N v Dr M & ors [2003] EWCA Civ 1789

Mental Health – consent to treatment – necessity – best interests – s58 MHA 1983

The claimant, N, applied for judicial review of the decisions taken by her Responsible Medical Officer (RMO) and the Second Opinion Appointed Doctor (SOAD) to administer anti-psychotic drugs by injection, notwithstanding her refusal to consent to that treatment.  Section 58 MHA 1983 provides for compulsory treatment of a patient where an SOAD has certified that the patient is incapable of understanding the nature, purpose and likely effects of that treatment, or the patient has not consented to it but the treatment should be given having regard to the likelihood of its alleviating or preventing a deterioration of his condition.

N disputed the diagnoses of the RMO and SOAD that she was suffering from a delusional disorder and a severe personality disorder. She obtained the opinion of an independent consultant psychiatrist who advised that N was unlikely to be suffering from a psychotic illness and should therefore not be treated for such; and that N retained the capacity to make treatment decisions.

The judge at first instance, having cross-examined the relevant medical experts, concluded that N was suffering from a psychotic illness and that it was necessary that she should have the proposed treatment as being in her best interests.  N had also argued that the forced treatment would amount to a breach of the art 3 prohibition on inhuman and degrading treatment, but the judge found that the medical necessity for the proposed treatment had been convincingly shown and there was therefore no breach.

The question on appeal was whether the judge had been right to conclude that despite the fact that there was a reasonable body of opinion that the patient was not suffering from a treatable condition, it was nevertheless in N’s best interests and “medically necessary” for the purposes of art 3 that the proposed treatment should be administered.

The Court of Appeal began by asking what standard of proof would be required by art 3 before a court could be properly satisfied that it was appropriate to give permission for treatment when faced with a patient’s refusal to consent (in the absence of the patient’s consent). Referring to the ECtHR case of Herczegfalvy v Austria, the Court confirmed that the judge had applied the right the test – ie the standard of proof required was that the court should be satisfied that medical necessity had been “convincingly shown”. This was something less than the criminal standard of proof, but clearly higher than a balance of probabilities test. In any event the phrase “convincingly shown” was easily understood and needed no elaboration or further explanation.

The judge had adopted the correct approach to the question of whether medical necessity for the proposed treatment had been convincingly shown. The answer would depend on a number of factors including:

  • how certain was it that the patient suffered from a treatable mental disorder;
  • how serious the disorder was;
  • how serious a risk was presented to others;
  • how likely was it that, if the patient, did suffer form such a disorder, the condition would be alleviated by the proposed treatment;
  • how much alleviation was there likely to be;
  • how likely was it that the treatment would have adverse consequences for the patient; and
  • how severe those consequences might be.

In relation to the common law best interests test, the Court reiterated that it was necessary to ask whether the treatment satisfied the Bolam test – ie that a doctor is not guilty of medical negligence if he has acted in accordance with a practice accepted as proper by a responsible body of persons who practice the same art. That was a necessary but not conclusive factor.  The fact that there was a responsible body of opinion against the proposed treatment was relevant to whether it was in the patient’s best interests or medically necessary, but no more than that.  The court’s task was to decide in light of all the evidence in the case whether the treatment should be permitted.  The judge’s conclusions were unassailable and, accordingly, the application was dismissed.

The Court of Appeal went on to clarify the circumstances in which the court should and could permit cross-examination in light of the Wilkinson case.  Broadly speaking, cross-examination should only be ordered where this was necessary to enable the court to decide factual disputes for itself.  It might be clear, even without oral evidence, that the case in favour of treatment had or had not been convincingly shown and cross-examination would not lead to a different conclusion.  It should not often be necessary to adduce oral evidence and Wilkinson should not be seen as a charter for routine applications to the court for oral evidence in human rights cases generally.

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