B, R (on the application of) v SS (Responsible Medical Officer) & Ors

Compulsory treatment under section 58 of the Mental Health Act 1983 does not require an additional threshold that treatment be necessary to protect the public or prevent serious harm to the patient. Capacity is important but is not the decisive factor where the statutory detention-and-treatment scheme applies. For Article 3, treatment will not ordinarily be inhuman or degrading where therapeutic necessity is convincingly established. For Article 8, the statutory safeguards must be satisfied and the treatment must also meet the wider common-law requirement of being in the patient’s best interests. The SOAD must make a genuinely independent assessment. Judicial review should be proportionate and should not routinely involve extensive oral medical evidence.

The appellant was detained at Broadmoor Hospital under sections 37 and 41 of the Mental Health Act 1983 after conviction for rape. He had been diagnosed with Bipolar Affective Disorder and refused anti-psychotic medication and a mood stabiliser. His responsible medical officer obtained the certificate required by section 58 and sought to administer medication compulsorily.

Silber J had earlier dismissed related proceedings as academic but expressed the view that section 58 was compatible with the Convention: [2005] EWHC 86 (Admin). Charles J dismissed the fresh judicial review claim, held that the appellant lacked capacity, found the treatment medically necessary and discharged the injunction restraining treatment. The appeal concerned capacity, the alleged academic nature of the issues, the need for a public-protection or serious-harm threshold, medical necessity and the proper judicial review procedure.

Appeal dismissed. The court held that the proposed compulsory medication was lawful under English law and did not infringe the Convention.

1. A patient lacks capacity to consent to treatment if unable to appreciate the likely effects of having or not having it. The judge was entitled to find that the appellant could not realistically accept the possibility of mental illness and therefore could not process the relevant information. The additional psychiatric evidence was correctly excluded under Ladd v Marshall.
2. The appeal was not dismissed as academic. Bipolar Affective Disorder was intermittent, and the appellant might regain capacity. It was therefore appropriate to decide the Convention issues likely to arise on that eventuality.
3. The proposed additional threshold was rejected. The Mental Health Act 1983 establishes an integral package of detention and treatment. It would be illogical to require a higher standard before administering treatment where detention for treatment was itself justified by the need to protect the patient or others. Capacity is relevant, but not the critical factor.
4. For Article 3, the severity of the proposed medication was unlikely to engage the Article. In any event, therapeutic necessity had been convincingly established. The court must satisfy itself on the evidence and cannot simply defer to the RMO or SOAD.
5. Article 8 was engaged irrespective of capacity. Its justification required consideration of legality, legitimate aim and necessity in a democratic society. Section 58 provided the statutory safeguards, but section 58(3)(b)’s likelihood criterion was not identical to the wider best-interests requirement. Less invasive alternatives and the distress caused by force were relevant. The SOAD had to make a truly independent assessment, rather than merely decide that the RMO’s view was not manifestly unsound.
6. Where the real issue was detention, the matter should ordinarily be referred first to a Mental Health Review Tribunal. A treatment challenge required an arguable case before extensive proceedings or cross-examination of medical witnesses were ordered.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the decision that the proposed treatment was lawful.
2. Queen's Bench Division (Administrative Court), Charles J, dismissed the judicial review claim, held that the appellant lacked capacity, and discharged the injunction subject to a stay pending appeal.
3. Queen's Bench Division (Administrative Court), Silber J, in related earlier proceedings, dismissed the claim as academic but expressed substantive views on section 58 and Convention compatibility in [2005] EWHC 86 (Admin).