JB, R (on the application of) v Resonsible Medicial Officer

Forcible treatment under the Mental Health Act 1983 is not confined to the diagnostic classification on which detention was ordered. The court asks whether medical or therapeutic necessity for the proposed treatment has been convincingly established for the mental disorder from which the patient suffers. This is a single composite value judgment, not sequential proof of a precise diagnosis, attribution of treatment to that diagnosis and likely success. Diagnostic uncertainty, co-morbidity, risks, alternatives, likely benefit, adverse consequences, best interests and distress caused by force may all be relevant. The SOAD makes an independent medical decision under section 58(3)(b). The court conducts a full merits review, although written evidence may suffice and appropriate weight should be given to treating clinicians.

JB was detained in Ashworth Hospital under Crown Court orders under sections 37 and 41 of the Mental Health Act 1983, classified as suffering from psychopathic disorder. His responsible medical officer proposed compulsory antipsychotic medication, and SOADs issued certificates under section 58(3)(b).

JB challenged the treatment by judicial review, arguing that it was treatment for mental illness, that he suffered from no relevant mental disorder, and that it violated Articles 3 and 8. The Mental Health Review Tribunal rejected his application for discharge and accepted continued detention for psychopathic disorder, but declined to reclassify him as suffering from mental illness. Collins J dismissed the claim on 20 May 2005. The appeal concerned the meaning of medical necessity, the need for a precise diagnosis, the effect of the Tribunal’s decision and the intensity of the court’s review.

The appeal was dismissed unanimously. Auld LJ gave the leading judgment, with Scott Baker LJ and Neuberger LJ agreeing.

1. Scope of treatment powers. The classification of mental disorder supporting detention does not determine the disorder for which treatment may be given. The reasoning in R(B) v Ashworth Hospital Authority [2005] 2 WLR 695, concerning section 63, applied equally to treatment under sections 57 and 58. The relevant question is whether the patient suffers from mental disorder for which the proposed treatment is medically necessary.
2. Three-stage decision-making. Section 58(3)(b) involves initiation by the RMO, independent medical certification by the SOAD having regard to the likelihood of therapeutic benefit, and a subsequent judicial determination of lawfulness. The SOAD’s task is medical and is undertaken on the Bolam principle. Convention compliance is for the court, which must conduct the full merits review required by R(Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419.
3. Medical necessity. The court’s task is a single, composite value judgment or forecast. It is not necessary to establish, step by step, a precise diagnosis, attribution of treatment to that diagnosis and a high degree of certainty that treatment will succeed. Diagnosis, seriousness, risk, likely benefit, adverse consequences, alternatives, best interests and distress caused by forcible treatment may all be relevant. No fixed evidential standard governs the assessment. The court expressed unease about the obiter suggestion in B v Dr SS & Ors [2005] EWHC 86 (Admin) that the test lay between the criminal and civil standards.
4. Application and procedure. Collins J had sufficient evidence to find psychopathic disorder and a convincing therapeutic necessity, including evidence that similar medication had previously alleviated the appellant’s condition. He was not required to decide whether mental illness was also present. The MHRT’s uncertainty about that issue was not determinative. A full merits review does not require oral evidence in every case; written evidence was sufficient here, particularly as no party sought oral medical evidence. The court should nevertheless give particular regard to those responsible for the patient’s care and should not be astute to overrule an RMO’s plan certified by a SOAD.

1. Court of Appeal (Civil Division): Appeal dismissed; [2006] EWCA Civ 961.
2. High Court, Administrative Court: Collins J dismissed JB’s judicial review claim on 20 May 2005.