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

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    26.  It could not at that stage, however, have been thought that classification or reclassification had anything to do with what medical treatment might be given in hospital, because, surprising as it might seem, there was nothing in the 1959 Act dealing with what, if any, medical treatment might be given to the various kinds of patients detained under its provisions. The view taken was that everyone detained with a view to treatment could be treated, against their will if necessary, as the consultant psychiatrist responsible for their care thought appropriate: see DHSS and others, Review of the Mental Health Act 1959, 1978, Cmnd 7320, para 6.14. The 1983 Act clarified that position (in terms which are somewhat more permissive to the RMO than those recommended in the Review: see pp 80 - 81). It enacted the general power in section 63, defined in section 56 the patients to whom it applied, and provided safeguards for the most controversial treatments specified in or under sections 57 and 58. It did not, as we have seen, expressly link section 63 to the classified form of disorder, although it could easily have done so.

    27.  The classifications remained important for the authority to detain, but in a rather different way. The age limits in the 1959 Act were repealed; instead, the criteria for section 3 admissions for treatment and hospital orders for the lesser forms of disorder included a 'treatability' test (in sections 3(2) and 37(2)(a), paras 13 and 14 above); the same treatability test had now to be addressed at reclassification 'downwards' under section 16 (see section 16(2), para 17 above) and was included in the criteria for renewal under section 20(4); this applies to all four forms of disorder, but if the patient suffers from mental illness or severe mental impairment, it is an alternative that, if discharged, he would be unlikely to be able to care for himself, or obtain the care he needs or guard himself against serious exploitation; that alternative is also relevant to an MHRT's discretionary power to discharge such patients: see section 72(2)(b).

    28.  Fifthly, and following on from the above, the RMO has never had power to reclassify a restricted patient: section 16, and its predecessor, did not apply. The obvious reason for this was that the classification was irrelevant to the continued authority to detain. This did not have to be renewed every so often, but continued until the patient was discharged, usually by the Home Secretary. The MHRT had no power to discharge or reclassify restricted patients under the 1959 Act; instead they could be referred to the tribunal for its advice: see 1959 Act, section 66(6), (7), (8)). Under the 1983 Act, the tribunals' powers of discharge and reclassification were extended to restricted patients, albeit with some important modifications: see sections 73 and 74. For the first time, therefore, it became possible to reclassify the form of mental disorder from which a restricted patient was suffering. But the fact that a restricted patient can only be reclassified after an MHRT hearing reinforces the conclusion that classification has no bearing on treatment. Patients may only apply at defined intervals: see section 70. The Home Secretary may refer a restricted patient at any time: see section 71. But the jurisdiction of the tribunal is aimed at discharge, with classification an after-thought if the patient is not discharged: see section 72(5). The time taken to gather the necessary reports and evidence and to arrange a hearing can be considerable. It is unlikely that Parliament intended that the patient could not be treated without his consent in the meantime, particularly as the patient may find ways of delaying the tribunal hearing.

    29.  For all those reasons, I conclude that the words of section 63 mean what they say. They authorise a patient to be treated for any mental disorder from which he is suffering, irrespective of whether this falls within the form of disorder from which he is classified as suffering in the application, order or direction justifying his detention.

Policy

    30.  As I said earlier, compulsory patients are a vulnerable group who deserve protection from being forced to accept inappropriate treatment. But restricting their treatment to that which is designed for their 'classified' disorder is so haphazard as to be scarcely any protection at all. It is obviously much more serious if the patient is given the wrong kind of medication, or the wrong kind of surgery, than it is if the patient is kept on a ward in the wrong kind of milieu. This patient was at times thought to be suffering from one kind of mental illness, for which one family of drugs would be appropriate, and at times thought to be suffering from another kind of mental illness, for which a different family of drugs would be appropriate. Similarly, ECT might have been thought appropriate to one kind of mental illness but not to the other. His classification of mental illness would not have protected him from the wrong kind of drugs or the inappropriate use of ECT. But section 58 is expressly designed for that purpose.

    31.  Secondly, psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. As this case also shows, co-morbidity is very common: see also Mental Health Act Commission, Tenth Biennial Report 2001 - 2003, Placed amongst strangers, para 7.30, citing Blackburn, Logan, Donnelly and Renwick (2003), para 20 above. The Commission, at para 7.31, observes (quoting the researchers, at 114):

    "If there is widespread co-morbidity between personality disorders and mental illness irrespective of Mental Health Act classification, then 'the dichotomy imposed by legal classification is misleading and obscures the multiple problems shared by patients in the two categories'."

    It is not easy to disentangle which features of the patient's presentation stem from a disease of the mind and which stem from his underlying personality traits. The psychiatrist's aim should be to treat the whole patient. In this case, the patient's mental illness having been stabilised on medication, the aim was to address the underlying features of his personality which were getting in the way of his transfer back to a less restrictive setting. Once the state has taken away a person's liberty and detained him in a hospital with a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs. It would be absurd if a patient could be detained in hospital but had to be denied the treatment which his doctor thought he needed for an indefinite period while some largely irrelevant classification was rectified.

    32.  This problem would be even worse if, as the respondent contends, the patient can only be classified as suffering from a particular form of mental disorder if that form is, on its own, 'of a nature or degree warranting the patient's detention in hospital'. On that argument, the patient could be suffering from mental illness, which was sufficiently controlled on medication not to require hospital treatment, and have a personality disorder causing behaviour which made it impossible to discharge him into the community, but was not such as to require him to be treated in hospital rather than prison; but he could not be classified as suffering from either and could not therefore be treated for either, notwithstanding that his overall mental disorder was such as to make it highly appropriate for him to continue to receive treatment in hospital. My construction of section 63 makes it unnecessary to resolve this issue and I would prefer not to do so in the present case. In my view, however, the language of sections 3(2)(a) and 37(2)(a)(i) (paras 13 and 14 above) suggests, at the very least, that it may be the combination of classified forms of disorder which makes it appropriate for the patient to be in hospital.

    33.  That is not, of course, to say that where an RMO is satisfied that the patient should be reclassified under section 16 he need not do so. Where the patient is reclassified 'upwards', to include mental illness as well as or instead of psychopathic disorder, the test to be applied at his next renewal or by an MHRT will be affected. Where he is reclassified 'downwards', from mental illness to psychopathic disorder, the RMO must go on to consider the treatability test and discharge him if it is not met. Reclassification also triggers a right of application to an MHRT: see section 66(1)(d). Although section 16(1) (and section 72(5)) are framed in permissive terms, in my view the RMO (or the MHRT) should reclassify if they are satisfied that the recorded form (or forms - the singular includes the plural) of disorder should be changed.

Human rights

    34.  It is not, and could not be, argued that this patient's treatment was in breach of his rights under the European Convention. Rather, it is argued that there is the potential for such breaches unless section 63 is read in the way for which the respondent contends. The detention of a patient in a psychiatric hospital cannot be justified under article 5(1)(e) of the Convention unless the three criteria laid down in Winterwerp v The Netherlands (1979) 2 EHRR 387, 403, para 39, are satisfied:

    "In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."

    Further, if a person is detained because he is of unsound mind within the meaning of article 5(1)(e) he must be detained in a place appropriate for that purpose and not, for example, in a prison: see Aerts v Belgium (1998) 29 EHRR 50. But beyond that, article 5(1)(e) is not concerned with suitable treatment or conditions: see Ashingdane v United Kingdom (1985) 7 EHRR 528, 543, para 44. Unnecessary detention in the stricter conditions of Broadmoor, rather than in the more liberal regime of a local psychiatric hospital, to which the patient would have been transferred had there not been opposition from the nursing unions, did not mean that his detention was arbitrary or for an ulterior purpose: it was still justified under article 5(1)(e).

    35.  If that is so in a case such as Ashingdane's it must a fortiori be so in a case such as this, where the patient complains of transfer between one ward and another in the same hospital. Furthermore, the doctors were not transferring him for any arbitrary or ulterior purpose but in order to place him in the milieu which they considered would be best for his condition. The conditions of detention, and the treatment received in the hospital, must be considered, if at all, under articles 3 or 8.

    36.  There is, of course, a not inconsiderable risk that the treatment of a patient in a psychiatric hospital will be in breach of either of those articles. Nevertheless, the European Court of Human Rights has held that 'as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading', although the court had to satisfy itself that the medical necessity had convincingly been shown to exist: see Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82. Even relatively minor medical treatment, if compulsory, may engage article 8: see J and others v Switzerland (Application No 22398/93) 5 April 1995. But in Herczegfalvy medical necessity was also an answer to the patient's allegation that his treatment was in breach of article 8: para 86.

    37.  Nothing that happened to this patient came anywhere close to being a breach of either of those articles. But if it had done, for the reasons given earlier, his classification would have given him no protection against treatment which was not a therapeutic necessity under the Herczegfalvy principle. Much better protection is given by the specific safeguards in sections 57 and 58; by the ordinary law of negligence, which protects the patient against medical treatment which is not considered appropriate by a respectable body of medical opinion; and by the Human Rights Act 1998, which gives the patient remedies against treatment which does not comply with his Convention rights. Mr Gordon QC, for the respondent, can point to nothing in the Strasbourg jurisprudence which requires prior safeguards against the inappropriate treatment of patients who are lawfully detained under the Convention. But if there were to be such a requirement, classification would not be an adequate safeguard. It would be far too blunt an instrument.

    38.  For all those reasons, there is no need to read section 63 as Mr Gordon would have us read it in order to make it compatible with the Convention rights.

Conclusion

    39.  I would therefore allow this appeal and restore the order of Sir Richard Tucker dismissing the claim. It follows that the declaration made by the Court of Appeal should be set aside.

LORD CARSWELL

My Lords,

    

 
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