England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
IN CHAMBERS

		Queen Elizabeth II Law Courts Liverpool
		10 March 2000

Mr Justice Maurice Kay:

1. The Applicant is 62 years old. On 6 May 1966 at Chester Assizes he was convicted of three murders and sentenced to three concurrent terms of life imprisonment. His offences, and those of his co-defendant, M.H., are often referred to as "the Moors Murders". The Secretary of State has fixed a full life tariff and the Applicant (unlike M.H.) accepts that he will never be released. For many years he was detained in high security prisons but on 29 November 1985 he was transferred to Park Lane Hospital by a Transfer Direction which referred to his suffering from mental illness within the meaning of the Mental Health Act and stated that the mental disorder was of a nature or degree which made it appropriate for him to be detained in a hospital for medical treatment. Park Lane Hospital, together with the nearby Moss Side Hospital, was later reorganised to form Ashworth Hospital. From his admission in November 1985 until June 1995 he was detained in Newman Ward. On 16 June 1995 he was moved to Jade Ward within the former Moss Side site. The move was carried out with police assistance because it involved movement outside the perimeter wall and along a short stretch of public highway. The move was uneventful. Throughout this period the authorities were mindful of the position of the Applicant and they made arrangements which, in his own interests, limited his freedom within the Hospital. To compensate for or counterbalance this they afforded him additional facilities, in particular a personal computer and special visiting arrangements.
2. For a number of reasons unrelated to the Applicant, Ashworth Hospital attracted public criticism and on 7 February 1997 an Inquiry was set up under the chairmanship of His Honour Peter Fallon QC. The ensuing Report recommended that "Ashworth Hospital should close in its entirety at the earliest opportunity". However, the Secretary of State for Health did not accept this recommendation. Without descending into unnecessary detail, the outcome was a more restrictive regime, the consequences of which included the withdrawal of the Applicant's computer and an increase in the security arrangements for visitors. In addition, the Applicant began to fear a return to the prison system.
3. On 18 June 1999, a Mental Health Review Tribunal considered the Applicant's position as part of a routine review and not at the request of the Applicant. It concluded that:

"the patient remains mentally ill and subject to a psychopathic disorder. His persistent verbal abuse of staff is largely attributable to such conditions. The patient is appropriately hospitalised for his own health and the safety of himself and others."

4. At the same time the Tribunal expressed disappointment about the withdrawal of his computer and added that in its view:

"no step ought to be taken to reduce Mr. B.'s quality of life unless such can be adequately justified in his particular case. The patient's unique position in Ashworth would seemingly justify an individual approach to such matters as access to computers, visits and the like."

5. Until at least early September 1999, the staff in Ashworth were content that the Applicant should remain on Jade Ward although for about a year they had considered alternatives. His Responsible Medical Officer (RMO) had been Dr. Rajan but he was about to retire, whereupon Dr. Collins would take over as RMO. As September wore on, there were newspaper articles referring to the Applicant as being suspected of a plan to escape from Ashworth and to a possible return of the Applicant to the prison system. There is no doubt that the media have taken an intense interest in the Applicant throughout his time in prison and in Ashworth. There is also no doubt that he has a profound fear of a return to prison. By 21 September Dr. Diane James, the Acting Medical Director, who had been expressing concern about Jade Ward and the Applicant's continued presence on it, arranged a meeting for 30 September at which such issues would be reviewed. On 27 September a Patient Care Team Meeting noted "serious concerns" about security on Jade Ward. On 29 September, senior management and security staff discussed the possibility of moving the Applicant. Dr. James caused Dr. Rajan and Dr. Collins to be contacted by telephone and they agreed that he should be moved as soon as possible to a more secure environment where his programme of care could be appropriately managed. Senior management decided to act quickly. The meeting that had been arranged for the next day was called off. No one told the Applicant that he was about to be moved.
6. In the late morning of 30 September the Applicant was writing in his room when a six-strong Control and Restraint team entered in full riot gear. Without offering any explanation they manhandled him, strip searched him and took him under restraint to a waiting van. Half an hour after their arrival in his room, the C and R team delivered the Applicant to Lawrence Ward where he remained under restraint until the team withdrew. The total period of restraint lasted for about fifty minutes. There is substantial consistency between the Applicant's account of these events and the accounts of those who carried out the move. It is common ground that the Applicant offered little, if any, resistance. According to him, he repeatedly complained that his right arm was hurting as a result of the restraint holds. Clearly that arm was injured in the move. A medical report by a consultant orthopaedic surgeon describes changes on x-ray suggestive of an undisplaced crack fracture at the distal end of the radius which would be likely to result in a full and permanent recovery "quite quickly".
7. Upon the Applicant's arrival on Lawrence Ward, there was a formal transfer of RMO responsibilities from Dr. Rajan to Dr. Collins. No one told the Applicant on 30 September why he had been transferred from Jade to Lawrence. In the course of the move he feared that he was being transferred to prison. At no time during his fifteen years in Ashworth (or the previous twenty years in prison) had the Applicant ever assaulted or offered physical resistance to staff.
8. The response of the Applicant to these events was an immediate refusal to take food or nutritionally sweetened drinks. From that day to this he has been on hunger strike. During October his health was monitored on a daily basis. It is clear from the medical records and not disputed by the Applicant that, in the early stages, his motive was to protest rather than to starve himself to death. He had deployed hunger strikes as a tactic in disputes with the prison authorities many years before. On this occasion, his repeatedly stated grievance related to "the move". He was very soon in contact with his solicitor who, on 25 October, wrote to the Mental Health Act Commission seeking an investigation and adding:

"Our client is still not eating. When the writer saw him on 14 October.....there was a distinct possibility that he would resume eating if an effective investigation was promptly commenced by the......Commission"

9. By the end of October the clinicians were faced with changing circumstances. On 19 October Dr. Collins had prepared a "draft of an argument that Mr. B. might warrant feeding against his will". Contact was made with Professor Krasner, a consultant general physician at a nearby hospital, for advice about the physical implications. On 21 October the Ashworth staff commenced daily blood pressure, pulse, temperature and respiration rates. The next day, Dr. Rix, a consultant forensic psychiatrist based in Yorkshire, attended at Ashworth in order to provide Dr. Collins with a second opinion but the Applicant refused to see him. On and after 25 October the Applicant refused blood tests and medication. Dr. Collins devised a Short Term Plan on 27 October. He noted several forms of deterioration and added:

"It is my view that the care team should intervene, actively if necessary, to prevent this deterioration in Mr. B.'s condition and prevent further worsening......it seems to me that the immediate risks of not acting in the current circumstances outweigh the possible risks of acting."

10. On 28 October Dr. Collins gave the Applicant a number of documents, namely one about the dangers of not eating, one about the dangers of force feeding (or "refeeding"), a copy of an internal review about the move (which included an expression of regret about the failure to inform the Applicant but not about anything else) and a copy of the Short Term Care plan. Dr. Collins referred to the main points in each document but the Applicant stated that these matters were of little interest to him. The Applicant tried to hand back the first two documents but then retained them and told Dr. Collin's four hours later that he had read them and sent copies to his solicitor. On 29 October his temperature had dropped to the lowest it had been and a decision was taken to start force feeding. It is continuing to date. It is done by way of a naso-gastric tube. The Applicant does not consent to it but neither does he offer any resistance.
11. The Applicant has been seen on a number of occasions by Professor Maden, a consultant forensic psychiatrist based in London, who has seen him intermittently over a number of years at the request of his solicitors. More recently, he has seen the Applicant on 19 October and 3 December 1999 and 17 February 2000. Of his interviews on 3 December, Professor Maden reported:

"He had thoughts of suicide, which he based on rational argument. It was notable that his thoughts in this respect differed little from the position he had stated repeatedly during previous interviews. He was able to describe his involvement in previous hunger strikes, within prison, and their outcome. He was able to explain that his present refusal of food was because of his anger about the assault upon him, and about the regime to which he was subjected. He believed it made his life intolerable. It was not possible to obtain from him any sense of circumstances under which he would be prepared to end his protest. He was very critical of the hospital and its staff....He did not say that there were no circumstances under which he would end his protest, but he appeared pessimistic about the prospect of any solution being found."

12. The senior management at Ashworth had appointed Professor Sines, a professor of community health nursing, to carry out an independent investigation into the Applicant's complaints about the move to Lawrence Ward and the force feeding. His Report, dated 30 November 1999, was trenchantly critical of the move and concluded that:

"flaws in the organisation and management of the move resulted in its implementation falling short of the standard the hospital should set itself."

13. On the other hand, he considered that the commencement of force feeding had been correct and that the procedure in relation to it had been professionally administered in accordance with prescribed practice standards. On 13 December a copy of this Report was sent to the Applicant's solicitor, together with a letter of apology from Mr. Clarke, the acting chief executive, regarding the organisation and management of the move. It maintained that the move was justified and confined the apology to matters of a logistical nature and the absence of information. That accords with the views of Professor Sines and, indeed, of Dr. Collins, Dr. Rix and Professor Maden.
14. The present application bears the date 6 January 2000 but as the grounds accompanying it refer to dates up to and including 13 January 2000 I infer that it was lodged on or about that date. By it the Applicant seeks to challenge "the continuing decision....to force feed the Applicant, .......apparently made pursuant to section 63 of the Mental Health Act 1983". On 2 February 2000 Forbes J granted permission to apply for judicial review. He also directed that at the substantive hearing the relevant psychiatrists attend for cross-examination as they have done. I should add that, contrary to some press reports, the Applicant has not given oral evidence, nor did anyone apply for permission to cross-examine him. The hearing before me took place in Liverpool in private, pursuant to the order of Forbes J, who acceded to an application for privacy made on behalf of the Applicant and supported by the Respondents. The rationale for the private hearing was that it was necessary to protect the interests of a patient, as provided for in Part 39.2 (3)(d) of the Civil Procedure Rules. I indicated at the commencement of the hearing that I intended to give judgment in open court and no one sought to persuade me to the contrary. There is intense and legitimate public interest in the case and, whereas it was appropriate for that to be overridden in the interests of the Applicant patient during the hearing which he attended, different considerations prevail in relation to the giving of the judgment when his presence is not essential.

The statutory framework

15. The subject-matter of the Mental Health Act 1983 is "the reception, care and treatment of mentally disordered patients...." (section 1(1)). "Mental disorder" means:

"mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind" (section 1 (2)).

"Psychopathic disorder" means:

"a persistent disorder or disability of mind....which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned" (ibid).

16. Part III of the Act relates to patients concerned in criminal proceedings or under sentence. Where a person is convicted the court may make a hospital order under section 37 provided certain conditions are satisfied, the first of which is that the court is satisfied that the offender is suffering from mental illness, psychopathic disorder or mental impairment and that the mental disorder from which he is suffering:

"is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition." (section 37(2)(a)).

17. In the present case, the original sentences of life imprisonment were mandatory. By section 47 the Secretary of State may remove to hospital a serving prisoner subject to conditions which reflect those in section 37(2). That is what happened here. In 1985 the Applicant was accordingly moved to Ashworth to be detained there "for medical treatment". But for that, as a prisoner with a whole life tariff he would have spent the rest of his life in prison.
18. Part IV is headed "Consent to Treatment". In due course I shall refer to sections 57, 58 and 62. However, the provision of central importance in the present case is section 63 which is in the following terms:

"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 under section 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer."

19. The RMO is the registered medical practitioner in charge of the treatment of the patient. (Section 64(1)).
20. Section 145 defines medical treatment as including:

"nursing, and also includes care, habilitation and rehabilitation under medical supervision."

21. In the context of patients suffering from psychopathic disorder or personality disorder (the preferred terminology of clinicians), the courts have given a broad meaning to "medical treatment": Reid v. Secretary of State for Scotland [1999] 2 WLR 28, 44 (Lord Hope of Craighead). It is common ground that in the present case the force feeding is medical treatment within the meaning of the Act. The issue is whether section 63 applies to the circumstances surrounding its commencement and continuation.

The central issue

22. The lawfulness of force feeding under section 63 depends upon whether it is medical treatment given to the Applicant "for the mental disorder from which he is suffering". Because of the broad wording of section 145, a range of acts ancillary to the core treatment which the patient is receiving will fall within "medical treatment". In B v. Croydon Health Authority [1995] 1 All ER, 683, 687, Hoffmann LJ said:

"Nursing and care concurrent with the core treatment or as a necessary prerequisite to such treatment or to prevent the patient from causing harm to himself or to alleviate the consequences of the disorder are, in my view, all capable of being ancillary to a treatment calculated to alleviate or prevent a deterioration of the psychopathic disorder. It would seem to me strange if a hospital could, without the patient's consent, give him treatment directed to alleviating a psychopathic disorder showing itself in suicidal tendencies, but not without such consent be able to treat the consequences of a suicide attempt."

23. B was itself a case concerning force feeding by a naso-gastric tube and is at the heart of the concession on behalf of the Applicant in the present case that the force feeding is, or at least is potentially, "medical treatment". The issue is whether it is "for the mental disorder from which he is suffering". The case for the Applicant is that his refusal of food in circumstances wherein he intends to starve himself to death is unrelated to his mental disorder and is a rational decision by a competent person. The case for the Respondents is that, whatever may be the intention of the Applicant, his refusal of food is a symptom, manifestation or consequence of his mental disorder. The first question of law to which this central issue gives rise is as to the correct approach of the court in resolving it.

Precedent fact or "Super-Wednesbury"

24. On behalf of the Applicant, Mr. Hytner QC submitted that the central issue is one which the court is required to answer for itself as one of precedent fact. He relied on K. v. Secretary of State for the Home Department [1984] 1 AC 74. The issue there was whether Mr. K. was an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971. In the earlier case of Zamir [1980] AC 930 the House of Lords had held that the task of the court was limited to an inquiry as to whether there was evidence on which the immigration officer was entitled to conclude that an applicant for judicial review was an illegal entrant. However, in K., the House re-considered Zamir and decided not to follow it. Lord Fraser of Tullybelton said (at p.97):

"I agree with.....Lord Bridge and Lord Scarman than an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a 'precedent fact' which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief."

25. Lord Scarman said (at p. 114) that the facts relied on as justification "must be proved to the satisfaction of the court. A preponderance of probability suffices; but the degree of probability must be such that the court is satisfied". Lord Bridge of Harwich expressly agreed with Lord Scarman, adding that "the court should not be satisfied with anything less than probability of a high degree" (p. 124). Lord Templeman's speech was in similar terms (p.128). Lord Wilberforce, on the other hand, while agreeing that Zamir (in which he had given the leading speech) required "some correction", added (at p.105):

"The court's investigation of the facts is of a supervisory character and not by way of appeal....It should appraise the quality of the evidence and decide whether that justifies the conclusion reached - e.g. whether it justifies a conclusion that the applicant obtained permission to enter by fraud or deceit. An allegation that he has done so being of a serious character and involving issues of personal liberty, requires a corresponding degree of satisfaction as to the evidence. If the court is not satisfied with any part of the evidence it may remit the matter for re-consideration or itself receive further evidence. It should quash the detention order where the evidence was not such as the authorities should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity."

26. I do not understand Lord Wilberforce's speech to be inconsistent with the others. He, too, was speaking of "justification" or "satisfaction" on the evidence and he was contemplating that the court might receive further evidence, as has happened in the present case. His distinction between supervisory and appellate jurisdiction was undoubtedly apt because, in all such cases, the jurisdiction sought to be invoked is by way of judicial review.
27. Mr. Hytner's submission in the present case was that the role of the court is to satisfy itself that force feeding was and is being applied to the Applicant "for the mental disorder from which he is suffering" and not just that Dr. Collins and his colleagues had reasonable grounds for considering it to be such. He contended that the plain meaning of section 63 is that the factual precedent to the power to treat a patient without his consent is that the treatment is for the mental disorder for which he is being detained. He referred to other provisions in the 1983 Act which are based upon express deference to the opinions of doctors and are therefore judicially reviewable only on Wednesbury grounds, for example sections 2-4 which relate to admission and sections 57 and 58 to which I shall refer in more detail later. He argued that there is therefore significance in the omission from section 63 of wording such as "in the opinion of" the RMO and that the Respondents are in error when, in effect, they seek to write such a provision into the section. Moreover it must be remembered that section 63 is a derogation from fundamental human rights of bodily integrity and self-determination and, as such, it ought to be strictly construed in favour of the Applicant: see Lord Hoffmann in Regina v. Secretary of State for the Home Department, ex parte Simms and O'Brien [1999] 3 WLR 328, 341: "fundamental rights cannot be overridden by general or ambiguous words"; Laws J in Regina v. Lord Chancellor, ex parte Witham [1998 QB 575, 581; and K. itself, especially Lord Scarman at pp 108-109.
28. On behalf of the Respondent, Mr. Pleming QC submitted that section 63 has to be viewed in the context of Part IV of the Act as a whole. Part IV comprises sections 56 to 64 and is headed "Consent to treatment". An overview of the Part, it was submitted, shows that it is a complete code on the subject of consent in relation to a range of treatments, with the requirement for consent varying in accordance with the treatment concerned. Section 57, which is headed "Treatment requiring consent and a second opinion" is concerned with surgery for destroying brain tissue and other forms of treatment specified by the Secretary of State. It requires the maximum protection for the patient, hence the requirement of consent on the part of the patient and certification by a second registered medical practitioner following consultation with nursing and non-medical , non nursing staff. Section 58, which is headed "Treatment requiring consent or a second opinion", relates to the administration of medicine and other forms of treatment specified by the Secretary of State. It is less stringent than section 57 because it provides for the alternatives of consent or a second opinion. Sections 59, 60 and 61 are ancillary to sections 57 and 58. Section 62, headed "Urgent treatment", disapplies sections 57 and 58 where the treatment is "immediately necessary" for various emergency reasons and is itself subject to conditions. Section 63 then deals, submitted Mr. Pleming, with all forms of treatment for the mental disorder from which the patient is suffering, other than the forms and situations provided for in sections 57, 58 and 62 and, because it involves only those matters not considered to necessitate the additional protections required by sections 57 and 58, the patient is protected by the simpler and lesser requirement that the treatment must be given by or under the direction of the RMO. In such circumstances, no question of precedent fact arises, the role of the court being limited to the supervision of the RMO on Wednesbury principles.
29. Mr. Pleming further submitted that the word "is" in section 63 must be construed in the same way as the same word in section 62 when, for example, it disapplies sections 57 and 58 in respect of treatment which "is immediately necessary to save the patient's life". It would be invidious if the court were to approach section 62 on a precedent fact basis. In the words of Mr. Pleming's Skeleton Argument:

"this would serve to undermine the ability of healthcare professionals concerned to take immediate, emergency steps to save life. Such action falls within a sphere in which the court will be slow to interfere; the supervisory jurisdiction of the courts on an application for judicial review reflects that proper caution"

30. In further support of the Respondent's case in this issue, Mr. Pleming relied on Regina v. Mental Health Act Commission, ex parte X (1988) 9 BMLR 77 because he submitted, it illustrates both the circumstances in which the court assumes the responsibility of fact-finding and where it does not. One of the forms of treatment prescribed by the Secretary of State under section 57 is "the surgical implantation of hormones for the purpose of reducing male sexual drive". There was a dispute as to whether Goserelin is a synthetic equivalent of a naturally occurring substance or a synthetic analogue. On this highly technical issue, the Divisional Court (per Stuart-Smith LJ) engaged in a detailed analysis of whether or not, as a matter of fact and law, Goserelin came within the provision before concluding (at p.83):

"I prefer the opinions of Professor London, Professor Bessler and Professor Bluglass that the term 'hormone' should not be extended to include hormone analogues, to that of Professor Shaw and Dr. A, who seek to give it a wide definition, depending upon the ultimate effect."

31. On this analysis, section 57 did not apply. However, the Court went on to consider the case on the alternative basis that it did apply, concluding (at p.88):

".....the decision to refuse a certificate under section 57(2) would have to be quashed on the grounds that the commissioners took into account matters which they should not have taken into account, applied the wrong test and reached a decision that was unreasonable in the Wednesbury sense."

32. See also p.90. This showed, according to Mr. Pleming, that a decision to certify or not to certify under sections 57(2) can only be challenged on Wednesbury grounds and that the same approach is equally appropriate in the present case in relation to section 63. Provided that Dr. Collins, as RMO, properly understood the meaning of "medical treatment given to him for the mental disorder from which he is suffering", and directed his mind to the relevant considerations when seeking to apply it, the court should not interfere with his judgment unless it was irrational. In an application for judicial review in this jurisdiction it is essential that the court applies the correct test.
33. I have come to the clear conclusion that this is simply not a precedent fact case in the K. sense. In my judgment it would be wholly undesirable if RMOs were challengeable in relation to section 63 on any basis other than the appropriate Wednesbury one and there is nothing in the wording of the section, the context in which it appears or the authorities to which I have been referred which requires me to reach a different conclusion. On the contrary, I am persuaded that Mr. Pleming's submission based on the structure of Part IV of the Act and the relationship between section 63 and sections 57, 58 and 62 are undoubtedly correct. Section 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 section 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 Regina v. Ministry of Defence, ex parte Smith by Sir Thomas Bingham MR [1996] QB 517, 554:

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded the margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

34. I unhesitatingly approach this case on the basis that the context is one of fundamental human rights. In the event, however, the result would be the same whether I applied this super-Wednesbury approach or if I had concluded that this is a precedent fact case in the K. sense. This will become apparent when I turn to the facts of the present case and the evidence of the psychiatrists.

Application to the facts

35. I propose to refer to the facts in as brief a way as is consistent with my duty to explain my decision.

(1) Diagnosis

36. There is no significant difference between Dr. Collins and the other psychiatrists as to diagnosis. When he was transferred to Ashworth in 1985 the Applicant was suffering from mental illness. At the time and subsequently reference was made to schizophrenia and psychosis with hallucinations and delusions. There is no hard evidence that such mental illnesses have been active during the period with which the present case is concerned. There is no doubt, however, that he has a psychopathic or personality disorder. Dr. Collins describes its main features as narcissism; egocentricity; histrionicity; obsessionality; need for control; paranoia; litigiousness; lack of remorse; and lack of empathy. Professor Maden refers to a "severe paranoid personality disorder". There is agreement between Dr. Collins and Professor Maden that his form of personality disorder embraces a disregard for the safety of himself and others, the only difference between them being that Dr. Collins talks of a "reckless" disregard but Professor Maden prefers not to. In his most recent report Professor Maden stated:

"I continue to believe that his decision [to refuse food] should not be seen as a consequence of his mental disorder. I agree that it is difficult to make this sort of distinction. The nature of a personality disorder is that it must colour all a person's actions. However, it must be possible for such a person to take a decision on rational grounds. The personality disorder may colour all decisions, but could not be regarded as the determining factor of all decisions by that individual."

37. In cross examination he referred to this particular decision, i.e. to refuse food, as being "not unduly influenced by his personality disorder" and as being "not solely" - or "partly"- to fulfil a psychological need which derives from the personality disorder. My interpretation of Professor Maden's reports and evidence taken as a whole is that, whereas the pervasive personality disorder cannot be divorced from the decision, on balance the one is not the consequence of the other because this particular decision could have been made on rational grounds by a person who was not so disordered. Nor was it influenced by the mental illness which is presently inactive.
38. Dr. Collins approached the matter in a different way. He said that when he was considering the situation as the Applicant's RMO in October, he studied the recent history. In 1998 he had been asked to carry out a peer review of the Applicant and one of the documents which he read last October was that review. In it he had described the Applicant as having talked at length about his hunger strikes in prison many years before. Notwithstanding the passage of time the Applicant had referred to achieving a "massive psychological boost" from the strikes, which were a "battle of wills" in the course of which he was prepared "to go to extremes". He had also spoken of "his ease at the thought and in the presence of death" giving him "incredible confidence" and about his "power over others".
39. Although in October 1999 Dr. Collins' first thought had been about a possible lack of capacity to consent, when he read his 1998 review a different explanation "leapt out at me". He concluded that the decision to refuse food was indeed caused by the personality disorder. It was a "very, very unusual decision by a very, very unusual person" in circumstances (i.e. the move from Jade to Lawrence) which, while the subject of legitimate grounds of complaint, were "not very, very unusual". In other words it was a wholly disproportionate response and it is "ridiculous not to look to the personality disorder for the explanation". It was suggested by Mr. Hytner that references to hunger strikes which had taken place over twenty years before were insignificant but Dr. Collins disagreed, saying:

"These anecdotes are what he chooses to tell about events that are significant to him.....These are the stories which he elects to tell about himself. He tells them vividly and passionately and they are real to him."

40. In his report prepared for the present proceedings Dr. Collins expressed the view that in the circumstances surrounding the move from Jade to Lawrence the Applicant:

"would feel the need to 'do something' and 'get his own back'. He would also feel the need to re-establish his sense of control and address the wounds to his self-image and his narcissism - What better way to do this than through a hunger strike, which, as his past experience had shown him, allowed him to dictate the agenda for others, so taking control, and give him a "psychological boost"?"

41. It seemed to Dr. Collins and his colleagues that the hunger strike was "a florid example of his psychopathology in action".
42. In his report, Dr. Rix came to a similar conclusion. When pressed by Mr. Hytner for his reasons he spoke of a marked consistency between previous manifestations of the personality disorder and the present circumstances and referred to the Applicant's narcissism and sense of self-importance, his powers of control and his tendency to engage in confrontational situations:

"Like many people with his sort of personality features, he seems to thrive on the actual battles and such is the intensity of his involvement in them that in his efforts to win the battles he does not give proper regard to the risks which he runs."

43. I have no doubt that the opinions expressed by Dr. Collins and Dr. Rix as to the Applicant's personality disorder and the part which it has played and is continuing to play in his hunger strike are correct and that, to the extent that Professor Maden sees it as a matter of minimal or insubstantial significance, his view should not prevail.
44. It follows from all this that whereas, as I have held, the correct approach to section 63 is to subject Dr. Collins' diagnosis to the super-Wednesbury test rather than the precedent fact analysis, I am entirely satisfied that it satisfies both tests. On any view, and to a high degree of probability, section 63 was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.
45. In the course of the evidence and submissions there was some debate about whether the Applicant's mental illness, either by itself or more probably in conjunction with the personality disorder, may have played a part in the decision to refuse food. Whilst there is force in the view of Drs. Collins and Rix to the effect that, although there is no real evidence that it is currently active, it cannot be ruled out, I do not find it necessary to base my judgment upon it.

(2) Motive and intention in relation to the hunger strike

46. The case for the Applicant assumes that at some stage he has decided to starve himself to death. At the conclusion of the evidence, Mr. Hytner conceded that if I were to find that throughout this hunger strike the Applicant has been motivated solely by a desire to protest and not at all by an intention to starve himself to death, then if section 63 applies (as I have held that it does), the Applicant cannot succeed. This is because force feeding would be an unchallengable form of treatment in those circumstances.
47. It is clear that the psychiatrists have had some difficulty in assessing the Applicant's motives and intentions. The commencement of the present hunger strike was clearly precipitated by the events surrounding the move to Lawrence Ward. From what was said by and on behalf of the Applicant at that time I am quite sure that the intention then was not to starve himself to death. It is the evidence of Dr. Collins (and I accept it) that the Applicant has never told him, the RMO, that his intention is to starve himself to death. Dr. Rix views such an intention "with considerable doubt" and finds it "hard to believe". Professor Maden's recent experience of the Applicant is revealing. When he examined him on 3 December 1999, "it was not possible to obtain from him any sense of circumstances under which he would be prepared to end his protest.....He did not say that there were no circumstances in which he would end his protest but he appeared pessimistic about the prospect of any solution being found". By this time the force feeding had been taking place for about six weeks. Whatever the Applicant was saying to Professor Maden (whose account I accept), he had already started to express himself in rather different terms to the BBC to whom he had said in one of his many letters a fortnight earlier:

"I prefer to die healthy rather than not mainly for their vested interests and expediency.....I am not even remotely interested in living another 20 or 30 years mainly to provide employment for an overmanned army of penal bureaucrats and prison warders."

48. This application for judicial review was lodged in January 2000. The Applicant's Statement of Truth dated 13 January 2000 stated:

"If I do not take food or liquid for a week I will die and that is my wish."

49. Professor Maden next saw the Applicant on 17 February. The Professor states:

"He maintained that he wanted people to 'get out of his way' and let him die. He could see no prospect of an improvement in his conditions and hoped that his death would serve the purpose of drawing attention to conditions within the hospital. He would not be around to see it but any effect would be 'my legacy'. He emphasised his concern for other patients, who were suffering just as much, if not more than he did."

50. Dr. Rix is not impressed by this and continues to see the Applicant as being engaged in "a power struggle arising out of a paranoid interpretation of events" and thinks that he is "cleverly playing to the gallery". I infer that he would say the same of the Applicant's latest witness statement dated 22 February which concludes:

"By taking the action I am taking I will secure both objectives (i.e. release from 'intolerable circumstances' and 'to express and protest against the regime in which I am held') and will not die pointlessly."

51. It is not possible for me to arrive at a certain conclusion as to what the Applicant's present intention is. That is one of the consequences of trying to assess the workings of such a disordered personality and mind. Looking at the history of the present hunger strike and what the Applicant has and has not said about it, I can see very little material prior to the commencement of proceedings which would point to a clear, settled or unequivocal intention on the part of the Applicant to starve himself to death. Dr. Collins takes the view that these proceedings are a "staging post" on the road to "renegotiation". In my judgment, this is probably correct and the likelihood (but not the certainty) is that the Applicant is playing the system. This caused me to pose the question to Mr. Hytner in the course of his final submissions: if the psychiatric evidence is inconclusive as to the Applicant's real intention and I cannot be certain as to it, where does that leave us in relation to the concession to which I referred earlier? Mr. Hytner's response was candid and, in my judgment correct: if I conclude that there is at least a reasonable possibility that the present intention of the Applicant is to protest and/or to win a power struggle but not to die, then the concession bites and the Applicant cannot succeed. In the event, I consider the intention to be the former rather than the latter, at the very least as a realistic possibility. If it were not for the request of both parties that I deal with as many of the issues as possible, even if one is conclusive, I could have decided the case on this point alone.

(3) Irrationality

52. Under this heading the assumptions are that (i) section 63 has been triggered in that the refusal to take food is a consequence, symptom or manifestation of the personality disorder; (ii)the test to be applied to the force feeding is the super-Wednesbury test; and (iii) the case for the Applicant is not doomed by the findings which I have made in relation to the actual motivation and intention of the Applicant. Mr. Hytner submitted that, on these assumptions, force feeding fails the super-Wednesbury test, principally because Dr. Collins and his team failed to take into account the Applicant's wish to die and, in taking into account the desirability of preserving human life, failed to take account of the quality of the particular life that was being preserved
53. In my judgment irrationality does not get off the ground in this case. At the time when force feeding began the Applicant had not told Dr. Collins or his colleagues that he intended to starve himself to death. Nor has he done so to this day although he is asserting such an intention in these proceedings and expressed it to Professor Maden a few days before the hearing began. What confronted Dr. Collins at all material times was a disordered patient with uncertain motives. The possibility that, as time went by, the motive had changed from protest to death was to say the least uncertain and had to be viewed in the context of Dr. Collins' own assessment that the hunger strike would probably pass through various "staging posts" and opportunities for renegotiation. I have no doubt that Dr. Collins has at all times considered what should be done in the best interests of the Applicant. The decision to force feed was taken after multi - disciplinary consultation. It had independent and external support from Dr. Rix and Professor Krasner and, in due course, Professor Sines also approved its commencement and continuation.
54. I do not consider that in this case irrationality can be established by reference to the weight which Dr. Collins and his colleagues have accorded to the sanctity and preservation of life. Weight is in the first instance a matter for the decision-maker. Here the patient was physically healthy when he began his hunger strike and force feeding only commenced after four weeks when there was justifiable concern about his physical deterioration. Moreover, it does not behove the Applicant to invoke the quality of his life when he is physically healthy and a significant amount of his so-called "impoverished" life is the result of his extremism in dealing with his circumstances and his uncompromising relationship with the authorities in Ashworth.
55. Finally, it is suggested that the only reasonable approach would be to call at least a temporary halt to the force feeding, particularly in the light of his intention to die as articulated in these proceedings. However, Dr. Collins clearly sees the proceedings themselves as being of potential significance when he refers to them as a "staging post" and a possible catalyst, in due course, for renegotiation and Dr. Rix considers that "calling the Applicant's bluff" at this time would be unwise. In my judgment, both Dr. Collins and Dr. Rix are expressing reasonable views in these respects.
56. I am entirely satisfied that the most anxious scrutiny of the decisions to commence and continue force feeding fails to disclose any element of irrationality. On the information available to Dr. Collins and his colleagues, everything which ought to have been taken into account has been properly considered and nothing irrelevant has been taken into account. Nor does the weight accorded to any of the factors found a case of irrationality.

Incapacity

57. I now turn to a different topic which, as a result of what I have decided so far, does not strictly require adjudication. However, I shall accede to both parties' request that I should nevertheless deal with it. Whilst the primary case for the Respondents was that force feeding was justified under section 63 and that an absence of consent was therefore irrelevant, they also put their case on the alternative basis that, in any event, the Applicant lacked and lacks the capacity to consent and that, at common law, they must assess his best interests and act upon them. It is common ground that a mentally disordered patient may nevertheless have capacity and that whether in fact he has or has not falls to be decided by reference to the test in Re C [1994] 1 WLR 290 in which Thorpe J stated (at p.295) that for a patient to have capacity he must be able

"(1) to take in and retain treatment information,

(2) to believe it and

(3) to weigh that information, balancing risks and needs."

58. Mr Pleming's submission focused on the third limb of this formulation. It goes without saying that a person who has capacity may not always make a wise or reasonable decision and an unwise or unreasonable decision is not without more indicative of incapacity. What has to be considered is the decision-making process itself. When Dr. Collins began to contemplate the possibility of force feeding his first thought was that there might be incapacity but he switched his concentration to section 63 when he reviewed the Applicant's records. Section 63 is, of course, more attractive to clinicians because, where it is applicable, it forecloses later disputes about capacity. Where there is such a dispute, only the court can resolve it.
59. In his report Dr. Collins dealt with capacity as follows:

".......whilst Mr. B. had the intellectual capacity to appreciate the risks of his food refusal and the possible consequences, his ability to 'weigh the information' was impaired by the emotions and perceptions he had at the time, these being engendered by the move and his reaction to it. These emotions and perceptions were related to his personality disorder and so there would be, in my view, an argument that his capacity in taking the decision was impaired by his mental disorder."

60. In evidence he said:

"His spectacles are blinkered. He does not accept information. He dismisses it. He is not receptive to new information. Much of his analysis of life at Ashworth is distorted. Although he weighs facts, his set of scales are not calibrated properly in a whole range of things, especially related to Ashworth."

61. And Dr. Rix added:

"When it comes to weighing that information, balancing risks and needs, this is where the problem comes. I have referred to distortions in thinking. Dr. Collins has referred to a blinkered approach - he picks out what he wants and discards the rest. But there is also a tendency to throw out the whole; to put a telescope to the blind eye."

62. There are several examples to support these views. In the period leading up to the commencement of force feeding the Applicant was advised that because he was now 62 he would be less able to cope with a hunger strike from a physical point of view than he had been in relation to his hunger strikes in prison when he was much younger but he dismissed the advice or refused to take it on board (Dr. Collins). When Dr. Collins saw him on 28 October and handed him copies of documents about refusing food, force feeding, the internal review of the move to Lawrence Ward and the Short Term Care Plan which included reference to the intention to commence force feeding, the Applicant told Dr. Collins that these matters were of little interest to him and he tried to hand back the documents about food refusal and force feeding. When Dr. Collins returned later that night, the Applicant indicated that he had read the documents but the matters he spoke about were such things as the media and the Prison Officers' Association. When, at a later date, Dr. Collins tried to engage him in conversation about the report of Professor Sines (a copy of which he had), the Applicant said that he had not read it all because it was "a stitch up". When a copy of the Long Term Care Plan was shown to the Applicant, he immediately tore it up without reading it. Whenever Dr. Collins and his colleagues have tried to engage the Applicant in meetings where his position would be discussed, the Applicant has refused to attend.
63. All this has resulted in Dr. Collins concluding that, whereas the Applicant is not totally lacking capacity in respect of all matters, in some areas he is incapacitated. The area of incapacity is that which impinges upon his battle with the Ashworth authorities. Similarly, Dr. Rix does not see a total incapacity but considers that the Applicant's paranoid personality disorder has critically compromised his capacity in relation to decisions touching upon his refusal of food. Professor Maden, on the other hand, while accepting that the Applicant receives information through distorting filters or lenses, does not consider that he lacks capacity. Mr. Hytner submitted that I should prefer that view and pointed out that there are cases of far more disordered minds nevertheless being held to retain capacity, for example, Re C, supra.
64. It is important to be clear as to what the capacity issue relates to in this case. What the Respondents are seeking to do is to justify the commencement and continuation of force feeding. In one sense it sounds somewhat odd to be considering a lack of capacity to consent to a form of treatment which is, by definition, involuntary. However, it has to be viewed in the context of the wide statutory definition of medical treatment for the refusal to accept care in the form of conventional feeding. What Dr. Collins and his colleagues are seeking to deliver by way of treatment is, inter alia, food and the refusal to accept it in its conventional or any other form with consent is a decision which raises the issue of capacity or incapacity. No technical point is taken on behalf of the Applicant in this regard and, quite rightly, submissions on both sides have been confined to whether or not the third limb of the test in Re C is satisfied.
65. In my judgment, the views of Dr. Collins and Dr. Rix are to be preferred to those of Professor Maden on this issue. I am satisfied on a balance of probabilities that the Applicant has been incapacitated in relation to all his decisions about food refusal and force feeding since his attitude hardened when he refused blood tests and medication on 25 October. Since then, notwithstanding the fact that he is a man of well above average intelligence, he has engaged in his battle of wills in such a way that, as a result of his severe personality disorder, he has eschewed the weighing of information and the balancing of the risks and needs to such an extent that, from that time until this, his decisions on food refusal and force feeding have been incapacitated. As a result, the doctors have been legally empowered to supply medical treatment in his best interests. That is a matter of clinical judgment which falls to be assessed by reference to the well-known test in Bolam v. Friern Hospital Management Committee [1957 1 WLR 582 and Mr Hytner rightly concedes that, upon a finding of incapacity, the Bolam test is satisfied in relation to the treatment in this case.

A power or duty to prevent suicide?

66. In the course of submissions, counsel addressed the question of whether in the event of the Respondents failing on both section 63 and incapacity, they might nevertheless still be able to justify force feeding by reference to some other legal principle. In his original Skeleton Argument, Mr. Pleming raised this issue on the basis that it would fall to be considered after judgment in the context of a fresh decision on a new factual scenario. The suggestion was that, if the Respondents had failed to justify by reference to section 63 and incapacity, it would nevertheless be inappropriate to grant in the present application wide declaratory relief which might inhibit a fresh decision to force feed taken by reference to a different principle. In the event, Mr. Hytner conceded at the outset that such declaratory relief would not be appropriate. However, submissions have been made on different legal principles and I have been invited to rule upon them, even in the present situation wherein the Respondents have succeeded on both section 63 and incapacity.
67. Essentially, the submission of Mr. Pleming was that, if the Applicant has capacity and section 63 does not apply, his right of self-determination is not absolute and has to be balanced against public interests such as the preservation of life, the prevention of suicide and the maintenance of the integrity of the medical profession. Moreover, there is a public interest in institutional discipline which would be undermined if detained persons had the right to self harm, or to commit suicide or to protest against their circumstances by the use of hunger strikes and the refusal of medical treatment.
68. There is recent jurisprudence in this area, mostly in relation to prisoners. In Secretary of State for the Home Department v. Robb [1995] 1 All ER 677 Thorpe J considered the position of a prisoner who had been on hunger strike and in respect of whom the Secretary of State was seeking declarations that the prison authorities might lawfully abstain from feeding him. By the time that Thorpe J came to give his judgment, the parties had reached agreement as to the form of declarations but the learned judge was persuaded to deliver a judgment in view of the absence of modern authority as to the duty of the Home Office in relation to a prisoner on hunger strike. One of the principles expounded in the judgment is stated thus (at p. 680):

".....if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes even though they do not consider it to be in the best interest to do so."

69. Thorpe J found authority for that principle in Re T [1992] 4 All ER 649 and Airedale NHS Trust v. Bland [1993] AC 789. The only modern reference to the duty of the Home Office in relation to prisoners was identified in a dictum of Lord Keith of Kinkel in the Airedale case (at p. 859):

".....the principle of the sanctity of life....is not an absolute one....It does not authorise forcible feeding of prisoners on hunger strike."

70. Thorpe J found some of the American authorities to be "relevant and helpful", especially Thor v. Superior Court (1993) 5 Cal. 4th 725, a decision of the Supreme Court of California, which concerned a refusal of food by a quadraplegic prison inmate. The Court held that his right of self-determination prevailed but recognised that it was not an absolute right and that there were four specific state interests which might countervail, viz. preserving life, preventing suicide, maintaining the integrity of the medical profession and the protection of innocent third parties. When considering the application of those state interests in Robb, Thorpe J held that the principle of the sanctity of human life in this jurisdiction "is seen to yield to the principle of self-determination" and that preventing suicide "is of no application in cases such as this where the refusal of nutrition and medical treatment in the exercise of the right of self-determination does not constitute an act of suicide" (p. 682).
71. In the present case, Mr. Hytner submitted that, by reference to that authority, the Respondents could not justify force feeding if the Applicant were to have capacity and section 63 were not to apply. Mr. Pleming's answer to that was, first, that Robb does no more than establish that, on its facts, there was no duty to intervene but does not address the question whether there is a power to do so. If Robb stood alone, that might be a difficult argument to sustain before a court which felt constrained to follow Robb. However, there is a wider context. There is more recent authority which establishes that both police and prison authorities owe a prisoner a common law duty to take care to prevent him from committing suicide or causing himself harm: see, for example, Reeves v. Commissioner of Police [1999] 3 WLR 363. It would be somewhat odd if there is a duty to prevent suicide by an act (for example, the use of a knife left in a cell) but not even a power to intervene to prevent self-destruction by starvation. I can see no moral justification for the law indulging its fascination with the difference between acts and omissions in a context such as this and no logical need for it to do so.
72. It seems to me that if one were dealing with a physically fit man with capacity but who is detained in hospital for medical treatment for mental illness or disorder, there should be circumstances in which state or public interests such as the ones identified in Thor would properly prevail over a self-determined hunger strike so as to enable, even if not to require, intervention.
73. Although I have been content to accede to the request of the parties to decide other issues which do not strictly require adjudication, I have come to the conclusion that it would be unwise for me to make a finding in this issue. It is a complex matter and, because the case was prepared primarily with the preceding issues in mind, I do not consider that there is before me all the evidence with which to make a definitive decision. However, I do go this far. It would be a disappointment to me if I were constrained by authority from finding in favour of the Respondents on this issue. My impression is that I would not be. Moreover, it would seem to me to be a matter for deep regret if the law has developed to a point in this area where the rights of a patient count for everything and other ethical values and institutional integrity count for nothing. It is perhaps unfortunate that I consider that, in the present circumstances, it is preferable that a first instance judge should stop short of deciding the point, but the lack of necessity to do so and the incomplete nature of the evidence on this point persuade me that that is the right course.

Conclusion

74. It follows from what I have said that this application for judicial review fails. I am entirely satisfied that the decision to commence and continue force-feeding was justified by reference to section 63 and that it was and is in all respects lawful, rational and fair. Indeed on the facts as I have found them and on my interpretation of section 63, it is conceded on behalf of the Applicant that that is the case. Even if this case had fallen to be considered outside section 63, the force feeding would still have been lawful by reason of the fact that, in relation to the refusal of food and the force feeding that has followed it, the Applicant has at all material times lacked capacity by reason of his disorder and the steps taken by the doctors have been lawfully taken in what they have lawfully and reasonably perceived to be his best interests.
75. MISS GREY: My Lord, in those circumstances I would ask firstly for an Order formally dismissing the application and I would ask that the Applicant pay the Respondent's costs. He is legally aided so the Order would have to be in the usual form of the determination of such liability to be postponed for such period as the Court sees fit. My Lord, this is not an academic application. Your Lordship knows that Mr B. does use litigation as a tool and therefore this Order would at least keep an eye on the possibility that in a proper case it would be possible to settle for liability to costs Orders .
76. MR JUSTICE MAURICE KAY: That with the dismissal of the application and the application for costs in the form that it is made, there can be no argument, can there?
77. MISS KAUFMANN: I certainly would not argue with the first application made by my learned friend. However, I would seek to resist the second application on the basis, as your Lordship will recall, that in the Respondent's skeleton argument they themselves welcomed the opportunity that the Applicant's application had given the Court to determine this issue. Your Lordship will also recall that Dr Rix, when his opinion was sought, initially recommended that the hospital should itself make an application to the Family Division to seek guidance from the Court as to whether or not their proposed conduct was lawful .
78. Your Lordship will further record that during the course of argument himself remarking upon the unusualness of these issues being determined in judicial review proceedings. The reason for that is because generally the issue is brought before the Court by way of application from the hospital into the Family Division. It is only because no prior authority from the Court was sought and force feeding was commenced that it was left to the Applicant to seek the Court's determination as to whether or not-----
79. MR JUSTICE MAURICE KAY: Miss Kaufmann, it is not wrong where the parties are of a similar view simply wanting clarification by the Court. These proceeding are fundamentally adversarial and they are necessary only because the Respondent is putting forward a different view from the Applicant. It is not a case where the Respondent has felt it necessary to apply to the Court before commencing force feeding, or anything of that sort. The Respondents have done what they thought they were legally entitled to do and would continue to do it, without the expense of litigation , if it were not for the fact that the Applicant takes a different view. It seems to me that they are adversarial proceedings, notwithstanding any difficulty in them, which the Respondents have won and the Applicants have lost.
80. MISS KAUFMANN: They are certainly adversarial, I do not dissent from that at all, but Robb is not the example upon which I draw. There are many instances, and your Lordship has seen them, where there is a clear issue between the parties. B is an example of that where the authority itself has considered it to be appropriate I again emphasise the fact that in relation to Dr Rix they took the second opinion to try and ascertain whether or not this might be lawful. He recommended that usual course be adopted. We accept that the Applicant has lost but there was a real issue here and it was an issue that engaged important matters of public interest, namely the powers of the Hospital Authority to interfere with fundamental rights under Section 63. The resolution of that question is something that has been as much to the benefit of the hospital as it has to the Applicant. In those circumstances I would submit a public interest has clearly been served and an interest of the hospital has clearly been served and these proceedings have been brought.
81. When the matter came before Forbes J for the permission application the hospital made it absolutely clear that they wanted this issue resolved. They did not seek to resist the permission application because they themselves considered that it was appropriate and proper and a proper course for the legality of their conduct to be determined by the Court. In those circumstances I would submit that it really is not appropriate for a costs order to be made against the Applicant.
82. MR JUSTICE MAURICE KAY: The form of the Order you are seeking is a costs Order whereby assessment is adjourned indefinitely?
83. MISS GREY: My Lord, yes.
84. MR JUSTICE MAURICE KAY: Would you like to say anything else about it?
85. MISS KAUFMANN: The only other thing I would say about it is that the reason put by my learned friend for seeking such an Order is the litigiousness of the Applicant. Your Lordship knows that in the event that the Applicant would seek to commence any proceedings which may result in a monetary award, were he to proceed he must first seek permission of the Court to do so. He must satisfy the Court that there is merit in that application before the Court will allow him to proceed.
86. MR JUSTICE MAURICE KAY: The Respondents have a natural concern about litigation in the present circumstances related to the present issue, not least because of what was said in skeleton arguments in this case. It was put forward almost as if this was a preliminary skirmish and more would follow.
87. MISS KAUFMANN: One only has to imagine, for a moment, if that is right further litigation in relation to this issue would be by way of judicial review. There would be no monetary compensation at the end of that to which this costs Order could attach.
88. MR JUSTICE MAURICE KAY: That is not the point Miss Grey is making.
89. The point Miss Grey is making is that they are fearful of a succession of applications for judicial review related to this hunger strike, for want of a better word, and for what it may be worth, and in the end it may be worth very little, they are seeking the Order for costs as a marker and disincentive in relation to that. I do not think they are expecting to receive hard cash now or ever.
90. MISS KAUFMANN: My understanding from my learned friend is that it was as a disincentive in relation to proceedings where if the Applicant fought them and succeeded they would be able to offset this costs Order against any monetary Order in relation to those proceedings.
91. MR JUSTICE MAURICE KAY: I would not make an Order in that form. If I make an Order it will simply be on the basis that assessment is adjourned generally.
92. MISS KAUFMANN: May I say this as well, and this will be the last word from me on the matter, in relation to further proceedings for judicial review I hope your Lordship will take into account that before these proceedings can be brought the Applicant is going to have to have a positive advice from his legal advisers before any such proceedings are going to be funded by the Legal Aid Board. Your Lordship was specifically invited to deal with as many issues as possible, in part, so that these proceedings would have as much a degree of finality as is possible in the circumstances, needless to say we have not yet considered and had an opportunity to consider your Lordship's judgment in detail,, but I note that your Lordship has sought and endeavoured to do that.
93. Putting both those factors into the balance: the need for legal advice and certainly the nature of your Lordship's judgment were any further proceedings to be brought, and there is every reason to believe they would be brought on a proper basis, it would be wholly wrong and it would be an improper denial of access to the Court for a disincentive to be imposed either by this Court or through the application made by my learned friend. I would resist an application on that basis as well.
94. MR JUSTICE MAURICE KAY: Why is it wrong to make a costs Order in one case that would have that effect?
95. MISS KAUFMANN: Because it is wrong. A right of access to the Court is a fundamental right. It is wholly appropriate to create a disincentive in respect of litigants who are frivolous, or whose applications are frivolous: vexatious litigants . The Court has mechanisms and means to deal with it. To attempt to achieve a similar act through the back door, effectively by way of a costs Order is, in my submission, a misuse of that power----
96. MR JUSTICE MAURICE KAY: But a costs Order, if it is made, would surely not influence those who have to consider his entitlements for legal aid in relation to any future litigation?
97. MISS KAUFMANN: I would hope not.
98. MR JUSTICE MAURICE KAY: It is not good ground for refusing legal aid that you lost another case.
99. MISS KAUFMANN: If that were then the case then it would also have to follow, would it not, that that cannot possibly be the object which it is sought to be served by seeking a costs order ,which takes us back to the original point I was making : that it really is about trying to offset it against any possible future damages .
100. MR JUSTICE MAURICE KAY: That was one of the reasons that was concerning
101. Miss Grey and those she represents, it would not be the reason that I made the Order. I make an Order for costs because it would seem to me that it is the normal consequence of adversarial proceedings and, unless there is very good reason not to, I would usually make such an Order. I am not making it for collateral purposes. Anyway, do I need to hear any more about it?
102. MR JUSTICE MAURICE KAY: I make the Order on the basis that assessment is adjourned indefinitely.
103. MISS KAUFMANN: Just two short matters: the first is that I make a formal request for legal aid taxation?
104. MR JUSTICE MAURICE KAY: Certainly.
105. MISS KAUFMANN: The second is that I am required by the rules to ask your Lordship for leave to appeal. Needless to say, as I have already said, I have not had an opportunity to look in detail through the judgment. and therefore I am not in a position, at the moment, to formulate clear grounds for making an application, but I make it just as a formality.
106. MR JUSTICE MAURICE KAY: If, for example, I had decided the case by reference to the last issue, which I have not in fact decided at all, I would see very good reason for giving leave to appeal, but I can see no compelling reason, at the moment, in view of theinterplay on the findings of fact and law that I have made . Also I say this, in an uninhibited way, I think there is a common interest in this case not giving rise to a forensic soap opera.
107. MISS KAUFMANN: I shall certainly bear those comments in mind.
108. MR JUSTICE MAURICE KAY: You can, of course, renew it to the Court of Appeal if you see fit.
109. MISS GREY: My Lord, I am sorry, could I just raise again the wording of the costs Order that the normal form would be to postpone it for such period as the Court sees fit.
110. MR JUSTICE MAURICE KAY: Yes, it is the wording approved by the Court of Appeal.
111. MISS GREY: I am grateful.

(Discussion follows regarding the other application for judicial review)