R (N) v M

Forcible medical treatment of a detained psychiatric patient must be in the patient’s best interests and must be convincingly shown to be medically necessary for the purposes of article 3. The latter standard is high, but it is neither the criminal standard of proof nor usefully explained by reference to it.

Compliance with a responsible body of medical opinion is necessary, but insufficient, to establish best interests. Conversely, the existence of responsible medical opinion opposing treatment does not prevent the court from finding medical necessity. It is one consideration within all the evidence.

The court must determine material factual disputes for itself. Cross-examination is required only where necessary to do so and should not be routine in human-rights challenges to psychiatric treatment.

The claimant was a detained patient who refused depot anti-psychotic medication. Her responsible medical officer proposed that treatment, and a second-opinion appointed doctor certified it under section 58(3)(b) of the Mental Health Act 1983. Medical opinion differed over whether the claimant had a psychotic illness, whether she had capacity and whether the proposed medication was appropriate.

Silber J heard oral evidence, resolved the medical conflicts against the claimant and dismissed her application for judicial review. He found the treatment to be in her best interests, convincingly shown to be medically necessary under article 3 of the European Convention on Human Rights, and justified under article 8.

The remaining appeal concerned whether contrary responsible medical opinion prevented the proposed treatment from being found both medically necessary and in the claimant’s best interests.

1. Appeal dismissed. Lord Justice Dyson delivered the judgment of the court. The judge had correctly required the proposed treatment to be in the claimant’s best interests and convincingly shown to be medically necessary under article 3 of the European Convention on Human Rights.

2. The expression “convincingly shown” imposes a high standard. It should be applied in its ordinary sense. Importing the terminology of the criminal standard of proof would serve no useful purpose. The court did not need to decide whether diagnosis and treatment necessity should always be examined sequentially. It observed that a single, holistic inquiry into medical necessity might be more sensible, taking account of the certainty and seriousness of the diagnosis, risks to others, likely benefits and possible adverse consequences.

3. The existence of a responsible body of medical opinion opposing treatment was relevant, but not conclusive. The Bolam requirement was a necessary first hurdle in deciding best interests: treatment falling outside responsible professional practice could not qualify. It was not sufficient, because best interests require the court to choose among potentially responsible options and embrace matters wider than medicine. Nor did a “reverse Bolam” rule apply. The court had to decide medical necessity and best interests from all the evidence.

4. The judge was entitled to prefer the evidence supporting a diagnosis of psychotic illness. He had considered the contrary opinions and gave cogent reasons for attaching particular weight to clinicians who had observed the claimant over time or whose evidence had been tested. His conclusion that the treatment was beneficial, that no less invasive treatment was available and that treatment was needed to alleviate risk was unassailable.

5. R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 did not require oral evidence whenever medical facts or opinions were disputed. The court must determine facts for itself where necessary to decide whether forcible treatment violates Convention rights, but cross-examination should be ordered only when needed. Such applications should be exceptional, and the court’s function remains essentially one of review.

6. A sufficiently full judicial determination can remedy an alleged article 6 defect in the second-opinion certification procedure. Article 6 does not invariably require disputed facts or expert opinions to be resolved through oral evidence. A court may determine them from written material if it applies the correct Convention approach.

1. Court of Appeal: The appeal was dismissed by a judgment of the court: [2002] EWCA Civ 1789.

2. Queen’s Bench Division: Silber J dismissed the claimant’s application for judicial review after hearing cross-examined medical evidence. He granted permission to appeal because the case raised issues of general importance. No citation for that judgment is stated.