The court would decide for itself whether the criteria for forcible medical treatment were met and could hear oral evidence subject to cross examination if necessarycontinued:s139

Facts: Mr Wilkinson had been detained in Broadmoor for a number of years, as a result of a criminal conviction resulting in a hospital order with restriction. Mr Wilkinson strongly disagreed with his responsible medical officer’s (RMO’s) decision to treat him with anti-psychotic medication. In the circumstances that pertained, such treatment could be administered only with consent, or on the basis of a written certificate from another RMO that the patient was ‘incapable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given’ (section 58 of the Mental Health Act 1983). Another RMO had certified that Mr Wilkinson was incapable of understanding the treatment and he was forcibly treated on a number of occasions before he brought an application for judicial review, supported by a report from an independent psychiatrist as to his capacity and the likely benefit of the treatment. Mr Wilkinson sought an order providing for oral evidence and cross-examination of both RMOs and his own psychiatrist.

Judgment: the Court of Appeal (Simon Brown, Brooke and Hale LJJ) held that had Mr Wilkinson brought an action for damages in the tort of assault, under section 7 of the Human Rights Act (HRA) 1998, or for declaratory relief in the Family Division, the court could and would have entertained oral evidence: the fact that he had proceeded by way of judicial review should not make any difference to the way the court approached the substantive issue. Conflicting views were expressed as to whether the hospital trust was vicariously liable for the RMO (if not, a claim under section 7 of the HRA 1998 would still require leave under section 139 of the MHA 1983).