R (Wooder) v Feggetter

Common law fairness requires a Second Opinion Appointed Doctor who certifies under section 58 of the Mental Health Act 1983 that a competent detained patient may be medicated against the patient’s will to provide written reasons. Clear reasons addressing the substantive matters underlying the clinical judgment suffice.

The reasons should be disclosed as soon as practicable, ordinarily through the responsible medical officer or hospital. Disclosure may be withheld where it would be likely to cause serious harm to the physical or mental health of the patient or another person. Fairness does not invariably require disclosure before treatment begins.

A competent detained patient sought judicial review of a Second Opinion Appointed Doctor’s certification under section 58 of the Mental Health Act 1983. The certificate authorised continued anti-psychotic medication despite the patient’s refusal and his complaints about serious side-effects.

A deputy High Court judge refused permission to seek judicial review. Henry LJ subsequently granted permission on the reasons issue, permitted an additional claim concerning disclosure of material supplied by the responsible medical officer, and reserved the substantive application to the Court of Appeal.

The central questions were whether fairness required the doctor to give adequate written reasons and whether the responsible medical officer’s report had to be disclosed before the doctor interviewed the patient.

1. Appeal allowed unanimously. Brooke LJ delivered the leading judgment. Sedley and Potter LJJ agreed that the common law duty of fairness entitled a competent detained patient to written reasons for a Second Opinion Appointed Doctor’s decision authorising medication against the patient’s will.

2. Per Brooke LJ, procedural fairness depends upon the character of the decision-maker, the nature of the decision and its statutory framework. A decision sanctioning non-consensual medical treatment of a competent adult affects an interest highly regarded by the law: physical integrity and personal autonomy. The clinical character of the decision did not diminish its legal and moral significance. Parliament’s creation of the second-opinion safeguard in Part IV of the Mental Health Act 1983 reinforced that conclusion.

3. The reasons need not address every detail. It is sufficient for the doctor to explain clearly the substantive matters on which the clinical judgment was based. Permission for judicial review would ordinarily require a real prospect of showing that the doctor failed to address a substantive matter or that the reasons rested on a material error.

4. The doctor should send the reasons to the responsible medical officer or hospital, together with any view on withholding them. They should be made available to the patient as soon as practicable. Disclosure may be withheld where it would be likely to cause serious harm to the physical or mental health of the patient or another person. Fairness does not require disclosure invariably to precede treatment.

5. The court declined to decide whether fairness generally required disclosure of material supplied by the responsible medical officer to the second-opinion doctor. The relevant doctor had not participated, the court did not know the contents of the particular material and no general issue was shown to arise. That requested declaration was dismissed.

6. Sedley LJ additionally considered that article 8 and section 3 of the Human Rights Act 1998 supported the patient’s entitlement. Potter LJ regarded resort to article 8 as unnecessary because the common law supplied the required protection.

1. Court of Appeal: The appeal was allowed unanimously. The court declared that fairness required written reasons for certification under section 58 of the Mental Health Act 1983, subject to the serious-harm exception. It dismissed the proposed declaration concerning disclosure of the responsible medical officer’s report.
2. Court of Appeal, permission stage: Henry LJ granted an appeal from the refusal of permission on the reasons issue, allowed the claimant to seek additional relief and reserved the substantive judicial review application to the full court.
3. Queen’s Bench Division: Sir Richard Tucker, sitting as a deputy High Court judge, refused permission to apply for judicial review.