PS, R (On the Application Of) v Responsible Medical Officer & Anor

Section 58 of the Mental Health Act 1983 may permit non-consensual treatment of a detained patient who has capacity but refuses treatment, provided the statutory safeguards are met and the treatment is compatible with Convention rights. A capacitated refusal is an important factor, but it does not automatically determine the outcome.

For Article 3, compulsory treatment must attain the minimum level of severity and, if it does, its medical or therapeutic necessity must be convincingly shown. Article 8 may be engaged, but treatment can be justified where it is lawful, necessary, proportionate and in the patient’s best interests. Article 14 requires a relevant difference in treatment between persons in analogous situations and lacks application where detained and non-detained patients are subject to materially different statutory regimes.

The claimant was detained under sections 37 and 41 of the Mental Health Act 1983. He had capacity to decide about treatment but refused anti-psychotic medication. His responsible medical officer proposed treatment, supported by a second opinion appointed doctor’s certificate under section 58(3)(b).

The claimant challenged the proposed treatment on the grounds that he suffered from a different, less persistent disorder, and that compulsory medication would breach Articles 3, 8 and 14 of the Convention. The court heard extensive psychiatric evidence, including cross-examination, and considered whether the treatment was medically necessary, proportionate and in his best interests.

1. Claim dismissed. The court concluded that the claimant suffered from schizophrenia rather than schizophreniform disorder. Particular weight was given to the evidence of the responsible medical officers, supported by the second opinion doctor, earlier tribunal findings and other psychiatric evidence. The claimant’s expert opinion was rejected because it had been formed on limited information and was less cogent.
2. Section 58 of the Mental Health Act 1983, read compatibly with the Convention under section 3 of the Human Rights Act 1998, permitted treatment where the statutory conditions were satisfied. The fact that the claimant had capacity and gave a reasoned refusal, including on religious grounds, was highly significant but did not automatically override the statutory regime. The approach in R (Wilkinson) v Broadmoor Special Health Authority [2002] 1 WLR 419 was case-sensitive and did not require an absolute rule against treatment of capacitated detained patients.
3. Article 3 was not engaged because the proposed treatment did not reach the minimum level of severity. Its side effects were limited, flexible treatment arrangements were available, and the claimant had previously benefited from the medication. In any event, the medical necessity for treatment had been convincingly established by reference to the factors identified in R (N) v M [2003] 1 WLR 562.
4. Even assuming Article 8(1) was engaged, the interference was in accordance with law, necessary for the protection of health and proportionate. Applying the two-stage best-interests approach discussed in Re S (Adult Patient’s Best Interests) [2000] 2 FLR 389, the treatment accorded with responsible and competent professional opinion and was the single best option on the evidence.
5. The Article 14 claim failed. The claimant and the patient in Re W [2002] MHLR 411 were not in analogous situations: the claimant was lawfully detained and had a treatable disorder, whereas the comparator was not detained under the Act and did not satisfy the relevant treatability criterion.

Permission to appeal was refused. The court noted that any future certificate or treatment decision would depend on the facts then existing.