Regina v. Ashworth Hospital Authority (Appellants) and another ex parte B (FC) (Respondent)

Section 63 of the Mental Health Act 1983 authorises treatment without consent for any mental disorder from which a detained patient is suffering. Its operation is not confined to the form of disorder recorded in the application, order or direction authorising detention.

Classification principally determines the authority to detain and the applicable detention criteria. It does not define the permissible scope of treatment. Patients remain protected by the statutory safeguards for specified treatments, the law of negligence and Convention rights. A responsible medical officer or tribunal should nevertheless reclassify a patient when satisfied that the recorded classification should be changed.

The respondent was detained at Ashworth Hospital under a hospital order and an indefinite restriction order. He was classified as suffering from mental illness. After his illness was controlled by medication, he was transferred to a ward whose therapeutic regime addressed personality-disordered behaviour, although he had not been reclassified as suffering from psychopathic disorder.

Sir Richard Tucker dismissed the respondent’s judicial review claim. The Court of Appeal allowed his appeal and declared that treatment without consent for psychopathic disorder was unlawful unless and until a Mental Health Review Tribunal reclassified him under section 72(5) of the Mental Health Act 1983: R (B) v Ashworth Hospital Authority [2003] EWCA Civ 547; [2003] 1 WLR 1886.

The Hospital appealed. The issue was whether section 63 permitted treatment for any mental disorder from which a detained patient suffered or only for the particular form of disorder recorded for the purpose of detention.

1. Appeal allowed unanimously. Baroness Hale of Richmond delivered the leading opinion. Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers and Lord Carswell agreed. The Court of Appeal’s declaration was set aside and Sir Richard Tucker’s order dismissing the claim was restored.

2. Per Baroness Hale, the natural meaning of section 63 of the Mental Health Act 1983 is that a patient may be treated without consent for any mental disorder from which the patient is suffering, and for treatment ancillary to it. The section does not say “the form of” mental disorder. Elsewhere, Parliament used that expression when referring to classification and reclassification. Treatment for a physical disorder still requires consent or another lawful justification, including necessity where the patient lacks capacity.

3. The wider statutory scheme confirmed that construction. Section 63 applies to several categories of patient who have no classification within the four specified forms of disorder. Giving identical words different meanings according to the source of the detention would be surprising. Statutory history also showed that classification concerns admission, continued detention, renewal and discharge. It does not determine what treatment may be given in hospital.

4. The restricted-patient provisions strongly supported that conclusion. A restricted patient could be reclassified only after a Mental Health Review Tribunal hearing, which might take considerable time. Parliament was unlikely to have intended necessary treatment to be withheld in the meantime. Classification under section 72(5) was subsidiary to the tribunal’s discharge jurisdiction.

5. The contrary construction would provide haphazard protection. Psychiatric diagnoses may change, different disorders commonly coexist, and it may be difficult to separate illness from underlying personality traits. Appropriate protection is instead supplied by sections 57 and 58, the law of negligence and remedies under articles 3 and 8 of the Convention. Article 5 regulates the justification and place of detention, rather than the suitability of particular treatment or ward conditions.

6. Although sections 16(1) and 72(5) use permissive language, Baroness Hale considered that the responsible medical officer or tribunal should reclassify when satisfied that the recorded form or forms of disorder should be changed. The House left open whether a combination of classified disorders may satisfy the statutory requirement that the disorder be of a nature or degree making hospital treatment appropriate.

1. House of Lords: The Hospital’s appeal was allowed unanimously. The Court of Appeal’s declaration was set aside and the order dismissing the judicial review claim was restored: [2005] UKHL 20.

2. Court of Appeal: The patient’s appeal was allowed. The court declared that treatment without consent for psychopathic disorder was unlawful unless and until a Mental Health Review Tribunal classified him as suffering from that disorder under section 72(5) of the Mental Health Act 1983: [2003] EWCA Civ 547; [2003] 1 WLR 1886.

3. High Court: Sir Richard Tucker dismissed the judicial review claim in July 2002. No citation is stated in the judgment.