B v Responsible Medical Officer, Broadmoor Hospital & Ors

Part IV of the Mental Health Act 1983 creates a statutory test for compulsory treatment of detained patients, whether or not they have capacity. That test is distinct from the common-law best-interests test, although common-law principles and autonomy remain relevant considerations. A capacitated refusal is important but not determinative.

Article 3 is engaged only if the proposed treatment reaches the requisite severity. If it does, therapeutic or medical necessity must be convincingly shown. Article 8 requires the orthodox three-stage assessment under article 8(2), rather than automatic application of the Herczegfalvy test. The court must determine these issues itself, while giving appropriate weight to the treating doctors’ evidence.

The claimant was detained at Broadmoor Hospital under sections 37 and 41 of the Mental Health Act 1983. His responsible medical officer proposed compulsory antipsychotic medication and a mood stabiliser. A second opinion appointed doctor certified the treatment under section 58(3)(b).

The claimant challenged the decisions on four grounds, including capacity, the Convention rights under articles 3 and 8, the statutory test, and the role of the second opinion doctor. The court also had to determine whether the claimant lacked capacity and whether the proposed treatment was medically or therapeutically necessary.

1. Outcome. The claims for judicial review on all four grounds were dismissed. The injunction made in the earlier proceedings was discharged.
2. Statutory scheme. Sections 63 and 58 of the Mental Health Act 1983 authorise compulsory treatment of detained patients, including patients who have capacity and refuse treatment. Under section 58(3)(b), the SOAD must distinguish between a patient who lacks capacity and a capable non-consenting patient, but the statutory decision then turns on the likelihood that treatment will alleviate or prevent deterioration. The statutory test supplants or suspends the common law when it applies. Common-law autonomy and best-interests principles remain relevant guidance, but they do not replace the statutory test.
3. Capacity and refusal. Capacity is assessed by whether impairment or disturbance of mental functioning prevents the patient from comprehending and retaining material information, believing it, or using and weighing it. The claimant could understand and retain information but could not realistically accept the diagnosis underlying the treatment decision. He therefore lacked capacity. In any event, capacity and a capacitated refusal are important factors, not determinative conditions.
4. Article 3. The court must first decide whether the proposed treatment reaches the minimum level of severity required by article 3. Only then does the Herczegfalvy question arise. If the threshold is reached, the court must itself determine whether therapeutic or medical necessity has been convincingly shown. The court should adopt an overall balancing assessment, taking account of the treatment’s purpose, severity, alternatives, capacity, likely reactions, medical evidence and the patient’s circumstances. The proposed treatment was unlikely to reach the article 3 threshold and, in any event, its therapeutic or medical necessity was convincingly shown.
5. Article 8. Compulsory treatment engaged article 8(1), whether or not the patient had capacity. Justification depended on the orthodox questions under article 8(2): whether the interference was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. The Herczegfalvy test did not automatically govern article 8(2). The statutory test was satisfied and the treatment was justified and in the claimant’s best interests.
6. Medical evidence. The court was entitled to place substantial weight on the RMO’s evidence because of his day-to-day knowledge of the patient and his care. The assessment should not be dictated by rigid diagnostic criteria for relapse or remission. A rounded and pragmatic evaluation of the patient’s illness, behaviour, treatment history, risks, benefits and likely consequences of compulsion was required.
7. Procedure. A SOAD should ordinarily be joined where his certificate is challenged or a binding order concerning it is sought. The court granted permission against the SOAD and dismissed the claim against him. The judgment also indicated that experts’ meetings, early consideration of oral evidence and properly focused directions may narrow issues in future cases.