- Section
63 of the Mental Health Act 1983 ("the Act") provides:
"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."
- The
sole issue that arises on this appeal is whether this provision sanctions compulsory
treatment of a detained patient for any mental disorder which has been diagnosed
by the clinicians, or whether it only authorises such treatment (in the case of
a patient who has been made the subject of a restriction order under section 41(1))
for the mental disorder specified by the court under section 37(7) or by the Mental
Health Tribunal ("the tribunal") under section 72(5). The judge, Sir
Richard Tucker, preferred the first interpretation. He said:
"11.
Mr Thorold, on behalf of the defendants, observes that it is common ground that
a patient can be dual qualified and submits that the reference in the section
to the disorder from which he is suffering must refer to the actual disorder as
diagnosed by the clinicians, and need not, and should not, be confined to the
disorder or that part of the disorder classified by the Tribunal.
12.
I prefer Mr Thorold’s submissions. If Parliament had intended the mental disorder
to be that classified by the Tribunal it would have said so. It is clearly a matter
for the professional judgment and expertise of the clinicians in charge of B’s
case to decide upon the best therapeutic regime for the disorder from which they
assess him to be suffering. To conclude otherwise would be to put an artificial
and strange interpretation upon the words of the section."
- The
mental disorder specified by the court under section 37(7) in this case was a
mental illness. At all times, B was classified as suffering from a mental illness.
At no time has the tribunal specified the mental disorder from which he is suffering
as a psychopathic personality disorder within the meaning of section 1(2) of the
Act.
The
facts
- Save
for certain brief interludes, B has been a patient at Ashworth Hospital ("Ashworth")
since 1987. He is 47 years of age. He is currently detained under sections 37
and 41 of the Act pursuant to an order made by the Crown Court at Birmingham on
25 August 1987. He had been convicted of the manslaughter of his girlfriend. The
mental illness specified by the court in making the hospital order was schizophrenia.
Most, if not all, of the clinicians who have had B under their care have been
of the view that B also suffers from a psychopathic disorder, being a personality
disorder (dissocial type). B’s case has been considered by the tribunal from time
to time. He has always been classified as suffering from a mental illness, and
not a personality disorder.
- B
has been transferred on several occasions to the Raeside Clinic, a medium secure
unit. But on each occasion, there have been problems, and B has been returned
to Ashworth.
- On
17 August 2000, he applied to the tribunal for an order that he be discharged
from liability to be detained. At that time, he was on the Shelley Ward at Ashworth,
and his responsible medical officer ("RMO") was Dr Kumurajeewa. He submitted
a report to the tribunal for the purposes of the hearing, stating that B most
probably had a schizo-affective disorder of the manic type. Keith Scholey, a psychologist,
also submitted a report recommending that B should be placed on a "comorbidity"
ward suitable for the needs of patients suffering from problems of both mental
illness and personality disorder. Reports were obtained from experts instructed
on behalf of B. Professor Sashidharan, a psychiatrist, advised that a diagnosis
of personality disorder would be "totally inappropriate". Eric Bromley,
a psychologist, questioned whether B should be detained either for mental illness
or personality disorder.
- Dr
Hughes became B’s RMO on 16 August 2001. In his witness statement dated 27 June
2002, he explains that B is "one of the few patients for whom the traditional
classification systems do not provide a straightforward diagnosis. He has been
diagnosed as suffering from both a mental illness (schizophrenia) and a psychopathic
disorder being a personality disorder (dissocial type), a diagnosis with which
I completely agree".
- B
was transferred to the Newman Ward at Ashworth on 15 December 2000, and was there
at the time of the hearing before the tribunal on 8 May 2001. This is a personality
disorder ward as is the Shelley Ward where he had been previously. At para 5 of
his statement, Dr Hughes explains that the reason for the transfer was "to
treat the personality disorder traits of the patient".
- On
8 May 2001, the tribunal refused B’s application for a discharge from liability
to be detained, and did not reclassify his mental disorder. He, therefore, remained
classified as a patient suffering from a mental illness, and not a personality
disorder. They said:
"We
heard the witnesses and studied the reports listed.
On
that evidence we are satisfied that the patient suffers mental illness (schizo-affective
disorder) of a nature or degree that requires his continued treatment in hospital
for his welfare and for the safety of others."
- On
13 August 2001, B’s solicitors wrote to Ashworth expressing concern that he was
in a ward for patients diagnosed with a psychopathic disorder. They referred to
a number of reports which, they said, suggested that there was no reason to conclude
that B was suffering from a psychopathic disorder.
- On
15 January 2002, the Chief Executive of Ashworth wrote to B’s solicitors saying:
"The
current clinical team who recognise that, clinically, Mr Brogan has a mental illness
and personality disorder consider that his needs are best met, at this time, in
the Personality Disorder Service. I am sure you are aware of the difference between
a clinical diagnosis of personality disorder and mental health classification
of personality disorder.
The
fact that there has not been a re-classification or added classification having
been obtained or requested from the Tribunal is because the matter has been re-examined
at Ashworth. Your client’s mental illness is controlled by medication and it would
not be appropriate to transfer him to a mental illness ward given the comorbidity
that exists and the outstanding difficulties as regards his personality disorder
presentation. These should be addressed, as now, in a PD ward. This is not to
say the best placement of your client in the Hospital will not be reviewed on
a regular basis."
- It
was in these circumstances that B sought judicial review of the decision to detain
him in a personality disorder ward. The stark issue raised by these proceedings
is whether Ashworth could lawfully treat B for a personality disorder despite
the fact that he was only classified as suffering from a mental illness. The judge
below held that they could do so, and dismissed the application.
- There
was no material before the judge as to the nature of the regime and treatment
which B has been receiving for the personality disorder which the clinicians have
diagnosed. He is now accommodated in Owen Ward, which is another ward within the
personality disorder unit at Ashworth. On 15 October 2002, Alan Hazlehurst, B’s
solicitor made a witness statement which contained the following:
"2.
The Appellant advised me that when he was initially admitted to Ashworth Hospital,
he spent a considerable period of time on mental illness wards, and that there
is a difference between the present circumstances of his being on a personality
disorder ward compared to his being placed on a mental illness ward.
3.
The Appellant has described to me that there are broadly the following distinctions
between the wards:-
i.
That there is 24 hour access to rooms on a mental illness ward. On Owen Ward and
on the personality disorder unit, rooms are locked off denying patients access
from 8.30am in the morning. They are then re-opened from approximately 12.30pm
to 1.30pm but again locked off until 4.30 in the afternoon when they are re-opened.
This means that if a patient is unwell or is unable to attend at a workshop and
is kept on the ward, he must stay in the day area and is denied access to his
room.
ii.
The Appellant is not permitted to have parole i.e. access off his ward on to the
hospital site. Occasionally the Appellant and other patients are permitted access
of the ward if there is sufficient staff, for a short break outside but this occurrence
permitting access off the ward occurred much more frequently on the mental illness
wards than on the personality disorder unit.
iii.
The personality disordered patients are required to attend workshops, and effectively
they are compulsory whereas this is not the case on the mental illness unit. When
a mental illness patient feels on a particular day he is not up to attending at
the workshops he need not attend. In the event of not attending at the workshop
from the personality disorder unit, then payments, which are stage payments made
to patients to reward them for attending at the workshops are reduced.
iv.
There is a major difference in terms of treatment and therapy because of the higher
level of security and dependency on the personality disorder unit.
v.
The Appellant has explained that there is always a high level of observation,
supervision and therefore a greater degree of intrusiveness on the part of staff
in relation to their control and supervision of patients on a personality disorder
ward. Conversely the Appellant believes that on the personality disorder unit
there is less socialisation and interaction with the staff compared to the mental
illness ward.
4.
The Appellant believes that there are more searches on the personality disorder
unit of patients in addition to there being a room search each month, there being
random searches of the patient known as rub-down searches when going on and off
the ward and when present on the ward.
5.
The Appellant has instructed me that there is far less frequent meeting with his
RMO and supervising doctor compared to his period on the mental illness unit and
wards. He advises me that when on the mental illness wards he would see his doctor
weekly whereas when on the personality disorder unit, a doctor in his experience
is only normally seen on visits and has an appointment with the patient on average
every 3 or 4 months.
6.
On the personality disorder unit wards there is very little by way of activities
that can be undertaken whilst present on the ward but there is a TV on each ward.
The Appellant says that there is more open access on the mental illness wards
compared to the wards on the personality disorder unit regarding the TV.
7.
The Appellant will say that whilst being detained on a 24 hour day basis in a
special hospital, these different conditions on the ward and interactions with
the care team and staff make a significant difference to his daily quality of
life, and his conditions and treatment whilst remaining at Ashworth Hospital."
- In
his skeleton argument, Mr Thorold submitted that implicit in the challenge to
the decision to detain B in a personality ward was the proposition that placement
decisions within a hospital are justiciable, and that the designation by a hospital
of a particular ward for a particular mental disorder would acquire "binding
legal significance". Given the relief sought by B in his claim form (an order
quashing the decision to detain him in a personality ward), this was an understandable
response. But in the light of Mr Hazlehurst’s statement and the argument advanced
by Mr Gordon QC, it has become clear that the challenge is not to the compulsory
placement of B in a personality ward per se. Rather, it is to the compulsory treatment
of B for a personality disorder in that ward. In view of the unchallenged evidence
of Mr Hazlehurst and, above all, para 5 of the statement of Dr Hughes, it is not
surprising that, in his oral submissions, Mr Thorold did not seek to argue that
B is not receiving compulsory treatment for a personality disorder. It is for
this reason that the only issue for resolution on this appeal is the true construction
of section 63 of the Act.
The
true construction of section 63
The
statutory framework
- Section
63 appears within Part IV (sections 56 to 64), which is entitled "consent
to treatment". Part II (sections 2 to 34) is entitled "compulsory admission
to hospital and guardianship". Part III (sections 35 to 55) is entitled "patients
concerned in criminal proceedings or under sentence". Part V (sections 65
to 79) is entitled "mental health review tribunals"..
- Section
63 must be construed in its statutory context. The Act provides a detailed and
carefully worked out scheme for the admission of mentally disordered patients
to hospital for treatment, the review of their condition from time to time, and
their discharge when they are no longer liable to be detained. As I shall seek
to show, a theme that runs through the Act is that the liability to detention
is linked to the mental disorder from which the patient is classified as suffering,
and that this disorder is considered to be treatable by the person or body making
the classification. For convenience, I shall refer to this as "the classified
disorder", although it is to be noted that the language of classification
is not used in the Act (save only in the heading to section 16 "reclassification
of patients").
- An
application for admission to a hospital ("an application for admission for
treatment") may be made in respect of a patient under section 3 on the grounds
that:
"he
is suffering from mental illness, severe mental impairment, psychopathic disorder
or mental impairment and his mental disorder is of a nature or degree which makes
it appropriate for him to receive medical treatment in a hospital; and
in
the case of psychopathic disorder or mental impairment, such treatment is likely
to alleviate or prevent a deterioration of his condition; and
it
is necessary for the health or safety of the patient or for the protection of
other persons that he should receive such treatment and it cannot be provided
unless he is detained under this section" (section 3(2)).
- An
application for admission for treatment must be founded on the written recommendations
of two registered medical practitioners in compliance with section 3(3). Such
an application, if duly made in accordance with the provisions of the Act, is
sufficient authority for the applicant, or any other person authorised by the
applicant, to take the patient and convey him to the hospital within the period
specified in section 6(1). Where a patient is admitted within the said period
to the hospital specified in the application, "the application shall be sufficient
authority for the managers to detain the patient in the hospital in accordance
with the provisions of this Act" (section 6(2)).
- These
are the material provisions which deal with the admission of a patient for treatment.
It will be seen that it is a requirement of an application for admission for treatment
that the patient is suffering from one of the specified forms of mental disorder
"of a nature or degree which makes it appropriate for him to receive medical
treatment in a hospital". It may be obvious, but it needs to be emphasised,
that the basis of the application for admission of the patient is to enable him
to receive treatment for the disorder which justifies his detention.
- The
position of civil patients who are detained is dealt with in sections 16 to 20.
Section 16 provides:
"(1)
If in the case of a patient who is for the time being detained in a hospital in
pursuance of an application for admission for treatment, or subject to guardianship
in pursuance of a guardianship application, it appears to the appropriate medical
officer that the patient is suffering from a form of mental disorder other than
the form or forms specified in the application, he may furnish to the managers
of the hospital, or to the guardian, as the case may be, a report to that effect;
and where a report is so furnished, the application shall have effect as if that
other form of mental disorder were specified in it.
(2) Where a report under subsection (1) above in respect of a patient detained
in a hospital is to the effect that he is suffering from psychopathic disorder
or mental impairment but not from mental illness or severe mental impairment the
appropriate medical officer shall include in the report a statement of his opinion
whether further medical treatment in hospital is likely to alleviate or prevent
a deterioration of the patient’s condition; and if he states that in his opinion
such treatment is not likely to have that effect the authority of the managers
to detain the patient shall cease.
(3) Before furnishing a report under subsection (1) above the appropriate medical
officer shall consult one or more other persons who have been professionally concerned
with the patient’s medical treatment."
- The
appropriate medical officer therefore has the power to reclassify the patient’s
mental disorder, by furnishing the managers with a report that the patient is
suffering from a form of mental disorder other than the form or forms specified
in the application for admission for treatment. Thus, he may produce a report
which has the effect of deleting an existing classified disorder (A), and substituting
a new disorder (B), or, where appropriate, adding a new disorder (B) to an existing
disorder (A). The mechanism adopted by the statute for giving effect to the opinion
of the medical officer that the patient is suffering from a mental disorder other
than the form or forms specified in the application for admission is to provide
for a deemed amendment to the application. The application takes effect as if
the "other" disorder were specified in it. The reason for doing it this
way is that the crucial link is maintained between the mental disorder which justifies
the patient’s detention and his treatment in hospital for that disorder.
- Section
20 makes provision for the duration of the authority to detain the patient. So
far as material, it provides:
"(3)
Within the period of two months ending on the day on which a patient who is liable
to be detained in pursuance of an application for admission for treatment would
cease under this section to be so liable in default of the renewal of the authority
for his detention, it shall be the duty of the responsible medical officer –
(a)
to examine the patient; and
(b)
if it appears to him that the conditions set out in subsection (4) below are satisfied,
to furnish to the managers of the hospital where the patient is detained a report
to that effect in the prescribed form;
and
where such a report is furnished in respect of a patient the managers shall, unless
they discharge the patient, cause him to be informed.
(4) The conditions referred to in subsection (3) above are that –
(a)
the patient is suffering from mental illness, severe mental impairment, psychopathic
disorder or mental impairment, and his mental disorder is of a nature or degree
which makes it appropriate for him to receive medical treatment in a hospital;
and
(b)
such treatment is likely to alleviate or prevent a deterioration of his condition;
and
(c)
it is necessary for the health or safety of the patient or for the protection
of other persons that he should receive such treatment and that it cannot be provided
unless he continues to be detained;
but,
in the case of mental illness or severe mental impairment, it shall be an alternative
to the condition specified in paragraph (b) above that the patient, if discharged,
is unlikely to be able to care for himself, to obtain the care which he needs
or to guard himself against serious exploitation.
……
(8) Where a report is duly furnished under subsection (3) … above, the authority
for the detention ….of the patient shall be thereby renewed for the period prescribed
in that case by subsection (2) above.
(9) Where the form of mental disorder specified in a report furnished under subsection
(3)…..above is a form of disorder other than that specified in the application
for admission for treatment ……, that application shall have effect as if that
other form of mental disorder were specified in it; and where on any occasion
a report specifying such a form of mental disorder is furnished ……the appropriate
medical officer need not on that occasion furnish a report under section 16 above."
- It
will be seen that the conditions in section 20(4) are substantially the same as
the conditions in section 3(2), and that the scheme of section 20 is very similar
to that of section 16. In particular, if the form of disorder specified in a report
is other than that specified in the application for admission for treatment, the
application shall have effect as if that other form of mental disorder were specified
in it. So, once again, the important link is maintained between the mental disorder
which justifies the patient’s detention and his treatment for that disorder.
- I
turn to the relevant provisions of Part III. Section 37 makes provision for hospital
orders by the court. Section 37(1) provides that where a person is convicted of
certain offences, and the conditions mentioned in subsection (2) are satisfied,
the court may authorise his admission to, or detention, in such hospital "as
may be specified in the order". The conditions in subsection (2) are that:
"(a) the court
is satisfied, on the written or oral evidence of two registered medical practitioners,
that the offender is suffering from mental illness, psychopathic disorder, severe
mental impairment or mental impairment and that either –
(i)
the mental disorder from which the offender is suffering is of a nature or degree
which makes it appropriate for him to be detained in a hospital for medical treatment
and, in the case of psychopathic disorder or mental impairment, that such treatment
is likely to alleviate or prevent a deterioration of his condition; or
(ii)
……..
(b)
the court is of the opinion, having regard to all the circumstances including
the nature of the offence and the character and antecedents of the offender, and
to the other available methods of dealing with him, that the most suitable method
of disposing of the case is by means of an order under this section."
- Section
37(7) provides that the order shall "specify the form or forms of mental
disorder referred to in subsection (2)(a) from which…the offender is found to
be suffering". Section 40(4) provides that a patient who is admitted to a
hospital in pursuance of a hospital order shall be treated for the purposes of
the provisions mentioned in Part 1 of Schedule 1 to the Act as if he had been
so admitted in pursuance of an application for admission for treatment, subject
to he modifications specified in that Part of the Schedule. Sections 16 and 20
apply, with modifications which are not material to this appeal.
- It
will be seen, therefore, that, although there are differences of detail between
section 37(1)(2) and (7) to (9) on the one hand, and section 3(1) and (2) on the
other hand, the essential link between a patient’s mental disorder which justifies
his detention in hospital and his treatment for that disorder is common
to both.
- Section
41(1) provides that where a hospital order is made in respect of an offender by
the Crown Court, and the conditions stated in the subsection are satisfied, then
the court may further order "that the offender shall be subject to the special
restrictions set out in this section" (a "restriction order").
The restrictions include that the provisions of sections 16 and 20 do not apply;
and no application may be made to a tribunal in respect of a patient under section
66 or 69(1). Subsection (6) provides:
"(6)
While a person is subject to a restriction order the responsible medical officer
shall at such intervals (not exceeding one year) as the Secretary of State may
direct examine and report to the Secretary of State on that person; and every
report shall contain such particulars as the Secretary of State may require."
- Before
I turn to Part IV, I need to refer to Part V. Section 66 provides that application
may be made to a tribunal in the circumstances specified in subsection (1). Application
may be made where a report is furnished under section 16, and where a report is
furnished under section 20 and the patient is not discharged. There is, however,
no provision for such an application to be made where treatment is given without
the patient’s consent under the direction of the RMO under section 63. Section
72 gives the tribunal the power to discharge a patient. Subsection (1) provides:
"(1) Where application
is made to a Mental Health Review Tribunal by or in respect of a patient who is
liable to be detained under this Act, the tribunal may in any case direct that
the patient be discharged, and –
(a)
the tribunal shall direct the discharge of a patient liable to be detained under
section 2 above if they are not satisfied -
(i)
that he is then suffering from mental disorder or from mental disorder of a nature
or degree which warrants his detention in a hospital for assessment (or for assessment
followed by medical treatment) for at least a limited period; or
(ii)
that his detention as aforesaid is not justified in the interests of his own health
or safety or with a view to the protection of other persons;
(b)
the tribunal shall direct the discharge of a patient liable to be detained otherwise
than under section 2 above if they are not satisfied –
(i)
that he is then suffering from mental illness, psychopathic disorder, severe mental
impairment or mental impairment or from any of those forms of disorder of a nature
or degree which makes it appropriate for him to be liable to be detained in a
hospital for medical treatment; or
(ii)
that it is necessary for the health or safety of the patient or for the protection
of other persons that he should receive such treatment; or
(iii)
in the case of an application by virtue of paragraph (g) of section 66(1) above,
that the patient, if released, would be likely to act in a manner dangerous to
other persons or himself."
- Subsection
(5) provides:
"(5)
Where application is made to a Mental Health Review Tribunal under any provision
of this Act by or in respect of a patient and the tribunal do not direct that
the patient be discharged or, if he is (or is to be) subject to after-care under
supervision, that he cease to be so subject (or not become so subject), the tribunal
may, if satisfied that the patient is suffering from a form of mental disorder
other than the form described in the application, order or direction relating
to him, direct that that application, order or direction be amended by substituting
for the form of mental disorder specified in it such other form of mental disorder
as appears to the tribunal to be appropriate."
- Section
73 gives the tribunal the power to direct the discharge of restricted patients.
Subsection (1) provides:
"(1)
Where an application to a Mental Health Review Tribunal is made by a restricted
patient who is subject to a restriction order, or where the case of such a patient
is referred to such a tribunal, the tribunal shall direct the absolute discharge
of the patient if -
(a)
the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i)
or (ii) of section 72(1) above; and
(b)
the tribunal are satisfied that it is not appropriate for the patient to remain
liable to be recalled to hospital for further treatment."
- It
will be seen that in section 72(5) there is a further assertion of the link between
the liability to be detained and the mental disorder specified in the application
(in the case of civil patients) and in the order or direction relating to the
patient (in the case of criminal patients).
- I
can now come to Part IV. Section 57 applies to the "following forms of medical
treatment for mental disorder". In the case of these forms of treatment,
there is a requirement of consent and a second opinion. Section 58 applies to
the "following forms of medical treatment for mental disorder". These
forms of treatment require the consent of the patient or a second opinion. Section
62(1) provides:
"(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."
- And
then we come to section 63 which I shall repeat:
"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."
Discussion
- Mr
Thorold submits that the judge construed section 63 correctly. It permits any
medical treatment not falling within section 57 or 58 to be given by or under
the direction of the RMO for any mental disorder from which the patient is suffering,
whether or not it is a classified disorder. In support of his contention, he makes
a number of points.
- First,
there is no reference to a patient’s classification anywhere in Part IV. If Parliament
had intended that the provisions of Part IV should apply only to treatment for
classified mental disorders, it would have said so explicitly, and not left the
matter to "inference and statutory construction alone" (I quote from
Mr Thorold’s skeleton argument).
- Secondly,
if section 63 does not permit the giving of medical treatment for non-classified
mental disorders, there is an important lacuna in the Act. The inability to administer
medical treatment for such mental disorders in urgent cases would be a serious
matter, and cannot have been intended by Parliament. It is true that in the case
of civil patients, and unrestricted criminal patients who are subject to hospital
orders, there is no difficulty, since the appropriate medical officer can reclassify
the patient by furnishing a report under section 16. But this speedy solution
is not available in the case of restricted criminal patients. In their case, the
only route to reclassification is by a reference to the tribunal by the Secretary
of State under section 71, with a view to the exercise by the tribunal of its
power to reclassify under section 72(5). This is a somewhat cumbersome process
which takes time, and is not apt to deal with cases where there is an urgent need
for reclassification.
- Nor
can the problem be overcome by recourse to the common law. Mr Thorold accepts
that, but for the Act, it would be open to the hospital at common law to administer
essential medical treatment without the patient’s consent in those cases where
he or she does not have the capacity to give consent, and in all cases of emergency,
regardless of capacity: see the valuable analysis of Lord Goff of Chieveley in
In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72-78. But he submits
that the common law power to administer compulsory medical treatment to mental
patients who are liable to be detained in a hospital has been impliedly removed
by Part IV of the Act. He relies by analogy on the decision of the House of Lords
in B v Forsey [1988] SLT 572. In that case, it was held that the powers
of detention conferred on hospital authorities by the Mental Health Act (Scotland)
Act 1984 are exhaustive, and that any power of detention which they might otherwise
have possessed at common law have been impliedly removed by the statute. The provisions
of the 1984 Act correspond, so far as material, with those of the 1983 Act. Lord
Keith of Kinkel delivered the principal speech. At p 576 he said:
"In
my opinion it is impossible to reach any other conclusion than that the powers
of detention conferred upon hospital authorities by the scheme were intended to
be exhaustive. Procedure is laid down for emergency, short term and long term
detention. The period of short term detention might reasonably be expected to
be long enough for an application for long term detention to be submitted to and
approved by the sheriff under s.18. What happened in this case was that the petitioner’s
condition appeared initially to be improving, so that an application under s.18
was not thought appropriate. Dr Mackay was of opinion that an application which
turned out to be unnecessary would be upsetting and harmful to the patient. The
petitioner’s condition suddenly and unexpectedly deteriorated, and by then it
was too late to have an application submitted and approved before the expiry of
the short term detention. That would appear to be a situation which was not in
the contemplation of the framers of the legislation. However, I am of opinion
that the provisions of ss.24(6), 25(5) and 26(7) are absolutely inconsistent with
a possible view that the legislature intended that a hospital authority should
have a common law power to detain a patient otherwise than in accordance with
the statutory scheme. That scheme contains a number of safeguards designed to
protect the liberty of the individual. It is not conceivable that the legislature,
in prohibiting any successive period of detention under provisions containing
such safeguards, should have intended to leave open the possibility of successive
periods of detention not subject to such safeguards. I would therefore hold that
any common law power of detention which a hospital authority might otherwise have
possessed has been impliedly removed."
- By
parity of reasoning, Mr Thorold submits that the powers of compulsory treatment
conferred on hospital authorities by Part IV were intended to be exhaustive. Section
62(1) addresses the question of urgent treatment in terms. In these circumstances,
there is no room for the operation of the common law doctrine of necessity to
authorise the compulsory treatment of mental patients who are liable to be detained
in hospital.
- The
third point made by Mr Thorold is that, if the section 63 power is restricted
to classified mental disorders, this will give rise to great practical difficulty
in cases of comorbidity. Take a patient who suffers from mental disorder A (which
by itself would justify detention in a hospital having regard to the criteria
specified by the Act), and from mental disorder B (which by itself would not justify
detention on the basis of those criteria). Mr Thorold submits that it would be
unfortunate if the patient can only be treated for disorder A without his consent.
Even worse if disorder B aggravates disorder A. Such an outcome cannot have been
intended by Parliament. It is in my view unfortunate that the respondent has not
adduced any evidence to explain how, and to what extent, if the judge’s construction
of section 63 is wrong, this will cause real practical difficulty in cases of
comorbidity. As it is, the court has had to make do with Mr Thorold’s assertions.
- He
further submits that, if the judge’s construction is correct, a patient has considerable
protection against the possibility of an abuse of the power conferred by section
63. Decisions under section 63 may be challenged by judicial review, and on such
a challenge, the court is entitled to reach its own view as to whether the treatment
amounts to an infringement of the patient’s human rights: see R (Wilkinson)
v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR
419.
- I
cannot accept Mr Thorold’s submissions, and in large measure for the reasons advanced
by Mr Gordon QC. I do not think that Mr Thorold’s first (linguistic) point carries
any weight. There is nothing which clearly indicates that Parliament intended
Part IV to apply to any mental disorder from which the patient is suffering
while liable to be detained in hospital, whether classified or not. Compulsory
medical treatment is a serious intrusion of a person’s autonomy. I would not impute
to Parliament an intention to permit compulsory treatment unless this was expressed
in clear and unambiguous language. It is important to underline the full reach
of Mr Thorold’s submission: it is that section 63 authorises any forcible medical
treatment for a non-classified mental disorder, even if it does not meet the emergency
criteria stated in section 62(1). In my judgment, section 63 comes nowhere near
to evincing a clear intention by Parliament to permit such treatment for non-classified
mental disorder.
- It
is true that, if Part IV is considered in isolation from the rest of the Act,
it might appear to apply to any mental disorder from which the patient is diagnosed
as suffering, whether classified or not. But Part IV must be interpreted in its
context. The Act contains detailed provisions for the admission to and detention
in hospital of patients who suffer from classified mental disorders. It also contains
provisions which are designed to ensure that they remain liable to be detained
only so long as they continue to suffer from classified mental disorders. I have
earlier set out the relevant provisions. Part IV apart, Mr Thorold was unable
to draw our attention to any provision in the Act which deals with non-classified
mental disorders. Part IV apart, the Act is no more concerned with non-classified
mental disorders than it is with physical disorders. The Act is concerned with
mental disorders which are treatable and which justify detention for their treatment.
In these circumstances, I do not find it at all surprising that Part IV does not
define the mental disorder for which medical treatment may be given without the
patient’s consent as the classified mental disorder. That is assumed. Part IV
is not dealing with the definition of the mental disorder: that is determined
elsewhere in the Act. Part IV is dealing with the very important ancillary question
of defining the circumstances in which forcible treatment for the mental disorder
may be given.
- It
seems to me, therefore, that the natural interpretation of section 63, when construed
in its context, is that treatment (other than treatment falling within section
57 and 58) may be given without the patient’s consent, but only for classified
mental disorders. It is at this point that it becomes necessary to examine Mr
Thorold’s second and third submissions in order to see whether they cast doubt
on the correctness of this interpretation.
- In
my judgment, B v Forsey is distinguishable from the present case. It does
not compel the conclusion that, if the section 63 power may only be exercised
in relation to classified mental disorder, the hospital authority has no power
at common law to treat urgent non-classified mental disorder. In Forsey,
it was held, as a matter of statutory construction, that the Act of 1984 was exhaustive
of the powers of detention in all circumstances, emergency, short term and long
term. It followed that there was no room for a power to detain at common law in
cases of emergency. Such a power would be truly concurrent with the statutory
power, and had been excluded by the Act. But the position with regard to treatment
under section 63 is quite different. The hypothesis under consideration is that
section 63 may only be invoked in relation to a classified mental disorder. On
that hypothesis, section 63 plainly is not exhaustive of the power to treat for
mental disorder. It is only exhaustive of the power to treat for classified mental
disorder. It simply does not touch non-classified mental disorder, because the
Act is not concerned with such mental disorder, any more than it is concerned
with physical illness. It follows that, if a non-classified disorder is diagnosed,
and the patient needs emergency treatment to which he or she cannot or will not
consent, the common law doctrine of necessity allows the hospital authority to
give the treatment. There is no basis for saying that the common law doctrine
of necessity has been removed by the Act in such circumstances.
- I
should add for completeness that, in his skeleton argument, Mr Gordon also suggested
that section 3 of the Act provides a further alternative solution to the problem
where there is a need for emergency treatment of a non-classified mental disorder:
the patient can simply be admitted under section 3. But section 5(1) specifies
the circumstances in which a patient may be admitted under section 3 if he or
she is already in hospital. These are where the patient is an informal in-patient,
or is already detained under an application for assessment under section 2. They
do not include the situation where the patient has already been detained under
section 3 or 37. In these circumstances, I think that Mr Gordon was right not
to pursue this point in oral argument.
- I
turn to comorbidity (of which the present case is an example). The problem presented
by comorbidity is inherent in the scheme of the Act. At the very outset, the doctors
who recommend the patient’s admission for treatment have to decide which mental
disorder(s) are of a nature or degree which "make it appropriate for the
patient to receive medical treatment in a hospital" (section 3(2)(a)). Similar
judgments have to be made by the doctor furnishing a report under sections 16
or 20, and by the tribunal when considering whether to direct a discharge under
sections 72 or 73. If a separately identifiable mental disorder does not satisfy
the statutory criteria for compulsory detention, the patient cannot be detained
or treated against his or her will for that disorder. That applies at all stages
of the process. Thus, the patient cannot be admitted by compulsion for such a
disorder, and may not continue to be detained for treatment for that disorder
if it ceases to satisfy those criteria. As for Mr Thorold’s example of disorder
B (which alone does not justify detention) aggravating disorder A (which alone
does justify detention), if treatment for disorder B is required to treat disorder
A, it is difficult to see why treatment for disorder B is not ancillary to, and
therefore a necessary part of, the treatment for disorder A. In B v Croydon
Health Authority [1995] Fam 133, 138H Hoffmann LJ said:
"Nursing
and care concurrent with the core treatment or as a necessary prerequisite to
such treatment or to prevent the patient from causing harm to himself or to alleviate
the consequences of the disorder are, in my view, all capable of being ancillary
to a treatment calculated to alleviate or prevent a deterioration of the psychopathic
disorder."
- In
the example just given, the classified disorder is disorder A, but this classification
authorises treatment for condition B as part of the treatment for condition A.
I accept that patients who suffer from more than one mental disorder present particular
problems for those who are charged with the sensitive and difficult task of caring
for and treating mental patients. But I am not persuaded that these problems compel
a meaning of section 63 which is different from what I conceive to be its natural
meaning.
- For
these reasons, I consider that the judge misinterpreted section 63, and that the
appeal should be allowed. But I should not stop here, since we heard considerable
argument as to the purpose of classification, and as to the relevance of the decision
of this court in R v Anglia and Oxfordshire Mental Health Review Tribunal ex
p Hagan [2001] LLR Med 119.
The
purpose of classification
- This
is directly relevant to the true construction of section 63, since, if that section
permits compulsory treatment for any mental disorder which is diagnosed by the
clinicians, whether it is classified or not, it is difficult to see what purpose
is served by reclassification in sections 16, 20 or 72(5). It is true that sections
16 and 20 do not apply to the present case, since they have no application to
restricted patients, but section 72(5) does apply to all patients liable to detention,
and anyway section 63 applies indifferently as between restricted and unrestricted
patients. If Mr Thorold is right, the purpose of reclassification is not to identify
those mental disorders which justify a patient’s continued detention and for which
compulsory treatment may be given. He is, it seems, unable to attribute any significant
purpose to reclassification.
- In
my view, it is clear that the elaborate provisions in the Act for classification
and reclassification are intended to serve a real purpose. In R v Pathfinder
NHS Trust ex p Wey 3 CCLR 271, the applicant was detained in hospital under
section 3. His classified mental disorder was "mental illness". His
disorder was reclassified as "mental illness and psychopathic disorder"
under section 16. The applicant appealed to the tribunal. The tribunal made an
order under section 72(5) reclassifying his mental disorder back to "mental
illness". The appropriate medical officer then purported to exercise his
section 16 power to reclassify his disorder yet again as "mental illness
and psychopathic disorder". The applicant sought judicial review of this
last decision. The application succeeded before Kay J. The issue was whether,
without a significant change of circumstances, the medical officer could make
a classification decision which was in conflict with that of the tribunal. Kay
J said that he could not do so. He said:
"If
the effect of the Act is that, immediately afterwards and with no material change
of circumstances, the doctor can re-exercise his powers under section 16, then
the protection given for the patient is totally toothless and in no way affords
any protection at all."
- If
Mr Thorold is right, the exercise of classification is not intended to provide
the patient with any protection. Classification is irrelevant to treatment, since
a patient may be treated for any mental disorder under section 63. It is at this
point that I need to consider Hagan.
- In
that case, the applicant was a restricted patient. The hospital order specified
that he was suffering from mental illness and psychopathic order which were of
a nature or degree which made it appropriate for him to be detained in a hospital
for medical treatment. In other words, it was a comorbidity case where, at the
admission stage, both mental disorders were classified. The applicant applied
to the tribunal to be discharged under section 73. The tribunal refused to discharge
him. It found that he continued to suffer from the psychopathic disorder, which
continued to be of a nature and degree that required his detention in hospital
for his own health and safety, and for the protection of others. It also found
that the applicant continued to suffer from the mental illness, which was at that
time in remission, but that the mental illness taken alone would not justify his
being detained. Nevertheless, the tribunal decided not to exercise its power under
section 72(5) to reclassify so as to remove from the hospital order the reference
to the mental illness. The applicant argued that, in view of its findings, the
tribunal was bound under section 72(5) to delete the reference to mental illness
in the hospital order. This argument prevailed before Collins J. The tribunal
succeeded on appeal before Lord Woolf MR, Waller and Chadwick LJJ.
- The
principal judgment was given by Waller LJ. The central question for the court
was whether on the facts of that case the tribunal had a discretion or was under
a duty to reclassify pursuant to section 72(5), by deleting mental illness on
the grounds that it was a mental disorder which would not by itself justify detention.
The court held that the tribunal had a discretion. It is necessary to examine
the reasoning of Waller LJ’s judgment in a little detail. At para 19, he recorded
the submission of Mr Gordon (who appeared for the applicant in that case) that
it is not lawful to treat a patient compulsorily for any form of mental disorder
other than one that is classified: the very submission that he makes on the present
appeal. Waller LJ said that it was unnecessary to decide whether this submission
was correct, and that it was "probably better to leave final resolution to
a case where it is directly in issue".
- He
then turned to the question of reclassification and its purpose. At para 22 he
said:
"There
is force in Mr Gordon’s submissions that there should be some touchstone for the
use of compulsory powers both of detention and treatment. Nor do I dissent from
the view that reclassification is a means whereby that touchstone can be kept
under review. Furthermore, I have no doubt that the requirement that there must
be at least one common mental disorder as between two medical practitioners before
an application is effective, is the touchstone for detention under section 3,
but it clearly is not in one sense the touchstone for treatment in that instance
because under section 16 one report from the appropriate medical officer stating
that the patient is suffering from a different form of mental disorder will lead
to the application being deemed to contain that different form."
- He
then considered (still in para 22) what the position would be if the appropriate
medical officer were of the opinion that the applicant (a) continued to suffer
from a mental illness which did not alone justify detention, but (b) also suffered
from a psychopathic disorder which did justify detention. Waller LJ said that
in such circumstances the medical officer would not be able to reclassify under
section 16 because "it would not be appearing to the appropriate medical
officer that the patient was suffering from a form of mental disorder other than
the form or forms specified in the application". He added that he did not
see any warrant for implying a duty on the medical officer "to delete a mental
disorder from which the patient suffers and may need treatment, albeit that mental
disorder alone might not justify detention". He then considered the
position of restricted patients, and said that he derived assistance in construing
section 72(5) from the civil context ie the position under section 16.
- At
para 24, he said:
"That
leads me to the conclusion that reclassification is not simply about defining
those mental illnesses in the sense of making sure that the document authorising
detention only contains references to the forms of mental disorder when taken
on their own would justify detention. I accept that the document authorising detention,
whether it be an application or an order of the court, is the starting point for
authorising the powers under the Mental Health Act. But reclassification in my
view does not involve an obligation to remove from that order a form of mental
disorder from which a patient still suffers."
- He
summarised his overall conclusions as follows:
"25.
First, the primary purpose of section 72(5) is to enable a Tribunal which has
concluded that the form of mental disorder which requires the patient to continue
to be detained is different from the form of mental disorder specified in an order
(or an application or direction), to substitute that mental disorder so as to
in effect correct the order to accord with the position as it is now known to
be.
26.
Second, reclassification in the civil context under section 16, would not have
taken place if the conclusion of the medical officer was that Mr Hagan still suffered
from mental illness albeit it was in remission, and in the result in the civil
context (a) the application would still have specified mental illness, and (b)
whatever section 63 means, treatment for mental illness could continue to be compulsorily
administered. Section 72(5) ought to be construed as providing the Mental Health
Tribunal with a discretion so that they are not obliged to reclassify Mr Hagan
in a way different from that which he would have been classified as a civil patient.
27.
In addition, in the context of section 37 and section 41, section 72(5) ought
to be construed as giving the Mental Health Tribunal a discretion not to delete
a mental disorder from which a patient still suffers where deletion might frustrate
their powers in relation to conditional discharge in the future.
28.
Reclassification relates to whether the patient suffers from a particular mental
disorder, not to whether he is detainable for that mental disorder if it stood
alone.
29.
It is possible that if the conclusion was that a patient no longer suffered from
a form of mental disorder previously specified in the order at all, that deletion
in circumstances where substitution was not required would be permissible, but
that is not this case.
30.
The judge put Mr Gordon’s submissions in this way:
In
short, what Mr Gordon’s submissions boil down to is this. The purpose of classification,
whether it be in an application or in an Order, or indeed any other formal document,
is to show the basis for the detention of the relevant person. It is, as it were,
akin to a warrant or a Court Order justifying detention in, for example, a prison,
because detention in a mental hospital is as much a deprivation of liberty as
detention in any other sort of institution. Such a detention must be justified.
The document shows third parties why a person is being detained and, therefore,
should contain, and contain only, the reference to the form of mental disorder
which justifies any current detention.
It
will be noted that he commences with the words "purpose of classification".
I do not dissent from the view that at least part of the purpose of classification
in the original form of application, and the court order under section 37 is to
show the basis for the detention and at least part of the purpose is to identify
the mental disorder for which compulsory treatment is needed (albeit the treatment
aspect was not much pursued before the judge). It also seems to me that the reason
why under section 16 a report may generate some other form of mental disorder
being specified in the application has to do with the lawfulness or otherwise
of continued detention pursuant to an application, and the purpose of substitution
under section 72(5) has to do with ensuring that the order correctly reflects
a basis for detention. But it does not follow in either case that the purpose
of reclassification is to ensure that there is not described in the application
or order a form of mental disorder from which the patient suffers and may need
treatment if he continues to be detained on the basis of another form of mental
disorder. Indeed the ordinary application of section 16 leads to that conclusion,
and there is no reason why the Tribunal, under section 72(5), should be obliged
to reach a different conclusion.
31.
Thus the judge was wrong to accept the submission that the purpose of reclassification
wherever it appeared in the Mental Health Act was to ensure that there was not
described in the application or the order a mental disorder from which the patient
suffered but which would not on its own justify detention. In particular it seems
to me the judge was wrong to accept the submission that the purpose of reclassification
under section 72(5) was to describe accurately the basis on which the patient
was lawfully detained. The patient was lawfully detained under an order of the
court, and there was nothing inaccurate in describing him as being lawfully detained
on the bases specified in the order. Furthermore, there is no warrant in my view
for reading into the section that it is "incumbent upon [the Tribunal] to
reclassify if it decides that one of the current forms of mental disorders, from
which the patient is suffering which is contained in the order or application
or direction which has led to his detention, is no longer appropriate … because
the relevant mental illness is not of a nature or degree which makes it appropriate
for him to receive medical treatment" where the conclusion of the Tribunal
is that for another reason the patient is to be detained. Of course if the conclusion
relating to the mental illness related to the only basis for detention, reclassification
would not be appropriate but discharge either absolutely or conditionally would
follow.
32.
I would finally add that there is in my judgment possibly a short answer to this
case even accepting much of Mr Gordon’s submissions. The conclusion of the Tribunal
was that the mental illness alone would not render him liable to be detained.
That conclusion emphasises that Mr Hagan still suffers from mental illness, and
that it may recur unless treatment was available. The conclusion I suggest can
be fairly read as being that the mental illness, when taken together with the
psychopathic disorder which can be alleviated by treatment in hospital, makes
it appropriate for him to be detained in hospital for medical treatment in relation
to both types of mental disorder. Clearly there could be no criticism of the Tribunal’s
refusal to reclassify so as to delete the mental illness if that was their view."
- Mr
Gordon submits that Hagan was wrongly decided. He contends that the court
should have held that classification is the touchstone for both detention and
treatability, and that the decision of Collins J was correct. He submits that
it is open to this court not to follow Hagan since that decision was made
before the Human Rights Act 1998 came into force, and without reference to the
European Convention on Human Rights. He nevertheless submits that the decision
in Hagan is no bar to his appeal in the present case, since the court expressly
refused to decide the point that arises here, namely whether it is lawful to treat
a patient compulsorily for any form of mental disorder that is not classified
(see para 19 of the judgment). .
- Mr
Thorold submits that Hagan was correctly decided, but he does not contend
that the answer to the question that arises in the present case is provided by
Hagen. Counsel are, therefore, agreed that Hagan is not determinative
of the section 63 question. Nevertheless, it seems to me that at least some of
Waller LJ’s reasoning is relevant to that question.
- I
confess, with the greatest of respect, that I am unable to agree with some of
that reasoning. The court in Hagan seems to have been of the opinion that
classification is the touchstone for detention, but not necessarily for treatability.
Waller LJ states in various places that it is the touchstone for detention. Thus
at para 25, he says that the primary purpose of section 72(5) is to enable a tribunal
which has concluded that the form of disorder which requires a patient to continue
to be detained is different from the classified disorder to make a substitution
"so as in effect to correct the order to accord with the position as it is
now known to be". And at para 30, he says that (a) "at least part of
the purpose" of an original classification is to show the basis for detention;
(b) the reason why a section 16 report may reclassify a mental disorder "has
to do with the lawfulness or otherwise of continued detention pursuant to an application";
and (c) the purpose of substitution under section 72(5) "has to do with ensuring
that the order correctly reflects a basis for detention". In these passages,
Waller LJ is clearly saying that the reason for a reclassification under sections
16 or 72(5) is to provide a touchstone for lawful detention: to ensure that the
application or hospital order (as the case may be) accurately describes the mental
disorder which justifies the patient’s lawful detention in hospital.
- As
to whether classification provides the touchstone for treatability, Waller LJ
sees force in the submission that it does (para 22); and at least part of the
purpose of the original classification is "to identify the mental disorder
for which compulsory treatment is needed" (para 30). But this did not require
the removal from the order of a form of mental disorder from which a patient still
suffers, even though that would not by itself justify detention (para 24).
- It
seems to me that two factors played a considerable, and perhaps decisive, part
in the conclusion expressed in para 24 to which I have just referred. First he
was of the opinion that an appropriate medical officer cannot reclassify under
section 16 if he considers that one of two classified disorders no longer satisfies
the section 3(2) criteria (para 22). This led to his point (also in para 22) that
there was no warrant for adding by implication some duty on the medical officer
to delete a mental disorder from which the patient suffers and may need treatment,
albeit that this mental disorder alone might not justify detention. But I do not
see why the medical officer cannot reclassify in such a case (see para 21 above).
At the outset, there are two classified disorders A and B. The medical officer
now considers that there is only one, A. It appears to him that the disorder from
which the patient is suffering (A) is "other" than the disorders which
were specified in the application form (A and B). The importance of Waller LJ’s
opinion as to the scope of section 16 in the reasoning that led to his conclusion
about the meaning of section 72(5) is evident from para 26 and the last sentence
of para 30 of his judgment.
- The
second important factor in Waller LJ’s reasoning is the concern expressed at para
19 about the implications of accepting Mr Gordon’s submissions as to the meaning
of section 63. Waller LJ speaks of an "unsatisfactory state of affairs"
if the tribunal were bound to delete mental illness from the order since (1) the
hospital could not treat the patient compulsorily so as to keep his mental illness
in remission, and (2) even more worryingly, "could not treat him compulsorily
if the mental illness came out of remission until they had gone through the Secretary
of State route to get the order re-amended". No reference is made to the
possible recourse to the power to treat under the common law doctrine of necessity.
It would seem that the relevance of this power was not brought to the attention
of the court.
- Waller
LJ acknowledges that part of the purpose of classification is to identify the
mental disorder for which compulsory treatment is needed. I respectfully agree.
But in my view the corollary is that it is not the purpose of classification to
identify a mental disorder for which compulsory treatment is not needed.
- In
my judgment, the better view of sections 16, 20 and 72(5) is that, where a classified
mental disorder ceases to meet the section 3(2) or 37(2) criteria, then there
should be a re-classification to delete the disorder from the application for
admission or hospital order as the case may be. For the reasons that I have given,
neither of the factors which seem to have led the court in Hagan to its
conclusion as to the meaning of section 72(5) justifies that conclusion.
- It
follows that I do not feel able to agree with the reasoning that led the court
to allow the appeal in Hagan. I do not, however, find it necessary to say
that it was wrongly decided. In my view, the correct basis for allowing the appeal
in Hagan was identified by Waller LJ in para 32 of his judgment. It is
not, therefore, necessary to consider Mr Gordon’s submission that Hagan
can no longer be regarded as good law since the Human Rights Act 1998 came into
force.
Conclusion
- For
the reasons given earlier, the natural and correct interpretation of section 63
is that it permits compulsory medical treatment only for classified mental disorders.
Were it otherwise, the carefully drafted provisions for reclassification in section
16, 20 and 72(5) would serve no real purpose. Those provisions are designed to
ensure that the essential link is maintained between the mental disorder which
justifies the patient’s detention and his treatment for that disorder, and no
other.
-
In my opinion, this appeal should be allowed.
Lord
Justice Scott Baker:
- I
have had the advantage of reading in draft the judgments of my Lords and I agree
with them. Detention in a mental hospital is something that the law permits only
if the specified conditions are satisfied. I can see no reason why a patient should
ordinarily be subjected to treatment without his consent for a condition that
does not justify his detention. That this is the position under the Mental Health
Act 1983 is in my view clear from the careful analysis of the Act by Dyson L.J.
- I
cannot see that our conclusion should present an insuperable problem for the treating
doctors. Where a patient is suffering from more than one form of mental disorder
justifying detention it will be important for him to be classified accordingly
and tribunals will need to keep this in mind. I also see the force of Dyson LJ’s
point at para 46 that there will be circumstances where treatment for disorder
B is required to treat disorder A, and it is difficult in such a case to see why
treatment for disorder B is not ancillary to, and therefore a necessary part of,
the treatment for disorder A.
- I
too would allow the appeal.
Lord
Justice Simon Brown:
- I
too would allow this appeal for the reasons given by Dyson LJ but because of the
obvious importance of the case and because our decision may be thought to sit
somewhat uneasily alongside that in R -v- Anglia & Oxfordshire Mental Health
Review Tribunal ex parte Hagan [2001] LLR Med 119, I want to add a few words
of my own.
- Dyson
LJ at paragraph 16 above set out to show, and later in his judgment plainly does
show:
"A
theme that runs through the Act is that the liability to detention is linked to
the mental disorder from which the patient is classified as suffering, and that
this disorder is considered to be treatable by the person or body making the classification."
- That
theme of itself to my mind calls into question the correctness of parts at least
of the reasoning in Hagan if not the actual result there arrived at. If
the patient can only lawfully be detained for a classified treatable mental disorder,
there ought properly to be a correlation between the disorder(s) classified and
the treatable disorder(s) from which the patient is suffering. That, however,
is not directly the question raised on this appeal. Rather the question here is
whether, assuming the patient to be lawfully detained, he can thereafter be compulsorily
treated for any mental disorder diagnosed by his RMO or only for such disorder(s)
as he is at that time classified to be suffering from.
- It
is the respondent’s submission (and here I quote Mr Thorold’s skeleton argument)
that:
"The
primary purpose of classification under the 1983 Act is to establish a legal basis
for detention, and to indicate which diagnoses are in issue at a Mental Health
Review Tribunal, not to limit the permissible limit of treatments which can be
given to the specified disorders."
- In
common with my Lords, that is not a submission I feel able to accept. I explained
in R (Wilkinson) -v- Broadmoor Hospital Authority [2002] 1 WLR 419, 426,
at paragraph 9, the scheme for compulsory treatment under the 1983 Act:
"9. …
Detention under the Act does not of itself authorise treatment without consent.
It is not sufficient merely that the patient was admitted (and indeed remains
detained) because his condition was regarded as treatable. Compulsory treatment
must be authorised if at all under part IV of the Act. As s.63 makes plain, it
is a pre-requisite of such treatment that it shall be given "for the mental disorder
from which [the patient] is suffering". Without that it will be unlawful in any
event. Ss.57 and 58 then provide a range of safeguards graded to reflect the severity
of the various treatments which may be contemplated. S.57 (not here directly in
point) is concerned with surgery for destroying brain tissue or other forms of
severe and perhaps irreversible treatment prescribed by the Secretary of State
and it precludes any such treatment being given compulsorily. Rather it requires
both the patient's capacitated consent, which must be certified to be valid by
a panel of three persons including a SOAD, and also the SOAD's certified approval
for such treatment having regard to the likelihood of it assisting the patient's
condition. S.58 applies to two defined forms of treatment for mental disorder:
ECT and long-term medication. These are forbidden save - and thereby, taken in
conjunction with s.63, permitted only - upon the stipulated conditions. These
are that the patient has either (a) given a capacitated consent, so certified
by the RMO or a SOAD, or (b) not given such a consent (or, indeed, indicated a
capacitated refusal) but the SOAD, having consulted with two others as required,
has nevertheless certified that the treatment should be given."
- We
are not here concerned with s57 (which, in any event, as provided by s56(2), applies
"also to any patient who is not liable to be detained under this Act")
because, subject only to the requirement for urgent treatment as defined in s62,
it requires in every case the patient’s capacitated consent. Section 58 (also
subject to s62), however, does not always require the patient’s consent so that,
were Mr Thorold’s submission correct, patients classified as suffering only from
mental disorder A could be compulsorily subjected to the sorts of severe treatment
provided for by s58 with regard to mental disorder B. That is not a conclusion
that I would reach except upon the clearest language and s63 does not provide
it.
- Two
important considerations should be borne in mind when construing s63: first, that
on no view does it extend to treatment for any physical condition, however serious,
and however mentally incapacitated the patient may be. Secondly, that a person
suffering from a treatable mental disorder, but not one of a nature or degree
which makes it appropriate for him to receive medical treatment in a hospital,
cannot be detained and treated under the Act. If the patient cannot be forcibly
treated in either of those circumstances, why should he be amenable to such treatment
for a non-specified mental disorder merely because he is already lawfully detained
for the treatment of some other mental disorder?
- I
add only this. The Tribunal’s decision here was made on 8 May 2001, well after
this court’s judgment in Hagan and presumably with that case in mind. It
may be doubted whether in those circumstances, given that the Tribunal found the
appellant still liable to be detained on the ground of mental illness, they thought
it necessary to give serious consideration to the exercise of their s72(5) power
to re-classify him as suffering also, assuming they thought he was, from a psychopathic
disorder. To my mind, indeed, if one looks at the totality of the reasoning for
their decision, it seems tolerably clear that they did not. Dyson LJ in paragraph
9 above has set out the first part of the Tribunal’s reasoning. It continued as
follows:
"The
RMO gave evidence in accordance with his report and its addendum. He was emphatic
that the patient had improved over the last 18 months. That had allowed greater
engagement with the care team. The patient was still ill, and without medication
and the structured care of the hospital, would relapse. The RMO outlined a pattern
of treatment which he considered should be put in hand before a transfer could
be considered. The risk factor was difficult to assess but was real.
Dr
Scholey and Mrs White gave evidence emphasising that of the RMO.
Professor
Sashidharan considered that the mental illness was controlled by the medication
and that the patient’s outbursts in past years were due to the culture from which
he came reacting against the regime of the hospital, rather than mental illness.
However, the Professor was specific that the patient wherever he was, must continue
medication for fear of a relapse.
Mr
Bromley echoed the Professor’s view that some of the patient’s behaviour was due
to growing up in a criminal subculture, but agreed that the patient presented
some risk, not readily quantifiable.
The
patient was courteous and articulate. He was anxious to say that the suffered
no mental illness and had not for many years. Questioned, he said that although
mad at the time of the offence, he had already recovered by the time he came before
the Crown Court for sentence. He would take medication if it was enforceable but
not otherwise.
We
note that the patient has made progress over the past year or two, but much work
remains before a transfer would be appropriate."
- Had
the Tribunal appreciated that it would be unlawful to treat the appellant compulsorily
in a personality disorder ward without re-classifying him as suffering from that
disorder - indeed, that he was already being unlawfully treated in such a ward
- it may be supposed that they would have addressed the issue of re-classification
altogether more directly, rather than merely appearing to approve the RMO’s proposed
pattern of future treatment.
- Clearly,
following our judgments on this appeal, the question of re-classifying patients
to include other disorders will assume a far greater importance than hitherto
it has had.
- These
observations, however, cannot affect the outcome of the present appeal. Clearly
it succeeds so that unless and until the appellant is hereafter re-classified
by a Tribunal as suffering also from a psychopathic disorder it will not be lawful
to continue his treatment for that condition.