England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th May 2005

1. MR JUSTICE COLLINS: The claimant, Roger Taylor, is now 51 years old. He was a patient at Ashen Hill Hospital. He was formally admitted to that hospital in October 2000 by the Crown Court following his conviction for offences of affray and common assault. He had been at Ashen Hill in the Regional Secure Unit since May 2000 for the purpose of assessment. The court, having received the necessary reports, ordered his detention at Ashen Hill pursuant to Section 37 of the Mental Health Act 1983 and further ordered that he be subject to a restriction order under section 41.

2. This claim concerns whether he should receive treatment in the form of antipsychotic medication without his consent. Section 63 of the 1983 Act enables treatment to be given to a patient by or under the direction of the responsible medical officer ("RMO") without the need for the patient to consent, but that provision is subject to sections 57 and 58. Section 57 deals with particular forms of treatment of an especially invasive nature, and section 58 is the provision which is applicable in this case. It provides as follows:

   "(1) This section applies to the following forms of medical treatment for mental disorder --

   (a) such forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State;

   (b) the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section 57 above) at any time during a period for which he is liable to be detained as a patient for whom this Part of the Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.

   (2) The Secretary of State may by order vary the length of the period mentioned in subsection (1)(b) above.

   (3) Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless --

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

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

   (4) Before giving a certificate under subsection (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."

3. Part 4 of the Act, in which these provisions relating to consent to treatment are to be found, applies to the claimant so long as he is liable to be detained. He is liable to be detained if suffering from mental disorder; that is to say mental illness, arrested or incomplete development of mind, psychopathic disorder or any disorder or disability of mind, or from severe mental impairment which make it necessary for him to be detained in hospital to receive treatment for the protection of other persons or for his own health and safety. (See sections 1(2), 3(2) and 37(2) of the 1983 Act).

4. It is, I think, convenient, simply because I have recently set out the relevant statutory and other provisions in R (B) v Haddock and Others [2005] EWHC 921 Admin, to direct attention to that case. I do not think I need cite from it in this judgment. I simply refer to the code of practice which deals with how the SOAD (namely the medical practitioner appointed under section 58) should act. But it makes the point that the SOAD must satisfy himself that the treatment is indeed necessary, ensure that he thinks it desirable to carry it out, and consult with the two statutory consultees and others including, with the patient's consent, the patient's family, carers or advocate.

5. The first defendant is the RMO, the second the SOAD. Each is satisfied that the claimant suffers from persistent delusional disorder and that the medication is needed to alleviate his condition. The second defendant, Dr Gallimore, so certified on 30th April of this year. An earlier certificate had been given by a different SOAD on 28th December 2004, a Dr Browne, and he reached the same conclusion. He was of the opinion that the claimant was suffering from mental illness in the form of a deep-seated paranoia. He was included in the original claim which was lodged on 17th January 2005 (following the obtaining of an injunction on 14th January, the duty judge prohibiting the administration of the treatment pending consideration of an application for judicial review which had to be lodged by Monday 17th) but Dr Browne's certificate lapsed. In due course, Dr Gallimore's certificate was obtained so he was joined in the place of Dr Browne.

6. The claim is founded on evidence obtained from a Dr Azuonye, a consultant psychiatrist, who originally saw the claimant on 12th January of this year and expressed the view that he showed no signs of mental disorder and that no medication should be administered.

7. There is little, if any, dispute about the approach the law requires me to adopt. Following Strasbourg jurisprudence, in particular Herczegfalvy v Austria 15 EHRR 437, the defendants have to satisfy me that the medical necessity for the treatment is has been convincingly shown to exist according to the psychiatric principles generally accepted. Since human rights are at stake, whether under Article 3 or, more probably, Article 8, the Court of Appeal has decided in Wilkinson v Broadmoor Special Hospital [2002] 1 WLR 419 that, albeit the challenge is through judicial review, the court must reach its own conclusion on the evidence. This could (and on one view the decision in Wilkinson is consistent with the conclusion that it should) involve the attendance and cross-examination of the doctors concerned. But in R(N) v M [2003] 1 WLR 562 the Court of Appeal indicated that it should not often be necessary to adduce oral evidence. In the case of R(B) v Haddock, which I have already referred to, I considered the authorities and expressed some doubts about the decision in Wilkinson and the approach that the court had to decide for itself on the merits. However, I need not go into those matters in this judgment. Suffice it to say that I accept, as I have to, that I am bound by the decisions of the Court of Appeal in Wilkinson and N.

8. An application was made to have the doctors called and cross-examined. I refused that application. The various reports have been considered and commented on in detail. I am satisfied that I would not have been assisted by hearing the doctors cross-examined. I have all the information that I need to reach my decision. I only confirm, and perhaps put into more positive form, what the Court of Appeal said in N about the need to adduce oral evidence. In my view it will only be in rare cases that such a course will be appropriate. If the court has the relevant medical notes, the reasoned decisions by the doctors concerned, statements from the doctors and other professionals, and comments on any opposing views, it is difficult to see why oral evidence should be needed.

9. I must start by setting out, although not in any more detail than necessary, the claimant's history. He was a singularly difficult child, terrorising his siblings and wreaking havoc in his home. At the age of 14 he was regarded as totally beyond his parents' control. He married a lady who was a prostitute -- indeed he had met her as her client -- in 1983. They separated after about a year. He returned to her but was angry at her because he felt that she was still pursuing her activities as a prostitute. His wife died following a quarrel, and for about a month he lived with her dead body. He was arrested because he raped a lady after he forced his way into her flat, threatened her with a knife and bound her hands.

10. For these offences he was sentenced by the Crown Court judge to 11 years' imprisonment but that was reduced on appeal to 8 years. He was released from that sentence in April 1991. The Probation Service, recognising that there were substantial mental problems, having regard to his history and the nature of the offences, referred him to psychiatric services and he came under the general care of Dr Haydn-Smith and his team. He had counselling. Unfortunately, he became involved in a dispute with the Benefits Agency, largely concerning whether he should be provided with the means of obtaining a car since he said he was agoraphobic. He also got into debt and began to become obsessed with his litigation, which in the end was, as I understand it, substantially successful. But his mental state began to deteriorate. He refused to continue to see the psychiatric team because he believed that they were conspiring against him and he began to make threats against some of them because of his belief that they were guilty of criminal conduct against him. He involved his Member of Parliament but, when he did not get the assistance he thought should have been given, he turned against him. He developed what were clearly delusional ideas about what the Member of Parliament was doing: these included an allegation that he had placed a seagull down his toilet.

11. The claimant was arrested in July 1999 following an incident when he visited a neighbour. The neighbour, a lady, was somewhat concerned with his attitude and, in particular, his comments to her which suggested a sexual interest. When she thought he was leaving he suddenly produced a knife after grabbing her shoulder. She screamed and he fled. Whilst on remand, he was seen with a view to a possible admission to Broadmoor, having been referred by Dr Haydn-Smith. In a report dated 1st November 1999, Dr Forrester, a psychiatrist at Broadmoor, reached these conclusions:

    "(1) Mr Taylor is a 45-year old man who presents with a range of abnormalities in his mental state, including widespread persecutionary delusions; for example, that his local MP and Dr Haydn-Smith are involved in a conspiracy against him . . . In recent months he has increasingly tended to present in a hostile and argumentative state and he has become so concerned with the circumstances of his court case that he spends hours every day in his prison cell writing material. I am of the opinion that he currently fulfils the required phenonological criteria to evaluate it as a delusional disorder which is a recognised mental illness appearing in the ICD-10 classification of mental and behavioural disorders, WHO 1992.

    (2) Mr Taylor has a history of conduct disorder in adolescence, developing into a personality disorder in adult life which clearly advocates the development of a psychotic illness . . .

    (3) In terms of the level of risk to other persons, Mr Taylor has a history of convictions which date from 1971 and he received his first conviction for carrying an offensive weapon. He also has previous convictions for manslaughter and rape. After leaving prison in 1991, he was followed up by the Ashen Hill Community Forensic Mental Health team but in 1998 he fell out with the team after he was unhappy that they did not feel able to support his appeal for a car. Since that time he has made an increasing number of complaints about various members of staff and has developed delusional ideas regarding his local MP and Dr Haydn-Smith. He has stated that he wishes to disclose them in public. When asked specifically what this means he refuses to say. On the basis of the available information, I am of the opinion that Mr Taylor currently presents a significant risk to the safety of other persons, principally the MP and Dr Haydn-Smith. Although it is not currently possible to decide the nature of that risk, I am nonetheless of the opinion that it is sufficient to say that he presents a grave and immediate danger to the safety of other persons.

    (4) Mr Taylor currently requires a period of assessment and treatment in a hospital setting and I am of the opinion that it would be appropriate for this to be undertaken in conditions of maximum security. Consequently, I would recommend his admission to the Panel."

12. That was addressed to the Broadmoor Panel and is dated 1st November 1999, when the claimant was remanded in custody in Lewes Prison. Unfortunately, there was no vacancy available at Broadmoor, and so he remained in the prison until the Spring of 2000 when he was able to go to the secure unit at Ashen Hill. That was in May of 2000. In July, a report was prepared for the Crown Court by a Dr Sarkar, who was at the time a specialist registrar in forensic psychiatry working under the supervision of Dr Haydn-Smith. He noted that the report was prepared under Dr Haydn-Smith's direct supervision and guidance, but he made it plain that the views that he stated in it were his. He dealt with Mr Taylor's progress since his transfer to Ashen Hill in May and said this:

    "Mr Taylor believes that all of us are involved in the prosecution conspiracy to frame him for something he did not do, and he maintains his innocence. As time has gone by, more and more people have been involved in this so-called conspiracy which includes various members of the nursing team. He accused one of our senior charge nurses of being a paedophile. So far he has not been able to engage in any meaningful relationship with any member of the team. He does, however, have a reasonable social interaction with a few selected individuals. Some of these patients have the same firm of solicitors representing him and I am led to believe that most of his discussion with these patients is surrounding legal issues. Mr Taylor likes to think of himself as somebody who is quite knowledgeable in law and he quotes various Articles, most notably Article 6 of the European Convention on Human Rights. His writing is rich in pseudo-legal jargon."

    Then he goes on to say:

    "A second opinion was recently obtained from the Mental Health Act Commission and we were unsure about the true nature of Mr Taylor's consent [that is consent to treatment which was in the form of medication, particularly antipsychotic medication]. Mr Taylor became rather agitated prior to the visit by the second opinion doctor, although he superficially co-operated with the doctor when he visited. A second opinion has now been obtained to treat him with up to two antipsychotics . . . Mr Taylor is now on normal medication which he accepts, but each time under protest.

    Although it has been almost three months since Mr Taylor was admitted to Ashen Hill, his relationship with the treating team has not improved noticeably. He remains suspicious, guarded and accuses everybody of wanting to prejudice his defence by making various allegations. As he is reluctant to talk to any of the nursing team and doctors, the only opportunity we have to assess his mental state is through the brief conversations which we have with him . . . It is [the] letters that Mr Taylor has written so far which give us the best indication of his mental state. The ongoing assessment at Ashen Hill is also supplemented by observation of his behaviour, his interaction with staff and his general demeanour."

    He notes that it would appear that he had well systemised persecution delusions of a non-bizarre nature, predating the alleged index offence. He goes on:

    "In the absence of hallucinations and thought disorder, the substant array of plausible persecution or other beliefs would be the hallmark of a persistent delusional disorder. I am therefore confident that Mr Taylor meets the criteria of paranoid personality disorder with relevant paranoid delusional disorder. A delusional disorder is a mental illness within the meaning of the Mental Health Act. A paranoid personality disorder coupled with anti-social personality disorder would satisfy the criteria of a psychopathic disorder as defined in the Mental Health Act. I believe Mr Taylor's psychopathic disorder would be amenable to appropriate treatment in a hospital setting . . . I am of the belief that [Mr Taylor's] suspiciousness is a product of the mental illness known as delusional disorder and when that is treated successfully Mr Taylor will be in a position to engage in treatment which will alleviate his condition or at least prevent a deterioration as far as the psychopathic disorder is concerned."

13. He went on to give the opinion that Mr Taylor remained a person who could be dangerous given the right situation. His finding was that he suffered from anti-social personality disorder and paranoid personality disorder which met the criteria of psychopathic disorder as defined in the Mental Health Act, and also that he suffered from delusional disorder of a paranoid type which was a mental illness within the meaning of the Act. So it was that the court order was made, as I have indicated, based upon the classification of mental illness.

14. He has never shown hallucinatory or other bizarre signs, but questions established that the delusions existed and the definition of persistent delusional disorder has been stated in the guidance provided to the profession in this way:

    "Delusional disorder: This group of disorders is characterised by the presence either of a single delusion or of a set of related delusions which are usually persistent and sometimes life-long. The delusions are highly variable in content. Often they are persecutory, hypochondriacal or grandiose, but they may be concerned with litigation or jealousy or express a conviction that the individual's body is misshapen, or that others think that he or she smells or is homosexual. Other psychopathology is characteristically absent, but depressive symptoms may be present in many of them and olfactory and tactile hallucinations may be present in some cases. Those that consist of auditory hallucinations (voices), schizophrenic symptoms such as delusions of control and marked blunting of affect, and definite evidence of brain disease are all incompatible with this diagnosis. However, occasional or transitory auditory hallucinations do not rule out this diagnosis, provided that they are not typically schizophrenic and form only a small part of the overall clinical nature. Onset is commonly in middle age but sometimes, particularly in the case of beliefs about having a misshapen body, in early adult life. The content of the delusion and the timing of its emergence can often be related to the individual life situation; for example, the persecutory delusions of members of minorities. Apart from actions and attitudes directly related to the delusion or delusions existing, effect, speech and behaviour are normal."

15. That last sentence is, in the context of this case, of some importance. Although the claimant did not accept the need for medication and objected to its administration (although not to the extent of resisting when it was to be administered), the medication was alleviating his condition. Accommodation was found for him and in November 2003 he was conditionally discharged. All seemed to be going well until April 2004. He began to complain to a greater extent about an allegedly noisy neighbour.

16. A Dr Kirolous who worked with Dr Haydn-Smith and had known the claimant since 2000 when he came to Ashen Hill and saw him regularly and was one of the team that supervised his care, has provided a statement. She has noted that there was a case conference on 13th April 2004 following a meeting with Mr Taylor on 8th April. She comments:

    "That was the last meeting at which we were relatively content about his place in the community. During that meeting, Mr Taylor mentioned that he did now feel free of being trapped behind a door and surrounded by a powerful figure as he was at home; that is to say, in the past . . . I can confirm that I wrote to the Home Office on behalf of Dr Haydn-Smith."

    She refers to a letter of 15th July 2004 in which she notified the relevant person at the Mental Health Unit in the Home Office that there was a strong indication that the claimant's mental state had deteriorated and he was presented as increasingly paranoid and psychotic. She therefore recommended that he be put in hospital for his own health and safety and for the protection of others. She continues in her statement:

    "In the three months prior to that letter, it became apparent that Mr Taylor's mental state and presentation were deteriorating . . . He became increasingly suspicious about the motivations of several members of his care team as his delusions started to resurface because of his failure to take medication. He had started to miss attending the rehabilitation work placements at the nursery . . . He intended to spend most of his time at home in isolation. He talked about thinking of jumping from Beachy Head. He refers to a handwritten letter in which he made reference to killing himself."

17. What in fact happened was that the claimant disappeared from his address in July 2004. That constituted a breach of the conditions under which he was to be at large. In due course, but not until October, he was discovered and was re-admitted to hospital. That re-admission was perfectly lawful as a result of the breach of condition and there was also the opinion of Dr Kirilous which is contained in the letter which she had written to Home Office. It seems that he had not been taking his medication.

18. The re-admission was on 20th October 2004. Unfortunately, he refused to talk to his RMO, Dr Haydn-Smith. It was noted by a nurse who was concerned with him that that individual had not picked up any signs of mental illness (ie, psychosis), that he spent his time writing and that he was obsessed with exonerating himself. He still maintained a conspiracy existed against him. Dr Haydn-Smith and anyone who supported him was guilty of criminal conduct and would be punished for it. It was noted that he had lost weight and had not been caring for himself properly. There has also been produced a note from a Charge Nurse Carrington in which she said this:

    "Following ward round two weeks ago [this is dated 29th November 2004] S/N Gillen informed Roger that a SOAD was going to be requested before meds were prescribed. Roger was unhappy with this because he feels that he does not show any evidence of mental illness. This is evidenced by three months spent without medication or professional input."

    She then goes on to describe some problem that had arisen with another member of the staff at Ashen Hill. What Nurse Carrington requested was this:

    "Could we please clarify has a SOAD been requested and an idea on the timescale. The care team are of the opinion that Roger should not be prescribed any medication until further assessment can be made."

19. His approved social worker, Dr Haydn-Smith, supported by Dr Browne, remained satisfied that he was suffering from persistent delusional disorder and that he needed medication which he had had in the past, because that medication had alleviated his condition. His deterioration which had led to his return to Ashen Hill, had resulted, they believed, from his failure to keep to that medication.

20. In a statement which he has produced for the purpose of these proceedings, Dr Haydn-Smith has set out a number of entries from the nursing record which he has suggested were indicative of the disorder and consequently the need for treatment. Miss Burnham has not suggested that that record, which has been relied on by Dr Haydn-Smith, paints in any way a false picture or is taken out of context. It is not, I think, necessary to lengthen this judgment by going through it in great detail. One notes that there was general agitation from time to time. For example, on 15th November he had become hostile and abusive. He could not hold a two-way conversation. He felt staff, particularly one nurse was lying and had deliberately made things difficult. The next day he stated that the only way out was suicide but he could not do it. The next day he said that the RMO had denied him the right to voice his opinion. Some days later he said the RMO and the ASW were vindictive in trying to keep him there and that SOADs were usually "pissheads" and the RMO had been out to get him for many years.

21. Into early 2005 we find him saying at the end of January that he felt like giving up completely but did not have the courage to kill himself; under intense stress; he did not intend to kill himself. Part of the stress then was undoubtedly that he was due to have a hearing before the Mental Health Review Tribunal which in due course took place in March. I will come to that in a moment. He had sacked his solicitors at the end of January. He told the nurse that the RMO had locked his children in a cupboard under the stairs. It was decided that he should be checked every 15 minutes, but he was not formally put on suicide watch. In February we have incidents where he accused staff of stealing possessions and taking items and hiding them, and that he was being fitted up by the legal team and being got at by the RMO and the ASW.

22. There were continual incidents and complaints and assertions that he was the subject of deliberate conduct aimed at him and designed either to make it appear that he was suffering from mental illness or to ensure that he received the medication that the RMO considered was appropriate. He also tended, from time to time, to regard unrelated events as being aimed at him. For example, a visit by a police officer made him agitated even though it was totally unconnected with him and he insisted on making enquiries to make sure it was not connected with him. So the picture is not of someone who was maintaining, as it were, an even keel.

23. The Mental Health Review Tribunal heard his appeal on 4th March. It found that he was suffering from mental illness and needed to be detained. However, it is accepted that I should not attach any weight to that finding. Indeed, I should and I do ignore it since it has been quashed because the Tribunal refused an adjournment and did not have before it the evidence of Dr Azuonye, who the claimant wished to call and who challenged the conclusions of the RMO and all the other professionals who had dealt with the claimant.

24. I am afraid that I am clearly of the view that I must reject Dr Azuonye's evidence. His statements are badly reasoned and are based on often foolish attacks on detail in the statements made by the defendants. In his first statement of 14th January 2005, Dr Azuonye says that he saw the claimant for two hours and "he presented a completely normal mental state." His review of the medical records after re-admission on 26th October 2004 led him to say, following a somewhat selective quotation and ignoring the history, that they contrasted very much with the view that the claimant had to be recalled because of the deterioration in his mental state. What happened before his recall was important but appears to have been ignored.

25. After referring to the possibility of a breach of human rights in the manner in which he had been recalled (a reference which shows that he must have been wholly unaware of the true position regarding the breach of condition and Dr Kirilous' letter) he concluded his report in these words:

    "In the course of my recent assessment of Mr Taylor, I review Dr Haydn-Smith's Psychiatric Report to the Mental Health Review Tribunal dated 29th November 2004, Ms Bea Gatrell's Social Circumstances Report dated 10th December 2004 [which incidentally supported everything said by the RMO] and Sarah Carrington's Nursing Report dated 10th December 2004. None of the these reports establishes that Mr Taylor has a mental illness within the meaning of the MHA 1983. Specifically, the Psychiatric and Social Circumstances Reports, which comprehensively review Mr Taylor's history do not present material that would support the view that Mr Taylor has a mental disorder classified under section 1(2) of the Mental Health Act 1983. This is not to say that Mr Taylor has never experienced symptoms of psychiatric illness -- he does have a long history of agoraphobia, has experienced obsessional symptoms, did have a drink-drive conviction (so alcohol could have been a problem in the past), and appears to have experienced a dissociative state around the time of his wife's death. He also told me that he took illicit drugs in the past. However, his neurotic and personality difficulties do not constitute a psychotic illness ['delusional disorder'] that Dr Hayden-Smith thinks that he suffers from, and do not amount to a mental disorder within the meaning of the Mental Health Act 1983.

    It is inappropriate to detain Mr Roger Taylor in hospital, and even more so to give him (antipsychotic) medication that he does not need. He is currently symptomless and does not pose a risk to himself or anyone else."

    I am bound to say that in my view, having regard to all the material that I have seen, that conclusion is simply wrong.

26. These proceedings were launched on 17th January and the injunction had been obtained. Consideration of permission had not been dealt with and on 9th March the solicitors representing the first defendant, the RMO, wrote to the Administrative Court. The relevant paragraph of the letter reads as follows:

    "The RMO has informed us that the claimant is now considered to be a suicide risk and he is in great distress. He spends most of his time writing, he is sleeping very little, and neglecting himself. Furthermore, the claimant sacked his solicitors just before the hearing on 4th March. The RMO believed that had the current injunction not prevented the administration of medication, this position would never have been reached and reinstating the medication without leaving the patient's condition untreated. I appreciate that this information should in other circumstances be presented to the court in the form of a medical report or statement in support of an application to set aside an injunction. However, we have been informed in the last few weeks that this case is top of the permission list and is waiting to be looked at by a judge. If a decision on permission is indeed going to be made before the end of the week, that may make an application to set aside an injunction unnecessary. If a decision is not extended soon, I would be grateful if you would respond by return so that I can inform my clients and apply to set aside the current injunction."

    In fact, the case was put before a judge and the next day, on 10th March, Hodge J discharged the injunction, stating:

    "Matters have moved on since this application was issued [He refers there to a decision of Silber J which was referred to in the acknowledgment of service and said that in the circumstances he need not regard the claim as arguable]. In more pragmatic cases I know . . . the claimant's condition may become too serious to retrieve [I should add that that was indeed what the MHRT had said]. The lifting of the injunction would enable the claimant to be given such treatment as may be advised."

    In fact, of course, Hodge J refused permission and so the injunction would automatically have been discharged but it was formally done, no doubt sensibly, in the refusal of permission. Accordingly, the judge did not specifically have to have regard to the issues which went to whether the injunction might be continued when or if permission was in due course granted.

27. Dr Azuonye produced a further report, having seen the claimant again on 15th March. He had seen the letter of 9th March, to which I have referred, and a further email to the Administrative Court in the same terms. He had also seen the order made by Hodge J. He stated, having spoken to Mr Taylor, that he had been engaged on activities in the ward, playing fool and acting with other patients. He said that he had problems with an noisy neighbour. He feared he would be in hospital for a very long time as he was in conflict with people more powerful than him who were in a position to pass on incorrect persuasive information about him to agencies such as the Mental Health Review Tribunal. He did not have any hallucinations, delusions, or any other phenomena of acute psychosis. There was no indication of the deterioration of his mental state and Dr Azuonye declared Mr Taylor as well as he had found him on two previous assessments of him in January and February of this year.

28. That paragraph contains, in my view, its own indication that all is not well. There is material there which shows that Mr Taylor was persisting in his delusional beliefs of a conspiracy theory against him. The absence of hallucinations themselves is in no way inconsistent with a finding of persistent delusional disorder. Indeed, their existence would have been contrary indications to that condition. He goes on in his opinion to say this:

    "There is no evidence that Mr Taylor is a suicide risk. He has not complained about . . . suicidal thoughts or feelings. I have not seen evidence on the basis of which Dr Haydn-Smith arrived at the view that he is a suicide risk. Had Mr Taylor presented as a suicide risk, there would have been an expectation that the clinical team would have had him at least on some level of nursing observation, say every 15 or 20 minutes."

    That paragraph is inaccurate. First of all, he had been on a level of nursing observation every 30 minutes at least and earlier, as I have already indicated, every 15 minutes. Furthermore, he had complained about suicidal thoughts or feelings but he said that he was not going to carry them out.

29. He then concluded that there was no evidence of self neglect. Again, that is not right because some of the nurses had noted that he was not looking after himself properly, and indeed that he smelled. There was perhaps an error about losing weight but that is singularly peripheral. Equally, it was plain that Mr Taylor did spend a lot of time writing but that was in the night which made it slightly more odd than if he had done it during normal waking hours. Dr Azuonye concludes:

    "My attitude in the matter of Mr Taylor is uncomplicated. If he is suffering from mental disorder for which he needs medicinal treatment then he should receive this treatment if necessary. But if he does not suffer from such an illness then the burden of medication . . . should not be imposed on him. It has always remained my professional opinion that Mr Roger Taylor does not suffer from a delusional disorder of the nature or degree that would make it necessary for him to be given psychotropic medication of this kind. I give my full support to the reinstatement or continuing or otherwise of the injunction to prevent the compulsory administration of psychotropic medication to Mr Taylor."

30. Dr Haydn-Smith has dealt with that report in some detail in his reply and he makes the point that I have already referred to that indeed there were indications of the possibility of suicide; that so far as the writing was concerned it was appropriate for him to rely on the nurses' evidence in that he stayed up most of the night and there were indeed nursing reports of self neglect regarding his personal hygiene, sleeping in his clothes and not changing them.

31. The major complaint against Dr Azuonye is that he appears to have taken what he was told by Mr Taylor at face value. He has not considered the history sufficiently and furthermore, and perhaps most importantly, he has at no stage had regard to the undoubted fact that the prior medication, when he first came to Ashen Hill before his conditional discharge in November 2003, did appear to have clearly alleviated his condition. Indeed, it was the improvement in his condition when he was on medication that led to the decision that he could safely be released on conditions, and it was the deterioration which equally and undoubtedly took place when he ceased to take his medication that led to the recall.

32. Dr Azuonye, having seen the answer, returned to the fray with a further report of 9th May. This was when it was thought that the court hearing was to be the following day on the 10th. Again, I do not regard it as necessary to go into it in depth. He makes this comment:

    "A deluded person is so convinced of the truth of his belief that very rarely would such a person wish to withhold the fact that he held such a belief. In addition, a person who holds delusions that are so pervasive as Dr Haydn-Smith would like us to think that Mr Taylor does, would not pick and choose who to trust and who to distrust. Dr Haydn-Smith is wrong in his opinion that Mr Taylor is 'guarded' and that he speaks to me only because he sees me as being 'on his side'."

    It seems to me that it must surely be, as a matter of common sense, self-evident that if the delusion is that the powers that be in the institution, including Dr Haydn-Smith, are conspiring to ensure that he is to be kept in that institution, then someone who offers the way out will indeed be someone who the patient can trust and will not, provided he continues to assist, be one who the patient believes to be against him. That was the position so far as Dr Azuonye was concerned. He goes back to recalling the nurses' reports. He makes further comments on the various matters which I have already covered, but he does say this:

    "Staff Nurse Carrington's perception of Mr Taylor's needs is more accurate than that of Dr Haydn-Smith:

    'If Roger is not discharged by the MHRT it is the view of the nursing team that he should be transferred to a specialist unit where he can work with a new clinical team and receive appropriate psychological treatment" (my italics).

    My professional opinion is that Mr Taylor, who had a history of conduct disorder in childhood and [previous] history of personality disorder in adulthood, suffers from a neurotic illness with obsessional personality traits and a tendency to depression, and would benefit from psychological treatment with, if assessed as potentially beneficial, antianxiety or antidepressive medication, all on an entirely voluntary basis. There is no argument whatsoever for antipsychotic medication."

    It is to be noted that there is a statement from Charge Nurse Carrington in which she says this:

    "I suggested that a new care team might be a help because the claimant would not feel the same animosity towards them. However, I accept that without treating his mental illness this animosity will be transferred and psychological intervention will not work. Further to the point that I have made . . . the claimant's mental illness has worsened as has his behaviour generally since my report in December 2004. Indeed, prior to the MHRT the claimant's condition worsened considerably and Dr Haydn-Smith's concerns are well-founded. Indeed, I assessed the patient as being moderate to high suicide risk in December and that position worsened with the approach of the MHRT. The claimant became very absorbed in the legal process, resulting in poor personal hygiene, staying up late every night and ignoring most attempts to speak to him."

    She goes on to deal with the question of weight and the issue whether or not he lost weight in hospital is clearly not material to the concerns that they had about him. She supported, as did the care team, the need for the medication. Accordingly, Dr Azuonye's attempt to rely upon her views was clearly misconceived.

33. He then goes on to attack Dr Gallimore's views. Unfortunately, his comments are not helped by silly statements such as a comment that Dr Gallimore took at face value Dr Haydn-Smith's statement that he had index offences as a result of his mental disorder although there was one index offence. Actually there were two although they stem from the same incident. As I say, that was a silly sort of point and does not induce confidence in Dr Azuonye. His approach has been far too confrontational and unfortunately he has simply failed to give a balanced view based on all the material that existed; that is to say medical notes, history nursing notes and so on.

34. Dr Gallimore saw the claimant and social worker and the nurse, as he was bound to do in accordance with the provisions of section 58, and he has produced a very detailed, very fully reasoned, report. He noted that Mr Taylor had said that he did not consider that he required medication, that he did not suffer from mental illness and the medication produced short-term memory loss. He went on:

    "He believed that there was a conspiracy against him to pervert the course of justice by illegally detaining and treating him in hospital against his will. Those involved in the conspiracy included his RMO, forensic social worker, three named nurses on the unit and a SOAD who had assessed him previously. Each of these people had deliberately fabricated damaging evidence against him. He considered and expected that each of these people would be arrested and jailed, with particularly long sentences for his RMO and social worker. 'I've been smeared up'."

    He went on that he believed because he had obtained Legal Aid for this claim, this meant that he was not paranoid and did not suffer from mental illness and that his success in the High Court meant that he was being wrongly detained. He threatened Dr Gallimore that he would put him behind bars if, as a result of Dr Gallimore's certificate, he was put on medication. That is hardly, on the face of it, a balanced approach to matters.

35. I should have added that Dr Azuonye produced some letters from the former solicitors and from the legal unit which have indicated that there was believed to be substance in some of the complaints about the MP. Those seem to me to be unhelpful because there is no knowing what those letters were referring to. That again is indicative of the selective approach Dr Azuonye was adopting.

36. All those who spoke to Dr Gallimore were satisfied that the claimant was suffering from a mental disorder and that the medication was necessary. Dr Gallimore's criticism of Dr Azuonye is in these terms:

    "Dr Obialo-Azuonye did not include in his reports a detailed background history, previous psychiatric history or forensic history. He provided no analysis of the psychiatric evidence that led to the Court placing this patient on a hospital order with the Home Office restriction or whether he was of the view that serious mental illness was never present at that time or that it had remitted. In determining the level of risk, he did not appear to take into account the patient's convictions for rape, manslaughter or the index offences of common assault and affray nor any implications related to personality disorder."

    I entirely agree with that criticism. As I have said, I have no hesitation whatever in rejecting Dr Azuonye's reports. I have no doubt that Mr Taylor is suffering from mental illness and that particularly having regard to the previous success of the medication, a matter which was ignored by Dr Azuonye until he was forced to shift his ground and to accept (albeit not to the extent to justify compulsory admission) that he had previously exhibited a serious disorder of personality which had not been evident for many years. This flies in the face of the observations of those professionally concerned with him. In all those circumstances, as I say, the suggestion that he is not suffering from mental illness at all, let alone mental disorder, is one which is, in my judgment, wholly unacceptable.

37. That leads on to the other issue which is of relevance, namely capacity. Dr Gallimore believes that he has capacity in the sense that he is able to understand the nature and purpose and likely effects of the medication and treatment plan, even though he does not have insight into his mental illness. He can retain, says Dr Gallimore information about medication. His view is that because of the mental illness the claimant is not capable of understanding the nature and purpose and likely effects of the medication and does not have capacity.

38. The question of capacity has been exhaustively considered recently by Silber J in another case of B v Secretary of State for Health and Others [2005] EWHC 86 Admin. In paragraph 87 of his judgment, Silber J says this:

    "The test for determining capacity in section 58 is whether the patient concerned is capable of understanding the nature, purpose and likely effects of the treatment, not whether the person actually understands the nature, purpose and likely effects of the treatment . . . This might mean that a patient might be regarded as having capacity even if he does not actually understand the nature, purpose and likely effects of the treatment."

    At paragraph 89 he continues:

    "Whilst a patient could be regarded as having capacity to decide if he wishes to have treatment even though, as Lord Easson pointed out in the Scottish case, he lacked insight or understanding of his problems which insight might have to be addressed by medication. He could similarly be considered to have capacity not because he was shown to have capacity but the evidence of, for example, his confused mind . . . .

    (90) All these facts will show why the threshold is low and explain why the patient who reaches the threshold of capacity should not . . . be regarded as being able to make a balanced and rational decision which should not be overridden by the . . . Mr Bowen did not persuade me that the Lady Justice erred when she referred to the low threshold for capacity. Indeed, it is this low threshold which explains why patients with capacity are not to be regarded as being . . . in the sense that there would be a reduced number of cases in which the views of the patient would be taken into account. The present low threshold of capacity . . . also means that the case for non-consensual treatment in those with capacity has increased."

39. In this case the claimant believes that he is not mentally ill (a belief which incidentally and unfortunately has been supported by the report of Dr Azuonye) and so he does not need medication. That is irrational. The failure to accept, based upon an irrational objection, can mean that consent can be overridden. Whether that is to be analysed as a lack of capacity or a good reason to override capacity seems to me to be an academic argument. In either case, it is appropriate, because of the irrationality of the objection, to decide that, notwithstanding the absence of consent, the treatment ought to be administered. As I understood it, Miss Burnham accepted that that was indeed the position, and so the question as to whether there was capacity or not is not one that it was really necessary to answer directly.

40. In all those circumstances and for the reasons that I have indicated, this claim must be dismissed.

41. I mentioned the question of the likely further orders as far as costs were concerned. I think it was accepted that costs would follow the event if the first defendant were to make an application. If you were to make an application then subject to the usual order -- I mean frankly it is academic.

42. MISS GREANEY: Yes. That is the position. The first defendant does make an application for costs subject to the usual order as the claimant is publicly funded.

43. MR JUSTICE COLLINS: Yes. Of course, I make the order for a detailed assessment. I do not know whether you were asked, I have had no message from anyone else as to whether they wanted to consider any question of leave to appeal?

44. MISS GREANEY: Yes. The claimant would ask for a date by which they can apply for leave to appeal. I know they are thinking into next term.

45. MR JUSTICE COLLINS: How long do you want? You will need to consider the transcript. You have obviously taken a note.

46. INSTRUCTING SOLICITOR: A week after the transcript.

47. MR JUSTICE COLLINS: Shall we say seven days after you get a copy of the transcript. I do not guarantee you will get leave to appeal but it will be open to your side to make application. I suggest the sensible thing would be to make it in writing. The other side can respond, both of them if they wish, again in writing, and I will consider it on the papers. I think that is probably the sensible way. It obviously has to be done quickly. I will have the transcript for correction by next Tuesday so you should have it by the next day or the day after. Effectively, you will have probably until just over a fortnight.

48. INSTRUCTING SOLICITOR: I am grateful, my Lord.