R (B) v Dr SS  EWCA Civ 28
MENTAL HEALTH — Compulsory detention — Consent to treatment — Convicted rapist detained in secure mental hospital — Refusal to consent to treatment — Whether compulsory treatment in breach of human rights — Mental Health Act 1983 (c 20), s 58 — Human Rights Act 1998, Sch 1, Pt I, arts 3, 8, 14. The compulsory treatment of a mental patient under s58(3)(b) of the Mental Health Act 1983 did not infringe the patient’s human rights under arts 3, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Provided such treatment was medically necessary, it was not necessary also to show that it was required to prevent the patient causing harm to himself or others.
The Court of Appeal, Civil Division, so held when dismissing the appeal of the patient, B, from Charles J (R (B) v Dr SS  EWHC 1936 (Admin)) who dismissed B’s claim for judicial review of the decision of Dr SS, his responsible medical officer at Broadmoor Hospital, to subject him to medical treatment to which he did not consent.
B, who was diagnosed as suffering from bipolar affective disorder, was detained under ss 37 and 41 of the 1983 Act following his conviction for rape in 1995. The decision to treat him was made with the concurrence of the second defendant, Dr G, a second opinion appointed doctor, who certified in accordance with s 58(3)(b) of the 1983 Act that B was incapable of giving consent and that treatment with anti-psychotic drugs would alleviate his condition.
B claimed that the doctors’ decision was flawed because at the time it was made he had the mental capacity to give or withhold consent. He also contended that, unless such treatment was necessary for the protection of the public or to prevent the patient from suffering serious harm, the imposition of invasive treatment on a competent patient, even if done for the patient’s medical benefit, would violate his right not to be subjected to inhuman or degrading treatment, his right to private life and his right not to be discriminated against, contrary to arts 3, 8 and 14 of the Convention.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the reserved judgment of the court, said that a mental patient would lack capacity to consent to treatment if he was not able to appreciate the likely effects of having or not having the treatment. The judge found that that was the position so far as B was concerned, in that he did not accept even the possibility that he might be mentally ill and thus in need of treatment. After anxious scrutiny of the medical evidence the judge concluded, for reasons that their Lordships found compelling, that B lacked capacity to consent. On that ground, the appeal must fail. But since, with treatment, B might achieve a state of full remission where his capacity to consent to treatment was restored, it was still necessary to consider the legality of compulsory treatment of a capacitated patient. The 1983 Act provided for an integral package of detention and treatment and imposed restrictions designed to ensure that individual treatment was justified. It was not logical to consider the latter question in isolation from the overall objective of the package. If detention of a patient for treatment was justified on the ground that treatment was necessary for the protection of others, it was illogical to contend that a higher standard had to be applied to justify the administration of the treatment itself. The overall objective of detention of a dangerous patient ought to be that the patient should be rehabilitated and able to return to society. An approach which looked at the patient in detention and imposed a threshold requirement that treatment without consent could only be justified if that treatment was necessary to stop the patient causing harm to others or to protect the patient from serious harm, ignored the overall object of the Mental Health Act package. The court was concerned with whether compulsory treatment infringed arts 3, 8 and 14 of the Convention. The judge was correct to conclude that, when considering the severity of the treatment, the fact that it was imposed by compulsion was more significant than the question whether the patient had capacity to consent to the treatment. In R (Wilkinson) v Broadmoor Special Hospital Authority (2001) EWCA 1545,  1 WLR 418Not on Bailii!, para 80, Hale LJ observed that English law had not yet reached the point where it was an accepted norm that detained patients who fulfilled the criteria for capacity could only be treated against their will for the protection of others or for their own safety. In Herczegfalvy v Austria (1992) 15 EHRR 437 the European Court of Human Rights held, in relation to compulsory treatment of a detainee, that “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.” In the present case, the judge found that the proposed treatment was convincingly shown to be a medical necessity, was in the best interests of the patient and satisfied the requirements of s 58 of the 1983 Act. On the findings of fact made by the judge, the imposition of the proposed anti-psychotic medication would be lawful under English law and would not infringe the Convention.
The ICLR have kindly given permission for their case report to be used on this page.
There were two JRs involving the same parties. This is the appeal of the second JR.
Regina (B) v SS and othersB
CA: Lord Phillips of Worth Matravers CJ, Thorpe and Rix LJJ: 26 January 2006
Appearances: Paul Bowen and Alison Gerry (Scott-Moncrieff Harbour & Sinclair) for B; Owain Thomas (Capsticks) for Dr SS; Jeremy Hyam (Treasury Solicitor) for Dr G; Clive Lewis and Ben Hooper (Solicitor to the Department of Health) for the Secretary of State for Health.
Reported by: Paul Magrath, barrister