RMO Broadmoor Hospital and Mental Health Act Commission Second Opinion Doctor, ex parte Wilkinson (22 October 2001) (unreported)

Mental health – human rights – consent – treatment

The patient was a restricted patient vehemently opposed to receiving the anti-psychotic drug treatment proposed by the RMO, who believed him to be a psychopath with an underlying psychotic illness. A SOAD certificate under s58(3)(b) of the Mental Health Act was signed, and the drug administered by force on two occasions, giving rise to an acknowledged risk of sudden death for a man of this patient’s age and heart condition.

The patient brought judicial review proceedings and asked that the 2 doctors and independent consultant who took a different view of the merits of administering the drug, be called for cross-examination, so that the question whether the treatment was necessary, or proportionate, could be decided by the court. On appeal, the Court of Appeal had to consider whether the Human Rights Act made a difference to the role the court should play in this sort of challenge.

Ordering cross-examination of the doctors who had submitted reports, the Court held that section 58 of the Mental Health Act had to be read compatibly with the Convention rights in articles 2, 3 and 8. In cases where it was plain that consent was withheld, the level of scrutiny of the belief expressed by the RMO and SOAD’s certificate would have to consist of a resolution of the disputed medical evidence by the court; and not just a conclusion on the reasonableness of the beliefs of those proposing treatment, or even a more intensive ‘super-Wednesbury’ approach to the issue. The court had to reach its own view on whether the patient was capable of consenting to or refusing the treatment planned and, depending on that finding, to consider whether the proposed forcible administration of such treatment would threaten his life, thereby violating art. 2; would be degrading and in breach of art. 3; and not be justifiable as both necessary and proportionate under art. 8(2) given the extent to which it would invade his right to privacy. This degree of scrutiny would also satisfy the patient’s article 6 right to an independent determination of the civil right to refuse consent to treatment, and bodily autonomy and inviolability.

The Court overruled the approach taken in the Ian Brady force-feeding case that Wednesbury review of the RMO’s stance was sufficient to protect the rights of the patient. That said, the judge commented that the court would be slow to overrule the opinion of an RMO and SOAD.

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