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Cite as: [2005] EWHC 1936 (Admin)

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Neutral Citation Number: [2005] EWHC 1936 (Admin)
Case No: CO/3695/2005


Royal Courts of Justice
Strand, London, WC2A 2LL
8 September 2005

B e f o r e :






(Transcript of the Handed Down Judgment of
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Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for the Claimant
Owain Thomas (instructed by Capsticks) for the First Defendant
Jeremy Hyam (instructed by the Treasury Solicitor) for the Second Defendant
Ben Hooper (instructed by the Department of Health) for the Third Defendant



Crown Copyright ©

    Charles J :


  1. This case concerns the issue whether the Claimant (Mr B) who is detained under the Mental Health Act 1983 (MHA) may lawfully be given treatment which he refuses to consent to. An issue is whether Mr B has capacity. He maintains that he has. As appears later in this judgment I have concluded that he does not.
  2. The issue of the lawfulness of compulsory treatment generally has come before the Court of Appeal on two recent occasions, R (Wilkinson) v Broadmoor SHA [2002] 1 WLR 419, R (N) v Dr. M [2003] 1 WLR 562, and more recently before the Administrative Court in R (PS) v RMO, Dr. G (1) SOAD, Dr. W (2) [2003] EWHC 2335 (Admin) and in a case involving the Claimant himself, R (B) v Dr. SS (1) Dr. AC (2) Secretary of State for Health [2005] EWHC 86 (Admin). There has also been a very recent decision of Collins J in R (B) v Dr. Haddock [2005] EWHC 921 Admin Thus the issues that underlie this judicial review have been the subject of a body of recent authority. However as the argument before me demonstrated a number of issues remain to be resolved. Naturally in respect of those issues I am bound by the ratio of the decisions in the Court of Appeal. I have also been invited to follow the decision of Silber J in the earlier case involving Mr B and this has limited the grounds for judicial review that require a substantive decision. If this case goes to the Court of Appeal grounds that were not argued before me because of the decision of Silber J may be pursued.
  3. The Grounds

  4. The Claimant challenges the decision of his responsible medical officer (RMO), Dr. S S and the second opinion appointed doctor (SOAD), Dr. G, respectively to seek and to authorise compulsory treatment under section 58(3) MHA, on the grounds set out below with some comments. I was only asked to make a substantive decision on Ground 2.
  5. i) Ground 1: That, for the purposes of Article 3 and/ or 8 and/ or 14 of the Convention, such treatment may only lawfully be given to a competent patient (my emphasis) against his will where it is not only a 'therapeutic necessity' but also that treatment is necessary for the protection of the public or to prevent the patient from suffering serious harm (the 'threshold requirements'). This requires the resolution of an issue of law, namely whether Article 3 and/ or 8 and/ or 14 require section 58 to be read and given effect to in this way; and an issue of fact, namely whether such necessity has been demonstrated by the Defendants. (This issue of law was decided against the Claimant by Silber J in the previous case of R (B) v Dr. SS (1) Dr. AC (2) Secretary of State for Health [2005] EWHC 86 (Admin). Permission to appeal that case was sought (C1/2005/0295) but the appeal was withdrawn, with the Court of Appeal's leave, on the understanding that the issue may more properly be resolved on an appeal from these proceedings. The Claimant accepted that I should follow the judgment of Silber J and asked that the claim on this ground be formally dismissed, either with permission to appeal or leaving the issue of permission to the Court of Appeal. However, the Claimant submitted that I should decide the issue of fact (namely whether the "threshold criteria" asserted by the Claimant are in fact met) so that the issue of law can be resolved, should the matter go further. I return to this but pause to comment that this basis of challenge is dependent on a finding that Mr B has capacity. As appears later, in my judgment he does not.

    ii) Ground 2: Alternatively, that, for the purposes of Article 3 and/ or 8 and/ or 14 of the Convention, such treatment may not lawfully be given unless the responsible authority has demonstrated a convincing medical necessity for it, and that threshold has not been reached, given (i) the Claimant has capacity to refuse medical treatment; (ii) the evidence does not convincingly establish that he is suffering from Bipolar Affective Disorder that is relapsing. (In argument the Claimant did not pursue any argument under Article 14 and I have treated that aspect of this ground of challenge as having been abandoned.)

    iii) Ground 3: The Second Defendant's decision is unlawful in any event in that he did not take account of a relevant consideration, namely Professor H's views set out in a number of reports to the effect that the Claimant is not currently suffering from mental disorder. (In the light of Dr. G's evidence in his witness statement of 5 July 2005 this ground was no longer pursued, but it gave rise to submissions on behalf of Dr G as to the part that a SOAD should play in proceedings of this type.)

    iv) Ground 4: The Claimant also challenges section 58 MHA (and, by implication, section 63, although not in play in his case) in so far as it is incompatible with the Claimant's Convention rights, Articles 3 &/or 8 &/ or 14, in that the provision authorises the compulsory treatment of those, like the Claimant, who have capacity to refuse the treatment and do so refuse without specifying in sufficiently precise terms the circumstances in which a competent refusal to consent may be overridden, namely where (i) such treatment is necessary to protect other persons from serious harm, or (ii) without such treatment, serious harm is likely to result to the patient's health. If, as the Claimant submits, Articles 3 and/ or 8 and/ or 14 only permit the imposition of compulsory treatment in these limited circumstances it is a matter for the Court whether section 58(3)(b) can be read and given effect to so as to 'read in' these limitations using section 3 Human Rights Act 1998 (HRA) (in which case Ground 1 falls to be determined) or whether the only remedy available is a declaration of incompatibility under section 4 HRA. Again, this issue was not contested by the Claimant at first instance before me but was expressly reserved for the purposes of any appeal.

  6. To avoid any doubt, the Claimant made clear that the claim includes a claim under section 7 HRA 1998.
  7. Brief background facts

  8. The earlier claim for judicial review brought by Mr B challenging the decision to compulsorily medicate him was brought in July 2004 and was later withdrawn (as against the first defendant, Dr. SS, and the second defendant, a previous SOAD, Dr. C) after Dr SS withdrew his treatment proposal. A final injunction restraining further treatment was made by Silber J. on 4 October 2004. Dr SS has applied to discharge the injunction. It is accepted that if these fresh proceedings for judicial review should fail then that injunction should be lifted. Thus counsel for Mr B opened the case, and it was treated as a new judicial review.
  9. Mr B is a patient at Broadmoor Hospital, a hospital providing high security psychiatric services within the meaning of section 4 National Health Service Act 1977 and run by the West London Mental Health NHS Trust. He is detained under sections 37 and 41 MHA following his conviction for rape on 13 February 1995.
  10. Mr B is currently detained under the legal classification of "mental illness" in view of the diagnosis of Bipolar Affective Disorder by his responsible medical officer, Dr. SS.
  11. That diagnosis was disputed in the earlier proceedings and before Mental Health Review Tribunals (MHRTs). To my mind this needs to be remembered although this diagnosis is no longer contentious.
  12. In respect of the earlier proceedings Mr B obtained independent psychiatric reports from Dr. A (dated 19.7.04, 14.8.04) and Professor. H (14.9.04). Dr. A's opinion was that Mr B does not suffer from any mental disorder. This view is no longer relied on by those representing Mr B. Professor H has also reported in these proceedings. He agrees with the underlying diagnosis of Dr SS. Naturally I shall return to the medical reports and evidence. I heard oral evidence from Dr SS and Professor H.
  13. However I pause to record that in my view part of the problem is that a person suffering from Bipolar Affective Disorder has periods of time when he is in full remission (i.e. with no symptoms). In part therefore it is a matter of terminology whether during a period of full remission the patient is not currently mentally ill, or that he remains mentally ill but is in remission. There are also issues as to whether a patient is in full or partial remission.
  14. The figures given by Professor H were not disputed and he stated that on average bipolar patients spend 53% of their lives with no symptoms, in remission from illness, 32% of the time depressed, 9% of the time hypomanic or manic and 6% of the time in a mixed state between the other states. He also pointed out, and it was common ground, that this was an average and that the time course of the illness can vary widely. He said and this was not disputed and I accept that:
  15. "It will be appreciated that bipolar disorder is generally an illness which shows periods of normal mood and functioning, interspersed with periods of illness, characteristically periods of elevated, expansive or irritable mood, with or without features of psychosis, called hypomania or mania respectively, and periods of depression"
  16. From that description there are obvious difficulties in diagnosis and assessment not least because on that description the periods of illness may be with or without hypomania and mania, and some of the characteristics have overlaps with some personality disorders. In my view, the nature of bipolar illness and these difficulties need to be remembered when considering the history and the ultimate divide between Dr SS and Professor H.
  17. Other doctors

  18. Further reports and opinions have been put before me, namely:
  19. i) Dr. HB, who was the medical member of an MHRT, who at a preliminary hearing of that Tribunal on 18 January 2005 stated that – contrary to the views of the psychiatrists who had examined Mr B to date (Dr. SS, Dr. A and Professor. H) – in her opinion he suffered from schizophrenia.

    ii) In view of this development the parties (including the Secretary of State for the Home Department, who was represented in those proceedings) agreed that it was necessary to adjourn the application for further reports to address the question of whether, in fact, Mr B suffers from schizophrenia and the Home Office instructed Dr. Parrott, a consultant forensic psychiatrist, who in a report dated 28 February 2005, concluded that Mr B suffers from schizo-affective disorder but that, in her view, the differential diagnosis between that disorder and Bipolar Affective Disorder mattered little: in either case, it was necessary to impose anti-psychotic medication, if necessary by force.

    iii) Dr. SS sought a second opinion from Professor Fahy, Professor of Forensic Mental Health at the Institute of Psychiatry. In his report prepared in 20 January 2005, Professor Fahy agreed with Dr. SS's diagnosis of Bipolar Affective Disorder and was of the view that "the case for prophylactic medication is … overwhelming". His report did not support the view, however, that Mr B's condition was deteriorating: he wrote "Mr. B received effective treatment for his prolonged severe hypomanic episode and now has, at most, sub-clinical symptoms of mood disturbance although he is on no medical treatment for this". Professor Fahy has since confirmed, in a telephone conversation on 7 June 2005 with the Claimant's solicitor, that in his view Mr B's condition had not (at least at that time) deteriorated, and that his presentation was more to do with his "larger than life personality".

  20. The SOAD, Dr G is fully supportive of the treatment plan proposed by Dr SS. He did not simply rubber stamp the proposal of the RMO. He is independent. His certificate indicates that he considers Mr B to suffer from a schizo-affective disorder leading to symptoms of fluctuating mood, suspiciousness, paranoia, pressured speech and episodes of thought disorder with poor impulse control, overactivity, intrusiveness, overfamiliarity, demandingness, variable sleep and appetite, physical aggression and assault, and damage to the patient's social relationships. He also considers that he has a lack of insight. He considers that Mr B does have capacity to consent to the proposed medication (in contrast to Dr SS and Dr Parrott) but that the medication is required to treat his condition effectively even though this may be resisted by Mr B because the clinical situation warrants it.
  21. Since signing his certificate he has altered his view but only in that he considers bipolar affective disorder is the best working diagnosis for Mr B's condition but in his view this change is not material in terms of the treatment plan. His certificate and report are plainly in accordance with the statutory procedure and he concludes that medication as certified by him is required to treat Mr B's condition effectively, is in his best interests and is necessary to alleviate and prevent a significant deterioration in his illness. He has specifically considered the potential need for compulsory treatment over a resistant patient and has concluded that the treatment should nevertheless be given. His views therefore are in general accordance with those of Dr SS.
  22. Both Dr SS and Professor H have commented in writing and orally on these various views. As I have said there is now common ground between them, and the parties through their legal representatives, that Mr B suffers from Bipolar Affective Disorder. It was also not disputed, and the case proceeded before me on the basis, that the differential diagnosis was schizo-affective disorder but that the differences between these differential diagnoses mattered little and made no difference to the proposed treatment plan.
  23. Legal framework

  24. I had the benefit of detailed written and oral submissions on the law to be applied.
  25. As will appear later I find against Mr B on the tests and approach he puts forward. Further I suspect that it may often be the case that if the court is satisfied that the degree of severity of the proposed compulsory treatment is such that Article 3 is (or is likely to be) engaged unless it can be "convincingly shown that the treatment is a therapeutic or medical necessity" that the legality of what is proposed for the purposes of Articles 3 and 8 and the MHA will be determined by that test (the Herczegfalvy test).
  26. I am thus aware that much of what I say under this main heading is obiter and by dealing with the arguments I am adding to a considerable amount of obiter in this area which may be revisited by the Court of Appeal in this case or others.
  27. However having heard helpful and detailed argument and in the hope that it might be of assistance to others who have to deal with cases such as this I set out my views and conclusions on points raised under this main heading.
  28. At the end of this judgment, under the heading "miscellaneous" I will deal with procedural points raised as to the role of the SOAD and cross examination of medical witnesses in proceedings such as these.
  29. Detained mental patients: compulsory treatment under Part IV MHA

  30. The MHA empowers compulsory treatment of both capable and incapable detained patients under Part IV of the Act (sections 56-64).
  31. Section 63 provides:
  32. "63. 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. "
  33. Section 57 requires the patient's consent and a second opinion before specified treatment can be carried out, including surgical operations for destroying brain tissue. In relation to treatment falling within section 58 (namely Electro-Convulsive Therapy and medication beyond an initial 3 month "trial" period), an additional safeguard is created, namely the requirement for consent by an independent doctor appointed by the Mental Health Act Commission (the SOAD).
  34. Section 58 provides:
  35. "58.—(1) This section applies to the following forms of medical treatment for mental disorder— (a) … ; (b) the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section 57 above) at any time during a period for which he is liable to be detained as a patient to whom this Part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.
    (2) … .
    (3) Subject to section 62 below, 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."
    (my emphasis)
  36. Section 62, authorises "emergency" treatment to which sections 57 and 58 do not apply. It provides:
  37. "62. - (1)   Sections 57 and 58 above shall not apply to any treatment— (a) which is immediately necessary to save the patient's life; or (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or (c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or (d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.
    (2)   Sections 60 and 61(3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 57 or 58 above if the responsible medical officer considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.
    (3)   For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard."

  38. Here I am concerned with treatment of the mental disorder that has led to Mr B being detained. Counsel for the Secretary of State pointed out and I accept that the "mental disorder" referred to in s. 58 may not be so confined and in this context referred me to the recent decision of the House of Lords in R v Ashworth Hospital Authority ex parte B [2005] UKHL 20. The section is however confined to treatment for defined forms of mental disorder.
  39. By section 58(3)(b) the SOAD must differentiate between an incapable patient (who cannot give a real or effective consent to the proposed treatment) and a competent and non-consenting patient (who could give a real and effective consent thereto), but the section does not then differentiate as to the approach the SOAD must then take in deciding whether to authorise compulsory treatment. In both cases he must simply "have regard to the likelihood of [the proposed treatment] alleviating or preventing a deterioration of [the patient's] condition".
  40. The Mental Health Act Code of Practice provides that the presence or absence of capacity is relevant to the decision-making process (Code of Practice, paragraphs 15.25, and 16.38), and this was common ground before me although the importance of the existence of capacity was in dispute.
  41. It was also common ground before me that a patient detained under the MHA who has capacity can nevertheless have his refusal to consent overridden either by the RMO under section 63, or by the RMO and SOAD in treatment falling within section 58.
  42. This is in marked contrast to the common law.
  43. When a person has capacity the common law precludes such treatment in all circumstances except where necessary for the protection of other persons.
  44. Part IV MHA 1983 therefore authorises compulsory treatment of detained patients regardless of whether they have capacity. In my view it is important to remember this, and to remember that the section sets a statutory test for a particular and defined situation.
  45. Common law: competent patients' right to refuse treatment

  46. Understandably and in my view correctly counsel for Mr B emphasised and drew my attention to the nature and importance of this right of autonomy at common law.
  47. He submitted, in my view correctly, and it was not disputed, that:
  48. i) The right to integrity of the person and the right to self-determination are fundamental human rights (Airedale NHS Trust v Bland [1993] A.C. 1, per Lord Goff at 864). Medical treatment is always an interference with the first of these rights, the right to integrity of the person, and constitutes an unlawful assault and battery in the absence of some lawful justification for it (Re F [1990] 2 AC 1, 73-74).

    ii) At common law consent provides lawful justification for medical treatment, provided the patient has capacity to consent. The right to give consent to, or to dissent from, such treatment is, for our purposes, termed the "right of autonomy".

    iii) At common law a capable person's consent to treatment renders that treatment lawful. By the same token, a capable person's refusal to consent must be respected, however drastic the consequences for the individual concerned: see Robb v Home Secretary [1995] Fam. 127, at in particular 130C-D where Thorpe J said:

    "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."

    iv) Treatment of a competent patient against his or her will is not lawful even where the consequences of non-treatment are the death of the patient's unborn child: St. George's Healthcare NHS Trust v. S [1999] Fam 26, per Butler-Sloss LJ at page 46F / 48B:

    "--------- If human life is sacred, why is a mother entitled to refuse to undergo treatment if this would preserve the life of the foetus without damaging her own? In the United States where such treatment has on occasions been forced on an unwilling mother this question has been described as "the unborn child's right to live" and "the state's compelling interest in preserving the life of the foetus" (Jefferson v. Griffin Spalding County Hospital Authority (1981) 274 S.E.2d 457) or "the potentiality of human life" (In re Madyun (1986) 573 A.2d 1259). In Winnipeg Child and Family Services (Northwest Area) v. G. [1997] 3 B.H.R.C. 611, a decision which will need further examination, in his dissenting judgment Major J. commented, "where the harm is so great and the temporary remedy so slight, the law is compelled to act . . . Someone must speak for those who cannot speak for themselves." 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 many would appear commendable: hence the importance of remembering Lord Reid's warning against making "even minor concessions." If it has not already done so medical science will no doubt one day advance to the stage when a very minor procedure undergone by an adult would save the life of his or her child, or perhaps the life of a child of a complete stranger. The refusal would rightly be described as unreasonable, the benefit to another human life would be beyond value, and the motives of the doctors admirable. If, however, the adult were compelled to agree, or rendered helpless to resist, the principle of autonomy would be extinguished."

    (my emphasis).

  49. Thus, at common law the preservation of the unborn child is not considered sufficiently important to outweigh the principle of autonomy.
  50. Capacity is the key at common law to the existence of the right of autonomy or self-determination, and to the exercise of the right of inviolability of the person. It is thus also the key to the lawfulness of treatment in the best interests of a patient that is imposed against the objections of that patient.
  51. Capacity

  52. Re MB [1997] 2 FCR 541, [1997] 2 FLR 426 549D-E is a leading authority on the approach to determining whether a person has capacity. It is often considered on this issue with Re C (adult: refusal of treatment) [1994] 1 FLR 31, [1994] 2 FCR 151 (which is referred to in Re MB). Indeed I did this in NHS Trust v T [2004] 3 FCR 297 at paragraph 53 where I set out the guidance in Re MB. That guidance or test is also referred to by Collins J in Re B at paragraph 17. In my view the guidance in Re MB should be considered in its entirety but as appears from paragraphs (1) and (4) thereof, and as the parties highlighted before me:
  53. i) Every person is presumed to have capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted, and

    ii) a person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent or to refuse treatment. That inability occurs 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 (above), 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 at 569: " ---- one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration."

  54. At paragraph 53 (pages 316b to 317b) in NHS Trust v T I cite a passage at page 433 of [1997] 2 FLR in Re MB (which in turn cites passages from Re T [1992] 2 FLR 458, [1992] 2 FCR 861, and Re C). The former shows that it is necessary to concentrate on the patient's capacity when the relevant decision is made and that what matters is whether at that time the patient had capacity which was commensurate with the gravity of the decision which he purported to make. In Re C Thorpe J divided the decision making process into three stages by adding as a second stage, namely whether the person believed the treatment information.
  55. Thus the question of whether a patient lacks capacity is not a simple one.
  56. It is plain, and common ground, that a person suffering from mental disorder may still have capacity to consent to, and to refuse, treatment (see for example Mental Health Act Code of Practice, paragraph 15.12). Further, a detained patient is not necessarily incapable of giving consent (see, ibid, paragraph 16.4, and Re C in which it was found that a patient detained in Broadmoor had capacity to refuse to allow his gangrenous leg to be amputated).
  57. The conclusion of Silber J

  58. At paragraph 189 of his judgment in R (B) v Dr. SS (1) Dr. AC (2) Secretary of State for Health [2005] EWHC 86 (Admin), per Silber J said:
  59. "At the end of the day, I am not persuaded by the submission of Mr. Bowen that the right of autonomy has become such a fundamental right that legislation cannot lawfully override it, other than in those exceptional circumstances in which the countervailing state interests of protecting the public and the patient from serious harm justify it. In my view, the refusal of a patient with capacity to consent to treatment does not automatically and inevitably override the views of the doctors, except where it is necessary for the protection of others or of the patient. In my view, the refusal of a capable patient is a very important consideration which can in appropriate circumstances be overridden, particularly bearing in mind the circumstances in which the patient came to be detained and the benefits that could accrue from the treatment, especially where it may not have any adverse consequences for the patient and when it may enable the patient to be released from detention."

    (emphasis added by the Claimant).

  60. As I have mentioned although the Claimant does not accept that Silber J was right so to conclude, he accepts that I should follow this decision and that it is determinative of his claims under Grounds 1 and 4, subject to any appeal.
  61. Articles 3 and 8

  62. It was common ground that the imposition of compulsory treatment under s. 58 MHA (whether on a competent or an incompetent patient) is capable (a) of reaching the threshold of severity required to engage Article 3, and (b) of engaging the threshold of Article 8.
  63. It was disputed whether the threshold of severity was met in this case for the purposes of Article 3, but common ground that if it was then there would be a breach of Article 3 unless it could be "convincingly shown"' that the proposed treatment is a "therapeutic or medical necessity".
  64. It was accepted that the proposed treatment engaged Article 8(1), but there was a dispute as to the approach to the application of Article 8(2).
  65. I agree and record that Storck v Germany (application number 61603/00 - Judgment 16 June 2005) at paragraphs 142 to 144, and 151 to 152 shows that:
  66. i) even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual's will,

    ii) Article 8 is therefore engaged in this case,

    iii) the severity of treatment that engages Article 8 is different to, and lower than, that which engages Article 3, and

    iv) when Article 8 is engaged it is necessary to consider whether what is proposed is justified by applying Article 8(2).

  67. I also accept that Société Colas Est v France (2004) 39 EHRR 17 (at paragraph 47) establishes that the exceptions in article 8(2) are to be interpreted narrowly and the need for them in a given case must be "convincingly" shown (see also, as cited therein, Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, p. 21, paragraph 42 and Funke, Crémieux and Miailhe (no. 1) page 24, paragraph 56, page 62, paragraph 38, and page 89, paragraph 36).
  68. However I do not agree with the approach and argument of the Claimant that:
  69. i) it is now conclusively established that the imposition of compulsory treatment under s. 58 (whether on a competent or incompetent patient) is capable of reaching the threshold provided of severity for Article 3 and 8 purposes and will, in those circumstances, only be justified (my emphasis) where the doctors can "convincingly show" that treatment is a "therapeutic necessity" (as to which the Claimant relied in particular on R (Wilkinson) v Broadmoor SHA [2002] 1 WLR 419 and R(N) v M & Others [2003] 1 WLR 562, paragraphs 16-18), and

    ii) even if the treatment does not reach the level of severity required for an Article 3 violation but does reach the threshold for an Article 8 violation, a "therapeutic necessity" will still have to be (my emphasis) "convincingly shown" (as to which the Claimant relied in particular on Wilkinson, per H LJ at paragraph 83, and Société Colas Est v France (2004) 39 EHRR 17 at paragraph 47).

  70. I return to this when dealing with Articles 3 and 8. In my judgment they should be considered separately.
  71. Article 3

  72. Article 3 provides:
  73. "Prohibition on torture
    No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

  74. In order for Article 3 to be engaged the treatment must attain a "minimum level of severity". Relevant factors as to this are the nature and context of the treatment, the manner of its execution, its duration, its physical/mental effects including where relevant its impact on the health of the person involved (both positive and negative) (see T and V –v- UK (1999) BHRC 659). It is also relevant to consider whether the object of the treatment is to humiliate or debase the person and whether the consequences would adversely affect him in a manner incompatible with Article 3 (see Keenan- v- UK (2001) 30 EHRR 38 at paragraph 109). The level of severity is such as to require actual bodily injury or intense physical or mental suffering (see Pretty v UK (2002) 35 EHRR 1 at paragraph 52).
  75. I agree, and it was accepted, that whether Mr B has capacity is also a relevant factor.
  76. This approach was applied in PS by Silber J (see paragraphs 96 to 107 for his treatment of these authorities).
  77. In Herczegfalvy v. Austria (1993) 15 EHRR 432, it was explained that as a general rule treatment administered to a detained patient will not amount to a violation Article 3 of the ECHR if the therapeutic or medical necessity for it has been convincingly shown to exist. Mr Herczegfalvy complained to the European Court of Human Rights (the ECtHR) that, whilst detained in a psychiatric hospital, he had suffered treatment contrary to Article 3 by being forcibly administered food and neuroleptics, isolated and attached with handcuffs to a security bed for a number of weeks. Before rejecting that complaint on the facts, the ECtHR set out the relevant legal principles at paragraph 82 of its judgment:
  78. " 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 recognised 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 therefore responsible, such patients nevertheless remain under the protection of article 3, whose requirements permit of no derogation.
    The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure 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." (my emphasis).

  79. The Herczegfalvy approach to allegations of Article 3 breaches has been adopted as authoritative by the domestic courts (see, for instance, N at para. 16).
  80. As Silber J pointed out in Re B (paragraph 109) both Herczegfalvy and N were cases where the relevant patient did not have capacity but he goes on to hold (and as invited I treat this as correct – and I add agree) that proposed compulsory treatment would not amount to a breach of Article 3 merely because a patient had capacity (see paragraphs 109 to 112).
  81. Accordingly, as invited I proceed in the basis that if Article 3 is engaged treatment which is a therapeutic or medical necessity will not as a general rule amount to a breach of Article 3 and this holds good even where the patient has capacity.
  82. Thus, strictly it is only when what is proposed reaches the appropriate degree of severity to engage Article 3 that the question of therapeutic or medical necessity arises and to my mind it is wrong to assert (as the Claimant did) that the fact, or assertion, that compulsory treatment is capable of reaching, or can satisfy, the Article 3 threshold means that compulsory treatment can only be justified for Article 3 purposes if it is convincingly established that it is a therapeutic or medical necessity. Rather to my mind the correct position is that compulsory treatment that reaches the appropriate level of severity can only be justified for Article 3 purposes on that basis.
  83. Naturally this does not mean that the therapeutic or medical necessity test cannot be applied on an assumption that the degree of severity engages Article 3, but it seems to me that it is wrong to approach Article 3 by only, or simply, asking whether a therapeutic or medical necessity for compulsory treatment has been convincingly shown.
  84. I pause to record however that it seems to me that there are difficulties in assessing whether the degree of severity will be established if certain treatment is given compulsorily as opposed to considering whether it has been established in the light of all the circumstances in which the treatment was so given and the reactions of the patient. This is because the first exercise has to be based on predictions whereas the second does not. It seems to me that these difficulties make it attractive to apply the therapeutic necessity test on an assumption that if the treatment is administered compulsorily all the circumstances of the case will (or will be likely to) satisfy the degree of severity required to engage Article 3.
  85. However the therapeutic necessity test contains words of degree or chameleon words which take meaning from the relevant surrounding circumstances and context, part of which it seems to me would be the severity of what is proposed, the ease by which it passes, or might pass, the Article 3 threshold of severity and alternative treatments or approaches. There is thus an overlap between the factors to be taken into account at the two stages.
  86. In my view when determining whether a therapeutic or medical necessity has been shown convincingly to exist there is much to be said for the approach of Dyson LJ in N at paragraphs 19-20 and thus the view that the Court should guard against a compartmentalised approach to what is essentially a single question. The court will naturally want to look at a number of factors in answering that question e.g. those set out at paragraph 19 in N and I agree, and it was accepted, that capacity is a relevant factor. In looking at those factors in the reasoning process it may be necessary or appropriate for them to be considered by the court in compartments or separately. But it seems to me that the court should carry out an overview and balancing exercise by reference to the test.
  87. In my view, just as the domestic statutory provisions in the MHA do not confine the RMO to medical crisis intervention, neither does the jurisprudence under Article 3. Further the ECtHR does not confine the type of intervention which can be justified to those which are indispensable but rather to those which according to the medical evidence are convincingly established to be therapeutically or medically necessary. Further as appears from the citation in paragraph 55 above the medical necessity can relate to the mental and to the physical health of the patient.
  88. I accept the submissions of the Defendants that in this context "necessary" means no more than "needed" in response to the Claimant's condition and symptoms. However "needed" is also a word which has a range of meaning dependent on the circumstances.
  89. It was common ground, and I agree, that it is for the court to determine whether there is a breach of Article 3. This applies to an assessment of the severity of what is proposed and to the Herczegfalvy test.
  90. It follows that where it is claimed in a judicial review that a particular medical treatment will violate Article 3 unless, under the Herczegfalvy test, it can be convincingly shown that it is a therapeutic or medical necessity, the court must itself determine whether such necessity has been shown to the appropriate standard (see, for example, Wilkinson, per Simon Brown LJ at pararaphs 26 and 30 and per Hale LJ at paragraph 83, and I note that this aspect of Wilkinson was recognised to be binding by Collins J in R (B) v. Dr Haddock [2005] EWHC 921 (Admin), at para. 15).
  91. However it was submitted on behalf of the Defendants that although the court must decide for itself whether the Herczegfalvy test is satisfied in any particular case, the court has no particular medical expertise and it is quite proper for the court to place particular weight on the evidence of the RMO and SOAD as they are the doctors who are "charged with the patient's care and well-being" (see, for example, Wilkinson per Simon Brown LJ at paragraph 31).
  92. I accept the general force of that submission and that it introduces an approach that is akin to, or has overlaps with, a review of the Defendants' medical case.
  93. But it seems to me that the force of the submission flows from the reason for that assertion namely that the RMO in particular is charged with the care of the patient and has day to day personal experience of his condition and care, and it is that reason, rather than the role of the court, that will often lead to the court placing particular weight on the decision and reasoning of the RMO and the SOAD. It follows in my view that the relevance of that day to day experience to the nature and extent of the relevant medical dispute is an important consideration in deciding between competing medical arguments.
  94. Further (and notwithstanding the possible indications to the contrary in R (H) v. Secretary of State for Health [2005] 1 WLR 1209, per Buxton LJ at paragraph 23, which was drawn to my attention by counsel for the Secretary of State in which Article 3 was not at issue whereas it was in Wilkinson) I agree with the stance of the parties that when Article 3 is in issue the decision rests with the court as a matter of principle. Thus, I agree with the submission made on behalf of the Secretary of State that if the court takes the view on the evidence that Article 3 has been or would be breached, there is no scope, given the absolute nature of Article 3, for deferring to any contrary view as expressed by an RMO or SOAD.
  95. Article 8

  96. Article 8 provides:
  97. "Right to respect for private and family life

    1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of his right except such as in accordance with the law and is necessary in a democratic society in the interests 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."

  98. There is therefore a two stage approach under Article 8. It is also clear that as a matter of language when Articles 3 and 8 are read alone, and in the context of the Convention, that the thresholds to engage the two articles are different. Also of course Article 3 is in absolute terms whereas Article 8(1) is a qualified right.
  99. In my view, having regard to those points it would be surprising if there was a complete overlap in respect of the approach to be taken in respect of compulsory medical treatment between:
  100. i) the second stage in the consideration of whether Article 3 is engaged, and

    ii) the application of Article 8(2),

    with the consequence that as the Claimant asserts in the case of compulsory treatment Article 8(2) would only apply if a therapeutic or medical necessity is convincingly shown for such treatment.

  101. It was in my view correctly accepted that Article 8 was engaged in the circumstances of this case whether or not I found that Mr B had capacity. Thus I agree with the submissions made on behalf of the RMO that:
  102. i) it should not be thought that the only circumstances in which Article 8 can be engaged is where the patient has made a capacitated refusal,

    ii) Article 8 does not only protect the right to autonomy but also the right to respect for private life and it is a much broader provision (than Article 3),

    iii) this helps to explain why the fact that the treatment is to be given over a capacitated refusal does not make the difference as to whether Article 8 is engaged albeit that it could be argued that the degree of interference in someone's Article 8 rights is greater where there is a capacitated refusal because not only is their privacy being invaded but also their ability to make decisions is not impaired from the standpoint of the legal test at common law and by reference to fundamental human rights but it is nevertheless being overridden,

    iv) any compulsory treatment can in principle be enough to engage Article 8 because there is a potential invasion of privacy, bodily integrity and where the patient has capacity, an interference with autonomy,

    v) however, Article 8 permits such interference where the requirements of Article 8(2) are met, and

    vi) capacity is one factor which has to be addressed but it is not a determining or decisive factor in all cases.

    Application of Article 8(2)

  103. The Claimant suggests, or effectively suggests, that the Herczegfalvy test under which the "therapeutic or medical necessity" for a measure must be "convincingly shown" applies equally to interferences with Article 8(1) rights and thus in the circumstances of compulsory treatment governs the application of Article 8(2).
  104. I accept the arguments of the RMO and the Secretary of State against this point and do not agree with it.
  105. The starting point is that the ECtHR did not state that this was the case in Herczegfalvy itself. Paragraph 86 of the judgment has to be read with paragraph 83 and when this is done in my view it is clear that the ECtHR (a) is saying that as in the circumstances of that case the first two complaints did not satisfy Article 3 for the reasons given in paragraph 83 they also did not satisfy Article 8, and (b) is not saying or implying that in cases of compulsory treatment the test to be applied under Article 8(2) is whether a therapeutic necessity for it has been convincingly shown.
  106. Further, the Claimant did not point to any other Strasbourg authority in support of his suggestion that the Herczegfalvy test applies equally to Article 8. As I have sought to explain, in my view this is not surprising. I agree with the submission of the Secretary of State that, as a matter of principle, there is no reason to expect that the test for determining whether treatment may breach Article 3 should be the same as the test for determining whether any interferences with Article 8(1) rights that are consequent upon such treatment are justified under Article 8(2). The prohibition on inhuman and degrading treatment in Article 3 is absolute, while, under the structure inherent in the Convention, the rights in Article 8(1) may lawfully be interfered with in appropriate circumstances.
  107. Similarly, the Claimant did not identify any domestic authority in which the Herczegfalvy test was applied to Article 8 rights. Indeed, in cases such as R (PS) v. Dr G [2003] EWHC 2335 (Admin) and R (B) v. Dr SS [2005] EWHC 86 (Admin), where Article 8 challenges were mounted to compulsory treatment under s. 58 of the MHA, the court's analysis of the Article 8(2) shows that the Herczegfalvy test was not taken to be the appropriate test. Rather the constituent parts of Article 8(2) were applied (see paragraph 135 et seq of PS and paragraph 118 et seq of B, per Silber J, and when considering whether what as proposed was "in accordance with the law" the judge did not apply the Herczegfalvy test).
  108. In my view the Claimant seeks to read too much into the obiter comment of Hale LJ, as she then was, at paragraph 78 of Wilkinson. Even if it is read alone it throws one back to paragraphs 83 and 86 of Herczegfalvy and in my view it does not suggest that therapeutic or medical necessity must be established in order to justify an interference with Article 8(1) rights. Further when it is read in context (and in particular with paragraphs 71 to 77 and 82 and 83) it is confirmed that Hale LJ (as she then was) was not asserting that medical or therapeutic necessity must be established to justify an interference with Article 8(1) rights, and that she was not addressing that question or what has to be established in a given case under Article 8(2) to justify an interference with Article 8(1) rights by compulsory treatment.
  109. In my judgment, as submitted on behalf of the Secretary of State, whether an interference with Article 8(1) rights that is consequent upon a particular form of medical treatment may be justified turns on the orthodox three-fold test under Article 8(2), namely: was the interference (i) "in accordance with the law", (ii) for a legitimate aim and (iii) "necessary in a democratic society"? (see, for instance, the approach of the ECtHR at paras. 43 to 50 of Société Colas Est v. France (2004) 39 EHRR 17.)
  110. The statutory test, Article 8(2) "in accordance with the law", "best interests"

  111. Further I agree with the submission made on behalf of the Secretary of State that in the case of a detained patient such as Mr B "in accordance with the law", requires a consideration of Part IV MHA and not an application of the common law.
  112. It follows that I agree with the submission of the Secretary of State that Silber J (at paragraph 133 et seq of B, and paragraph 135 et seq of PS) should not have applied the common law as a separate and distinct consideration in determining whether what was proposed was "in accordance with the law".
  113. This view accords with, and is supported by, the approach taken by Hale LJ at paragraph 83 of Wilkinson, where she said:
  114. "We do not need to rewrite the Mental Health Act 1983 for the purpose of deciding this case. Whatever the position before the Human Rights Act 1998, the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under article 3 or article 8. Super-Wednesbury is not enough. The claimant is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: ie whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent 'having regard to the likelihood of its alleviating or preventing a deterioration of his condition'. If they are…then I would hold that this treatment could be given to him."

  115. Naturally I accept that in Wilkinson and N there are passages that can be said to support the conclusion that the court should apply the "best interests" test in cases such as this one and thus that the statutory test should be interpreted and applied as if it was, or provided for, a best interests test, see for example:
  116. i) the statement by Simon Brown LJ, at paragraph 22 of Wilkinson, that it was common ground that the test posed by s. 58(3)(b) essentially mirrors the best interests test, and

    ii) in N (at paragraph 16) the Court of Appeal said (obiter because the question whether the best interests test was appropriate in the circumstances was not at issue on the appeal) that the first instance judge in that case (Silber J) was right to say that the treatment proposed under s. 58 had to be both in the claimant's best interests and medically necessary.

  117. But in my judgment such passages do not found this conclusion which runs counter to the application of the principle that when Parliament has chosen a statutory test for a particular purpose that when that statutory test applies it supplants or suspends the common law (and the inherent jurisdiction) and is the test to be applied.
  118. Having said that I of course accept that the approach and guidance given by the common law and the existence of relevant fundamental human rights will be matters the court will have regard to in applying the statutory test. It seems to me that this is reflected in and explains the common ground as described in Wilkinson (i.e. "essentially mirrors").
  119. Further I accept that in some cases the courts have decided that when it applies a statutory test should be interpreted and applied in the same way as the approach taken at common law (see for example s. 5(6) DMPA 1973, de Dampierre v de Dampierre [1987] 2 FLR 300, a decision of the House of Lords, and S v S (Divorce: Staying Proceedings) [1997] 2 FLR 100 at 110/111 where Wilson J points out that in de Dampierre the House of Lords decided that the inquiry into the balance of fairness required by the statutory test should be conducted by reference to the principles and approach now deployed in the exercise of the inherent jurisdiction to stay non-matrimonial proceedings where the English forum is non conveniens (see for example, the speech of Lord Goff in de Dampierre at [1987] 2 FLR 311 to 312)).
  120. To my mind this approach to the statutory test on stay in matrimonial proceedings is an example of a process by which the courts in exercising a discretion (conferred by statute or the common law to achieve the same or similar purposes) seek consistency of approach, and assistance, by applying the approach developed in one area to the other.
  121. Here the statutory test (a) is directed to a specific situation, (b) does not refer to "best interests" or welfare, and (c) expressly applies to persons who have, and do not have capacity. Thus Parliament did not adopt common law language and covered a situation not covered by the common law (i.e. compulsory treatment of a patient with capacity). To my mind it follows that the s. 58 MHA test is a distinct test set by Parliament for a particular situation and purpose and when it applies it surplants or suspends the common law. In my view when applying the statutory test the courts should remember this, whilst at the same time taking appropriate guidance from the approach at common law in applying the "best interests" test and, I add, to the right of autonomy at common law.
  122. I suspect that in many cases, and perhaps particularly when the patient does not have capacity, there will be no effective difference between an application of the statutory test and the best interests test at common law and they will give the same result. It seems to me that this pragmatic point best explains the common ground accepted in Wilkinson and the points made in N which (in my view wrongly) can be said to point to the conclusion that the court has to be satisfied that what is proposed is in the patient's best interests.
  123. However I accept the submission made on behalf of the Secretary of State that there could be cases in which the application of the best interests test and of the statutory test would result in different answers. All cases are fact sensitive but this might, for example, occur when the needs and safety of others carry particular weight.
  124. The relevance and effect of the capacity of patients who do not consent to treatment

  125. It was argued on behalf of Mr B that where a patient who has capacity does not consent to treatment, an even stronger "therapeutic necessity" will need to be demonstrated than in the case of an incompetent patient. In this context reliance was placed on the view of Silber J that although a refusal of the proposed treatment by a patient with capacity was not determinative, capacity (and thus a capacitated refusal) was a very important consideration.
  126. It was accepted by all the Defendants that a capacitated and an incapacitated refusal was relevant. I agree, and in my view an analogy can be drawn to the approach taken at common law to a Gillick competent child.
  127. To identify other considerations which should be categorised as very important and to say whether they would be more or less important than a capacitated refusal would be an extremely difficult if not an impossible and inappropriate task in the abstract. Cases are fact sensitive.
  128. To my mind in cases of this kind there will be a number of considerations or factors that can properly be categorised as very important either singly or taken together. Some will point to one conclusion and some to another. I would not dispute that capacity and thus a capacitated refusal are amongst them. However in my judgment once it is decided and accepted that capacity and thus a capacitated refusal are not determinative those considerations should be categorised as two of a number of factors (which can be included with others in the category of important factors) to be taken into account in the judgmental or balancing exercise to be carried out in each case, and the weight or importance to be given to them will depend on the facts and circumstances of, and thus all the relevant factors to be taken into account in, that case.
  129. I note that in the passage cited from Herczegfalvy in paragraph 55 hereof covers treatment for both mental and physical illness and refers to a patient who is "entirely incapable" of deciding for himself. On the basis that a capacitated refusal is not determinative there is therefore a difference between Article 3 and English law (both the common law and the MHA) in the context of treatment for a physical illness. The reference to the patient being "entirely incapable" also indicates that the ECtHR may have had in mind a higher test than the English test for capacity and thus that degrees of understanding and reaction would be relevant.
  130. In this context I am mindful of, and respectfully agree with, the comments of Hale L.J. in Wilkinson at paragraph 79 concerning the difficulties in assessing whether forcible measures inflicted on a capacitated or incapacitated person are likely to be more degrading and the point that most people are able to appreciate that they are being forced to do something against their will.
  131. It seems to me that those comments apply to an assessment under Article 3 of therapeutic or medical necessity, to assessments under s. 58 MHA and thus to whether what is proposed is in accordance with the law for the purposes of Article 8(2) and indeed to an assessment of best interests.
  132. In my view once a capacitated refusal of proposed treatment is not determinative (which before me it was accepted is the case under s.58 MHA) these comments of Hale L.J. show that the reactions, or likely reactions, of the patient are relevant, whether or not it is found that he has capacity, (and one of the very important considerations) and can lead to the conclusions that on the facts of a case:
  133. i) the answer to the question whether the patient has capacity (whatever test is used for determining that issue) does not carry significant weight because that difficult question is not the trigger or gateway to the decision making process,

    ii) the correct approach is to respect and take into account the wishes of the patient against the background of his understanding of and approach to the issues relating to the relevant treatment, and thus to, for example, his appreciation that he is being forced to have treatment and the effects this could have, and

    iii) a decision as to which side of the line of the relevant test for capacity a patient falls may not have to be made even though it would affect the nature of the interference with his human rights.

  134. As appears later I have concluded that Mr B's refusal of the proposed treatment is not a capacitated refusal but in line with this reasoning I have concluded that this does not have a significant impact on this case (see below under the heading Article 3) and that the issue that he appreciates that he would be being compelled to have part of the proposed treatment, and the effects of this compulsion, are more significant. This approach takes account of and respects his views and understanding of the situation (and would do so if I had decided that he had capacity) without treating the issue of capacity as a determinative or nearly determinative and thus as a super-relevant factor.
  135. Convincingly shown

  136. It was in my view correctly common ground before me that in N the Court of Appeal treated this as the formulation of a standard of proof (see for example paragraphs 17 and 18). The court rejected the submission that the test was effectively the same as the criminal standard of proof and said that the phrase "convincingly shown" is easily understood. I respectfully agree that as a matter of language that is so. It also said the standard is a high one that does not need elaboration or further explanation. As to that I would respectfully suggest that judges at first instance charged with the "convincingly shown" test under Article 3 or 8 would gain assistance from some help as to its application.
  137. For example, paragraph 20 of the judgment in N shows that the answer to the test is reached by a process of reasoning based on evidence and facts found having regard to that evidence and that a factor in that reasoning could be a conclusion that there is a real possibility (but only that) that the patient is suffering from a treatable mental illness. (I pause to add that for s. 58 MHA to apply it seems to me that it must be established that the patient is suffering from a mental illness that warrants his detention, and this remark applies to the treatability of that illness or the treatability of some other mental illness covered by s. 58).
  138. The expression "convincingly shown" in the context of Article 3 and 8 has a European base and to the eyes of some English lawyers (and perhaps in particular those who specialise in Family law) it raises problems. Recently the Court of Appeal has laid to rest the question whether there is an elevated civil standard of proof for the purposes of s. 31 Children Act 1986 and has decided that the standard is the civil standard which is to be applied in accordance with the principles explained in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 (see A Local Authority v K, D & L [2005] 1 FLR 851, the cases referred to therein and naturally in particular Re U (Serious Injury: standard of proof); Re B [2004] 2 FLR 263 and see also Re T (Abuse : Standard of Proof) [2004] 2 FLR 838, and Re G (a child) (non-accidental injury:standard of proof) [2001] 1 FCR 97). In H & R the House of Lords also deal with what is meant by "likelihood of harm" in s. 31 Children Act and decide that what has to be determined is whether there is a real possibility of harm.
  139. In Re H & R the House of Lords make it clear that where a serious allegation is at issue the standard of proof is not higher because, as Lord Nicholls says (at 586G in the [AC] report and 96D in the [FLR] report) (with my emphasis):
  140. "When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious that allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.........."
    He goes on to point out that some things are more likely than others and then says:
    "Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It only means that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether an event occurred. The more improbable the event the stronger must be the evidence that it did occur."

  141. It seems to me that it is arguable that a medical or therapeutic necessity, or the exceptions in Article 8(2), would be "convincingly shown" to exist if applying that approach the court made a finding that it is more likely than not that this was the case. The reasoning process that founds that finding would take into account "real possibilities" found to exist on such an approach to the evidence.
  142. I accept that such an argument would have to take into account the European basis of the phrase "convincingly shown", the application of Articles 3 and 8 in other countries and perhaps the anxious scrutiny applied in public law cases. Such arguments were not presented to me.
  143. I proceed on the basis that as stated in N the phrase "convincingly shown" introduces a high standard of proof and that the language of the English criminal and civil standards should not be imported into it. Thus I have asked myself whether on the evidence I am "convinced" in the sense adopted by the parties in the light of N that that standard lies between the two English standards.
  144. A chronology with some comments

  145. Helpful chronologies were produced. What follows does not attempt to cover all the points raised and is intended to give a structure (the underlining is my emphasis). In particular, I do not cite from the most recent reports, statements and records.
  146. 7 March 1963 Mr B born (now 41).

    13 February 1995 Mr B convicted of rape and false imprisonment. The victim was a deaf and dumb girl aged 17.

    5 April 1995 Mr B admitted to Broadmoor.

    April 1995 Mr B started on depot antipsychotic (Depixol).

    August 1997 Change in medication from depot Depixol to oral Risperidone (so he was taking that voluntarily)

    May 1999 First trial medication free period. Marked (and on my reading of the notes and assessment of the evidence escalating) deterioration was noted.

    February 2000 Medication was resumed after a second opinion was sought and this led to what was described as a marked improvement in a few weeks.

    July 2000 MHRT recommended transfer to medium security at Cane Hill, but the psychiatrist who would have had responsibility for Mr B there did not consider him ready to make the move.

    2001 Mr B transferred to a pre discharge rehabilitation ward at Broadmoor.

    29 October 2002 MHRT refused discharge, but reiterated the recommendation for transfer to Cane Hill (Mr B's independent psychiatrist for the Tribunal was Dr A). Dr SS was supporting a transfer to RSU and the MHRT were of the view that Mr B had shown enthusiasm, commitment and progress and in view of the fact that he had now achieved the goal set by the doctor at Cane Hill it would be deplorable if any further delays were allowed other than those increasingly necessary to carry the transfer into effect.

    16 December 2002 At a case conference Mr B was described as a capable and enthusiastic worker in the kitchen and it was common ground that by this stage this was the case and he had access to sharps. He had had some outside visits during 2002 which had gone well. Although there was some conflict with others arising from his behaviour he was described as cheerful and bubbly.

    He was recorded as accepting at that time that he suffered from mental illness.

    It was felt that in addition to the daily 6mg of Resperidone he was taking, a mood stabiliser would be a beneficial addition. But Mr B refused to take this.

    26 March 2003 Dr SS's report to MHRT.

    He records the points that (a) there had been discussion over the years as to Mr B's diagnosis, (b) at the MHRT in July 2000 it was noted that the Tribunal was satisfied from the evidence of the then RMO and Dr A that Mr B suffers from a bipolar affective disorder with psychotic features, (c) Mr B does not currently have any psychotic symptoms although there is deep rooted paranoia towards his fellow patients and staff, (d) in the light of what is set out (which includes a description of Mr B's behaviour) it can be said that at the best of times Mr B is in a chronically hypomanic state, (my emphasis), and (e) at a recent case conference all agreed following Dr SS's formulation that the most probable diagnosis was a bipolar disorder with partial remission.

    His report also records that Mr B had been consenting to Risperidone for some time (my emphasis) but had been refusing to take a mood stabiliser on the basis that his previous RMO had presented him with evidence that Risperidone was the only appropriate treatment for him. It was (in my view reasonably felt) that this was yet another manoeuvre by Mr B to find reasons not to accept the treatment he is offered because he has always felt that he does not suffer from mental illness, or at least in the way his doctors have formulated.

    A trial period on mood stabiliser was thought appropriate but it was agreed that it could not be forced on Mr B for a number or reasons including the point that mood stabilisers are oral medications and need cooperation.

    It was agreed after discussion with Mr B that he would be offered a medication free trial period together with a loss of his existing privileges and a transfer to a high dependency ward (Banbury). It was expected and promised that he would remain on Banbury for about 6 months and if he did not relapse he would return to Winsdor ward and his privileges would be reinstated. As stated in the report "common wisdom would dictate that on stopping the medicines, his mental illness, which remains sub optimally treated, will relapse".

    Dr SS confirmed that at this time he was of the view that Mr B had the capacity to make this decision.

    The report ended with Dr SS recording that in his view Mr B was appropriately detained in conditions of high security.

    Early July 2003 Some examples of oppositional behaviour whilst still on Risperidone (but no mood stabiliser) are recorded.

    July 2003 The medication free period begins with a transfer to Banbury ward.

    18 September 2003 At a clinical team meeting (CTM) a significant deterioration in Mr B's mental state was recorded as having been observed.

    2 October 2003 At a CTM there was a lengthy discussion and growing concerns were recorded about the possibility of paranoid thinking and it was recorded that Mr B had become increasingly preoccupied, even obsessed, with contamination.

    3 October 2003 In a report to MHRT Dr H (a psychiatrist at Broadmoor) reported that Mr B had been free from medication for 3 months with no overt signs of relapse in his psychotic disorder, nonetheless there were some behaviours manifest on the ward that seem to be indicative of a mild relapse. The clinical team retained an open mind regarding these developments. They expected to have a clearer picture of whether Mr B was fully relapsing into a psychotic episode over the next few weeks.

    End 2003 / early 2004 The nursing notes show similar behaviour to that recorded in the last entry.

    16 January 2004 Mr B returned from Banbury to Windsor ward. Due to hospital rules there were difficulties that Dr SS had not anticipated about the restoration of some of Mr B's privileges. These problems were discussed with Mr B and Dr SS worked hard to restore the privileges. This difficulty did not cause significant problems in Mr B's behaviour or attitude. He took the disappointment well.

    He has never returned to kitchen duty. Some, but as I understand it not all, of the privileges he had before medication was ended were restored.

    17 March 2004 Dr SS report to MHRT.

    He reported that Mr B's stay on Banbury was relatively uneventful and that his difficulties were seen as partly due to the nature of the ward. Accentuation of personality traits of obsessiveness, litigiousness, suspiciousness, and paranoia had been observed. The existing diagnosis was still preferred but in many hours of interview Dr SS had been unable to elicit clear and convincing psychotic or mood symptoms. His view was that although his diagnosis was not in dispute it remained unclear whether he was currently experiencing a relapse and although Mr B remained argumentative Dr SS did not consider this to be any great deterioration from his earlier presentation when it was recorded that he was litigious and obsessional.

    18 May 2004 Transfer from Windsor to Dover ward.

    16/20 May 2004 Professor H considers that Mr B's presentation over these days is consistent with a hypomanic episode.

    28 May 2004 MHRT rejected the view of Dr A that Mr B is not suffering from Bipolar Affective Disorder (Dr A then favoured a diagnosis of drug induced psychosis at the time of the index offence) and accepted Dr SS's diagnosis and view that Mr B was beginning to suffer a relapse over last few weeks.

    They hoped that when medication had been reinstated therapy could be arranged speedily to enable Mr B to move to a medium secure unit.

    28 June 2004 The medical notes show that Mr B was unhappy with the decision of the MHRT and was hinting at judicial review. On examination he was thought not to be delusional but paranoid. The plan was to consider medication and to decide during the next week, what and how much.

    1 July 2004 Mr B seen by Dr O (a doctor at Broadmoor) and the primary nurse, and on the issue of medication Mr B is recorded as saying that it had to be dealt with in a professional manner, and that he did not have a mental illness.

    On examination it was concluded that speech was coherent, circumstantial and over–inclusive, remains evasive, euthymic mood.

    5 July 2004 Mr B informed that medication would recommence on 7 July 2004. He refused to have it.

    15 July 2004 A SOAD (Dr C) interviewed Mr B and signed Form 39 in support of treatment.

    19 July 2004 First judicial review and interim injunction.

    19 July 2004 A report from Dr A in support of the application for judicial review.

    He asserted that in his earlier assessments he worked on a differential diagnosis of drug induced psychosis or bipolar affective disorder. As at the MHRT he now favoured the former and asserted that it was clear that Mr B does not specifically suffer from bipolar affective disorder by reference to the criteria in ICD 10.

    He also asserted that Mr B had made a full recovery from the drug induced psychosis that he suffered from at the time of the index offence and that he does not suffer from any form of mental disorder so there is no reason why he should be forced to take medication.

    21 July 2004 Mr B moved from Dover to Banbury ward

    30 July 2004 Dr SS witness statement.

    9 September 2004 Professor H interviewed Mr B.

    14 September 2004 Professor H's first report.

    He points out that a six month or longer medication free trial does not by any means prove that there is not an underlying illness of bipolar affective disorder because as on average bipolar patients spend 53% of their lives with no symptoms (in remission from their illness) if the natural underlying cycle of the illness is long (e.g. 5 years duration) over 2 and a half years will on average be spent well, perhaps consecutively.

    He was of the view that Mr B did not fulfil the diagnostic criteria for hypomania, mania, depression or schizophrenia.

    He stated that he could not discount "an underlying tendency to bipolar disorder and thus that one or other of the proposed drugs might have some prophylactic benefit in preventing the possibility of a relapse at some future date ----------- the cost benefit to Mr B is not clearly positive and I think could only be justified with his consent as a trial of medication, tightly monitored with objective assessment -------- on balance I would not recommend that these drugs be given as compulsory treatment ---------- in my opinion Mr B has capacity to consent unimpaired by illness" (a direct quote)

    Professor H did not therefore reach the same conclusions as Dr A and at the heart of his approach is his conclusion that by reference to the diagnostic criteria he refers to Mr B is not suffering a relapse.

    1 October 2004 The RMO's solicitors write stating that the RMO does not propose to treat Mr B without his consent. The letter refers to the time limit of the SOAD's certificate and the point that they had not been able to obtain any expert evidence since the report of Professor H which had understandably, in their view, altered the position significantly.

    4 October 2004 Injunction granted by Silber J restraining treatment.

    19 October 2004 A fight had broken out between two other patients and Mr B became involved trying to break up the fight. He was placed on L3 observation for his own safety as the general patient population had negative thoughts about him. Later a fellow patient attempted to assault him.

    Mr B was transferred from Banbury to Taunton (not a high dependency) ward.

    The move to Taunton was for Mr B's safety.

    5 November 2004 Mr B was returned to Banbury ward.

    9 November 2004 Dr SS report to MHRT.

    He assessed Mr B's risk of harm to himself as low and his risk of harm to others as high.

    In his formulation he states (a) Mr B has no insight into his illness (as he currently does not believe he has one of any kind contrary to his previous position when he did accept the diagnosis and treatment), (b) psychological work done to address his offending has been of limited benefit and the recommendation of further work has not been possible due to his non-engagement with the clinical team and his continuing denial of his problem, (c) he remains an untreated patient with significant risk, (d) his care team some of whom have known him for up to 9 years agree that his presentation does not represent his usual self, (e) he will try to portray himself as a victim of various injustices and minimise the risk he poses to others, (f) the main reason he has not been involved in more frequent and serious violence is that he has been managed on a high dependency ward, and (g) without treatment with medications the situation is unlikely to change much and Mr B is faced with inordinately long periods on high dependency.

    18 November 2004 Mr B appointed ward representative for service users.

    15 December 2004 Professor H's second interview with Mr B.

    24 December 2004 Professor H's second report for a MHRT.

    This records that (a) Mr B admitted to being technically guilty of rape and accepted his guilt in law but still maintained that it was a misunderstanding about consent rather than a violent rape and gave Professor H a very different version of events to that he understands was given by the victim and the court convicted him on the basis of the latter version, (b) the records in the notes of the two recent formal mental state examinations by Dr SS on 21 July and 28 September are the most complete clinical description available in recent months, and whilst, in the presence of other unequivocal symptoms of bipolar affective disorder, this pattern of behaviour would not be incompatible with hypomania, these behaviours in themselves are not sufficient for the diagnosis, in any case, the disturbance at this time was, from the evidence of the nursing notes, quite short lived, (c) the recent nursing notes do not provide evidence for specifically bipolar affective symptoms, but rather described behaviour which was demanding, critical and questioning of staff (which does certainly occur in hypomania) but is not enough on its own to justify a diagnosis of (hypo)manic relapse, and (d) he had problems with finding the evidence underpinning the view of Dr. SS that Mr B's risk of harm to others was currently high, and argued that the risk of harm to others is now unquantifiable in the artificial environment of a special hospital.

    As to the last point Professor H asserts that he did not think that Mr B had been psychotic since February 2000 and he had certainly shown no worse psychotic relapse unmedicated as he had not shown a psychotic relapse at all. He also noted that the earlier reports Dr SS deemed Mr B to have benefited from his sessions on the sex offender treatment programme. He recorded that Mr B was familiar with the content of the work done in this programme and was able to discuss it with him in considerable detail and appeared to accept the attitudes which underlie the programme within the context of his culturally determined view of men's and women's role. But he did not of course accept the link between ongoing psychotic illness and risk as he has not been psychotic for some years and hopes never to be again.

    In connection with the risk of continued non compliance with treatment he agreed that Mr B would not willingly take prophylactic medication such as mood stabilisers or antipsychotics but asserted that there was no evidence that he would not cooperate with the requirements of community supervision and that in his view this needed to be properly tested on a less secure unit.

    He said that whilst it remained possible that Mr B was in the early stages of a relapse, the longer he goes drug-free without becoming ill, and the longer this supposed pre-manic state continues, the less likely it is that this represents a bipolar relapse rather than the understandable behaviour of a man who is increasingly frustrated about continuing to reside in hospital, much of the time on a high dependency ward. In his opinion 17 months was long enough to conclude that Mr B was not in a fulminant bipolar state.

    He said that he thought that the alleged assaults may equally stem from Mr B's strong sense of social justice and feeling for fellow black patients.

    In response to Dr SS's views as to Mr B portraying himself as a victim of various injustices he stated that given the persistent absence of psychosis he believed it was time to move Mr B to a much less artificial environment where he may be monitored while being exposed to real-life stresses rather the hothouse atmosphere of a special hospital. The fact that he has survived so long despite the highly stressful nature of a special hospital high dependency unit bodes well for the future. He suggested that the way out of the present impasse, namely that without treatment with medications the situation is unlikely to change much, would be to discharge Mr B from Broadmoor.

    18 January 2005 As mentioned earlier the medical member of the MHRT suggested that Mr B suffered from schizophrenia.

    20 January 2005 Professor Fahy's report.

    27 February 2005 Mr B escorted a visitor (an Imam) into the seclusion room, putting them both at risk because the patient in there was highly dangerous.

    28 February 2005 Dr Parrot's report.

    8 March 2005 There was a verbal altercation and physical fight between Mr B and another patient.

    22 March 2005 Dr SS's supplementary MHRT report.

    23 March 2005 Professor H comments on Dr SS's MHRT report.

    He records that he thinks that Dr SS is rather missing the point and that he did not think that he is disputing an underlying diagnosis of bipolar disorder with which Professor Fahy agrees and Dr Parrott has a differential diagnosis. He pointed out that he was suggesting that (a) Mr B is now in remission from his underlying and potentially lifelong bipolar disorder and that his treatment and the setting in which it is conducted should now move on, and (b) it is very possible that a large proportion of his current presentation is indeed related to an entrenched and potentially irretrievable breakdown in therapeutic relationship with the services and Broadmoor, and that a move to local services in Lambeth would provide the opportunity for progress.
    He pointed out he did not and had never disputed the wisdom of advising Mr B to take a mood stabiliser but it was his contention that having been in remission from any hypomania for a considerable period of time Mr B cannot now be coerced into such treatment and that attempts to persuade him to take prophylactic treatment might be more successful in what he sees as a less oppressive and stigmatising setting.
    He repeated the point that all the clinicians involved would be aware that patients with an underlying diagnosis of bipolar disorder usually spend less than 6% of their lives in a manic or hypomanic state.

    May 2005 Professor H's supplemental MHRT report.

    This is a response to the other reports.

    Professor Fahy had said that in his view "the case for prophylactic medication is … overwhelming" and Professor H responds that (a) he does not differ markedly from Professor Fahy in his views on prophylactic medication and agreed that Mr B was more likely to remain in remission on medication, and his choice of lithium or valproate (mood stabilisers) would be identical to Professor Fahy's, but (b) at present, in the absence of evidence of any hypomania for 5 years (about which again Professor Fahy and he appeared to agree) he did not believe that Mr B should be compelled to accept medication, hence his opinion that, as it remains unproven at present that psychotropic medication is a necessary condition for Mr B remaining in remission, supervision arrangements might monitor his mental state closely and should include a plan for Mr B to accept medication in the event of carefully documented evidence of relapse fulfilling standard diagnostic criteria.

    May 2005 Mr B withdrew his MHRT application.

    5 May 2005 There was an incident when two ducklings were in the day room during which another patient was aggressive towards and threatened Mr B accusing him of being a rapist when he enquired about the ducklings.

    18 May 2005 Dr G interviewed Mr B.

    19 May 2005 Dr G issued a Form 39 certificate supporting treatment.

    2 June 2005 Application by Dr SS to lift injunction.

    8 June 2005 These proceedings for judicial review issued.

    9 June 2005 Hearing before Newman J at which a direction was made that the questions posed in paragraph 49 of the Claim Form be addressed by the experts.

    9 June 2005 Dr SS supplementary report.

    21 June 2005 Dr Parrott's supplementary report.

    24 June 2005 Dr SS's third witness statement.

    5 July 2005 Dr G's witness statement.

    5 July 2005 Professor H's report for these proceedings

    14 July 2005 A multi-disciplinary meeting was held at Broadmoor. The notes of that meeting were produced during the hearing and contain the passages set out later in this judgment.

    15 July 2005 Professor H's third interview with Mr B, at that time the notes of the meeting on the previous day had not been typed up and therefore Professor H did not see them.

    Mr B's mental illness

  147. As I have already indicated before me there was no dispute between Dr SS and Professor H that Mr B suffers from Bipolar Affective Disorder. Also it was common ground that the differential diagnosis of schizo-affective disorder does not introduce significant factors in respect of treatment or otherwise. The view of Dr A that Mr B was suffering from a drug induced psychosis at the time of the index offence, and no longer suffers from a mental illness, was no longer relied on by Mr B through his lawyers.
  148. The proposed treatment

  149. This was referred to in argument as being:
  150. i) anti-psychotic medication within defined BNF limits which could be, and indeed is likely to be, Risperidone, but Dr SS reserved the possibility and right to treat with a different drug within those BNF limits, and

    ii) a mood stabiliser.

  151. The anti-psychotic medication can be given compulsorily by depot injection but the mood stabiliser cannot be so administered and requires co-operation from the patient. (I add that Dr G's certificate refers to three drugs. From the notes of his interview with Mr B I understand the third to be an oral anti epileptic drug which is also used in psychiatry as a mood stabiliser, and that its administration would also require the co-operation of Mr B.)
  152. Compulsory treatment with anti-psychotic medication can have some effect on mood and may lead to the patient accepting mood stabilisers, although it did not cause Mr B to do this in the past. However treatment only with anti-psychotic medication is sub optimal treatment.
  153. There is no controversy as to the above and this proposed treatment has been described both as the proposed treatment and as prophylactic treatment. Thus the prophylactic treatment referred to is the same as the proposed treatment.
  154. The medical dispute

  155. The court has the benefit of an array of experienced and highly competent medical opinion in writing and through the oral evidence of Dr SS and Professor H. Dr SS is a consultant in forensic psychiatry. Professor H is a Professor of Psychiatry, he manages a large department running courses on diverse mental health and other topics, he also has a clinical practice and runs a low secure unit specialising in low secure forensic and challenging behaviour patients.
  156. Dr SS and Professor H were both impressive witnesses and they both acknowledged the expertise of the other. Professor H was more fluent and appeared more at home in the witness box. He advanced his evidence and reasoning persuasively. Dr SS was also persuasive. I am grateful to them both.
  157. On my reading of the papers (which was necessarily a quick one) I was of the view that there were a number of stark differences between Dr SS and Professor H and this view was clearly shared by counsel when they made their submissions as to whether these doctors should give oral evidence.
  158. After the oral evidence had been given it was apparent that the differences were far narrower than I had thought and it seems to me far narrower than indicated by the questions set out in paragraph 49 of the Claim Form which the experts had been directed to address. In some ways it seems to me that those questions introduced, rather than reduced, debate and problems. This is not a criticism but affirms the point I make later that in my view, if possible, the experts should meet to identify and define their differences.
  159. On my reading of the papers I confess that I had not appreciated that if Professor H was responsible for treating Mr B he would recommend Mr B to have the proposed treatment. In his oral evidence Professor H made it clear that he would do so and indeed said both that (a) if Mr B lacked capacity he would administer the proposed treatment (and thus the anti-psychotic compulsorily), and (b) he would prefer Mr B to be having prophylactic treatment (i.e. the anti-psychotic and the mood stabiliser) before he took him onto a less secure unit. I do not however place great weight on either of these points because they were single answers in oral evidence. Further as to the second point I acknowledge that it may have been primarily directed to taking mood stabilisers although the line of questioning started with the acceptance by Professor H that the combination authorised by Dr G (i.e. the proposed treatment as a whole) was very sensible.
  160. On re-reading the reports I appreciate that Professor H did indicate that his position was that if Mr B was his patient he would advise him to have the treatment but would not seek to compel him to do so. For example, his comment on the report of Professor Fahy referred to in the chronology (which accurately reflects Professor H's oral evidence as to the strength of his support for the treatment with the important proviso that Mr B was consenting to it and had capacity).
  161. However, as that is his position I remain puzzled by a number of aspects of his written and oral evidence which seem to be directed to pointing out and emphasising factors in the cost benefit analysis against the administration of the proposed treatment (and thus even if Mr B was consenting to it). These factors included (a) the potential for long and short term side effects and the nature of such side effects, (b) a point that the treatment would involve a non-licensed use of the drugs, (but as to this point Professor H accepted that this was a common and quite proper practice by clinicians and would be quite proper in this case – indeed his advice to Mr B would be that he should have the treatment (and see BAP guidelines Journal of Psychopharmacology 17(4) Supplement (2003) 3 – 6), which Professor H indicated he may well have written and which makes it clear that product licences are primarily designed to limit the actions of companies and not clinicians and that off label prescribing is particularly helpful in the management of bipolar disorder where different combinations of medication may be required in both the short and long term), (c) points by reference to scientific certainty, which seemed to me to be at the expense of good practical advice as to the treatment Mr B should have (which Professor H in fact signed up to), (d) points as to response times by reference to NNT studies for mood stabilisers alone, (e) points by reference to his behaviour before and after the cessation of medication in July 2003, and (f) points by reference to personality traits or disorders.
  162. Apart from the point on licensing I accept and appreciate that the points are ones that properly fall to be taken into account. But in my view all of them should have been, and no doubt were, taken into account by Professor H in reaching his conclusion that if Mr B was his patient he would recommend and advise him to have the proposed treatment (but would not seek to compel him to do so). In my view it is clear that Dr SS, Dr G, Dr Parrott and Professor Fahy had had regard to these points. In my judgment the manner in which they were advanced by Professor H in his written and oral evidence was argumentative and not sufficiently directed to the main issue of dispute, namely compulsion.
  163. Other points remain in the cost benefit analysis (judgmental process or balancing exercise) by reason of the fact that Mr B is not consenting to the treatment. They were pointed out by both Professor H and Dr SS. They are:
  164. i) the fact that the mood stabiliser cannot be administered without co-operation,

    ii) the effect of Mr B's lack of consent and thus of compulsion on his ability to deal with side effects,

    iii) the effect of compulsion on Mr B's future relationship with his treating clinicians, and

    iv) the possibility of trying further psychological work before embarking on compulsory treatment.

  165. In my view these points arise whether or not Mr B has capacity and thus Professor H's answer that he would advocate compulsory treatment (and thus anti-psychotic medication) if in his view Mr B did not have capacity is an indication that looked at singly and cumulatively are not powerful points in the cost benefit analysis against the proposed treatment.
  166. There is also the point made on behalf of Mr B that his condition has not worsened or significantly worsened since he ceased to have medication in July 2003 or since the decision in October 2004 not to seek to treat him compulsorily.
  167. Naturally these points form part of the background to my discussion of the competing arguments.
  168. Professor H's argument by reference to diagnostic criteria

  169. Although he would correctly say that at the time of their main reports some of the other doctors were not contemplating compulsory treatment, alone among the doctors Professor H argues that because Mr B does not meet, and has not met, the diagnostic criteria for hypomania or mania set by DSM IV (and ICD 10) he should not be treated compulsorily.
  170. The criteria set minimum time requirements of 4 days for hypomania, and 7 days for mania, for a distinct period of persistently elevated, expansive, or irritable mood that is clearly different from the usual non depressed mood during which three (or more) of seven defined symptoms have persisted and have been present to a significant degree.
  171. I accept that the criteria are an important diagnostic tool but it is common ground, which I accept, that they do not prescribe treatment. Further the underlying diagnosis of bipolar affective disorder is agreed between Professor H and Dr SS.
  172. In his argument Professor H:
  173. i) sets his criteria or threshold for compulsory treatment and thus the circumstances in which he would support and advocate compulsory treatment of Mr B having regard to his view that he has capacity, and

    ii) as I understood him, for the purposes of his argument, he used it to define remission and relapse.


    iii) Dr SS and the other doctors do not argue that Mr B has recently satisfied or satisfies these diagnostic criteria, and their recommendation of compulsory treatment is not based on an application of them, and

    iv) no reason was advanced to interpret the DSM IV criteria (or the ICD 10 criteria) as precluding the treatment of symptoms of the kind suffered by Mr B in a patient with a diagnosis of bipolar affective disorder and therefore on a free standing basis whether these criteria are satisfied does not add to, or subtract from, the arguments against the compulsory administration of the proposed treatment, which as I have explained all the doctors (but for Dr A who is no longer relied on) would advise Mr B to have.

  174. So Professor H's argument (a) sets the basis upon which Professor H would support compulsory treatment, as opposed to treatment agreed to by a patient who in his view had capacity, and (b) is not primarily directed to the question whether the proposed treatment (which he would recommend and advise Mr B to have, leaving aside the question of compulsion) is necessary.
  175. Professor H did not say for how long he would recommend compulsory treatment if Mr B satisfied the criteria he relied on. Logically it seems to me that it would only be for a limited period to treat the hypomania or mania as defined by the criteria that Mr B was suffering and demonstrating when the compulsory treatment commenced. Thus if the treatment did not bring about consent to further treatment the argument leads to the potential of a cycle of treatment relating to the cyclical nature of the illness (and the recurrence of hypomania or mania), and thus one that does not seek to prevent relapse into a hypomanic or manic state as defined by the criteria.
  176. At the heart of Professor H's argument was the point that unless Mr B was in a hypomanic or manic state as defined by the criteria the urgency and need for treatment by medication was insufficient to warrant compulsory treatment and thus overriding what in Professor H's view is a capacitated refusal of the treatment by Mr B.
  177. Dr SS's approach and argument on his behalf

  178. Dr SS does not consider it necessary to highlight a particular 4 day period, or the satisfaction of the above mentioned criteria of hypo-mania or mania, for treatment to be necessary or needed for the symptoms of bipolar affective disorder. I accept that view. It is supported by the points that (a) neither Dr Parrott nor Dr G have formed the view that this is a necessity or needed before recommending compulsory treatment, and (b) Professor H does not consider it necessary or needed before advising that the proposed treatment should be given to a patient with capacity who consents to it.
  179. I also accept as submitted on behalf of Dr SS that (a) the DSM (and ICD) guidelines are just that, and on Professor H's evidence they do not have the prescriptive force of domestic NHS guidelines, (b) they are research criteria and the court is concerned with their application in a clinical setting, where, according to the BAP Guidelines this may be too exacting a standard, (c) the criteria for hypomania remain controversial according to the BAP, and (d) the setting of four days is an arbitrary minimum.
  180. I accept that it is a fair criticism of Professor H's reports and evidence that:
  181. i) he adopted too black and white an approach to whether a person is in remission or relapse and made no reference to partial remission (i.e. when the full criteria for the disorder were previously met but currently only some of the symptoms or signs of the disorder remain) particularly because he accepted that many of the observations of Mr B are consistent with the illness, though not sufficient to meet the criteria. This is significant given the fact that the condition is characteristically associated with complete recovery between episodes but that the pattern of remission and relapse is highly variable (see the ICD guidelines appended to Professor H's first report) and Professor H accepted in his oral evidence that there was evidence that Mr B was increasingly challenging and that this was consistent with bipolar disorder, and

    ii) he adopted an over-rigid application of the DSM and ICD criteria, although in his oral evidence he accepted that there could well be a case for diagnosing a relapse where there was persistent evidence of hypomanic symptoms over a long period of time (i.e. longer than 4 days) but where they were present not every day but perhaps for 50% of those days.

  182. This acknowledgment was related to the question whether Mr B had for some time been in a chronic hypomanic state. This was referred to in Dr SS's report to the MHRT in March 2003 (see chronology) but not so far as I have found elsewhere until Dr SS answered a question from his own counsel in which he said that Mr B could be so described now. I was not referred to literature on what constituted a chronic hypomanic condition and I do not place great weight on these descriptions by Dr SS. In my judgment to do so would be to fall into the errors of (a) adding another string, or criteria, to the argument advanced by Professor H, and (b) seeking to take decisions on compulsory treatment, which all the doctors (but Dr A) advise Mr B should have (subject to the issues of capacity and compulsion) by reference to those criteria.
  183. Although for the purposes of his argument Professor H, and counsel for Mr B, used the criteria for hypomania and mania to categorise relapse and remission I did not understand them to assert that absent the satisfaction of those criteria a patient was in total remission with the result that he was, or should be considered and treated as if he was, no longer mentally ill and no longer at risk of relapse. If I am wrong about this I reject it as a proposition. Clearly they did not assert that Mr B should be treated as if he did not suffer from bipolar affective disorder by reference to the state of his remission because Professor H agreed that if Mr B was to consent to it the proposed treatment should be given.
  184. My approach

  185. In my judgment, given the common ground on the advisability of the treatment the questions that fall to be considered and answered in law should not be dictated by any rigid application of diagnostic criteria relating to relapse or remission (or other matters) but by a more rounded and more pragmatic approach to whether the proposed treatment should be administered and, if necessary, administered compulsorily.
  186. This involves a consideration of the reasons for, and purposes of, the treatment against the background of the nature of the underlying illness and a cost benefit analysis in respect of all the relevant factors for and against the treatment. Thus, to my mind it includes a consideration of Mr B's behaviour and condition (and thus his ups and downs) over the period since he was admitted to Broadmoor and thus whilst he has been receiving medication, after July 2003 (when he stopped doing so) and since October 2004 (when the RMO indicated against the background of the first judicial review that he no longer proposed to treat Mr B without his consent).
  187. This involves questions of degree and assessment which Professor H very properly acknowledged the treating doctors and nurses were in the best position to consider and carry out. This is therefore a reason to place weight on their views unless the reasons for them, or their approach, are undermined.
  188. Discussion

  189. Dr SS has been Mr B's RMO since September 2002, save for a 10 month period. He has the most intimate knowledge of Mr B's case and condition. He has access on a daily basis to those who are charged with looking after Mr B namely the medical staff, the nursing staff and the other staff such as social workers, occupational therapists and psychologists.
  190. It should also be remembered that Dr SS's assessment and judgment is not impugned as to the desirability of the treatment he has proposed having regard to Mr B's symptoms, behaviour and condition, but as to whether the treatment (and thus only part of it) should be administered compulsorily.
  191. Although Mr B has refused to engage with other doctors, and others, at Broadmoor he has not refused to engage with Dr SS, who has maintained a working relationship with him. I accept, as did Professor H, that Dr SS is in the best position to form a judgment as to the current level of Mr B's symptoms and to judge the likely effects on (a) their relationship, and (b) Mr B's ability to deal with side effects, of forcible administration of medication.
  192. I also accept that given the maintenance of the relationship between Dr SS and Mr B thus far against the background that Dr SS wants to treat Mr B against his will, there is a good chance that Dr SS will be in a good position to seek to, and will be able to, repair any damage to the relationship between himself and Mr B brought about by forcible administration of medication.
  193. The purposes of giving the medication are to alleviate Mr B's current symptoms and to produce a stability, to improve his chances of rehabilitation (i.e. to improve his functioning in terms of eventual progress in employment and parole), to improve his level of insight into his illness so that he can come to co-operate in his treatment plan and also engage in other therapy designed to address his insight into his offending, to increase the chances of him proceeding to a lower security setting sooner (or indeed at all), to protect him against the chance of future relapse of his life-long condition (the prophylactic effect), to reduce the risk of him suffering harm at the hands of others and to reduce the risk of him causing harm to others.
  194. In my judgment there are sound and compelling reasons to believe that the treatment will achieve many, or all, of those purposes to a significant degree and thus overall be of considerable benefit. My main reasoning in reaching this conclusion (which accords with the view of Dr SS and the point that Professor H would advise Mr B to have the treatment) and thus that the proposed treatment is a medical or therapeutic necessity is as follows:
  195. i) Mr B has previously taken Risperidone, and the administration of an anti-psychotic such as Risperidone is recognised to have specific anti-psychotic properties and specific anti-manic properties. It is thus likely that it alone, or an equivalent drug will address the symptoms Mr B currently experiences with the result that considerable benefit can be achieved.

    ii) As to point (i), I agree that it is noteworthy that the last time Mr B was taking such medication his level of insight was far greater, he was holding down a job in Broadmoor with access to sharps, he had extensive parole rights and had been assessed as being suitable for Cane Hill RSU. In Dr SS's words he had one foot out of the door of Broadmoor.

    iii) That assessment was changed to a negative assessment when he was not taking any medication (and on Mr B's case was no worse, or not significantly worse, than previously).

    iv) However it needs to be remembered that Mr B was not completely symptom free while on medication and that, as he was not then taking a mood stabiliser, he was not being optimally treated. Further it seems to me that Mr B's move to Cane Hill RSU may well have been dependent on him taking a mood stabiliser.

    v) Part of the treatment plan is that Mr B will be offered a mood stabiliser. This medication cannot be given forcibly in current preparations and it is therefore recognised that it can only be given with the co-operation of Mr B. His refusal to take mood stabilisers in the past is an indication that he may refuse to take them in the future but Dr SS, in my judgment reasonably, believes that the anti-psychotic will allow the clinical team the opportunity to work with Mr B with a realistic prospect of eventually obtaining his co-operation in this respect. Naturally it is acknowledged that this cannot be guaranteed. However I agree that the prospect of this additional benefit flowing from the introduction of compulsory treatment with an anti-psychotic is real and significant.

    vi) In my judgment, and notwithstanding that he was not then symptom free, the indicators of improvement in Mr B's general condition when taking only Risperidone are clearly established and are striking not only because they show someone who is far less symptomatic than he is today but also for the practical consequences that such an improvement can have and did have in the privileges he was given and his work in the kitchen.

    vii) My view expressed above as to the prospects that Dr SS will be able to maintain a good working and therapeutic relationship with Mr B which is relevant both generally and to Mr B's ability to deal with side effects arising from compulsory treatment (or treatment which he later takes willingly).

    viii) My view expressed below that Mr B's condition and behaviour have deteriorated and that the main cause of the matters observed and relied on to establish that deterioration by Dr SS is Mr B's underlying mental illness.

    ix) Albeit that as Dr SS and Professor H agree on the possible side effects of taking an anti-psychotic (which they agree can be subjectively deeply unpleasant (but reversible), or, even though rarely, deeply unpleasant and irreversible), Mr B's history shows that he has not suffered significant short or medium term side effects from Risperidone in the past and if that drug is not administered the drug chosen will be one with generally a more favourable side-effect profile than the older drugs.

  196. The point is made on behalf of Mr B that there have been no significant changes in his behaviour and symptoms since he ceased taking an anti-psychotic and since October 2004. In this context Dr SS was asked what the differences were between the position on 30 July 2004 (when he made his statement in the first judicial review advocating that Mr B should be treated compulsorily) and October 2004 (when he indicated he would not treat him without his consent). Part of Dr SS's answer was shown to be inaccurate in that he said that Mr B had moved to Banbury ward whereas in fact when this was checked it was found that he had moved on 21 July 2004 (and therefore just over a week before Dr SS made his statement in the earlier proceedings). This part of the answer therefore had to be qualified. Another part was that time had passed, which was necessarily linked to the part relating to the move of wards. The effect of Dr SS's composite answer was that after the move of wards that transfer helped and there was some natural improvement and a more stable period. I accept that answer and thus that assessment.
  197. It was during this period Professor H saw Mr B for the first time. It can be seen from the chronology that by the time of Dr SS's report to the MHRT in November 2004 deterioration had in his view started again. I agree.
  198. I acknowledge and accept that apart from the period in May 2004 when Professor H considers that Mr B's presentation was consistent with a hypomanic episode, a reading of the medical and nursing notes provides support for the argument advanced by Professor H, and by counsel of behalf of Mr B, that although there have been fluctuations in his behaviour and condition (a) fluctuations also existed when he was taking an anti-psychotic, and (b) the changes have not been significant and taken overall Mr B's behaviour and moods fluctuations could be due, or largely due, to one or more of his situation in hospital, a breakdown in his relationship with his treating team and his personality. This argument gains support from the views of Professor Fahy recorded earlier in this judgment (see paragraph 13 (iii)).
  199. To my mind this attribution of the observed behaviour to, or largely to, such causes is at odds with the common ground between Dr SS and Professor H (a) that the proposed treatment should be given to Mr B if he was consenting to it, and (b) that if Mr B is not relapsing (as to the determination of which even in the case of voluntary treatment they may take a different approach) the possible side effects of taking an anti-psychotic at least take on greater significance in the cost benefit analysis.
  200. Further I reject this attribution because although I accept (as did Dr SS) that (a) there have been difficulties in the relationships between Mr B and the team responsible for him at Broadmoor (and some members of it in particular), and (b) Mr B has a disordered and difficult personality, I was quite satisfied that these causes had been considered by Dr SS and his team as possibilities and that on the basis of their observations and experience they had concluded that although they may have had some effect that the main cause of the matters observed and relied on by them (and thus Dr SS) to establish the deterioration in Mr B's condition and behaviour they point to is Mr B's underlying mental illness.
  201. I add that I was also satisfied that in considering Mr B's condition and behaviour over time the team at Broadmoor had taken account of good aspects and improvements from time to time in Mr B's behaviour some of which were specifically pointed out to me by Mr B's counsel.
  202. In my view Mr B's counsel was correct not to pursue a line of questioning, inherent in some of the observations made as to other possible causes for Mr B's asserted deterioration, that was critical of the staff at Broadmoor and their approach to, for example, observing and reporting on Mr B.
  203. Thus in my view this argument advanced on behalf of Mr B crucially ignores, or gives insufficient weight to (a) the views of those responsible for Mr B on a day to day basis, and (b) the fact that the assessment of his behaviour involves issues of degree and judgment having regard to his situation in a secure setting which do not come over easily in day to day notes unless, for example, borrowing from Dr SS's third witness statement Mr B had displayed signs of mental illness which over a period of time would make it blindingly obvious (and I would add obvious to all) that he was in the middle of a relapse, which Dr SS agrees has not been the case. It should also be remembered that there is a practice in psychiatry that negative findings are noted and therefore the fact that symptoms are not noted every day does not mean that they are not there.
  204. In his witness statements for the two sets of proceedings Dr SS identifies a number of entries in the notes to particularise his contention and belief that Mr B's condition was deteriorating and that he should be treated with medication on a compulsory basis if necessary. His third statement (the statement for these proceedings) deals with the position since December 2004 and I shall focus on that. However I record that in my view his earlier statement also established a deterioration and the observations underlying his conclusions set out therein.
  205. Dr SS's third witness statement, exhibits a helpful document charting Mr B's medication history and his presentation over the years, and makes it clear that those who are responsible for looking after Mr B on a day to day basis are of the view that there has been a deterioration in his condition.
  206. I accept and find that that is indeed their view and that they have reached it in a proper and professional manner.
  207. In cross examination Professor H accepted (a) that the entries set out by Dr SS in his witness statement noted symptoms (e.g. that Mr B was increasingly challenging) that were consistent with bipolar disorder (although in his view they were not sufficient to qualify for the diagnosis of a discrete episode) and (b) there has been an exacerbation in Mr B's obsessional behaviour in recent times. Dr SS attributes this exacerbation in obsessional behaviour to his bipolar disorder and Professor H agrees that such symptoms can be exacerbated by a relapse in bipolar disorder.
  208. In my judgment the entries highlighted by Dr SS, together with the interpretation and assessment of them by Dr SS (and his team), which I accept show a clinical picture which clearly requires treatment. This picture includes some violent incidents which I agree are indicative of an escalation in the symptomology but in my judgment they should not be (and they were not) taken in isolation and the whole picture detailed by Dr SS shows this escalation.
  209. Dr SS details the following: demanding (11.11.04), argumentative and challenging (25.11.04), challenging rules and ward policies and refusing to sign his care plan (12.12.04), verbally abusive and aggressive and demanding (17.12.04), hostile and verbally aggressive (23.12.04), very grandiose (24.12.04), irritable sometimes and elated at others, lengthy arguments and sensitive (25.12.04), loud and grandiose (2.1.05), he was seen saying something to a patient which resulted in Mr B being punched (9.1.05), pushed door shut deliberately and hit staff member's leg (11.1.05), hypomanic and "all over the place from a mental point of view" (18.1.05), he was assessed for the MHRT on 18 January 2005 as being thought disordered and paranoid, demanding and anxious around the ward and refused to attend the CPA meeting (20.1.05), grandiose and patronising mood fluctuating from elated to constricted and suspicious (20.2.05), and argumentative and challenging (21.2.05).
  210. On 27 February 2005 Mr B, contrary to the rules escorted a person, an Imam, into the seclusion room. The patient in that room is highly dangerous. Mr B was therefore placing himself and the visitor at risk.
  211. On 8 March 2005 there was a verbal altercation and a physical fight between Mr B and another patient. Mr B was seen to provoke the other patient and to lash out causing the fight to ensue. He was unable to understand how his behaviour had led to him being placed in seclusion.
  212. At a six weekly review of 10 March 2005 Mr B is noted (a) to be intrusive, obsessive and hallucinations are queried on the basis that he is seen to talk and laugh when on his own, (b) to continue to be paranoid and suspicious, (c) as refusing to engage with his SHO and not to get on well with his primary nurse. On 19.3.05 he accused a staff nurse of having a personality complex, he chased staff into the mess room and was hostile and demanding (29.3.05), he entered and refused to leave the nursing office, he provoked verbal altercation with patients (11.5.05), verbal abuse/aggression (19.5.05, 20.5.05 and 29.5.05), sexually inappropriate behaviour (29.5.05), verbal altercation (29.5.05), verbal altercation (1.6.05), he is elated at times irritable and hostile within a short space of time, pacing up and down making strange noises and obscene gestures (4.6.05), allegation of intimidating behaviour (8.6.05), refusal to supply urine sample (13.6.05), argument with patient and accusation of incitement of other patient by staff (14.6.05) blocked vision into his bedroom and toilet windows, hostile and defiant (17.6.05).
  213. His mental state on examination on 22.6.05 by Dr SS included findings (a) of circumstantial and copious speech and suspiciousness/paranoia in relation to a security camera, (b) that Mr B had no insight into his illness, and (c) that despite the appropriateness of his behavioural style during the examination the core pathology, Mr B's psychosis, remains intact, underlying his day to day presentation and that he is in need of treatment.
  214. On that examination Mr B said he did not think he was mentally ill, or that he ever had been, and hence there was no need for medication and that he had been coerced into taking medication in the past.
  215. In his comments on the evidence put in on behalf of Mr B, Dr SS says (a) that Mr B's current presentation is almost identical to that described in his witness statement dated 30 July 2004 and in his oral evidence Dr SS confirmed (and I accept) that Mr B had got better then worse again, (b) that Mr B remains "hostile, paranoid, argumentative, invading other people's space, intimidating, grandiose and changeable in mood over a short period of time", and (c) that Mr B remains "actively ill (although not floridly psychotic or floridly manic)" and "unwell and jeopardises the safety of other patients and staff and himself by creating situations when he faces (and indeed suffers) retaliatory attacks from other patients". I accept these comments.
  216. The latest position is dealt with in the notes of the multi-disciplinary meeting held on 14 July 2005 which noted:
  217. "[Mr B] has been not engaging with the primary nurse or other nurses in any 1:1 therapeutic sessions. They have noted escalation in his preoccupation with hygiene and obsessional behaviour like cleaning inside of the washing machine excessively before washing his clothes and cleaning underside of the dining table as his knees touch that surface. He has been observed to be laughing and talking to himself which may indicate that he is responding to internal stimuli. He has consistently refused to see the current SHO or Dr M. He has continued to refuse any contact with the family by the Social Worker. He does attend Education and Occupational Therapy (OT). With regards to OT, his therapeutic relationship has deteriorated since one occasion where he could not attend due to valid staffing related restriction on number of attendees….
    Due to the fact that he is not engaging with many professionals in the team, and the fact that he can be confrontational and interfering with other patients, the multidisciplinary team debated whether he would engage in Psychotherapeutic work. For this reason he was not referred to Psychological therapies in the past. His mental health needs, behavioural problems and the fact that he is not on any medication was considered and a decision was made to refer him to various psychological work hoping to achieve some limited improvement in his mental state and behaviour. Given his non-engagement and unsettled mental state, the Clinical team does not feel overly optimistic about this but considering that we are rather hamstrung by the injunction preventing us form medicating him, this may be the only hope of offering him something which all agreed was less than adequate from a management point of view. Needless to say that this will not achieve what medication or medication assisted programs will achieve and hence his improvement and prospect of moving on from high security will be inordinately prolonged, the treatment team felt it should at least contemplate this option, given that there is not much that can be done in the current state of impasse. ….
    Attendance at Work areas: Not appropriate at the moment as [Mr B] does not even engage minimally with the OT to make fresh assessments possible and referral to work areas (which has to be graded) can not be taken forward. He will continue to be offered sessions in ward based OT and further referral based on his attendance and engagement in those sessions.
    Interview: [Mr B] was invited to the meeting with his solicitors but he declined without giving any reasons ."

  218. In the last paragraph of his comments on the Claimant's evidence Dr SS says:
  219. "This is not the presentation we have seen before when he was in a medicated state - when he was working well and was almost on his way out to a Regional Secure Unit taking the first steps towards an eventual discharge and fulfilling his potential as a free citizen. Mr B, due to the nature of his illness and its current manifestations, is unable to use the internal restraints an ordinary person uses when going about his everyday affairs. Those restraints keep human interaction civil and our environment safe and secure. It is through appropriate treatment that I seek to re-equip Mr B with those restraints so that he can use them in a beneficial manner and one that would be consistent with his best interests. Mr B's stubborn refusal to accept treatment has had the additional deleterious effect that his progress is totally blocked, and he has not even contemplated the psychological work that is essential in managing the risk of re-offending. I cannot see how this is in his wider interests (let alone best medical interests). Indeed I believe it is irresponsible to let Mr B continue to suffer in this fashion. I have read in one of the many psychiatric reports submitted by Professor H in this case the statement that "Bipolar patients who are not in remission can benefit from cognitively-based psychological interventions, as is amply attested ------ ". He suggests that Mr B's refusal of medication is not ample justification for withholding this treatment and hence this lack of progress in that department has not been entirely of his (Mr B's) making. The research work of Scott and Lam at the Institute of Psychiatry, on which Professor H puts so much emphasis, does not suggest that such psychological interventions can be made for patients who are unwilling. Indeed the very nature of psychotherapy (of whatever school) is based on a certain assumption of consent, cooperation and of course a degree of insight. A patient such as Mr B, who does not accept he has any problem whatsoever, does not engage with any hospital staff including medical staff, does not sign his own care plan and refuses to attend CPA meetings and case conferences, is in my view not a suitable candidate for psychotherapy. Mr B has been referred for a detailed personality assessment and is currently wait listed. We will be interested to see what his level of cooperation to that piece of intervention will be. I submit therefore that although perhaps " not entirely his own making", this situation is largely his own making. Needless to say, as and when Mr B is ready for further work, be it consequent to his recovery after treatment with medication, or spontaneous shift in his position, appropriate steps will be taken by me to ensure this work takes place expeditiously. (I would comment in passing that the issue of psychotherapy input is not really relevant to this litigation.) "
  220. In his oral evidence Dr SS repeated his view that it would be irresponsible of him not to treat Mr B, and thus not to seek the discharge of the present injunction.
  221. It was argued that the decision recorded in the notes of the meeting on 14 July 2005 to refer Mr B to various psychological work was at odds with this passage in Dr SS's witness statement and supported the view that the proposed treatment was premature and there should be some psychological work first.
  222. I do not agree and accept Dr SS's evidence that the clinical team were "clutching at straws" given the restraints of the injunction (and the present proceedings). I agree with that assessment of the prospects of any psychological work being successful and add that in my judgment this approach of the clinical team shows that, contrary to some suggestions made by Mr B (but properly not pursued in questioning or argument by his counsel) those who are responsible for Mr B's day to day care are properly and professionally addressing his condition and treatment and are not discarding any possibilities.
  223. I accept the point made by Dr SS that for psychotherapy to have any realistic chance of success Mr B would have to show some genuine co-operation and insight and that the history points strongly to the conclusion that absent any medication he will not do so. For example, he has refused to engage with the occupational therapist over employment and he has refused to engage with a number of members of the medical team (although fortunately this refusal has not extended to Dr SS).
  224. It is also to be noted that this argument was advanced on behalf of Mr B without any evidence from him (or anybody else) that he was willing to embark upon any psychotherapy (and why this was the case).
  225. I add that in my judgment the history indicates that Mr B is manipulative and this is another factor that points against psychotherapy without any medication being successful.
  226. I therefore reject the assertion that until psychotherapy has been tried the proposed treatment is premature. I however add that I am confident that if Mr B was to engage in psychotherapy, and it was thought by the psychotherapist that he was doing so with appropriate co-operation and insight, this would be taken into account by his treating doctors when considering whether to commence, or continue, compulsory medication.
  227. Mr B's capacity

  228. There is a divide between the doctors. On the one side there is Dr SS and Dr Parrott who have concluded that he does not have capacity and on the other there is Professor H and Dr G who have concluded that he does have capacity. In his oral evidence Professor H said that he had reached this conclusion by a fine balance.
  229. It was accepted and asserted on behalf of Mr B that this issue was to be decided by reference to the ordinary civil standard, namely "more likely than not". This issue is the trigger to autonomy and thus fundamental human rights. Therefore, to my mind, the court needs to carefully examine (or anxiously scrutinise) the strength and cogency of the evidence that founds its conclusion and the reasoning on which that conclusion is based.
  230. I accept, and have not forgotten, that as Hale L.J. points out in Wilkinson the threshold for capacity is a low one (see paragraph 80) and that at the earlier stage when Dr SS agreed that Mr B should embark upon a medication free trial he was of the view that Mr B had the capacity to make that decision.
  231. I have concluded that Mr B lacks capacity. I add that if it was necessary for this to be convincingly shown I would find that it was.
  232. I accept and indeed it is plain from, for example, the record of his interview with Dr G, that Mr B is able to discuss the proposed treatment and to recall earlier discussions about treatment with clarity. Professor H told me, and I accept, that Mr B had a remarkable recall of what had been said on earlier occasions about treatment. I therefore find, and this was not disputed, that Mr B is able to comprehend and retain information concerning his proposed treatment.
  233. The problem arises as to whether he believes the information and is able to use it and weigh it in the balance.
  234. Dr G does not deal with this specifically. In his certificate he asserts that Mr B is in his view capable of understanding the nature purpose and likely effects of the medication proposed. It may be, and I shall assume, that he elided the elements of the approach confirmed in Re MB in reaching and recording this opinion. His notes of interview record that Mr B told him that he (Mr B) said that bearing in mind that he did not accept that he was mentally ill he would not accept the proposed medication, and that he (Mr B) was not asked about taking medication (Olanzapine) each day. As to the latter point I accept the evidence of Dr SS that his staff are instructed to offer this medication to Mr B each day and that therefore on the majority of days this is done and an active offer and refusal occur.
  235. Helpfully Professor H was recalled to add to his evidence on capacity after he had heard Dr SS's evidence. Professor H explained that it had been difficult to pin Mr B down on whether he accepted that he had, or had had, a mental illness, that he was reluctant to attribute his problems to illness and that he went "on and on". Professor H pointed out and I accept that it is not uncommon for patients who have to consider whether they will fall within a group or percentage who will relapse, or become more ill, that they take the stance that they will not do so, and that this applies to patients with bipolar affective disorder. This is to my mind an understandable and natural human reaction as patients would want to be in the percentage (Professor H gave a figure of 10%) who do not relapse. Professor H said that in his view Mr B believed that there was a high percentage chance (90%) that he would relapse but that he was not in that group and was prepared to take the gamble that he would not relapse. Professor H told me that in his view Mr B's degree of acceptance that he was, or might be, mentally ill was limited to the introduction of the gateway to the discussion between them of the percentage chances that Mr B would relapse.
  236. To my mind when a person like Mr B who has a diagnosis of mental illness, which is accepted by the relevant doctors, takes what Professor H referred to as this gamble there is a significant difference between him doing so against a background that:
  237. i) he accepts that he is mentally ill, or realistically entertains the possibility that he is mentally ill because he accepts that this is the honest and professional diagnosis of those doctors, or

    ii) he does not accept that he is (or has been) mentally ill or does not realistically entertain the possibility that he is (or has been) mentally ill.

  238. Professor H did not tell me that he had made it clear or emphasised to Mr B (a) that he agreed with the diagnosis of bipolar affective disorder, (b) that if he was his doctor he would advise him to take the proposed medication, or (c) that Dr SS (and others) were of the view, with which he agreed, that Mr B should take the proposed medication and thus that in his (and their) view the cost benefit analysis came down in favour of conclusion. My understanding of Professor H's evidence was that he discussed matters with Mr B on a much more general and theoretical basis. This would be in line with the parts of his evidence to the court that I have concluded were argumentative.
  239. I have reached the conclusion that Mr B's reaction and response to the direct question whether he would refuse to take the proposed medication against the advice and recommendation of his treating doctors (and the experts involved in this case, including Professor H) is that he would not do so because he does not accept that their underlying diagnosis of mental illness is correct or realistically entertain the possibility that it may be. In short, he would refuse because he does not accept or believe that he is, or may be, mentally ill. Thus he also does not accept that his present symptoms and problematic behaviour are attributable to his mental illness.
  240. In my view his discussions with Professor H and Dr G have been on that basis. Indeed the record of his interview with Dr G indicates that he told Dr G that he is not mentally ill.
  241. In my judgment it follows that Mr B does not believe or accept a cornerstone of the factors to be taken into account in considering the information he has been given about his proposed treatment and therefore is not able to use and weigh in the balance the relevant information as to his proposed treatment in reaching a decision to agree to it or to refuse it.
  242. This view is supported by the evidence of Dr Parrott and Professor Fahy:
  243. i) Mr B told Dr Parrott that he was seeking an absolute discharge, that he was not suffering from a mental illness and that the clinical team were misleading in their description of their concerns. He also said that he was not unwell at the time of the index offence. Her view is that his presentation is strongly indicative of paranoid beliefs. She concluded:

    " I am of the opinion that [Mr B] lacks capacity …in that his disengagement with staff (known to be symptomatic of his mental illness) and paranoid ideation is likely to impair his ability to understand the information and make a balanced judgment as to whether to accept treatment. He is unlikely in this state of mind that the clinical team are acting in his best interests."

    ii) Mr B denied to Professor Fahy that he was mentally ill at the time of his index offence saying he was "just distressed about my situation", he denied having any of the psychotic symptoms listed in the medical reports of that time saying: "They are wrong. It was psychiatric tunnel vision. They wilfully fabricated evidence". He said he has never been mentally unwell and that medical treatment had been unnecessary.

  244. In this context it is important to remember that Dr A supported these beliefs and assertions (or provided considerable support for them in that he was of the view that at the time of the index offence the illness was drug induced) and thus it is understandable why Mr B might hold and cling to them.
  245. Importantly my conclusion on Mr B's capacity is supported by the evidence of Dr SS which I accept, and it seems to me that his earlier view when Mr B was on medication that he had the capacity to decide on a medication free trial is an example of the care and open mindedness of Dr SS.
  246. Further I accept his evidence, which accords with the view of Dr Parrott, that Mr B is not able to process information about his treatment and condition at a cognitive level because his mental condition so colours his comprehension of that information.
  247. I confirm that in my judgment Dr SS was approaching his task of assessing and treating Mr B, and thus the issue of capacity, in a conscientious caring and professional manner.
  248. Article 3


  249. As I have said there are difficulties in predicting whether the circumstances of and surrounding the proposed treatment, if and when it is administered compulsorily, will engage Article 3.
  250. In my judgment it is unlikely that Mr B will resist physically and have to be restrained. He did not do so in the past and the record of his interview with Dr G, who pressed him on the issue whether he would need restraint, shows that Mr B would not say whether he would physically resist, that he repeated that he would not accept the treatment and that he had earlier been coerced into taking anti-psychotic medication. However in this context I consider that what is of most importance is whether Mr B would be forced to take the medication rather than whether this would include physical restraint particularly because such physical restraint would not be a lengthy or particularly distressing process of itself.
  251. I accept and find that Mr B will initially continue to object to taking medication. But to my mind it is unclear whether this will cause him marked distress because as I have mentioned I have concluded that some of his behaviour is manipulative and in the past it has not done so and he took anti-psychotic medication willingly (albeit that he now asserts that he was coerced). Also as I have mentioned there is in my view a real prospect that the effect of the anti-psychotic medication will modify his stance and at least reduce his resistance to it being given to him even if it does not lead to him accepting the proposed medication in its entirety and thus a mood stabiliser in addition.
  252. On the basis that I have been invited to proceed, namely that the decision of Silber J is correct, and thus a capacitated refusal by Mr B would not be determinative I am of the view that although relevant as part of all the relevant circumstances of the case my finding that Mr B does not have capacity does not have a significant impact on this issue. Indeed on the basis of my conclusion it is hoped that the medication will enable him to reach capacitated decisions, which might include a continued refusal. In this context I have already mentioned the importance of the comments of Hale L.J. in Wilkinson at paragraph 79 concerning the difficulties in assessing whether forcible measures inflicted on a capacitated or incapacitated person are likely to be more degrading and the point that most people are able to appreciate that they are being forced to do something against their will. It is common ground that Mr B would appreciate this, which is why I say that on this issue in my view the issue of capacity as opposed to compulsion (over a capacitated or incapacitated refusal) does not have a significant impact.
  253. The object and purpose of the treatment is not to humiliate or debase. It is to treat the mental illness which founds Mr B's detention.
  254. I have already referred to potential positive effects of the proposed treatment and to its possible side effects. The former are considerable. As to the latter it is likely (although not certain) Mr B will be given Risperidone which he has had before without significant short or medium term side-effects and indeed positively commented that it agreed with him. If he is not given Risperidone I am satisfied that he will be given an anti-psychotic with a generally more favourable side-effect profile than the older drugs.
  255. Taking the above points together I have concluded that it is unlikely that the compulsory administration of anti-psychotic medication will result in intense physical or mental suffering to Mr B, albeit that initially I accept that he will object to it and maintain that he is being forced to have it.
  256. In my view it is unlikely that the compulsory administration of an anti-psychotic to Mr B will result in the degree of severity to engage Article 3 being reached.
  257. The Herczegfalvy test

  258. In any event, I am of the view that it has been convincingly shown that the proposed treatment is a therapeutic or medical necessity.
  259. Firstly, all the doctors relied on in these proceedings recommend the treatment and agree it is sensible (with the qualification in the case of Professor H that Mr B was consenting to it). In my view that consensus provides compelling evidence that the proposed treatment is necessary to treat Mr B's metal illness and thus its symptoms, both actively and prophylactically.
  260. Under the heading "medical dispute" I have covered the purposes of the proposed treatment, the cost benefit analysis relating to it, and the assessment of its chances of success. As appears therefrom in my judgment the underlying factual bases and reasoning of the doctors in recommending the proposed treatment are sound and compelling. I have also dealt with Professor H's arguments by reference to diagnostic criteria, the history of Mr B's treatment and behaviour, and generally.
  261. In my judgment if the issue of Mr B's refusal to consent is left on one side the medical evidence relied on, when taken together, compellingly points one way, namely to the conclusion that the proposed treatment is a medical or therapeutic necessity.
  262. Naturally I accept that Mr B's refusal to consent can only be left aside as a step in the reasoning process and it is a central factor. Thus I also pointed out under the heading "medical dispute" that points remain in the cost benefit analysis (judgmental process or balancing exercise) by reason of the fact that Mr B is not consenting to the treatment namely (a) the fact that the mood stabiliser cannot be administered without co-operation, (b) the effect of Mr B's lack of consent and thus of compulsion on his ability to deal with side effects, (c) the effect of compulsion on Mr B's future relationship with his treating clinicians, and (d) the possibility of trying further psychological work before embarking on compulsory treatment.
  263. I repeat that in my view these points arise whether or not Mr B has capacity. This is because of his actual (although in my view incapacitated) refusal of consent to the treatment and the fact that he is aware that the treatment will be given in the face of that refusal.
  264. Unless the issue of capacity and consequent autonomy is elevated to a status equivalent to that argued for on behalf of Mr B before Silber J, and rejected by him, again although relevant as part of all the relevant circumstances my finding on capacity does not in my view have a significant impact at this stage. Rather in my judgment the effects of Mr B's lack of consent and thus of compulsion have far greater weight.
  265. Although I acknowledge and respect Professor H's conclusion that he would not force the proposed treatment on Mr B, in my judgment his opinion (and the reasoning that underlies it) does not indicate that Mr B's refusal to consent (even if as Professor H considers it to be it is a capacitated refusal) founds the view that the proposed treatment is not a therapeutic or medical necessity.
  266. In my judgment for the reasons given under the heading "medical dispute" (in particular under the sub heading "discussion") the points I listed in paragraph 124 hereof as remaining in the cost benefit analysis (judgmental process or balancing exercise) by reason of the fact that Mr B is not consenting to the treatment do not provide grounds for concluding that it has not been compellingly shown that the proposed treatment is a therapeutic or medical necessity.
  267. Article 8

  268. It is common ground that this is engaged.
  269. As I have said in my judgment the question then becomes whether Article 8(2) is satisfied.
  270. Before me it was not contended that a provision of the law that enables compulsory treatment for mental illness of a person detained under the MHA who does, or does not, have capacity to refuse that treatment is not for a legitimate aim. I agree that this follows from the acceptance of the decision of Silber J that a capacitated refusal is not determinative and the acceptance that the challenge on Grounds 1 and 4 should be dismissed.
  271. I agree with the submission made on behalf of the RMO that if, and on the basis that, a capacitated refusal is not determinative, then the issue of capacity affects the nature of the interference with the patient's right to respect for private life.
  272. In my judgment the parties were correct to proceed before me on the basis that if I was satisfied that it had been convincingly shown that the proposed treatment was a therapeutic or medical necessity all the elements of Article 8(2) were satisfied and not to advance alternative arguments on the basis that (a) the degree of severity for the purposes of Article 3 was not shown, and (b) this was one of the cases when the exception in Article 8(2) (and thus the statutory test in s. 58 MHA) are satisfied without establishing either that the proposed treatment was a therapeutic or medical necessity (for Mr B) or in his best interests.
  273. I add for completeness (and the avoidance of doubt) that for the reasons I have concluded that the proposed treatment of Mr B for the mental illness which founds his detention is a therapeutic or medical necessity, I also conclude that it satisfies the test in s. 58 MHA, it is justified under Article 8(2) and it is in the best interests of Mr B.
  274. Facts for the purposes of Grounds 1 and 4

  275. The Claimant's helpful skeleton argument invited me to find the facts as to what was asserted on his behalf to be the threshold requirements for these grounds. In the case of a competent patient who was refusing treatment these were that in addition to there being a medical or therapeutic necessity it also has to be established that the proposed treatment is necessary (a) for the protection of the public, or (b) to prevent the patient from suffering serious harm.
  276. As appears earlier I have concluded that Mr B does not have capacity and therefore in my view the issue as to whether these additional threshold requirements exist does not arise.
  277. Counsel for the Secretary of State also invited me to make findings on these additional threshold requirements and on (a) the level of Mr B's understanding of the issues relevant to his decision not to consent to the proposed treatment, and (b) such factual issues as are relevant to a determination of whether the proposed treatment would cause Mr B to suffer violation of his Article 3 rights (see Silber J in paragraphs 64(i) and 64(iv) of B and paragraph 107 of PS).
  278. In this context the precise findings being sought by the parties were not specifically addressed by counsel.
  279. I understand the desire of Mr B and the Secretary of State for me to make further findings but in the circumstances, and in the absence of further submissions, I do not think it appropriate for me to make findings in respect of the issues identified as (a) and (b) in paragraph 221 hereof over and above the findings I have already made in respect of capacity and Article 3.
  280. Also I feel constrained by the lack submission as to the findings sought to make further findings on the issues relating to protection of the public and the prevention of serious harm to Mr B. In particular I am unclear whether the parties assert that these matters should be considered in the context that Mr B remains in a secure unit at Broadmoor, at Broadmoor or elsewhere.
  281. Although his oral evidence was not specifically directed to this issue my understanding of Professor H's overall position was that although some of his earlier reports indicate the contrary his position he was not, or was no longer, advocating that Mr B should be moved from Broadmoor if he was not treated.
  282. In the circumstances I confine myself to the following further comments and preliminary expressions of view in respect of the additional threshold requirements:
  283. i) In my view, Mr B's lack of acceptance of his guilt and responsibility for the index offence and his views concerning his mental illness have the result that he would present a real and serious danger to members of the public if he was to move untreated to an insecure setting.

    ii) I agree with Dr SS that Mr B's prospects of "moving on" from Broadmoor, or within Broadmoor, should at present be dependent on him being treated in the proposed manner.

    iii) In the secure and supervised setting of Broadmoor, I agree with Dr SS that the main risk of Mr B suffering physical harm is from retaliatory attacks from other patients but that there is also the risk of such harm resulting from fights in which he becomes involved. In my view these are real risks.

  284. If the parties wish me to make further findings in respect of these issues I will consider doing so in the light of their submissions that I should do so.
  285. Miscellaneous

    The role of the SOAD

  286. As I understand it in accordance with paragraph 12 of Appendix II to the judgment of Silber J in Re B this case was listed as a rolled up hearing at which the court was to consider the permission application and then to proceed with the substantive application (if permission was granted). I confess that in my experience this regularly leads, as it did here, to the case being argued in full and thus to a substantive hearing rather than a two stage hearing with the permission stage acting as an effective practical filter to save unmeritorious claims being pursued, time and money.
  287. The distinct and classic public law challenge to the certificate of Dr G, namely Ground 3 (that he had failed to take into account a relevant consideration) was abandoned on the first day of the hearing in the light, as I understood it, of Dr G's witness statement dated 5 July 2005. Further counsel for Mr B accepted that he did not need to challenge the certificate of the second Defendant SOAD, Dr G. This was a recognition of the point that the SOAD is not the treating doctor and as I understood it the force of the arguments advanced on behalf of Dr G, that his second opinion was a second clinical opinion that was not challengeable under Grounds 1, 2 or 4.
  288. I do not propose to go into those arguments because in advancing them counsel for Dr G accepted, in my view correctly, that even if Ground 2 had never been included Dr G should have been served or notified as an interested party because (a) his professional opinion was being challenged (at least indirectly), and (b) he might have wished to make points about that challenge, albeit that it was primarily directed to the treating doctor, the RMO. Further it seems to me that although a successful challenge to the decision of the RMO would stop treatment under s. 58 MHA in accordance with that decision and a supporting certificate from a SOAD (as would a successful challenge to the certificate) it is appropriate for a Claimant to seek an order in respect of the certificate if only on the same grounds as the challenge to the decision of the RMO, because such an order will promote clarity and finality.
  289. In my view the practical answer to the points raised on behalf of Dr G is that when there is no distinct and separate challenge to the certificate, nonetheless (a) the SOAD should be joined to obtain a binding order in respect of his certificate and to give him the opportunity to make separate representations from the RMO if he so wishes, and (b) if possible at the early directions hearing suggested by Silber J (which I agree is likely to be helpful) the issues of permission and the further participation of the SOAD should be addressed.
  290. If that had been done in this case it seems likely that permission would have been given against the SOAD as well as the other Defendants either on Ground 3 (not then abandoned) or, in any event, so that a binding order in respect of the certificate could be obtained. If at that stage Ground 3 had been abandoned, or demonstrated to be unarguable, it seems likely that Dr G would have been content to leave the argument on the other Grounds to the other Defendants and simply to provide a witness statement. If this course had been taken it would have saved time and money in respect of his participation and representation.
  291. It seems to me that in cases where there is no distinct challenge to the certificate of the SOAD it may well be the case that the SOAD would not wish to take an active role in the proceedings, and that the other parties would be content for him not to do so, or for him to be represented by the same legal team as the RMO on the basis that there was no conflict between the two doctors albeit that they have distinct and importantly different statutory roles.
  292. I was invited to refuse permission against the SOAD. However adopting the above approach and in particular the point that in my view it is appropriate for there to be a binding order in respect of his certificate I grant permission and dismiss the claim as against him and thus the challenge to his certificate.
  293. Cross examination of the medical witnesses

  294. The cross examination of Dr SS and Professor H was helpful and informative.
  295. Notwithstanding what is said in N I suspect that it is likely that cross examination of some of the medical witnesses will be helpful and informative in many cases unless the dispute between the doctors can be clearly identified and narrowed. This accords with my experience in the Family Division.
  296. I add that in any event (a) unless the court is given sufficient reading time to read and consider both the medical evidence and written submissions thereon the court will not be able to reach a decision on the papers as to whether there should be oral evidence, (b) often, as here, that time will not be available and the court will be faced with deciding whether to start on the basis that oral evidence will not be heard (and thereby run the risk that of an adjournment to enable it to be heard if, on further consideration, the court thinks that there should be oral evidence), or to hear the evidence from the doctors who are at court to give it, and (c) as the court is the decision maker for Article 3 purposes I suspect that in many cases the judge will be troubled as to whether he or she can make a fair decision without hearing oral evidence, or oral submissions on whether it would be fair to decide the case on only the written evidence.
  297. These points lead me to suggest that at the first directions hearing, and possibly a later directions hearing, the issue of oral evidence being given by some (or all) of the doctors should be addressed. I add that it seems to me that the question of an experts' meeting needs to be considered so that the doctors can discuss, identify and explain their points of agreement and disagreement. The conduct and chairing of such a meeting and the production of an agreed note thereof is not an easy task. But such a meeting is at the least likely to identify which experts need not give any oral evidence and to narrow the issues.
  298. Conclusion

  299. The claims for judicial review on all four grounds in the claim form are dismissed.
  300. The injunction granted by Silber J on 4 October 2004 is discharged.

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