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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> "N", R (on the application of) v Doctor "M" & Ors [2002] EWCA Civ 1789 (06 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1789.html Cite as: [2003] Lloyds Rep Med 81, [2003] Fam Law 160, [2002] EWCA Civ 1789, (2003) 72 BMLR 81, [2003] Lloyd's Rep Med 81, [2003] WLR 562, [2003] 1 WLR 562, [2003] 1 FCR 124, [2003] 1 FLR 667

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Silber)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th December 2002

Lord Justice Dyson :

This is the judgment of the court.

Introduction

1. Ms N ("the claimant") has been a patient at X hospital since January 1999. On 10 May 2002, Dr M, a consultant forensic psychiatrist at the hospital who was then her responsible medical officer ("RMO"), presented the claimant with a treatment plan which included administering depot (ie by injection) anti-psychotic medicine for the prevention or the alleviation of her psychotic illness. The claimant did not consent to this treatment. Dr M then asked for another consultant psychiatrist, to be appointed as a Second Opinion Appointed Director ("SOAD") by the Mental Health Act Commission ("the Commission"). Dr O was duly appointed, and on 17 May, he issued a certificate under section 58(3)(b) of the Mental Health Act 1983 ("the Act") in which he stated that the claimant was suffering from paranoid psychosis/severe personality disorder, and that she required regular anti-psychotic treatment. By proceedings issued on 24 May 2002, the claimant sought to challenge the decisions of both doctors. Permission was granted by Goldring J. On 26 September, in a careful and impressive judgment, Silber J dismissed the application. He gave permission to appeal on the grounds that he thought that the case raises issues of some general importance.

The history and the medical evidence

2. For the purposes of resolving the issues that arise on this appeal, it is not necessary to explore the history or the details of the medical evidence as thoroughly as the judge did. His exposition appears at paragraphs 14-39 of the judgment. The following is a brief summary. The claimant was born a male on 13 February 1962. She had gender reassignment surgery in 1993 and now uses a female first name and a new surname. She has a bad record of criminal convictions for serious offences committed both before and after 1993. In June 1997, she was arrested for making threats to kill. Whilst on remand, she was assessed by a consultant from X Hospital in August and October 1997 and found to be psychotic and unfit to plead. According to the Claim Form, on 20 April 1998 she was found to have committed the actus reus of the offence of making threats to kill, and an admission order was made against her pursuant to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 together with a restriction order. This order has the same effect as a hospital order and a restriction order under sections 37 and 41 of the Act. She can be returned to court if and when she becomes fit to stand trial. This has not yet happened.
3. She was admitted to the Y Clinic on 19 March 1998 where she was described as experiencing auditory hallucinations and delusional beliefs. She was treated initially with depot anti-psychotic medication, and her mental state improved. The medication was later stopped when Dr V, her RMO at the time, said that he did not consider that she was suffering a psychotic illness. But she became increasingly difficult to manage: on one occasion she claimed that she had a knife in her vagina and threatened to kill a man with it. On another occasion, she made an obviously unfounded allegation that she had been raped.
4. On 12 January 1999, she was transferred to X hospital where she remains. The judge refers to a number of instances of worryingly aggressive behaviour. A number of psychiatrists made reports on her mental condition during 2000 and 2001, and they expressed differing opinions as to whether she was suffering from a psychotic illness or a personality disorder or both.
5. In early 2002 Dr M, in her capacity as the claimant's RMO, came to the conclusion that depot medication should be administered on the basis that the claimant was suffering from a psychotic illness. She obtained a second opinion from Professor Coid, who is a consultant in forensic psychiatry and professor of forensic psychiatry at St Bartholomew's and the Royal London School of Medicine and Dentistry. His report is dated 27 March 2002. He advised that the claimant was suffering from paranoid psychosis, delusional disorder and severe personality disorder. He also considered that she did not have the capacity to make decisions about her treatment. He believed that treatment in the claimant's best interests included the use of forced anti-psychotic medication for the purpose of treating her delusional disorder.
6. When the claimant refused to consent to depot anti-psychotic medication, Dr M requested the Commission to appoint a SOAD. Dr O was appointed. In the meantime, the claimant's solicitor had sought an opinion from Dr Lock, who is an independent psychiatrist. Dr Lock's report is dated 9 April 2002. He advised that the claimant was fit to stand trial, that she was very unlikely to be suffering from a psychotic illness and that she was certainly not a schizophrenic. He concluded, therefore, that she should not be given anti-psychotic medication, and that she retained the capacity to make treatment decisions. He thought that she suffered from a complex personality disorder which was probably untreatable.
7. On 17 May, Dr O diagnosed the claimant as suffering from "paranoid psychosis/severe personality disorder", and certified that regular anti-psychotic treatment was required. More recently, the claimant has been transferred to a different ward in the X hospital, and a new RMO has been allocated to her with whom, we are told, the claimant has formed a good relationship. But the question of the lawfulness of the decisions under challenge remains, at least potentially, a live issue.

The relevant statutory provisions

8. So far as material, section 58 of the Act provides:

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

(4) Before giving a certificate under subsection (3)(b) above, the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner."

9. Section 63 provides:

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

Summary of the judge's conclusions

10. It was submitted to the judge on behalf of all three defendants that he ought to allow cross-examination of the doctors in order to enable him resolve the conflict in the medical evidence disclosed by the written material before him in relation to whether the claimant (a) was suffering from a psychotic illness (as well as an untreatable personality disorder), and (b) had the capacity to give her consent to the treatment proposed by Dr M and Dr O. On behalf of the claimant, it was submitted that cross-examination was inappropriate, and that the judge should decide the issues simply on the basis of the written evidence before him. The judge decided to allow cross-examination. He heard evidence from Dr Lock, Dr M and Dr Parrott. Dr Parrott is a Consultant Forensic Psychiatrist and Clinical Director at the Bracton Centre, Oxleas NHS Trust. She prepared a report dated 18 June 2002 on behalf of Dr M and Dr O for the purpose of the judicial review proceedings.
11. At paragraphs 60-72, the judge considered the claimant's capacity to give her consent, and concluded in the light of the medical evidence that she could not do so. He then turned to the diagnosis of the claimant's mental condition, and discussed this at paragraphs 73-85. Having assessed the medical evidence, he concluded that the claimant was suffering from a psychotic illness.
12. The judge then considered whether permission should be given to the proposed treatment notwithstanding that she did not consent to it. He discussed the application of the "best interests" test at common law (paragraphs 88-106) and concluded (paragraph 106) that it was "necessary that the claimant should have the proposed depot treatment as being in her best interests". Next he dealt with the issues arising under article 3 of the European Convention on Human Rights ("the Convention") (paragraphs 107-118). He assumed in the claimant's favour that article 3 was engaged, and concluded (paragraph 118) that the medical necessity for the proposed treatment had been convincingly shown. Finally, he addressed the issues arising under article 8 of the Convention (paragraphs 119-123). He assumed that there was a prima facie breach of article 8(1), but found that the proposed treatment was justified under article 8(2) (paragraph 123).

The issue arising on the appeal

13. As became clear when Mr Matthias Kelly QC opened the appeal, the only remaining issue is whether the judge was right to conclude that, despite the fact that there was a body of responsible medical opinion that the statutory test for medication had not been satisfied, it was nevertheless in the claimant's best interests and necessary for the purposes of article 3 that the proposed treatment should be administered.
14. The claimant's first skeleton argument raised other issues. These included the question whether, as had been submitted to the judge, it was wrong in principle for the judge to seek to decide which medical opinion was correct, allowing cross-examination of the witnesses to enable him to do so. Mr Kelly concedes that the judge was right to require cross-examination on the facts of this case. In deciding to take this course, the judge relied heavily on the decision of this court in R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419. We shall return to this decision later.
15. As we have already said, the judge assumed that article 3 was engaged on the facts of this case. Relying on a number of Strasbourg decisions, including Grare v France (1993) EHRR 100, Mr Philip Havers QC wished to argue that the proposed treatment did not reach the minimum level of severity necessary for article 3 to be engaged at all. In the event, we did not find it necessary to hear argument on this point.

The standard of proof

16. An important question is what standard of proof is required before a court can properly be satisfied that it is appropriate to give permission for treatment where the patient does not consent to it. The judge was right to say that he had to be satisfied that the proposed treatment was both in the claimant's best interests and "medically necessary" as that phrase should be understood and applied for the purposes of article 3 of the Convention. The best interests test goes wider than medical necessity: see Re S (Sterilisation:Patient's Best Interests) [2000] 2 FLR 389. The focus of the argument before us was on the requisite standard of proof for the purposes of article 3. In Herczegfalvy v Austria (1992) EHRR 437, 484, the ECtHR said:

"82. The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist."

17. In the light of this decision, it is common ground that the standard of proof required is that the court should be satisfied that medical necessity has been "convincingly" shown. That is the test that the judge applied: see paragraph 117 where he said:

"…task of the court when considering whether proposed treatment is in breach of Article 3 is to determine not simply whether such treatment is a medical necessity on the balance of probabilities but whether it has "been convincingly shown" to be a medical necessity."

18. Mr Kelly submits that this test is, in effect, the same as the criminal standard of proof. We disagree. It seems to us that no useful purpose is served by importing the language of the criminal law. The phrase "convincingly shown" is easily understood. The standard is a high one. But it does not need elaboration or further explanation.
19. We should add that the argument before us proceeded on the basis that, in determining whether the proposed treatment was medically necessary, the correct approach was to ask whether it had been convincingly shown that (a) the claimant suffered from a psychotic illness, and (b) depot medication was a medical necessity. In other words, the Herczegfalvy test had to be applied sequentially to (a) and (b). We did not, therefore, hear argument as to whether this is indeed the correct approach. It seems to us that 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? The answer to that question will depend on a number of factors, including (a) how certain is it that the patient does suffer from a treatable mental disorder; (b) how serious a disorder is it; (c) how serious a risk is presented to others; (d) how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition; (e) how much alleviation is there likely to be; (f) how likely is it that the treatment will have adverse consequences for the patient; and (g) how severe may they be.
20. 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.

Did the judge reach the right conclusion?

21. Mr Kelly points to the fact that there was evidence before the judge that the claimant was not suffering from a psychotic condition at all, but rather that she had an untreatable personality disorder. Moreover, it was accepted by Dr M that there was "room for a difference of opinion" over the claimant's diagnosis, although she believed that her opinion was correct for the reasons that she gave: see paragraph 22 of her witness statement of 18 June 2002. That evidence comprised the following: (a) the opinions of Dr V and Dr U that, when the claimant was at the Y Clinic between March 1998 and January 1999, she was not suffering from a psychotic illness; (b) the opinion of Dr W who interviewed the claimant in August 2000, and who said in his report dated 30 August 2000 that he had little doubt that "this is primarily a personality disorder"; (c) the opinion of Dr Lock that it was "extremely unlikely" that the claimant had suffered from a psychotic illness; and (d) the opinion of Dr S, the SOAD consulted in July 2001, who did not agree with the need for anti-psychotic medication at that time, because the claimant's mental state did not amount to "frank psychotic presentation at that time", and who only agreed to oral anti-psychotics "to cover for fluctuations in paranoid aspects of personality and brief periods, where paranoid ideas may become more pronounced".
22. As against this, there were the opinions of Dr M, Dr O, Dr Parrott and Professor Coid. The judge heard oral evidence from Dr M, Dr Parrott and Dr Lock. He said (paragraph 77) that he gave weight not only to Dr Lock's report and oral evidence, but also to the written reports from those who supported Dr Lock's opinion. He gave 5 reasons for coming to the "clear" conclusion that he should not accept the opinion of Dr Lock, but should prefer the views of the other doctors who found that the claimant was suffering from a psychotic illness. These were: (a) it seemed probable that, if Dr Lock had been able to see the claimant for substantially longer than an hour and three-quarters, and on more than one occasion, he would have found the claimant to be psychotic. The judge relied in particular on one passage in Dr Lock's report "indeed it is [her] erotomanic ideas which have troubled me most. If [the claimant] presented them in the way described, then it is difficult to see that they were anything other than psychotic symptoms". He was satisfied that during her meetings with the other psychiatrists, the claimant did display erotomanic ideas. (b) The judge was not convinced by the reason given by Dr Lock for not accepting the erotomanic symptoms recorded by others. (c) Dr Lock accepted correctly that the best diagnosis of a patient is one arrived at over a long period of time: it followed that special regard should be given to the evidence of Dr M. (d) Dr M and Dr Parrott had emerged "unscathed from a careful and characteristically skilful cross-examination by Mr Solley", and their reasoning had been shown to be sound and their conclusions "clearly correct". (e) There did not seem to be any relevant or significant difference between the diagnosis of Professor Coid, Dr M and Dr Parrott, all of whom were satisfied that the claimant was suffering from a form of psychotic illness, and this conclusion was not undermined by differences in the way that it showed.
23. The judge concluded (paragraph 85) that, even if there had been no cross-examination of the doctors, he would have reached the decision that the claimant suffered from a psychotic illness "essentially for the first and third reasons that I have set out above as these emerged clearly from reading the witness statements".
24. Having reached the clear conclusion that the claimant was suffering from a (treatable) psychotic illness, he went on to explain in great detail why he was of the opinion that it was in her best interests that the proposed treatment should be administered. As we understand it, there is no discrete challenge to the way the judge addressed the best interests issue. The judge summarised at paragraph 118 his reasons for concluding that the medical necessity for the treatment had been convincingly shown in these terms:

"An appropriate starting point for resolving this issue is the material that I have considered in determining whether the proposed treatment is in the best interests of the claimant. As I have explained, this establishes first that the proposed treatment would be beneficial to the claimant so as to alleviate or to prevent the deterioration of her condition, second that there is no other less invasive treatment available, and third that the doctors, who attended their joint meeting all agreed that if, as I have found to be the case, the claimant is suffering from a psychotic condition, then she should be given the proposed treatment in the light of all the circumstances including the consequences of the treatment not being given. All these factors and the reasoning set out in paragraphs 94 to 106 above are relevant and probative to Article 3 and they satisfy me that medical treatment for the proposed treatment has been "convincingly" shown. Thus I am satisfied that administering the proposed depot treatment to the claimant in the circumstances of this case does not constitute a breach of Article 3."

25. We do not find it necessary to refer to the detail of paragraphs 94-106 of the judgment.
26. Mr Kelly does not challenge the detail of any of the judge's reasoning. He submits that the judge fell into error in failing to attach sufficient weight to the reported views of Drs W, V, U and S. He does not suggest that the judge failed to take their views into account, because he plainly did. In our opinion, the judge was entitled to give less weight to their views than to those of the doctors whose evidence had been tested by cross-examination. Above all, he was entitled to pay particular regard to the opinion of Dr M, who had been in contact with the claimant since 1997 as her RMO. His reasons for preferring the views of Drs M, O, Parrott and Professor Coid were cogent and, in our opinion, are not susceptible to challenge. Nor does Mr Kelly submit that the judge applied the wrong test when he weighed up the evidence. In assessing the evidence in relation to the correct diagnosis of the claimant's mental condition, the judge concluded that he was clearly satisfied that she was suffering from a psychotic illness. More importantly, when he came to the critical question whether permission should be given for the proposed treatment, he set himself and applied the Herzegfalvy test.
27. Mr Kelly's submission on analysis involves the proposition that, in a case where there is a responsible body of opinion that a patient is not suffering from a treatable condition, then it cannot be convincingly shown that the treatment proposed is medically necessary. We reject this submission. This is, in effect, a reverse "Bolam" test: see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, which was approved by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. It is too well known to require stating that a professional person is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of persons who practice the same art, merely because there is a body of opinion who would take a contrary view.
28. Reference to the Bolam test has been made in the best interests cases. In Re A (Male Sterilisation) [2000] FLR 549, 555, Butler-Sloss P said that doctors charged with the decisions as to whether treatment of patients who lack the capacity to make decisions in their own best interests must act at all times (a) "in accordance with a responsible and competent body of relevant professional opinion" (ie the Bolam principle), and (b) in the best interests of the patient. As was explained in Re S (Sterilisation: Patient's Best Interests), (b) involves choosing the best option between what may be a number of options, all of which satisfy the Bolam test, and it embraces issues far wider than the medical: see per Thorpe LJ at page 403G.
29. Thus in the context of whether proposed treatment is in a patient's best interests, it is necessary to ask whether the treatment satisfies the Bolam test. That is a necessary, but not a sufficient, condition of treatment in a patient's best interests. If the proposed treatment does not even satisfy the Bolam test, the best interests test fails at the first hurdle. But it is quite a different matter to argue that, if there is a body of responsible medical opinion to the effect that the proposed treatment is not in the patient's best interests and is not medically necessary, then the treatment cannot be in the patient's best interests or medically necessary. The conclusion simply does not follow from the premise. In our judgment, the fact that there is a responsible body of opinion against the proposed treatment is relevant to the question whether it is in the patient's best interests or medically necessary, but it is no more than that. The court has to decide in the light of all the evidence in the case whether the treatment should be permitted. At paragraphs 113-116 of his judgment, the judge held that he had to apply the best interests test and the medical necessity test in accordance with Herzegalvy, and not the Bolam test. In our view, he was right to do so.
30. For the reasons that we have given, the judge's conclusion on the facts of this case is unassailable, and the appeal must be dismissed.

Other points.

31. The judge gave permission to appeal because he thought that the case raised important points of principle. In particular, he identified a number of legal principles on which he thought that there is some uncertainty. These included: (a) the circumstances in which the court can act as a primary fact-finder, and can and should permit cross-examination; and (b) the relationship between the Bolam test and the Herczegalvy test. He identified other points, but since they were not the subject of oral argument before us, or dealt with in the skeleton arguments, we do not propose to say anything about them. We have already dealt with (b) at paragraphs 27 to 29 above. We now propose to make some observations about (a).
32. The decision in Wilkinson is critically important here. The situation that arose in that case was in many ways strikingly similar to that which arose in the present case. The claimant's RMO decided pursuant to section 58(3)(b) of the Act that he should receive anti-psychotic medication despite his refusal to consent, and a certificate was issued by the SOAD. The claimant challenged these decisions in judicial review proceedings. He obtained medical evidence from an independent expert, who disagreed with the opinion of the RMO and the SOAD as to the nature of his mental disorder, whether he had the capacity to consent to the proposed treatment, and the benefits of the treatment. The claimant sought an order that there be cross-examination of the medical witnesses. Jowitt J refused the application on the grounds that cross-examination of witnesses was a rarity in judicial review proceedings, and that there was no sufficient reason to depart from the usual rule that applications are determined on the documents. The claimant's appeal was allowed. This court recognised that, where alleged breaches of human rights "are either fundamental (those now asserted under articles 2 and 3) or such as obviously raise questions of necessity and proportionality (those asserted under articles 8 and 14), the courts' need so far as possible to investigate and resolve the medical issues becomes even plainer": see per Simon Brown LJ at paragraph 25. At paragraph 26 he continued:

"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.)"

33. At paragraph 31, he said "accordingly" that, if there were to be a fresh decision to subject the claimant to forcible treatment which was then challenged, he would order the attendance of all three specialists for cross-examination at the review hearing. He continued:

"I recognise, of course, that this would 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 1V 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 – ie 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."

34. Brooke LJ (paragraph 53) specifically agreed with paragraph 31 of Simon Brown LJ's judgment. Having referred to the possibility of the claimant bringing other forms of proceedings, Hale LJ said at paragraph 62:

"In my view, therefore, it cannot and should not matter whether proceedings in respect of forcible treatment of detained patients are brought by way of an ordinary action in tort, an action under section 7(1) of the 1998 Act or judicial review. If there are relevant disputed issues of fact these have to be determined, by cross-examination if necessary."

35. It is clear that the court decided that, because it was for the court to determine for itself whether the claimant had the capacity to consent and whether the treatment would violate his human rights, cross-examination of the witnesses would be ordered. Hale LJ was the only member of the court to say that, where there are disputed issues of fact, these will have to be determined "by cross-examination if necessary" (our emphasis).
36. We consider that Hale LJ was right to introduce the qualification that cross-examination should only be ordered if this is necessary to enable the court to determine the factual disputes for itself. Thus where there is an allegation of breach of the claimant's article 3 rights, it is important to bear in mind that the court cannot permit the forcible administering of medical treatment unless it is shown convincingly to be medically necessary. If a patient obtains independent medical evidence to the effect that the treatment is not medically necessary, either because the mental disorder is untreatable or because the treatment is otherwise unsuitable, it may be clear to a court, even without oral evidence, that the case in favour of treatment has not been convincingly shown. Conversely, it may be clear to the court, simply on a reading of the written material, that the necessity for treatment has been convincingly shown, and that cross-examination will not lead to a different conclusion.
37. This latter possibility is well illustrated by the present case. As we have already stated, the judge said at paragraph 85 of his judgment that he would have reached the conclusion that the claimant suffered from a psychotic illness for the first and third of his five reasons even if there had been no cross-examination of the witnesses, since these reasons "emerged clearly from reading the witness statements" (our emphasis). It was conceded that, if the claimant was suffering from a psychotic illness, the proposed treatment was a reasonable treatment plan, and that it was necessary to alleviate risk to others and possibly to herself. In other words, the correctness of the views of Dr M and Dr O had been convincingly shown on the documents. In these circumstances, it seems to us that the judge would have been entitled to decide the disputed issues of fact and opinion without having oral evidence. We say this not in criticism of the judge's decision to allow cross-examination, but in order to illustrate the point that we are making. It is an odd feature of the present case that the defendants wanted to have their witnesses cross-examined, and that it was the claimant who argued that the judge should decide the issues on the written material. But that was because it was submitted on her behalf that the existence of a responsible body of opinion disagreeing with Dr M and Dr O was fatal to the proposed treatment plan.
38. In saying that he would have decided the issue against the claimant without oral evidence, the judge was giving practical effect to the observations of Simon Brown LJ at paragraph 31. Courts are likely to pay very particular regard to the views held by those specifically charged with the patient's care. In the present case, the fact that Dr Lock had not had the opportunity to form a considered opinion based on observation over a substantial period of time, whereas Dr M had been the claimant's RMO for a considerable period, bore heavily with the judge, and rightly so.
39. 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 Wilkinson 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] UKHL 26, [2001] 2 AC 532, paragraph 27.
40. One final point. In Wilkinson, one of the issues was whether the SOAD had acted unfairly and in breach of the claimant's article 6 rights. As Simon Brown LJ pointed out at paragraph 35, the SOAD's certification process could hardly be said to involve " a fair and public hearing". He held that, if the court's review jurisdiction were limited to some form of Wednesbury review, then the requirements of article 6 would not have been met. But since the court would conduct a full review of the facts by oral evidence, any defect in the SOAD process would be remedied.
41. An article 6 challenge was made in the present case inter alia on the basis that the SOAD had acted unfairly in not giving the claimant an adequate opportunity to make representations. In the light of Wilkinson, the judge did not rule on this issue, since he conducted a full review of the facts, and that review undoubtedly did satisfy article 6. We should, however, make it clear that, even if the judge had decided not to allow oral evidence, any alleged breach of the claimant's article 6 rights based on the way in which the SOAD had conducted the certification process would have fallen away. That is because the judge would have decided the disputed facts for himself, albeit without hearing oral evidence. So far as we are aware, there is nothing in the Strasbourg jurisprudence to indicate that, even in a case where the question whether there has been a violation of a Convention right depends on disputed issues of fact or expert opinion, article 6 requires those issues to be determined by oral evidence. Accordingly, provided that the judge applies the correct approach to determining whether there has been a breach of a Convention right, then the review of a decision which would otherwise violate a person's article 6 rights will be sufficient for Convention purposes.