K, R (on the application of) v Hughes

When proceedings seeking an injunction become academic, the court will ordinarily terminate them. An exception for points of general public importance should be exercised cautiously. The court should have a live factual context, appropriate expert evidence and, where the validity of subordinate legislation is challenged, proper notice to the relevant minister. It is inappropriate to decide broad questions about medical treatment, scientific knowledge or a patient’s future condition on limited evidence directed to an issue that has ceased to be live. A claimant has no right to an adjournment merely to obtain evidence for newly raised general issues. Where the immediate threat has ended, proceedings may be stayed with liberty to apply so that any renewed application can be determined on the patient’s then condition, wishes, medical opinions and prevailing knowledge.

The claimant was detained under section 3 of the Mental Health Act 1983 and objected to proposed electroconvulsive therapy despite having capacity. Proceedings were commenced to restrain its administration, and an interim order was made. After the claimant’s condition improved, the responsible medical officer concluded that ECT was no longer necessary and the second-opinion certificate was discharged.

The claimant sought to amend the claim to raise wider questions concerning the lawfulness of ECT, the construction of sections 58 and 62 of the Act, the validity of regulation 16 of the Mental Health Regulations 1983, and compatibility with Articles 2, 3 and 8 of the Human Rights Act. The central issue was whether those general questions should be determined despite the proceedings having become academic.

1. Disposition. The claim was dismissed against Dr Besson because he had completed his statutory function and his second-opinion certificate had been discharged. As against Dr Hughes and the Trust, the proceedings were stayed generally, with liberty to apply.
2. Injunction proceedings that have become academic will ordinarily be terminated. Although Salem recognised that general points of public importance may sometimes justify continuation, the exception was not appropriate here.
3. The proposed issues concerned the general merits and lawfulness of ECT, future scientific knowledge, possible alternative treatments, the construction of sections 58 and 62 of the Mental Health Act 1983, regulation 16 of the Mental Health Regulations 1983, and Articles 2, 3 and 8 of the Human Rights Act. The court could not properly determine them on evidence directed to the claimant’s former individual circumstances. It would be inappropriate to make general findings about a medical treatment or to predict the claimant’s future condition in an area where mental health may fluctuate.
4. A proper determination would require a live case, suitable expert evidence addressing the general issues and, because the validity of regulation 16 was challenged, notice to the Secretary of State. The claimant had no right to an adjournment to obtain that evidence, particularly where the defendants would incur substantial expense and the issue did not appear pressing.
5. The responsible medical officer’s undertaking not to administer ECT without 48 hours’ notice, save where immediately necessary to save the claimant’s life, provided adequate protection. If ECT were later proposed, any application for interim relief could be decided on the claimant’s then condition, wishes, medical opinions and prevailing psychiatric knowledge and practice.