England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(Mr Justice Jowitt)

		Royal Courts of Justice Strand, London, WC2A 2LL Monday 22 October 2001

LORD JUSTICE SIMON BROWN :

1. The appellant is a 69 year old mental patient who has been detained at Broadmoor continuously (save only for two short periods of trial leave in lower security hospitals) for the past thirty-four years. He was convicted in October 1967 of the rape of a 9 year old girl and made subject to hospital and restriction orders under ss.60 and 65 of the Mental Health Act 1959 (now ss.37 and 41 of the Mental Health Act 1983 (the Act)).
2. In July 1999 the appellant came under the care of Dr Horne (the first respondent) as his responsible medical officer (RMO). It is Dr Horne's view that the appellant needs treatment by way of anti-psychotic medication. The appellant himself, however, is vigorously opposed to this and, from the outset, he has made it plain that he would physically resist it. S.63 of the Act provides:

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

3. Since, however, this treatment did fall within s.58 of the Act - being the administration of medication more than three months after the patient was first medicated following detention (see s.58(1)(b)) - s.58 applied. Sub-sections (3) and (4) of s.58 are central to this appeal:

"58(3) Subject to s.62 below [which makes provision for urgent treatment], a patient shall not be given any form of treatment to which this section applies unless –

(a) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or

(b) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.

(4) Before giving a certificate under sub-section (3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner."

4. Since the appellant was plainly not consenting to the treatment – indeed, in Dr Horne's opinion was "not capable of understanding [its] nature, purpose and likely effects" and was therefore incapable of giving a valid consent – the treatment had to be certified as appropriate under s.58(3)(b) by "a registered medical practitioner appointed … by the Secretary of State" (ordinarily called a second opinion appointed doctor (SOAD)) following upon consultation by the SOAD with two other persons as specified by s.58(4). Dr Hettiaratchy (the second respondent) was the SOAD appointed in the present case and on 17 February 2000 he issued the requisite certificate, certifying that the appellant was incapacitated "but that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, it should be given". The certificate authorised a plan of treatment whereby the specified drugs would be administered on a number of occasions. Recognising that the appellant's reaction to compulsory medication would be one of great anxiety and agitation, Dr Horne and the other members of his clinical team arranged that he should have no notice of the SOAD's arrival and that the injection should be administered immediately after the certificate was obtained.
5. Armed with Dr Hettiaratachy's certificate, on 17 February 2000 and then again on 2 March 2000 Dr Horne treated the appellant by forcibly injecting him with anti-psychotic drugs. On each occasion the appellant fought as he had said he would and so had to be physically restrained on his bed. Dr Horne states that the appellant's "rigid and fiercely antagonistic attitude in this matter is very unusual"; ordinarily, once a SOAD's opinion is obtained, the patient "gives in to the inevitable and offers no physical resistance." Because further such treatments were imminent, the appellant then consulted his solicitors.
6. On 15 March 2000 the appellant obtained permission to apply both for judicial review of the treatment decisions already taken by the first and second respondents and for an injunction prohibiting any further such treatment until the hearing of the substantive challenge; his solicitors had by then obtained a report from an independent consultant psychiatrist, Dr Grounds, expressing very different views from the first and second respondents on all the important medical issues in the case, notably (i) the nature of the appellant's mental disorder, (ii) whether or not he is incapacitated, (iii) whether the proposed treatment would benefit the appellant's condition and be justified even with his consent, and (iv) whether such treatment is justified if it has to be given under restraint. It is the appellant's case that the court has no option but to decide between these competing views and reach its own conclusions on the various contested issues, not least as to whether the planned treatment should be continued.
7. On 18 May 2000 Jowitt J refused the appellant's application for an order that all three doctors (the first and second respondents and Dr Grounds) attend the substantive judicial review hearing for cross-examination upon their witness statements. That application was, of course, made and determined before the Human Rights Act 1998 came into force on 2 October 2000. Now before us is the appellant's interlocutory appeal against Jowitt J's order refusing cross-examination of the doctors, permission to appeal having been granted by Schiemann LJ on 2 October 2000. Although as a result of these proceedings the second respondent has long since withdrawn his authorisation for this treatment, the first respondent has made it clear that he intends to seek a further such SOAD certificate unless precluded from doing so by the outcome of this challenge. Clearly, therefore, the appeal is not academic. Rather, as will become clear, it raises a number of important questions as to the compulsory treatment of detained patients and the correct approach to be taken by the court when challenges arise in this field.
8. The facts of the present case are before us in the greatest profusion. Each of the three doctors (all well-qualified consultant psychiatrists) has prepared several statements and reports and the court's papers include reference to many other views about this appellant expressed down the years. Recognising, however, that it is not on any view this court's task to resolve the factual issues arising, the following brief summary of the disagreements between the doctors is, I believe, sufficient.

i. The nature of the appellant's mental disorder

The appellant is presently classified as suffering from psychopathic disorder, namely a personality disorder resulting in abnormally aggressive conduct, and that, indeed, has been the view of most of the psychiatrists who have assessed him over the years. It is Dr Horne's view, however, that the appellant's pronounced paranoid beliefs and attitudes – his conviction that all the doctors and staff at Broadmoor are involved in a conspiracy to keep him there - are due not only to his personality disorder but also to an underlying psychotic mental illness. In either event Dr Horne believes that the treatment is appropriate for the appellant's paranoia.

Dr Hettiaratchy shares this view:

"Whether such paranoid ideation was associated with his primary diagnosis of personality disorder or was symptomatic of mental illness unconnected with that diagnosis, it was reasonable in my view to attempt to relieve the patient of this symptom, and would be in the patient's best interest to do so."

Given that the appellant exhibits paranoid ideation about medical and nursing staff, he regards it as "within the bounds of acceptable medical practice to treat him with anti-psychotic medication."

Dr Grounds takes a different view. He does not regard the appellant as suffering from a psychotic mental illness and has concluded that the prospects of anti-psychotic medication improving the appellant's personality characteristics are "low".

ii. The appellant's capacity to decide whether to accept this medication

Dr Horne is "entirely satisfied" that the appellant does not have capacity with regard to this decision: "it is clear that he is not able to believe treatment information which I give him because he is very suspicious of my motives and he sees me as part of a corrupt system … ". Dr Hettiaratchy too believes that "the patient is unable to recognise that he was experiencing paranoid ideation and based his refusal of treatment on this lack of insight." Again Dr Grounds takes a contrary view:

"The lack of insight and suspiciousness were not so prominent as to render [the appellant] incapable. For the most part his decision to refuse treatment was based on sound cognitive abilities and appraisal."

iii. The benefits of the proposed treatment

It was and remains Dr Horne's view that this treatment, undertaken initially on a trial basis, holds a real prospect of benefiting the appellant, notably by combating his paranoia (which Dr Horne believes to be due to a mental illness) as well as what Dr Horne describes as "the disabling anxiety which he experiences at the prospect of moving from one place to another and causes him to sabotage his own progress". As long ago as 10 December 1999 Dr Horne suggested that "this is a very sad case but perhaps the saddest thing of all is that [the appellant] has been allowed to stay in hospital for so long without being given the medication that he needs". Dr Hettiaratchy too advocated "anti-psychotic medication on a trial basis to see if [the appellant's] paranoid ideas about staff would change and to facilitate his move to a place of lesser security"; he "felt that the treatment plan proposed by the RMO was both reasonable and addressed an issue that was preventing the further rehabilitation of the patient". Dr Grounds, as stated, disputes the diagnosis of mental illness and regards the likelihood of benefit from anti-psychotic medication as "low".

iv. Treatment under Restraint

Dr Grounds is particularly opposed to this medication being administered under restraint. He notes that the appellant suffered a mild heart attack in April 1998 when awaiting surgery for an enlarged prostate and that thereafter he was found to be suffering some minor coronary disease. After the first enforced treatment on 17 February the appellant suffered an attack of angina. Against this background Dr Grounds observes that "it is known that sudden cardiac death can occasionally result when patients are given medication under restraint" and concludes that there were "significant medical risks associated with forcible medication under restraint in this case." Dr Horne responds that the risk of sudden death was considered very carefully in this case and that the whole process was very carefully planned including on each occasion of forcible treatment having the emergency equipment immediately outside the door of the appellant's room. Nevertheless, as Dr Grounds observes:

"In any decision about a course of medical treatment the likely benefits and risks need to be weighed up. If, as in [the appellant's] case, there were risks associated with giving anti-psychotic medication, the level of confidence about this diagnosis becomes important. If the degree of certainty that he has a psychotic illness is low, there is a less sound basis for believing that he will benefit and there should be particular caution about embarking on this treatment."

9. The scheme for compulsory treatment under the 1983 Act seems to me plain. Detention under the Act does not of itself authorise treatment without consent. It is not sufficient merely that the patient was admitted (and indeed remains detained) because his condition was regarded as treatable. Compulsory treatment must be authorised if at all under part IV of the Act. As s.63 makes plain, it is a pre-requisite of such treatment that it shall be given "for the mental disorder from which [the patient] is suffering". Without that it will be unlawful in any event. Ss.57 and 58 then provide a range of safeguards graded to reflect the severity of the various treatments which may be contemplated. S.57 (not here directly in point) is concerned with surgery for destroying brain tissue or other forms of severe and perhaps irreversible treatment prescribed by the Secretary of State and it precludes any such treatment being given compulsorily. Rather it requires both the patient's capacitated consent, which must be certified to be valid by a panel of three persons including a SOAD, and also the SOAD's certified approval for such treatment having regard to the likelihood of it assisting the patient's condition. S.58 applies to two defined forms of treatment for mental disorder: ECT and long-term medication. These are forbidden save - and thereby, taken in conjunction with s.63, permitted only - upon the stipulated conditions. These are that the patient has either (a) given a capacitated consent, so certified by the RMO or a SOAD, or (b) not given such a consent (or, indeed, indicated a capacitated refusal) but the SOAD, having consulted with two others as required, has nevertheless certified that the treatment should be given.
10. In R v Bournewood Mental Health Trust ex parte L [1999] AC458 – where the House of Lords by a majority decided a very different point to that now rising, namely that compliant but incapacitated patients admitted informally to hospital for treatment are not detained to the extent of being forcibly imprisoned – Lord Steyn expressed regret that in the result such patients are left without the "extensive scheme of statutory safeguards" provided by part IV of the 1983 Act. Lord Steyn recognised "that health care professionals will almost always act in the best interests of patients", but observed that "Parliament devised the protective scheme of the Act of 1983 as being necessary in order to guard amongst other things against misjudgment and lapses by the professionals involved in health care." He noted that "the clinical question may arise whether the patient is in truth incapacitated", and quoted from a published guide as to the importance of this assessment:

"Competence is a pivotal concept in decision-making about medical treatment. Competent patients' decisions about accepting or rejecting proposed treatment are respected. Incompetent patients' choices on the other hand, are put to one side, and alternative mechanisms for deciding about their care are sought. Thus, enjoyment of one of the most fundamental rights of a free society – the right to determine what should be done to one's body – turns on the possession of those characteristics that we view as constituting decision-making competent."

11. Lord Steyn then remarked "how complex such an issue of competence may be", and yet that upon it "depends a patient's right of autonomy". He continued:

"Moreover, the broad question of what is in an incompetent patient's best interests may involve a weighing of conflicting medical and social considerations. And, in regard to treatment, the moral right of the patient to be treated with dignity may pose acute problems. These are no doubt some of the reasons why Parliament thought it necessary to create a system of safeguards for those admitted under the Act of 1983. Parliament was not content in this complex and sensitive area to proceed on the paternalistic basis that the doctor is always right."

12. Both the appellant and respondents on this appeal seek to derive support from Lord Steyn's speech: the appellant because of the emphasis it lays on the patient's fundamental rights of self determination and bodily inviolability; the respondents because of its apparent endorsement of the protective scheme provided by the 1983 Act.
13. Before seeking to summarise the rival cases now before the court, I should, I think, note the somewhat unfortunate course which this appeal hearing has taken. We heard two days of argument in March 2001 at the end of the Hilary Term but, alas, were unable to complete counsels' submissions in that time. Regrettably some 3½ months then passed before it proved possible to reconstitute the court. Meanwhile the law had moved on in a number of respects – important cases like R (Alconbury) v Secretary of State for Environment [2001] 2 All ER 929 and R v Home Secretary ex parte Daly [2001] 2 WLR 1622 being decided in the interim by the House of Lords – so that many of the arguments advanced at the resumed hearing assumed a very different shape. I shall refer only to the arguments as I understood them in their final form.
14. Mr Bowen's central arguments on behalf of the appellant can, I hope, fairly now be summarised as follows. Compulsory treatment in the circumstances of the present case violates a number of the appellant's fundamental human rights. The ECHR articles here engaged are articles 2, 3, 6, 8 and 14. Article 2 is invoked because of the risk identified by Dr Grounds of the appellant suffering a fatal heart attack if treatment is imposed without his consent. Article 3 is perhaps more obviously in play because the forcible injection of an unwilling patient must constitute at the very least degrading treatment and, if the appellant is properly to be regarded as capacitated, it clearly violates his fundamental rights to autonomy and bodily inviolability. Even if article 3 is not breached, runs the argument, article 8 is, there being no sufficient justification under article 8.2 for so fundamental an invasion of the appellant's autonomy and inviolability, basic ingredients of his right to privacy. Article 6 is invoked on the footing that the treatment decisions here in question profoundly affect the appellant's civil rights and accordingly entitle him to a "determination" by an independent and impartial tribunal of the lawfulness of the interference with those rights, particularly those of autonomy and inviolability. Article 14, submits Mr Bowen, is also breached here because no sufficient reason exists for distinguishing between those capacitated patients who are detained and those who are not. Non-detained capacitated patients cannot, of course, be treated against their will. Even a detained prisoner, providing always he is of sound mind, can be allowed to starve himself to death – see Home Secretary v Robb [1995] Fam.127.
15. Absent the Human Rights Act, Mr Bowen now concedes, a detained patient's rights are modified by the existence of powers of compulsory treatment without consent under part IV of the 1983 Act. Now that the Human Rights Act is in force, however, these powers must, he argues, be read down or exercised in a manner consistent with the patient's Convention rights. A capacitated patient's refusal of consent, he submits, may be overridden only in the most tightly circumscribed circumstances. These would include the protection of others from serious harm and, perhaps, the safety of the patient himself. But, he submits, the test is substantially more stringent than the "best interests" approach ordinarily applicable to incapacitated patients. And, of course, the appellant's root submission is that it would certainly not permit the manifestly inessential treatment to which Dr Horne is intent upon subjecting him in the present case.
16. As to why it is now essential for the proper determination of the appellant's judicial review challenge that the three doctors be cross-examined, Mr Bowen submits that article 6 requires the court to reach its own conclusions on the disputed issues of fact. This, he submits, is particularly so with regard to whether or not the appellant is himself truly competent to decide whether or not to undergo the treatment in questionorne is intent upon submittingHHorne. But it would also be necessary for the court to resolve the other medical disagreements in order to reach a proper judgment on issues such as whether this treatment is necessary and proportionate having regard to its profoundly invasive effect upon the appellant's right to respect for his private life and dignity.
17. On what basis, then, do the respondents seeks to resist this appeal? Essentially, as I understand it, on the same basis as prevailed before Jowitt J, namely that this is a judicial review challenge in which, as ever, the critical question is whether those whose decisions are impugned have acted fairly, reasonably and lawfully, and where no issue of precedent fact arises for the court's determination. True, the respondents acknowledge, fundamental human rights are involved in this case, but that is not to say that the court must therefore adopt a primary fact finding role. Rather a super-Wednesbury approach is appropriate whereby the court will engage in a particularly intensive review but not substitute itself for the statutory decision-maker.
18. In support of their argument the respondents strongly rely upon R v Collins and Ashworth Hospital Authority ex parte Brady [2000] LLRM 355 in which Maurice Kay J adopted precisely that approach to a mental patient's challenge to being force-fed. That case concerned only s.63, not s.58, because, as I understand it, it did not involve the administration of medicine. The essential issue arising there was whether the force feeding (established by the Court of Appeal in the earlier case of B v Croydon Health Authority [1995] 1 AllER 683 to be capable of constituting "medical treatment") was "for the mental disorder from which [the applicant] is suffering". His case was rather that his intention to starve himself to death was unrelated to his mental disorder and was the rational decision of a competent person. He further submitted that the court was required to answer that central issue for itself as one of precedent fact. The submission was rejected:

"S.63 is about the clinical judgment of the RMO in relation to patients who, by definition, are being detained for medical treatment for their mental disorders. When a RMO is challenged by way of judicial review in respect of treatment given by him or under his direction which he seeks to justify by reference to s.63, the test to be applied by this court is the appropriate Wednesbury one. That means, in the context of this and similar cases, what counsel referred to as the 'super-Wednesbury test' appropriate to human rights cases as set out in R v Ministry of Defence ex parte Smith by Sir Thomas Bingham MR [1996] QB 517, 554."

19. This analysis, the respondents submit, is unaffected by the Human Rights Act 1998. In so submitting they rely in part upon the judgment of the European Court of Human Rights in Herczegfalvy v Austria (1992) 15 EHRR 437 and in part upon the decision of the House of Lords in Alconbury. Herczegfalvy concerned an alleged violation of article 3 through the forcible intramuscular injection of sedatives and the associated use of handcuffs and a security bed. The Court said this:

"82. The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of article 3, the requirements of which permit of no derogation.

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

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

20. They accordingly found no violation of article 3. As to an alleged violation of article 8, the court in paragraph 86 referred back to paragraph 83 and added:

"86. … the Court attaches decisive weight here to the lack of specific information capable of disproving the Government's opinion that the hospital authorities were entitled to regard the applicant's psychiatric illness as rendering him entirely incapable of taking decisions for himself."

They accordingly found no violation of article 8 either.

21. The effect upon the present case of the House of Lords decision in Alconbury was debated before us at considerable length. To my mind, however, the statutory regime applying in the various planning contexts under consideration there is so wholly dissimilar from the situation arising in the instant case that no useful guidance can be drawn from it. The respondents seek to suggest an analogy between the specialised area of planning policy with which that case was concerned (which the House of Lords concluded did not call for a complete merits re-hearing on a statutory challenge) and the disagreements arising between the doctors in the present case. In this regard, the respondents draw attention to a passage in Sedley LJ's judgment in the recent unreported case of R v Camden and Islington Health Authority ex parte K [2001] 3 WLR 553, para.55:

"As it seems to me, the level of available redress, by judicial review rather than by appeal, is an appropriate one. No judge can realistically sit as a court of appeal from a psychiatrist on a question of professional judgment. What a judge must be able to do is to ensure that such judgment, to the extent that it exercises a public law function, is made honestly, rationally and with due regard only to what is relevant. Within this boundary more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5(4), at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist."

22. The suggested analogy, however, is to my mind false. It is surely one thing to say, as was decided by K, that the court could not compel a psychiatrist, against his clinical judgment, to undertake the patient's treatment in the community (as the MHRT's conditions of discharge there required); quite another to conclude that the courts can never decide disputed questions of professional opinion. Often, indeed, the court is required to do exactly that – classically when assessing damages in personal injury cases, but also when deciding medical negligence actions, albeit in that context adopting the approach formulated initially in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and approved by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC.232. Perhaps more relevantly still, the court (generally the Family Division) has no alternative but to reach its own factual conclusions when determining best interest applications and in such cases it may well have to decide between conflicting medical opinions. It is, I may note in the present context, common ground between the parties that the test posed by s.58(3)(b) for the SOAD's certification – whether the treatment should be given having regard to the likelihood of its alleviating or preventing a deterioration of the patient's condition – essentially mirrors the best interest test.
23. Although the arguments before us on this appeal ranged far and wide and many issues and sub-issues were explored, I remind myself that at the end of the day we are faced with a single issue on an interlocutory appeal: whether or not cross-examination should be ordered with regard to the statements of evidence submitted by the three medical specialists. It would, it seems to me, be quite inappropriate on such an appeal for this court to attempt to resolve at this stage all the many questions which, depending upon the detailed factual conclusions arrived at by the judge on the substantive hearing, may then arise for decision under the Convention. As Lord Steyn observed at the conclusion of his speech in Daly: "In law context is everything". One has only to read some of the many ECHR judgments before us to recognise the extent to which they depend upon the detailed facts of the individual cases. Herczegfalvy appears to me just such a case – see particularly the last sentence of paragraph 82 and paragraphs 83 and 86 of the court's judgment there (cited above). Accordingly this appeal is no occasion to attempt broad and sweeping statements of principle across the entire field of 1983 Act detentions.
24. For my part I would allow this appeal and confine myself to the following brief statement of reasons why. Understandable though it is that the case has been brought before the court by way of a judicial review challenge issued in the Administrative Court - that conventionally being the route by which the exercise of statutory power is impugned – it is nevertheless plain that the self-same issues could have been raised in quite different forms of proceeding. Perhaps most obviously the appellant could have brought an action in tort for assault against the Special Health Authority which administers Broadmoor. Although s.139(1) of the Act would protect the individual doctors from being joined personally in such proceedings (there being no allegations here of bad faith or negligence), it is established law that by virtue of s.139(4) the hospital authority itself would be vicariously liable for any assault by way of unlawful treatment. The relief available in such proceedings would obviously include both an interlocutory injunction (as here) to prohibit further treatment pending the resolution of the action and, were the action to succeed at trial, a permanent injunction or declaration to equivalent effect. In such proceedings it would seem to me quite impossible to contend that the medical witnesses should not be called to give evidence or should be excused from attendance if the other party wished to cross-examine them. It may also be that even before the Human Rights Act came into force the appellant could have issued proceedings, most likely in the Family Division, for declaratory relief as to the lawfulness or otherwise of the proposed treatment plan. Certainly, however, after 2 October 2000, the appellant could have brought (and if necessary could still bring) proceedings under s.7 of the 1998 Act claiming that the hospital trust proposes to act in a way incompatible with his Convention rights, namely by resuming the treatment complained of. That action too would obviously proceed by way of oral evidence rather than be determined solely on the witnesses' statements.
25. Now that the Human Rights Act is in force, the focus of this challenge ought to my mind properly to shift from consideration of the lawfulness of the two treatments administered in early 2000 (before the 1998 Act was in force) to the second respondent's entitlement to certify(were he still so minded), and the first respondent's entitlement to resume, such treatments in the future. Recognising that, and given that the prospective Convention breaches alleged are either fundamental (those now asserted under articles 2 and 3) or such as obviously raise questions of necessity and proportionality (those asserted under articles 8 and 14), the court's need so far as possible to investigate and resolve the medical issues becomes even plainer. I refer again to the paragraphs already cited from Herczegfalvy and in this context would refer also to the following passage from Lord Steyn's speech in Daly:

"… the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various Convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex parte Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights."

26. It seems to me that the court must inevitably now reach its own view both as to whether this appellant is indeed incapable of consenting (or refusing consent) to the treatment programme planned for him by the first respondent as his RMO and, depending upon the court's conclusion on that issue, as to whether the proposed forcible administration of such treatment (a) would threaten the appellant's life and so be impermissible under article 2, (b) would be degrading and so impermissible under article 3, and (c) would not be justifiable as both necessary and proportionate under article 8.2 given the extent to which it would invade the appellant's right to privacy. (I cannot see that article 14 adds anything to the debate).
27. I would accordingly regard the Brady approach as no longer appropriate in the case of the forcible treatment of detained patients, at any rate those who contend they are competent. Brady, I repeat, was decided before the Human Rights Act took effect. The super-Wednesbury tested adopted from Smith (itself an article 8 case) was, as is well known, subsequently held to be inadequate by the ECtHR in Smith and Grady v United Kingdom (1999) 29 EHRR 493. I can see no basis on which an approach disapproved in the context of homosexuality in the armed forces could be supported in the present context of forcibly treating mental patients. Quite the contrary, given that this case raises also a real question under article 3.
28. One document usefully brought to our attention on the adjourned hearing of the appeal was a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in August 2000, paragraph 41 of which reads:

"Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances."

29. That gives some indication of modern thinking on this sensitive subject. The precise equivalence under s.58(3)(b) between incompetent patients and competent but non-consenting patients seems to me increasingly difficult to justify.
30. If in truth this appellant 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 appears to regard it as his only hope of eventual return to the community. That said, however, its impact on the appellant's rights above all to autonomy and bodily inviolability is immense and its prospective benefits (not least given his extreme opposition) appear decidedly speculative. Even, moreover, if the appellant is incompetent, the court will need to be satisfied (in the language of the ECHR in Herczegfalvy) "that the medical necessity has been convincingly shown to exist … according to the psychiatric principles generally accepted at the time."
31. Accordingly, were there to be a fresh decision to subject this appellant to forcible treatment, which is then challenged, I would order the attendance of all three specialists for cross-examination at the review hearing. I recognise, of course, that this would substantially complicate and lengthen the course of proceedings. I recognise too the great inconvenience it would occasion the respondents and the potentially inhibiting effect it could have in future on the choice of treatment for uncooperative mental patients. I would, however, express the confident hope that challenges of this nature, so far from becoming commonplace, will be rare indeed and will arise only in the most exceptional circumstances. Dr Grounds and others like him will surely hesitate long before being prepared to join issue both with those who have the express statutory responsibility for treating the patient (RMOs) and also, in s.58 cases like the present, those specifically appointed to safeguard the patient's interests (SOADs). SOADs, I should note, are experienced and entirely independent specialists drawn from a panel appointed by the Mental Health Act Commission (MHAC) which was directed by the Secretary of State to discharge on his behalf that function under Part IV of the Act. Courts, after all, are likely to pay very particular regard to the views held by those specifically charged with the patient's care and well-being. I do not go so far as to say that a Bolam-Bolitho approach will be taken to their evidence – i.e. that the treatment which they propose will be sanctioned by the court provided only that a respected body of medical opinion would approve it. Certainly, however, courts will not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following consultation with two other persons.
32. There is, however, this qualification to be made with regard to the SOAD's certificate. Pursuant to s.58(3)(b) the SOAD should only certify if he decides that "having regard to the likelihood of its alleviating or preventing a deterioration of [the patient's] condition, the treatment should be given". That seems to me to require that he reach his own independent view of the desirability and propriety of the treatment. The evidence before us, however, suggests that his approach to the RMO's proposal is perhaps more akin to that of a review than to forming his own primary judgment on the question. Indeed, in the advice issued by the MHAC to SOADs in April 1999 it is stated:

"The treatment authorised … may not be in accord with the SOAD's personal practice but should be reasonable in the opinion of the SOAD i.e. the SOAD is not offering an 'academic' second opinion or imposing a treatment plan on the RMO."

33. Whilst, of course, it is proper for the SOAD to pay regard to the views of the RMO who has, after all, the most intimate knowledge of the patient's case, that does not relieve him of the responsibility of forming his own independent judgment as to whether or not "the treatment should be given". And certainly, if the SOAD's certificate and evidence is to carry any real weight in cases where, as here, the treatment plan is challenged, it will be necessary to demonstrate a less deferential approach than appears to be the norm.
34. I come finally to the contended-for violation of article 6 which can now be dealt with very briefly. As stated, it is the appellant's case in this regard that a number of his civil rights are affected by the respondent's decisions to subject him to forcible treatment and that he is accordingly entitled to a determination by an independent and impartial tribunal of the lawfulness of the interference with those rights. If I am correct in having concluded that the appellant on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts, then plainly the requirements of article 6 are satisfied: the Administrative Court will conduct a merits review on the evidence. The article 6 challenge seems to me similarly unsustainable in respect of past treatment: as already noted, it was always open to the appellant to bring a tortious claim for assault in respect of these. Article 6 does not in my judgment entitle a mental patient in every case to challenge a treatment plan before being subjected to it any more than it entitles a criminal suspect to pre-empt arrest by challenging in advance the constable's right to arrest him. Where, therefore, as here, given that forcible treatment was to be administered it was clearly necessary to administer it without increasing the risks by forewarning the appellant of the plan, I for my part would not regard that decision as involving any violation of article 6.
35. I should perhaps add this. Were I to have concluded that the Administrative Court's role on this challenge was as narrowly confined as contended for by the respondents (and by the intervening Secretary of State), the article 6 challenge would I think have proved irresistible. The respondents' contention that article 6 is simply not engaged here because "when the sentencing court ordered the appellant's detention it authorised his treatment in accordance with the 1983 Act" appears to me an impossible one: treatment still needs to comply with Part IV of the Act and any decision to treat the patient forcibly will inevitably determine his civil rights. Nor do I find convincing the respondents' fall back argument that the requirements of article 6 (assuming it to be engaged) are met here either by the SOAD's independent review and certification process or, at the very least, by a combination of that and the exercise of the court's review jurisdiction. The difficulties of this argument are surely plain. The SOAD's certification process, even it were not unduly deferential to the RMO's decision, could hardly be said to involve "a fair and public hearing". Take the facts of this very case: no doubt for very good reason the SOAD's participation was rushed through. It was hardly consistent, however, with any sort of adjudicative process. As for the court's review jurisdiction (assuming it was to be exercised narrowly in accordance with Brady as the respondents contend it should be), I cannot think that this either would meet the requirements of article 6. If, as the ECtHR held in Smith and Grady, judicial review applying the super-Wednesbury test did not in that case constitute "an effective remedy before a national authority" for article 13 purposes, it is difficult to see how it could meet the requirements of article 6 in the present case.
36. That, however, is essentially by the way. For the reasons earlier given I have concluded that what would be required on a substantive challenge here would be a full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists. I would allow this appeal.

LORD JUSTICE BROOKE:

37. Because our judgments on this appeal may be studied by those who do not have the specialist interest in mental health law possessed by the parties before us, I am adding a judgment of my own to put this decision into its historical context.
38. The rights of detained patients – or, indeed, of any patients (see the preponderance of overseas authority cited to the House of Lords in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871, 872-3) – did not attract much attention among judges and practitioners in this country until about 20 years ago. So far as the former were concerned, the statutory scheme contained in Part VI of the Mental Health (Amendment) Act 1982 ("the 1982 Act"), which was repealed and re-enacted as Part IV of the Mental Health Act 1983 ("the 1983 Act"), marked a sea-change in Parliament's approach to the protection of patients liable to be detained under those Acts. In place of the woolly paternalism that characterised the law in this area before this new scheme came into force (see Lord Edmund-Davies in Pountney v Griffiths [1976] AC 314, 335-6 for the broad brush approach then in vogue and Richard Jones, Mental Health Act Manual (6th Edition) (1999) p 240 for the lingering doubts about the legality of treating detained patients without their consent), Parliament was now making it crystal clear that such patients could not be treated for their mental disorder without their consent unless the requirements of sections 57-63 of the 1983 Act were satisfied in one way or another.
39. In most cases the requisite authority was given to the registered medical practitioner in charge of the treatment in question, who is described as "the responsible medical officer" ("RMO"): see sections 63 and 64(1). For patients who are admitted compulsorily for treatment pursuant to section 3(1) of the Act, it should be noted that one of the requisite criteria for admission is that "it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section" (section 3(2)(c)). (Emphasis added).
40. In 1982 Parliament clearly considered that an appropriate balance would be struck between these societal interests (and/or the interests of the patient's own mental health) on the one hand and the patient's right to personal autonomy on the other if it not only required more than one expert medical opinion to be given before a patient could be admitted for treatment under section 3 (see section 3(3)) and granted the patient a right of access to a Mental Health Review Tribunal in order to challenge the continuation of his/her detention, but if it also prescribed that authority to direct treatment for the patient's mental disorder without his/her consent should in cases that did not fall within sections 57 and 58 be vested, and vested only, in the patient's RMO.
41. Before I move to sections 57 and 58 of the 1983 Act, there is one further feature of this new statutory scheme I must mention, although it was not very deeply canvassed in argument. Section 139 of the Act continues in force the statutory protection from suit which formerly appeared in section 141 of the Mental Health Act 1959 ("the 1959 Act"). In Pountney v Griffiths [1976] AC 314 the House of Lords held that the ambit of the predecessor section was not limited to the protection of those who signed certificates, made orders for detention and disposed of the property of patients. It also covered acts done by the staff of special hospitals in performing their day-to-day duties in the control, or purported control, of their patients. Among the amendments to the 1959 Act which preceded the coming into force of the 1983 Act, a new provision was added (see the 1982 Act, s 60(4)), to the effect that this statutory protection from suit did not apply to proceedings against the Secretary of State or against a health authority within the meaning of the National Health Service Act 1977 (see now the 1983 Act, s 139(4)).
42. Whatever may now be the position in relation to hospital staff, I am not at present persuaded that a health authority is vicariously liable for any shortcomings by a RMO in the performance of duties vested in him personally by statute, any more than it might be vicariously liable for any shortcomings by either of the two registered medical practitioners when they make recommendations in the prescribed form pursuant to section 3(3) of the 1983 Act. It certainly never seems to have occurred to any of those, judges and counsel alike, who were concerned in the case of ex p Waldron [1986] 1 QB 824, that an action against the health authority which engaged the services of the section 3(3) doctors might have provided a convenient solution to the procedural dilemma that fell to be resolved in that case. In his judgment Ackner LJ at pp 841-3 gave a description of the 95 year history of the predecessor sections of section 139 of the 1983 Act and the mischief at which they were aimed. He concluded (at p 846G) that section 139 was not apt to impede an application under RSC Order 53 for an order quashing a compulsory admission to hospital made as a result of a "reasonable misconstruction of a public official's powers".
43. I am conscious that in expressing these provisional views I am differing from the views expressed by Hale LJ in paragraph 58 of her judgment. We did not hear argument on the point, which must therefore be left in this unresolved state until some later occasion, if any, in which it may fall directly for decision. For my part, I consider that the position of doctors in whom alone particular statutory powers are vested is far removed from the situation in Roe v Ministry of Health [1954] 2 QB 66 in which a hospital authority was held to be vicariously liable for the acts or omissions of the professional staff at its hospital who had the care of one of its patients at the material time. It is not the hospital, through the agency of one of its medical staff, in whom is vested the power to direct treatment without consent: it is the RMO him/herself.
44. I do not consider that Winch v Jones [1996] 1 QB 296 throws any light on the matter one way or another, in the absence of greater knowledge of the pleadings in that case. The report of the Court of Appeal hearing does not reveal the breadth of the allegations made against the second defendant health authority which employed the RMO who was said to have been negligent in failing to give adequate consideration to discharging the plaintiff before her 12-month order under the Mental Health Act 1959 came to an end. It was conceded that leave was not required to pursue the proceedings against the health authority, and unless the matters for which it was being blamed went wider than the alleged negligence of the RMO, it is difficult to understand why he need have been sued as well, if Hale LJ's view of the law is correct. At that time the incidence of liability as between NHS doctors and the hospitals which employed them was covered comprehensively by Health Circular HC (54) 32 (1954) (see Powers and Harris, Clinical Negligence (Third Edition (2000) para 6.62), so that it was then customary to sue the doctor (for medical negligence) or the health authority (for negligence by other hospital staff) but not both, except in those cases where both doctors and other hospital staff were said to have been at fault.
45. There is of course a class of case in which a patient claims that a doctor exercised his/her statutory powers under the 1983 Act in bad faith or without reasonable care and committed some actionable wrong. In such a case the patient will be granted permission by the High Court to proceed in a private law action against the doctor pursuant to section 139(2) of the Act if his/her claim is considered fit for fuller investigation and therefore prima facie fit to be tried (see Winch v Jones at pp 305C-D and 305H-306A). Apart from that category of case a patient's complaint that he/she ought not to have been treated without consent was only susceptible of challenge in judicial review proceedings prior to the enactment of the Human Rights Act 1998 ("the 1998 Act"). The mere fact that a patient was complaining that a RMO was acting unlawfully in initiating treatment for his/her mental disorder without obtaining consent did not entitle him/her to bring a private law action against the health authority (which was not in this context vicariously responsible for the RMO). Nor did it entitle him/her to sue the RMO without obtaining leave pursuant to section 139(2).
46. So far I have been concerned only with the very simple provisions of section 63 of the 1983 Act. Parliament prescribed that in those cases it did not matter whether the patient had capacity to consent or not: the RMO's powers were the same in either case.
47. Because no issue arises in the present case in relation to the special forms of treatment for mental disorder mentioned in section 57(1)(a) or in regulations made under section 57(1)(b) of the 1983 Act, it is not necessary to dwell for very long on the provisions of section 57. It is noteworthy, however, that Parliament introduced the language of necessity into section 62(1) of the Act when it defined the occasions when a patient could be given section 57 treatment without his/her consent (see s 57(2)). I mention this because until the device of an agency of necessity was given a new lease of life in a doctor-patient context by Lord Goff in his speech in Re F (mental patient: sterilisation) [1990] 2 AC 1, 73H-75C, necessity (which "trumps" rights) was not a concept to which there was much recourse in this country in this branch of the law before the amendments to the mental health legislation 20 years ago with which the present appeal is concerned. The language of section 62(1) was in this context altogether new.
48. I turn finally to treatment requiring consent or a second opinion (the expression used in the marginal note to section 58 of the 1983 Act). Such treatment cannot be given to a patient liable to be detained under the Act unless one of the conditions set out in section 58(3)(a) and (b) of the Act is satisfied. These sub-sections, together with section 58(4), are set out in full in paragraph 3 of the judgment of Simon Brown LJ, and I need not repeat them here. The fulfilment of these conditions for treatment meant either

(i)(a) that the patient had consented to the relevant treatment for his/her mental disorder and

(b) that the RMO or a SOAD (see paragraph 4 of the judgment of Simon Brown LJ for this expression) had issued a certificate to the effect that the patient had the requisite capacity and had consented to the treatment;

or

(ii) that a SOAD had issued a certificate to the effect that the patient did not have the requisite capacity, but that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, the treatment should be given.

An additional safeguard for the incapacitated patient was provided by the consultation requirement contained in section 58(4).

49. I have no doubt that on the proper interpretation of section 58(4) the SOAD must form his/her own independent opinion as to whether the treatment should be given. In this respect I have nothing to add to the opinion expressed by Simon Brown LJ in paragraphs 32 and 33 of his judgment, with which I agree.
50. It follows that unless a patient could present an arguable case that a doctor exercising statutory powers had acted in bad faith or without reasonable care (so as to pave the way for private law proceedings pursuant to the leave of the High Court under section 139(2) of the 1983 Act) a challenge to section 58 treatment could only be mounted on traditional judicial review lines (with a super-Wednesbury supplement in recent years, for which see paragraph 17 of Simon Brown LJ's judgment). If treatment was purportedly given pursuant to section 58(3)(a) there was unlikely to be any dispute about the precedent fact as to whether the patient had in fact given consent (since the consent would almost invariably be in writing). The relevant ground of challenge would therefore be to the lawfulness of the RMO's or SOAD's certificate. Under section 58(3)(b), on the other hand, only the lawfulness of the certificate would be in question.
51. It was obvious to practitioners in this field as soon as the 1983 Act came into force that although it provided a very welcome codified scheme (demonstrating an appropriate respect for patients' rights) for those cases in which treatment for mental disorder was proposed for a patient who was liable to be detained under the Act, it did not address at all the difficult questions that might arise when treatment was given to patients, or proposed for patients, which did not fall within the new statutory scheme. For instance, the scheme did not cater for patients in psychiatric hospitals who were not liable to be detained within the meaning of the Act; it did not permit proxy decision-making for adults (as opposed to children) who lacked capacity to consent; and if the proposed treatment could not be properly categorised as treatment for the patient's mental disorder it did not fall within the embrace of the scheme at all.
52. The courts (and most notably the House of Lords in Re F [1990] 2 AC 1 and R v Bournewood Community Mental Health NHS Trust ex p L [1999] 1 AC 458) have been concerned to invent procedures and to revive principles of the common law (such as the agency of necessity) in an attempt to plug these gaps until such time as Parliament enacts a new, more widely embracing, statutory rights-based scheme. I mention these matters only to make it clear that these non-scheme cases give rise to procedures (such as an application for declaratory relief in the High Court) or concern themselves with issues (such as a capacitated patient's power to decline treatment which is not for his/her mental disorder) which do not arise in the context of the present appeal, concerned as it is only with the lawfulness of treatment pursuant to section 58 of the 1983 Act.
53. In order to decide this appeal, I do not find it necessary to express any views on the procedure which would have been appropriate when applying a super-Wednesbury approach to the issues at the heart of this appeal prior to the coming into force of the 1998 Act and the decision of the House of Lords in R v Home Secretary ex p Daly [2001] UKHL 26, [2001] 2 WLR 1622. Now that these developments in the law have taken place, I am completely satisfied that it is appropriate for us to reverse the decision of Jowitt J, made before the 1998 Act came into force. In this respect I have nothing to add to the reasons given by Simon Brown LJ and Hale LJ, with which I agree. I also agree with the approach suggested by Lord Justice Simon Brown in paragraph 31 of his judgment.
54. I would add one rider. In R (P and Q) v Secretary of State for the Home Department [2001] EWCA 1151 at [120] this court suggested that a challenge of the kind made in that case (which was concerned with the ECHR Article 8 rights of children in prison mother and baby units) could in future be brought in a private law action in the Family Division as a claim made pursuant to section 7 of the 1998 Act. Although this alternative procedure was also discussed in argument on the present appeal, in my judgment a section 7 claim would also be caught by the language of section 139(1) of the 1983 Act and would require the leave of the High Court pursuant to section 139(2). Although the matter was not argued, I do not see why section 139 protection should fall foul of ECHR Article 6(1) so long as a full merits review is available in judicial review proceedings. The policy considerations which Ackner LJ identified in ex p Waldron seem to be just as potent to-day as they were before the 1998 Act came into force.

LADY JUSTICE HALE:

55. I gratefully adopt the elegant and economical account of the factual issues in this case given by Simon Brown LJ. Like him, I have no difficulty in agreeing that this appeal must be allowed and cross-examination of the psychiatrists permitted, should the question arise again. The question which has caused me far more difficulty is to identify the precise issues towards which that cross-examination should be directed. On both points it may be helpful to consider the law both before and after implementation of the Human Rights Act 1998.
56. These proceedings happen to have been brought by way of judicial review. But, as Simon Brown LJ has already pointed out, what was done to the patient, and what it may well be proposed to do again, is an assault unless done with his consent or other lawful justification. The people who carry out such assaults, and in particular the responsible medical officer (RMO) who requires it to be done, may be sued in the ordinary way for the tort of battery. The fact that those responsible are exercising statutory powers makes no difference. The analogy with the police and the prison service in the exercise of their powers of arrest and detention is a very helpful one. The fact that they are performing statutory functions which may sometimes be susceptible to judicial review does not relieve them of responsibility in tort for wrongful acts. It is worth remembering that patients may also be detained under the Mental Health Act in private hospitals.
57. However, individuals are not liable 'in respect of any act purporting to be done in pursuance of' the Mental Health Act 1983 'unless the act was done in bad faith or without reasonable care': see 1983 Act, section 139(1). The leave of the High Court is required to bring civil proceedings in any court against any person in respect of any such act: see section 139(2). The treatment of detained patients in hospital falls within these provisions: see Pountney v Griffiths [1976] AC 314. This is by no means a complete immunity: it does not relieve against negligence in the performance of those functions, and it may well be that this includes a negligent mistake of law as to the extent of the legal authority conferred by the Act: see Richardson v London County Council [1957] 1 WLR 751.
58. Section 139(4) provides that neither the substantive defence in section 139(1) nor the procedural bar in section 139(2) applies to proceedings against the Secretary of State (for Health) or against a health authority or National Health Service trust. In my view this covers any vicarious liability which these authorities may have for the acts of their employees even though the employees may be protected by section 139(1) and (2). Winch v Jones [1986] QB 296 provides an illustration. The patient wished to sue her RMO, Dr Jones, and his employing health authority; she also wished to sue the two different doctors who had recommended her admission to hospital and the Home Office which employed one of them. The case is reported on the test to be applied when granting leave under section 139(2): this is simply that it appears that the case requires to be fully investigated. The health authority were not party to the leave proceedings because it was common ground that no leave was needed to sue them. There is no suggestion in the report, or in argument, that the health authority could not be vicariously responsible for the acts of the RMO. However, it seems to me that they may only be held vicariously liable for those actions for which the doctors or other members of staff would themselves be liable, so that if the substantive defence in section 139(1) protects the doctors it will also indirectly protect their employers.
59. The point for present purposes however is a simple one. Whether or not leave is required, and the test is certainly no more difficult to fulfil than the test of leave for judicial review, these proceedings might have been brought by way of an action in tort against the RMO or Broadmoor authorities. There would then have been a proper investigation of the facts, including such cross examination of witnesses as was required to determine those disputed issues of fact which required to be determined.
60. The position of the Mental Health Act Commission's SOAD is rather different from that of the RMO. He does not carry out the treatment or order others to carry it out. Is he to be regarded like any other doctor called to give a second opinion in a difficult case? Such a doctor would clearly owe a duty of care towards the patient and, to the extent that he was jointly responsible for the fact that the treatment was given, he might be liable if that duty was broken. But that could raise some difficult causation issues. The SOAD is also performing a statutory watchdog function on behalf of the public, to protect detained patients who are in an especially vulnerable position. This is a function which must be subject to judicial review: see R v Mental Health Act Commission, ex parte X (1988) 9 BMLR 77, where the panel appointed to approve treatment under section 57(2) (which applies to specified controversial treatments to which the patient has consented) declined to authorise treatment which the court eventually held (after hearing evidence) was not covered by the section in any event. In the follow-up case of X v A, B and C and the Mental Health Act Commission (1991) 9 BMLR 91, Morland J held that the panel members and the Commission were under no tortious liability for having mistaken the extent of their powers, although the medical member of the panel might have been in breach of his duty of care in private law. The Commission was not vicariously liable because the relationship was one of appointer and appointee, not employer and employee. These issues have not been fully canvassed in argument before us, and it is not necessary to express a view upon them in order to resolve the issues in this case.
61. There may also be a remedy against either of them under the Human Rights Act 1998. Section 6(1) of the 1998 Act provides that 'It is unlawful for a public authority to act in a way which is incompatible with a Convention right.' Under section 7(1), 'A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, . . .' Health authorities and NHS trusts and their staff are clearly public authorities. Further, by section 6(3), a public authority includes 'a person certain of whose functions are functions of a public nature': this is apt to cover the actions of private doctors and others carrying out statutory functions under the Mental Health Act. By CPR 7.11, the 'appropriate court or tribunal' means, other than where a judicial act is concerned, 'any court'. The usual time limit is one year unless there is a stricter time limit for the procedure in question: see section 7(5). There is no requirement for leave or other special protection given to the public authority concerned. It follows that proceedings under section 7(1) are not confined to judicial review, and indeed it would be most surprising if they were. I am inclined to agree with Brooke LJ that the procedural protection given to individuals in section 139(2) of the 1983 Act is capable of applying to actions under section 7(1) of the 1998 Act just as it applies to ordinary actions in tort. However the point has not been argued before us and there may be a case for drawing a distinction between the two. Section 8(1) provides that 'In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.' In some cases, for example where delegated legislation or the policy of a public authority is in question, then the appropriate remedies will only be available in judicial review. But in others, where specific invasions of individuals' rights are in question, an ordinary action would be more appropriate. Where there are disputed questions of fact in such cases, then cross-examination may well be necessary.
62. In my view, therefore, it cannot and should not matter whether proceedings in respect of forcible treatment of detained patients are brought by way of an ordinary action in tort, an action under section 7(1) of the 1998 Act, or judicial review. If there are relevant disputed issues of fact these will have to be determined, by cross examination if necessary.
63. What then are the relevant issues of fact, first under ordinary mental health law and then under the Human Rights Act? Under the ordinary law, the legal justification for treatment without consent differs according to whether or not the patient has the capacity to make the decision for himself.
64. Under the ordinary common law principle of necessity, a person who lacks the capacity to decide the matter for himself may be given such medical treatment or care as is in his best interests: see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1; also R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] AC 458. No prior authority is required as a matter of law. However, in controversial or disputed cases the authorities may seek reassurance that their conduct will not be unlawful. The inherent jurisdiction of the High Court to grant declaratory relief may be invoked for this purpose: see Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1. The court has power to make an independent determination of what is in the patient's best interests in the broadest sense, not limiting itself to applying the Bolam/Bolitho test of medical negligence: see Re S (Sterilisation: Patient's Best Interests) [2000] 2 FLR 389. This jurisdiction has now developed beyond the simple declaration of what will or will not be lawful into something akin to the wardship jurisdiction relating to children: see Re F (Adult: Court's Jurisdiction) [2000] 2 FLR 512. The wishes and feelings of the incapacitated person will be an important element in determining what is, or is not, in his best interests. Where he is actively opposed to a course of action, the benefits which it holds for him will have to be carefully weighed against the disadvantages of going against his wishes, especially if force is required to do this.
65. The declaratory jurisdiction is also available to determine whether or not a person lacks the capacity to decide for himself: see eg Re C (Refusal of Medical Treatment) [1994] 1 FLR 31, which concerned the proposed treatment of a Broadmoor patient for physical rather than mental disorder. The test of capacity applied for this purpose was laid down by the Court of Appeal in Re MB (Medical Treatment) [1997] 2 FLR 426, at 437:

'A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. The inability to make a decision will occur when:

(a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;

(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision . . .'

66. That test is closely modelled on the test proposed by the Law Commission in their Report on Mental Incapacity, 1995, Law Com No 231, paras 3.2 to 3.19, and accepted by the Government in their White Paper, Making Decisions, 1999, Cm 4465, at para 1.6. It would be equally suitable for assessing capacity for the purpose of section 58(3)(b) of the Mental Health Act 1983.
67. Detention under the Mental Health Act 1983 does not automatically confer authority to impose treatment upon the patient. Before that Act there was some doubt, as the Mental Health Act 1959 made provision for compulsory admission to hospital 'for treatment' but said nothing at all about what might be done to the patient while he was in hospital. Specific provision is now made in Part IV of the Act: this gives a permission to treat in section 63 and safeguards for specified treatments in sections 57 and 58. A detained patient who has the capacity to make the decision for himself can only be treated with his consent or under the provisions of Part IV. A detained patient who lacks capacity to make the decision for himself can also be treated under the principle of necessity, but subject to the safeguards for specific treatments in sections 57 and 58.
68. Section 63 of the 1983 Act provides 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. '

It is thus a prerequisite of this provision that the treatment proposed is 'treatment for the mental disorder from which he is suffering.' That is a substantial issue in this case. Furthermore, the section does not absolve the doctor of his ordinary duties of care towards his patient, judged on the usual Bolam/Bolitho principles.

69. However, section 63 does not apply in this case, because the proposed treatment is covered by section 58. Section 58 applies (at present) to two forms of 'medical treatment for mental disorder'; relevant here is the administration of medicine 'if three months have elapsed since the first occasion in [the period during which he is liable to be detained] when medicine was administered to him for his mental disorder' (emphasis supplied). This must import a requirement that the treatment covered by section 58, like the treatment covered by section 63, must be 'for his mental disorder'.
70. Curiously, however, section 58 is not phrased in terms of a permission to treat. On the contrary, it is phrased in terms of a prohibition: ' . . . a patient shall not be given any form of treatment to which this section applies unless . . .' one of two circumstances apply. The first is that he has given his consent to the treatment and either his RMO or a SOAD has certified that he 'is capable of understanding its nature, purpose and likely effect'. The second is that he has not given his consent, or a SOAD has certified that he is not capable, but in either event a SOAD has certified that 'having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.'
71. Although section 58 is not phrased in terms of a permission to treat, the only sensible construction is that it does confer permission to treat in those two circumstances. Otherwise these treatments could never be given to capable patients who refused to consent. The more difficult question is whether it is enough that the relevant pieces of paper are signed. In my view that cannot possibly be enough. I agree with both Simon Brown and Brooke LJJ that the SOAD has to form his own independent opinion upon the existence of the statutory criteria. At the very least, he must act in good faith and with reasonable care in forming his judgment. The RMO whose eventual decision it will be whether or not to implement the treatment plan is not absolved of his own duties to the patient by the possession of the second opinion. At the very least he too must act in good faith and with reasonable care in forming his judgment. Is this enough, even if in fact they are both wrong?
72. It would be tempting indeed to regard these issues in the same light as those decided by the Family Division of the High Court in the exercise of its declaratory jurisdiction in relation to people who lack the capacity to decide for themselves. What logic or justice is there in subjecting disputed questions relating to incapacitated people to full scrutiny and decision by the court while denying it to detained patients? Is not the existence of the statutory grounds for the imposition of these treatments a question of fact upon which the existence of the statutory authority to treat depends?
73. One alternative view is that the treatment must in fact be treatment for the mental disorder from which the patient is suffering, but once that is established it is enough that the RMO and the SOAD have reached their conclusions in good faith and with reasonable care, that is, in accordance with the usual Bolam/Bolitho criteria for medical decision making. That would have the attraction of consistency with the provisions of section 139(1). Why should doctors treating these often very difficult patients be in a worse position than doctors treating capable patients who have given their consent?
74. A further alternative view is that the decisions of the doctors that the statutory conditions apply is subject only to the usual principles of public law, albeit on the 'super-Wednesbury' principles set out in R v Ministry of Defence, ex parte Smith [1996] QB 517. That was the view taken by Maurice Kay J in R v Collins and Ashworth Hospital, ex parte Brady [2000] Lloyd's Law Rep Med 355. Ian Brady sought a judicial review of the decision of the Ashworth authorities to force feed him, contending that he was capable of making the decision for himself, and that force feeding was not covered by section 63 of the 1983 Act as it was not medical treatment for the mental disorder from which he was suffering. Despite the view that he had taken of the law, which did not require him to decide the facts, Maurice Kay J went on to consider the facts and decided them against Brady on both of these points.
75. I cannot agree with that view of the law. Had Brady sued in tort, the court would have heard the evidence as to whether there was lawful justification for the forcible feeding. If such lawful justification existed, the decision to impose it would also have been subject to challenge on Wednesbury grounds. Once again an analogy can be drawn with the exercise of the police power of arrest. In Holgate-Mohammed v Duke [1984] AC 437, there existed lawful grounds for arresting the claimant without warrant: but it was alleged that the constable had acted wrongfully in exercising that power rather than simply interviewing the claimant under caution. Once lawful grounds had been established, the exercise of the constable's discretion in making use of those powers was subject to ordinary Wednesbury principles. In that case, there was no irrationality or abuse of power.
76. This approach, however, still begs the question of what constitutes lawful authority to treat under Part IV of the 1983 Act. The choice, it seems to me, must be between the actual existence of the criteria in section 58(3) or the view reached in good faith and with reasonable care by RMO and SOAD that such criteria exist. In many cases, there will be no difference: they will be right. But in a very few cases, of which this is one, there may be a difference of psychiatric opinion in which everyone cannot be right.
77. What help, if any, does the Human Rights Act give in resolving this question? Under Article 3 of the Convention, 'No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.' This is an absolute right which permits of no qualification or excuse. The European Court of Human Rights has given us some guidance in Herczegfalvy v Austria (1992) 15 EHRR 437, at para 82:

'The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit of no derogation.

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

78. In para 86, the Court applied the same test of medical necessity to the allegation that the applicant's treatment constituted a violation of his right to respect for his private life under Article 8: it referred back to para 83, 'according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue' and then emphasised in para 86,

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

79. One can at least conclude from this that forcible measures inflicted upon an incapacitated patient which are not a medical necessity may indeed be inhuman or degrading. The same must apply to forcible measures inflicted upon a capacitated patient. I would hesitate to say which was worse: the degradation of an incapacitated person shames us all even if that person is unable to appreciate it, but in fact most people are able to appreciate that they are being forced to do something against their will even if they are not able to make the decision that it should or should not be done. The Court understood how vulnerable such patients can be and how much in need of the protection of the world outside the closed world of the psychiatric institution however well meaning. The Court was properly respectful of 'therapeutic necessity' and 'the psychiatric principles generally accepted at the time'. But it was not confronted with what we have here: a dispute about whether or not the patient lacks the capacity to decide these matters for himself and a dispute about whether in any event the imposition of this particular treatment against his will is a therapeutic necessity.
80. I do not take the view that detained patients who have the capacity to decide for themselves can never be treated against their will. Our threshold of capacity is rightly a low one. It is better to keep it that way and allow some non- consensual treatment of those who have capacity than to set such a high threshold for capacity that many would never qualify. Whether the criteria for non-consensual treatment of the capacitated should be limited to treatment which is for their own safety (as opposed to their health) is a difficult and complex question. Mr Bowen tried to persuade us that there was a developing consensus to that effect. There are indeed indications that the issue of capacity is assuming greater importance in the context of psychiatric treatment. But we have not yet reached the point where it is an accepted norm that detained patients who fulfil the Re MB criteria for capacity can only be treated against their will for the protection of others or for their own safety.
81. This is well illustrated by the Report of the Expert Committee (chaired by Professor Genevra Richardson), Review of the Mental Health Act 1983 (Department of Health, November 1999). This discusses the treatment of the detained patient with capacity in paragraphs 7.19 to 7.24. There was considerable support on consultation both for detention without forced treatment and for detention with enforced treatment. The dilemma could only be resolved by a moral judgment which it was ultimately for politicians to make. But the practical significance of the dilemma should not be overestimated:

'7.24. The patients who pose a sufficient degree of risk, whether to themselves or others, to meet the criteria for compulsion and who retain capacity throughout are likely to be patients with personality disorders, not mental illness alone. Before such patients can be made subject to compulsion there must be an effective health intervention available. In the current state of knowledge most, if not all, such interventions in the case of personality disorder are those which require the co-operation of the patient. It is hard to envisage how they can be both forced on the patient and effective.'

82. This encapsulates the issues in this case. Is the patient suffering from mental illness or psychopathic disorder or both? Is the treatment proposed by Dr Horne treatment for the mental disorder from which he is suffering? Does he have the capacity to give or withhold his consent to it? If not, will it be in his best interests, bearing in mind that whether or not he has capacity he is actively opposed to it, and bearing in mind his physical condition? If he does have capacity, is the treatment so likely to benefit him as to justify its forcible imposition? Given that under the European Convention forcible treatment which is not a 'medical necessity' may well be inhuman and degrading, substantial benefit from it would be required for it to be justified.
83. We do not need to rewrite the Mental Health Act for the purpose of deciding this case. Whatever the position before the Human Rights Act, the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8. Super-Wednesbury is not enough. The appellant is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: ie whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent 'having regard to the likelihood of its alleviating or preventing a deterioration of his condition'. If they are, in other words if Dr Horne rather than Dr Grounds is right, then I would hold that this treatment could be given to him.
84. This is not the same as saying that every patient is entitled to such a hearing in advance. Once again the analogy with arrest holds good. The RMO and SOAD are not determining his civil rights and liabilities. They are merely deciding to impose or authorise treatment in the belief that the statutory grounds for doing so exist. They do not have to go to court for advance authorisation (although as in the incapacity cases there is nothing to stop them doing so if the case is a particularly difficult or controversial one). But once a situation exists in which the treatment can be scrutinised, whether before or after the event, then that scrutiny should take place.
ORDER: Appeal allowed. The order below refusing the cross-examination of the doctors is reversed. Application for anonymity refused. Costs in the appeal against the 1st and 2nd Respondents. Applications for permission to appeal to the House of Lords, if thought appropriate, to be submitted to the House of Lords in writing within seven days to be dealt with on the documents. (Order not part of approved judgment)