England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 May 2005

Mr Justice Collins:

1. The claimant, whom I shall refer to as B, is now 27 years old. He is detained at Ashworth Hospital pursuant to a Hospital order under s.37 of the Mental Health Act 1983 ('the 1983 Act') coupled with a restriction order without limitation of time under s.41 of the 1983 Act. These orders were made following his conviction for offences of affray and causing actual bodily harm. This was in September 1995 when he was just 18. He has remained in Ashworth Hospital since then and is still regarded as too irresponsible to be released into the community because of his lack of co-operation with those who seek to treat him and his continuing threats and acts of violence.
2. That view is challenged by a psychiatrist and a psychologist who have submitted reports on his behalf. Professor Sashidharan, a consultant psychiatrist, maintains that the claimant is not suffering from mental disorder but that his problems are a result of "long standing emotional difficulties, dating back to his childhood, which remain poorly understood and largely unresolved, in spite of almost ten years of close psychiatric supervision and treatment". Professor McGuire, an eminent psychologist, is of the same view and concerned that B is fundamentally a case of "psychiatric injustice". He says: -

"[B] experienced a series of emotional problems in adolescence, was involved in an unfortunate incident in a children's home with the consequence that he almost by default ended up in secure psychiatric care. His pattern of behaviour since then has had two major features. One is a rejection of, resistance of and hostility towards the system which detains him and towards its representatives. The other is a fairly abject emotional insecurity and developmental delay which manifested itself in inappropriate attachments. The most troubling phenomena, which are the concern of other reports, [B's] verbal abusiveness and physical aggression at various points, become comprehensible when viewed in that broader context. In my opinion, his steadily deteriorating predicament is a function of development and situational factors rather than of underlying severe mental disorder. It is important that staff responsible for management of his care address that broader perspective".

3. There can be no doubt that this is a depressing tale. B is a very bright young man who could achieve much but for the undoubted problems which are resulting in his remaining in Ashworth. There has been no improvement in recent months: indeed, the contrary appears to be the case.
4. By May 2004 Dr Haddock, the first defendant and the claimant's responsible medical officer (RMO), decided that treatment with anti-psychotic medication would alleviate the claimant's condition. Confirmation in the form of a certificate authorising the treatment was obtained from the second defendant. Treatment commenced on 13 May 2004 and comprised forcible administration of intra muscular depot injections of an anti-psychotic drug. Following the lodging of this claim at the end of July 2004, Dr Haddock undertook not to administer anti-psychotic medication to the claimant without his consent until further order of the court and that formed part of an order of the court when permission was granted on 20 August 2004. It was hoped that the claim might be heard in September, but that did not prove possible and the certificate issued by the second defendant, whose existence was an essential prerequisite to the administration of the challenged treatment, was withdrawn. The claimant's representatives were informed that the RMO was still satisfied that the treatment was needed and that another doctor was being instructed to consider whether to grant a certificate that it was. The third defendant was instructed, read the documentation and interviewed the claimant. On 30 October 2004 he granted a certificate; but restricted the type and the amount of the medication. The claim was amended to add the third defendant and to take account of this development.
5. Two grounds were relied on in the claim. The first alleged that to administer the medication without consent was a breach of the claimant's human rights. This can be subdivided into a number of issues. These, briefly, are: -

(1) Is the claimant suffering from mental disorder?

(2) Does the claimant have capacity to refuse consent to the proposed treatment?

(3) Is the proposed treatment necessary?

(4) Is the proposed treatment likely to be in any way effective?

These issues overlap and I shall in due course expand on and explain them.

6. The second ground relied on the decision of the Court of Appeal in R(B) v Ashworth Hospital Authority [2003] 1 WLR 1886. The treatment in the present case was said to be effective to treat mental illness. The claimant is classified as suffering from psychopathic disorder, not mental illness. In the B case (above), the Court of Appeal decided that non consensual treatment would only be administered for the condition from which according to his classification a patient was suffering. When the hearing took place on 14 March 2005, the House of Lords was due to give judgment in an appeal from the Court of Appeal. Judgment was given on 17 March – see [2005] 2 WLR 695 – the day before the Easter vacation. I indicated that further submissions could be made once the decision of the House of Lords was known. The House of Lords reversed the Court of Appeal and decided that treatment of any disorder from which a patient suffered could be given irrespective of whether it fell within the form of disorder from which he was classified as suffering. Thus classification is not relevant in deciding whether a particular treatment is needed. So long as a patient is suffering from mental disorder and it is necessary for his health and safety and for the protection of the public that he be detained in a hospital, any treatment which is regarded as necessary to alleviate his condition can (subject to safeguards to which I shall refer) be administered to him. In the light of the decision of the House of Lords, Mr Pezzani has indicated that he cannot pursue the second ground. His concession is undoubtedly correct.
7. Following that brief introduction, I should refer to the material statutory provisions. S.63 of the 1983 Act enables treatment to be given by or under the direction of the RMO without the need for the patient to consent. But that is subject to s.57, which deals with particular forms of treatment of a particularly invasive nature, and s.58, which applies in a case such as this. It provides, so far as material; -

"S.58(1) This section applies to …

(b) the administration of medicine to a patient by any means … at any time during a period for which he is liable to be detained as a patient to whom this part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.

(3) … [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 [RMO] 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 [RMO]) 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 practitioners".

Part IV of the 1983 Act, in which these provisions relating to consent to treatment are to be found, applies to the claimant provided that he is liable to be detained since he does not fall within any of the exceptions in s.56. He is liable to be detained if he is suffering from mental disorder, that is to say, 'mental illness, arrested or incomplete development of mind, psychopathic disorder and any disorder or disability of mind' or from severe mental impairment, which makes it necessary for him to be detained in hospital to receive treatment for the protection of other persons or for his own health and safety: see ss.1(2), 3(2) and 37(2) of the 1983 Act.

8. Parliament has thus provided important safeguards for a patient. If he does apparently consent to treatment, there must be a written certificate that that consent is proper. If he does not consent, a second opinion must be obtained in the form of a certificate from a registered medical practitioner appointed by the Secretary of State (known as a SOAD) who must consult two persons concerned with the patient's treatment who are not themselves doctors. The Secretary of State has issued a Code of Practice under s.118 of the 1983 Act. This includes guidance as to how SOAD's should approach their duties under the Act. Paragraphs 16.20 to 16.22 provide as follows: -

"16.20 The role of the SOAD is to provide an additional safeguard to protect the patient's rights. When interviewing a patient the SOAD must determine whether he or she is capable of giving valid consent. If the patient does not give or is not capable of giving consent, the SOAD has to determine whether the treatment proposed by the RMO is likely to alleviate or prevent a deterioration of the patient's condition and should be given.

16.21 The SOAD acts as an individual and must reach his or her own judgment as to whether the proposed treatment is reasonable in the light of the general consensus of appropriate treatment for such a condition. In reaching this judgment the SOAD should consider not only the therapeutic efficacy of the proposed treatment but also, where a capable patient is withholding consent, the reasons for such withholding, which should be given their due weight.

16.22 The SOAD should seek professional opinion about the nature of the patient's disorder and problems, the appropriateness of various forms of treatment including that proposed, and the patient's likely response to different types of treatment. The SOAD should take into account any previo8us experience of comparable treatment of a similar episode of disorder. The SOAD should give due weight to the opinion, knowledge, experience and skill of those consulted".

The SOAD must satisfy himself that the treatment is indeed necessary and should, if he thinks it desirable to do so, consult with others than the two statutory consultees, including (with the patient's consent) the patient's nearest relative, family, carers or advocate.

9. Since any form of treatment which is administered without a previous consent is capable of breaching at least Article 8 (respect for private life) and particular treatment may even breach Article 3 of the European Convention on Human Rights, the courts have had to consider claims by patients such as the claimant. There are two important decisions of the Court of Appeal. The first is R(Wikinson) v Broadmoor Special Hospital & Others [2002] 1 WLR 419. The claimant in that case contended that, in order to comply with his right to a fair trial under Article 6 of the European Convention on Human Rights, it was necessary that the doctors concerned, that is to say the RMO and the SOAD together with his own medical expert, should attend court to give evidence and be cross examined so that the court could reach its own view whether the treatment infringed the patient's human rights. The court upheld that contention.
10. Considerable reliance was placed by the court on the possibility of bringing a claim under s.7 of the Human Rights Act or in tort (subject to the protection provided for the doctors by s.139 of the 1983 Act, which requires proof of bad faith or lack of reasonable care and the leave of the High Court to bring proceedings). This coupled with the need to consider and to deal with possible breaches of human rights made it essential for there to be a full merits review and for the court to form its own view having so far as possible investigated and resolved the medical issues. In paragraph 26 Simon Brown LJ said this: -

"It seems to me that the court must inevitably now reach its own view both as to whether this claimant is indeed incapable of consenting (or refusing consent) to the treatment programme planned for him by the first defendant as his RMO and, depending upon the court's conclusion on that issue, as to whether the proposed forcible administration of such treatment (a) would threaten the claimant's life and so be impermissible under Article 2, (b) would be degrading and so impermissible under Article 3, and (c) would not be justifiable as both necessary and proportionate under Article 8(2) given the extent to which it would invade the claimant's right to privacy. (I cannot see that Article 14 adds anything to the debate)".

He expressed the hope that cases such as this would be rare indeed. In paragraphs 30 and 31, he said this: -

"30. If in truth this claimant has the capacity to refuse consent to the treatment proposed here, it is difficult to suppose that he should nevertheless be forcibly subjected to it. True, Dr Horne appears to regard it as his only hope of eventual return to their community. That said, however, its impact on the claimant's rights above all to autonomy and bodily inviolability is immense and its prospective benefits (not least given his extreme opposition) appear decidedly speculative. Even, moreover, if the claimant is incompetent, the court will need to be satisfied, in the language of the European Court of Human Rights in Herczegfalvy's case 15 EHRR 437, 484 paras 82 – 83, "that the medical necessity has been convincingly shown to exist … according to the psychiatric principles generally accepted at the time".

31. Accordingly, were there to be a fresh decision to subject this claimant to forcible treatment which is then challenged, I would order the attendance of all three specialists for cross-examination at the review hearing. I recognise, of course, that this would be substantially complicate and lengthen the course of proceedings. I recognise too the great inconvenience it would occasion the defendants and the potentially inhibiting effect it could have in future on the choice of treatment for uncooperative mental patients. I would, however, express the confident hope that challenges of this nature, so far from becoming commonplace, will be rare indeed and will arise only in the most exceptional circumstances. Dr Grounds, and others like him will surely hesitate long before being prepared to join issue both with those who have the express statutory responsibility for treating the patient (RMOs) and also, in section 58 cases like the present, those specifically appointed to safeguard the patient's interests (SOADs). SOADs, I should note, are experienced and entirely independent specialists drawn from a panel appointed by the Mental Health Act Commission ("MHAC") which was directed by the Secretary of State to discharge on his behalf that function under Part IV of the Act. Courts, after all, are likely to pay very particular regard to the views held by those specifically charged with the patient's care and well-being. I do not go so far as to say that a Bolam/Bolitho approach will be taken to their evidence - i.e. that the treatment which they propose will be sanctioned by the court provided only that a respected body of medical opinion would approve it. Certainly, however, courts will not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following consultation with two other persons".

11. It was also made clear in Wilkinson that the SOAD must form his own independent view on the need for the treatment, bearing in mind the tests cited by Simon Brown LJ as set out by the ECtHR in Herczegfalvy v Austria (1992) 15 EHRR 437 at 484 in Paragraphs 82 and 83. It is interesting to note that in Paragraph 83 the ECtHR said: -

"In this case it is above all the length of time during which the handcuffs and security bed were used which appears worrying. However, the evidence before the court is not sufficient to disprove the governments' argument that, according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue".

The treatment had resulted in loss of teeth, broken ribs and bruises.

12. In R(N) v M & Others [2003] 1 WLR 562 the Court of Appeal considered the issue again and to some extent qualified what had been said in Wilkinson. It made the point that the only question was whether the treatment had been convincingly shown to be medically necessary. If so, there would be no breach of Article 3, even if the high threshold were otherwise crossed, nor of Article 8 since the interference with the right to respect for private life would be proportionate and would be justified within the terms of Article 8.2. The court also made the point that the treatment could not be in the patient's best interests unless a responsible body of medical opinion agreed with it, but it did not follow that the treatment could not be in the patient's best interests or medically necessary merely because there was a responsible body of medical opinion to the effect that the treatment was not in the patient's best interests and not medically necessary.
13. Mr Pezzani argued that the Herczegfalvy test had to be applied sequentially both to the determination whether the claimant suffered from a mental disorder and whether depot medication was a medical necessity. In paragraph 20 of N, albeit, as was said, not having heard argument directed to the point, the court said:-

"Suppose that there is a good chance (but it has not been convincingly shown) that the patient is suffering from a treatable mental illness which, if he were suffering from it, would unquestionably be alleviated by the proposed treatment. On the compartmentalised approach as we understand it, the Herczegfalvy test would not be made out. That is a surprising and, we would suggest, not a sensible outcome, at any rate in the case of a patient who does not have the capacity to consent to treatment".

It seems to me that there is indeed a single question. That is consistent with the ECtHR's approach in Herczegfalvy. It must be obvious that that test will not be met unless the RMO and the SOAD are convinced that the treatment will alleviate the patient's condition and so they must, after considering all the evidence, be at least persuaded that the patient is indeed suffering from a mental disorder for which the treatment is needed. It is, I think, important to bear in mind that precise diagnosis of mental disorders is not always possible and psychiatrists are often unable to be certain from what form of disorder the patient is suffering. But they may properly be convinced that a particular form of treatment will alleviate a condition from which they have good reason to believe the patient is suffering. It is clear that the more drastic the treatment, the more the doctor must be satisfied of the need for it and in this respect there is no difference in principle between physical and mental disorders.

14. The Court indicated that it should not often be necessary to adduce oral evidence with cross-examination. In Paragraph 39 this was said: -

"We suggest that it should not often be necessary to adduce oral evidence with cross-examination where there are disputed issues of fact and opinion in cases where the need for forcible medical treatment of a patient is being challenged on human rights grounds. Nor do we consider that the decision in R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 should be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally. Much will depend on the nature of the right that has allegedly been breached, and the nature of the alleged breach. Furthermore, although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court's role is essentially one of review: see per Lord Steyn in R(Daly) v Secretary of State for the Home Department [2001] 2 AC532, 547, para27".

In this case, the doctors were not called. Counsel, in my view correctly, considered that I would not have been assisted by hearing them since each had commented in some detail on the reports of those taking a different view. Mr Pezzani did apply to call the claimant, but I refused that application since it did not seem to me that his evidence would conceivably assist me in reaching my decision. I had his statement and was content to take it at face value.

15. I am bound to say that without the Court of Appeal decisions, particularly that of Wilkinson, I would have doubted that it was appropriate for the court to reach its own conclusion after, if necessary, hearing evidence. Parliament has required a second independent medical opinion in order to protect the patient's rights. S.139 of the 1983 Act limits in what in my opinion is a clearly proportionate fashion the ability of a patient to bring civil proceedings in connection with his treatment. Article 6 does not necessarily require in all cases that the independent and impartial tribunal (here, the court) must consider the whole matter afresh and reach its own conclusion having heard or considered all the evidence. The Court must naturally consider all the evidence put before it but it is difficult to follow why that should extend beyond consideration of written material. Furthermore, having regard to the fact that the issue is a medical one and that there are safeguards in the requirement of confirmation by an independent expert who must seek advice from at least a nurse and a non-medical person, it is difficult to see why the court should go beyond its normal review obligations, albeit, since human rights are involved, to the high level required. However, I recognise that I am bound by and must apply the approach set down in Wilkinson. I note the last sentence of paragraph 39 in N's case. I confess that I do not find it easy to follow how an obligation to determine for myself the disputed facts, namely whether the claimant has capacity and whether the treatment is convincingly shown to be needed, fits in with a limitation to review.
16. A SOAD is required to give reasons for his decision. This was made clear by the Court of Appeal in R(Wooder) v Feggetter [2002] EWCA Civ 554. Brooke LJ said at paragraph 25: -

"With the coming into force of the Human Rights Act 1998 the time has come, in my judgment, for this court to declare that fairness requires that a decision by a SOAD which sanctions the violation of the autonomy of a competent adult patient should be accompanied by reasons. The fact that the critical decision is made by a doctor in the exercise of his clinical judgment and not by a tribunal following a more formal process, cannot, in my judgment, be allowed to diminish the significance of the doctor's decision".

In my view, this principle applies equally to an incompetent as to a competent patient. The third defendant has in this case given full and detailed reasons for reaching his conclusion that he should issue a certificate enabling the treatment in its modified form to be administered.

17. The test for capacity has been set out by the Court of Appeal in Re MB (Medical Treatment) [1997] 2 FLR 426. That case concerned a refusal of consent to a caesarean section resulting from an irrational fear of needles. Without the operation the baby ran a serious risk of death or brain damage. After considering a number of authorities, the Court through Butler-Sloss LJ said this at p.437: -

"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 [1994] 1 F.L.R. 31, 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".

There is a presumption in favour of capacity. Furthermore, the fact that a patient is suffering from a mental disorder cannot of itself mean that he lacks capacity. While it does inevitably mean that an ability to understand the nature purpose and likely effect of any proposed treatment may not exist, it is essential that such lack of capacity is established.

18. The first question to be answered is whether the claimant suffers from mental disorder at all. If he does not, the treatment cannot be given. The claimant's father is from Jamaica, but he has never seen him. His mother is a white woman from Yorkshire. The claimant suffered racist taunts and abuse at school. He reacted in a violent manner. His former RMO, Dr Finnegan, notes that his mother commented that he tended to interpret what was said to him in an inappropriately literal fashion, disliked change of any sort and reacted violently to it and had his routines to which he would stick. It is fair to say that those observations have since been retracted, but they fit in with what has been observed while he has been at Ashworth. In 1990 his obessional behaviour led to referral to a child psychiatrist. In 1992 he was admitted to hospital in Scotland pursuant to the Mental Health (Scotland) Act 1984 and stayed there (subject to some abscondings) for a month or so. He became more aggressive to his mother. Following an assault on her, he was placed in a children's home in 1993, where he assaulted another inmate.
19. In the summer of 1993 he was assessed by two psychiatrists. Each thought he was not suffering from "a process psychotic illness" but that he showed personality problems. Professor Zeitlin, who also examined him, believed that he was suffering from early onset schizophrenia and/or a neuro-developmental disorder and that he should be treated with antipsychotic medication. This did not happen since Professor Zeitlin's diagnosis was not accepted by other psychiatrists.
20. The claimant committed assaults on fellow residents and staff at the homes at which he was placed during 1993. In September and October 1993 he committed three serious assaults which led to his arrest and eventual committal to a Youth Treatment Centre. Assaults and threats of violence were a regular feature of his behaviour. In due course, two assaults on staff in April and May 1994 led to the court appearance which resulted in his committal to Ashworth. He sought to justify the numerous assaults and threats of violence. The medical opinion then, which was supported by observations of staff, was: -

"Those aggressive acts, whilst appearing unprovoked, are in [B's] distorted perception justified. This must be seen in a context of [B's] mental state which is fully documented in the psychiatric reports …"

21. When he was being assessed to try to ensure that the correct disposal was made by the court, he was seen by a number of psychiatrists. He was regarded as extremely dangerous: his behaviour fully justified this concern and the relatively minor offences which led to his present detention at Ashworth do not reflect the reality of his seriously aggressive behaviour. Professor Sashidharan makes the following comments: -

"I am troubled and concerned by what has happened to this young man. This is one of the most obvious cases of 'psychiatric injustice' that I have ever come across. Why [B] was ever considered to be appropriate for admission to Ashworth remains a mystery to me. By my standard, it is most unusual for a 17 year old to be admitted to conditions of maximum security, through a care pathway that by passed all the other treatment settings and levels of lower security within the mental health system".

I am afraid that I am not able to accept these comments having regard to the history, which I have briefly set out and which is set out in detail in the first defendant's statement, citing the voluminous records held on the claimant. The claimant's behaviour has meant that it was impossible for him to be held let alone treated, since he failed to co-operate, in a less than secure placement. Dr Rix, who was instructed on behalf of the first defendant to give an independent view, commented: -

"I acknowledge Professor Sashidharan's contention that the claimant's aggressive and oppositional attitudes have manifested largely in conditions and circumstances that the claimant perceives are unjust and unfair or which he felt that his welfare and needs were compromised by the actions of others. However, in more than twenty years of clinical practice in a multicultural city in West Yorkshire I have had considerable experience of people who have experienced marginalisation, exclusion and abuse from an early age because of their racial and ethnic background, but the claimant's seeming reaction to such experiences is extreme in my experience and it differs, in degree, from that of many of the prisoners, patients and, indeed, mental health and community professionals with whom I have worked. I have worked with patients who have found the culture of a high security hospital difficult and challenging but I cannot recall one who has reacted as the claimant has done. I can only suggest that such extreme responses on the part of the claimant requires an explanation such as that in his case there is a personality disorder which is shaping his response to these experiences and in the absence of which he would not be where he is today. The explanation for this probably does lie in the significant emotional problems which the claimant experienced from an early age and which have had a detrimental effect on his overall behaviour and functioning".

22. As will be apparent from this citation, B's behaviour has continued in the same vein since his detention in Ashworth. Efforts were made to try to find an alternative to the maximum security regime and a placement in a less secure environment. They failed, partly because of concerns about B's violent behaviour and partly because he showed no motivation to consider any alternative. In his statement, the first defendant has set out details of relevant violent or uncooperative behaviour, ranging from assaults through threats to kill or of violence towards staff or fellow patients if he did not get his own way, damage to property and protests involving smearing his room with excrement.
23. Apart from violence, there have been two major episodes of delusional behaviour in relation to two members of staff. The first I shall call Dr K. She provided psychology sessions for B in 1998. He became convinced that he had a personal romantic relationship with her. There was no foundation for this belief. He has persisted in it, describing Dr K as his ex-girl friend and he has made threats against her because he believed she had breached confidence by discussing his case with his then RMO. Professor Sashidharan's observation that the first defendant has based his conclusion that B has fixed delusional beliefs 'largely but not exclusively on the ideas B had expressed in 1998/1999 in relation to' Dr K is simply wrong. The delusion persists as is clear from the statement made by the claimant for those proceedings.
24. The second delusion relates to a member of staff whom I shall call Miss H. He has convinced himself that she was the victim of bullying by other members of staff and has as a result issued threats, both oral and written, to other members of staff. These delusional beliefs were particularly evident in May 2004 and helped to persuade the first defendant that medication was appropriate.
25. I have no doubt that the opinions of Professor Sashidharan and Professor MaGuire must be rejected. Professor MaGuire accepts – it would be impossible to conclude otherwise – that there is a risk that some of B's threats may be acted upon. His opinion is that the risk is 'increased in what he experiences as an oppressive and controlling environment'. Unfortunately, B is convinced that the first defendant and the staff at Ashworth are not acting in his interests and he has refused to speak to or to be seen by the first defendant. This uncooperative attitude, which is fed by his irrational beliefs in the attitude of staff, is nothing new. The history shows that attempts to find an alternative to maximum security simply have not worked. Thus Professor MaGuire's conclusion that: -

"Such help as he needs could be provided in conditions of lower security, if a phased plan were drawn up to implement this, and its objectives were constructively discussed with [B]".

is in my view totally unrealistic.

26. The claimant is presently classified as suffering from psychopathic disorder. There was a hearing before an MHRT over 7 days at the end of March. One of the issues was whether there should be a reclassification to include mental illness. The first defendant believes that B is suffering from mental illness in addition to psychopathic disorder. He has personality disorders of various forms and a persistent delusional disorder. The third defendant says that on the balance of probabilities he is satisfied that B 'suffers from personality disorder and that in addition his presentation is compatible with a mental illness in the form of delusional disorder'. He makes the point that there cannot be certainty as to diagnosis. Dr Rix is satisfied that B suffers from personality disorder and has no hesitation in diagnosing psychopathic disorder. He says mental illness is more difficult, but is persuaded that his delusional beliefs are sufficient to justify a diagnosis of mental illness. But he makes the pertinent observation: -

"The distinction between mental illness and personality disorder is probably more imagined that real and this claimant is an example of someone whose case raises enormous difficulties when trying to make a diagnosis".

27. The decision of the House of Lords in R(B) v Ashworth Hospital Authority (supra) means that classification is less important. At paragraph 31 in [2005] 2 W.L.R. at p.706, Baroness Hale said this: -

"Secondly, psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. As this case also shows, co-morbidity is very common: see also Mental Health Act Commission, tenth Biennial Report 2001-2003, Placed Amongst Strangers, Paragraph 7.30, citing Blackburn, Logan, Donnelly and Renwick (2003), Paragraph 20 above. The commission, at Paragraph 7.31, observes (quoting the researchers, at p 114):

"If there is widespread co-morbidity between personality disorders and mental illness irrespective of Mental Health Act classification, then 'the dichotomy imposed by legal classification is misleading and obscures the multiple problems shared by patients in the two categories".

It is not easy to disentangle which features of the patient's presentation stem from a disease of the mind and which stem from his underlying personality traits. The psychiatrist's aim should be to treat the whole patient. In this case, the patient's mental illness having been stabilised on medication, the aim was to address the underlying features of his personality which were getting in the way of his transfer back to a less restrictive setting. Once the state has taken away a person's liberty and detained him in a hospital with a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs. It would be absurd if a patient could be detained in hospital but had to be denied the treatment which his doctor thought he needed for an indefinite period while some largely irrelevant classification was rectified".

Those observations have obvious relevance to this case. The MHRT decided that they could not say, on the balance of probabilities, that B was suffering from mental illness. In the circumstances, I do not think that it is necessary for me to decide for myself whether he is suffering from mental illness as well as from psychopathic disorder. Provided that the proposed treatment is convincingly needed to alleviate whatever mental disorder afflicts him, it is immaterial what classification is applied.

28. The claimant has forcibly resisted administration of the medication. In his statement he says: -

" … I have a particular set of values which amounts in itself, to a particular way of life and leads to me having a strong view neither to engage with psychiatrists and other professionals nor to accept neuroleptic or other drugs. This is not a recently held view but one which I have always strongly adhered to. It is perhaps for this reason that a number of medical reports, both recent and in the past, have been inaccurate, and have failed also to fairly or accurately reflect my views. I believe that my body should not be subjected to drugs whether those are unlawful drugs or those legally prescribed as this would contravene my way of life and condemn me to long term seclusion at Ashworth for so long as the forcible administration persists".

But he had had two previous periods when he received anti-psychotic medication in the form of depot injections. His recent attitude is summarised by the MHRT in these words: -

"For the past 12 months he has required almost uninterrupted seclusion because of his repeated and varied threats to commit acts of serious violence to staff and others. He holds firm beliefs that his way of life must not be interfered with. He perceives that any improvement in his behaviour and a subsequent release from seclusion would indicate that the treatment he was so unwillingly receiving was beneficial to him. He firmly believes that any sign of a compromise between himself and the Ashworth regime or the staff would manifest a submission on his part".

29. As I have said, B is highly intelligent and capable of manipulating a situation to what he regards as his advantage. Dr Finnigan records during the second period of medication a discussion with B in these terms: -

"B was at great pains to point out to me that medication has had no beneficial effects for him and has caused only unpleasant side effects. He would not acknowledge any possibility that his current presentation might be evidence of a change and he insisted that it was only because of my willingness to talk to him and listen. We talked of the possibility of his coming out of seclusion in the next few weeks and he said that he did not want to until his trial on medication was over because he did not want me to think that such a change implied improvement and therefore efficacy. This came up repeatedly in different forms during the discussion".

B's belief that any proposed treatment could not be in his best interests and his inability as a consequence to weigh properly and sensibly the advantages and disadvantages means that he does not have capacity. That is the view of the defendants. Dr Rix points out that B's arguments about drug treatment are fallacious and that 'there is psychopathology about body image and bodily integrity which distorts the claimant's thinking to the extent that he cannot weigh in the balance of arguments for and against drug treatment'. Mr Pezzani relies on a report from Dr Girgis which he submits refutes Dr Rix's conclusions. I do not think it does. It is true that Dr Girgis is not prepared to agree positively with Dr Rix, finding the conclusion to be 'highly debatable'. This is, however, in the light of his view that the treatment should be given provided that it is likely that it will alleviate or prevent a deterioration of the mental disorder and so capacity is largely irrelevant. I am satisfied that Dr Rix is correct and that, as both defendants also conclude, the claimant lacks capacity within the terms of s.58(3)(a)(b) of the 1983 Act.

30. I have said that the precise classification is less important. It does, however, have some relevance because it is said by Professor Sashidharan that the treatment is appropriate for mental illness and not for psychopathic disorder. He has said in one of his reports: -

"It is generally accepted that there is no firm evidence base for the use of antipsychotic medication in the treatment of personality disorder (psychopathic disorder) or in Asperger's syndrome".

He refers to Asperger's syndrome because that had been put forward as a possible diagnosis. However, in common with the overwhelming balance of opinion by those who have examined and reported on the claimant, I do not think Asperger's syndrome is the answer. This statement appeared to conflict with evidence which Professor Sashidharan had given in R(B) v Ashworth Hospital Authority. His explanation, which I do not find at all convincing, is as follows: -

"In my statement in relation to patient B, I am referring to 'usual practice' or what some clinicians consider to be appropriate in routine practice. It is not uncommon for clinicians to use antipsychotic medication in the treatment of PD. This does not mean that the efficacy of such intervention has been established. The evidence for the effectiveness of antipsychotic medication in treating PD remains less than convincing".

The Professor's report conveyed a misleading impression. If antipsychotic medication is used in the treatment of PD, it can hardly be believed that it is likely to be ineffective. The reality is that in a situation where the precise nature of the mental disorder is uncertain, it is more likely that antipsychotic medication may benefit the patient.

31. The fact that no other form of treatment has had any beneficial effect is a matter to be put in the balance but it is obvious that it would be wrong to seek to administer such medication in the hope that it might do some good. That would not cross the threshold of convincing need. It is therefore important to see whether there are indications that it would alleviate the claimant's condition. Thus the two previous periods of medication are highly relevant since an indication that they did benefit the claimant gives support to the need for the treatment now.
32. The first period of medication was commenced in April 1996. A review of the clinical entries at the time shows that there was a change in B's behaviour. The first defendant states (and I do not understand these observations to be contentious): -

"Response to antipsychotic medication in the form of depot injections is particularly difficult to assess because it has a delayed onset of action. Any response needs to be assessed over a time scale of at least six months and preferably at least a year. Likewise the effects of ceasing antipsychotic medication in depot form emerge over prolonged time scales and cannot be expected to emerge immediately. Antipsychotic medication from depot injections remains active within patient's bodies for many months following the cessation of injections".

Violent reactions and inappropriate behaviour did not cease, but it was noted during 1997 that there were fewer episodes of such a nature. The claimant did not want the medication to continue and sought to persuade the then RMO that it should cease. In December 1997, in the first defendant's view regrettably, the clinical team acceded to the claimant's persistent requests that he should have a trial without medication. There was, unsurprisingly, no immediate deterioration: indeed, during 1998 things improved to such an extent that he was granted parole status within the grounds of the hospital and the view was formed that a conditional discharge should be considered. However, unknown to the RMO at the time this recommendation was made, B's delusions in relation to Dr K were developing. There was a gradual deterioration in his conduct generally and any idea of conditional discharge had to be abandoned.

33. In November 2000 Dr Finnegan persuaded the claimant to agree to a 6 month trial of medication. The dosage was kept at a low level. The first defendant says that he has discussed with Dr Finnegan the results of the trial and that Dr Finnegan accepts that the dosage was kept at too low a level and that the claimant took steps to sabotage any signs of improvement. Mr Pezzani has argued that the claim by the first defendant that the dose administered was too low constituted a serious allegation against Dr Finnegan in that it amounts to a suggestion that he had knowingly made the claimant undergo a course which he knew would be ineffective. Dr Finnegan's acceptance that he should have increased the dosage does not establish that he knew that what he was then doing would be ineffective or was wrong. In any event, the trial was as it turned out ineffective.
34. The claimant is aware of the possible side effects of the medication and has complained that he is suffering from them. Dr Rix was disinclined to believe that he had been when he saw him. And there is evidence that, despite the claimant's violent resistance to receiving the injections, they were doing him some good in reducing the extent of his violent reactions. I am satisfied that antipsychotic medication has resulted in an alleviation of the claimant's condition and that there is therefore good reason to believe that it is likely to do so again. That being so, the decision reached by the defendants is not open to challenge.
35. I have not gone into extensive detail in this judgment. I have, of course, read and reconsidered all the material which has been put before me. I acknowledge that there appears to be an apparently respectable body of opinion that the proposed treatment is not justified but in my judgment that is clearly and decisively outweighed by those who conclude that it is. It is noteworthy that his condition has deteriorated since the medication ceased.
36. I note that it is said that some of the nurses who are concerned with B have indicated their opposition to the forcible administration of medication. One who was reported by Professor Sashidharan as having disagreed with the treatment has told the first defendant that he has either been misquoted or misunderstood. A contemporaneous report of a care meeting held on 4 April 2004 records that, while there were those who did not believe that compulsory medication was the right course and that other forms of treatment had to be considered, following discussion, those present at the meeting, who included two team leaders and two staff nurses, agreed that medication was appropriate. It had been instituted because of a serious deterioration of the claimant in April / May 2004 and it had had beneficial effects.
37. Mr Pezzani submits that, since the claimant has refused to see the first defendant since early this year, the observations of Simon Brown LJ in Wilkinson at paragraph 31 that 'the court will not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following consultation with two other persons' should carry less weight. As the MHRT observed, the first defendant: -

"has known B since 1997. He has seen him on 26 occasions although not since January 2005, when B refused to be interviewed by [him] or talk to him. Before the preparation of his report to the Tribunal, [the first defendant] spent two weeks uninterrupted by other duties, reading through the voluminous records. He has attended regular ward meetings and pooled information with the other members of the clinical team, including his assistant, Dr Rigby".

Both the third defendant and Dr Rix were able to interview the claimant, albeit in less than ideal conditions. The same can be said for Professor Sashidharan and Professor MaGuire. In the circumstances, I do not accept that the first defendant's opinion as RMO, supported, as it is, by the SOAD, should be accorded less weight.

38. As a postscript to this judgment, I have been asked to consider what part a SOAD should play in a claim such as this. The decision under attack is that of the RMO, but also the SOAD is obviously at least an interested party and his certificate together with the reasons for granting it must always be before the court. But it seems to me that, unless it is alleged that he has been guilty of some specific error of law in granting the certificate, he need not appear or be represented. Such an error might be alleged if, for example, he had failed to consult properly in accordance with the statutory obligations or if it was said that his reasons were defective or showed that he had acted irrationally. If, as here, the attack is on the merits, it will be for those advising the RMO and the SOAD to decide whether he needs to be represented and what, if any, statement he should submit in addition to his reasons.
39. In my judgment, his position is more akin to that of a tribunal whose decision is under attack. His obligation is to make an independent decision and, if he agrees with the RMO, to issue the necessary certificate. It will, I think, be rare that it is necessary for him to be represented, although I accept that it is appropriate to treat him as a defendant. He will of course co-operate with those advising the RMO and will have access to independent advice from the Treasury solicitor. If the court thinks that evidence is needed, he will give it and it will be for him and those advising him to decide whether he needs to be represented. I am entirely satisfied that the mere fact that he is treated as a defendant does not require him to be represented at the hearing and no adverse inference could possibly properly be drawn if he is not and if there is no good reason why he should be having regard to what I have said above.
40. For the reasons I have given, this claim must be dismissed. I regret that there has been a delay in producing this judgment, but the House of Lords and MHRT's decisions coupled with the Easter vacation and the need to await any further submissions have contributed to it.