England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 January 2005

Mr Justice Silber:

I Introduction

1. In the present proceedings, the claimant, who is a patient, initially sought to challenge decisions that he should receive certain medical treatment against his will. Shortly before this application was due to be heard, the first defendant, who is the claimant's responsible medical officer ("RMO"), indicated that he did not at that time propose to treat the claimant with this treatment without his consent. Thus, by consent, these main claims have now been dismissed and it leaves outstanding one claim, to which I will refer in this judgment as "the third claim" and which is the subject of this judgment.

2. The third claim is made against the Secretary of State for Health ("the Secretary of State") asserting that section 58(3)(b) of the Mental Health Act 1983 ("the 1983 Act") when construed with the benefit of section 3 of the Human Rights Act 1998 ("HRA") authorises the compulsory treatment of a patient who has capacity to refuse to consent only where it is shown that (a) such treatment is necessary for the protection of the public from serious harm or (b) without such treatment serious harm is likely to result to his health, alternatively is incompatible with the requirements of Article 3 and/or Article 8 and/or Article 14 of the European Convention on Human Rights ("the ECHR").

3. This application now raises two issues, the first of which is whether in the unusual facts of this case, the claimant can pursue the third claim, even though the Secretary of State contends that it is academic. The second issue which only arises if the claimant can pursue the third claim is whether the claimant can succeed in obtaining relief in respect of it.

4. It is common ground between the parties that the third claim is only of academic interest in the sense that the claimant cannot stand to benefit immediately from any decision to be made on this claim. Mr. Paul Bowen for the claimant contends first that the third claim arises in circumstances in which such an academic claim should be entertained by the court and second, that in any event the claimant should succeed in the third claim on its merits.

5. Mr. Jonathan Swift for the Secretary of State submits first, that this third claim is not only academic but that it does not fall within any of the accepted categories for consideration by a court of an academic claim and second, that in any event, it is misconceived as a matter of law.

6. This is a rolled-up hearing in which I am dealing with both the permission and the substantive applications on the third claim. I heard submissions on both applications together so that I could determine whether permission should be granted and if so, whether substantive relief should also be granted. It seems that permission should be granted and I will now proceed to consider the substantive application.

7. In this judgment, I will comment on the matters raised in the following order:-

   (i) the background (paragraphs 8 – 18)

   (ii) an overview of the dispute (paragraphs 19 – 38)

   (iii) the Academic Point issue (paragraphs 39 – 71)

   (iv) the Article 3 issue (paragraphs 72 – 112)

   (v) the Article 8 issue (paragraphs 113 – 147)

   (vi) the International Consensus issue (paragraphs 148 – 189)

   (vii) the Article 14 issue (paragraphs 190 – 217).

   II The Background

8. The claimant is a patient at Broadmoor Hospital, which is a hospital providing high security psychiatric services within the meaning of section 4 of the National Health Service Act 1977. He is detained under sections 37 and 41 of the 1983 Act following his conviction for rape on 13 February 1995. The dispute, which led to the commencement of this application, concerns the wish of the first defendant, who is, as I have explained, the RMO for the claimant at Broadmoor Hospital to administer anti-psychotic medication to the claimant, even though he does not consent to its administration.

9. There is some treatment which can be given to a patient which does not require his consent as section 63 of the 1983 Act provides that: -

   "The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 57 or 58 above.."

10. The claimant, who has capacity to consent, opposed the proposed treatment, but as it was for the administration of medication more than three months after the claimant was first medicated following detention, the RMO had to rely on the provisions of section 58 of the 1983 Act (see section 58(1)(b)). Subsections (3) and (4) of section 58 of the 1983 Act are central to the claim against the Secretary of State because they set out the conditions, which have to be satisfied before treatment can be imposed on any patient, as well as setting out the need for a certificate of the Second Opinion Appointed Doctor ("SOAD"). Those provisions provide that: -

    "(3) Subject to section 62 below" – [which makes provision for urgent treatment and which is not relevant to this case] – "a patient shall not be given any form of treatment to which this section applies unless –

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

11. The SOAD is the person referred to in section 58(3)(b) of the 1983 Act. In this case, the RMO sought a second opinion and so the second defendant was appointed as the SOAD, who duly issued the requisite certificate on 15 July 2004, certifying that the treatment in question should be given to the claimant under the provisions of section 58(3) of the 1983 Act. It is the issue of that certificate, which has led to the present proceedings being instituted.

12. On 19 July 2004, the claimant obtained an interim injunction from Wakerley J restraining the RMO from imposing treatment upon the claimant without his consent pending an inter partes hearing which was fixed for 21 July 2004. On the following day, the claimant's solicitors issued the claim for judicial review in which first, it challenged the decisions of the first defendant to compulsorily medicate the first defendant with anti-psychotic medication. Second, it sought to quash the decision contained in the SOAD certificate that anti-psychotic medication should be given to the claimant and third, the claim was made against the Secretary of State to which I referred in paragraph 1 above as the third claim and which is the subject of the present judgment. As I have explained, the first and second claims have now been dismissed by consent and it is only the third claim with which this judgment is concerned.

13. At the inter partes hearing held on 30 July 2004, Harrison J continued the injunction granted by Wakerley J, subject to an exception which is not relevant on this application. He also ordered the matter to be heard as a matter of expedition as a rolled-up permission and substantive hearing and at which the relevant doctors were to attend for cross-examination at the hearing; this hearing was subsequently fixed to start on 6 October 2004.

14. On 1 October 2004, the solicitors for the RMO, the first defendant, made an application for the hearing of the claimant's application to be adjourned on the basis that the SOAD's certificate was limited in time to a period of three months from 15 July 2004 with the result that the RMO's treatment plan to administer medication without consent could only lawfully be implemented within that time period.

15. In support of the application for the adjournment, the first defendant's solicitors explained that the first defendant accepted that with the hearing date so close to the date of expiry of the certificate, it would not be appropriate or indeed possible properly to implement the treatment plan within that time period irrespective of whether or not the claimant's challenge failed. In other words, the claimant's challenge to the certificate had, in the words of the first defendant's solicitors, "been overtaken by the imminent expiry of the certificate". It was also stated that "having considered the matter carefully, the RMO does not propose at this time to treat the claimant with medication without his consent".

16. The matter came before me on Monday, 4 October 2004 when I was due to hear various other applications concerning the conduct of the hearing of this claim. On that occasion, all parties sensibly agreed that the main claim of the challenge first, to the SOAD's certificate and second, to the commencement of treatment pursuant to it had become academic and for that reason, the main claim against the first and second defendants should not be pursued. It was agreed that the injunction granted originally granted by Wakerley J on 19 July 2004 should continue and that subject to that and the matters of costs with which I am not now concerned, the claim was to be dismissed against the first and second defendants.

17. This left outstanding the third claim against the Secretary of State to which I referred in paragraph 1 above and which the claimant still wishes to pursue against the Secretary of State, even though the RMO had indicated that he did not propose at that time to treat the claimant with the proposed medication without his consent. In any event, the RMO is subject to the injunction to which I referred in paragraphs 12 and 13 above not to do so, although he can always apply for a variation of that order.

18. The thrust of Mr. Bowen's complaint is that, in the words of his skeleton argument: -

    "In the case of a competent patient, neither Article 8 nor Article 3 provide an absolute bar to the compulsory treatment of a non-consenting, competent patient .. However, as the law currently stands, the patient's right of autonomy can be overridden on the basis only that the doctor considers it to be in his 'best interest'. The fact that the patient has capacity is a relevant consideration but that is all. It is this aspect of the law as it currently stands that the claimant contends is wrong".

    III An Overview of the Dispute.

    (i) A Summary of the Rival Contentions

19. Mr. Bowen submits that the basis of the third claim is that when a capable patient refuses to consent to treatment, the court should not permit compulsory treatment of him or her unless the State in the form of the hospital authority has established convincingly both (i) that the treatment is medically necessary ("the medical necessity treatment requirement") and (ii) that the treatment is necessary either to prevent the patient causing harm to others or to protect the patient from serious harm ("the threshold requirement"). In other words, the claimant's case is that the right of autonomy of a capable patient means that the medical necessity requirement is not enough in itself to justify the compulsory treatment of a competent patient who refuses to consent to its use on him. Thus, according to Mr. Bowen, the views of the competent non-consenting patient must invariably override the wishes of the hospital authority where it cannot convincingly show that both the threshold and the medical necessity requirements have been satisfied.

20. He accepts that under English law, a capable patient, who refuses to agree to treatment, can be compelled to be treated if the SOAD issues a certificate that in the words of section 58(3) of the 1983 Act "having regard to the likelihood of [the treatment] alleviating or preventing a deterioration of the patient's condition, the treatment should be given". Mr. Bowen relies on four matters to support his argument that, save where the proposed treatment is necessary to protect other persons from harm or that without such treatment, serious harm is likely to result to the patient's health, a patient with capacity should be entitled to refuse treatment to which he does not consent. These four matters are first Article 3 of the ECHR, second Article 8 of the ECHR, third an international consensus and finally Article 14 of the ECHR.

21. Mr. Bowen further contends that if his approach is correct, it will be necessary for this court to determine whether section 58(3)(b) of the 1983 Act can be "read and given effect to" by invoking section 3 of the HRA so as to read in the threshold and medical necessity requirement by applying the approach adopted by the House of Lords in Ghaidan v. Godin-Mendosa [2004] 2 AC 557. Mr. Bowen further submits if section 58(3)(b) of the 1983 Act cannot be read in this way, it then becomes necessary to consider whether a declaration of incompatibility can be made under section 4 of the HRA.

22. Mr. Swift disagrees and contends that the law is clear and consistent with the ECHR in that it requires the court to consider as a very important factor the refusal of a capable patient to agree to treatment but this refusal can be overridden because of the medical necessity, even though there is no risk of danger to the patient or others. He relies on the decisions of the Court of Appeal in R (Wilkinson) v. Broadmoor Special Health Authority and Others [2002] 1 WLR 419 and of the Administrative Court in R (PS) v. Dr. G and Dr. W [2003] EWHC 2335 (Admin), to which I will hereinafter respectively refer as "Wilkinson" and "PS". It is now appropriate to explain the present approach of English law to a patient with capacity who refuses to agree to treatment.

    (ii) The Present Approach of English law to the Patient with Capacity, who Refuses to Consent to Treatment

23. As I have explained, the critical provision for the purpose of this application is Section 58 of the 1983 Act, which I have already quoted in paragraph 9 above and which in accordance with Section 3 of the HRA, "so far as is possible to do so…. must be read and given effect in a way which is compatible with the Convention Rights", and, in particular, those set out in Articles 3 and 8 of the ECHR. It is important to bear in mind that: -

    (i) although section 58 of the 1983 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 Wilkinson [2002] 1 WLR 419, 444 [71].

    (ii) those two circumstances specified in section 58(3) of the 1983 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 [60]). In that capacity, the SOAD has to form his own independent opinion on the existence of the statutory criteria (Wilkinson [71]).

    (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 [83]). Section 3 of the HRA has the effect that section 58 must therefore be read so as to ensure compliance with Article 3 and 8.

24. There are judicial comments that refusal to consent to treatment by a capable patient does not preclude the court permitting the treatment to be administered, even if such treatment is not needed for the protection of the patient or others. First and very significantly in Wilkinson, Hale LJ (as she then was) explained that: -

    "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 non-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 accepted norm that detained patients who fulfil the In Re MB [1997] 2 FLR 426 criteria for capacity can only be treated against their will for the protection of others or for their own safety" ([80] page 446).

25. The last sentence supports the view that the threshold test does not have to be met before a capable but non-consenting patient can be treated against his or her will but, as I will explain, Mr. Bowen contends that this statement should not represent the law in respect of non-consenting patients for whom treatment is not needed for their own safety or for the protection of others. Although the certificate in Wilkinson was issued before the HRA came into effect, the argument in the Court of Appeal took place after it had come into force and the judgments clearly took into account the HRA and the ECHR.

26. In Wilkinson, Simon Brown LJ (as he then was) said, with italicisation added, that: -

    "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" ([30] page 433D).

27. The learned Lord Justice was not saying there that a capacitated refusal "overrode" all other considerations, but he was stating that it would be difficult on the facts of the Wilkinson case to authorise it. In other words, this was a case-sensitive comment and it is very significant that Simon Brown LJ started his comments by using the words "this claimant" rather than the words "any claimant". In Wilkinson, there was a risk of sudden death if the treatment was administered because of that patient's health problems. As I understand his submissions, Mr. Bowen understandably does not rely on Simon Brown LJ's comment.

28. Subsequently, in R (N) v. M and others [2003] 1 WLR 562 ("N"), the Court of Appeal had to consider whether a challenge to decisions of a RMO and the SOAD to permit treatment against the views of a patient could be successful. In that case, there was a finding at first instance, which was not challenged in the Court of Appeal that the claimant did not have capacity to give her consent [11]. Therefore, the Court of Appeal's reasoning in that case is not of assistance in the present case in which the claimant did have capacity and the issue is the importance to be attached to a capacitated patient's refusal to consent.

29. In PS, the claimant contended that the views of a capable patient, who refused to agree to treatment, would be an overriding factor. In giving judgment, I said that: -

    ".. the fact that the claimant has capacity to consent to treatment but refuses to consent is a very important factor. There is, however, no basis whether derived from statute or from decided cases for concluding as [counsel for the claimant] contends to be the case, that such objections of the claimant automatically and inevitably override all other issues except where the interests of other people would be affected if the medication was not administered" [123].

30. Thus, where a patient with capacity refuses to consent to treatment, this refusal can be overridden in appropriate circumstances. Indeed, Mr. Bowen states as he explained in his skeleton argument, that: -

    "As the law currently stands, the patient's right of autonomy can be overridden on the basis only that the doctor considers it to be in 'his best interests'. The fact that the patient has capacity is a relevant consideration but that is all".

31. The present state of our law is that the views of the patient with capacity, who refuses treatment is "a very important factor" and it would need an especially powerful case from the RMO to override it. As I have already explained, Mr. Bowen submits that the law has to be reconsidered in the light of Articles 3, 8 and 14 of the ECHR as well as the growing international consensus. He points out that the submission that he is now making was not advanced in the PS case so that the PS case is not binding or authoritive against the position that he is putting forward in the present case. Alternatively, he says that the decision in PS should not be followed because it fulfils the test of being "clearly wrong" so that it should not be followed (see R v. Manchester Coroner ex p Tal [1985] QB 67). I propose to reconsider my comments in the light of the helpful and thoughtful arguments adduced by counsel in the present case, which were more far-reaching than those advanced in PS.

    IV The Issues

32. The five issues which are raised on this application are: -

    (a) whether the issues in the third claim are academic with the result that the claimant should not be entitled to pursue them ("The Academic Point Issue");

    (b) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the Article 3 point ("The Article 3 Issue");

    (c) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the Article 8 point ("The Article 8 Issue");

    (d) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the basis of an international consensus supporting the claimant's case ("The International Consensus Issue")

    (e) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the Article 14 point ("The Article 14 Issue").

33. Before I turn to the issues, I should add that I was left in no doubt at the end of the hearing that the parties did not require my decision with any degree of urgency because the SOAD's certificate under challenge would shortly cease to have any effective force. Thus, if the RMO wished subsequently to administer the treatment, there would have to be a new SOAD certificate and any challenge to it would depend on fresh and updated evidence. Significantly, the RMO had also indicated that he had no current intention of treating the claimant without his consent and he was subject to an injunction not to do so.

34. Thus, I gave priority to writing other judgments until early December 2004, when the claimant's solicitor wrote to state my judgment would be "an important factor" at a forthcoming Mental Health Review Tribunal hearing to be held on 18 January 2005 for reasons, which I am bound to say that I had difficulty in comprehending. This was an important assertion in the light of the controversy on whether this claim was academic and I could not complete my judgment until this matter had been considered further. Thus it seemed desirable to hold a further hearing in December but Mr. Bowen was abroad and I only received his comments earlier this month.

35. Mr. Bowen explained on his return that my decision "would not directly affect the Tribunal's decision". In order to ensure that the tribunal did not have to speculate about my decision, I informed the parties of my decision to dismiss the claim on 12 January 2005 and I formally announced this in court on 17 January 2005. Another reason why I could not finalise my judgment earlier was that I had difficulties in ascertaining the facts against which I should consider this claim.

36. Unlike many of the cases in which the courts have been prepared to consider an academic issue, there is a significant controversy on the precise material facts, which I should assume to be correct for the purpose of resolving the third issue. This has been a source of difficulties for me. During the hearing in October 2004, I asked counsel to agree the assumptions on which I should determine the claim if I held that it was not an academic claim. Difficulties arose in reaching an agreement and there followed an exchange of e-mails which led to some measure of agreement. When I came to writing the judgment, I realized that agreement still had not been reached on some significant matters and so I circulated my understanding of what the assumptions should be. Mr. Swift gave me his comments in December 2004 but because of his absence abroad, Mr. Bowen was only able to respond earlier this month.

37. I set out in Appendix I to this judgment a copy of the document prepared by the claimant setting out the assumptions on the question of whether the claimant contends that the third issue should be resolved if, but only if, I reject Mr. Swift's submission that this court should not consider the third issue because it is academic. I have also noted the Secretary of State's reservations to these assumptions. I will return to consider the difficulties caused by the lack of agreement on the assumptions on which I should consider the claim when I examine the academic point issue to which I will shortly turn. At this stage I stress that the difficulties in determining the basis on which I should consider the claim are very unfortunate and they have led to a great deal of the time of counsel and my time being spent in ascertaining those assumptions.

38. It also became clear to me during the course of the hearing and other similar cases that in this case and in other cases in which a SOAD's certificate has been obtained that difficulties arise because the certificate only lasts for three months, but under the present arrangements, the challenge in the courts to the certificate is invariably not completed in time for the treatment to be administered within the three month period. I have received helpful comments from solicitors from the parties, the lead judge in the Administrative Court and the Head of the Administrative Court Office, and I make suggestions on how to resolve this problem in Appendix II to this judgment.

    V The Academic Point Issue

    (i) The Rival Submissions

39. The Secretary of State contends that the court should not consider the third claim because it is academic in the sense that it will have no impact on the claimant because the SOAD certificate under challenge has expired. As I have explained, no attempt is currently being made to administer any treatment to the claimant against his will and no request has been made to the claimant to agree to any treatment to which he has objected. Thus, section 58(3)(b) of the 1983 Act is not being invoked. The claimant, on the other hand, contends that the court should entertain the present dispute, even though there is no threat at present that any treatment will be administered to the claimant against his wishes.

40. I had understood that during his detailed oral submissions, Mr. Bowen accepted that the starting point for considering whether the court should permit an academic application in a public law case to be pursued is the statement of Lord Slynn of Hadley in R v. Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 in a speech with which other members of the Appellate Committee agreed when he explained that: -

    ".. I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly effect the rights and obligations of a party's inter se .. the discretion to hear disputes, even in the area of public law, must however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists, or are anticipated so that the issue will most likely need to be resolved in the near future" (at pages 456G-457B).

41. When the draft of this judgment was circulated, Mr. Bowen stated that he did not accept that Salem was the starting point. Nevertheless, I consider that it is the starting point expresses as it does the correct approach to claims in which an academic point is raised. Mr. Bowen accepts correctly in my view that this statement shows that there is a presumption that the courts will not hear academic applications in public law cases, unless there is a good reason in the public interest to hear the application. He nevertheless contends that where declarations of incompatibility are sought, the presumption should operate the other way so that once the incompatibility is identified, the declaration should be refused only if there is a good reason in the public interest to do so. He was unable to point to any authority to support that contention, which assumes that the court should first ascertain if there is incompatibility and then determine if there is a public interest in pursuing it. Mr. Bowen also contended that the claimant was a victim for the purposes of section 7 of the HRA and Article 34 of the ECHR and has standing for the purposes of section 31(2) of the Supreme Court Act and so he should be permitted to pursue the third claim.

    (ii) The Correct Approach

42. I am unable to agree with Mr. Bowen's contention that where declarations of incompatibility are sought or incompatibility is identified, a different principle applies from that set out in Salem. There is no authority or basis for contending that academic claims for declarations of incompatibility should have to be treated differently in this respect than other claims. It must not be forgotten that Lord Rodger of Earlsferry explained recently in R (on the application of Rusbridger) v. Attorney General [2004] 1 AC 357 at 377 [58], that "it is not the function of the courts to keep the statute book up to date". It follows that the courts should not normally regard it as their duty to grant relief in the absence of disputes affecting the parties before them. In the same case, Lord Hutton stated that:-

    "it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them" (page 371E [35]).

43. Lord Hutton expressly adopted at page 371 [35] the statement of Lord Justice-Clerk (Thomson) in Macnaughton v. Macnaughton's Trustees [1953] SC 387, 392: -

    "Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case".

44. Lord Scott of Foscote also pointed out in Rusbridger that: -

    "the valuable time for the courts should be spent on real issues" (page 373E [45]).

45. It is significant that those comments in Rusbridger were made in a case in which the claimant sought first, a declaration on how section 3 of the Treason Felony Act 1848 should be construed in the light of section 3 of the HRA and second, as an alternative, a declaration of incompatibility. Similar relief is being claimed in the present case. In Rusbridger, Lord Steyn said that any suggestion that section 3 "could survive scrutiny under the [HRA] is unreal" (page 369 [28]). The courts rejected the claims in that case on the grounds that no purpose would be served by requiring the courts to accommodate unnecessary litigation. Nothing was said in that case to support Mr. Bowen's contention that the presumptions in favour of not allowing public law claims to be pursued should be reversed where declarations of incompatibility are sought or incompatibility is identified, even though Salem was not referred to.

46. The comments in the speeches in Rusbridger, which I have quoted, suggest a much greater reluctance to consider academic points than was indicated in Salem. In Rusbridger, the Appellate Committee was concerned with the issue of when it would be proper for a member of the public to bring proceedings against the Crown for a declaration that certain proposed conduct is lawful. I am prepared to assume that the Salem principles still apply bearing in mind that a claim that a statutory provision is incompatible with the ECHR might in the appropriate cases mean in Lord Slynn's words in Salem mean that "there is a good reason in the public interest" for considering an academic issue.

47. It therefore becomes necessary to consider how the Salem principles affect the present application. Mr. Bowen points out correctly that there have been a number of cases in which the courts have been content to hear cases where the dispute would be academic. Thus, for example in R (on the application of C) v. London South and West Region Mental Health Review Tribunal [2002] 1 WLR 176, the Court of Appeal considered that it was appropriate to consider whether Article 5 of the ECHR had been infringed when there was an invariable eight week period between first, the time when the application was made by a patient detained under the 1983 Act for his or her discharge and second, the hearing of his discharge application. Clearly, that was a case where, in the words of Lord Slynn in Salem "a large number of similar cases exist or are anticipated". Similar reasoning explains why the Court of Appeal heard an appeal, which had become academic, concerning the continuing detention of a mental patient where his release had been ordered on conditions, with which the health authority was later unable to comply (R (on the application of K) v. Camden and Islington Health Authority [2002] QB 198). More recently the Court of Appeal in R (on the application of MH) v. Secretary of State for the Department of Health ([2004] EWCA Civ 1690) considered it appropriate to hear an academic issue concerning the compatibility of Article 5 of the ECHR with various arrangements made by the 1983 Act but in that case, there was no dispute concerning the factual basis on which the claim should be considered.

48. Incidentally, it is not apparent that in any of these cases or in any of the other cases relied on by Mr. Bowen where academic issues were resolved by the courts that it was contended or determined that the Salem principles needed any modification or, perhaps most significantly, that there was any serious dispute between the parties about whether the particular academic case should be heard concerning the factual basis on which the case should be considered.

    (iii) Discussion

49. In my view, there are five factors, which individually or cumulatively indicate that the third claim should not be heard and I mention them in no particular order of importance.

50. First, there is a critically important factual dispute between the claimant and his RMO and the SOAD, which shows that the third claim is best considered in a case in which the facts are not in dispute. It seems that in many if not all the cases in which the courts have decided to hear academic claims, there has been neither a factual dispute between the parties nor any disputed facts, which would require oral evidence. A decision in the claimant's favour on the third claim is dependent on the claimant showing that there is no risk of the claimant causing harm to himself or others, which is what Mr. Bowen calls "the threshold requirement". In this case, there is a serious dispute on this crucial issue, although it is true that the claimant contends the proposed treatment is not necessary either to prevent the patient causing harm to others or to protect the patient from serious harm so that in other words the threshold requirement has not been satisfied.

51. The RMO and the SOAD disagree. In his witness statement, the RMO states of the claimant that "sadly, the continuing deterioration in his condition has left the clinical team with no choice but to override his refusal in the interests of his health, safety and protection of others" (paragraph 19). Later he says, "it has … now become imperative for the sake of [the claimant's] own health and safety and for other's protection, to give him the prescribed medication" (paragraph 22).

52. Simon Brown LJ said in Wilkinson [2002] WLR 419, 422 "courts, after all, are very likely to pay very particular regard to the views held by those specifically charged with the patient's care and well-being" [31]. So the RMO's view in this case might well stand a good chance of being accepted, especially as in this case the SOAD takes a similar view because he said in paragraph 23 of his witness statement that: -

    "Whilst [the claimant] is not actively ill he is beginning to deteriorate and it was considered appropriate to institute treatment to prevent any further deterioration. This would be both in his interests and with a view to protection of himself and others. It would be likely, should he further deteriorate, that his judgement would become seriously impaired and he would quite likely be involved in altercations with other residents, which may cause physical harm to him and/or others. The benefits of treatment to him, therefore, would be to hopefully return him to some semblance of normality".

53. The SOAD summarised his position in paragraph 29 of his witness statement when he said of the claimant: -

    "He is beginning to show signs of decompensation and it is my opinion that [the claimant] deserves the opportunity of being treated with medication to prevent any worsening of his illness, to prevent any further psychiatric damage or psychological damage to himself and in the interests of his own health and welfare, as well as that of other people. It was in the light of this that I gave a considered independent opinion that it would be appropriate to offer him treatment".

54. It seems clear that there is a serious factual dispute on this fundamental issue in this case and in my view, it would be wrong to resolve the third issue, which is the only issue left for determination in this case on a factual basis, which is so strongly disputed. It is true that Assumption 7 provides that:-

    "The RMO and SOAD are not satisfied that … (ii) the proposed treatment is necessary to protect other persons from harm or that without such treatment, serious harm is likely to result to the claimant's health".

55. The Secretary of State only agreed to that assumption on the basis that "this is an assumption and not any form of concession as to the actual position that applies to the claimant". It follows that any decision on the third issue on this assumption in favour of the claimant would not be determinative of the issues between the parties, as the RMO, the SOAD and the Secretary of State would contend that it was reached on a false factual basis.

56. Second, the third claim is not a case where in Lord Slynn's words in Salem a "large number of similar cases exists or are anticipated so that the issue [in the third claim] will need to be resolved in the near future"; that means that this case does not fall within one of the examples given in Salem in which a court should hear an academic case. According to my information obtained from the Administrative Court Office, this is only the fourth case in the period of more than four years since the HRA came into force in October 2000 in which there has been a challenge to a SOAD's certificate.

57. In the three previous cases, the issue raised in the third claim did not arise. In R (on the application of Wooder) v. Feggetter [2003] QB 219, the Court of Appeal had to consider the adequacy of the reasons given by the SOAD. In R (N) v. M and Others [2003] 1 WLR 562 (which I will hereafter refer to as "N"), it was found at first instance that the claimant did not have capacity to give her consent and this was not challenged on appeal (page 567 [11]) while in PS there were findings that the claimant in that case could not function properly when he was under stress and second, more significantly that he then behaved bizarrely and unpredictably thereby making him a potentially dangerous individual to himself and to others and particularly to those known to him [125].

58. Richard Jones explains in the Mental Health Manual ((2004) – 9^th Edition) ("Jones") that according to paragraph 10.34 of the Mental Health Act Commission's Tenth Biennial Report 2001-2003, there were 9,400 requests for second opinions received by the Commission from 2002 to 2003, but only three per cent of these requests led to "a significant change in the treatment of the patient" (MHAC Annual Report 2002-2003 (page 3). This limited number of occasions on which the SOAD's certificates have been challenged suggests that the patient has not had capacity in the vast majority of cases in which the SOAD's certificate has been obtained.

59. These facts indicate that unlike the position in the cases of C, K and MH to which I have referred in paragraph 47 above and in which the decisions of the court would be of great value in many actual or anticipated cases, there is perhaps surprisingly no realistic likelihood of a large number of similar cases or indeed any similar case existing or being anticipated in which the third issue would need to be resolved. I repeat what I explained in paragraphs 50 to 53 above that there is a major dispute between the parties about the correctness of Assumption 7.

60. I reach that decision regardless of the fact that the Government has now introduced a Mental Health Bill, which I am told by Mr. Bowen includes different provisions for dealing with the authorisation of medical treatment to patients. If anything, that factor militates against the notion that it is important to have a test case on the third issue claim.

61. Third, there might soon be a ruling from the Strasbourg Court on the issues raised in the third claim and such a decision would obviously be a much more authoritative decision than any order which I might make. Mr. Bowen told me that in Wilkinson v. United Kingdom (Application no. 14659/02) which is the follow-up to the Wilkinson case to which I referred in paragraph 22 above, the United Kingdom Government has been asked by the Strasbourg Court for its observations on exactly the same issues as are contained in the third claim and a response was duly lodged in December 2003. It is not certain that the Strasbourg Court will pursue this point or that if it does, that a judgment on it will be given speedily, but there must be some prospect that the Strasbourg Court will resolve this issue. That factor suggests that the English court does not now need to resolve this matter.

62. A. Fourth, a decision on the third issue in the present proceedings would not be of any immediate or likely value to the claimant for two reasons. First, there is no imminent risk of infringement of any of the rights of the claimant that justify a determination of the issue in the present case. The RMO has, as I have explained, indicated that he does not presently intend to administer any treatment to the claimant without his consent. It is significant that the RMO did not seek and has not sought to obtain a further certificate from the SOAD since the last certificate expired more than three months ago so as to permit any further treatment to which the claimant does not agree. As I will explain in the postscript to this judgment, I received an e-mail from the claimant's counsel about a week after I circulated a draft of this judgment in which he enclosed a letter from the Chief Executive of the NHS Trust, which manages the hospital in which the claimants is being treated. According to the claimant's counsel, this letter "supports the claimant's position that he is at risk of being subjected to future compulsory treatment and that this claim is not 'academic' for this reason". For the reasons set out in the postscript to this judgment, I do not consider that this letter shows this, as it gives no likelihood of any treatment being given to the claimant in the future. Second, even if the RMO did now wish to administer treatment to the claimant against his wishes, it is by no means clear that the RMO or the SOAD could not meet what Mr. Bowen describes as "the threshold requirement" by showing that the treatment was necessary either to prevent the patient causing harm to others or to protect the patient from serious harm.

62. B. I should add that about two months after the hearing, it was suggested by the claimant's solicitors that my decision would be "an important factor" in respect of the claimant's forthcoming application to the Mental Health Review Tribunal. I was not convinced that there was any force in this point, which was surprisingly not raised during the hearing but which was brought up for the first time two months later. The point could have been significant on the academic issue and so a hearing was held on 21 December 2004 at which Mr. Swift explained why my decision would not be of any relevance to the Tribunal. Subsequently, Mr. Bowen (who had been taking a well-deserved holiday in mid-December 2004 and was not present at the hearing) accepted that this decision on this application "would not directly affect the Tribunal's decision". I was not satisfied that my decision would have any effect on the Tribunal's decision.

62. C. I should add that I doubt that the claimant is a "victim" under the HRA and the Convention as contended by the claimant, because the RMO did not propose at the time of the application to treat the claimant with medication and thus it does not, in the words of section 7(1) of the HRA "propose(s) to act in a way 'which is made unlawful' by the HRA". In addition, the injunction referred to in paragraphs 12 and 13 above precluded the RMO from treating the claimant against his consent. I am prepared to assume that the claimant is a "victim" because Mr. Swift does not argue to the contrary but this does not enable the third claim to be brought because it would have no practical value for the reasons, which are set out in paragraph 67A below.

63. Fifth, the approach that is required by section 58 is a highly fact-sensitive one. It is apparent from the reasoning of the Court of Appeal in N and in other cases that the decisions were reached in the light of the background of a number of facts, which had been determined after cross-examination of witnesses. Indeed challenges to certificates of the SOAD form an exception to the general rule that cross-examination is not permissible on judicial review applications as was explained in Wilkinson and N. There is also a major factual dispute between the parties about whether the treatment proposed was necessary to protect the claimant and others from harm (see paragraphs 50 – 55 above).

64. In order to decide if the views of the RMO and the SOAD should be overridden by the views of a capable patient, it may be relevant to take into account very many matters, such as

    i. the nature and extent of the patient's objections. He might be vehemently opposed to the treatment or he might be somebody, who is on balance opposed but who would not be troubled if he had to take it. This could be important because, as I will explain in paragraphs 92 to 102 below, the threshold for engaging Article 3 depends on the victim suffering a high degree of suffering and that depends on the effect of the treatment on the patient;

    ii. the level of his understanding. I will explain in paragraphs 85 to 88 below that the present low threshold for capacity is low as explained by Hale LJ in the passage from Wilkinson referred to in paragraph 22 above. A patient might be regarded as having capacity not only when he understands every aspect of the proposed treatment and to properly weigh every aspect of it as part of his process of arriving at a decision but also when, as Lord Eassie describes, he lacks insight or understanding of his problems (see paragraph 85 below). These differences might be important;

    iii. the basis on which the patient has been detained. It might be for treatment. A patient may be ordered to be admitted, as the claimant in this case was, pursuant to section 37 of the 1983 Act and one of the grounds for such an order might be that the court is satisfied on the evidence of the registered medical practitioner that among other things,

    "The mental disorder for which the offender 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) (i) of the 1983 Act).

    iv. the extent to which the patient might be assisted by the proposed treatment and the side effects on him. There is a relevant and significant difference between, for example on the one hand, treatment, which has no side effects, which would enable a patient to be discharged so as to lead a fairly normal life in the community, and on the other hand, treatment with disturbing side effects and with a low prospect of success.

65. Indeed, it is noteworthy that in this case, the claimant agreed to an order that the doctors should be cross-examined. I therefore agree with Mr. Swift that if there is to be a serious reappraisal of the issues raised by the third claim, such an exercise should only take place after a hearing in which the court has had the opportunity to explore the possible consequences of upholding or rejecting the third claim in the context of a live case. The court would then have obtained a full appreciation of the specific factual situation with the benefit, if necessary of live evidence from expert witnesses. This point may have a little greater force because as is accepted by Mr. Bowen for reasons which appear in paragraphs 24 and 29 above, his core submission concerning the third claim is contrary to existing authority, both in the Court of Appeal and at first instance. That suggests that if the authorities are to be reconsidered, this should be in the context of a fully contested case.

66. When I circulated this judgment in draft, Mr. Bowen stated that I had not dealt expressly with his submission that the claimant should be allowed to pursue the third claim on the basis of Lord Steyn's statement in Rusbridger [21] – [28] that four key factors fall to be considered in deciding if a claim can be pursued, namely (a) whether there is a genuine dispute about the subject matter, (b) whether the resolution of the issue is fact-sensitive, (c) whether there is a cogent public or individual interest which could be advanced by the grant of a declaration and (d) whether resolution of the issue would serve any purpose. I had considered that point before reaching my decision and indeed, the answer to that submission is to be found in the reasons to which I have referred. Although there is a genuine dispute about the subject matter, the claimant runs into difficulties on the other points for the reasons set out in the last two paragraphs. The dispute is fact-sensitive and Lord Steyn considered this a factor of "great importance" [23]. In the light of the matters set out in paragraphs 56 – 63 above, there is no cogent public or individual interest which would be advanced by the grant of a declaration so that I doubt if a resolution of the third issue would serve any purpose.

67. All those factors indicate that I should not permit the third claim to be pursued because of its academic nature, and I decline to do so. When I circulated this judgment in draft, Mr. Bowen also contended that I had not dealt with his submission that because the claimant was a "victim" under the HRA and had standing, the court should hear the third claim. I had considered that point and had concluded that the factors set out above provide an answer to the claimant's point that he should be permitted to pursue the third claim because no practical purpose would be served by determining that claim for the reasons, which I have sought to explain as leading to the conclusion that this claim cannot be pursued. In other words, a decision on the third claim would have no practical value, bearing in mind, for the reasons, which I have sought to explain, first that the claimant will not benefit from any decision on the present application, second that there is a dispute on the crucial facts, which would have to be determined before the third claim could be resolved and third that there is a possibility of a judgment from the Strasbourg Court on this issue in a case awaiting to be heard by it

68. If I had been in any doubt about this, I would have been persuaded to come to the same conclusion that this claim should not be pursued because of the new approach to civil litigation embodied in the Civil Procedure Rules 1998 ("CPR"). The "overriding objective" of those rules is to enable the court to "deal with cases justly" (CPR Part I 1(1)). The CPR explains that dealing with a case "justly" includes, as far as practicable, among other things,

    "allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases" (CPR Part I 1.1(2)(e)).68.Although the CPR is primarily concerned with private law cases, in my mind it shows that a factor, which a court should take into account in determining whether a party should be entitled to pursue an academic issue, is, "the need to allot resources to other cases". As I have explained, this point was echoed in a public law case by Lord Scott of Foscote, who pointed out in Rusbridger that, "the valuable time for the courts should be spent on real issues" (page 373E [45]).

69. As is widely known, the Administrative Court at present is inundated not only with applications for judicial review, but also with statutory review applications and cases arising in its recently acquired appellate jurisdiction in respect of the medical and dental professions. So there is at the present time a great demand for judicial time in the Administrative Court with many cases relating as they do to social services requiring urgent final and interim relief. The demands on judicial time are compounded by the fact that all applications for judicial review have to be considered on paper by a judge in order to ascertain if permission should be given to pursue them. In all the circumstances, it would not be in keeping with the overriding objectives to give this case the resources, which could and should have been allocated to other cases where the parties would actually be affected by the decision and in respect of which delay would be undesirable.

70. I should add that I have assumed until now that the correct approach on this issue is that stated in Salem but the test on whether courts should consider academic issues which was more recently advocated in Rusbridger and which is set out in paragraphs 42 to 44 above makes it more difficult for the courts to hear academic issues which "do not impact on the parties before them" and which are not "real issues". Thus the claimant would have been unable to pursue his third claim if the Rusbridger approach has to be adopted. It is unnecessary to decide on this application if the Rusbridger approach is limited to the type of unusual facts, which arose in that case or if it is applicable more generally.

71. This means that this application must be dismissed. I did hear submissions on the substantive points because they overlapped with arguments on the academic point issue; the debate on the substantive issues helped to convince me that the third claim should not be pursued. As I have heard argument on those other substantive issues, I propose now to comment on them.

    VI. THE ARTICLE 3 ISSUE

    (i) The Claimant's Criticism of the Present Domestic Law Approach in the Light of Articles 3 and 8 of the ECHR

72. At the forefront of Mr. Bowen's submissions on this point is his contention that English law permits all people, who are not patients but who have capacity, to refuse treatment and that refusal cannot be overridden by doctors except in very limited cases, such as emergencies. So he says that a mental patient with capacity should be in the same position.

73. Mr. Bowen points out that first, the rights to integrity of the person and the right to self-determination are fundamental human rights (Airedale NHS Trust v Bland [1993] AC 789, per Lord Goff at 863 – 864) and second, that medical treatment is always an interference with the right to integrity of the person so that it constitutes an unlawful assault and battery in the absence of some lawful justification for it (Re. F [1990] 2 AC 1, 73-74). At common law, consent provides lawful justification for medical treatment, but only if the patient has capacity to consent. The right to give consent or to refuse to such treatment is, what Mr. Bowen calls the "right of autonomy".

74. A capable person's refusal to consent must be respected, however drastic the consequences for the individual concerned. In Secretary of State v. Robb [1995] Fam. 127, Thorpe J accepted as correct the statement of principle that: -

    "Secondly, the principle of self-determination requires that respect must be given to the wishes of the patient. So that 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 his best interest to do so" (130C-D).

75. Mr. Bowen's submission is that capacity is, then, the key to the existence of possibly the most fundamental of individual rights, the right of autonomy or self-determination and to the exercise of the right of inviolability of the person. The importance that the common law places on capacity is further illustrated by the fact that there is a presumption in favour of capacity: see Re MB [1997] 2 FLR 426, 436, which is a principle to which I will have to return.

76. The thrust of the claimant's case is that the position of people other than patients at common law is therefore in striking contrast to that of patients with capacity under the 1983 Act. Treatment of a competent patient against his or her will is not lawful, even where the consequences of non-treatment are that the patient or the child of a pregnant woman would die. As Judge LJ explained in St. George's Healthcare NHS Trust v S [1999] Fam 26, 46 – 47:-

    "That said, however, how can a forced invasion of a competent adult's body against her will even for the most laudable of motives (the preservation of life) be ordered without irremediably damaging the principle of self-determination? When human life is at stake the pressure to provide an affirmative answer authorising unwanted medical intervention is very powerful. Nevertheless the autonomy of each individual requires continuing protection even, perhaps particularly, when the motive for interfering with it is readily understandable, and indeed to may would appear commendable: hence the importance of remembering Lord Reid's warning against making 'even minor concessions'".

77. This leads Mr. Bowen to stress that at common law, even the most fundamental of state interests – the preservation of the unborn child – is not considered sufficiently important to outweigh the principle of autonomy. This position he submits is in striking contrast to the position of a capable patient who is detained under the Act and who does not consent to treatment.

78. Mr. Bowen then contends that Articles 3 and 8 of the ECHR and the common law protect the right of autonomy of all citizens including patients with capacity. His complaints are that section 58, as currently interpreted by Hale LJ in Wilkinson and by me in PS, effectively extinguish the right of autonomy of detained, competent patients. He accepts that compulsory treatment of a competent patient under the 1983 Act may be justified in exceptional circumstances where the right of autonomy is outweighed by the more compelling state interest of what he calls the threshold requirement, which arises where the treatment is necessary to prevent harm to others (as at common law) or in order to protect the patient from serious harm (which is not justified at common law). Mr. Bowen's case is that no further interference with the risk of autonomy should be justified because to permit compulsory treatment of a competent patient in any other circumstances is an unjustifiable and therefore unlawful interference with the patient's right of autonomy. He submits that this is contrary to Article 3 where the proposed treatment reaches the necessary level of severity and contrary to Article 8 in all cases where treatment is given without consent.

79. Mr. Bowen makes the additional point that in order to ensure compliance with the principle of legality inherent in Articles 3 and 8, the circumstances in which the right of autonomy may be overridden must be expressly and clearly defined in the law. He contends that the legal position of a capable patient, who refuses medical treatment is not now clear. I am unable to accept that submission, which fails to take account of first, what was said by Hale LJ in Wilkinson and second in PS, which is inconsistent with what Mr. Bowen himself accepts to be the law as I explained in paragraph 18 above.

80. Mr. Swift contends that the provisions of section 58(3)(b) of the 1983 Act comply with Article 3 and of course that section has to be read in the light of section 3 of the HRA so as to ensure compliance with Article 3. He also relies on Hale LJ's statements in Wilkinson that "it is better to keep [the threshold of capacity as low] 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" ([80] at page 446). This, Hale LJ explained, means that non-consensual treatment of those with capacity has to be permitted even where it is not necessary for the protection of others or for their own safety.

81. In this case, the fourth assumption is that "the claimant has capacity to decide if he wishes to have the treatment proposed by the RMO but he does not wish to have the treatment". That still raises the issue about the claimant's level of understanding because if it is low or defective, this would, as Hale LJ suggested, mean that it would be easier to justify allowing the RMO and the SOAD to override the claimant's refusal to agree to the treatment. The basis of Mr. Bowen's submissions is that a patient, who is deemed to have capacity, has the same relevant powers of, among other things, understanding facts and making a balanced judgment on whether to agree to accept proposed medical treatment as any person, who is not a patient. It is that assumption, which requires investigation because if a patient does not need to have the same intellectual powers as a non-patient in order to be regarded as having capacity, then I would have difficulties in accepting Mr. Bowen's submissions.

82. Thus, it is appropriate to consider the submissions of Mr. Bowen by first ascertaining whether a patient, who is deemed to have capacity, has the same relevant powers of, among other things, understanding facts and making a balanced judgment on whether to agree to accept proposed medical treatment as any person, who is not a patient and then secondly determining what level of ill-treatment is required before a patient's rights under Article 3 are infringed so as to determine if, in the words of the issue for determination in paragraph 10(1) in the assumed facts, "the proposed ECHR treatment would amount to a breach of Article 3, merely because the patient had capacity to consent but did not consent".

    (ii) Has the patient, who is deemed to have capacity, the same relevant powers of, among other things, understanding facts and making a balanced judgment on whether to agree to accept proposed medical treatment as any person, who is not a patient?

83. The basis of Mr. Bowen's submissions is that (subject to exceptions like emergencies) those with capacity are well able to make decisions about what treatment they should have. His submission assumes that the patient, who is deemed to have capacity has the same relevant powers of, among other things, understanding facts and making a balanced judgment on whether to agree to medical treatment as any other person, who is not a patient. This assumption is not supported by Hale LJ's comments that the threshold for capacity for a mental patient is low. Simon Brown LJ however, said in Wilkinson [29] that "the precise equivalence under section 58(3)(b) between incompetent patients and competent but non-consenting patients seems to me increasingly difficult to justify". It is therefore appropriate to analyse Mr. Bowen's assumption and then to consider whether this is correct and what has to be established before a patient can be regarded as having capacity to consent because if there is a high threshold for capacity, then a refusal by a competent patient has even greater potency and merits greater respect than if the threshold was lower.

84. The present test for capacity was explained in Re MB (Medical Treatment) [1997] 2 FLR 426 by Butler-Sloss LJ giving the judgment of the Court of Appeal, which stated that: -

    "…(4) A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:

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

    (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C, a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Banks v. Goodfellow (1870) LR 5 QB 549, 569:

    "… one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration".

    (5) The "temporary factors" mentioned by Lord Donaldson MR in Re T … (confusion, shock, fatigue, pain or drugs) may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.

    (6) Another such influence may be panic induced by fear. Again, careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may also, however, paralyse the will and thus destroy the capacity to make a decision" (page 437).

85. The authorities indicate that the threshold for capacity is low. First as Mr. Swift pointed out, when Lord Eassie was sitting in the Court of Session considering the Scottish equivalent of the 1983 Act, he pointed out in Petition of WM (AP) for Judicial Review [2002] MHLR367 that: -

    "Mental illness differed from physical illness in the important respect that even arguably "consent competent" patients may lack insight or understanding of their problem, which lack of insight might have to be addressed by medication" [22].

86. Second, as Butler-Sloss LJ explained in Re MB (supra at page 436),"every person is presumed to have capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted". Thus if there is some doubt whether a patient has capacity, the presumption that the patient has capacity will not be rebutted. It might mean that if a doctor or a judge has serious doubts about whether a patient has capacity but is not quite satisfied that he lacks capacity, the patient will still be regarded as having capacity.

87. Third, 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" and not whether the person actually understands the nature, purpose and likely effects of the treatment (cf the comments of Stuart-Smith LJ in R. v Mental Health Act Commission ex parte X (1988) 9 B.M.L.R.77at 85 quoted in Jones (supra) page 298). 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.

88. Finally, the test for capacity merely requires the patient to be able to use and weigh in the balance the information material to the decision. It does not go on to require the patient to be able to use it or weigh it in the balance to a particular standard. Thus, a patient might be regarded as having capacity if he could understand, retain, use and weigh in the balance this information but could reject it for an irrational but undisclosed reason. In some instances, such as in Re MB itself (where the reason for refusing to undergo a caesarean operation was a fear of needles), it might be held that the person concerned was "temporarily incompetent". In other cases, the court might not be able to reach that conclusion, even though the MB guidelines would have led to a person being regarded as competent, even though it is very difficult to understand the reasoning of the patient who seems, for example, a little confused but not sufficiently confused that in Butler-Sloss LJ's words "the ability to decide is absent".

89. Thus a patient could be regarded as having capacity to decide if he wishes to have treatment even though, as Lord Eassie pointed out, 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 because the evidence of, for example, his confused mind, did not go quite far enough to rebut the presumption of capacity.

90. All these factors show why the threshold of capacity is low and explain why a patient who reaches the threshold of capacity should not, as Hale LJ indicated, be regarded as being able to make a balanced and rational decision, which should not be overridden by the RMO and the SOAD. Mr. Bowen did not persuade me that Hale LJ 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 same position as those, who are not patients.

91. If the capacity threshold were raised, it would mean as Hale LJ explained, that fewer patients would be regarded as having capacity and the doctrine of personal autonomy would be eroded 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 for capacity recognises correctly the great importance to be attached to principles of autonomy, but it also means that the case for non-consensual treatment of those with capacity is increased. I will return to consider this further.

    (iii) The Effect of Article 3 of ECHR.

92. The next matter, which I will have to consider is whether, as Mr. Bowen contends, Article 3 of the Convention supports his contention that the views of the doctors cannot override the patient with capacity who refuses to consent to treatment where the threshold requirement has not been satisfied. Mr. Bowen's submission can be tested by looking at the situation in which the doctors wish to administer treatment not for the sake of preventing the patient causing harm to others or protecting the patient from serious harm, but to enable the patient to be able to leave hospital and lead a normal life outside hospital.

93. As is set out in paragraph 10(1) of the Assumptions on which this application has to be considered and which is set out in Appendix 1 below, the issue which I have to determine is whether the proposed treatment of anti-psychotic medication amount to a breach of Article 3 of the Convention "merely because the [claimant] had capacity to consent but did not consent"(italicisation added). In other words, it is being contended on behalf of the claimant that there would be a breach of Article 3 merely because he is being subjected to treatment against his will irrespective of the benefits of the treatment and the strength and nature of the claimant's objections.

94. Article 3 of the ECHR provides that, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". This prohibition is absolute and it is not limited by exceptions. Article 3 is relevant as "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 [83]). Section 3 of the HRA has the effect that section 58 must therefore be read so as to ensure compliance with Articles 3 and 8. The issue can be refined to be whether the proposed treatment of anti-psychotic medication amounts in the words of Article 3 "to torture or…inhuman or degrading treatment" merely because the claimant had capacity to consent but did not consent. This entails considering when Article 3 is infringed.

95. For Article 3 to be engaged, the Strasbourg Court has said that:-

    "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).

96. The Strasbourg Court has also explained the significance of Article 3 to the problem of imposing forced treatment on patients in psychiatric units when it stated, with my italicisation added, that: -

    "The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the 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 whose requirements 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).

97. In N, Dyson LJ giving the judgment of the Court of Appeal said of the Herczegfalvy test in relation to a claimant patient that: -

    "it seems to us that there is much to be said for the view that in these cases, there is but a simple question: has the proposed treatment been convincingly shown to be medically necessary?" [19].

98. There is no English appellate authority on when Article 3 is engaged by reason of medical treatment being administered to a patient with capacity in spite of his refusal to consent. In Wilkinson, there was no authority on whether Article 3 had been infringed while in N, the Court of Appeal "did not find it necessary to hear argument on" whether Article 3 had been engaged [15]. In PS, I concluded that even in the face of PS's capacitated opposition, the administration of anti-psychotic medication to that claimants would not reach the threshold of engaging Article 3 in the light of the possible benefits to the claimant and the limited adverse consequences [120]. Mr. Bowen submits that PS was incorrectly decided and so I must go back to some basic principles on the circumstances in which Article 3 might be engaged and which are referred to in PS.

99. In Keenan v. UK ((2001) 30 EHRR 38), the Strasbourg Court said that the assessment of the threshold for engaging Article 3 was relative as it depended on all the circumstances of the case, which included the duration of the treatment, its physical or mental effects and in some cases, the age, health and sex of the victim. The court recalled that "the authorities are under an obligation to protect the health of persons deprived of liberty" [110]. The Court said that in considering whether treatment was degrading, it would have regard to whether the object of treatment was to humiliate or debase the person and whether the consequences would adversely affect him in a manner incompatible with Article 3 (paragraph 109). A further relevant factor would be whether the treatment evoked feelings of fear, anguish or inferiority, which were capable of humiliating or debasing the person and possibly breaking their physical or moral resistance or driving them to act against his will or conscience. The case established that the public authorities are under an obligation to protect the health of such persons.

100. The threshold to be reached before finding a breach of Article 3 has been restated and significantly the Strasbourg Court has recently observed that: -

     "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).

101. The kinds of ill-treatment, which fall within the scope of Article 3, have to be very serious as

     "The [Strasbourg] Court's case-law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering". (Pretty v. United Kingdom (2002) 35 EHRR 1 at paragraph 52 with my emphasis added).

102. The Strasbourg Court has also recently stressed that:-

     "Ill-treatment must attain a minimum level of severity before it will be considered to fall within the provision's code" and "the practice of the Convention requires compliance with standard of proof beyond reasonable doubt that ill-treatment of such severity occurred" (Orhan v. Turkey App 25656/94 18 June 2002 paragraph 352).

103. There are two matters that have to be considered in respect of Article 3 , namely first whether there is a breach of Article 3 merely and automatically because of the administration of treatment against the will of a patient with capacity (" the automatic breach sub-issue") and if so, second whether the principle explained in Herczegfalvy and N (namely that Article 3 rights are not infringed where treatment is required because of medical necessity) also applies where treatment is administered to a capacitated patient, who had refused to agree to its administration ("the Herczegfalvy sub-issue"). For the claimant to succeed in showing that Article 3 will be infringed, he has to succeed on both the automatic breach sub-issue and on the Herczegfalvy sub-issue.

     (iv) The Automatic Breach Sub-Issue

104. Mr. Bowen contends that the administration of the proposed treatment would amount to a breach of Article 3 merely because a patient had capacity to consent but did not consent and then had the treatment. In other words, the administration of the treatment of anti-psychotic medication amounts in the words of Article 3 "to torture or…inhuman or degrading treatment" merely because the claimant had capacity to consent but did not consent without any further evidence or assertion of any adverse consequences for the claimant.

105. I am not persuaded that this is correct as an invariable rule as is contended for by the claimant. As I have sought to explain, the threshold for an infringement of Article 3 is high and the ill treatment must reach a "minimum level of severity". Keenan shows that all the circumstances have to be considered and these will include the duration of the treatment, its mental and physical effects and the object of the conduct complained of. There may be cases in which the Article 3 threshold is not reached because the patient is not over concerned about it and/or because the adverse effects on him of the treatment are minimal. The stark fact is that it is not every case in which the Article 3 threshold will be reached. In each case, the court has to reach a fact-sensitive decision.

106. I am fortified in reaching that conclusion by what the Strasbourg Court has said about the threshold for Article 3 when it referred to the need to take account of the need for ill-treatment "that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering" (Pretty v. United Kingdom (supra)).

107. The parties have not for example suggested, let alone agreed, any particular consequence of administering the treatment on the claimant. This is an important issue because whether Article 3 is engaged depends on the effect on the person, who is claiming that his Article 3 rights have been infringed. There is no evidence agreed or adduced to show the consequences of administering treatment on the claimant or any capable patient, who has treatment administered against his will. That patient might be seriously affected or he might shrug his shoulders and he might not be too troubled by having the treatment administered. What is clear is that it does not invariably follow that Article 3 will be infringed in every case of the administration of treatment to a patient, who had capacity but who had refused to consent.

108. That means that the claimant is not entitled to relief. Even if the claimant's treatment had infringed his Article 3 rights, there remains the additional issue of whether it can be justified as being a medical necessity in the light of Herczegfalvy, which is the sub-issue to which I now turn.

     (iv) The Herczegfalvy Sub-Issue

109. In both Herczegfalvy and N, the patient did not have capacity. Thus, it seems from the excerpts of the judgments to which I have referred that it is settled law and common ground between counsel that if the proposed treatment for a patient without capacity has been convincingly shown to be medically necessary, Article 3 is not infringed. That leads to the issue on this application, which is whether the legal position is or should be different if the patient has capacity to consent to the treatment, but he refuses to consent. Mr. Bowen contends that the fact that the patient has capacity but refuses to consent is a decisive factor with the result that what was said in Herczegfalvy does not apply to the patient with capacity. Mr. Swift disagrees and contends that the Herczegfalvy establishes that there cannot be an infringement of Article 3 if the treatment in question is a "therapeutic necessity".

110. The answer is, I believe, to be found in the reasoning in Herczegfalvy in which the Strasbourg Court stated, with my italicisation added, that: -

     "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"[82].

111. It is noteworthy first, that the Strasbourg Court explained that a therapeutic necessity "cannot be regarded as inhuman or degrading" and second, that it is those words "inhuman or degrading" which constitute the threshold for an infringement of Article 3. In my view, the mere fact that a patient has capacity but does not consent would not automatically mean that if treatment was administered against his or her consent, this would amount to a breach of Article 3,in situations in which "medical necessity has been convincingly shown to exist". The test of "medical necessity" is different from and in some ways wider than Mr. Bowen's suggested threshold requirement. This test justifies the present approach that the patient's right of autonomy can in appropriate cases be overridden on grounds of medical necessity, even where the treatment is not required for the protection of the patient or of others.

112. Thus, in answer to the issue raised in paragraph 10(1) of the assumptions, I conclude that for the reasons that I have sought to explain, the proposed treatment would not amount to a breach of article 3 of the ECHR merely because a patient had capacity to consent but did not consent. I reach that conclusion not only because of the low threshold for capacity but also because there is no evidence that the administration of treatment "would amount to a breach of Article 3 merely because the claimant had capacity to consent", but did not consent. Another reason why I rejected the claim on this issue is because the Strasbourg Court has held that a therapeutic necessity cannot be regarded as inhuman or degrading.

     VII. THE ARTICLE 8 ISSUE.

     (i) The significance of Article 8(2)

113. Article 8 provides that:-

     "(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 as 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".

114. Assumption 9 is that:-

     "The administration of the proposed treatment (i) would amount to a breach of ECHR Article 8(1) that would require justification under Article 8(2), (ii) would be a proportionate and lawful response in the interests of the protection of health and therefore justifiable under Article 8(2), if administered to an incompetent patient. (As the law is currently understood and applied following R (PS) v. Dr. G and Dr. W, it would also be justifiable under Article 8(2) if administered to a competent patient but whether PS is a correct statement of the law is the issue that falls to be determined in these proceedings)".

115. Thus, the RMO will be interfering with the claimant's rights under Article 8(1) by administering the proposed treatment on the claimant unless such interference is justified under Article 8(2) of the Convention. Mr. Bowen contends that such interference is not justified for the reasons, which I have summarised when considering his contentions on the Article 3 issue in Section VI above. The Article 8 issue in this case therefore becomes refined to whether the proposed treatment is justifiable under Article 8(2). The Secretary of State contends that any breach of Article 8(1) is justifiable under Article 8(2) in this case because the proposed treatment was:-

     "in accordance with the law and is necessary in a democratic society … for the protection of heath".

116. This requirement together with the additional requirement of proportionality is best examined by considering in turn different aspects of those requirements in the light of the relevant assumed facts, which are, according to the claimant, that:-

     "5. In the opinion of the RMO and the Second Opinion Appointed Doctor ("SOAD"), the proposed treatment for the claimant satisfies the best interests test and should be given having regard to the likelihood of the proposed treatment alleviating or preventing a deterioration of the claimant's condition,.

     6. In reaching this conclusion, the requirements of section 58 of the MHA 1983 have been complied with (as they are presently understood). As part of this process the RMO and SOAD have:-

     (i) taken into consideration the fact that the claimant is competent to refuse the treatment and has declined to consent to it; and

     (ii) given such weight to that factor as they consider appropriate (i.e. they have applied the approach stated in R (PS) v. Dr. G and Dr. W) [2003] EWHC 235 (Admin)."

117. The Secretary of State would wish words to be inserted in Assumptions 5 and 6 to the effect that the proposed treatment would be lawful in the light of the requirements of section 58 of the 1983 Act as they are presently understood.

118. In order to determine if the proposed treatment would constitute a breach of Article 8 "merely because the patient had capacity to consent but did not consent" (Assumption 10(2)) and not be justifiable under Article 8(2), it is appropriate to consider in turn the following aspects of Article 8(2):-

     (a) "necessary in a democratic society … for the protection of health";

     (b) "in accordance with the law" and

     (c) proportionality.

     (ii) "..necessary in a democratic society.. for the protection of health.."

119. The aim of the provisions in section 58(3) (b) regime for enabling the consent of the competent patient to be overridden and treatment to be given are` clearly "for the protection of health" as the SOAD has to certify that in spite of the fact that the capable patient has not consented "having regard to the likelihood of [the treatment] alleviating or preventing a deterioration of his condition the treatment should be given". The next issue is whether the provisions in section 58(3)(b) of the 1983 Act are "necessary in a democratic society" for that purpose.

120. The word "necessary" in Article 8(2) is not synonymous with the word "indispensable" but the treatment would be justified "if the interference complained of [which in this case was the proposed treatment] corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, whether the reasons given by the national authority to justify it are relevant and sufficient" (Sunday Times v. UK (1979) 2 EHRR 245 at 275 and at 277-278 respectively). This approach is logical because inherent in the interpretation of the Convention is its aim to strike a "fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights" (see Sporrong and Lonnroth v. Sweden (1992) 5 EHRR 35 at 52). Any restriction on a guaranteed freedom, such as that set out in Article 8(1) of the Convention, must be proportionate to the legitimate aim pursued (Handyside v. United Kingdom (1976) 1 EHRR 737) and I will consider the requirements of proportionality in due course as a separate issue.

121. In order to determine if the provisions of section 58(3) (b) of the 1983 Act meet these requirements, it is necessary to bear in mind the limited circumstances in which those provisions actually enable the consent of a capable patient to be overridden and seven features need stressing.

122. First, those provisions only apply, subject to certain exceptions to "any patient liable to be detained under this Act"(s56(1) of the 1983 Act). Thus the provisions in section 58(3) (b) of the 1983 Act, which allow the courts to override the consent of capable patient only apply to patients detained subject to an application under either Part II of the 1983 Act, which deals with "compulsory admission to hospital or guardianship" or Part III of the 1983 Act, which deals with "parties concerned in criminal proceedings or under sentence". Thus, for example, voluntary patients are excluded and the provisions in section 58(3)(b) of the 1983 Act only apply to those compulsorily detained.

123. Second, the category of patients covered by section 58 is further limited as there are also compulsorily detained patients within that category, who are not subject to the regime in section 58 and they include patients liable to be detained under an emergency application (s 56 (1)(a) of the 1983 Act). Third, the provisions of section 58 only apply to "medical treatment for mental disorder" (s58 (1) of the 1983 Act) and the "mental disorder" must be the mental disorder from which the patient is suffering. Section 58 gives no power to impose treatment for physical disorders against the consent of a capable patient. Fourth, section 58 cannot be used for some very radical forms of treatment including "any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue" as this requires the consent of the patient (s57(1)(a) and (2) of the 1983 Act). That consent of the patient cannot be overridden.

124. Fifth, before giving the certificate, the SOAD is required to consult two other persons who have been professionally concerned with the patient's treatment, of whom one shall be a nurse and the other neither a nurse nor a registered medical practitioner (s 58 (4) of the 1983 Act).

125. Sixth, the SOAD has the important role of "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 [60]). In that capacity, the SOAD has to form his own independent opinion on the existence of the statutory criteria (Wilkinson [71]).

126. Seventh, the SOAD is obliged to give his reasons in writing for issuing a certificate (R (on the application of Wooder) v. Feggetter and MHAC [2003] QB 219. This is important because a dissatisfied patient has the right to challenge the SOAD's certificate by means of a judicial review application in which it would be necessary for the court to reach its own view on the dispute issues with cross-examination being ordered in appropriate cases as it was in this particular case. As I have explained the views of the competent patient, who refuses to consent to treatment, are very important. As to the issue for the court on such applications:-

     "there is much to be said for the view that in these cases there is but a single question; has the proposed treatment been convincingly shown to be medically necessary?" (per Dyson LJ in N[19]).

127. It follows that the circumstances in which section 58 (3) can be invoked to compel a patient to be subjected to treatment are limited and are closely defined so as not to apply to voluntary patients, to treatment for physical disorders or to certain very radical forms of treatment. In addition, section 58(3) only applies to those patients compulsorily detained. There are also important safeguards, which I have sought to explain in the last three paragraphs.

128. The very limited circumstances in which the views of the competent patient can be overridden together with the remedies for the patient to which I have referred satisfy me that the provisions of section 58 (3) of the 1983 Act are in the words of Article 8(2) " ..necessary in a democratic society.. for the protection of health..". I am fortified in reaching that conclusion by the similar decision reached in respect of similar legislation in Scotland by Lord Eassie sitting in the Court of Session in Petition of WM (AP) for Judicial Review [2002] MHLR367, who explained that:-

     "It accordingly appears to me that in enacting the provisions of the 1984 Act, Parliament was endeavouring to define with at least some precision the circumstances in which departure from the principle of not treating the competent patient without his consent might be justified in what was then and now a free and democratic society".

129. Until now I have been considering the claimant's challenge on Article 8 grounds without taking account of the assumed facts. They in fact constitute further reasons for not granting any relief because the assumed facts in this case are, as I have explained, that the claimant "suffers from bi-polar affective disorder, a treatable mental illness" and that "the nature and extent of the claimant's illness are such that it is appropriate for him to be detained in hospital for treatment" (Assumptions 1 and 2).

130. The fact that the claimant suffers from an illness, which justifies his detention for treatment provides an additional ground for justifying the provisions in section 58(3) (b) of the 1983 Act as being, in the words of Article 8(2), "..necessary in a democratic society.. for the protection of health..".

131. If I had been in any doubt about whether the provisions in section 58 (3) (b) of the 1983 Act were "necessary in a democratic society", I would have reached the conclusion that they were for the additional reason that:-

     "in determining whether an interference was 'necessary in a democratic society', the [Strasbourg] Court will take into account that a margin of appreciation is left to Contracting States" ( Matter v. Slovakia (2001) E.H.R.R. 32 [66] cited in Petition of WM (AP) for Judicial Review (supra)[18]).

132. To my mind, the margin of appreciation allowed to the United Kingdom would lead to the provisions in section 58(3)(b) being "necessary in a democratic society".

     (iii) "..in accordance with the law.."

133. There are two relevant requirements of the law of this country relating to the circumstances in which treatment can be given to a patient, who does not consent. First, there are the common law requirements and second the statutory requirements in the 1983 Act, which have to be considered separately. Starting with the common law requirement, it is necessary to remember that "the best interests test" is the common law rule which, shows the recognised criteria for establishing whether it is permissible to perform any proposed treatment is whether the proposed treatment is in the best interests of the patient.

134. This rule shows that the recognised criterion for establishing whether it is permissible to perform any proposed treatment on an incompetent adult is whether the proposed treatment is in the best interests of the patient. The idea or concept of medical necessity was established by the House of Lords in the case of In Re F (Mental Patient: Sterilisation) ([1990] 2 AC 1) especially by Lord Brandon at 55E and 56 D, by Lord Goff at 78B and by Lord Bridge at 52C) as being a medical necessity which is the justification for treatment in a patient's best interests. Butler-Sloss P. has pointed out in NHS Trust A v. Mrs. M [2001] Lloyds Rep. Med 27, 35 that the "best interests" test at common law provides a more stringent safeguard than the Convention does.

135. In Re S (Adult Patient's Best Interests) [2000] 2 FLR 389 at 400, Butler-Sloss P explained, with my emphasis added, that:-

     "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".

136. The President was in essence stating that the courts have to approach the best interest test in two stages; they have first to see whether the proposed treatment was in accordance with "responsible and competent professional opinion" and, if so, then the court's second task is to choose the single best option. The President accepted that her two-stage approach, with which Thorpe LJ agreed, was at variance with the comments of Lord Browne-Wilkinson in his speech in Airedale NHS Trust v. Bland [1993] AC 789 at 884 (which were not agreed with or followed by other members of the Appellate Committee) which was that in accordance with Bolam, a number of different courses, rather than a single course, may be lawful in a particular situation.

137. Thorpe LJ in that case also explained the basis of the two-stage test and the width of the second stage, when he stated, with my emphasis added, that:-

     "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".

138. In that case, the President's approach similarly required that the court when dealing with the second stage should consider all relevant issues when she explained, with my emphasis added, that:-

     "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".

139. As I have explained, assumption 5 in the view of the Secretary of State is that it is the opinion of the RMO and the SOAD that the proposed treatment satisfies the best interests test, which is the common law requirement and thus in his view the proposed treatment is in accordance with the common law. The claimant does not agree with that assumption but no evidence has been put forward to show that the proposed treatment does not satisfy the "best interests" requirement, which is significant as the RMO and the SOAD consider that it will "alleviate or prevent a deterioration of the claimant's condition". Thus, I am satisfied that the proposed treatment should be regarded as satisfying the common law requirement.

140. The statutory requirement is that set out in the 1983 Act and in particular section 58, which I set out in paragraph 10 above. In Wilkinson, Simon Brown LJ regarded this statutory test as one that "essentially mirrors the best interests test". Assumption 5 when read with assumption 6, both of which I have quoted in paragraph 116 above, show that these requirements have been satisfied because the RMO and the SOAD are of the opinion that the proposed treatment should be given having regard to the likelihood of the proposed treatment alleviating or preventing a deterioration of the claimant's condition having taken into consideration and in making that decision, they gave such weight as they considered appropriate to the fact that the claimant was competent but had declined to consent to treatment.

141. That means that the proposed treatment thereby meets the requirement of being, in the words of Article 8(2), "in accordance with the law" but that leads to the further issue of whether a decision to require the claimant to have treatment is proportionate.

     (iv) Proportionality

142. In order to decide whether the provisions of section 58(3)(b) are proportionate, it is necessary to apply the test of Lord Clyde in DeFreitas v. Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69, 80 quoted and amplified by Lord Steyn in Daly v. Home Secretary [2001] 2 AC 532, 547 [27] where he said that:-

     "In determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself 'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective'".

143. In this case, as to (i) the legislative intention of enabling treatment to be given pursuant to section 58(3) was to enable it to be given to the claimant where there was a likelihood of the treatment "alleviating or preventing a deterioration of [the patient's ] condition". Assumption 5 shows that the RMO and the SOAD both considered that the proposed treatment satisfied this test. This aim was important in this case because the claimant had been ordered to be compulsorily detained and the treatment was sufficiently important to justify limiting the claimant's Article 8 rights.

144. As to (ii), the measures set out in section 58(3) of the 1983 Act were clearly rationally connected to it. Finally, as to (iii), the means used to permit the treatment to be given were no more than necessary to accomplish that objective. I have already explained in paragraphs 122 to 126 above the limited circumstances in which treatment can be given against the wishes of a competent patient and the remedies given to the patient. These factors convince me that (iii) is satisfied as the means used to impair the claimant's Article 8 rights were no more than necessary to accomplish that objective. Thus the provisions in section 58(3) are proportionate.

145. In those circumstances, I conclude that the administration of the proposed medication is not only "proportionate" but also, as I have explained, that it is also "necessary" for "the protection of health" of the claimant. Thus, the Article 8 claim fails.

146. In any event, even if I was wrong on that approach, then the SOAD and the RMO are entitled to an appropriate margin of discretion in making their decision in relation to the administration of the proposed treatment. This provides an additional reason why I reject the contention that to administer the proposed medication to the claimant would infringe his Article 8 rights.

147. Nothing that has been said by Mr. Bowen in this case has shown that the approach of Hale LJ to which I have referred in paragraph 24 should not be followed. Thus, subject to the position in respect of the developing international consensus, I respectfully agree with Hale LJ that even taking account of Articles 3 and 8 of the Convention: -

     "we have not reached the point where it is an accepted norm that detained patients who fulfil the .. criteria for capacity can only be treated against their will for the protection of others or for their own safety".

     VIII. The Developing International Consensus Issue

     (i) Introduction

148. Mr. Bowen contends, as he did in his submissions in Wilkinson in the Court of Appeal, that there is now a developing international consensus which ought to be given effect to by the English courts to the effect that treatment may only be given in the face of a competent patient's refusal to consent where it is necessary to protect that patient from serious harm or to protect other persons from harm. Those submissions did not convince the Court of Appeal. He now submits that Articles 3 and 8 of the ECHR and the rights which they protect are to be construed in the light of those developments because, as Lord Bingham has explained, as:-

     "the Convention is a living instrument, the standards guaranteed by the Convention are to be reinterpreted in accordance with changing perceptions of individual right" [Dyer v. Watson [2004] 1 AC 379, 401 [49]].

149. Mr. Bowen points out that Lord Bingham's "changing perceptions of individual rights" may be found in developments not only within any particular Convention State, but within the Convention States generally and also by what the Strasbourg Court has called the "general principles of law recognised by civilised States" (Golder v. United Kingdom (1979-80) 1 EHRR 524, 535 [35]). Thus, he submits that irrespective of the present state of English law, the developing international consensus means that the circumstances in which a capable patient's refusal to consent should be overridden is limited to cases in which the threshold requirement is met.

150. The starting point for Mr. Bowen's contentions are that both Article 3 and Article 8 impose obligations on the State, which in this case is the Secretary of State, to provide adequate protection for the rights protected by Articles 3 and 8. This means that the law should be accessible and comprehensible. He points out that section 58 of the 1983 Act does not stipulate that the treatment of competent patients is permitted only where the threshold and the medical necessity requirements are met.

151. At the heart of his submissions is his contention that although there is no Strasbourg case directly in point, even in Wilkinson, the Court of Appeal accepted that some consensus was beginning to develop and he, for example, relies on the statement by Hale LJ to which I have referred in paragraph 24 above, but he says that in any event, matters have moved on since October 2001, when that decision was handed down.

152. Mr. Bowen referred to a number of statements in different international documents, as well as decisions of the United States and Canadian Supreme Courts, which he contends are relevant to the issue of when it was possible to override a refusal of a capable patient to propose treatment. Mr. Swift submits that these statements do not assist in determining what English law is and that in any event, the views of international organisations and courts were not similar or necessarily supportive of Mr. Bowen's submissions.

153. There are two matters to which I must refer, which are relevant in considering Mr. Bowen's submissions on this issue. First, there is apparently no universally accepted view of what has to be established before a patient can be regarded as having capacity and it is quite possible that in some of the material to which Mr. Bowen referred, there was a different approach to the meaning of "capacity" from how it is understood in English law. This might mean that a patient who is regarded as having capacity in English law might not be regarded as having capacity under the proposals to which Mr. Bowen refers or in the United States or in Canada. Second, Mr. Bowen made reference to many of these matters to which he now refers in Wilkinson where his point was not accepted; there are only two recommendations or reports, which have arisen since Mr. Bowen made his submissions in that case.

     (ii) The Council of Europe Recommendations

154. The Council of Europe produced a White Paper on the Protection of Human Rights and the Dignity of Persons Suffering from Mental Disorder on 3 January 2000, which has now been followed by recommendations published in June 2004. On 22 September 2004, the recommendations were adopted by the Committee of Ministers but

     "The Permanent Representative of the United Kingdom indicated in accordance with …the Rules of Procedure for the meetings of Minister's Deputies for the meetings of the Minister's Deputies, he reserved the right of his Government to comply or not with the Recommendation as a whole".

155. It is important to bear in mind that the recommendations take the form of recommendations to the Governments of Members that "the governments of member states should adapt their laws and practice to the guidelines contained in this Recommendation". It would seem that the only right given to the Committee of Ministers in respect of such recommendations is to request the Government of Member States to inform it of the action taken by the governments with regard to such recommendations (Article 15.b of the Statute of the Council of Europe). As I have explained the United Kingdom Government has indicated in adopting the decision, that it reserved its right to comply or not to comply with the recommendation. Thus, the United Kingdom Government has not accepted the provisions of the recommendations and there is no evidence that they have been adopted or implemented by any or how many other states. Thus, it is difficult to see how the recommendation shows any form of international consensus. The terms of the recommendations to which I now turn have to be considered in the light of these factors in order to ascertain if there is any international consensus.

156. Under Article 12 (2) of the Recommendation, it is stated with my italicisation added that, subject to certain exceptions,

     "treatment may only be provided to a person with mental disorder with his or her consent if he or she has the capacity to give such consent".

     I add that I could not find a definition of "capacity" in the Recommendations.

157. One of those exceptions is set out in Article 18 of the Recommendations, which provides that: -

     "A person may be subject to involuntary treatment only if all the following conditions are met: -

     the person has a mental disorder;

     ii. the person's condition represents a significant risk of serious harm to his or her health or to other persons;

     iii. no less intrusive means of providing appropriate care are available;

     iv. the opinion of the person concerned has been taken into consideration".

158. Article 28 of the Recommendations provides that treatment for mental disorder that is not aimed at producing irreversible physical effects but may be particularly intrusive should only be carried out if no less intrusive means of providing appropriate carers available and that member States ensure that the "use of such treatment is… (iii) except in emergency situations… with the person's informed, written consent".

159. The two recommendations do not mirror the narrow approach contended for by Mr. Bowen even if the definition of "capacity" in the recommendations is the same as that adopted in English law.

160. Article 28(2) of the Recommendations is similar to section 58 of the 1983 Act, to which I referred in paragraph 10 above as it stipulates that the use of treatment for medical disorder with the aim of producing irreversible physical effects should be exceptional and that it should not be used in the context of an involuntary placement but that:-

     "such treatment should only be carried out if the person concerned has given free, informed and specific consent in writing".

     (iii) United Nations General Assembly Resolution 46/119 of 17 December 1991

161. This resolution was passed about 10 years before the decision in Wilkinson. The United Nations General Assembly Resolution of 46/119 of 17 December 1991, which is entitled "Principles for the Protection of Persons with Mental Illness" contains two relevant principles, of which the first is Principle 9.4, which states, "the treatment of every patient shall be directed towards preserving and enhancing personal autonomy". Second, Principle 11.1 provides that "no principal treatment should be given to a patient without his or her informed consent".

162. This Principle is expressed to be subject to a number of exceptions of which the relevant ones are set out in Principle 11.6 are that, subject to certain exceptions:-

     "… a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied … (a) the patient is, at the relevant time, held as an involuntary patient;

     (b) an independent authority having in its possession all relevant information including [the information regarded as material to the provision of informed consent if this can be freely obtained] is satisfied that, … if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds consent

     (c) the independent authority is satisfied that the proposed plan of treatment is in the best interests of the patient's health needs".

163. This principle enables treatment to be given to a patient with capacity who refuses to consent. To some extent, the use of "an independent authority" is similar to the function and the role of the SOAD in this country. It is noteworthy that Principle 11 is subject to the General Limitation Clause, which qualifies each of the Principles referred to in the resolution and it provides that:-

     "The exercise of the rights set forth in the present Principles may be subject only to limitations as are prescribed by law and are necessary to protect the health or safety of the person concerned or of others, or otherwise to protect public safety, order, health or morals or the fundamental rights and freedoms of others".

164. These Principles are, according to Footnote 8 to the judgment in the case of Victor Rosario Congo v. Ecuador (Inter-American Commission on Human Rights 63/99 Case 11.427):-

     "regarded as the most complete standards for the protection of the rights of persons with mental disability at the international level. These Principles serve as a guide to States in the design and/or reform of mental health systems and are of utmost utility in evaluating the practices of existing systems".

165. These principles assist the Secretary of State's case because it enables the patient's informed consent to be overridden if an independent body (which would include the SOAD) considers that the patient unreasonably refuses consent and that the proposed treatment is in the patient's best interest. In any event, the General Limitation Clause is of critical importance in governing and overriding Principle 11 and it establishes that this Principle is subject to limitations "prescribed by law and are necessary to protect the health of the person concerned". In my view that is what section 58(3) (b) of the 1983 Act achieves by requiring the SOAD to certify "having regard to the likelihood of [the treatment to which the patient objects] alleviating or preventing a deterioration of [the patient's] condition". Thus principle 11(6) does not support the claimant's case but is supportive of the approach in section 58(3)(b) of the 1983 Act.

     (iv) The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in August 2000, 8^th General Report (CPT) Int (98) (12)

166. Mr. Bowen referred to this Report, which was also cited by Simon Brown LJ in Wilkinson [28] in which it was said in paragraph 41 of the Report with my italicisation added that: -

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

167. I do not consider that this passage assists the claimant's case because it gives the patient the "opportunity" and not the "right" to object. In addition, it recognizes that there can be derogations from the general principle, which are "based on law and only relate to clearly and strictly defined exceptional circumstances". For the reasons which I have set out in paragraph [] above, section 58(3)(b) of the 1983 Act sets out "clearly and strictly defined exceptional circumstances". Thus, if anything, this report supports the Secretary of State's case.

168. Mr. Bowen submitted that Simon Brown LJ in Wilkinson cited this passage from this report with approval but I could not infer from his judgment that this passage was approved as Simon Brown LJ's only comment on it was

     "That gives some indication of modern thinking on this sensitive subject. The precise equivalence under section 58(3)(b) between incompetent patients and competent but non-consenting patients seems to me increasingly difficult to justify"[29].

169. I respectfully suggest that there is not a position of "precise equivalence" because the refusal of the competent but non-consenting patient constitutes a very important factor to which great attention has to be paid by the RMO, the SOAD and by the courts if there is a challenge in the courts. The position of the incompetent patient, who refuses to consent is obviously different. In any event, a competent patient may have certain limitations as I sought to explain at paragraphs 85 to 88 above. I should also add that as I am seeking to explain in this section that there are a number of indications of modern thinking, which show that the refusal of a competent patient can be overridden, as I explain in paragraph 188 below.

     (v) The Bioethics Convention

170. Mr. Bowen also sought to derive support from the European Bioethics Convention, which was signed by 31 members of the Council of Europe but not by the United Kingdom. This Convention, which has as its full title "The Council of Europe's Convention for the Prevention of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine" was open to signature at Oviedo on 4 April 1997. This was another development which preceded the decision in Wilkinson.

171. This Convention was signed about four years before the decision in Wilkinson. Article 5 of it provides that: -

     "An intervention in the health field may only be carried out after the person concerned had given free and informed consent to it….".

172. Article 6, which deals with the "protection of persons not able to consent", provides that:-

     "where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body prescribed by the law".

173. It is difficult to see what has to be shown or not shown before a person is regarded as "not (having) the capacity to consent to an intervention".

174. Article 7 deals with the protection of persons, who have a mental disorder and it provides that: -

     "Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health".

175. I agree with Mr. Bowen that this provision is different from English law. Mr. Bowen points out that this Convention to which the United Kingdom has not signed up was applied by the Strasbourg Court in Glass v. United Kingdom – 9 March 2004 (Application No. 61827-00), when determining the ambit of the rights contained in Article 8. This Convention was apparently not referred to in Wilkinson.

176. It is important to bear in mind that the United Kingdom has neither signed, nor ratified nor incorporated this Convention into English law. Thus the Convention does not form part of English law and the English courts do not have any jurisdiction to apply it in the absence of incorporation (see In Re McKerr [2004] 1 WLR 1289 [26], [50] and [65] per Lord Nicholls, Lord Steyn and Lord Hoffmann respectively). I agree with Mr. Swift that in those circumstances it would not be correct to regard the provisions of the Convention as being an aid to the construction of section 58(3)(b) of the 1983 Act either in its own right or by means of section 3 of the HRA.

177. I am not persuaded by Mr. Bowen that the Bioethics Convention shows an international consensus as it seems from the Secretary of State's Summary Grounds that as at 30^th July 2004, this Convention had only been ratified by 18 of the 44 member states of the Council of Europe and this does not show any form of consensus, especially as countries like Austria, Belgium, Finland, France, Germany, Italy, the Netherlands, Norway, Sweden and Switzerland have apparently not ratified it. Although the claimant relies on Glass v United Kingdom (supra), this case was concerned with parental objection to treatment for a child in the United Kingdom and the Strasbourg Court stated that

     "it does not consider that the regulatory framework in place in the United Kingdom is in any way inconsistent with the standards laid down in the [Bioethics Convention] in the area of consent"[75].

     (vi) The Draft United Nations Convention of January 2004

178. Mr. Bowen next refers to Article 11 of a draft United Nations Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities which is dated 27 January 2004 and which deals with freedom from torture or cruel, inhuman or degrading treatment or punishment. This is a matter which obviously post-dates Wilkinson. Article 11 provides, among other things, that: -

     "2. In particular, State Parties shall prohibit, and protect persons with disabilities, from medical or scientific experimentation without the free and informed consent of the persons concerned, and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment".

179. It is important to bear in mind that the draft Convention as being attached to a report of the Working Group, which explained that it saw its role was "to prepare and present a draft text which would be the basis for negotiations at the Ad Hoc Committee" and it said that it was "not mandated to negotiate a final text and was not tasked with being a drafting Committee" (paragraph 9). It was also pointed out that the draft text was "not the position of any particular delegation in the Working Group" and that "delegations represented in the Working Group made clear that they wished to discuss many issues further in the ad hoc committee (paragraph 10).

180. I agree with Mr. Swift that the contents of the draft Convention do not even represent the views of the Working Group and they are only meant to be the basis for future detailed negotiations. In those circumstances, the draft Convention does not show or even purport to show any consensus and so it cannot and should not be relied upon for any purpose.

     (vii) American and Canadian authorities

181. Mr. Bowen also seeks to derive assistance from the way in which the American and Canadian courts have dealt with the circumstances in which the absence of consent by a capable patient to treatment can be overridden. He pointed out that in Sell v. United States (2003) 539 US 1, the Supreme Court of the United States held by a majority that a person with mental illness could not be forced to take anti-psychotic medication in order to ensure that he could stand trial. The view of the majority of the Supreme Court was that there were only limited circumstances in which the government could involuntarily administer anti-psychotic drugs to render a mentally-ill defendant competent to stand trial on serious criminal charges. On the basis that the government had a significant interest in ensuring that an individual accused of serious crime was brought to trial, the courts had to consider each case's facts in evaluating this interest because special circumstances could lessen its importance; examples of that would be that a defendant's refusal to take drugs might mean lengthy confinement in an institution, which would diminish the risks of freeing without punishment a person who had committed a serious crime. It was also pointed out that the government had a concomitant interest in assuring that a defendant had a fair trial.

182. The Supreme Court considered that before permitting involuntary medication, a court had to be satisfied that medication was substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects, which would interfere significantly with the defendant's ability to assist his lawyers in conducting a defence. The court also was required to conclude that involuntary medication was necessary to further those interests and find that alternative and less intrusive treatment was unlikely to achieve substantially the same results. Finally, the court had to conclude that administering the drug was medically appropriate.

183. The facts of that case were very different than those assumed to be relevant in this case. In any event, a critical feature in determining whether a refusal to agree to treatment by a person regarded as competent should be overridden is the height of the threshold of capacity. I do not know what that threshold for capacity is in the United States. Another significant difference between Sell's case and the present case is that in Sell, the court was not considering the position of a patient like the claimant for whom the proposed treatment would be likely to alleviate or prevent a deterioration of his condition. Further, I am not persuaded that the decision in Sell would mean that a patient with capacity could not be treated if he refused treatment, which would have no adverse effect and which would not meet the threshold requirement but which would enable him to be released from detention.

184. Mr. Bowen also relies on the decision of the Canadian Supreme Court in Fleming v. Schutzman [2003] SCC32, in which it was decided that in the light of the statutory definition of capacity, a patient had capacity to refuse treatment. That is a different issue from that with which I am now concerned.

     (viii) Discussion on the International Consensus Issue

185. Mr. Bowen in his skeleton argument contends that these international developments, when considered cumulatively, show: -

     "the extent to which an international consensus is developing that requires adequate protection against mistaken or arbitral treatment to be afforded to vulnerable, detained mental patients, including a restriction on the imposition of compulsory treatment to competent patients to situations where treatment has been shown to be necessary to protect the public from harm or to protect the patient from serious harm".

186. For the reasons which I will now seek to explain, I am unable to accept Mr. Bowen's contention that these statements undermine or alter in any way the principle set out by Hale LJ and in PS, which is that the refusal of a capacitated patient does not automatically override the views of the RMO and the SOAD on the likelihood of the proposed treatment alleviating or preventing a deterioration of the claimant's condition even in cases in which it cannot be shown that the proposed treatment is necessary to protect other persons from harm or that without such treatment, serious harm is likely to result to the claimant's health.

187. First, none of the interesting material to which Mr. Bowen refers is binding on the English courts. Second, the English law does not permit me as a first instance judge to depart from established principles merely because of recommendations or international conventions, which have not been incorporated into English law or even ratified by the United Kingdom Government.

188. Third, in any event, there is discrepancy between many of these reports and it is not possible to establish a general and universally accepted principle. Indeed, the United Nations General Resolution and the European Committee's Report are consistent with construing section 58(3) so as to override the views of a competent patient, who refuses to accept treatment. Other material relied on by Mr. Bowen either does not explain the threshold for capacity on which it was based or is provisional or does not have universal or much support. Fourth, there is no generally accepted definition on what threshold of mental capacity has to be reached before a person can be regarded as having capacity and that is a matter of critical importance. Thus, it is quite possible and perhaps reasonably likely that the various international bodies adopted different approaches to what is meant by "capacity" of a patient.

189. At the end of the day, I am not persuaded by the submission of Mr. Bowen that the right of autonomy has become such a fundamental right that legislation cannot lawfully override it, other than in those exceptional circumstances in which the countervailing state interests of protecting the public and the patient from serious harm justify it. In my view, the refusal of a patient with capacity to consent to treatment does not automatically and inevitably override the views of the doctors, except where it is necessary for the protection of others or of the patient. In my view, the refusal of a capable patient is a very important consideration which can in appropriate circumstances be overridden, particularly bearing in mind the circumstances in which the patient came to be detained and the benefits that could accrue from the treatment, especially where it may not have any adverse consequences for the patient and when it may enable the patient to be released from detention.

     IX – THE ARTICLE 14 ISSUE

     (i) Introduction

190. Mr. Bowen submits that there has been unfair discrimination against a patient with capacity because his refusal can be overridden in circumstances in which the consent of anybody other than a patient cannot be overridden. Article 14 of the ECHR deals with the prohibition of discrimination and it provides that:-

     "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".

191. In Ghaidan v. Godin Mendoza [2004] 2 AC 557, Baroness Hale of Richmond accepted as correct in paragraph 133 of her speech the approach advocated in Wandsworth LBC v Michalak [2003] 1 WLR 617, 625 [20] by Brooke LJ as amplified in R (Carson) v. Secretary of State for Work and Pensions [2002] 3 All ER 994 paragraph 52, that it would usually be convenient for a court when invited to consider an Article 14 issue to approach its task in a structured way. This approach required the court to ask itself four questions. If the answer to any of those questions was in the negative, the claim was likely to fail with the consequence that it was unnecessary to proceed to consider the next questions.

192. Those four questions are:-

     (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 a difference of treatment as respects that right between the complainant on the one hand and the other persons put forward for comparison ("the chosen comparators")?

     (iii) Were the chosen comparators 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? [19].

193. Brooke LJ, with whom the other members of the Court of Appeal agreed on this issue in the Wandsworth case, pointed out that sometimes there may be a need for caution about treating these four questions as a series of separate hurdles that have to be surmounted in turn, particularly because there is a potential overlap between the considerations that are relevant when determining at any rate the last two and probably the last three questions [22].

194. Baroness Hale of Richmond in Ghadian [134] expressed a similar opinion and she stated that "a rigidly formulaic approach is to be avoided" pointing out that there was an additional question to be considered which was question (v) namely "whether the difference in treatment is based on one or more of the grounds proscribed – whether expressly or by inference – in Article 14" [134].

195. Mr. Swift reminded me that in Wilkinson, Simon Brown LJ (as he then was) had said that he could not "see that Article 14 adds anything to the debate" [26]. Mr. Bowen says that his Article 14 claim is a live issue in this case as the appropriate comparator to the claimant is any person with capacity other than a patient because in his or her case, treatment can be refused and that capacitated refusal cannot be overridden. Mr. Bowen's submission is that those people ("the selected comparators") are entitled to refuse treatment to treat the consequences of their mental or other disorder because they are not held under the Act. He pointed out that in Re MB (Medical Treatment) [1997] 2 FLR 426, Butler-Sloss LJ giving the only judgment of the Court of Appeal said that:-

     "A competent person who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears or her own death. In that case, the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise" (page 436 – 437 and repeated in almost identical terms at page 444).

196. More recently, Judge LJ said in giving the judgment of the Court of Appeal in St. George's Health Care NHS Trust v. S [1999] Fam 26, 50H that a woman with capacity:-

     "is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished because her decision to exercise it may appear morally repugnant".

197. Mr. Bowen for the claimant, however, contends that if the refusal of a capable patient is not of overriding importance where no danger to the patient or others is established as in the present case, each of the questions referred to by Brooke LJ in the Wandsworth case must be answered in the affirmative with the result that a breach of Article 14 can be established.

198. It was not disputed that the first two questions posed by Brooke LJ must be answered in the affirmative because the administration of treatment to the claimant fell within the ambit of Articles 3 and 8 (question (i)) and there was different treatment between capacitated refusing patients and the selected comparators (question (ii)).The dispute between the parties thus centres essentially on questions (iii), (iv) and (v) .

     (ii) Question (iii) ("Were the chosen comparators in an analogous situation to the complainant's situation?")

199. Question (iii) must be answered in the negative as the selected comparators were not in the same position as patients with capacity for the following reasons, which I will now set out in no particular order of importance.

200. First, there is a material and significant difference between the condition and needs of a capable patient such as the claimant detained under section 37 of the 1983 Act and the selected comparator, because the selected comparator (unlike the claimant) does not suffer from mental illness, the nature and extent of which justifies the orders which have been made under sections 37-41 of the 1983 Act. A section 37 order can only be made by a court if the requirements of section 37(2) are met. These conditions are stringent as they require that:-

     "(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -

     (i) the mental disorder from which the offender 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; or

     (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

     (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section".

201. In R v Birch (1989) 11 Cr App R (S) 202, 210, the Court of Appeal Criminal Division explained in relation to a hospital order that:-

     "The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the results will be to avoid the commission by the offender of further criminal acts".

202. The non-consenting patient committed under section 37 of the 1983 Act has probably been placed in hospital in the hope and expectation that he will be treated or because he is a danger to the public and thus society has an interest in the patient receiving treatment. A second reason why the claimant and the selected comparators are not in analogous positions is that the claimant was detained under section 41, which means that it appeared to the court that his detention was "necessary for the protection of the public from serious harm". This position is markedly different from the selected comparator who either will not have a mental illness or (if he does suffer from a mental illness), his mental illness does not meet the high threshold of sections 37 – 41.

203. It is also noteworthy that there is also built into the statutory regime in the 1983 Act various other provisions which apply to mental patients and which do not apply to comparators. It is not suggested that these provisions in the 1983 Act fall foul of Article 14. The provisions in the 1983 Act to which I am referring include section 63, which provides that the consent of a patient shall not be required for any medical treatment for the disorder from which he is suffering but which treatment falls outside sections 57 and 58.

204. In my view, the selected comparators are not in an analogous position to the claimant's position and question (iii) must be answered in the negative with the result that the Article 14 claim fails.

     (iii) Question (iv) ("Did the difference in treatment have an objective and reasonable justification and did the differential treatment bear a reasonable relationship of proportionality to that aim?")

205. In case I am wrong on question (iii), I must now turn to question (iv), which is whether the difference in treatment have an objective and reasonable justification by pursuing a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to that aim.

206. The justification for the difference in treatment between the claimant and the comparator is that the claimant, unlike the comparator, in the words of the assumptions "suffers from a bi-polar affective disorder, a treatable mental illness" (Assumption 1) and that "the nature and extent of [his] illness is such that it is appropriate for him to be detained in a hospital for treatment". These assumptions show that there was a need for treatment for the disorder from which the claimant was suffering with the result that the difference in treatment of the claimant and the comparator did have an objective and reasonable justification.

207. I would have great difficulty in accepting Mr. Bowen's submission that the difference in treatment between the selected comparator and the refusing capable patient did not have an objective and reasonable justification where not only those factors to which I have mentioned are present, but also where the sentencing court had been satisfied, as it must have been the position in the case of the claimant, that the patient was suffering from a mental illness or psychopathic disorder.

     "which makes it appropriate for him to be detained in a hospital for treatment and, in the case of a psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition" (1983 Act s37(2)(a)(i)).

208. In my view, there is an objective and reasonable justification for the difference for the limited circumstances in which consent can be overridden.

209. In answering the second part of question (iv) on whether the differential treatment bore a reasonable relationship of proportionality to that aim, it is worth bearing in mind the very limited circumstances in which section 58(3)(b) of the 1983 Act can be invoked in respect of a capable patient, who does not consent. I set out the limitations on the use of these provisions when I was considering in paragraphs 122 to 127 above whether the provisions in section 58 (3)(b) of the 1983 Act were "necessary in a democratic society … for the protection of health".

210. It follows from this that a competent patient will only have treatment administered against his will where there is a convincing case to justify its administration in the light of the extensive safeguards for the patient, to which I have referred.

211. As I have already explained in paragraph 31 in those circumstances, the fact that consent could have been given by a patient but has not been given is a consideration of very high importance, which must receive significant weight but the present position under English law is that where the case of a medical necessity for treatment has been convincingly shown, this can, in certain circumstances override the decision of the capable person to refuse to consent. In my view, the very high threshold that has to be met before the refusal of a capable patient can be overridden for the claimant who has a treatable illness which justifies his detention (namely that the court has to be satisfied that the proposed treatment was in the patient's best interest and was convincingly shown to be medically necessary) is very significant. It constitutes an objective and reasonable justification for the difference in treatment between the refusing capable patient and the selected comparators, especially in the light of the conditions which have to be satisfied before a section 37 order can be imposed.

212. In order to decide whether section 58 is proportionate, it is necessary to apply the test quoted by Lord Steyn in Daly v. Home Secretary [2001] 2 AC 532 [27], which I quoted in paragraph 142 above.

213. The relevant limitations under challenge have the objective of protecting health, curing the patient and of protecting the rights of others. I did not understand Mr. Bowen to dispute that these are legitimate objectives, but his complaint is the extinction of the right of autonomy in the case of consenting detained parents is not proportionate. I am unable to accept that submission because of the mental illness suffered by the claimant which justifies his detention, as well as the very limited circumstances in which section 58(3) can be invoked for the reasons to which I have already referred.

214. Mr. Bowen then contends that this raises the question why those who, like the claimant, suffer from a mental disorder, which allows their detention in hospital should be subject to an entirely different regime in relation to issues of consent. For those reasons, Mr. Bowen submits that the claimant's Article 14 rights are infringed because Brooke LJ's questions can be answered in the affirmative.

215. In answer, there are significant and relevant differences between the claimant and somebody who is not a patient because first the claimant, unlike that other person, has a condition requiring and resulting in their compulsory detention under the Act and second, that the claimant unlike that other person meets the criterion of treatability. I regard all these points as valid and decisive in showing that question (iv) in the Wandsworth case and set out in paragraph 192 above must be answered in the affirmative.

     (iv) Question (v) Is the difference in treatment between the claimant and the comparators based on one or more of the grounds proscribed expressly or inferentially in Article 14?

216. In any event, question (v) must be answered in the negative because the difference in treatment between the claimant and the selected comparator is not based on any ground proscribed expressly or inferentially by Article 14. The reason for the difference is based on first the mental condition of the claimant, second the need for his detention for the protection of the public from serious harm and third the probable need for the claimant to be treated. None of those matters individually or collectively constitutes any ground proscribed in any way by Article 14.

217. In consequence, the Article 14 claim also fails. An additional reason why it must fail is, as was explained by the Strasbourg Court, "the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment" (Pretty v. UK (2002) 35 EHRR [58]).

     X Conclusion

218. For the reasons which I have endeavoured to explain, I have concluded that permission should be given, that the claim cannot be pursued because of its academic nature and in any event, that the proposed treatment would not amount to a breach of Articles 3 or 8 of the ECHR, "merely because the patient had capacity to consent but did not consent". I also reject the claim that the present law amounts to unlawful discrimination in breach of Article 14 against a patient with capacity because his refusal cannot be overridden in circumstances in which the consent of anybody other than a patient cannot be overridden. Thus, the claim has to be dismissed.

     POSTSCRIPT

     Just over a week after I circulated a draft of this judgment for corrections and shortly before I handed down this judgment, I received an unsolicited e-mail from counsel for the claimant, which enclosed a letter from the Chief Executive of the NHS Trust, which manages the hospital in which the claimant is being treated. According to the claimant's counsel, this letter "supports the claimant's position that he is at risk of being subjected to future compulsory treatment and that this claim is not 'academic' for this reason".

     The enclosed letter is a response to an earlier letter, which has not been sent to me. Nothing in the enclosed letter gives any indication about the likelihood of the doctors wishing to give any particular treatment to the claimant now or in the future. The letter merely sets out the legal position particularly in the light of the injunction to which I referred in paragraphs 12,13 and 16 above. I am unable to infer from the letter anything, which suggests that the claimant is "at risk of being subjected to future compulsory treatment". Thus my conclusions on the academic nature of this claim remain as set out in the body of this judgment.

     APPENDIX I

     LIST OF NECESSARY ASSUMPTIONS PUT FORWARD BY COUNSEL FOR THE CLAIMANT FOR THE PURPOSE OF CONSIDERING THE CLAIMANT'S CASE^[1].

1. The claimant is a patient lawfully detained for treatment under the Mental Health Act 1983 ("MHA") pursuant to orders under section 37-41 of the 1983 Act. He suffers from bi-polar affective disorder, a treatable mental illness.

2. The nature and extent of the claimant's illness is such that it is appropriate for him to be detained in a hospital for treatment^[2].

3. The proposed treatment is a course of medication falling within the scope of section 58(1)(b) of the MHA.

4. The claimant has the capacity to decide if he wishes to have treatment proposed by his Responsible Medical Officer ("RMO") but he does not wish to have the treatment and he has refused to give consent.

5. In the opinion of the RMO and the Second Opinion Appointed Doctor ("SOAD"), the proposed treatment for the claimant^[3] should be given having regard to the likelihood of the proposed treatment alleviating or preventing a deterioration of the claimant's condition.

6. In reaching this conclusion^[4], the RMO and SOAD have:-

   (i) taken into consideration the fact that the claimant is competent to refuse the treatment and has declined to consent to it; and

   (ii) given such weight to that factor as they consider appropriate (i.e. they have applied the approach stated in R (PS) v. Dr. G and Dr. W) [2003] EWHC 235 (Admin).

7. The RMO and SOAD are not satisfied that:-

   (i) the proposed treatment is required as a matter of emergency (i.e. section 62 of the MHA is not relied on); and

   (ii) the proposed treatment is necessary to protect other persons from harm or that without such treatment, serious harm is likely to result to the claimant's health^[5].

8. The administration of the proposed treatment:-

   (i) could be sufficient to reach the threshold level of degrading treatment for the purposes of ECHR Article 3; but

   (ii) would be regarded as constituting a medical necessity (as explained in Herczegfalvy v. Austria (1992) 15 EHRR 437 and R (N) v. Dr. M [2003] 1 WLR 562) and would not amount to a breach of Article 3, if administered to an incompetent patient. (As the law is currently understood and applied following R (PS) v. Dr. G and Dr. W, nor would it amount to a breach of Article 3 if administered to a competent patient, but whether PS is a correct statement of the law is the issue that falls to be determined in these proceedings).

9. The administration of the proposed treatment:-

   (i) would amount to a breach of ECHR Article 8(1) that would require justification under Article 8(2);

   (ii) would be a proportionate and response (sic) in the interests of the 'protection of health' and therefore justifiable under Article 8(2), if administered to an incompetent patient. (As the law is currently understood and applied following R (PS) v. Dr. G and Dr. W, it would also be justifiable under Article 8(2) if administered to a competent patient, but whether PS is a correct statement of the law is the issue that falls to be determined in these proceedings).

10. The issues for determination are whether by reason of the state of affairs assumed under paragraph 7(ii) above and on the basis of the assumptions set out above:-

    (1) the proposed treatment would amount to a breach of ECHR Article 3 merely because the patient had capacity to consent but did not consent; and/or

    (2) the proposed treatment would amount to a breach of ECHR Article 8 merely because the patient had capacity to consent but did not consent; and/or

    (3) the present state of law amounts to unlawful discrimination in breach of ECHR Article 14 against a patient with capacity because his refusal can be overridden in circumstances in which the consent of anybody other than a patient cannot be overridden.

    Note: Paragraph 7(ii) above identifies the "threshold requirement" identified by the claimant at paragraph 6 of his skeleton argument (and assumes that in the present case its requirements are not met). So far as the Secretary of State understands the claimant's case, it is simply that both in relation to the application of ECHR Article 3 and in relation to ECHR Article 8, if the "threshold requirement" is not satisfied compulsory, non-consensual treatment of a competent patient will be a breach of (i) Article 3 in those cases where the treatment reaches the necessary level to engage Article 3 and (ii) of Article 8 in every case.

    APPENDIX II
1. The purpose of this Appendix is to draw attention to the problem of resolving challenges to SOAD's certificates before the certificate lapses and the ensuing difficulties. This is a difficulty, which has arisen in a number of previous cases in which a patient has sought to challenge a decision of a RMO and of a SOAD to administer compulsory medication to a patient, who does not or who cannot consent to being subjected to the treatment. The problem arises because the SOAD's certificate permitting the treatment sometimes lasts for only three months not because of any statutory requirement, but because of medical practice. I asked counsel for the claimant and for the Secretary of State why the SOAD certificates, which I have seen, were only in force for three months and I was told that this was a customary practice, which might well be justified because the patient has a right to have his or her treatment reviewed regularly with the result that a three-month period might be the appropriate duration.

2. After I circulated a draft of this judgment, I was helpfully informed by Mr. Jeremy Hyam, counsel for the SOAD, that it is not customary for a three month period to be inserted in SOAD's certificates which are often of much longer or of indefinite duration. I gratefully accept that point. Nevertheless, even in cases where there is a SOAD's certificate of unlimited duration, there is usually a need for the treatment to be started promptly and that requires the court to consider any challenges to the SOAD'S certificate speedily but that is often difficult to achieve.

3. The difficulty can be shown by studying the course of a challenge to a SOAD because a patient challenging such a certificate and the proposed treatment usually make a prompt and successful application for an injunction prohibiting any further treatment until the hearing of the substantive challenge (see for example Wilkinson [6], PS [59] and in the present case as explained in paragraphs 12 and 13 above).

4. Unfortunately, in each of these cases, there has been a certificate lasting for three months and it has not been possible for a court to hear the substantive judicial review application until either after the end of the three-month period or as in the present case, very close to the end of the three month period. Even if the application for a challenge to the SOAD's certificate is rejected very close to the end of the three month period, it will not be possible for there to be any meaningful course of treatment in what little is left of the three month period. More importantly, even where the SOAD's certificate is for a longer period, the treatment is required urgently and this means that the courts should expedite the hearing of those challenges while ensuring that the claimant's position is safeguarded.

5. The difficulty for a court in trying to resolve a challenge to the SOAD application is that the requirement of a fair hearing for the patient's challenge means that there is often an inevitable delay while the claimant adduces expert medical evidence and in some cases, there is an extended hearing of the substantive application when the doctors are cross-examined (see N [31] – [39] at pages 572 to 579 for circumstances in which cross-examination of doctors should take place).

6. The worrying aspect of the problem caused by the need for the treatment to be started speedily and the limited life of some of the SOAD's certificate can be seen in the timetabling of some of the decided cases in which the SOAD certificates are challenged. In Wilkinson, it is not clear when the SOAD certificate was issued but proceedings were commenced on 15 March 2000 and it is probably right to assume that the SOAD gave his opinion just before that time. On 18 May 2000, Jowitt J refused the claimant's application for an order that all the doctors attend for cross-examination. The SOAD's certificate must have expired before 15 June 2000, but the hearing of the appeal from that order started in the Court of Appeal on 9 and 10 April 2001 before being continued on 30 July 2001, with judgment being given on 22 October 2001; by that time the certificate of the SOAD had long ceased to be valid.

7. In N, the certificate was issued on 17 May 2002 and the application to challenge the SOAD's certificate was dismissed in the High Court on 26 September 2002. This decision was upheld by the Court of Appeal in a reserved judgment handed down on 6 December 2002, by which time the certificate was again long out-of-date.

8. Similarly, in PS, the SOAD issued his certificate on 10 December 2002 and the judicial review application was only heard in July 2003, by which time the SOAD's certificate had also expired. In the present case, the rolled-up hearing of the permission and the substantive was due to take place on 6-8 October 2004 which was just before the SOAD certificate was due to expire on 15 October 2003. Thus, even if I had been able to give judgment at the end of the hearing and there had been no appeal, the treatment is unlikely to have been effected before the SOAD's certificate expired.

9. I stress that none of the claimants and certainly not the claimant in the present case has deliberately delayed or prevaricated in any way in pursuing their challenge to the SOAD. Nevertheless, it is noteworthy that claimants' legal advisors have no incentive to obtain an early hearing for the substantive judicial review application when, as is usual, the claimant is protected from receiving the treatment specified in the SOAD's certificate by an interim injunction restraining the doctors from administering it. The problem therefore rises as to how these challenges to SOAD's certificates can be resolved speedily, while ensuring that the claimant is given sufficient time to adduce and serve suitable expert evidence. I have had the benefit of thoughtful and helpful written submissions on this point from the claimant's solicitors and from the legal advisers for the RMO.

10. The claimant's solicitor points out correctly that if a SOAD's certificate is about to expire while the litigation is in progress, he can issue another certificate if appropriate. That is true but the issue of such a certificate would lead to a further application to challenge the new certificate, which would lead to a further flurry of witness statements from experts and a probable delay while the statements are being prepared and served. It is by no means certain that the hearing of the challenge to the second certificate would take place before it expired.

11. It is clearly desirable that the directions for an expedited hearing are given at the earliest possible stage. It is, however, not possible to set a pro-forma timetable to be applied in all cases because the timing of the ultimate hearing will depend on how long it takes the claimant to obtain a witness statement from his or her experts, who not only will have to examine the patient, but will also have to study with care the patient's medical records. I am very conscious that in almost cases, the claimant will need to obtain community funding and this is likely to delay matters.

12. The best way forward would be to ensure that when any claim is brought challenging the decision of the RMO or the SOAD to authorise medical treatment to a patient who does not consent, there should be a speedy and automatic oral case management hearing two working days after the challenge application is brought. The Mental Health Act Commission has suggested that at that case management hearing "one of the relevant factors to take into account when making directions at such a hearing is whether the SOAD has advised on the Form 39 that a further second opinion be obtained, and if so, at what stage". I agree with that suggestion. Unless an application for interim relief is made very quickly, it is unlikely that an interim order would be appropriate without at least a hearing at which other parties were represented. All parties should attend that hearing and the court could then consider a timetable for steps leading up to the hearing of the substantive claim within a timetable, which would be speedy and which would enable all parties to have sufficient time in which to present their cases. In many cases, it would be appropriate at the initial hearing to order a rolled-up hearing at which the court could consider the permission application and then proceed to deal with the substantive application.

13. I have discussed these proposals with Mr. Justice Collins, the lead judge of the Administrative Court and Ms. Lynne Knapman, the Head of the Administrative Court Office and they support these proposals.

Note 1   For the avoidance of doubt, the Secretary of State stated that this is a list of assumptions necessary to reach the point raised by the claimant, but no findings were made as to the actual facts of the claimant’s case, no concessions are made as to any factual issue.    [Back]

Note 2   Assumptions 1 and 2 are, in any event, in accordance with the conclusions reached by the MHRT concerning the claimant’s position. The Secretary of State accepts, however, that as between the claimant and the first/second defendants there was an issue of fact as to whether the claimant did suffer from bi-polar affective disorder.    [Back]

Note 3   The Secretary of State would wish to insert the words “would be lawful having regard to the requirements of section 58(3) (as they are presently understood)”.    [Back]

Note 4   The Secretary of State wishes to insert the words “the requirements of section 58(3) have been complied with (as they are presently understood)”.    [Back]

Note 5   The Secretary of State would wish to underline the fact that this is an assumption and not any form of concession as to the actual position that applies to the claimant: see, for example the witness statement of Dr. Sarkar at paragraphs 14 – 15 and 22    [Back]