K, R (on the application of) v Hughes

MR JUSTICE STANLEY BURNTON: I have before me applications on behalf of the defendants to these proceedings to make such an order as would result in their coming to an effective end either by way of dismissing the proceedings or granting an indefinite stay or the like. Those applications are opposed on behalf of the claimant. These proceedings concern the treatment of K, a patient detained under section 3 of the Mental Health Act 1983. The proceedings began on or about 10 January of this year as a result of the impending administration of electroconvulsive therapy treatment to the claimant. An order was made on 10 January restraining the defendant hospital from administering ECT until further order.

The defendants to these proceedings are Dr Hughes, who is the RMO of K, the South West London and St George's Mental Health NHS Trust, which is the hospital in which she is detained, and Dr John Besson who is the doctor giving a second opinion for the purposes of section 58 of the Act. The proceedings, when begun, focused on the condition of the claimant and the treatment thought to be appropriate by Dr Hughes, with whom Dr Besson agreed, to her then condition. The remedy sought was an injunction to prevent the administration of ECT. The claimant, although diagnosed as schizophrenic, has capacity. She objected to the application of ECT even if it was thought by her RMO that that was a treatment which would improve her condition or prevent its deterioration. The original claim form contained no prayer for a declaration as to the general unlawfulness of the ECT, no prayer as to the unlawfulness of Regulation 16 of the Mental Health Regulations 1983, or as to the proper construction of section 58 or section 62 of the Mental Health Act.

The evidence filed related to the appropriateness of the treatment and, in particular, whether it had been shown that it was a clearly necessary medical intervention in view of the condition of the claimant. The evidence on her behalf went to that issue and to the issue whether ECT could be medically damaging to her, not only so far as her psychiatric condition was concerned, but also so far as her physical condition was concerned.

The condition of the claimant improved following the commencement of these proceedings. That is certainly the view of Dr Hughes, and I understand it to be accepted on behalf of the claimant. Indeed she is on what is presumably section 17 leave while this hearing is taking place.

Whether as a result of that or not, the first and second defendants came to the conclusion that it was no longer necessary for her to receive ECT treatment. Similarly, the authority of section 61(3) of the Mental Health Act was invoked so as to effectively revoke the opinion of Dr John Besson, the third defendant. The result of that is that there is no second opinion for the purposes of section 58, and in the absence of a second opinion, it cannot be lawful to administer ECT to the claimant without her consent except in the circumstances set out in section 62. In those circumstances, there is now no actual threat or intention on the part of any of the defendants to administer, or to cause to be administered, ECT to the claimant.

It also follows that there is little or no point in the court investigating the state of health of the claimant at the time the decision to administer ECT was made, and the desirability of ECT in those circumstances at least so far as the individual position of the claimant is concerned. The proceedings have, in a general sense, subject to some possible exceptions to which I shall refer, become academic. The present position, therefore, is that there is no reason for the claimant to fear that she will be the subject of ECT in the immediate future if not the foreseeable future.

In general, when a claim for an injunction or the like becomes academic, the court terminates the proceedings. It does so for a number of reasons. One is that the time of the court is a relatively valuable commodity, there is great pressure on the work of particularly this division, and the resources of the court should be devoted to issues which are live and imminent, rather than investigate past events which have no relevance, at least so far as the facts are concerned, to the future conduct of the parties. In the present case, it is nonetheless sought to continue these proceedings on a number of bases, but principally on the basis that irrespective of the state of health of the claimant, and irrespective of what may be seen by her RMO of the desirability of ECT, the administration of ECT to a patient who is of full capacity, against her will, is necessarily unlawful. That contention involves consideration -- (a) of the merits and disadvantages of ECT in general. I say "in general" because although the claimant is an individual, the court can be certain that no-one can predict her future state of health, the court can be certain that it cannot now predict what will be the state of scientific knowledge as to the desirability, undesirability and consequences of ECT if and when a decision comes to be made as to her treatment with ECT, and equally, the court can be confident that it cannot now know for all time whether there will not be at a future relevant time, alternatives to ECT not now available or not now sufficiently tested, but which will become available and tested at some stage in the future.

In my judgment, when dealing with a case involving medical and scientific knowledge developments and treatments, it is highly undesirable for the court to pretend to peer into the future and determine issues involving future knowledge, experience and evidence, and equally to peer into the future as to the state of health of any individual particularly in an area, and I refer to mental health, where it is well-known that the health of an individual is liable to fluctuate as a result of external pressures as well as matters internal to the patient himself or herself.

The claimant now seeks to amend the claim form so as to raise general issues which, as I say, involve the construction of section 58, the desirability of ECT, the issue whether ECT is acceptable and lawful treatment within the meaning of section 62(1)(b) of the Act, the issue there being whether it is reversible. I interpose to say the question that it has not been clarified whether the question of reversibility depends on the individual in particular circumstances, or whether a general view as to the irreversibility or otherwise of ECT is to be taken by the court, coming to a conclusion which is good for all patients in all circumstances in the future. A question equally arises as to the validity of rule 16. Rule 16 implicitly permits ECT once a second opinion has been obtained for the purposes of section 58 of the Act, notwithstanding the lack of consent of a patient who is capable of giving or withholding consent. Issues arise as to Article 2, and more seriously to Articles 3 and 8, of the Human Rights Act. I interpose to say that it is the practice of the European Court not to make general declarations in relation to infringement or non-infringement of those provisions. It is the practice of the European Court to focus on individual facts of individual cases. It will be seen from what I have said already that wider issues relating to the use of ECT are now sought to be raised, issues which do not depend on the particular facts of the claimant's case, other than the fact that she objects to ECT now and anticipates and intends to do so in the future. Again I interpose to say that it is possible, I say no more, that for one reason or another that opinion of the claimant may change, but for present purposes I treat it as unchanging. It is equally clear that the parties are not in a position to proceed with a sensible trial of the issues which the claimant now seeks to raise today. I say that because counsel for the defendants have not focused on those issues, and their skeletons do not indicate an awareness of those issues. They have been identified in bullet points drafted on behalf of the claimant in a document of 14 February.

There was an adjournment this morning at 10.30 when I sat so that there could be discussion between counsel in order to identify what the issues that might remain were, and having reviewed the medical evidence in this case, it is quite clear that it focuses on the particular facts originally raised in these proceedings, and that it would be reprehensible of the court to attempt to make any general finding as to ECT and its use on the basis of the limited evidence now available. Moreover, since general questions arise, it would, in my judgment, be necessary to ensure that the Secretary of State is given notice of the proceedings, since the lawfulness of Regulation 16 is at issue. The interpretation of section 58 is at issue and wide questions as to treatment are involved. The position therefore is that if I were to determine the wide general issues now raised, there would have to be an adjournment. It is said on behalf of the claimant that she is entitled to a resolution of the issues she has raised. The present position is, as I have already indicated, that the court could not continue on the present evidence to determine the wide issues now raised.

Mr Field, for the claimant, now submits that if necessary, those issues should be determined on the evidence now available. I do point out that this morning, before the short adjournment, he conceded that the current expert evidence is not appropriate for the determination of those wide issues. The claimant does not have any right to an adjournment to enable the appropriate evidence to be obtained. That adjournment would involve the defendants in considerable legal expense. It would involve the costs of further expert evidence, and at the moment, as far as I am aware, it is not clear that the community funding which has been given to the claimant for the purpose of asserting her right to resist the treatment which was formerly intended to administer to her, should continue to raise these wide general points. It is said that these points are of general significance, affects large numbers of people, that there are questions of construction involved, and therefore, I should apply the exception envisaged by the court in the case of Salem, to which I have been referred, as to circumstances in which although proceedings have become academic they should continue with a determination of general points of interest.

While it is right that ECT is administered to substantial numbers of persons in this country, and it is to be assumed to substantial numbers who have capacity to consent, but do not consent, I am not aware, nor have I been made aware by counsel, of any other pending cases in which this issue has arisen. I am told that this is the first case since the Human Rights Act in which the issue has arisen. That fact of itself indicates that the issue may not be as pressing as might otherwise be thought. Be that as it may, I am clear that if the question of lawfulness of ECT, its compatibility with the Human Rights Act and the interpretation and application of sections 58 and 62 are to be determined by this court, the court would be far better placed to make a correct determination of the position if it had before it the facts of a particular live case and expert evidence which addressed the general issues including submissions on behalf of the Secretary of State. That is not the present case.

In those circumstances, it seems to me that the arguments against a continuation of these proceedings are overwhelming. There is one further matter which is raised and that is it is said that to keep the possibility of ECT hanging over the head of the claimant affects her health. So far as that is concerned, I have to bear in mind: (1) I have no medical evidence to that effect, I have what I have been told by counsel; it is controversial. (2) If these proceedings continue they may result in the claimant's case failing, in which case, the damage to her health presumably would be far greater than leaving the present position as one of uncertainty. (3) Her present RMO has agreed to give an undertaking not to administer ECT without giving 48 hours' notice to the claimant's solicitors, unless it is immediately necessary to do so to save her life. The circumstances in which that exception would apply are narrow and can present, or should present, no real threat to the claimant. The undertaking will give her some significant comfort. On the basis of that undertaking, it seems to me: (1) there is no justification for the continuation of these proceedings against Dr Besson who has performed his function and his certificate has been discharged. It follows that the claim will be dismissed as against him. (2) As against the first and second defendants, the position is that the merits of the claim have not been adjudicated upon, they have simply become academic. In those circumstances, the appropriate order of the court is to stay the proceedings generally. There will be liberty to apply. The liberty to apply will permit Dr Hughes, who has kindly agreed to put on the medical file a note of his undertaking, an opportunity to be released from that undertaking in the unlikely event that that becomes necessary. The undertaking will only apply to him while he is the patient's RMO.

In the event that notice is given to the claimant's solicitors, and the claimant objects to the application of ECT in those circumstances, her solicitors will be able to apply speedily on her behalf, as they did before, for interim relief. The matter will then be determined in the light of her then state of health, her then wishes, the views of her then RMO, of the second opinion doctor, and psychiatric knowledge, experience and practice then prevail. For the reasons I have given, those will be the orders of the court.

MISS RICHARDS: My Lord, can I ask that a transcript of your Lordship's remarks be made available because it will be helpful if this matter does come back or if some other general application is made.

MR JUSTICE STANLEY BURNTON: That will be done.

MR FIELD: My Lord, two applications. In the light of the submissions I made after lunch as to the right of the claimant to a determination and as your Lordship's judgment said, the issues (2) and (3) have not been adjudicated upon, could I seek on those points, liberty to the public interest, for leave to appeal to the Court of Appeal.

MR JUSTICE STANLEY BURNTON: You may seek it, you may not have it.

MR FIELD: And could I seek legal aid taxation?

MR JUSTICE STANLEY BURNTON: Of course.

MR FIELD: Thank you.