Legal Updates

A second opinion appointed doctor (SOAD) should give adequate reasons for his opinion in writing when certifying under section 58 of the Mental Health Act 1983 (MHA) that a detained patient should be given medication against his or her will.

Those reasons should be disclosed to the patient unless such disclosure would be likely to cause serious harm to the physical or mental health of the patient or of any other person. The Human Rights Act 1998 (HRA) required that fairness should be shown in the process. That was the decision on 25 April 2002 in the case of R v Dr Graham Feggetter and the Mental Health Act Commission, ex parte John Wooder.

C (who suffers from a psychiatric illness) applied for judicial review of a decision of a SOAD under Part IV of the MHA that he should be given medical treatment for a psychiatric condition against his will. In January 1985 C killed a man and was convicted of manslaughter on grounds of diminished responsibility and made subject to orders under sections 37 and 41 of the MHA without restriction of time. From October 1985 C had been treated with a range of anti-psychotic medication with very unpleasant side effects. C withdrew his consent to treatment, and the SOAD certified that medication should be given without his consent.

C's solicitors requested reasons for the decision but the Mental Health Act Commission refused to provide them and instead referred them to C's responsible medical officer (RMO) for an explanation. C applied to the court for two declarations:

that fairness demanded that a SOAD should provide him with written and adequate reasons when certifying that he should be given medication against his will under section 58 of the MHA and

that fairness required that when a section 8 certificate was sought, the patient's RMO's report to the SOAD should be disclosed to the patient.

The three-man court of appeal granted the first declaration, but refused the second, saying:

the decision to administer medical treatment to a competent non-consenting adult patient was an interest so highly regarded by the law that fairness required reasons to be given as of right;

parliament had recognised the importance of giving reasons when a patient was first detained for medical treatment for his disorder and when a mental health review tribunal made a decision affecting a patient. With the coming into force of the HRA, the court now declared that fairness required a decision by a SOAD overriding the autonomy of a competent adult patient to be accompanied by reasons;

in future the SOAD should send a statement of reasons to the RMO or to the hospital. This should be disclosed to the patient unless the SOAD or the RMO properly considered that such disclosure would be likely to cause serious harm to the physical or mental health of the patient or any other person;

the first declaration sought was granted with the addition that the reasons should be disclosed to the patient unless the serious harm exemption applied;

the court could not express any view on the second declaration (i) due to procedural reasons (C's RMO had not been served with the application and was not represented as an interested party) and (ii) because the court had not seen the RMO's report to the SOAD.

Comment: This case changes the process by ensuring that SOADs send a statement of reasons to the RMO or to the hospital, which should be disclosed to the patient unless the SOAD or the RMO consider that this would be likely to cause serious harm to the physical or mental health of the patient or any other person. The change was foreseeable in terms of the element of fairness imposed by the HRA, that a patient should know why his lack of consent to treatment is being overridden.

Bernadette Livesey

Human Rights Solicitor