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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> B, R (on the application of) v Dr. SS & Ors [2005] EWHC 86 (Admin) (31 January 2005) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2005/86.html Cite as: [2005] EWHC 86 (Admin) |
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QUEENS BENCH
DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF
B |
Claimant | |
- and - |
||
DR. SS (1) |
Defendants | |
DR. AC (2) |
||
THE SECRETARY OF STATE FOR THE DEPARTMENT OF HEALTH (3) |
____________________
Jonathan Swift (instructed by Office
of the Solicitor to the Department of Work and Pensions and the Department of
Health) for the Third Defendant
The First and Second Defendants were not
represented nor present
Hearing dates : 6, 7 October 2004, 21 December 2004
and 17 January 2005
____________________
Crown Copyright ©
Mr Justice Silber:
I Introduction
(i) the background (paragraphs 8 – 18)
(ii) an overview of the dispute (paragraphs 19 – 38)
(iii) the Academic Point issue (paragraphs 39 – 71)
(iv) the Article 3 issue (paragraphs 72 – 112)
(v) the Article 8 issue (paragraphs 113 – 147)
(vi) the International Consensus issue (paragraphs 148 – 189)
(vii) the Article 14 issue (paragraphs 190 – 217).
II The Background
"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.."
"(3) Subject to section 62 below" – [which makes provision for urgent treatment and which is not relevant to this case] – "a patient shall not be given any form of treatment to which this section applies unless –
(a) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or
(b) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
(4) Before giving a certificate under subsection (3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner".
"In the case of a competent patient, neither Article 8 nor Article 3 provide an absolute bar to the compulsory treatment of a non-consenting, competent patient .. However, as the law currently stands, the patient's right of autonomy can be overridden on the basis only that the doctor considers it to be in his 'best interest'. The fact that the patient has capacity is a relevant consideration but that is all. It is this aspect of the law as it currently stands that the claimant contends is wrong".
III An Overview of the Dispute.
(i) A Summary of the Rival Contentions
(ii) The Present Approach of English law to the Patient with Capacity, who Refuses to Consent to Treatment
(i) although section 58 of the 1983 Act is not phrased in terms of a permission to treat "the only sensible construction is that it does confirm permission to treat in .. two circumstances" per Hale LJ in Wilkinson [2002] 1 WLR 419, 444 [71].
(ii) those two circumstances specified in section 58(3) of the 1983 Act are that first, the claimant had given consent to the treatment and either his RMO or a SOAD had certified that he "is capable of understanding its nature, purpose and likely effects". The second is that the patient has not given his consent and a SOAD has certified that he is not capable, but in either event a SOAD has certified that "having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given". It is only the second situation that has to be considered in this case.
(iii) "the SOAD is.. performing a statutory watchdog function on behalf of the public, to protect detained persons who are in an especially vulnerable position" (Wilkinson per Hale LJ at page 441 [60]). In that capacity, the SOAD has to form his own independent opinion on the existence of the statutory criteria (Wilkinson [71]).
(iv) "the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8 of the Convention" (per Hale LJ in Wilkinson at page 447 [83]). Section 3 of the HRA has the effect that section 58 must therefore be read so as to ensure compliance with Article 3 and 8.
"I do not take the view that detained patients who have the capacity to decide for themselves can never be treated against their will. Our threshold of capacity is rightly a low one. It is better to keep it that way and allow some non-consensual treatment of those who have capacity than to set such a high threshold for capacity that many would never qualify. Whether the criteria for non-consensual treatment of the non-capacitated should be limited to treatment which is for their own safety (as opposed to their health) is a difficult and complex question. Mr. Bowen tried to persuade us that there was a developing consensus to that effect. There are indeed indications that the issue of capacity is assuming greater importance in the context of psychiatric treatment. But we have not yet reached the point where it is accepted norm that detained patients who fulfil the In Re MB [1997] 2 FLR 426 criteria for capacity can only be treated against their will for the protection of others or for their own safety" ([80] page 446).
"If in truth this claimant has the capacity to refuse consent to the treatment proposed here, it is difficult to suppose that he should nevertheless be forcibly subjected to it" ([30] page 433D).
".. the fact that the claimant has capacity to consent to treatment but refuses to consent is a very important factor. There is, however, no basis whether derived from statute or from decided cases for concluding as [counsel for the claimant] contends to be the case, that such objections of the claimant automatically and inevitably override all other issues except where the interests of other people would be affected if the medication was not administered" [123].
"As the law currently stands, the patient's right of autonomy can be overridden on the basis only that the doctor considers it to be in 'his best interests'. The fact that the patient has capacity is a relevant consideration but that is all".
IV The Issues
(a) whether the issues in the third claim are academic with the result that the claimant should not be entitled to pursue them ("The Academic Point Issue");
(b) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the Article 3 point ("The Article 3 Issue");
(c) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the Article 8 point ("The Article 8 Issue");
(d) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the basis of an international consensus supporting the claimant's case ("The International Consensus Issue")
(e) if the claimant is entitled to pursue the third claim against the Secretary of State in spite of its academic nature, whether it should succeed substantively on the Article 14 point ("The Article 14 Issue").
V The Academic Point Issue
(i) The Rival Submissions
".. I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly effect the rights and obligations of a party's inter se .. the discretion to hear disputes, even in the area of public law, must however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists, or are anticipated so that the issue will most likely need to be resolved in the near future" (at pages 456G-457B).
(ii) The Correct Approach
"it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them" (page 371E [35]).
"Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case".
"the valuable time for the courts should be spent on real issues" (page 373E [45]).
(iii) Discussion
"Whilst [the claimant] is not actively ill he is beginning to deteriorate and it was considered appropriate to institute treatment to prevent any further deterioration. This would be both in his interests and with a view to protection of himself and others. It would be likely, should he further deteriorate, that his judgement would become seriously impaired and he would quite likely be involved in altercations with other residents, which may cause physical harm to him and/or others. The benefits of treatment to him, therefore, would be to hopefully return him to some semblance of normality".
"He is beginning to show signs of decompensation and it is my opinion that [the claimant] deserves the opportunity of being treated with medication to prevent any worsening of his illness, to prevent any further psychiatric damage or psychological damage to himself and in the interests of his own health and welfare, as well as that of other people. It was in the light of this that I gave a considered independent opinion that it would be appropriate to offer him treatment".
"The RMO and SOAD are not satisfied that … (ii) the proposed treatment is necessary to protect other persons from harm or that without such treatment, serious harm is likely to result to the claimant's health".
i. the nature and extent of the patient's objections. He might be vehemently opposed to the treatment or he might be somebody, who is on balance opposed but who would not be troubled if he had to take it. This could be important because, as I will explain in paragraphs 92 to 102 below, the threshold for engaging Article 3 depends on the victim suffering a high degree of suffering and that depends on the effect of the treatment on the patient;
ii. the level of his understanding. I will explain in paragraphs 85 to 88 below that the present low threshold for capacity is low as explained by Hale LJ in the passage from Wilkinson referred to in paragraph 22 above. A patient might be regarded as having capacity not only when he understands every aspect of the proposed treatment and to properly weigh every aspect of it as part of his process of arriving at a decision but also when, as Lord Eassie describes, he lacks insight or understanding of his problems (see paragraph 85 below). These differences might be important;
iii. the basis on which the patient has been detained. It might be for treatment. A patient may be ordered to be admitted, as the claimant in this case was, pursuant to section 37 of the 1983 Act and one of the grounds for such an order might be that the court is satisfied on the evidence of the registered medical practitioner that among other things,
"The mental disorder for which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition" (section 37(2) (a) (i) of the 1983 Act).
iv. the extent to which the patient might be assisted by the proposed treatment and the side effects on him. There is a relevant and significant difference between, for example on the one hand, treatment, which has no side effects, which would enable a patient to be discharged so as to lead a fairly normal life in the community, and on the other hand, treatment with disturbing side effects and with a low prospect of success.
"allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases" (CPR Part I 1.1(2)(e)).68.Although the CPR is primarily concerned with private law cases, in my mind it shows that a factor, which a court should take into account in determining whether a party should be entitled to pursue an academic issue, is, "the need to allot resources to other cases". As I have explained, this point was echoed in a public law case by Lord Scott of Foscote, who pointed out in Rusbridger that, "the valuable time for the courts should be spent on real issues" (page 373E [45]).
VI. THE ARTICLE 3 ISSUE
(i) The Claimant's Criticism of the Present Domestic Law Approach in the Light of Articles 3 and 8 of the ECHR
"Secondly, the principle of self-determination requires that respect must be given to the wishes of the patient. So that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interest to do so" (130C-D).
"That said, however, how can a forced invasion of a competent adult's body against her will even for the most laudable of motives (the preservation of life) be ordered without irremediably damaging the principle of self-determination? When human life is at stake the pressure to provide an affirmative answer authorising unwanted medical intervention is very powerful. Nevertheless the autonomy of each individual requires continuing protection even, perhaps particularly, when the motive for interfering with it is readily understandable, and indeed to may would appear commendable: hence the importance of remembering Lord Reid's warning against making 'even minor concessions'".
(ii) Has the patient, who is deemed to have capacity, the same relevant powers of, among other things, understanding facts and making a balanced judgment on whether to agree to accept proposed medical treatment as any person, who is not a patient?
"…(4) A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
(a) the patient is unable to comprehend and retain the information, which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C, a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Banks v. Goodfellow (1870) LR 5 QB 549, 569:
"… one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration".
(5) The "temporary factors" mentioned by Lord Donaldson MR in Re T … (confusion, shock, fatigue, pain or drugs) may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.
(6) Another such influence may be panic induced by fear. Again, careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may also, however, paralyse the will and thus destroy the capacity to make a decision" (page 437).
"Mental illness differed from physical illness in the important respect that even arguably "consent competent" patients may lack insight or understanding of their problem, which lack of insight might have to be addressed by medication" [22].
(iii) The Effect of Article 3 of ECHR.
"Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of the minimum is, in the nature of things relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and in some instances, the sex, age and state of health of the victim" (T and V v. UK (1999) 7 BHRC 659) (with my emphasis added).
"The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of Article 3 whose requirements permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist" (Herczegfalvy v. Austria (1992) 50 EHRR 437, 484 at paragraph 82).
"it seems to us that there is much to be said for the view that in these cases, there is but a simple question: has the proposed treatment been convincingly shown to be medically necessary?" [19].
"Having regard to the fact that the Convention is a 'living instrument which must be interpreted in the light of present day conditions', the Court considers that certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably, requires greater firmness in assessing breaches of the fundamental values of democratic societies" (Selmouni v. France (2000) 29 EHRR 403 at para 101).
"The [Strasbourg] Court's case-law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering". (Pretty v. United Kingdom (2002) 35 EHRR 1 at paragraph 52 with my emphasis added).
"Ill-treatment must attain a minimum level of severity before it will be considered to fall within the provision's code" and "the practice of the Convention requires compliance with standard of proof beyond reasonable doubt that ill-treatment of such severity occurred" (Orhan v. Turkey App 25656/94 18 June 2002 paragraph 352).
(iv) The Automatic Breach Sub-Issue
(iv) The Herczegfalvy Sub-Issue
"The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading"[82].
VII. THE ARTICLE 8 ISSUE.
(i) The significance of Article 8(2)
"(1) Everyone has the respect for his private and family life, his home and correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
"The administration of the proposed treatment (i) would amount to a breach of ECHR Article 8(1) that would require justification under Article 8(2), (ii) would be a proportionate and lawful response in the interests of the protection of health and therefore justifiable under Article 8(2), if administered to an incompetent patient. (As the law is currently understood and applied following R (PS) v. Dr. G and Dr. W, it would also be justifiable under Article 8(2) if administered to a competent patient but whether PS is a correct statement of the law is the issue that falls to be determined in these proceedings)".
"in accordance with the law and is necessary in a democratic society … for the protection of heath".
"5. In the opinion of the RMO and the Second Opinion Appointed Doctor ("SOAD"), the proposed treatment for the claimant satisfies the best interests test and should be given having regard to the likelihood of the proposed treatment alleviating or preventing a deterioration of the claimant's condition,.
6. In reaching this conclusion, the requirements of section 58 of the MHA 1983 have been complied with (as they are presently understood). As part of this process the RMO and SOAD have:-
(i) taken into consideration the fact that the claimant is competent to refuse the treatment and has declined to consent to it; and
(ii) given such weight to that factor as they consider appropriate (i.e. they have applied the approach stated in R (PS) v. Dr. G and Dr. W) [2003] EWHC 235 (Admin)."
(a) "necessary in a democratic society … for the protection of health";
(b) "in accordance with the law" and
(c) proportionality.
(ii) "..necessary in a democratic society.. for the protection of health.."
"there is much to be said for the view that in these cases there is but a single question; has the proposed treatment been convincingly shown to be medically necessary?" (per Dyson LJ in N[19]).
"It accordingly appears to me that in enacting the provisions of the 1984 Act, Parliament was endeavouring to define with at least some precision the circumstances in which departure from the principle of not treating the competent patient without his consent might be justified in what was then and now a free and democratic society".
"in determining whether an interference was 'necessary in a democratic society', the [Strasbourg] Court will take into account that a margin of appreciation is left to Contracting States" ( Matter v. Slovakia (2001) E.H.R.R. 32 [66] cited in Petition of WM (AP) for Judicial Review (supra)[18]).
(iii) "..in accordance with the law.."
"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 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".
"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".
(iv) Proportionality
"In determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself 'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective'".
"we have not reached the point where it is an accepted norm that detained patients who fulfil the .. criteria for capacity can only be treated against their will for the protection of others or for their own safety".
VIII. The Developing International Consensus Issue
(i) Introduction
"the Convention is a living instrument, the standards guaranteed by the Convention are to be reinterpreted in accordance with changing perceptions of individual right" [Dyer v. Watson [2004] 1 AC 379, 401 [49]].
(ii) The Council of Europe Recommendations
"The Permanent Representative of the United Kingdom indicated in accordance with …the Rules of Procedure for the meetings of Minister's Deputies for the meetings of the Minister's Deputies, he reserved the right of his Government to comply or not with the Recommendation as a whole".
"treatment may only be provided to a person with mental disorder with his or her consent if he or she has the capacity to give such consent".
I add that I could not find a definition of "capacity" in the Recommendations.
"A person may be subject to involuntary treatment only if all the following conditions are met: -
the person has a mental disorder;
ii. the person's condition represents a significant risk of serious harm to his or her health or to other persons;
iii. no less intrusive means of providing appropriate care are available;
iv. the opinion of the person concerned has been taken into consideration".
"such treatment should only be carried out if the person concerned has given free, informed and specific consent in writing".
(iii) United Nations General Assembly Resolution 46/119 of 17 December 1991
"… a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied … (a) the patient is, at the relevant time, held as an involuntary patient;
(b) an independent authority having in its possession all relevant information including [the information regarded as material to the provision of informed consent if this can be freely obtained] is satisfied that, … if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds consent
(c) the independent authority is satisfied that the proposed plan of treatment is in the best interests of the patient's health needs".
"The exercise of the rights set forth in the present Principles may be subject only to limitations as are prescribed by law and are necessary to protect the health or safety of the person concerned or of others, or otherwise to protect public safety, order, health or morals or the fundamental rights and freedoms of others".
"regarded as the most complete standards for the protection of the rights of persons with mental disability at the international level. These Principles serve as a guide to States in the design and/or reform of mental health systems and are of utmost utility in evaluating the practices of existing systems".
(iv) The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in August 2000, 8th General Report (CPT) Int (98) (12)
"Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based on law and only relate to clearly and strictly defined exceptional circumstances".
"That gives some indication of modern thinking on this sensitive subject. The precise equivalence under section 58(3)(b) between incompetent patients and competent but non-consenting patients seems to me increasingly difficult to justify"[29].
(v) The Bioethics Convention
"An intervention in the health field may only be carried out after the person concerned had given free and informed consent to it….".
"where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body prescribed by the law".
"Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health".
"it does not consider that the regulatory framework in place in the United Kingdom is in any way inconsistent with the standards laid down in the [Bioethics Convention] in the area of consent"[75].
(vi) The Draft United Nations Convention of January 2004
"2. In particular, State Parties shall prohibit, and protect persons with disabilities, from medical or scientific experimentation without the free and informed consent of the persons concerned, and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment".
(vii) American and Canadian authorities
(viii) Discussion on the International Consensus Issue
"the extent to which an international consensus is developing that requires adequate protection against mistaken or arbitral treatment to be afforded to vulnerable, detained mental patients, including a restriction on the imposition of compulsory treatment to competent patients to situations where treatment has been shown to be necessary to protect the public from harm or to protect the patient from serious harm".
IX – THE ARTICLE 14 ISSUE
(i) Introduction
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
(i) Do the facts fall within the ambit or one or more of the substantive Convention provisions (for the relevant Convention rights see s1(1) of the 1998 Act)?
(ii) If so, was there a difference of treatment as respects that right between the complainant on the one hand and the other persons put forward for comparison ("the chosen comparators")?
(iii) Were the chosen comparators in an analogous situation to the complainant's situation?
(iv) If so, did the difference in treatment have an objective and reasonable justification?: in other words, did it pursue a legitimate aim and did the differential treatment bear reasonable relationship proportionality to the aim sought to be achieved? [19].
"A competent person who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears or her own death. In that case, the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise" (page 436 – 437 and repeated in almost identical terms at page 444).
"is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished because her decision to exercise it may appear morally repugnant".
(ii) Question (iii) ("Were the chosen comparators in an analogous situation to the complainant's situation?")
"(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section".
"The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the results will be to avoid the commission by the offender of further criminal acts".
(iii) Question (iv) ("Did the difference in treatment have an objective and reasonable justification and did the differential treatment bear a reasonable relationship of proportionality to that aim?")
"which makes it appropriate for him to be detained in a hospital for treatment and, in the case of a psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition" (1983 Act s37(2)(a)(i)).
(iv) Question (v) Is the difference in treatment between the claimant and the comparators based on one or more of the grounds proscribed expressly or inferentially in Article 14?
X Conclusion
POSTSCRIPT
Just over a week after I circulated a draft of this judgment for corrections and shortly before I handed down this judgment, I received an unsolicited e-mail from counsel for the claimant, which enclosed a letter from the Chief Executive of the NHS Trust, which manages the hospital in which the claimant is being treated. According to the claimant's counsel, this letter "supports the claimant's position that he is at risk of being subjected to future compulsory treatment and that this claim is not 'academic' for this reason".
The enclosed letter is a response to an earlier letter, which has not been sent to me. Nothing in the enclosed letter gives any indication about the likelihood of the doctors wishing to give any particular treatment to the claimant now or in the future. The letter merely sets out the legal position particularly in the light of the injunction to which I referred in paragraphs 12,13 and 16 above. I am unable to infer from the letter anything, which suggests that the claimant is "at risk of being subjected to future compulsory treatment". Thus my conclusions on the academic nature of this claim remain as set out in the body of this judgment.
LIST OF NECESSARY ASSUMPTIONS PUT FORWARD BY COUNSEL FOR THE CLAIMANT FOR THE PURPOSE OF CONSIDERING THE CLAIMANT'S CASE[1].
(i) taken into consideration the fact that the claimant is competent to refuse the treatment and has declined to consent to it; and
(ii) given such weight to that factor as they consider appropriate (i.e. they have applied the approach stated in R (PS) v. Dr. G and Dr. W) [2003] EWHC 235 (Admin).
(i) the proposed treatment is required as a matter of emergency (i.e. section 62 of the MHA is not relied on); and
(ii) the proposed treatment is necessary to protect other persons from harm or that without such treatment, serious harm is likely to result to the claimant's health[5].
(i) could be sufficient to reach the threshold level of degrading treatment for the purposes of ECHR Article 3; but
(ii) would be regarded as constituting a medical necessity (as explained in Herczegfalvy v. Austria (1992) 15 EHRR 437 and R (N) v. Dr. M [2003] 1 WLR 562) and would not amount to a breach of Article 3, if administered to an incompetent patient. (As the law is currently understood and applied following R (PS) v. Dr. G and Dr. W, nor would it amount to a breach of Article 3 if administered to a competent patient, but whether PS is a correct statement of the law is the issue that falls to be determined in these proceedings).
(i) would amount to a breach of ECHR Article 8(1) that would require justification under Article 8(2);
(ii) would be a proportionate and response (sic) in the interests of the 'protection of health' and therefore justifiable under Article 8(2), if administered to an incompetent patient. (As the law is currently understood and applied following R (PS) v. Dr. G and Dr. W, it would also be justifiable under Article 8(2) if administered to a competent patient, but whether PS is a correct statement of the law is the issue that falls to be determined in these proceedings).
(1) the proposed treatment would amount to a breach of ECHR Article 3 merely because the patient had capacity to consent but did not consent; and/or
(2) the proposed treatment would amount to a breach of ECHR Article 8 merely because the patient had capacity to consent but did not consent; and/or
(3) the present state of law amounts to unlawful discrimination in breach of ECHR Article 14 against a patient with capacity because his refusal can be overridden in circumstances in which the consent of anybody other than a patient cannot be overridden.
Note: Paragraph 7(ii) above identifies the "threshold requirement" identified by the claimant at paragraph 6 of his skeleton argument (and assumes that in the present case its requirements are not met). So far as the Secretary of State understands the claimant's case, it is simply that both in relation to the application of ECHR Article 3 and in relation to ECHR Article 8, if the "threshold requirement" is not satisfied compulsory, non-consensual treatment of a competent patient will be a breach of (i) Article 3 in those cases where the treatment reaches the necessary level to engage Article 3 and (ii) of Article 8 in every case.
Note 1 For the avoidance of doubt, the
Secretary of State stated that this is a list of assumptions necessary to
reach the point raised by the claimant, but no findings were made as to the
actual facts of the claimant’s case, no concessions are made as to any factual
issue. [Back] Note 2 Assumptions 1 and 2 are, in any
event, in accordance with the conclusions reached by the MHRT concerning the
claimant’s position. The Secretary of State accepts, however, that as between
the claimant and the first/second defendants there was an issue of fact as to
whether the claimant did suffer from bi-polar affective
disorder. [Back] Note 3 The Secretary of State would wish to
insert the words “would be lawful having regard to the requirements of section
58(3) (as they are presently understood)”. [Back] Note 4 The Secretary of State wishes to
insert the words “the requirements of section 58(3) have been complied with
(as they are presently understood)”. [Back] Note 5 The Secretary of State would wish to
underline the fact that this is an assumption and not any form of concession
as to the actual position that applies to the claimant: see, for example the
witness statement of Dr. Sarkar at paragraphs 14 – 15 and
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