B, R (on the application of) v Dr. SS & Ors

An academic public-law claim should ordinarily be heard only where there is a good reason in the public interest. Relevant considerations include factual disputes, fact-sensitivity, the absence of practical benefit, the prospect of a more authoritative decision and the allocation of judicial resources.

A detained mental-health patient’s capacity and refusal of treatment are very important considerations, but they do not automatically prevent compulsory treatment under Mental Health Act 1983, section 58(3)(b). Medical necessity may justify treatment even where treatment is not required solely to protect the patient or others. Articles 3, 8 and 14 of the Convention do not require a different result on the assumed facts.

The claimant was detained at Broadmoor Hospital under sections 37 and 41 of the Mental Health Act 1983. He had capacity to refuse proposed anti-psychotic medication. The responsible medical officer and second opinion appointed doctor had authorised treatment under section 58(3)(b).

The challenge to the certificate and proposed treatment became academic when the certificate expired and the responsible medical officer stated that he did not presently intend to treat the claimant without consent. The remaining claim challenged the compatibility of section 58(3)(b) with Articles 3, 8 and 14 of the Convention, and sought to pursue that issue despite its academic nature.

1. Academic claim. Permission was granted, but the substantive claim was dismissed because it was academic. The starting point was the cautious approach in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450. No different approach applied merely because a declaration of incompatibility was sought. The claim involved a serious factual dispute, was highly fact-sensitive, would confer no practical benefit, was unlikely to recur in a materially similar form, and might be overtaken by Strasbourg proceedings or legislative change.
2. Capacity and section 58. The statutory threshold for capacity is low. A patient may have capacity despite limited insight, imperfect understanding or an irrational refusal, provided the statutory inability to understand, retain, use or weigh relevant information is not established. Capacity and refusal therefore attract very significant weight, but refusal does not automatically override the responsible medical officer’s and SOAD’s views. Section 58(3)(b) permits treatment where the SOAD independently certifies that, having regard to the likelihood of alleviating or preventing deterioration, treatment should be given.
3. Article 3. Treatment against a capable patient’s wishes does not automatically constitute torture or inhuman or degrading treatment. Article 3 requires a fact-sensitive assessment of severity, including the nature, duration and effects of treatment. Further, therapeutic necessity, convincingly shown, may prevent treatment from being regarded as inhuman or degrading. The suggested threshold confined to protection from serious harm was rejected.
4. Article 8. Treatment interferes with Article 8(1), but section 58(3)(b) is directed to protection of health, applies only within a limited detained-patient regime, contains safeguards and provides for judicial review. On the assumed facts it was in accordance with law, necessary in a democratic society and proportionate under the structured test in Daly [2001] 2 AC 532.
5. Article 14. The claimant was not in an analogous position to persons without the relevant mental disorder and detention status. Alternatively, the difference in treatment had objective and reasonable justification and was proportionate. The discrimination claim therefore failed.
6. Final order. The claim was dismissed. The judge additionally recommended early case-management hearings for challenges to SOAD certificates, to permit a fair and expedited determination before treatment authorisation became ineffective.

First-instance judicial review claim. The judgment states that the principal challenges to the responsible medical officer’s and SOAD’s decisions had previously been dismissed by consent after the certificate became ineffective. The remaining claim against the Secretary of State was dismissed.