COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Jowitt)
London, WC2A 2LL
Monday 22 October 2001
B e f o r e :
LORD JUSTICE BROOKE
LADY JUSTICE HALE
on the application of JOHN WILKINSON
|- and -
|THE RESPONSIBLE MEDICAL OFFICER BROADMOOR HOSPITAL
|THE MENTAL HEALTH ACT COMMISSION SECOND OPINION APPOINTED DOCTOR
|THE SECRETARY OF STATE FOR HEALTH
Mr Edward Fitzgerald QC and Miss Phillippa Kaufmann (instructed by Reid Minty of London W1K 4PS) for the First Respondent
Mr Nigel Pleming QC and Mr Timothy Mould (instructed by The Treasury Solicitor) for the Second Respondent
Miss Jenni Richards (instructed by the Department of Social Security) for The Secretary of State
Crown Copyright ©
LORD JUSTICE SIMON BROWN :
"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."
"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."
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."
"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."
"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."
"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  QB 517, 554."
"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."
"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.
"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."
"… 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  QB 517, 554 is not necessarily appropriate to the protection of human rights."
"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."
"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."
LORD JUSTICE BROOKE:
(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;
(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).
LADY JUSTICE HALE:
'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 . . .'
'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.
'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.'
' . . . 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.'
'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.'