B, R (on the application of) v Ashworth Hospital Authority

Section 63 of the Mental Health Act 1983 authorises compulsory medical treatment only for the classified mental disorder or disorders supporting the patient’s detention. It does not authorise treatment for a separate disorder diagnosed clinically but not classified. A separately identifiable disorder which does not satisfy the statutory detention criteria cannot itself justify compulsory detention or treatment. However, treatment for another disorder may be lawful where it is ancillary to, and necessary for, treating the classified disorder. The court also held that the common-law doctrine of necessity remains available for urgent treatment of an unclassified disorder where section 63 does not apply.

B had been detained under a hospital order and restriction order since 1987. The hospital order specified mental illness. Although clinicians diagnosed both mental illness and psychopathic personality disorder, the Mental Health Tribunal had never classified him as suffering from the latter disorder. He was placed and compulsorily treated in a personality disorder ward.

The Administrative Court, presided over by Sir Richard Tucker, dismissed B’s judicial review application, holding that section 63 permitted treatment for any mental disorder diagnosed by clinicians. The appeal concerned whether section 63 authorised compulsory treatment for an unclassified disorder.

Appeal allowed unanimously. Dyson LJ delivered the principal judgment. Scott Baker LJ agreed. Simon Brown LJ agreed with Dyson LJ’s reasons and added concurring observations.

1. Construction of section 63. Section 63 of the Mental Health Act 1983 must be construed in the context of the Act’s detailed scheme for admission, detention, review and discharge. That scheme links detention to a classified, treatable mental disorder. Compulsory treatment is a serious interference with personal autonomy, so clear and unambiguous language would be required before Parliament could be taken to authorise treatment for an unclassified disorder. Section 63 did not contain such language.
2. Effect of classification. Classification and reclassification maintain the essential link between the disorder justifying detention and treatment for that disorder. A separately identifiable disorder which does not satisfy the statutory criteria for compulsory detention cannot itself ground compulsory detention or compulsory treatment. The court’s conclusion was consistent with the principle that detention alone does not authorise treatment without consent; treatment must also be authorised under Part IV, as explained by Simon Brown LJ in R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545 ([2002] 1 WLR 419).
3. Emergency treatment and comorbidity. B v Forsey [1988] SLT 572 was distinguishable because it concerned an exhaustive statutory scheme for detention. On the present construction, section 63 is exhaustive only of compulsory treatment for classified disorders. The common-law doctrine of necessity therefore remains available for urgent treatment of an unclassified disorder where the patient cannot or will not consent. In cases of comorbidity, treatment for disorder B may be ancillary to, and a necessary part of, treatment for classified disorder A.
4. Hagan. The court did not hold that R v Anglia and Oxfordshire Mental Health Review Tribunal ex p Hagan [2001] LLR Med 119 was wrongly decided. Dyson LJ nevertheless rejected important parts of its reasoning concerning classification and reclassification, while accepting that the result could be supported on the alternative basis identified at paragraph 32 of that judgment.
5. Application. B was classified only as suffering from mental illness. His compulsory treatment for psychopathic personality disorder was therefore unlawful unless and until the disorder was classified by the Tribunal. The appeal was allowed.

1. Administrative Court. Sir Richard Tucker dismissed B’s judicial review application, holding that section 63 of the Mental Health Act 1983 permitted treatment for any mental disorder diagnosed by the clinicians.
2. Court of Appeal (Civil Division). The appeal was allowed. The court held that compulsory treatment under section 63 was limited to classified mental disorders.