QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF PS
|- and -
RESPONSIBLE MEDICAL OFFICER, Dr. G
SECOND OPINION APPOINTED DOCTOR, Dr. W
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Christopher Baker (instructed by Mills and Reeve of Birmingham) for the First Defendant
Miss. Elisabeth Laing (instructed by The Treasury Solicitor) for the Second Defendant
Crown Copyright ©
Mr Justice Silber:
Structure of Judgment
The claim and procedural matters (paragraphs 3 to 19);
Two preliminary matters (paragraphs 20 to 25);
The claimant's background and history (paragraphs 26 to 60);
The diagnosis issue (paragraphs 67 to 95);
The Article 3 issue (paragraphs 96 to 130);
The Article 8 issue (paragraphs 131 to 147) and
The Article 14 issue (paragraphs 148 to 154).
The Claim and Procedural Matters
(a) whether PS was lawfully detained;
(b) whether the administration of the proposed medication is in PS's best interests;
(c) the administered proposed medication under Article 14 of the Convention.
Detention, Release and Recall Provisions
"(1) A hospital order shall be sufficient authority –
(i) [to convey to hospital within 28 days]
(ii) for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act.
(4) A patient who is admitted to a hospital in pursuance of a hospital order … shall, subject to the provisions of this subsection, be treated … as if he had been so admitted … on the date of the order in pursuance of an application for admission for treatment … duly made under Part II of this Act" (with various modifications set out in Schedule 1 of the Act, the only substantive one of which is that the patient's nearest relative cannot order their discharge).
"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".
"(3) Subject to Section 62 below [which makes provision for urgent treatment], a patient shall not be given any form of treatment to which this section applies unless –
(i) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purpose of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or
(ii) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
(4) Before giving a certificate under subs(3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner".
Human Rights Act 1998 and European Convention on Human Rights
(i) although section 58 of the Act is not phrased in terms of a permission to treat "the only sensible construction is that it does confirm permission to treat in .. two circumstances" per Hale LJ in R (Wilkinson) v. Broadmoor Special Health Authority and others  1 WLR 419, 444 .
(ii) those two circumstances specified in section 58(3) of the Act are that first, the claimant had given consent to the treatment and either his RMO or a SOAD had certified that he "is capable of understanding its nature, purpose and likely effects". The second is that the patient has not given his consent and 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". It is only the second situation that has to be considered in this case.
(iii) "the SOAD is.. performing a statutory watchdog function on behalf of the public to protect detained persons who are in an especially vulnerable position" (Wilkinson per Hale LJ at page 441 ). In that capacity, the SOAD has to form his own independent opinion on the existence of the statutory criteria (Wilkinson ).
(iv) "the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8 of the Convention" (per Hale LJ in Wilkinson at page 447 ). Section 3 of the Human Rights Act 1998 has the effect that section 58 must therefore be read so as to ensure compliance with Article 3 and 8.
(v) there is another threshold that has to be reached before treatment can be sanctioned, because the test posed by section 58(3)(b) of the Act for the SOAD's certification was regarded by all counsel and by Simon Brown LJ in Wilkinson  as being one that "essentially mirrors the best interests test", to which I will return and consider in paragraphs 135 to 145 below.
(A) What mental illness is suffered by the claimant? ("The Diagnosis Issue")
(B) Would Article 3 be engaged by the proposed treatment of the claimant? ("The Article 3 Issue")
(C) Would the claimant's Article 8 rights be infringed by the proposed treatment? ("The Article 8 Issue")
(D) Would the administration of the treatment infringe the claimant's Article 14 rights? ("The Article 14 Issue")
Before I resolve the four issues, I must first deal with two preliminary matters.
Two Preliminary Matters
The claimant's background
(i) submitted to psychiatric supervision;
(ii) submitted to social services supervision;
(iii) resided at an address approved by the RMO and social services; and that he
(iv) did not contact in any way Y.
A fifth condition had been added at some point, which was that the claimant should not visit the area where the 1995 offences had been committed.
(i) she had seen no evidence of mental illness in PS since his admission to the present hospital.
(ii) she fully accepted the accounts given by Dr. Boyd and Dr. Higgins which "would support a diagnosis of paranoid psychosis apparently precipitated by paroxetine in the context of a depressive illness". PS had been prescribed paroxetine by his GP immediately before committing the 1997 offences and he had also taken more than the proper dose.
(iii) PS's personality had "always been difficult to evaluate" and that in her opinion he used his Born Again Christianity "as a shield to prevent mental health professionals from getting a clearer picture of his coping abilities and functioning".
"On the whole of the material before it the Tribunal accepted Dr. B's opinion that the [claimant's] personality is fragile. If he is subjected to stress that his faith cannot absorb or if he loses that faith there is a risk he will suffer further mental illness".
(i) On 15 December 1999, PS attended the present hospital where he was seen by Dr. B. He told her that he had gradually become convinced that two ex-army rugby players whom he had met were "on to him". He began to wonder if his telephone was being tapped.
(ii) On 21 December 1999, Dr. B and Mr. X, a social worker, met PS. They thought that he seemed to be "under some stress". He repeated his assertion that his phone might be bugged. Dr. B offered to admit him to the present hospital because she "feared he might be in the early stages of a relapse".
(iii) On the night of 21/22 December 1999, PS was readmitted informally to the present hospital.
(iv) On 23 December 1999, Dr. B spoke by telephone to a Dr. L, a church friend whom PS had visited early that morning. PS had told Dr. L that he had received a message from God, that he believed the world was about to end in nine days' time and that all the computers were going to crash. According to Dr. L, PS told him about his 1995 offences. Dr. L decided it would be unsafe to leave PS in the house with his wife, Mrs. L.
(v) Dr. B then contacted the Home Office and she arranged for PS to be recalled. In her opinion, the contents of PS's conversation with Dr. L represented a repetition of PS's mental state at the time of the 1995 offences so that there was a risk he might harm himself or others and in particular H. On 23 December 1999, the Secretary of State for the Home Department issued a warrant for PS's recall to the present hospital.
(vi) On 24 December 1999, the Police apprehended PS. He had made a 999 call to the local police in a depressed state. PS talked of being followed. He later told Dr. B that he had gone there to see his father and that he had been looking for a house where his cousin, A, lived. Dr. B then listened to the tape of a 999 call made by PS from a public telephone box and based on the tape recording, she considered that PS seemed low in his mood and paranoid. Police later confirmed that the telephone box was only about a mile from the home of Y, who was the mother of PS's son who he had killed in 1995. The arrest report recorded PS's belief that "missiles were about to go off" and that "Australia would be the only safe place to be". It seemed that PS believed the world was about to end and that Dr. B wondered if PS was intending to make his peace with his father, whose wife PS had killed in 1995.
(vii) PS was returned to the present hospital on 24 December 1999. On his return, he was described as being very flat in mood and subdued. The Ward Manager said he had not previously seen PS in such a low state. PS's admission notes reveal that PS told staff first that a man who had served in the army had been asking him questions and second, that this man was involved in "diplomatic service stuff" and "secret stuff". PS said he felt that he had been watched and that his phone had been tapped.
(viii) On 4 January 2000, when Dr. B saw PS on her return to work, he appeared to have returned to his normal behaviour. It was then reported to Dr. B that on 22 December 1999, PS had made a comment to a member of the nursing staff about the world being about to end.
(ix) Following his recall, PS spent several hours with Dr. B discussing the events which had led up to its recall. PS believed that he was experiencing a spiritual crisis. He made some vague comments which made Dr. B suspicious that PS was paranoid about X, the social worker. PS commented to nursing staff that he believed that Dr. B might have stolen some money from his flat but he denied this to Dr. B.
(x) Dr. B considered that a number of factors after the previous Tribunal determination had caused first, a deterioration in PS's condition and second, a relapse of his mental illness. According to Dr. B, these factors were first the claimant's failure to achieve an absolute discharge, second the break-up of his relationship with H, third, what Dr. B believed was a delusional belief on the part of PS that his telephone was bugged, fourth, the special significance which the Millennium held for him, fifth, the added stress derived from memories about Christmas 1998, which he had spent with H's family, sixth, his fragile social network and finally, the reduction in PS's contact with his previously close friend D.
(xi) PS spoke about events "coming full circle" and he seemed to be indicating that the events leading up to Christmas 1999 repeated the events of the 1995 offences. Dr. B was concerned that PS had managed to conceal from nurses exactly how troubled he was feeling and that he showed little insight into his condition. Dr. B felt that she could not be confident that she could "supervise [PS] safely in the community given the events of December 1999". She concluded that:-
"He has shown that under conditions of stress he can deteriorate and de-compensate very rapidly and I would be concerned that if he were not supervised closely that a similar set of circumstances might happen again".
(i) PS's long-standing metaphysical pre-occupations going back to his Army days;
(ii) a "military form of thinking" which PS claimed to adopt when psychologically disturbed, resulting in definitive action and which was apparent at the time of the 1995 offences and in late 1999;
(iii) the current similarities with PS's long time metaphysical pre-occupations which included tarot cards, apocalyptic ideas, as well as the overwhelming effects of his religious views;
(iv) the marked similarity between PS's "knowledge" of the infidelities of Y and of H;
(v) the similarities of behaviour on PS's part at the time of the 1995 offences and in late 1999 and
(vi) the gradual deterioration in PS's mental state so that Dr. Higgins found him emotionally flat, lacking in appropriate affect, markedly egocentric, insightless, chronically deluded and subject to a range of passivity feelings.
A. The diagnosis issue
The case for a diagnosis of schizophreniform disorder
The case for a diagnosis of schizophrenia or of paranoid psychosis
Conclusions on diagnosis
(i) The views of the claimant's RMOs
(ii) The September 2002 Tribunal Decision
(iii) The views of Doctors other than RMOs
(iv) Misgivings about Dr. Hambidge's evidence
(v) The reasoning of Dr. G and Dr. B
(vi) The force of Dr. W's evidence
B. The Article 3 issue
"Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of the minimum is, in the nature of things relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and in some instances the sex, age and state of health of the victim" (T and V v. UK (1999) 7 BHRC 659) (with my emphasis added).
"The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist" (Herczegfalvy v. Austria (1992) 50 EHRR 437, 484 at paragraph 82).
"Having regard to the fact that the Convention is a "living instrument which must be interpreted in the light of present day conditions", the Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably, requires greater firmness in assessing breaches of the fundamental values of democratic societies" (Selmouni v. France (2000) 29 EHRR 403 at para 101).
(i) the proposed treatment on the patient reaches the minimum level of severity of ill-treatment, taking into account all the circumstances, including the positive and adverse mental and physical consequences of the treatment, the nature and context of the treatment, the manner and method of its execution, its duration and if relevant, the sex, age and health of the patient ("the Minimum Level of Severity Sub-Issue") and
(ii) the medical or therapeutic necessity for the treatment has not been convincingly shown to exist ("the Convincing Medical or Therapeutic Evidence Sub-Issue").
(i) The Minimum Level of Severity Sub-Issue
"If in truth this claimant has the capacity to refuse consent to the treatment proposed here, it is difficult to suppose that he should nevertheless be forcibly subjected to it. True, Dr. Horne [the claimant's RMO] appears to regard it as his only hope of eventual return to the community. That said, however, its impact on the claimant's rights above all to autonomy and bodily inviolability is immense and its prospective benefits (not least given his extreme opposition) appear decidedly speculative" .
"I do not take the view that detained patients who have the capacity to decide for themselves can never be treated against their will. Our threshold of capacity is rightly a low one. It is better to keep it that way and allow some non-consensual treatment of those who have capacity than to set such a high threshold for capacity that many would never qualify. Whether the criteria for non-consensual treatment of the capacitated should be limited to treatment which is for their own safety (as opposed to their health) is a difficult and complex question. Mr. Bowen tried to persuade us that there was a developing consensus to that effect. There are indeed indications that the issue of capacity is assuming greater importance in the context of psychiatric treatment. But we have not yet reached the point where it is an accepted norm that detained patients who fulfil the In re MB  2 FLR 426 criteria for capacity can only be treated against their will for the protection of others or for their own safety".
The Convincing Medical or Therapeutic Evidence Sub-Issue
(a) "There is much to be said for the view that in these cases [in which the doctors seek to impose treatment which would contravene a patient's Article 3 rights], there is but one simple question: has the proposed treatment been convincingly shown to be medically necessary" (R (N) v. M  1 WLR 562 ) per Dyson LJ. Mr. Gledhill, who was also counsel for the patient on that appeal, points out that this comment was made without the benefit of argument and he contends that I should look separately at the individual questions that Dyson LJ mentioned and which I will now set out in sub-paragraph (b).
(b) The answer to the "simple question" specified in sub-paragraph (a) above, in Dyson LJ's words in R (N) v. M "will depend on a number of factors including (a) how certain is it that the patient does suffer from a treatable mental disorder, (b) how serious a disorder it is, (c) how serious a risk is presented to others, (d) how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition, (e) how much alleviation is there likely to be, (f) how likely is it that the treatment will have adverse consequences to the patient and (g) how severe may they be?" (ibid).
(c) The proposed treatment must be in accordance with a responsible and competent body of relevant professional opinion (ibid  and see Re A (Male Sterilisation) 2000 1 FLR 549, 555).
(d) The mere fact that there is a responsible body of opinion against the proposed treatment is relevant to the question whether the treatment is in the patient's best interests or medically necessary, but it does not automatically mean that the treatment cannot be in the patient's best interests or not medically necessary (R (N) v. M (ibid  and ).
(a) How certain is it that the patient does suffer from a treatable mental disorder?
(b) How serious a disorder is it?
(c) How serious a risk is presented to others?
(d) How likely is it that if the patient does suffer from such a disorder the proposed treatment will alleviate the condition?
(e) How much alleviation is there likely to be?
(f) How likely is it that the treatment will have adverse consequences to the patient and (g) how severe may they be?
C. The Article 8 Issue
(1) Everyone has the respect for his private and family life, his home and correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such that is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
"… necessary in a democratic society for the protection of health"
"… in accordance with the law …"
"I would suggest that the starting point of any medical decision would be the principles enunciated in the Bolam test and that a doctor ought not to make any decision about a patient that does not fall within the broad spectrum of the Bolam test. The duty to act in accordance with responsible and competent professional opinion may give the doctor more than one option since there may well be more than one acceptable medical opinion. When the doctor moves on to consider the best interests of the patient he/she has to choose the best option, often from a range of options. As [counsel for the Official Solicitor] has pointed out, the best interests test ought, logically, to give only one answer".
"In deciding what is best for the disabled patient the judge must have regard to the patient's welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination. In my opinion, Bolam has no contribution to make to this second and determinative test of the judicial determination…. It is the judge's function to declare that treatment which is in the best interests of the patient and ..only one treatment can be best"
"the principle of best interests as applied by the courts extends beyond the considerations set out in Bolam. The judicial decision will incorporate broader ethical, social, moral and welfare considerations"
D The Article 14 issue
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
"(i) Do the facts fall within the ambit or one or more of the substantive Convention provisions (for the relevant Convention rights see s1(1) of the 1998 Act)?
(ii) If so, was there different treatment as respects that right between the complainant on the one hand and the other persons put forward for comparison ("the chosen comparatives") on the other?
(iii) Were the chosen comparatives in an analogous situation to the complainant's situation?
(iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear reasonable relationship proportionality to the aim sought to be achieved?" 
MR JUSTICE SILBER: I am very grateful to counsel for their amendments. I have some more of my own which I am going to introduce as well. My clerk will let you have a list of what all the initials stand for, but I think it is quite explanatory. What I have done is that, in the case of each of them -- the people who you have mentioned -- given them initials so there is no individual named, although I have referred to Merseyside which do I not think is particularly important because I do not think it identifies people.
MR GLEDHILL: My Lord, I have two ancillary applications. First of all, an application for a detailed assessment of the public funding certificate.
MR JUSTICE SILBER: Is there a certificate on the file?
MR GLEDHILL: I think so.
MR JUSTICE SILBER: Can we say upon supplying a certificate.
MR GLEDHILL: Yes, and I will check that with your associate. My Lord, the other question that arises from our point of view is one of an application for permission to appeal.
MR JUSTICE SILBER: Yes.
MR GLEDHILL: Which is, in essence, it might be something to do with what you could call a philosophical basis of the treatment of those detained under the Mental Health Act. Your Lordship has found that there is no breach of Article 3 or Article 8, and one of the issues that arises there is the effect that should be given to a capacitated refusal to consent to treatment by somebody who happens to be detained under the Mental Health Act. This comes to the contrast between the position of somebody like W in the case of Re W which was cited to your Lordship, of a man who is mentally unwell and suffering from a psychopathic disorder. But because he is not under the Mental Health Act and has capacity, he is entitled to allow his leg to go gangrenous even if (inaudible). The contrast there is with the position of PS who has capacity, no doubt about that, gives a reasoned refusal for accepting medication and is not a danger as a result of not accepting medication in the sense that he is detained in hospital. The question then that arises is whether, under the construction that your Lordship has put forward of section 58 in particular, the amount of weight that should have been given to his capacity for refusal.
Now, your Lordship cites from the judgment of Hale LJ in Wilkinson. It is our submission that there is a tension between what Hale LJ says and what Simon Brown LJ says, and, not surprisingly, I relied on Simon Brown LJ's comments, albeit obiter, on the facts of Wilkinson because it was not what he had to decide. My learned friends and your Lordship rely on what Hale LJ says about: well, the statute is what the statue is and capacity does not have that central position to it. What we say is that that actually raises a fundamental question about the Mental Health Act and treatment under the Mental Health Act, and that is an issue which is one which both merits the Court of Appeal's consideration and so comes under the second limb of the test for appeal -- some other good reason, but also we say that gives us a realistic prospect of success which is the first limb of the test for appeal to the Court of Appeal. Realistically, it does not mean that we are likely to win, it just means that it is not fanciful. It may well be that I can persuade three judges whereas I could not persuade your Lordship that it is what we would call a Simon Brown LJ approach towards the treatment of capacitated patients that should be followed. My Lord, that is the application we make.
MR JUSTICE SILBER: Yes, who wants to go first, Miss Laing?
MISS LAING: My Lord, yes. If I could make a point generally about this case. In submission, the first point to make is that your Lordship's holding and finding in this case is very much based on the facts of this case, and your Lordship's very careful assessment, first of all, of the correct diagnosis of this patient, and secondly, the possible side effects of medication on him. So the first point is that this decision is very much grounded on the facts of this particular case. Now, my learned friend, Mr Gledhill, has sought to say that this case raises an important general point about the effect to be given to capacitated refusal. Now, what I would say is that, on the facts of this case, it does not because of your Lordship's finding that, at least in part, the capacitated refusal of this patient was based on a lack of insight into his condition. So, in my submission, the general philosophical point simply does not arise on the facts of this case, and in effect, it is an attempt, in my submission, to re-run the Article 14 discrimination point which your Lordship had little difficulty, in my submission rightly, in dismissing at the end of your Lordship's judgment.
So for those reasons, I would respectfully submit that this case does not raise an important question of law or of general importance. It is a decision very much grounded on the facts, and for those reasons, I would suggest that it is not an appropriate case in which leave to appeal should be granted.
MR BAKER: My Lord, I respectfully adopt and endorse that submission. In addition, I would observe that, on the facts, your Lordship was able to quite clearly distinguish the Wilkinson case. Clearly the facts have an important bearing on the prospect of an appeal.
MR GLEDHILL: My Lord, I fully accept that all cases turn on their facts and your Lordship made careful factual findings which, in essence, I am not in a position to challenge because of the way the appeal structure worked. But can I deal with the point raised by my learned friend, Miss Laing, about the effect of the, as it were, lack of insight that your Lordship found. Again the contrast has to be drawn with the outcome of the case of Re W. Re W, his reasoning process, was based on an assumption that, by causing himself to become gangrenous, he would be transferred from prison to hospital -- that was his design. The effect of his reasoning process, or the reasoning process that he followed, was clearly wrong and it was pointed out to him that it was wrong, but the holding of the President in that case --
MR JUSTICE SILBER: The problem that concerns me about this is that the statute specifically permits treatment to be given if certain procedures are done even if there is a capacitated refusal.
MR GLEDHILL: Yes, it does, but the question is: it is the statutory interpretation of that statutory provision that is the important point of law because that provision now has to be interpreted in the light of Articles 3 and 8 pursuant to the Human Rights Act, and the question then arises as to the circumstances in which you should override a capacitated refusal to consent. Now I accept that the way the statute is phrased means that it is impossible to say that merely because you have capacity that is the end of the question. But the question that arises then is: in what circumstances when you have capacity should your consent be overridden? Going back to the point with Re W, his reasoning process was faulty, but the holding in Re W was that, irrespective of how faulty your reasoning process is, as long as you have capacity to follow the reasoning process, that is the, as it were, end of the matter. My Lord, I accept of course questions of doubt. The guidance from the Court of Appeal is that your Lordship should leave it to the Court of Appeal, but I do say that despite it being fact specific there is an important point here.
MR JUSTICE SILBER: Thank you. The claimant seeks permission to appeal on the basis that inadequate weight was given by me to the capacitated refusal of the claimant to agree to the treatment. I do not consider that that point reaches the threshold needed to obtain permission to appeal for a number of reasons. First, the statutory provisions specifically states the circumstances in which capacitated refusal can be overridden. Second, in the case of Wilkinson, Hale LJ explained that a capacitated refusal can be overridden for the reasons set out in the quotation in paragraph 18 of my judgment. Third, insofar as Mr Gledhill seeks to obtain assistance from the approach of Simon Brown LJ in Wilkinson, for the reasons set out in paragraphs 116 and 117 in my judgment, this is a completely different case.
In any event, there are three additional reasons why I would refuse to give permission to appeal. First, the contested certificate permitting the administration of the anti-psychotic medication was out of date well before the hearing started in front of me, as I explained in paragraph 24 of the judgment. Second, the claimant may now be successful in obtaining discharge from the Mental Health Review Tribunal which is due to me shortly. And third, if a further application is made for a new certificate to permit the administration of the medication, one might not be obtained, but in any event, if it is, any challenge to it would depend on the evidence at the time which might well be very different from that which I considered in this case.
Therefore, notwithstanding the clear and helpful submissions by Mr Gledhill on this point, I refuse permission. Before parting with this case, can I say that I will be expressing much more clearly than I have already done in the judgment my gratitude to all of you for the help that you gave me during what was really a very interesting and very difficult case. Thank you all very much.
MR BAKER: My Lord, before we go may I just say that the first defendant and, I understand, the second defendant will not be seeking any order for costs in this case. Clearly if the matter were to go further we would reserve our position as to costs.
MR JUSTICE SILBER: You made your point on that and I have not asked you if you wanted to seek an order today. It is very rare for an effective order to be made against a patient.