19.17R (B) v Dr SS and others [2006] EWCA Civ 28, (2006) 9 CCLR 280
Compulsory treatment of detained patients, where the criteria of the MHA 1983 were met, was compatible with the ECHR
Facts: B was detained in Broadmoor under sections 37 and 41 of the MHA 1983. He refused consent to certain treatment and sought a judicial review of the decision to treat him compulsorily.
Judgment: the Court of Appeal (Lord Phillips MR, Thorpe and Rix LJJ) held that B lacked capacity to consent and that section 58 of the MHA 1983 was ECHR-compliant: it permitted compulsory treatment where that was likely to alleviate or prevent a deterioration in the patient’s condition but English law also required the SOAD (second opinion appointed doctor) to be satisfied that medical treatment was in the patient’s best interests:
67. Where the challenge is not to the grounds for detention but to the treatment itself, careful consideration must be given to the procedure to ensure, in so far as is possible, that there are not protracted and expensive legal proceedings requiring oral evidence from medical witnesses where there is no prima facie case that anything untoward has occurred. Both Silber J and Charles J gave consideration to procedure at the end of their judgments. We heard no argument about this and will not comment on it, save to say that some of the observations might be thought to suggest that any mental patient ought to be able to challenge treatment proposed under section 58 by a full hearing with evidence from medical experts additional to those already involved. It is, of course, essential that the requirements of Article 6 of the Convention are satisfied but this does not mean that permission must be given for judicial review proceedings where the papers do not disclose any arguable grounds for this.
68. Section 58 imposes preconditions to compulsory treatment which ought to ensure that this is not imposed unless there is a convincing therapeutic case for it. They will only do so, however, if the SOAD satisfies himself or herself that the treatment in question should be imposed. This requires a truly independent assessment, not merely approval of the RMO’s decision on the basis that it is not manifestly unsound. If section 58 is properly complied with issues requiring the cross-examination of medical witnesses should not often arise.