R (B) v Dr SS (RMO), Dr G (SOAD), Secretary of State for the Department of Health [2005] EWHC 1936 (Admin) QB

This case decided whether the Claimant (B) who was detained under the Mental Health Act 1983 (The Act) could lawfully be given treatment to which he was refusing to consent.  B sought to challenge the decision of his responsible medical officer (RMO) and second opinion appointed doctor (SOAD) to seek and authorise compulsory treatment under s58(3) of the Act.  He challenged the decision by way of judicial review.

Although B was able to comprehend and retain information concerning his proposed treatment the court held that B did not have capacity to refuse medical treatment.  He did not believe that he was or might be mentally ill or accept that his illness was critical in considering the information about his proposed treatment. He was not able to use and weigh in the balance the relevant information concerning that treatment in reaching a decision as to whether or not to accept it.  The RMO and the SOAD both agreed that B was suffering from Bipolar Affective Disorder, and the SOAD had concluded that medication certified by him was required to treat B’s condition effectively, was in his best interests and was necessary to alleviate and prevent a significant deterioration in his illness.   Where a patient was incapable of understanding the nature and purpose of treatment or he did not consent but treatment should be given to alleviate or prevent deterioration, compulsory treatment could be administered under s58 (3) (b) of the Act.

In order for Article 3 rights to be engaged the proposed treatment had to attain a minimum level of severity.  Its mere imposition was not automatically inhuman or degrading. This was a question for the court to consider and by placing particular weight on the evidence of the RMO and the SOAD who were charged with the patient’s care and well-being. The relevance of their day to day experience as to the nature and extent of any relevant medical dispute was an important consideration in deciding between competing arguments. It was felt by the psychiatrists that B was unlikely to physically resist treatment although it was unclear whether his continued objection to it would cause him marked distress.  In those circumstances, it was unlikely that compulsory treatment administration of an anti-psychotic drug would result in intense physical or mental suffering sufficient to engage his Article 3 rights.

In relation to B’s Article 8 rights, although they were engaged, the Herczegfalvy test did not apply, and a therapeutic or medical necessity was not required to be convincingly shown. The ECHR did not state that that was the case and there was no other domestic authority identified by B to support that proposition. The justification for an interference with rights under Article 8(1) by reason of medical treatment turned on whether it was “in accordance with the law,” “for a legitimate aim” and “necessary in democratic society”.  Both sides had agreed that if the court was satisfied that it had been convincingly shown that that the proposed treatment was a therapeutic or medical necessity all the elements of Article 8(2) would be satisfied. The evidence indicated that there were sound and compelling reasons to believe that the treatment would achieve many or all of its purposes to a significant degree. In all the circumstances the proposed treatment was a therapeutic or medical necessity, it satisfied s58 (3) (b) of the Act, was justified under Article 8 (2) and in the best interest of B.  Application refused.

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