Doctor who gives second opinion must give reasons for forced treatment

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