R (Wilkinson) v Broadmoor Special Hospital Authority

Where forcible treatment of a detained patient is challenged on substantial and disputed medical evidence, and may interfere with rights under articles 3 or 8 of the Convention, the court must conduct a full merits review. Heightened Wednesbury review is insufficient. The court must determine capacity and whether the statutory grounds for treatment are made out, with cross-examination where necessary.

Under section 58 of the Mental Health Act 1983, a second opinion appointed doctor must form an independent judgment that treatment should be given. The statutory certificate is not a merely deferential review of the responsible medical officer’s proposal.

The appellant was a detained Broadmoor patient who resisted proposed anti-psychotic medication. The responsible medical officer considered him incapable of giving valid consent and obtained a certificate from a second opinion appointed doctor under section 58(3)(b) of the Mental Health Act 1983. The medication was then administered by force on two occasions.

In judicial review proceedings the appellant produced contrary psychiatric evidence on diagnosis, capacity, likely benefit, and the risks of treatment under restraint. Jowitt J in the Administrative Court refused permission to cross-examine the three psychiatrists. The appeal concerned whether the substantive challenge required oral evidence and a court determination of the disputed medical issues.

1. Appeal allowed. Simon Brown LJ gave the principal reasons. Brooke LJ and Hale LJ agreed that the refusal to permit cross-examination should be reversed. If forcible treatment were again proposed and challenged, the three psychiatrists should attend for cross-examination.

2. The appeal was interlocutory. The court therefore did not resolve the disputed medical facts or make broad rulings for every detained patient. Nevertheless, after the Human Rights Act 1998 came into force, a challenge to prospective forcible treatment potentially engaged articles 3 and 8. The court had to determine the relevant facts for itself, including capacity, therapeutic benefit, medical necessity, necessity and proportionality. A heightened Wednesbury review, as used in R v Collins and Ashworth Hospital Authority ex parte Brady [2000] LLRM 355, was insufficient.

3. The court drew support from R v Home Secretary ex parte Daly [2001] UKHL 26 and Herczegfalvy v Austria (1992) 15 EHRR 437. Forcible treatment of an incapacitated patient requires medical necessity convincingly shown according to generally accepted psychiatric principles. A full factual hearing was therefore required where credible psychiatric evidence conflicted.

4. Section 58 permits treatment only on its stated conditions. The second opinion appointed doctor must make an independent primary judgment that, having regard to the likelihood of alleviating or preventing deterioration, the treatment should be given. Regard may properly be had to the responsible medical officer’s views, but a deferential review is inadequate.

5. Simon Brown LJ further held that a merits review would satisfy article 6. Article 6 did not require advance judicial authorisation where immediate treatment without warning was necessary. The formal order reversed the order below, refused anonymity, and awarded the appellant his appeal costs against the first and second respondents.

• Court of Appeal (Civil Division): Appeal allowed; Jowitt J’s refusal of cross-examination was reversed. [2001] EWCA Civ 1545
• Administrative Court: Jowitt J refused the appellant’s application to cross-examine the psychiatrists at the substantive judicial review hearing.