Silber J:
Outline of the Case
- Ms. N ("the claimant") has been a patient at X Hospital since January 1999 and she seeks to judicially review a decision of Dr. M, a Consultant Forensic Psychiatrist at X Hospital, which was to administer to the claimant depot (i.e. by injection) anti-psychotic medicine for the prevention or for the alleviation of her psychotic illness. The claimant did not and does not consent to this treatment. A challenge is also made by the claimant to the subsequent decision of Dr. O, another Consultant Psychiatrist, who acted as a Second Opinion Appointed Doctor ("SOAD") as required by the Mental Health Act 1983 ("the Act") and who in that capacity on 17 May 2002 authorised the administration of the proposed treatment to the claimant. The parties have asked me to continue an order made by Goldring J that in this judgment, initials should be used in place of the names of the claimant, the hospitals and doctors, other than those who acted as experts.
- Goldring J gave permission to the claimant to pursue her claims for judicial review against Dr. M as the first defendant and against his employers, a Health Authority Trust ("the Trust") as the second defendants, as well as against Dr. O, the third defendant. The claimant contends in her Claim Form that "the SOAD has acted unfairly in reaching a decision by following a procedure which did not allow the [claimant]'s views to be fully represented" and that "any proposed medication of the [claimant] is unlawful and/or unreasonable, being in breach of Article 3 and/or 8 [of the European Convention on Human Rights ("the Convention")]". This case raises important issues of how the court should deal procedurally and substantively with challenges made by patients to decisions for their treatment against their wishes in the light of the Act as read in accordance with Articles 3 and 8 of the Convention.
- The claimant relies on the evidence of a consultant psychiatrist Dr. Lock to challenge the decision of Dr. O, and the prior decision of Dr. M to require this treatment. Dr. Lock considers that the claimant has the capacity to make her decision to refuse this treatment and he believes that the case in favour of administering this proposed treatment to the claimant does not reach the required threshold for it to be permitted. The defendants dispute these contentions and they rely on the evidence of Dr. O and Dr. M, as well as that of Dr. Janet Parrott, another consultant forensic psychiatrist, who takes the view that first the claimant requires depot neuroleptic medication as she suffers from a psychotic illness and that second the claimant currently does not have the capacity to make a decision on the desirability of receiving this form of treatment. A fundamental dispute between Dr. Lock and the defendants is whether the proposed treatment is necessary for the claimant and that issue arises because Dr. Lock for the claimant disagrees with the views advocated by Drs. M, O and Parrott that the claimant is suffering from a psychotic condition.
- Before considering the evidence, it is appropriate to refer to the definition of "psychosis" given in the American Diagnostic and Statistical Manual of Disorders (DSM-IV), which all parties accept as being a Recognised Specification Manual and which is that the term "psychosis":-
"encompasses those serious mental disorders which include schizophrenia, major depression, alcohol withdrawal delirium and others where the individual "loses touch with reality". Hallucinations and delusions are generally considered psychotic symptoms. The individuals experiencing them may be described as "psychotic"".
- To appreciate the nature and scope of the dispute, it is necessary to understand the statutory provisions contained in the Act to which I now turn.
The statutory provisions
- Section 63 of the Act provides, with my emphasis added, 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, if the treatment is given by or under the direction of the responsible medical officer".
- The treatment under review in this case falls within the scope of section 58 of the Act, being the administration of medication more than three months after the patient was first medicated following detention (see section 58(1)(b)). The issue therefore is whether the proposed treatment is permitted under section 58. Before setting out its terms, I should explain that Dr. M was the claimant's "responsible medical officer" ("RMO"), as referred to in sections 58(3) and 63 of the Act.
- Subsections (3) and (4) of section 58 of the Act are central to the determination of this claim as they set out the conditions that have to be satisfied before treatment can be imposed on a patient and they provide, with my emphasis added, 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 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".
- The "registered medical practitioner" referred to in section 58(3)(b) and section 58(4) of the Act is universally known as the SOAD, which was, as I have explained, the role performed in the case of the proposed treatment on the claimant by Dr. O. The Court of Appeal has determined that SOADs have to provide reasons for their decision (R on the application of W) v. Feggetter [2002] 3 WLR 591). It is common ground that the claimant has not consented to the proposed treatment and so the issue on this application can be refined to being whether in the light of the facts of this case, section 58(3)(b) of the Act permits the proposed treatment to be forced on the complainant, who is a patient, against her wishes and particularly in the light of the Articles 3 and 8 of the Convention.
The Issues
- It is convenient to now mention the three main areas of dispute on substantive matters, which I will outline, before setting out the claimant's history and then seeking to resolve these three issues.
(i) Capacity of the claimant to consent to treatment
- First, Mr. Solley QC for the claimant contends that the decisions of Dr. M and Dr. O are flawed, because the claimant has not consented to the proposed treatment, even though he submits that she is capable of consenting because she is capable, in the words of section 58(3)(b) of the 1983 Act, of "understanding the nature, purpose and likely effects of the treatment". The defendants dispute that the claimant has the capacity to consent to the proposed treatment.
(ii) Is the claimant suffering from psychotic condition?
- The second area of dispute concerns Mr. Solley's contention that the claimant is not suffering from a psychotic condition and so the proposed depot treatment should not be permitted against the claimant's will. The claimant's expert, Dr. Lock, supports the claimant's case that she is not suffering from a psychotic illness. The defendants disagree and they contend that the claimant is suffering from a psychotic illness, which is a view shared by Dr. M, Dr. O and Dr. Parrott. The resolution of this critical issue entails consideration of the evidence of the doctors relating to the nature of the precise illness from which the claimant is suffering.
(iii) Should the court give permission for the claimant to have treatment for psychotic illnesses?
- The third area of dispute is whether the court should invoke section 58(3)(b) of the Act so as to permit the proposed treatment in the light of Articles 3 and 8 of the Convention. As I have explained, the claimant complains that the SOAD acted unfairly in following a procedure that did not allow the claimant's views to be fully represented. Finally, I have to consider if the decision of the SOAD is flawed as to require it to be quashed. In order to understand the rival submissions on these issues, it is necessary to understand the claimant's background to which I now turn. It is largely derived from the undisputed background in the report on the claimant of Professor Jeremy Coid, who is both a Consultant in Forensic Psychiatry and Professor of Forensic Psychiatry to St. Bartholomew's and the Royal London School of Medicine and Dentistry.
The claimant's background
- The claimant, who was born I.D.C. in England on 13 February 1962, had gender reassignment surgery in 1993 and now uses a different female Christian name and the surname of N. For ease of reference, I will refer to her as being female throughout her life. She now claims incorrectly that she is an American citizen and that she was born in 1960. The claimant has a complex psychiatric history going back to her childhood. Having been placed into care and having displayed behavioural difficulties, she was apparently seen by child psychiatrists and there are some records of some admissions of her to psychiatric hospital as an adult.
- Before she had gender reassignment surgery, the claimant was convicted on a number of occasions of a series of serious offences. When aged about 15, the claimant was convicted on different occasions of burglary and of conspiracy to rob as well as of motoring and of dishonesty offences. The claimant was later convicted of rape when aged 16 but she had to be removed from Borstal where her sentence was being served and she was instead sent to Wormwood Scrubs because of her disturbed, depressed, disruptive and self-harming behaviour. When aged 18, the claimant was convicted of nine counts of burglary and of handling stolen goods, for which a sentence of three years' imprisonment was imposed. After being released in September 1981 from that sentence, the claimant was convicted in March 1982 of taking and driving away a motor vehicle for which she received a suspended term of imprisonment. Later the claimant, when aged 24, was sentenced to a term of three years imprisonment for indecent assault on a 15-year-old male while the claimant was masquerading as a female. In 1989 when aged 27, the claimant was convicted of three counts of handling stolen goods and she then received a suspended term of imprisonment. In the following year, this suspended sentence was activated when the claimant was convicted of burglary and her sentence was reduced to two years on appeal. In 1993, as I have explained, the claimant had gender reassignment surgery. In 1996 and 1997 there were references to threats of physical violence and social security fraud.
- In 1997, while the claimant was receiving outpatient psychiatric treatment, she threatened to kill her psychiatrist and she was treated with anti-psychotic and anti-depressant treatment. Some weeks later, she spray-painted messages in which she alleged that she had been raped by a particular former Cabinet Minister and she was cautioned for this in March 1997. In April 1997, the claimant was admitted under section 2 of the Act to Warlingham Park Hospital following an overdose but she was discharged in the following month.
- Two months later, the claimant was arrested for making threats to kill, arising out of a series of letters sent to radio stations. The claimant has always denied sending those letters, which are simply signed 'single white female'. Whilst on remand at Holloway Prison, the claimant was apparently treated with anti-psychotic medication and with anti-depressants because she was labouring under a number of delusions, including some focussing on an ertomanic relationship with the particular former Cabinet minister whom she claimed had raped her in 1988 and had then harassed her. The claimant also described cameras in her house watching her.
- She was assessed twice by a consultant from X Hospital in August and October 1997. When first assessed, the claimant described auditory and visual hallucinations of bodies being cut up and her suspicions that her food was being poisoned. The claimant was considered psychotic and unfit to plead. On the second occasion, she gave a different personal history and again she described delusions regarding the particular former Cabinet Minister and that she was trying to publicise the fact that he had raped her when she committed the daubing offences that I have described in paragraph 16 above.
- In January 1998, the claimant was assessed again and she continued to be deluded about the particular former Cabinet Minister and in addition, she described hallucinatory voices telling her to harm people and not to eat. A hospital order on the claimant with restrictions was recommended but it was thought that she could be managed in medium security.
- According to the claim form, on 20 April 1998, the claimant was found to have committed the actus reus of the offences of 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. These orders have the same effect as a hospital order and as a restriction order under sections 37 and 41 of the Act. She can be returned to court to face trial if and when she becomes fit to stand trial. This has not yet happened and so the claimant is still awaiting trial on criminal charges.
- The claimant was admitted to the Y Clinic, a medium-secure hospital unit in South London on 19 March 1998 where she was described as experiencing auditory hallucinations and delusional beliefs on admission. The claimant explained that she hated men and she later described hearing female voices telling her to harm men and male voices telling her to harm herself. The claimant also believed that her food was being poisoned. She also had visual hallucinations of a body on the floor. She was treated initially with depot anti-psychotic medication and her mental state improved with this medication. It was stopped when later clinical views were expressed by Dr. V, who was then the claimant's RMO, that the claimant was not suffering from psychotic illness. A series of sessions of psychotherapy sessions for the claimant commenced but there was then a marked deterioration in her relationship with the clinical team and she embarked on a hunger strike and she lost weight. The claimant threatened male staff and patients as well as stating that she intended to kill a man on the unit. After her therapy sessions, the claimant appeared to be more distressed and she would be tearful, agitated and complain of a fear of men.
- In September 1998, the claimant was found with, what are described as, "potential weapons" in her room and in the following month, she spoke of the return of urges to kill men. The claimant became increasingly difficult to manage and on one occasion, she claimed that that she had a knife inserted in her vagina and she threatened to kill a man with it. As a result, two nurses placed the claimant on special observation and she continued to state that she had a knife on her although it was not visible on an X-ray of her. In December 1998, the claimant made an allegation that she had been raped but it was determined that this could not possibly have occurred.
- By this time, it was thought that the therapeutic alliance between the claimant and the team at the Y Clinic had broken down and that any attempt to confront the claimant with reality would result in an escalation of her violence and her threats. So it was recommended that the claimant should be transferred to X Hospital, as she was a potential threat not only to men but also to other women.
- Thus, on 12 January 1999, the claimant was transferred to X Hospital, which is a high-security hospital for those who require treatment under conditions of high security on account of their dangerous, violent or criminal propensities (see s4 National Health Service Act 1977). She has remained in X Hospital and during this time, she has been responsible for various types of bad behaviour, including making threats and being involved in hunger strikes.
- The claimant described "a psychological need to kill and destroy men" as well as maintaining incorrectly first that she was an American citizen, second that she had never been a man or had gender reassignment and third, that she was wanted by the police. The claimant also wrote to the police confessing to the murder of five men and to the Editor of ITN threatening that she was involved in an organisation called SCUM, which would kill the specified former Cabinet Minister for his offences against women.
- She had on 3 February 1999 been found unfit to stand trial on the outstanding charges of threats to kill. The order for her admission to hospital was made under sections 48 and 49 of the Act, which gives the Home Secretary the power to transfer remand prisoners to hospital if they are suffering from mental illness or severe mental impairment warranting admission to hospital. It was believed that she was suffering from paranoid schizophrenia.
- There were other examples of worrying behaviour by the claimant. In April 1999, she became threatening towards staff and she also made a death threat to another patient, who she alleged had told other patients that the claimant was a transsexual. She also wrote to the former Cabinet Minister. The claimant had failed to take the prescribed anti-psychotic medication in the period before she became aggressive. She was transferred to the intensive care ward where she was secluded for the safety of others. In November 1999, the claimant refused anti- psychotic medication and anti- depressants with the result that her mental state subsequently deteriorated. Later the claimant resumed the anti-depressant medication and her condition improved.
- In January 2000, a report from Dr. M noted that the claimant was fit to stand trial with the diagnosis of the claimant being that she suffered from chronic delusional disorder and a severe personality disorder. The claimant was then transferred to another ward where she adopted what has been described as intimidating and menacing behaviour apart from denying her history while remaining adamant that she was a female, that she was an American citizen, that she had had a love child with the former Cabinet Minister and that she had murdered and mutilated men. Later she had delusions about having three children as well as threatening to kill the team leader and everyone on her ward. She was described as menacing at that time.
- Dr. W, a psychiatrist at another hospital saw the claimant at Dr. M's request in August 2000. He was asked for a second opinion on whether anti-psychotic medicine was needed. His report noted that diagnosis is the most important aspect of the case. He wrote that the claimant wished to be returned to prison and he noted that the differences of views of the various psychiatrists. Dr. W reached the conclusion based on his interview of the claimant and on a study of the claimant's case papers that she was primarily suffering from a personality disorder and that any psychotic symptoms were pseudo-hallucinations rather than genuine auditory hallucinations, which indicated an underlying psychotic process. He concluded after interviewing the claimant that she did not have a psychotic illness and that there was no justification for anti-psychotic treatment at the time.
- The condition of the claimant continued to fluctuate during the first half of 2001. In March 2001, the claimant refused to attend court and the court determined that no criminal proceedings would continue until the Home Office authorities, the X Hospital authorities and the claimant's solicitor in the criminal proceedings agreed that there was an advantage in returning the claimant to court.
- In May 2001, the claimant was assessed by Dr. T who is a consultant psychiatrist, and he concluded that his favoured diagnosis was that she suffered from a psychotic illness. By July 2001, the claimant had entered a more prolonged phase of refusing food and fluid and she eventually had to be transferred from the infirmary ward to the special care ward as she had been making threats to burn down the infirmary. There was then a body of medical opinion that considered that the claimant suffered from a severe personality disorder with a superimposed mental illness and that she should receive at least a trial of anti-psychotic medication but this required the consent of the SOAD.
- On 17 July 2001, Dr. S, who was the Second Opinion Appointed Doctor appointed by the Mental Health Act Commission on that occasion, according to Dr. M's report of 29th November 2001 certified in relation to the claimant that "it cannot be said she has psychotic delusions" but apparently he authorised oral anti-psychotic medication. According to the claimant's skeleton argument, the claimant took this medication briefly before she started a hunger strike. She later agreed to resume taking the medication in August 2001, but she stopped doing so in September 2001. The claimant has not taken any oral anti-psychotic medication since September 2001 and she has adopted an approach of challenging the rules. She has refused to take medication, to be searched or to return to her room and she has been verbally hostile to other patients on the ward.
- There was a case conference held on 12 September 2001 in order to discuss the condition of the claimant and there was some disagreement as to whether the claimant should be in hospital. Apparently the views were expressed that the claimant had capacity to refuse treatment by doctors including Dr. U, who was an Associate Medical Director of X Hospital and Dr. V, the treating psychiatrist at Y Clinic. The consensus of the views expressed was that a SOAD opinion should be obtained for depot medication. In the period around the end of 2001, the claimant had to be secluded twice and she also had investigation of an angina attack suffered by her and which led to an angiography being performed.
- The first defendant in her capacity as the RMO for the claimant under the Act considered that depot medication, which is medicine through injection, should now be administered. She duly obtained a further second opinion from Professor Coid who is both a consultant in Forensic Psychiatry and Professor of Forensic Psychiatry to St. Bartholomew's and the Royal London School of Medicine and Dentistry, whose report of 27 March 2002 concluded that the claimant suffers from paranoid psychosis, delusional disorder and severe personality disorder. He considered that she did not have the capacity to make treatment decisions because her psychopathology included an approach of deliberately challenging those in authority and that this factor combined with the fluctuating nature of her psychotic mental illness meant that she could not believe the information given to her by doctors and so she was unable to weigh it as part of the decision making process.
- In consequence, Professor Coid believed that the claimant should be treated in accordance with her best interests and this included feeding her in the event of any further hunger strike and the use of forced anti-psychotic medication for the purpose of treating her delusional disorder. As he considered that the claimant was unlikely to be reliable in taking oral medication, he believed that a trial of depot neuroleptic medication was required. The alternative plan of managing the claimant was according to Professor Coid for her to be managed in a hospital with periods of intensive care and probably seclusion.
- Having obtained this report, Dr. M again requested the Mental Health Act Commission to appoint a SOAD to consider whether depot anti-psychotic medication should be authorised. Dr. O was duly appointed. Consequently, the claimant's solicitor consulted an independent psychiatrist, Dr. Lock of the Three Bridges Unit, and he was requested to provide an opinion. His conclusion in his report of 9 April 2002 was that the claimant was then fit to stand trial, that it was very unlikely that she was suffering from a psychotic illness and that she was certainly not a schizophrenic. Thus, he considered that the claimant should not be given anti-psychotic medication and that she retained the capacity to make treatment decisions. His conclusion on the claimant is that she suffers from a complex personality disorder, which is probably untreatable, and so, if she is convicted of the offences for which she is awaiting trial, she should receive a prison sentence rather than a mental health disposal.
- The claimant's solicitors spoke to the SOAD, Dr. O, before he saw the claimant and they explained that Dr. Lock did not accept the need for depot medication. They asked for the opportunity to make oral and other representations to the SOAD, before a final decision was made; this request entailed the supply to them by the medical authorities of all the relevant reports on the claimant in order to allow them to make appropriate and relevant representations. This request was not acceded to and, as I have explained, on 17 May 2002, the SOAD certified first that the claimant had capacity to understand the nature, purpose and likely effects of treatment, second that she did not consent and third, that having regard to the likelihood of the specified treatment alleviating or preventing a deterioration of her condition, such treatment should be given. Dr. O has explained in his witness statement that he "was well aware that certain experts thought the claimant was not psychotic" and that he had also seen Dr. Lock's report.
- According to the SOAD report form, he diagnosed that the claimant was suffering from "paranoid psychosis/severe personality disorder". The SOAD formed the view that the claimant's presentation and behaviour were "so clearly consistent" with the diagnosis that he had made against this background after he had so certified. He noted that she had previously refused all kinds of drugs and "her co-operation with all other therapeutic and rehabilitative activities is extremely unpredictable". He therefore concluded that regular anti-psychotic treatment was required.
- The present proceedings were commenced when permission by Goldring J was given to the claimant to proceed with the present application, Dr. M and the Trust undertook that notwithstanding the authorisation of the SOAD, they would not administer or allow to be administered to the claimant certain medications without her consent and without the permission of the court until final determination of this matter. This undertaking remains in force pending my judgement, which I reserved at the end of the hearing at the end of last term.
Cross-examination of the Doctors
- Before I deal with the three issues in dispute, which I have explained in paragraphs 10 to 13 above, it would be appropriate now to deal with a contention of Mr. Hyam for the first and second defendant and of Mr. Forsdick for the third defendant that even though this was a judicial review application, I should determine the appropriate issues of fact and that I should order that the doctors should be cross-examined. Mr. Solley disputed the contention and resisted this application. At the start of the hearing and after hearing submissions from counsel, I ruled that I would determine the facts and I also ordered that cross-examination should take place and I stated that I would give my reasons for that ruling in this judgment, which I now do.
- Dr. Lock, Dr. M, Dr. Parrott and Dr. O, the SOAD, prepared witness statements while I had helpful copies of reports from others, who had examined the claimant. Although this is a judicial review application, Mr. Hyam and Mr. Forsdick contend that the court is itself obliged to investigate and to resolve factual medical issues so that it can form its own assessment of the relevant facts, especially as the claimant is contending that she did not have a fair hearing before Dr. O as the SOAD, who authorised the treatment, especially as he followed a procedure, which did not allow the claimant's views to be fully represented.
- Cross-examination of the doctors, they say, is necessary in a case such as this as the claimant is entitled to a proper hearing on the merits as was stipulated by the Court of Appeal in R (Wilkinson) v. Broadmoor Special Hospital Authority and another [2002] 1 WLR 419. Mr. Solley QC and Mr. Gledhill for the claimants disagree and they contend that Wilkinson does not require me to embark upon, what they describe as, "the Herculean task" of deciding the truth of the issues. They stressed that this was a judicial review application and not a trial. I agree that it is unusual for the court to act as a fact-finder and to permit cross-examination on a judicial review application, but it is not unknown (see De Smith, Woolf and Jowell on the Judicial Review of Administrative Action (5th Edition, page 252)).
- Mr. Gledhill in reply submitted for the claimant that if she can establish that there is a reasonable body of medical opinion, which takes the view that it is not medically necessary for the depot treatment to be administered, then in accordance with the principles in Bolam v. Friern Hospital [1957] 1 WLR 583 and Bolitho v. City and Hackney Health Authority [1998] AC 232, the court should not permit the proposed depot treatment to be sanctioned. He says that cross-examination can only be concerned with determining whether there is a reasonable body of opinion, which takes the view that the treatment is not necessary. Mr. Gledhill also contends that Wilkinson is consistent with that approach, but the defendants disagree. It therefore becomes necessary to ascertain exactly what that case actually decided and I will consider the Bolam/Bolitho point in paragraphs 113-116 below.
- The Court of Appeal in Wilkinson was considering an appeal by a mental patient against an interlocutory decision that he was not entitled to require his responsible medical officer and the SOAD, together with his own medical expert to attend the hearing of the judicial review application in order to give evidence and to be cross-examined. The patient in that case argued that such evidence and cross-examination was needed to ensure that he had a fair trial under Article 6 of the Convention. The Court of Appeal held unanimously that where a decision to administer medical treatment to a mental patient without his consent under section 58(3)(b) of the Act was being challenged by judicial review, then the court had to reach its own view as to whether that proposed treatment infringed the patient's human rights; to achieve this, the patient was entitled to require the attendance of medical witnesses to give evidence and to be cross-examined.
- In reaching that decision, the court was influenced by the right of the claimant to a fair trial under Article 6 of the Convention. Counsel for the claimant contends that the Court of Appeal in Wilkinson was dealing with an interlocutory appeal and that it was not dealing, as I am, with the substantive hearing. That is correct but it is clear that the issues in Wilkinson were ultimately going to be the same as, or very similar to, those in the present proceedings, namely to determine the appropriate diagnosis of the claimant and whether the proposed treatment was medically necessary for the patient (see Wilkinson [8] at pages 424-426).
- Simon Brown LJ, who gave the first judgment in Wilkinson, explained why he wished to allow the appeal so as to permit cross-examination of the doctors. He pointed out that the claimant could have obtained the same relief, as was being sought on the judicial review application, by using one of three alternative remedies instead of judicial review. First, the claimant could have sought an interlocutory injunction in an action brought in tort or assault against the health authority, which administered the hospital. In such a case Simon Brown LJ explained that "it would seem to me quite impossible to contend that the medical witnesses should not be called to give evidence or should be excused from attendance if the other party wished to cross-examine them" ([24] page 431G).
- Second, he also said that similar relief to that claimed on the judicial review application in that case could have been sought in the Family Division with a claim for declaratory relief concerning the suitability of the proposed treatment plan. Simon Brown LJ also referred to a third form of relief available now that the Human Rights Act 1988 has come into force, which was that a claim could be made under section 7 of that Act on the basis that the Trust, the second defendant, proposed to act in a way which was incompatible with the claimant's convention rights, namely by resuming the treatment complained of. Each of those three possible actions would have been determined by a court hearing oral evidence and which would then have had to make findings of fact, rather than by determining the action entirely on the witness's written statements. He thought that since the Human Rights Act 1998 Act had come into force, the focus of any challenge ought to shift to the SOAD's entitlement to certify and that the hospital's entitlement to resume treatment in the future. Simon Brown LJ then stated that, "recognising that and given that the prospective Convention breaches alleged either fundamental (those now asserted under Articles 2 or 3) or such as obviously raised questions for necessity and proportionality (those asserted under Articles 8 and 14), the court's need so far as possible to investigate and resolve the medical issues becomes even plainer" (Wilkinson [25] page 432C).
- The conclusion of Simon Brown LJ on this issue was, with my emphasis added, 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 for him by the first defendant as his RMO and, depending on 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" ([26] at page 432F).
- Understandably, both counsel for the defendants rely strongly on those passages as showing that in a case in which the court has to consider the right of doctors to impose medical treatment on a patient at a mental hospital, all the factual issues relating to consent and the justification of treatment must be investigated and be determined even on a judicial review application by the court. This, they contend, would entail and require cross-examination of the doctors because the court has to determine the facts. It would be a corollary of that argument that in order to ascertain whether there had been breaches of the Convention, the court would also have to decide the factual issues in order to ascertain precisely from what illnesses, if any, the claimant was suffering and the precise need for the treatment sought to be administered.
- The point is supported by the statement in Wilkinson [31] at page 433F by Simon Brown LJ (with whom Brooke LJ specifically agreed on this point ([53] page 439G) that "were there to be a fresh decision to subject this claimant to forcible treatment which is then challenged, I would order the attendance for all three specialists for cross-examination at the review hearing". He explained later in his judgment that as the claimant "on this challenge is entitled to have the legality of his future treatment determined by the court according to its own assessment of the relevant facts, then plainly the requirements of Article 6 are satisfied: the Administrative Court will conduct a merits review on the evidence " ([34] at page 434G with my emphasis added). When Simon Brown LJ concluded his judgment [36] by saying that there had to "be a full review of the propriety of the treatment proposed", he was, I believe, in the light of his previous comments, referring to cross-examination and findings of fact on all outstanding disputed issues.
- Hale LJ stated, with my emphasis added, that:-
"in my view, therefore, it cannot and should not matter whether proceedings in respect of the forcible treatment to detain 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 will have to be determined, by cross-examination if necessary" ([62] at page 442E).
- The defendants also both point out that nothing is said by any members of the court in Wilkinson, stipulating or indicating any form of limitation on the scope of permissible cross-examination when dealing with these issues. In this case, there are, as I have explained, a number of fundamental issues of fact relating to the claimant's capacity and condition.
- At one stage, I was concerned as to whether it mattered that in this case, unlike in Wilkinson's case, it is the claimant, and not the doctors, who objects to cross-examination. Two factors suggest that it does not matter. First, as I have explained, all members of the Court of Appeal stated that the rule in these cases was that if there were disputed issues of fact, there had to be determined by cross-examination if necessary and it did not matter which party desired cross-examination. Second. a fundamental feature of the claimant's claim for judicial review has been that Dr. O, the SOAD, failed to allow the claimant's adviser to have access to the claimant's medical records in order to make oral or any representations before he approved depot medication. The claimant contends that this was a breach of her rights under Article 6 and so this court will have to reach its own conclusions on the correctness of the SOAD certificate. That provides an additional reason why this court on this application by the claimant has to carry out a full factual investigation, which would entail and include cross-examination.
- In support of his argument that cross-examination should not be permitted, Mr. Solley also contended that in this case, I was concerned not with disputed issues of fact, as was specified in Wilkinson's case, but with disputed issues of opinion. I am unable to accept this submission because it is clear that in Wilkinson, the issues in dispute between the parties also related to matters of opinion. In any event, I cannot see why it would be permissible to allow cross-examination on issues of fact, but not on issues of opinion and indeed no satisfactory reason was put forward to justify that distinction. The rationale for permitting cross-examination is to ensure that the rights of the patient are safeguarded and that means that there should be a trial on the facts and opinions irrespective of whether the dispute between the experts relates to fact or opinion.
- Having heard argument at the hearing on whether I should comply with the claimant's request, I concluded that the appropriate course was for this court to determine issues of fact by cross-examination if necessary and then to make findings of fact on whether the claimant was capable of consenting to the proposed treatment, the diagnosis of the claimant and the appropriateness of the proposed medical treatment for her. I reached that conclusion for three different but overlapping reasons. First, the approach in Wilkinson is totally supportive of the need for this court to act as the fact-finder where there is a challenge to the fairness of the decision under challenge and as I have indicated, there is nothing in the judgments in that case which indicates that there should be any limits on the fact-finding powers of this court, which includes permitting cross-examination, if appropriate.
- Second, no cogent reason has been put forward for indicating why the powers of the court itself to find facts and to permit cross-examination should be limited, whether as suggested by the claimant or in any other way. Mr. Gledhill submitted that it is not the practice of the Administrative Court on a judicial review application to order full discovery and therefore effective cross-examination is not possible or permissible. There is no reason why discovery cannot be ordered in an Administrative Court action in an appropriate case as the provisions for the disclosure and the inspection of documents apply to all claims except for those on the small claims track (see CPR Part 31.1) and, in particular, it should be ordered where the order would achieve one of the overriding objectives of the Civil Procedure Rules, which is of "ensuring that [claims] are dealt with expeditiously and fairly"(CPR Part 1.1 (2) (d)).
- Third, the notion of the judge on a judicial review claim establishing disputed facts by cross-examination if necessary, seems consistent with the view expressed in Wilkinson that the court's response to a claimant's Article 6 challenge to the SOAD on the grounds of his failure to consider representations made on behalf of the claimant is that the court should itself take on the role of fact finder and should therefore permit cross examination if necessary. Indeed paragraph 21 of the claim form states that "in the light of Wilkinson, it is clear that the court must determine on the facts of this case whether (i) [the claimant] has capacity and (ii) the treatment should be allowed, in the light of [the claimant's] Convention rights". I agree with this and do not know why the claimant has changed her stance on this issue. Finally, I should add that in this particular case, if I had been in any doubt about the effect of Wilkinson and if I had been minded to allow this application on Article 6 grounds, I would have invited submissions from counsel on the further issue of whether the overriding objective in the Civil Procedure Rules of "ensuring that [claims] are dealt with expeditiously and fairly", as explained in paragraph 56 above, is a factor in favour of this court resolving itself the factual issues on this application, rather than considering the matter and if necessary, remitting it for further consideration. The reason for this is that if the claimant succeeded in showing that for public law reasons, the decisions under challenge had to be quashed, fresh decisions would have to be made and they might also be challenged and whilst these matters were occurring, the claimant would have to endure further undesirable uncertainty so it is arguable that this undesirable delay would be avoided if this court was to determine the issues of fact on this application and if need be, permit cross-examination.
- Thus, I concluded that I had to make findings of fact on the three disputed areas that I specified in paragraphs 11 to 13 above and it was for that reason that I permitted cross-examination of the RMO, as well as of the expert doctors for both the defendant and the claimant. In the light of this ruling, it is unnecessary for me to consider whether the SOAD erred by not allowing, in the words of the claim form, for "[the claimant's] views to be fully represented". The trial with cross-examination in front of me had the consequence, as Simon Brown LJ explained in Wilkinson [34] that "then plainly the requirements of Article 6 are satisfied". Insofar as the counsel for the claimant sought to argue to the contrary, I must disagree because of the decision and approach in Wilkinson to which I have referred
- I should also add that the claimant wished to, and did, give oral evidence in which she explained her opposition to the proposed treatment. I now turn to resolve the three major areas of dispute, starting with capacity to consent.
Capacity to Consent
- The starting point is that the claimant, in common with every other adult is presumed to have capacity to consent (R v. Sullivan [1984] AC 156 at 170-1). I agree with counsel for the claimant first, that those who contend that there is a lack of capacity in relation to a particular decision must show this to be the case and second, that the concern of the court is not whether the claimant would make a sensible decision but whether she has the ability to reach a decision, The burden is therefore on the defendants to disprove the capacity of the claimant to be able to consent to the proposed depot treatment. The mere fact that the claimant is a patient does not in itself render her incapable of giving legally effective consent to this or to any other proposed medical treatment. The Act does not define capacity but it refers in sections 57(2) and 58(3) of the Act to the patient being capable of understanding the nature, purpose and likely effects of treatment.
- It is common ground between the parties that the issue of the claimant's capacity to consent to the proposed treatment is not of crucial importance in determining whether depot treatment should be permitted because irrespective of whether the claimant is capable of consenting to the proposed treatment, the issues of medical necessity (Article 3) the question of protection of health under Article 8 and "the best interests test" under section 58(3) of the Act will still have to be considered.
- Nevertheless, as I heard and read the evidence of doctors on capacity to consent, I will give my findings and that entails consideration of the three separate sub-issues that have to be considered by a court before it can decide whether a patient consents. They are first, whether the patient has the ability to take in and retain treatment information, second, whether the patient can believe it and third, whether the patient can weigh that information balancing risks and needs (per Thorpe J in Re C (adult refusal of medical treatment) [1994] 1 FLR 31).
- Before I had directed that the doctors should be cross-examined, I ordered at the outset of the hearing that they should meet and that they should consider their responses to a series of questions that I had prepared with counsel and which set out the issues on which their opinions were of importance in determining the present claim. The doctors had the desired meeting and they duly prepared a helpful document setting out their responses and to which I will refer in detail when considering the respective issues.
- I approach this issue in the knowledge that there are a number of doctors, who were of the opinion that the claimant did have capacity. Indeed in his certificate as the SOAD, Dr. O certified that the claimant had capacity, which was a view held by Dr. Lock and by others who had attended the case conference in September 2001. Indeed, I agree with the submission of the claimant's counsel that the claimant does not suffer from a total or comprehensive lack of capacity as may be the case of someone with acute learning difficulties.
(i) Did the claimant have capacity to understand the nature, purpose and likely effect of the treatment?
- At the meeting of doctors held at the start of the hearing in front of me and attended by the SOAD, the RMO, Dr. Lock, the claimant's expert, and Dr. Parrott, the expert for the first and second defendants, it was agreed by all the doctors that the claimant can understand the nature, purpose and likely effect of the treatment. I readily adopt this joint view.
(ii) Is the claimant able to believe the information given to her?
- Whereas the claimant's expert, Dr. Lock, answers this question in the affirmative, Dr. M, the RMO believes that the claimant is not able to believe that the medication will help her. Dr. Parrott, the defendant's expert and Dr. O, the SOAD, consider that the claimant is unable to believe the information given because her persecutory beliefs impair her ability to believe that the treatment could have a benign purpose and this leads to part of the information given to her not being credible to her. It seems sensible to postpone consideration of this sub-issue, until I resolve the next and closely related sub-issue, to which I now turn.
(iii) Can the claimant weigh that information and balance it to arrive at an informed choice?
- Dr. Lock answered this question in the affirmative, but the other three doctors disagreed, as they considered that the claimant's capacity fluctuated for both internal and external factors. Dr. M, the RMO, thought that on some occasions the claimant could weigh the information and balance it so as to arrive at an informed choice but on other occasions, she could not. She considers that small doses of anti-psychotic medication could improve her ability to appraise facts but increases in her arousal or fear could result in her losing the ability to weigh the information. Dr. Parrott thought that the claimant could not weigh the evidence to make an informed choice and the nature of her beliefs interfered with her ability to process the information and to weigh up one factor against another. The SOAD agreed with that as well but this appears contradictory to his statement when acting as the SOAD that the claimant had capacity. I do not know the reason for this apparent contradiction and so I will not attach any weight to Dr. O's views on this issue.
- When asked to explain why he considered that the claimant could weigh the evidence on whether to arrive at an informed choice, Dr. Lock explained that the claimant was unable to accept that she was Ian, solely because this information would psychologically overwhelm her but he did not accept that this belief had progressed over the time to become a psychotic symptom. I found it difficult to understand precisely why Dr. Lock took the view that the claimant was able to weigh matters in the balance to arrive at an informed choice when her judgment was affected in that way or by her delusions or persecutory beliefs. My concerns about accepting Dr. Lock's approach on this issue were fortified by the cogent evidence to the contrary. Thus, Dr. M was convincing when she explained that the claimant was unable to weigh information in the balance as part of the decision-making process because the claimant does not consider that there was anything wrong with her as a result of her delusioned beliefs which prevented her from appraising those matters.
- Dr. Parrott explained why she considered that the claimant could not consider information about medical evidence so as to reach a balanced conclusion. She referred to the abnormal beliefs of the claimant, namely, first, that she had never been a man, second, that she had a relationship with the former Cabinet Minister and third, that she was not mentally ill. Dr. Parrott also attached importance to the fact that the claimant saw the clinical team as a secondary part of the plot to keep her away from the USA. In consequence, Dr. Parrott thought that the claimant could not accept that medication might have a benign purpose, as she perceives the medical team had a malignant purpose in feeding her a false identity and in stopping her from returning to the United States. In other words, the claimant had and has preconceived views on her doctors and medication, which impaired her approach.
- In concluding that the claimant could not weigh up the evidence and reach a balanced decision on the value of the proposed treatment, Professor Coid similarly attached importance to the fact that the claimant "remains of the belief that medication is primarily for the purpose of forcing her to admit that she is a man called Ian as part of an orchestrated plan on a part of the authorities to force her to deny her fundamental (but delusional) beliefs". He considered that the claimant was unable to believe the information given to her by doctors.
- I find that these three opinions put forward on behalf of the defendants by Professor Coid, Drs M and Parrott on the approach of the claimant to information supplied to her by her doctors as being consistent with her persecutory beliefs, the claimant's hostility to her doctors and suspicion of their motives as emerges clearly from her previous history, which I have previously outlined. This evidence is cogent and compelling as it illustrates how the claimant approaches information given to her and very significantly, it gives weight to her strongly held preconceived ideas of totally distrusting the medical authorities. In any event, I have doubts about the reliability of Dr. Lock's evidence not merely because it is not cogent for the reason that I have explained but also, as I shall explain, because I am concerned about the fact that he only saw the claimant for 1 ¾ hours while Dr. M had seen the claimant regularly and continuously over many years.
- So, I consider that the claimant would not be able to believe and to weigh in the balance information, so as to arrive at an informed choice on the proposed treatment as she would be biased and lacking objective judgment because of those preconceived and firmly held notions. I conclude that the claimant does not have the capacity to give consent to the proposed treatment.
The diagnosis of the claimant
- When the doctors were asked at their joint meeting at the start of the present hearing whether the claimant suffered from chronic paranoid psychosis on current presentation, there was a sharp division between, on the one hand, Dr. Lock who thought the claimant did not suffer from psychotic illness and, on the other hand, Doctors M, Parrott and O, who thought that she did. I have already explained in paragraph 4 above the meaning of a "psychotic illness".
- Dr. Lock, whose views had been previously supported by Dr. W and Dr. V, considered that the claimant was suffering from a mental disorder in the form of borderline or severe personality disorder, but that she was not suffering from a psychotic illness. As I have explained, I heard oral evidence in relation to this issue, not only from Dr. Lock, but also from Dr. M, who explained that the claimant was suffering from five main delusions, namely that she had never been I.C., that she was hermaphrodite, that she is an American citizen, that she had been raped by the former Cabinet Minister and that everybody should be involved in her care. Dr. M regarded this delusional disorder as being grandiose.
- Dr. M also referred to other delusions suffered by the claimant. First she stated the claimant had a belief that she had an omnipotent power and that she was above the law, as she believes that she herself is very important. Second, Dr. M also pointed out that the claimant had had occasional auditory hallucinations, because in November 1998 when Dr. M saw the claimant, she was told by the claimant that she had heard two men's voices begging for mercy and one woman's voice telling her to kill the men. Dr. M recorded that the claimant is now denying that she had such hallucinations explaining that she had made them up in order to avoid a prison sentence. In response, Dr. M explained that she was convinced from the way in which the claimant was describing these matters that they were hallucinations and that they were not merely fabrications, because the claimant believed them. Dr. M added that patients who are psychotic might deny that their hallucinations existed when they stopped suffering from them but she pointed out that, in any event, for a diagnosis of delusionary disorder in a patient, the auditory hallucinations need not be persistent.
- Dr. Parrott thought that it was highly probable that she had correctly concluded that the claimant suffered from chronic paranoid psychosis and in reaching that conclusion, she attached importance to the fact that the claimant had abnormal beliefs which are very different from over-valued ideas based on some reality. She considered that in this case, the claimant's views were bizarre as they flew in the face of evidence; she gave as an example the claimant's assertion that she is a United States citizen, which in itself without elaboration might not be psychotic, but in this case the claimant has invented a whole history of her life in the USA which had no foundation in fact.
- A contrary view was given by Dr. Lock who concluded that the claimant did not suffer from a psychotic illness on the basis of what he had seen of her. He had reached that opinion after having seen the claimant on one occasion and then for only about an hour and three-quarters. It is appropriate at this stage to deal with three submissions made by counsel for the claimant. First, they contend correctly in my view that I have to give weight not only to Dr. Lock's report and his oral evidence but also to the written reports in the bundles from doctors, who supported his view but did not give evidence and who in some cases, like Dr. V, had assessed the claimant over a number of months; I will do so.
- Second, they point out that Dr. M accepted that there was room for a difference of opinion on the diagnosis that the claimant was suffering from a psychotic mental illness. That does not preclude me from reaching a conclusion on the proper diagnosis of the claimant any more than the court can and does reach its own conclusions where experts accept that there was room for differences between experts about, for example, future loss in contractual or personal injury actions. In other words, courts have to and are able to resolve these issues.
- Third, the claimant's counsel point out that, as I have explained in paragraph 32 above, Dr. S, the first SOAD in 2001 allowed oral anti-psychotic medication but he did not allow depot treatment because he did not find, with my emphasis added, "frank psychotic presentation at that time". They contend that this finding is helpful to the claimant but I do not agree that this statement undermines the defendants' case as Dr. M reached her conclusion on greater, more extensive and more up-to-date information and her views are supported by Dr. Parrott and Professor Coid. That answers this objection of the claimant and so it is unnecessary for me to reach a decision on the notes of the Case Conference meeting of September 2001, which referred to the SOAD's decision that he "could find no evidence of delusions" before explaining that the SOAD "has subsequently agreed to review the situation as he was "duped" into believing that she was an American citizen who was a hermaphrodite".
- Fourth, counsel for the claimant points out that there is no consistency between the doctors relied upon by the defendants as to the mental illness from which the claimant is suffering as Dr. M and Dr. Parrott disagree as to whether it is schizophrenia or delusional disorder. In addition, Dr. M's views have changed from a diagnosis of schizophrenia to delusional disorder. As Dr. Parrott explained, there is room for difference on specific categories of psychosis. I was satisfied that both these doctors shared with Professor Coid the view that whether the claimant suffered from schizophrenia or delusional disorder, they were both psychotic illnesses.
- Having considered all the reports (including those of the doctors who did not give evidence) and having seen Drs Lock, Parrott and M give evidence and be cross-examined, I have come to the clear conclusion that there are five reasons which individually or cumulatively satisfy me that I should not accept the opinion of Dr. Lock, but that instead I should prefer the views of the other doctors, who found that the claimant was suffering from a psychotic illness. First, it seems probable that if Dr. Lock had been able to see the claimant for substantially longer than an hour and three-quarters and also on more than one occasion, he is likely to have found that the claimant was psychotic. He explained in his report on the claimant that:-
"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".
- Having read and heard the evidence, I am quite satisfied that during her meetings with the other psychiatrists, the claimant did eventually and invariably display erotomanic ideas and, in particular, in connection with her allegations of a relationship with the former Cabinet Minister. So if Dr. Lock had been able to spend a longer period of time with the claimant, those features would, I believe, have emerged clearly and unmistakably, with the result that his view would have altered. I was surprised that Dr. Lock explained that he had not seen the reports of Dr. M, Professor Coid or Dr. Parrott. Second, I was not convinced by the reason that Dr. Lock gave for not accepting the erotomanic symptoms recorded by others, which was that the claimant had not demonstrated them to him. He said that he did not think that the claimant would deliberately alter her story because the claimant knew that the claimant's solicitor had called in Dr. Lock. I find it difficult to understand or accept the logic or the cogency of this reasoning.
- Third, I consider it to be very relevant and important to compare Dr. Lock's opportunity for reaching his conclusions on the claimant's psychiatric condition with those of Dr. M. As I have explained, Dr. Lock only saw the claimant for an hour and three quarters and he accepted in evidence correctly to my mind that the best diagnosis of a patient is that arrived at over a long period of time. That is precisely the position of Dr. M, who had been in contact with the claimant since 1997 as her RMO. Significantly, in Wilkinson, Simon Brown LJ pointed out with my emphasis added, ([31] at page 433G-434B) that:-
"courts, after all are likely to pay a very particular regard to the views held by those specifically charged with patient's care and well-being". [31]
It follows that I should and do give special regard to Dr. M's evidence, which was that the claimant suffered from a psychotic illness.
- Fourth, I have concluded that having seen Dr. M and Dr. Parrott emerge unscathed from a careful and characteristically skilful cross-examination by Mr. Solley, I came to the very clear conclusion that I should not only pay very particular regard to their views, but also that their reasoning was sound and that their conclusion was clearly correct. Finally, there did not seem to be any relevant or significant difference between the diagnosis of Professor Coid, Drs. M and 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.
- I therefore conclude that the claimant was and is suffering from a psychotic illness. I add that if there had not been any cross-examination of the doctors, I would also have reached the decision that the claimant suffers 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.
Should permission be given to give the proposed treatment to the claimant notwithstanding that she does not consent to it?
- As I have explained, the critical provision in the Act is section 58, which I have already quoted and which in accordance with section 3 of the Human Rights Act 1998 "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 Convention. It is important to bear in mind that:-
(i) although section 58 of the Act is not phrased in terms of a permission to treat "the only sensible construction is that it does confirm permission to treat in .. two circumstances" per Hale LJ in R (Wilkinson) v. Broadmoor Special Health Authority and others [2002] 1 WLR 419, 444 [71].
(ii) those two circumstances specified in section 58(3) of the Act are that first, the claimant had given consent to the treatment and either his RMO or a SOAD had certified that he "is capable of understanding its nature, purpose and likely effects". The second is that the patient has not given his consent and a SOAD has certified that he is not capable, but in either event a SOAD has certified that "having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given". It is only the second situation that has to be considered in this case.
(iii) "the SOAD is.. performing a statutory watchdog function on behalf of the public to protect detained persons who are in an especially vulnerable position" (Wilkinson per Hale LJ at page 441 [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 Human Rights Act 1998 has the effect that section 58 must therefore be read so as to ensure compliance with Article 3 and 8.
(v) there is another threshold that has to be reached before treatment can be sanctioned, because the test posed by section 58(3)(b) of the Act for the SOAD's certification was regarded by all counsel and by Simon Brown LJ in Wilkinson [22] as being one that "essentially mirrors the best interests test", to which I will return and consider in paragraphs 88 to 106 below.
- Accordingly, permission can be granted to treat the claimant by depot injection only if that treatment satisfies the "best interests test" and that additionally it also does not interfere with the claimant's rights under Articles 3 and 8. I will explain the significance and relevance to the present dispute of each of these three relevant requirements. I agree with counsel for the claimant that the mere fact that the proposed treatment meets one test does not mean that it automatically satisfies any of the other two requirements and that section 58 has to be read, subject to Articles 3 and 8 Rights; so far, it is possible to do so. In this case, I have no difficulty in doing so as there is no inconsistency between those rights and section 58.
(i) Best Interests Test
- This common law 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 56D, 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.
- 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".
- In essence, the President was stating that the courts have to approach the best interests 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. She also refused to follow the similar approach of Hale J in Re S (Hospital Patients: Court's Jurisdiction) [1995] Fam 26 on the notion that these two stages have been conflated into one requirement.
- 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"
- 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"
Does the proposed treatment satisfy the best interests test?
- The parties agreed that this test required a number of sub-issues to be considered and the doctors considered them and reached conclusions on them at their meeting at the start of the hearing. Cross-examination followed and I now turn to consider those sub-issues.
(i) Is the proposed treatment likely to alleviate or prevent a deterioration of the claimant's condition?
- There is very little dispute between the psychiatrists on this issue as both Dr. M and Dr. Lock considered that the proposed treatment would be likely to alleviate or to prevent a deterioration of the claimant's condition because the claimant's history demonstrated that she improved with anti-psychotic medication. Indeed, Dr. Lock specifically thought that anti-psychotic depot medication would be a reasonable treatment plan if, as I have now held to be the case, the proper diagnosis of the claimant was that she was suffering from a psychotic condition.
(ii) Is there a less invasive form of treatment that could be given to the claimant, which would be likely to achieve the same beneficial results for her?
- It was agreed by all the doctors that there was no such treatment available. Dr. M explained that in the past, they had tried entrusting the claimant with the task of taking her own treatment, but she only took it intermittently and that was detrimental to her. Dr. Lock took a similar approach, because he said that if the diagnosis of the claimant was that she suffered from psychotic illnesses, then although there would in theory be alternative forms of treatment available, but the claimant's "level of compliance" with such treatment would preclude their use. He amplified that opinion when giving his oral evidence when he accepted that it was not possible to use a less invasive method of giving treatment because of the claimant's non-compliant attitude towards medication.
- That view was also supported by Dr. Parrott, who made the cogent and persuasive point that if the claimant received no treatment, there then would be a continuation of her current regime and that would require intensive and skilled nursing support to avoid harm to herself and other patients. I interject to explain that Dr. M has explained that the claimant has remained under intensive care treatment since 16 August 2000, apart from a brief spell in the medical ward during which she stopped eating. Dr. M said that the hospital authorities aimed to keep patients for a maximum of three months in the intensive care unit. Unfortunately because of the claimant's behaviour and the risk that she presents to other patients, it has not been possible to transfer her to another ward. Thus, she has been in the intensive care ward for just under two years. Dr. Parrott explained that it was very difficult to control the risk that she presented to others.
- Dr. Lock agreed with Dr. Parrott that if the claimant is not treated, she will continue to deteriorate and that if the diagnosis is correct, secondary handicaps resulting from the claimant being withdrawn and isolated were likely to make her condition worse.
- I am satisfied that there is no less invasive treatment available to the claimant, which would be likely to achieve the same result.
(iv) Would the proposed treatment be likely to alleviate or prevent deterioration of her condition?
- All the doctors agreed that the proposed treatment would achieve this result and indeed Dr. Lock accepted that if the correct diagnosis was that she was suffering from a psychotic illness, a trial of treatment was necessary to address the risk that the claimant presented to others and to herself.
(v) If the proposed treatment was likely to alleviate or prevent deterioration of the claimant's condition, is it necessary that she should have the treatment given to her having regard to (a) her resistance to treatment, (b) the degree to which treatment is likely to alleviate or prevent deterioration of her condition, (c) the risk she prevents to herself, (d) the risk she presents to others, (e) the consequences of the treatment not being given and (f) any potential adverse effects of the treatment?
- As to (a), there was general agreement that the proposed depot treatment should be given, in the light of the claimant's resistance to treatment. Dr. M explained she took that view that it should be given because of the increasing destructiveness of the claimant. Dr. Parrott considered the treatment should be given because of "risk of serious harm to self and others". Dr. Lock explained that if the diagnosis was correct, then "trial of treatment [is] necessary to [reduce] the risk to others and possibly to herself".
- It was also agreed in respect of (b) that the treatment would be likely to alleviate or prevent deterioration of the claimant's condition. Dr. M explained that with this sort of treatment "she improves but it is not complete". Dr. O thought that the evidence was that "she gets better". Dr. Parrott considered there would be a substantial improvement of the quality of "life reducing episodes of distress and arousal in a subjective sense of confusion".
- Dr. Lock's approach was that given the claimant's limited response to medication previously "any response in the future is likely to be limited albeit longer on treatment might produce a more effective response. Chronic delusional disorders have a very poor prognosis".
- Turning to (c) and (d) (the risk that the claimant presents to herself and others), Dr. M, Dr. Parrott and Dr. O all thought that the risk that the claimant presents to others would be reduced by the effects of the treatment while Dr. Lock thought that if the diagnosis was correct and the symptoms responded to the treatment, risk would be reduced.
- As to (e) (the consequences of treatment), Dr. M thought that the claimant was getting worse and that her delusions were becoming increasingly exaggerated explaining that "she is becoming confused". Dr. Parrott remained of the view that the claimant remained a serious risk to herself and others, including patients and staff in the current setting. Dr. O agreed with Drs. M and Parrott, while Dr. Lock thought that if the diagnosis was correct, then secondary handicaps were likely to make her condition worse, with a risk to herself and others.
- I was concerned by (f) (the potential adverse effects of the treatment) as the claimant explained in her evidence that she did not want the proposed treatment because of its potential adverse consequences, Dr. M in her statement explained that she had told the claimant of the potential benefits of the treatment as well as of the potential risks and side-effects of it. She also gave the claimant a copy of the relevant pages from the British National Formulary, which set out the various risks of Zulclopeithixol and Procylcidine. Dr M says that she explained to the claimant that:-
"All anti-psychotic medications carry a risk of provoking an abnormal heart rhythm however, the chances of this occurring are very slim and unrelated to N's pre-existing cardiac condition. Anti-psychotic medications can cause stiffness and even tremor and/or blurring of vision. Furthermore, rarely patients may suffer an oculogyric crisis. This is a sudden spasm of muscles in the eyes, face and neck so, for example, the eyes may stare upwards and the patient may develop spasm in neck muscles. This is treated by an injection of Procyclidine. The other problems with stiffness and tremor may also be treated with Procyclidine orally. If she develops side effects from Zuclopenthixol Decanoate we would wish to try another depot called Haloperidol Decanoate. It is a different 'family' of anti-psychotics but is equally effective. It is, however, less easy to titrate to the correct dose as it is only given monthly.
Unusually, some patients may develop a condition known as tardive dyskinesia. This is an unpredictable reaction to anti-psychotic medication resulting in involuntary movement, predominantly of the lips and tongue. It may be reversible when medication is stopped or it may be permanent.
- The claimant explained in evidence that she did not consent because of, among other things, the risk to her heart and what the treatment would achieve. Dr. Lock thought that it would be largely unrealistic to take the view that if the treatment sought was administered to the claimant she would thereby risk a heart attack, but he thought the main risks to the claimant from the treatment were of Parkinsonian factors and of tardive dyskinesia. When he was questioned about this, Dr. Lock explained that the Parkinsonian effects described by Dr. M could be treated with procylidine while the tardive dyskinesia would be kept under review. I was ultimately satisfied that any adverse consequences to the claimant do not mean that the claimant should not be treated. So I conclude that it was necessary that the claimant should have the proposed depot treatment as being in her best interests.
(ii) Article 3 of the Convention
- Article 3 of ECHR provides that: "no-one shall be subjected to torture or to inhuman or degrading treatment or punishment". This prohibition is absolute and is not limited by exceptions. There are two sub-issues raised by Article 3; the first is whether it is engaged and the second is, if it is engaged, whether it can be justified on medical grounds.
- In order to decide if Article 3 is engaged, it must be appreciated, with my emphasis added, 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).
- The European Court explained the significance of this Article to the problem of imposing forced treatment on patients in psychiatric units when it stated, with my emphasis 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 is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist" (Herczegfalvy v. Austria 50 EHRR 437, 484 at paragraph 82).
- Mr. Solley for the claimant disputes the defendants' contention that the treatment proposed for the claimant is a "therapeutic necessity" or a "medical necessity", which has been "convincingly shown to exist" on the evidence presented to the court. Thus, the defendants contend that the proposed treatment cannot be regarded as "inhuman or degrading" so that Article 3 is not engaged. In any event, having regard to the context in which the treatment under the care of treating doctors is to be given and the safeguard of the SOAD's opinion, the defendants reject the suggestion that the proposed treatment, which is to be administered by a fortnightly injection lasting 30 seconds, reaches the minimum level of severity necessary for Article 3 to be engaged at all. I propose to assume that Article 3 is engaged in the sense that the proposed treatment would constitute inhuman treatment in the absence of convincing evidence of medical necessity.
- The court in deciding whether the proposed treatment constitutes ill treatment has to consider all its effects on the patient, including and in particular, any adverse ones. In Grare v. France (1993) 15 EHRR CD 100, the Commission held on the facts of that case that the unpleasant side effects of medication for a psychiatric condition were insufficiently serious to fall within Article 3.
- In conclusion, where medical treatment is administered on a patient against his or her will, Article 3 will be contravened if (a) the proposed treatment on the patient reaches the minimum level of severity of ill-treatment, taking into account all the circumstances, including the positive and adverse mental and physical consequences of the treatment, the nature and context of the treatment, the manner and method of its execution, its duration and if relevant, the sex, age and health of the patient and (b) the medical or therapeutic necessity for the treatment has not been convincingly shown to exist. Before I consider whether there has been a breach of Article 3, it is necessary to examine two procedural matters.
Applicability of the Bolam principle to Article 3 of the Convention
- Mr. Gledhill contends that if there is a group of doctors, which considers that the proposed medical treatment in this case is not necessary for the claimant, then the application of Bolam/ Bolitho principle means that the proposed treatment should not then be permitted. The basis of this submission is that the requirement to satisfy Article 3 which is that the treatment for patients against their will can only be permitted if "medical necessity has been convincingly shown to exist" as stipulated in Herczegfalvy and stated in paragraph 109 above means that if there is a body of medical opinion that do not agree with those favouring treatment, then the application of the Bolam/ Bolitho principle has the effect and consequence that that medical necessity cannot then be shown convincingly to exist. The defendants disagree and they say that the court should adopt the Herczegfalvy test and not the Bolam/Bolitho test. In practice, Mr. Gledhill's test and the defendant's approach might produce the same result but I am unable to accept Mr. Gledhill's submission for three overlapping reasons.
- First, no reason or principle has been put forward to justify extending the application of the Bolam/Bolitho principle to use it beyond its original purpose so as to apply it additionally to the issue of whether the proposed depot treatment should be permitted under Article 3. The Bolam/Bolitho principle, by which a doctor is judged in an action in negligence not by standards of the man on the Clapham omnibus but by the standards of his similarly qualified peers provided that their views are reasonable, was devised by the common law to be used in such negligence actions so as to help to resolve the specific issue of determining whether some act or omission of a doctor constituted a breach of that doctor's standard of care. The Bolam/Bolitho principle was therefore tailor-made to deal with a specific question in negligence and, in particular, in relation to what is "reasonable" but that is very different from not only a best interests test, which requires the court to select the best test as I explained in paragraph 89 to 91 above but also from the "medical necessity" test as stipulated in Herzegfalvy's case in relation to Article 3 claims and which I have described in paragraph 109 above.
- Second, there is no suggestion in any of the Convention jurisprudence that the Bolam/Bolitho concept is either part of its jurisprudence or is relevant to it. As I have explained in paragraph 109 above, the Convention requires a doctor seeking permission to establish that "medical necessity has been convincingly shown to exist". For a party to avoid holding that Article 3 has been contravened, this test in Herzegfalvy's case focuses on the degree and standard of proof, which is different from the Bolam/Bolitho test. Of course, if a group of responsible doctors relying on an accurate diagnosis do not consider proposed treatment to be a medical or a therapeutic necessity, then it will be difficult to conclude that medical necessity has been convincingly shown to exist but that conclusion is not arrived at by invoking the Bolam/Bolitho test but by applying the Herzegfalvy test.
- Third, there is nothing in any authority, which indicates that the Bolam/ Bolitho principle should be applied on the question of "medical necessity" under Article 3 so that if a few responsible doctors take the view that treatment was not suitable, then that would automatically ensure that the court could not approve it. Indeed, in Wilkinson, there would have been much scope for the court stating that the Bolam principles applied to situations where a group of doctors say that medical treatment is not or necessary but they did not avail themselves of that opportunity. Simon Brown LJ expressly stated [31] in a passage with which Brooke LJ specifically agreed [53] that the Bolam/Bolitho approach would not apply to the SOAD's views so that the courts would sanction treatment merely because a respected body of medical treatment supported it. What is important in the context of the claimant's submissions on this specific issue is that the Court of Appeal regarded the Judge as having a duty to evaluate the claim that there would be no breaches of Articles 3 and 8 of the Convention or the "best interests test" while nothing was said by the judges in that case or in any other case to which I was referred to the effect that a judge should apply the Bolam/Bolitho principle when considering any of these tests. In any event, even if the claimant's submissions were correct, I am not satisfied that there definitely is a body of doctors who considered on the evidence before me that the proposed treatment is not necessary. It will be recalled that Dr. Lock accepts that if, as I have found to be the case, the claimant suffers from a psychotic illness then the proposed depot treatment would be in the best interests of the claimant. I suspect that the other doctors who considered that depot treatment was not a medical necessity would change their views if the claimant was suffering from a psychotic illness as I have found her to be.
Proof of medical necessity and Article 3
- As I have explained, the European Court has stated, with my emphasis added, that "as a general rule, treatment 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 50 EHRR 437, 484 at paragraph 82). The italicised words demonstrate that the task of the court when considering whether proposed treatment is 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. So the defendants will only succeed in relying on this defence if they can persuade me that I have to answer in the affirmative the question of whether it has been "convincingly shown" that the proposed treatment is a medical necessity. Insofar as Mr. Hyam is contending that the onus of proof of absence of medical necessity is on the claimant, I cannot agree. I consider that the onus must be on the RMO as first, the wording in Herczegfalvy indicates that what has to be shown and proved is the existence of medical necessity rather than the absence of it and second, the RMO is the person asserting the need for the proposed treatment. In any event, all relevant facts relating to the nature and value of the proposed treatment are within the knowledge of the doctors treating the claimant and the burden of proof should be on them.
Is the medical necessity for the proposed treatment of the claimant "convincingly shown"?
- 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.
(iii)Article 8 of the Convention
- Article 8 of the European Convention on Human Rights 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 that is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
- Individuals have the right not to be subjected to compulsory physical intervention and treatment and Article 8 can be engaged even where the minimum level of severity required in Article 3 cases was not reached. Thus, a prima facie breach of Article 8 may occur when treatment is given to a patient without consent, unless it is justifiable under Article 8(2). In the light of my findings on Article 8(2), I will assume that administering the proposed treatment would constitute a breach of Article 8(1). Therefore the RMO and the Trust will be interfering with the claimant's rights under Article 8 if they were to administer the proposed treatment on the claimant unless such interference is justified under Article 8(2) of the Convention.
- The defendants contend that any breach of Article 8(1) is justifiable in this case because any treatment was "in accordance with the law and is necessary in a democratic society … for the protection of health". It is settled law that "necessary" is not synonymous with "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 is because inherent in the interpretation of the Convention is the 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 must be proportionate to the legitimate aim pursued (Handyside v. United Kingdom (1976) 1 EHRR 737).
- The proposed treatment is, as I have explained, in accordance with the "best interests test" and so it meets the requirement of being "in accordance with the law", but that leaves open the issues of whether it is "necessary in a democratic society" for the reasons set out in Article 8(2).
- It is the first and second respondents' contention that the interference with the applicant's right to respect of private life is not only "proportionate" but also "necessary" and justified for the protection of the health of the applicant and for the health and safety of others. They contend that ample support for this proposition is to be found in the medical reports of Professor Coid, Dr. M and Dr. Parrott and to a large extent, in the oral and written evidence of Dr. Lock. I have already explained in paragraphs 93 to 106 why having considered the reasons of the RMO for wishing to administer the proposed depot treatment as well as the supporting and contrary evidence, I concluded that the proposed treatment was likely to alleviate or to prevent a deterioration of the claimant's psychotic condition, that there was no less invasive treatment, which was likely to achieve the same result and that, in the light of the consequences of the proposed treatment not being given, the proposed treatment was medically necessary. This shows that the proposed treatment satisfies the requirements of being necessary in a democratic society for the prevention of health of the claimant and the health and safety of others. Thus the proposed treatment does not constitute an actual or contingent breach of Article 8.
- Thus, this application must be refused.
MR JUSTICE SILBER: Can I thank all counsel very much for their comments, which I have appreciated greatly. There is one issue which I would like to raise with all of you, which is the question about anonymity. It is rather ironical that you asked for less anonymity, Mr Gledhill, than the hospital, but can we just run through it? The actual order enforced is that in paragraph 2 of Goldring J's order, which Mr Hyam very helpfully reminded me of.
MR GLEDHILL: My Lord, in terms of the position of the claimant, we are happy if the other parties are anonymised, which was the order which was agreed on behalf of --
MR JUSTICE SILBER: Yes. There are slight problems because the second opinion appointed doctor and the first defendant both have the same initial.
MR GLEDHILL: Yes, so they would have to be Drs. A and B, rather than both Dr. O.
MR JUSTICE SILBER: Yes, well, I think I am going to -- well, the health authority becomes the A Health Authority and I think the first defendant will become Dr. A and the third defendant will become Dr. O.
MR GLEDHILL: The defendant is now, of course, a trust, so I suppose, if it becomes A Mental Health NHS Trust --
MR JUSTICE SILBER: Well, I will just have to change this and I will give you a list of what the changes are -- I think they will be pretty obvious. So far as --
MR GLEDHILL: My Lord, as well, the other hospital would have to be --
MR JUSTICE SILBER: Yes, it will become X.
MR GLEDHILL: Yes, and I think my learned friend Mr Hyam in his notes suggests that perhaps Dr V and others --
MR JUSTICE SILBER: Well, I think the only people whose names are actually going to appear are Dr. Parrott and Dr. Lock. I think that is probably the best of way of doing it, is it not?
MR GLEDHILL: Yes.
MR GLEDHILL: The only concern that would arise is that more or less everybody who works in mental health will know that, if you are transferred to high security from S, you go to X.
MR JUSTICE SILBER: Yes. I do not think it would require much -- well, there are only one or two hospitals it could probably be in any event. What about Professor Coid?
MR HYAM: He was an expert.
MR GLEDHILL: He is an expert --
MR JUSTICE SILBER: He was an expert --
MR GLEDHILL: (Inaudible)
MR JUSTICE SILBER: No, what do we -- you see, the order is:
"Any person save for a ...(Reading to the words)...witness who gives evidence in these proceedings."
MR GLEDHILL: He gave evidence in the sense of a written document --
MR JUSTICE SILBER: It is less work for me to change, so I am happy to keep his name in.
MR GLEDHILL: Originally he was to be the expert giving evidence for the defendants. Dr. Parrot had to stand in because Professor Coid was not available.
MR JUSTICE SILBER: Yes. I am going to make various other changes to the judgment, which you will get in due course. Are there any other points before -- I think the order that I have to make is that the application is dismissed.
MR GLEDHILL: My Lord, yes.
MR JUSTICE SILBER: Unfortunately, my clerk is away at present, so you will not get copies of the final version until Monday or Tuesday. I will happily explain very briefly, if you like, once we have dealt with all the formalities, what this case is about? Would that be of assistance to the law reporters?
A LAW REPORTER: My Lord, I would very much like an explanation as to why we cannot name authorities, as opposed to individuals.
MR HYAM: Well, the argument behind that is in the case of ECL v (inaudible) Publicity. The application made by the health trust is that it should be allowed to make applications such as this for permission to treat in a particular way without the fear of untrammelled publicity if that decision to treat is challenged, and there is a real public interest in allowing that. Equally, there is a public interest and a private interest in the claimants --
MR JUSTICE SILBER: I do not think there is any dispute about -- your point is not about --
A LAW REPORTER: I am just seeking clarification, my Lord, for the form of the order. I was just seeking clarification why the order has been --
MR JUSTICE SILBER: Yes, well, it has now been explained --
MR HYAM: The other aspect is the parties are so closely linked by the necessary nexus between where they are and the treatment they are receiving that to identify the (inaudible) doctor or even the hospital would very quickly lead to the identification of the applicant in this case, and to protect her interests and to protect the interests of those who continue to treat her, it is our application that the anonymity of the health trust and the doctors treating should be preserved and the order of Goldring J continued.
MR JUSTICE SILBER: Is there anything more you would like to ask about that? What I am quite happy to do is to maintain the order of Goldring J but give any interested party the right to come to court and apply for it to be varied, if any of you want to in due course, and it can be argued about properly on that occasion. So, I will order that paragraph 2 of the order of Goldring J continues, liberty given to any interested party to apply on notice to vary or discharge that. I presume none of you have anything to say about that.
MR GLEDHILL: My Lord, no.
MR HYAM: I make an application for costs. I think the claimant in this case is in receipt of Legal Services Commission funding, but nonetheless I do make an application in respect of resisting the application and ask for the costs in the usual way against legally assisted parties.
MR JUSTICE SILBER: Yes, Miss Kilroy.
MISS KILROY: My Lord, the third defendant does not seek its costs.
MR JUSTICE SILBER: No.
MR GLEDHILL: I cannot realistically resist any application for costs, save to say that this is not the sort of claimant who is ever going to be winning the football pools or winning the lottery. They are not allowed to do it at the hospital where she is presently accommodated. There does not seem to be much realistic chance of her leaving --
MR JUSTICE SILBER: Well, what is the order that I should make? It obviously cannot be enforced.
MR GLEDHILL: No. Well, your Lordship has a discretion whether to make any costs order at all. If you make a costs order in relation to a publicly funded defendant, it is one that is adjourned to the costs judge, and that is, in effect, the extent of your powers in that regard.
MR JUSTICE SILBER: Well, that is the usual order that is made, is it not?
MR GLEDHILL: And that is now the usual order that is made, and then it is sent down to the defendant to make an application to the costs judge within a time limit as to whether or not any order is to be enforced, and that is then reserved to the costs judge.
MR HYAM: Yes, the usual order is now -- it used to be -- the football pools order was replaced with a costs order that the costs in favour of the first and second defendant are not to be enforced without leave. The determination of the (inaudible) postponed. I think it is in accordance with regulation 170B of what used to be the Civil --
MR JUSTICE SILBER: There is nothing between you on this, is there?
MR HYAM: No.
MR JUSTICE SILBER: You know the order to make?
THE CLERK OF THE COURT: Yes, my Lord. In fact, the new order under the Administration of Justice Act does not apply for the Administrative Court but it is simply that the determination of the claimant's liability to pay be postponed.
MR JUSTICE SILBER: I think that is the order I propose to make, unless you want to deal with that.
MR GLEDHILL: My Lord, no. No further representations in relation to that. In relation to the claimant's costs, I would ask that there be a legal aid detailed assessment.
MR JUSTICE SILBER: Is there a certificate?
THE CLERK OF THE COURT: Yes, my Lord, yes.
MR GLEDHILL: I am obliged for that.
My Lord, the final question that I want to raise is that of permission to appeal. As your Lordship knows, permission to appeal can be granted by your Lordship on two grounds, which are, in effect, prospects of success and also whether there is some other compelling reason for the Court of Appeal to consider the case. I make the application on both heads. In relation to the first head, in effect, all I say is that, for the reasons Mr Solley and I argued originally, there are prospects of success and, rather than going through the judgment piece by piece, in effect that is all I say in relation to that ground.
The second ground, and one on which I apprehend I may have more prospects of success from your Lordship, is that one thing that your Lordship is very clear about identifying is that this is putting into practice consequences from the judgment in Wilkinson, which was itself an important judgment, and to that extent your Lordship was asked to consider what should happen in practice in cases of this nature, including on the very important issue of what approach the court should adopt in circumstances where there are different views from different doctors, and in particular the issue of law that arises is what, for, in effect, shorthand reasons, was called the reverse Bolam/Bolitho test, and your Lordship, of course, deals with that in the course of the judgment that he has given, but we still say that that is a point of enormous significance.
MR JUSTICE SILBER: I suppose your point really on this is to say that it is of great importance that the law in this area ought to be straightened out, so that hospitals and doctors know exactly what can be done and patients know what can be done, and we do not have what happened in both this case and Wilkinson: quite long, drawn out proceedings.
MR GLEDHILL: Yes, precisely so, and to the extent that some of your Lordship's judgment and conclusions flow from dicta in Wilkinson, which we say were in fact loose dicta and not to have the meaning that your Lordship has assigned to them. That, I accept, is something that the Court of Appeal has to make a determination on. So, yes, your Lordship has the point. It is of potentially great significance for a significant number of people within the mental health system and for that reason the Court of Appeal should be invited to rule definitively one way or the other on it.
MR HYAM: Really it is a matter for your Lordship. I do not think I have any point to make on it.
MR JUSTICE SILBER: I ought to tell you that I am impressed by the point that it does raise matters of importance, which ought, I think, to be resolved, and the decision of the Court of Appeal would be of value on this.
MR GLEDHILL: I am much obliged, my Lord.
MR JUSTICE SILBER: That is my provisional view. You have not won on that point yet. I just want to hear what Mr Hyam and Miss Kilroy have to say about it.
MR GLEDHILL: My Lord, I am saying I am grateful because I understood there was no particular strong disagreement with that.
MR JUSTICE SILBER: No, there is no banging of the fists yet.
MISS KILROY: Equally, it is a matter for your Lordship.
MR JUSTICE SILBER: In that case I give you permission.
MR GLEDHILL: I am much obliged.
MR JUSTICE SILBER: It does raise an issue, though, which is -- because at present there is an injunction. Is there any injunction?
MR GLEDHILL: Well, my Lord, no. There is an undertaking not to treat, pending the resolution of --
MR JUSTICE SILBER: You see, what I want is an application to be made for expedition and what I am proposing would be to give you permission to appeal upon the basis that you apply for expedition and you make an application for expedition by, say, two weeks' time.
MR GLEDHILL: My Lord, yes. In relation to that, we will have to, of course, seek to have the legal funding certificate amended to allow an application in the Court of Appeal.
MR JUSTICE SILBER: Well, my experience has been that, if we put a time, they will then hurry up and deal with the case.
MR GLEDHILL: I would certainly not resist any directions as to expedition being made because that will assist our --
MR JUSTICE SILBER: I do not know what you say about this.
MR HYAM: The slight difficulty is this: we gave an undertaking at the permission stage not to treat, which, we said, was in her best interests, and we said at that time that it was really quite urgent that she ought to be treated. Quite a significant period has already lapsed. I am reluctant -- and yet at the same time I do not want to be placed in a position where we are at risk of being found to have treated her unlawfully.
MR JUSTICE SILBER: Well, certainly. What I was proposing was, in fact, to make it a condition of giving permission to appeal that an application for expedition is made, say, in the next 14 days. If you want to take some further instructions, Mr Hyam, do, because it is obviously an important thing for you.
MR HYAM: It is. I have taken instructions. Our position is that it is an important issue. We accept that. There is a clinical reason why we want to get on and treat her. I cannot trump the importance of the issue with that. I cannot say it is so pressing. Certainly, I am not instructed to (inaudible) so important she must be treated today or tomorrow. So, provided it is expedited --
MR JUSTICE SILBER: Unfortunately, I cannot tell the Court of Appeal what to do, but I can make it a condition that you apply for expedition and I will certainly be making representations to the Court of Appeal or be writing a note to them saying why I think it should be expedited.
MR GLEDHILL: My Lord, I am certainly happy to say that we will make an application to expedite.
MR JUSTICE SILBER: You will make an application. You see, you must bear in mind this: you are probably not going to get the corrected judgment before Monday or Tuesday at the earliest because I simply do not have a clerk and it is a matter of actually printing the stuff off, which is more complicated than you think because it has to get stamps on, which ...
MR GLEDHILL: My Lord, I can see that. I can certainly say I have no doubt that, as soon as my instructing solicitor has visited the claimant and explained the judgment to her and obtained her confirmation that she wishes to take it further, we will make the relevant application to the Legal Services Commission.
MR JUSTICE SILBER: I was going to say to give you until -- something like, "An application to be made by 12 noon on 14th October." That was what I had -- I mean, I would not have thought it is going to be a very difficult notice of appeal to do because it is quite obvious what your submissions are in relation to this.
MR GLEDHILL: Yes, the mechanics of the paperwork are not difficult to do. The only difficulty would be with the Legal Services Commission and, as I say, if your Lordship has given permission to appeal and directed that an application for expedition be made, that will assist us. Of course, can I say that, in relation to the not treating of the claimant, it is, of course, and in the original order was, subject to any urgency. So, if the provisions of section 62 apply, treatment can be enforced and, of course, if there were listing difficulties in the Court of Appeal --
MR JUSTICE SILBER: Well, no, all you have to do is to make an application. We have no idea how soon it will be heard. I suspect an application for expedition will be heard very quickly. You just have to get your -- I think it really has to be on two conditions: firstly, that you apply for expedition, and then thereafter you pursue the application and the appeal with all due diligence.
MR GLEDHILL: My Lord, yes.
MR JUSTICE SILBER: I am going to ask you actually if you can write out the order, if you can do it. But I think it has to be on that basis, and I am also going to give to -- it should really be the second defendants -- liberty to apply to vary or discharge the undertaking, so that, if something happens that is drastic and they have to deal with it, I do not want them to have to resort to section 62 without the protection of a court order.
MR GLEDHILL: Yes.
MR JUSTICE SILBER: Because I think otherwise it could be quite difficult.
MR GLEDHILL: My Lord, yes.
MR JUSTICE SILBER: Could I leave it to all of you?
I am sorry, I have rather ignored you from this discussion but I think your role is rather more peripheral, Miss Kilroy.
Can I leave it to you to draft an order and if you can -- I am working today, but not for the rest of the week. So, if you can get it faxed through to me today, that would be very useful.
MR GLEDHILL: My Lord, we will do that.
MR JUSTICE SILBER: Can I thank you all of you and absent friends in the form of Mr Forsdick and Mr Solley for their help in this case.
Would it help if I told any of you what the case was about? The claimant had been a patient at a mental hospital since January 1999 and she sought to judicially review a decision of a consultant forensic psychiatrist at that hospital to administer to the claimant depot, namely by injection, anti-psychotic medicine for the prevention or for the alleviation of a psychotic illness. The claimant did not consent and does not consent to the treatment. The doctor at the hospital obtained an opinion from another consultant psychiatrist, who acted as the second opinion appointed doctor, as required by the Mental Health Act, who authorised the administration of the proposed treatment to the claimant. The claimant sought to judicially review the decision of the psychiatrist at the hospital to administer the treatment and also the subsequent decision of the second opinion appointed doctor.
The claimant contended that she had the capacity to consent, but did not give her consent, and therefore any proposed medication was unlawful or unreasonable, being in breach of Articles 3 and 8 of the European Convention. She also said that the second opinion appointed doctor had acted unfairly in reaching a decision by following a procedure which did not allow the claimant's views to be fully represented.
So this case raises issues of how the court should deal procedurally and substantively with challenges made by patients to decisions for their treatment against their wishes in the light of the Mental Health Act, as read in accordance with Articles 3 and 8 of the Convention.
A fundamental dispute between the doctor called for the claimant and the defendants was whether the claimant had the capacity to consent, but above all whether the proposed treatment was necessary for her. There was a dispute between the claimants and the defendants as to whether she was suffering from a psychotic condition.
I held, relying on a decision in the R(Wilkinson) v Broadmoor Special Health Authority [2001] WLR 419 that, as there was a dispute on this area, I had to act as a fact finder, and I permitted cross-examination on the application. As a result of that, I reached a number of factual conclusions. The first was that the claimant did not have the capacity to give consent to the proposed treatment because she would not be able to believe and weigh in the balance information so as to arrive at an informed choice on the proposed treatment, as she would be biased and lacking in objective judgment because of her preconceived and firmly held notions.
Second, I held that she had suffered from a psychotic illness. Then, on the basis of that, I concluded, first, that it was necessary that she should have the proposed depot treatment, as being in her best interest, second, that administering that treatment in the circumstances of the case did not constitute a breach of Article 3 of the Convention and, third, that the proposed treatment did not constitute actual or contingent breach of Article 8.
I say, for the avoidance of any doubt at all, that what I have just said is not a substitute for the written judgment at all. It is just simply clarification for you, and it is the written judgment which is obviously the important point and for that reason, I suspect, Mr Gledhill did not take notes of what I was saying.
Can I thank you for all very much for all your help on that and, as I say, you will not get the judgment until, probably, late on Monday at the earliest, but I will do my best to get it to you as quickly as possible.
