the previous RMO, had changed her mind over time on the correct analysis of PS.

I am unable to accept that submission for three overlapping reasons. First, Dr. B had a valuable vantage point for giving her opinion as she not only had seen the claimant at the time of his significant relapses in 1999 and 2002 but also she was very familiar with his problems. Second, she was also an impressive witness, whose evidence was careful and was thoughtful being supported by cogent reasons. Third, it is quite clear to me that the combined knowledge of Dr. B and Dr. G of the claimant and his behaviour far exceeded that of Dr. Hambidge, even taking into account the two visits that he had made after his initial meeting and his initial report. Thus, my starting point is to follow the guidance of the Court of Appeal and to “pay very particular regard” to the views of the claimant’s RMO’s, Dr. B and Dr. G and this is my first reason why I reached my conclusion. In reaching my opinion on the cogency of the views of the RMOs, I considered Mr. Gledhill’s claim that the RMOs suffered from “tunnel vision”. I concluded that I was unable to accept that submission in this case because first, the views of the RMOs were clearly reasoned and second, they were supported by other psychiatric evidence, which I found impressive.

Second, the most recent Tribunal decision in September 2002 concluded after considering the evidence that the claimant’s situation would only improve if he took anti-psychotic medication and also that his lack of insight was contributing to a failure to take medication. To my mind, that conclusion is more recent and of greater value to me than the earlier decision of the Tribunal in April 2001, which obviously preceded the relapse in 2002 and which is relied on by Mr. Gledhill; that decision was that the claimant was not then currently mentally ill and that he could therefore then have been discharged.

A third reason in favour of my conclusion is that there is much compelling evidence from doctors, other than PS’s RMOs, Dr. G and Dr. B which explains why each of them decided that the claimant was suffering from a psychotic illness.

Four examples of this can readily be given. First, Dr. Higgins’ diagnosis in March 2001 was that the claimant was suffering from chronic functional psychosis without consistent effective features and that he suffered from chronic paranoid schizophrenia. He thought on the balance of probabilities that the claimant was mentally ill and that it was in his interests to have treatment. As a second example, Dr. Boyd reported in July 2000 that there were certain grounds to suggest that the claimant was actually psychotic and he suggested one of the courses open to him was to prescribe anti-psychotic medication. He concluded that there was more evidence than earlier to suggest underlying schizophreniform illness and very significantly that the claimant remains a potentially dangerous individual. The diagnoses of Dr. Boyd and Dr. Higgins preceded the events of early 2002 to which I referred in paragraphs 48 to 51 above. Third, as I have explained, the view of the Tribunal in September 2002 was that the condition of the claimant would only improve if he took anti-psychotic medication. Finally, the final psychiatrist who supports the defendants’ analysis was Dr. Lowe, who as the SOAD authorised the trial of Quetiapine in 2002 and who considered that the correct diagnosis of the claimant was “paranoid psychosis”. I attach particular weight to these last two factors as they took into account of the events of February 2002.

A fourth reason for reaching that conclusion was that having listened to Dr. Hambidge’s evidence, I had substantial misgivings about it. Although I am sure that he is an experienced psychiatrist, I was concerned and troubled that Dr. Hambidge gave his first unequivocal opinion on the basis of very limited information. The reliability and accuracy of any expert’s opinion is likely to be reduced if his report is produced in limited time on the basis of limited information. Before preparing his first report, Dr. Hambidge relied first on an 80 minute interview with the claimant, second he did not have any discussion with the treating team and third, he did not refer to the claimant’s medical records except for a few limited matters. Indeed at that stage, Dr. Hambidge appeared to accept what the claimant said as being factually correct without checking it by, for example, looking at his full medical records or talking to the treating team. Dr. Hambidge was preparing the report in an emergency situation and that explains these omissions, which undermine the accuracy and cogency of his predictions. Even though he had not carried out full inquiries, Dr. Hambidge concluded of the claimant that “I have grave doubts he experienced any psychotic symptoms for many years”. I appreciate that Dr. Hambidge had limited time to produce his first report and so he could not make full inquiries but surprisingly he was still able to be so dogmatic.

I detected that in cross-examination Dr. Hambidge moved away from his initial position, as it was accepted that the claimant had suffered from psychotic symptoms but that they had settled quickly. In fairness to Dr. Hambidge, I should explain that he apparently recognised that his first report had or might have had inadequate foundations and so he returned to the hospital to look at some of the claimant’s notes. My clear impression after seeing and hearing Dr. Hambidge give oral evidence was that he was going back to see PS after his initial report essentially expecting to find further information to support his initial view rather than to use it as an opportunity to reconsider his opinion afresh in the way that Dr. Higgins and Dr. Boyd did.

In any event, I am concerned that Dr. Hambidge did not read the important reports of Dr. Higgins, of Dr. Boyd or of Dr. Rix before writing his second report. I was also surprised and troubled that Dr. Hambidge did not appear to remember if he had considered or taken into consideration the decision of the most recent Mental Health Review Tribunal on 9 September 2002 which, as I have explained, included the very important conclusion that the claimant’s situation would only improve if he took regular anti-psychotic medication. It was noteworthy that Dr. Hambidge could not remember this and that he did not refer in his second report to the reports of Drs Higgins and Boyd. Indeed I noted that when Dr. Hambidge was asked about the views of Dr. Higgins, who had seen PS in 1994-5 and again in 2001 when he concluded that there had been a deterioration in the claimant’s mental state since 1995, Dr. Hambidge explained that Dr. Higgins was commenting on information not available to him, that is Dr. Hambidge. I was satisfied that Dr. Hambidge had reached his conclusions relating to PS in that report without taking into account the very relevant views of Dr. Higgins and of other doctors. Although Dr. Hambidge produced a third report, nothing in it disabused me of my worries about his earlier reports. Thus, his conclusion on the correct diagnosis of PS’s condition particularly that set out in the first report was not based on the complete relevant information and therefore I consider that I should not accept his opinion unless it is supported by other expert evidence and not undermined by any expert evidence. As I have explained, there was powerful evidence opposing Dr. Hambidge’s views from the RMO’s, Dr. W and the doctors referred to in paragraph 87 above.

I was therefore driven to the clear conclusion that I could not accept the evidence of Dr. Hambidge for these reasons. If I had been in any doubt on this issue, I would have reached the same conclusion on Dr. Hambidge’s evidence because of first, his evasive and over-defensive approach in answering questions when cross-examined and second, his continuing willingness to base an unqualified and dogmatic opinion on limited evidence as occurred when he wrote his first report.

Fifthly, I found the reasoning of Dr. G, Dr. B to be careful, clear and well-thought out. They did not overstate their case or express themselves dogmatically. In addition, they were not selective in marshalling evidence. Each of them took into account the reasons for and against different conclusions and then were able to justify their decisions for sensible, thoughtful and convincing reasons.

I was particularly conscious and impressed that Dr. B was very sensitive to the religious views of the claimant so that in consequence she specifically instructed an evangelical Christian psychiatrist, Dr. Campbell, to provide a report on the claimant. At the end of the case, I was satisfied that both Dr. G and Dr. B reached conclusions which I found to be both impressive and cogent. So even if I had not paid in Dyson LJ’s words “very particular regard to the views of these RMOs”, I would have found their evidence compelling because of their performance as live witnesses and especially as they, like Dr. W, emerged unscathed after being cross-examined skilfully by Mr. Gledhill.

Finally, Dr. W also demonstrated all the objectivity and care that one would expect and hope for from a SOAD. He readily accepted that diagnosis was a grey area and if Dr. W explained why he believed that the claimant was suffering from schizophrenia with his delusions of catastrophes at the time of the 1994 and 1995 incidents, as well as paranoid delusions in 1999, 2002 and during the course of his interview with Dr. W. In addition, he analysed carefully what PS had told him in interview and he accepted for sensible reasons some of the claimant’s statements, such as his fears relating to the proposed medication. He reached his considered conclusions after taking into account all the relevant factors and evidence. I unhesitatingly accept his conclusions.

For all those reasons, I conclude that the claimant is not suffering from a schizophreniform disorder, but that he suffers from schizophrenia. That leads me on to consider if in those circumstances, the Article 3 rights of the claimant would be infringed by the administration of anti-psychotic medication as advocated by the defendants.

Article 3 of the Convention provides that, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This prohibition is absolute and it is not limited by exceptions. There are two sub-issues raised by Article 3 which are relevant to this claim; the first is whether it is engaged and the second, if it is engaged, whether the proposed treatment can be justified on medical grounds.

In order to decide if Article 3 is engaged, it must be appreciated that:-

“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of the minimum is, in the nature of things relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and in some instances the sex, age and state of health of the victim” (T and V v. UK (1999) 7 BHRC 659) (with my emphasis added).

The Strasbourg Court explained the significance of Article 3 to the problem of imposing forced treatment on patients in psychiatric units when it stated, with my emphasis added, that:-

“The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of Article 3, 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 method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist” (Herczegfalvy v. Austria (1992) 50 EHRR 437, 484 at paragraph 82).

In N, the Court of Appeal assumed that the claimant’s Article 3 rights would be infringed by the proposed treatment and thus it did not determine the issue which I am now considering and which now requires an examination of the authorities of the Strasbourg Court to determine the circumstances in which compulsory treatment of medicine would engage Article 3. Although Herzcegfalvy determines how medical treatment can be justified, it is of little assistance as a precedent on whether Article 3 would be engaged in the present case for three reasons. First, Herzcegfalvy did not have capacity to consent, which was a fact to which the Strasbourg Court attached importance on the facts of that case; in contrast, PS does have capacity. Second, the treatment received by Herzcegfalvy was infinitely more intrusive and more invasive of the patient’s autonomy than that which is proposed for PS as it entailed forcible feeding for a prolonged period under considerable restraint, resulting in the loss of his teeth and broken ribs, for example. Third, the degree of necessity for the treatment was absolutely apparent in Herzcegfalvy, since he was starving himself to death. It is noteworthy, as I have explained, that Herzcegfalvy establishes that generally, “the established principles of medicine are in principle decisive; as a general rule, a measure which is a therapeutic necessity cannot be inhuman or degrading” (paragraph 82).

Miss. Laing pointed out that in Grare v. France ((1991) 15 EHRR CD 100), the Strasbourg Commission rejected as manifestly unfounded a complaint under Article 3 arising from a course of treatment which had distressing side effects for the applicant, who was a voluntary patient in a psychiatric hospital. The Commission’s brief reasoning is that even if the treatment was capable of having distressing side effects, there was nothing to indicate that the treatment achieved the level of seriousness necessary to engage Article 3. If the treatment was an interference with his private life, it was then justified by the need to preserve public order and the protection of the applicant’s health. It is not clear whether the treatment in question was administered with, or without the consent of the patient, or by what means it was actually administered.

Subsequently, Application No 1065/83 v. Germany (7 EHRR 152) was a further Strasbourg Commission decision, referred to by Miss. Laing and which related to the forced feeding of a prisoner, who was on hunger strike. The violation of his autonomy was great and it occurred twice a day and seven times in all. Although that case involved a conflict between the prisoner’s right to autonomy and his right to life, the Commission held that the case did not involve the appearance of a breach of Article 3 because inhuman treatment had to reach a certain stage of gravity, causing considerable mental or physical suffering. The Commission explained that for treatment to be degrading, the patient had to “undergo humiliation or debasement attaining a minimum level of severity”. The Commission attached substantial importance to the fact that the treatment was in the prisoner’s best interests and that it had been taken with a view to securing his survival.

Miss. Laing also refers to an authority, which is perhaps more relevant to the present issue and which is the decision of the Strasbourg Court in Keenan v. UK ((2001) 30 EHRR 38), in which it was said that the assessment of the threshold for engaging Article 3 was relative as it depended on all the circumstances of the case which included the duration of the treatment, its physical or mental effects and in some cases, the age, health and sex of the victim. The Court said that in considering whether treatment was degrading, it would have regard to whether the object of treatment was to humiliate or debase the person and whether the consequences would adversely affect him in a manner incompatible with Article 3 (paragraph 109). A further relevant factor would be whether the treatment evoked feelings of fear, anguish or inferiority, which were capable of humiliating or debasing the person and possibly breaking their physical or moral resistance or driving them to act against his will or conscience. The case established that the public authorities are under an obligation to protect the health of such persons. My attention was not drawn to any English case in which our courts had to determine where Article 3 has been engaged by reason of medical treatment administered to a patient of any kind.

In N, the Court of Appeal “did not find it necessary to hear argument on” whether Article 3 had been engaged [15]. At first instance in N, I had assumed as did the Court of Appeal subsequently that the proposed treatment reached the level of severity for Article 3 to be engaged. There was no finding in Wilkinson on whether Article 3 had been infringed. Thus, no assistance can be derived from either N or Wilkinson on this issue. No counsel contended that the Strasbourg cases should not be applied in this case and I will seek to do so.

The test to be applied before finding a breach of Article 3 is becoming stricter, and significantly the Strasbourg Court has recently observed that:-

“Having regard to the fact that the Convention is a “living instrument which must be interpreted in the light of present day conditions”, the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably, requires greater firmness in assessing breaches of the fundamental values of democratic societies” (Selmouni v. France (2000) 29 EHRR 403 at para 101).

The kinds of ill-treatment which fall within the scope of Article 3 have to be very serious as “the [Strasbourg] Court’s case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering”. (Pretty v. United Kingdom (2002) 35 EHRR 1 at para 52 with my emphasis added).

The Strasbourg Court has stressed that “ill-treatment must attain a minimum level of severity before it will be considered to fall within the provision’s code” and “the practice of the Convention requires compliance with standard of proof beyond reasonable doubt that ill-treatment of such severity occurred” (Orhan v. Turkey App 25656/94 18 June 2002 paragraph 352).

Thus, where medical treatment is administered on a patient against his or her will, Article 3 will only be contravened if:-

In determining if the claimant succeeds on his Article 3 claim, two separate sub-issues to be considered in turn and it is important to appreciate that the convincing medical or therapeutic evidence sub-issue only arises if there would otherwise be a breach of the Article 3 rights of PS because the minimum level of severity sub-issue has been reached. I should add that in case I am wrong and there is simply one issue to be considered, I will consider that issue after I have examined the two sub-issues to which I now turn.

Mr. Gledhill points out that there was no assessment of the effect on PS of anti-psychotic treatment administered to him during the trial period in 2002. He stresses that the medication is bound to have side effects and in any event, mere consideration of medication has the additional counter-productive effect of making PS anxious by the thought of medication, which is contrary to his beliefs.

It is, however, striking that although there was a trial period of using anti-psychotic medication as I have explained in paragraphs 55 and 58 above, it is not suggested the consequences of its use on that occasion to the claimant either individually or cumulatively reached the Article 3 threshold. Of course, unlike during that trial period, PS does not now consent to its use and that is clearly a factor of considerable importance in showing that the Article 3 threshold has been reached.

So I must now consider the consequences of now giving Quetiapine to PS against his consent and his religious beliefs in order to see if they reach this minimum level of severity. Mr. Gledhill, who contends that they do, relies on the side-effects of Quetiapine and on the claimant’s capacitated and reasoned refusal.

The main common side effects of Quetiapine are drowsiness and weight gain. The drowsiness is likely to be transient and to decrease with time; in any event, it is to a large extent dose-dependent. The weight gain from the dose of Quetiapine can be controlled by exercise, which is likely to be an effective remedy in the claimant’s case because he is fit and health conscious. It is of considerable importance to remember that when he took Quetiapine, PS complained that he suffered from weight loss and loss of concentration.

Indeed, Quetiapine was chosen for him because of its limited side effects. If the treatment has to be administered to PS on a depot (injection) basis, it seems that this can cause more adverse side effects for the claimant; these effects would include sedation and neurological side effects which could be and would be counteracted by the anti-muscarinic medication authorised by Dr. W. It is appropriate at this point to consider the significance to this application of the fact that PS has capacity and still refuses to consent.

Mr. Gledhill contends that substantial importance must be attached to the fact that the administration of the proposed medication is contrary to PS’s religious beliefs, second his other grounds for refusal and third, that it is common ground between the parties that PS has capacity; so it is said that he is different from an incapacitated patient as he is able to and does object to its administration. Thus, Mr. Gledhill submits that where a patient has capacity, the principle of personal autonomy becomes central to the law. He contends that cases such as Re W [2002] MHLR 411 make it plain that the law allows those with capacity to take treatment decisions which on any objective view are reasonable. As I have explained, the legislative provisions do make it clear that even if a patient, like PS, has capacity to object and he does object, then this objection can in appropriate circumstances be overridden whereas in this case, but not in W’s case, the patient was held under the Act. (As I will explain in paragraphs 152 to 154 below, Re W relates to a factually different position from that which I am considering). There is no statutory provision nor any decided case which provides that capacitated refusal to consent overrides all other factors so that the treatment cannot under any circumstances proceed. The statutory regime shows clearly that this is not the case as I have explained in paragraphs 12 to 15 above.

Mr. Gledhill also seeks to obtain assistance from the approach of Simon Brown LJ in Wilkinson where he said that:-

“If in truth this claimant has the capacity to refuse consent to the treatment proposed here, it is difficult to suppose that he should nevertheless be forcibly subjected to it. True, Dr. Horne [the claimant’s RMO] appears to regard it as his only hope of eventual return to the community. That said, however, its impact on the claimant’s rights above all to autonomy and bodily inviolability is immense and its prospective benefits (not least given his extreme opposition) appear decidedly speculative” [30].

The learned Lord Justice was not saying there that a capacitated refusal “trumped” all other considerations but he was saying that it would be difficult on the facts of the Wilkinson case to authorise it. In other words, it was a case-sensitive comment and significantly, the case of the claimant is very different from Wilkinson in three important respects. First, the previous use of the medication to PS demonstrated the nature of the benefits to him of the proposed treatment. As I have explained in paragraph 55 above, there were substantial benefits to PS from the previous administration of Quetiapine between September and November 2002 and there is no reason to believe that those benefits would not reoccur if PS now takes the medication. In Wilkinson, the benefits were more speculative. Second, the risks of damage to the patient from the treatment were very substantially greater in Wilkinson’s case than in PS’s case. Simon Brown LJ explained that Wilkinson had previously had a heart attack and that he was suffering from angina and from a minor coronary disease with the result that there was a risk of a sudden death if the treatment in issue was administered, but fortunately that is not the position in PS’s case. Indeed, PS did take the medication in 2002 and his complaints included shortness of breath and poor concentration. If these complaints were to recur if the medication is given, then the risks remain significantly much less serious from those found in Wilkinson. I have considered with care an extract from British National Formulary which was supplied to me by Mr. Gledhill and which sets out the side-effects that can be suffered by users of Quetiapine. In this case I have the additional benefit of knowing the effects of Quetiapine on PS when he used it last year and they are radically less than those that occurred in Wilkinson.

Third, Wilkinson had to be physically restrained on his bed. It was said by his RMO that Wilkinson’s “rigid and fiercely antagonistic attitude in this matter is very unusual”. By way of contrast, Dr. G said that if compulsory treatment is authorised, PS is likely to choose to take the medication orally and the side-effects of it are then likely to be less severe than if depot injection was used with the result that Article 3 is even less likely to be engaged. I accept this evidence, which seems sensible and credible in the light of his experience of PS and what happened when he was prescribed and took anti-psychotic medication in 2002.

In any event, there is authority that capacitated refusal does not preclude treating PS against his will because Hale LJ explained also in Wilkinson [80] that:-

“I do not take the view that detained patients who have the capacity to decide for themselves can never be treated against their will. Our threshold of capacity is rightly a low one. It is better to keep it that way and allow some non-consensual treatment of those who have capacity than to set such a high threshold for capacity that many would never qualify. Whether the criteria for non-consensual treatment of the 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”.

I consider that very important factors in favour of Mr. Gledhill’s case are the facts first that the claimant has capacity to consent to the treatment, second that he does not consent and third that the administration of the medication would be against his religious beliefs. Dr. W explained that there was a better than a 50/50 chance that without medication and the work that PS could do once that he had the necessary insight that he would relapse when he was next in the community. As I have explained, I found Dr. W to be an impressive witness whose evidence I found cogent on this point. Further, if PS were to relapse in the community, the consequences could well endanger his own life or that of others in the way that he did at the time of the 1995 offences.

I consider that even in the face of PS’s capacitated opposition to it, the administration of anti-psychotic medication to PS would not reach the threshold of engaging Article 3 in the light of the possible benefits to him and the limited adverse consequences. If I had any doubt on this, I would have reached the same conclusion, in the light of the limited adverse consequences when PS took the medication in 2002. Indeed, adopting the language of the Strasbourg Court, the anticipated adverse consequences of administering the medication do not reach the “minimum level of severity” that “involves actual bodily injury or intense or physical or mental suffering” (see Pretty ibid and paragraph 103 above). Furthermore, the plan authorised by the SOAD is sufficiently flexible to respond to any adverse side-effects suffered by the claimant by changing the medication. In any event, as I have explained in paragraph 117, he is likely to consent if his present claim fails. Irrespective of that, the Article 3 claim fails but as I have heard argument on it, I will now briefly consider the second sub-issue.

At this stage I must assume, contrary to the conclusion that I have just expressed on the minimum level of severity sub-issue, that PS’s Article 3 rights have been infringed. The Court of Appeal has recently explained that the approach to this sub-issue should be that:-

Relying on those principles, Mr. Gledhill submits that in the absence of any very strong contrary argument, the statutory provisions should be construed so that the court should not override the interests of those who have the capacity to refuse treatment and who do actually refuse, when as in PS’s case there is no evidence of any danger posed by the claimant to himself, to other patients or to the public should he abscond. That, as Hale LJ explained in Wilkinson [24] in the passage that I quoted in paragraph 118 above, is not the correct criterion for deciding if the treatment in question should be permitted.

As I have explained in paragraph 116 above, in applying the test of the Court of Appeal whether in the form of the compartmentalised test advocated by Mr. Gledhill or of the “simple question” advocated by Dyson LJ, the fact that the claimant has capacity to consent to treatment but refuses to consent to it is a very important factor. There is, however, no basis whether derived from statute or from decided cases for concluding as Mr. Gledhill contends to be the case, that such objections of the claimant automatically and inevitably override all other issues except where the interests of other people would be affected if the medication was not administered. The views of the doctors on what constitutes the best interest of the patient is in itself also a very important consideration, which the court has to take into account. In any event, as I will explain, in this case even if Mr. Gledhill is correct and a compartmentalised approach should be adopted, the outcome will be the same as answering the “simple question” suggested by Dyson LJ. I must now consider the factors referred to by Dyson LJ and which I have set out in paragraph 121(b) above.

As I have explained, after considering the diagnosis issue I concluded that it is clear that the claimant is suffering from schizophrenia, which it is common ground is a treatable mental disorder.

The risk of PS causing injury to others is not very great as long as he remains in a safe and in a closely monitored environment of a medium secure unit, such as the one in which he is now living. I agree with Mr. Gledhill that it is also significant that the claimant’s previous relapses have been remedied without medication. Nevertheless, as Dr. B correctly pointed out, if the claimant had a relapse in the community, the risk of injury might well be great but nobody can be sure about it. I found this evidence cogent and a factor of substantial significance as both in 1999 and 2002 there was uncertainty as to what PS had been doing or was intending to do and why during the periods before he returned to the hospital. There were and are, for example, serious and worrying doubts about his motives for going to the area in which he committed the 1995 offences in 1999 and a fear that he might have sought to contact the Pastor, even though previously he had received a caution from the police for stalking. Indeed, it was clearly a matter of great concern that PS returned to the area in which he committed the 1995 offences in 1999 in circumstances that were worrying in the light of the very serious 1995 offences that he had committed in that area. Miss. Laing points out correctly that even Dr. Hambidge accepted in cross-examination that if the claimant had not developed insight and had another schizophreniform episode and he was not detained early enough to start temporary medication, he might behave as he did on the earlier occasions when he had such episodes. Indeed, I would have reached that conclusion, in the light of the expert evidence to which I have referred in the absence of Dr. Hambidge’s evidence. There was a great deal of compelling evidence which showed that the claimant presented a risk to others if he was under stress. On the basis of the evidence and of PS’s previous behaviour, I conclude that Mr. Baker is correct when he submits as Miss. Laing does first that the claimant cannot function properly when he is under stress and second that he then behaves bizarrely and unpredictably, thereby making him a potentially dangerous individual to himself and to others, particularly to those known to him.

It appears to be common ground that anti-psychotic medicine, such as Quetiapine, is appropriate treatment for schizophrenia. The thrust of the evidence from Dr. G, Dr. B and Dr. W was that there was a good prospect that such medication would achieve its objective of helping to prevent a relapse and to prevent a deterioration of the claimant’s condition. I have no hesitation in accepting this evidence, which seems sensible and which is supported by the cogent evidence of how PS’s behaviour and attitude improved when he used this medication in late 2002. Dr. G explained that when he took the medication, the claimant became more accessible and less focused in his religious beliefs. These changes would have enabled him to address his offending behaviour and to discuss it. Those were welcome improvements.

The expected benefits of the treatment are significant. Dr. G explained that one of the aims of treatment was to secure the claimant’s discharge from hospital and that required the claimant’s illness to be treated with the proposed medication. That reasoning is logical and sensible. I was very impressed with and accept the evidence of Dr. W, who was a careful and thoughtful witness and who considered that there was a good chance (expressed by him as being more than 50/50) that first, the proposed medication would achieve the purpose of suppressing PS’s residual persecutory ideas and that second, it would satisfy the aim of helping the claimant to gain insight into his condition which was important because Dr. W thought that he lacked that insight at present.

Third, according to Dr. W, the proposed treatment would achieve the purpose that the treatment would act as a special protection against any possible future relapses on PS’s part. I also accept the evidence of Dr. W that these purposes were and remain important because without medication and without the work that PS could do once he had the necessary insight, there was a better than a 50/50 chance that PS would relapse when he was next in the community. Dr. W also satisfied me that if there were any real doubts about the benefits of administering this anti-psychotic medication against PS’s will, he would not have authorised it; I consider Dr. W’s views on these matters to be justified and I accept them as sound and correct.

As I have already explained in paragraph 112 above, the most common adverse consequence that would be suffered by PS as a result of the proposed treatment would include drowsiness and weight loss, with additional risks of sedation and also neurological effects if the treatment is administered by injection. The drowsiness is transient and it will decrease in time, but it is also dose-dependent and it can be controlled if the medication has to be administered by injection. If the proposed medication was likely to have serious adverse effects, those could be removed as the plan authorised by the SOAD is sufficiently flexible to enable the treating team to respond to any untoward side effects by changing the medication by, for example, administering the prescribed anti-Parkinsonian medication. Significantly, as I have explained, the view of the treating team who know the claimant well is that if compulsory treatment is authorised, PS is likely to choose to take the medication orally. I agree with and accept that prediction; if it occurs, it means first that a breach of Article 3 becomes even more remote and second, that the potential side effects are likely to be less severe than if a depot injection had to be used. In reaching that conclusion, I have borne in mind that PS’s lack of consent is an important factor, but it is not a decisive matter, particularly as PS lacks insight into his illness as a result of his illness.

I conclude that the proposed treatment will not have serious adverse consequences for PS. At the end of the day, I am also satisfied that in respect of each of the individual questions, the proposed treatment has been convincingly shown to be medically necessary. For the reasons that I have expressed, I would also reach the same conclusion by answering in the affirmative the simple question suggested by Dyson LJ in N namely “has the proposed treatment been convincingly shown to be medically necessary?”. Until now, I have been assuming that there are two sub-issues to be considered as set out in paragraph 107 above. In case I am wrong and there is merely one question, namely the claimant’s Article 3 rights have been infringed, my answer would also be in the negative for the same reasons that I have expressed. Thus, I consider that the challenge based on Article 3 cannot succeed as it fails on both the minimum level of severity sub-issue and also on the convincing medical or therapeutic evidence sub-issue.

Article 8 of the Convention provides that:-

Individuals have the right not to be subjected to compulsory physical intervention and treatment and Article 8 is frequently engaged, where the minimum level of severity required in Article 3 cases has not been reached. Thus, a prima facie breach of Article 8 often occurs when treatment is given to a patient who does not consent even though he has capacity to do so. In the light of my findings on Article 8(2), I am content to assume at this juncture (without deciding the issue) that administering the proposed treatment to the claimant in this case would constitute a breach of his rights under Article 8(1). Therefore, the RMO, the first defendant, will be interfering with the claimant’s rights under Article 8 by administering the proposed treatment on the claimant unless such interference is justified under Article 8(2) of the Convention. The Article 8 issue in this case therefore becomes refined to whether the proposed treatment is justifiable under Article 8(2).

“… necessary in a democratic society for the protection of health”

The defendants contend that any breach of Article 8(1) is justifiable under Article 8(2) in this case because the proposed treatment was “in accordance with the law and is necessary in a democratic society … for the protection of health”. It is settled law that “necessary” in Article 8(2) is not synonymous with “indispensable” but the treatment would be justified “if the interference complained of [which in this case was the proposed treatment] corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, whether the reasons given by the national authority to justify it are relevant and sufficient” (Sunday Times v. UK (1979) 2 EHRR 245 at 275 and at 277-278 respectively). This approach is logical because inherent in the interpretation of the Convention is its aim to strike a “fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (see Sporrong and Lonnroth v. Sweden (1992) 5 EHRR 35 at 52). Any restriction on a guaranteed freedom, such as that set out in Article 8(1) of the Convention, must be proportionate to the legitimate aim pursued (Handyside v. United Kingdom (1976) 1 EHRR 737).

My starting point is that Parliament has set out the circumstances in which treatment can be imposed on a patient who does not consent and I have set out those statutory provisions in paragraphs 12 to 15 above. I agree with Miss. Laing that the decision to administer the 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, which would be the position if he does not obtain the medication. As I have explained in paragraph 128 above, I accept the evidence of Dr. W that the proposed treatment had a better than 50/50 chance of achieving three purposes; the first of which was principally to suppress his residual persecutory ideas, the second was to help PS to gain insight into his condition, into which Dr. W felt that at present he had no insight. The third purpose was as a specific protection against any future relapse. I also agree that without the medication, PS will continue to pose a danger to others if he is outside a hospital, especially he is in a stressful situation. Thus I conclude that the administration of the proposed medication “is necessary in a democratic society for the protection of health”.

“… in accordance with the law …”

In order to determine whether the proposed treatment satisfies the requirement of being “in accordance with the law”, it is necessary to remember that “the best interests test” is the common law rule which shows the recognised criteria for establishing whether it is permissible to perform any proposed treatment is whether the proposed treatment is in the best interests of the patient.

This common law rule shows that the recognised criterion for establishing whether it is permissible to perform any proposed treatment on an incompetent adult is whether the proposed treatment is in the best interests of the patient. The idea or concept of medical necessity was established by the House of Lords in the case of In Re F (Mental Patient: Sterilisation) ([1990] 2 AC 1) especially by Lord Brandon at 55E and 56D, by Lord Goff at 78B and by Lord Bridge at 52C) as being a medical necessity which is the justification for treatment in a patient’s best interests. Butler-Sloss P. has pointed out in NHS Trust A v. Mrs. M [2001] Lloyds Rep. Med 27, 35 that the “best interests” test at common law provides a more stringent safeguard than the Convention does.

In Re S (Adult Patient’s Best Interests) [2000] 2 FLR 389 at 400, Butler-Sloss P explained, with my emphasis added, that:-

“I would suggest that the starting point of any medical decision would be the principles enunciated in the Bolam test and that a doctor ought not to make any decision about a patient that does not fall within the broad spectrum of the Bolam test. The duty to act in accordance with responsible and competent professional opinion may give the doctor more than one option since there may well be more than one acceptable medical opinion. When the doctor moves on to consider the best interests of the patient he/she has to choose the best option, often from a range of options. As [counsel for the Official Solicitor] has pointed out, the best interests test ought, logically, to give only one answer”.

In essence, the President was stating that the courts have to approach the best interests test in two stages; they have first to see whether the proposed treatment was in accordance with “responsible and competent professional opinion” and, if so, then the court’s second task is to choose the single best option. The President accepted that her two-stage approach, with which Thorpe LJ agreed, was at variance with the comments of Lord Browne-Wilkinson in his speech in Airedale NHS Trust v Bland [1993] AC 789 at 884 (which were not agreed with or followed by other members of the Appellate Committee) which was that in accordance with Bolam, a number of different courses, rather than a single course, may be lawful in a particular situation.

Thorpe LJ in that case also explained the basis of the two-stage test and the width of the second stage, when he stated, with my emphasis added, that:-

“In deciding what is best for the disabled patient the judge must have regard to the patient’s welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination. In my opinion, Bolam has no contribution to make to this second and determinative test of the judicial determination…. It is the judge’s function to declare that treatment which is in the best interests of the patient and ..only one treatment can be best”

In that case, the President’s approach similarly required that the court when dealing with the second stage should consider all relevant issues when she explained, with my emphasis added, that:-

“the principle of best interests as applied by the courts extends beyond the considerations set out in Bolam. The judicial decision will incorporate broader ethical, social, moral and welfare considerations”

The first stage of the President’s test is satisfied in the present case because, as I have explained, the proposed treatment is in accordance with “responsible and competent professional opinion” as is shown by the views of Dr. B, Dr. G and Dr. W supported by Dr. Lowe and Dr. Myers, gave earlier SOAD certificates. In order to determine whether the best interests test has been satisfied in the sense of choosing the single best opinion, there are a number of sub-issues to be considered. In order to determine if the proposed treatment meets the best interests test. The first is whether the proposed treatment is likely to alleviate or prevent the deterioration of the claimant’s condition. As I have just explained, Dr. W considered that this question can be answered in the affirmative for the reasons that I have explained in paragraph 128 above. I agree with that approach, which is supported by Dr. G and Dr. B. In any event, the improvements in PS noted after his trial of the medication in 2002 constituted an additional reason for reaching that conclusion.

The second sub-issue is whether there is a less invasive form of treatment that could be given to the claimant which would be likely to achieve the same beneficial results for him. Dr. Hambidge was suggesting that no treatment was necessary, but I am unable to agree with that opinion on the basis of my conclusions on the diagnosis issue. I was impressed by the evidence of Dr. W setting out the benefits of the proposed treatment. In any event, it is noteworthy that as I explained in paragraphs 53 and 54 above, Dr. Myers and Dr. Lowe both reached similar conclusions when acting as the SOADs earlier in 2002.

A third sub-issue to consider is whether it is necessary that the treatment should be given to PS with regard to (a) his resistance to treatment, (b) the degree to which treatment is likely to alleviate or prevent deterioration of his condition, (c) the risk he presents to himself, (d) the risk he presents to others, (e) the consequences of the treatment not being given and (f) any possible adverse effects of the treatment.

As to (a), as I have explained, I agree with those who have previously treated PS that it is very likely that the claimant will agree to administration of the proposed medication other than on a depot basis. Turning to (b), as I have already stated, I consider that the treatment is likely to alleviate or prevent a deterioration for the reasons given by Dr. W and other doctors. The answer to (c) and (d) is in Dr. W’s evidence, which also indicates the risks that he presents to himself or to others if he was not given treatment and he was outside his present environment when he suffered stress. Other doctors’ support this evidence which is consistent with the claimant’s behaviour at the time of his lapses in 1994, 1999 and 2002.

Turning to (e), the consequences of the treatment not being given is that the claimant is unlikely to be discharged unconditionally or to be able, if discharged, to cope in the community, especially if he suffers stress. As to sub-issue (f), as I have already explained I do not consider that any adverse effects of the medication would be very great, especially as no serious adverse effects of the treatment were apparent when the claimant took the medication at the end of 2002. Even taking into account the claimant’s present hostility to the proposed treatment and his reasons for which are based on his religious views. I still do not consider that the adverse effect of taking into account this factor would be serious. Thus, I conclude that it is necessary that the claimant should have the proposed treatment as it will be in his best interest. That means that the proposed treatment thereby meets the requirement of being “in accordance with the law” but that leads to the further issue of whether it is a decision to require PS to have treatment is proportionate.

I have already explained that the adverse consequences to the claimant of taking the medication would be very limited while there were significant benefits. In those circumstances, I conclude that the administration of the proposed medication is not only “proportionate” but also, as I have explained, that it is also “necessary” for “the protection of health” of the claimant, as well as the safety and health of “others”, especially when he is under stress. Thus, the Article 8 claim fails.

In any event, even if I was wrong on that approach, the SOAD and the RMO are entitled to an appropriate margin of discretion in making their decisions in relation to the administration of the proposed treatment. This provides an additional reason why I reject the contention that to administer the proposed medication to the claimant would infringe his Article 8 rights.

Article 14 of the Convention deals with the prohibition of discrimination and it provides that:-

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

In Wandsworth LBC v. Michalak [2003] 1 WLR 617, Brooke LJ considered that it would usually be convenient for a court when invited to consider an Article 14 issue to approach its task in a structured way by asking itself four questions and if the answer to any of those questions was in the negative, the claim was likely to fail with the consequence that it was unnecessary to proceed to consider the next questions. Those four questions are:-

“(i)

Do the facts fall within the ambit or one or more of the substantive Convention provisions (for the relevant Convention rights see s1(1) of the 1998 Act)?

(ii)

If so, was there different treatment as respects that right between the complainant on the one hand and the other persons put forward for comparison (“the chosen comparatives”) on the other?

(iii)

Were the chosen comparatives in an analogous situation to the complainant’s situation?

(iv)

If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear reasonable relationship proportionality to the aim sought to be achieved?” [19]

Brooke LJ, with whom the other members of the Court of Appeal agreed on this issue, pointed out that sometimes there may be a need for caution about treating these four questions as a series of separate hurdles that have to be surmounted in turn because there is a potential overlap between the considerations that are relevant when determining at any rate the last two and probably the last three questions [22].

In Wilkinson, Simon Brown LJ said he could not “see that Article 14 adds anything to the debate” [26]. Mr. Gledhill for the claimant, however, contends that on the facts of this case each of the questions referred to by Brooke LJ in the Wandsworth case must be answered in the affirmative and so a breach of Article 14 can be established.

In relation to the third and fourth questions, Mr. Gledhill points to the decision in Re W [2002] MHLR 411, which concerned a prisoner, who unquestionably suffered from a severe mental disorder but who significantly could not be detained under the Act because he did not meet the additional statutory criterion of treatability which applies in the case of psychopathic disorder but not in the case of mental illness. As W had a capacity, it was held that he could choose to refuse treatment for various self-inflicted wounds and instances of self-harm, even though those decisions of W were irrational or were manipulative in the sense that they were being used by him in a way that would force his transfer to a hospital.

Mr. Gledhill’s submission is that mentally disordered individuals such as the claimant in Re W are entitled to refuse treatment to treat the consequences of this mental disorder because they are not held under the Act. The reasons for that is that an additional criterion, namely the treatability of the underlying disorder is not satisfied in their case. He then contends that this raises the question why those who like PS suffer from a mental disorder, which allows their detention in hospital should be subject to an entirely different regime in relation to issues of consent. Mr. Gledhill submits that this also raises issues of proportionality. For those reasons, Mr. Gledhill submits that PS’s Article 14 rights are infringed because Brooke LJ’s questions can be answered in the affirmative.

In answer, it is said by the defendants that there are significant and relevant differences between PS and W because first PS, unlike W, is held under the Act and second, that PS meets the criterion of treatability. Indeed, the fact that PS can be treated for his condition while W cannot be treated justifies a totally different approach on the issue of administering treatment in PS’s case from that adopted in W’s case. I regard these points as valid and decisive in showing that the third and fourth questions in the Wandsworth case and set out in paragraph 149 above cannot be answered in the affirmative. In consequence, the Article 14 claim also fails.

Notwithstanding the admirable submissions of Mr. Gledhill, this claim must be dismissed. I hope that the Tribunal will now be able to make its decision. If the claimant is then not discharged, consideration will no doubt be given to the best way of treating him. If it is proposed in the future to administer anti-psychotic medication to the claimant, it might well be that the relevant facts will be different from what they were on the present application.