"B" v Haddock & Ors

Permission to appeal may be granted where a case concerns a difficult and developing area of law and important issues arise which are at least arguable, even if the court has reservations about the appeal’s ultimate prospects. The grant of permission does not determine the merits. The ruling identified, but left unresolved, questions about judicial review of conflicting psychiatric expert evidence and the legal test for forcible psychiatric treatment.

The applicant, detained indefinitely under the Mental Health Act 1983, challenged the non-consensual administration of depot antipsychotic medication. A second-opinion doctor had certified the treatment under section 58. Independent psychiatric and psychological evidence disputed its necessity and appropriateness. Collins J rejected the human-rights claim on the documents. The applicant sought permission to appeal, raising issues concerning the scope of Administrative Court review, conflicting expert evidence, the test for forcible treatment, and the relevance of a contemporaneous Mental Health Review Tribunal decision.

Lord Justice Scott Baker gave the principal judgment. Lord Justice Neuberger agreed with his reasoning and also granted permission.

1. Permission granted. Although the court had reservations about whether the applicant could ultimately show that Collins J had reached the wrong conclusion, the case concerned a difficult and developing area of law. Several important issues arose at least arguably. That was sufficient to justify permission to appeal.
2. Issues for the full appeal. The proposed appeal raised the proper nature of the Administrative Court’s review where expert opinions conflict, including the relationship between R (Wilkinson) v Broadmoor Special Hospital Authority [2002] WLR 419 and R(N) v M & Ors [2003] 1 WLR 562. It also raised whether Herzegfalvy v Austria [1993] 15 EHRR 437 required a two-stage test for forcible treatment, or whether the approach suggested in the later decision was effectively one-stage.
3. Merits reserved. The court did not decide the legality of the medication, the correct test for treatment without consent, or the significance of the contemporaneous tribunal decision. It noted that the dispute between the expert reports was sufficiently clear from the documents and that neither party contended that oral evidence was necessary.
4. Order. The application for permission to appeal was granted. The appeal was to be heard before three Lords Justices, with a time estimate of one to one-and-a-half days.

• Court of Appeal (Civil Division). In [2005] EWCA Civ 1726, permission to appeal was granted and the appeal was directed to be heard before three Lords Justices.
• High Court. Collins J held that the non-consensual administration of medication did not breach the applicant’s human rights.