Ipsofactoj.com: International Cases [2002] Part 14 Case 2 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Wooder

- vs -

Dr. Feggetter

LORD JUSTICE POTTER

LORD JUSTICE BROOKE

LORD JUSTICE SEDLEY

25 APRIL 2002


Judgment

Lord Justice Brooke

  1. This is an application by the claimant John Wooder for judicial review of a decision of Dr Craig Stewart Feggetter, a Second Opinion Appointed Doctor (“SOAD”) under Part IV of the Mental Health Act 1983 (“the 1983 Act”), to the effect that he should be given medical treatment for a psychiatric condition against his will. The decision in question was made on 25th October 2000. On 30th November 2000 Sir Richard Tucker, sitting as a deputy high court judge, refused permission to apply for judicial review. On 19th March 2001 Henry LJ granted appeal against that decision on one of the points Mr. Wooder sought to argue, and also granted him permission to seek additional relief. He directed that the full hearing of the application for judicial review should be reserved to this court.

  2. The nature of the relief now being sought is conveniently set out in the “amended details of remedies sought” which were lodged at this court on 20th February 2002. Mr. Wooder now seeks:

    (i)

    A declaration that fairness demands that a SOAD should provide him with written and adequate reasons when certifying under section 58 of the 1983 Act that he should be given medication against his will, and furthermore that this is a general requirement of fairness applicable to all section 58 decisions;

    (ii)

    A declaration that fairness requires that when a section 58 certificate is sought, the patient’s Responsible Medical Officer (“RMO”)’s report to the SOAD must be disclosed to the patient in order that the patient can address its contents when interviewed by the SOAD.

  3. The facts are conveniently set out in a statement of facts lodged with Mr. Wooder’s application. He is now aged 52. He moved to the United States with his mother when he was 11 years old. In 1969 he joined the US Army as a driver and was posted to Korea. In 1970 he was attacked by other recruits. In this attack he suffered a head injury and was rendered unconscious. He was honourably discharged from the US Army in 1972. Since his assault he has complained of dizziness, nystagmus, tinnitus, vertigo, hearing loss, balance problems and temporal lobe epilepsy.

  4. In about 1980 he became convinced that he had been hypnotised shortly before his discharge from the army and subconsciously implanted with codes which in turn are activated by experiences he has with other people. He has consistently requested that he should be hypnotised in order to debrief him of these codes.

  5. In June 1984 he returned to London, hoping to establish a new life for himself in this country. Unhappily an incident occurred in a shop in New Bond Street in January 1985, when he killed a man. He believed that a shop assistant was acting in a dismissive manner towards him and he therefore stabbed him in the neck with a knife. In July 1985 he was convicted of manslaughter on grounds of diminished responsibility and made subject to orders under sections 37 and 41 of the 1983 Act without restriction of time.

  6. On conviction he was admitted to Broadmoor Hospital. He was originally not prescribed any medication, but since October 1985 he has been treated with a range of anti-psychotic medication, and also medication to treat its side effects. This treatment started after it was said that he had threatened to stab another patient. The only act of violence actually recorded against him is the January 1985 offence.

  7. He was admitted to Three Bridges Regional Secure Hospital on trial leave from Broadmoor Hospital on 22nd October 1991, and was formally transferred there on 6th August 1993. He has lived there ever since. He is said to retain the delusional system which was operative at the time of the offence in 1985. His advisers have therefore cast doubt on the efficacy of his treatment with medication.

  8. The side-effects of the anti-psychotic medication of which he has made complaint are very unpleasant. Medication prescribed to ameliorate them has little impact.

  9. He has consistently complained of physical conditions that are related to the 1970 assault. In this context he has asked that his condition might be investigated in the absence of anti-psychotic medication, in order to establish how his physical condition might be treated appropriately. Another reason why he has asked to be allowed a period without anti-psychotic medication is to ascertain how he would be if he were “drug free”. He maintains that he has not presented as a management problem, although this is disputed by those who are responsible for his care.

  10. In the past he has withdrawn his consent to treatment with anti-psychotic medication due to the side-effects he has experienced. In those circumstances certification for medical treatment without his consent was sought and granted. In October 2000 the renewal of a certificate under section 58 of the 1983 Act was deemed to be necessary, and Dr Feggetter carried out an assessment of him as a SOAD on 25th October 2000. He certified that anti-psychotic medication should be administered to him without his consent. Before the new treatment started on 26th October, there had been a 17-day period, following the expiry of his last certificate, in which Mr. Wooder received no treatment. It is maintained on his behalf that there is no evidence to suggest that his condition deteriorated or that he presented a risk of violence to anyone during that period.

  11. His solicitors conducted correspondence with the Mental Health Act Commission (“MHAC”) on his behalf between 15th October and 3rd November 2000. They initiated these proceedings following the receipt of MHAC’s letter of 3rd November. In their opening letter dated 15th October they set out fully the reasons why they wished a SOAD to recommend a drug-free period in their client’s care. They were told that their letter would be faxed to the designated SOAD. On 25th October, the day when Dr Feggetter saw their client and issued his certificate sanctioning further medication, they wrote to MHAC requiring the reasons for this decision.

  12. On 30th October Mr. Kinton (MHAC) wrote a three-page letter in reply. After setting out relevant extracts from the MHAC’s Code of Practice and from its Guidance to SOADs, he went on to quote a passage from a leading text book as to the proper approach to be adopted by a SOAD when the reasonableness of non-consensual treatment is in issue. His letter continued:

    Dr Feggetter has confirmed that he did receive a copy of your letter of the 15 October 2000 prior to his visit and that he carefully considered its content before reaching his decision. I understand that Dr Feggetter also spoke with you on the day of his visit. You will be aware that Dr Feggetter met with your client and that your client was able to state his views on the treatment that he has received in the past and on the treatment proposed by his RMO. Dr Feggetter also consulted with the RMO and the statutory consultees. The RMO presented Dr Feggetter with a 25-page document as a background to her decision to seek authority to treat your client.

    Dr Feggetter accepted the view of the RMO and ward staff that your client did not have mental capacity to give or withhold consent to the proposed treatment. Dr Feggetter had found your client to lack insight into the nature of his illness and his potential for further violent behaviour, given the thought disorder and active delusion evident at interview, particularly on the subject of his index offence. The RMO and ward staff expressed concern about the possibility that, untreated, your client’s illness may pose a serious risk of violence and potential harm to others. Dr Feggetter accepted that there is an issue with side-effects that can be addressed by the care-team but that these issues in themselves do not outweigh the potential benefits of the treatment proposed, which he therefore concluded was reasonable.

    If you wish to discuss this matter further I am happy to do so.

  13. On 3rd November Mr. Kinton elaborated a little, following a further letter from the claimant’s solicitors. He identified the 25-page document which had been provided to Dr Feggetter, and said that the solicitors should approach the RMO if they required access to it. He corrected one matter in his earlier letter. He now said that Dr Feggetter did not certify that Mr. Wooder was incapable of giving consent to his treatment. Dr Feggetter’s view was that although Mr. Wooder lacked insight into his illness, he was able to give valid consent to treatment but refused to do so.

  14. Mr. Kinton said that the RMO must remain the primary point of information and discussion with the patient about the treatment plan which the SOAD had authorised as reasonable. He rejected the solicitors’ contention that someone other than the RMO should explain the rationale for treatment to a patient who has received a statutory second opinion.

  15. On 30th November 2000 Sir Richard Tucker refused permission to apply for judicial review. He was at that time concerned, so far as is relevant to this appeal, only with the first of the declarations mentioned in paragraph 2 above. He said that it was common ground that neither the 1983 Act nor the Code of Practice contained any obligation to give reasons. He did not consider it appropriate to describe a SOAD’s role as quasi-judicial. He was a doctor whose task it was to certify whether or not a particular course of treatment was appropriate. A SOAD was acting under a statutory regime and had to comply with his statutory obligations, which did not contain a duty to give reasons. Either a course of treatment was suitable or it was not. He said that the regime suggested by the doctor was, whether Mr. Wooder thought so or not, one which was in his best interests and in the best interests of society at large.

  16. This case is a natural sequel to R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545; [2002] 1 WLR 419. It revolves around the provisions of sections 63 and 58(3) and (4) of the 1983 Act, which are set out by Simon Brown LJ in paragraphs 2 and 3 of his judgment in Wilkinson and which I need not repeat here. In paragraphs 28 and 29 Simon Brown LJ showed how modern international thought has moved on since 1983 in relation to the appropriateness of non-consensual treatment of competent patients.

  17. Before considering whether the law imposes an implied duty on a SOAD to give his reasons for certifying that a proposed treatment should be given to a competent detained patient notwithstanding his lack of consent, it is necessary to understand the context in which SOADs were introduced into the statutory scheme contained in Part IV of the 1983 Act.

  18. In paragraph 38 of my judgment in Wilkinson I described the sea-change in Parliament’s approach to the protection of patients detained under the Mental Health Acts which came into effect in 1983. Parliament’s insistence that a SOAD should consider and certify the reasonableness of certain types of treatment proposed by a RMO was a critical feature of the new scheme.

  19. We were shown in this context paragraphs 6.14-6.30 of the Review of the Mental Health Act 1959 (1978, Cmnd 7320) which preceded the introduction of the new legislation. In paragraph 6.14 of this White Paper a reference was made to contemporary uncertainties about the legality of treating detained patients without their consent. It was said that the Government wished to remove any uncertainty. It proposed to amend the Mental Health Act to define the extent to which treatment for mental disorder could be imposed.

  20. It was a central feature of the Government’s proposals, which had been subjected to an extensive consultation process, that a second opinion should be obtained before certain types of treatment were undertaken. Paragraph 6.28 of the White Paper shows that there was general recognition of this need, but less agreement on the form it should take. At that time the Government was inclined to favour the creation of multi-disciplinary panels (with a substantial medical involvement) for this purpose. It recorded, however, that much, but not all, medical opinion was opposed to this suggestion. In the end Parliament decided on the SOAD solution, which had been another of the possible options mentioned in the White Paper.

  21. Parliament therefore decided that for certain types of treatment for detained patients a decision by the RMO would not be sufficient. In the context of the present case this meant that it would be unlawful in the absence of a SOAD’s certificate to administer medicine to an adult incompetent patient for his mental disorder without his consent if three or more months had elapsed since the first occasion during his period of detention when medicine was administered to him for that disorder (1983 Act, section 58(1)(b) and (3)(b)).

  22. This is not, in my opinion, an occasion when it is necessary to develop the law relating to the giving of reasons for an “administrative” decision beyond the stage it had reached in a trilogy of decisions made between March 1991 and July 1993. We have been taught by the House of Lords that when we have to consider the requirements of fairness, we should take into account the character of the decision-making body, the kind of decision it has to make, and the statutory or other framework in which it operates (Lloyd v McMahon [1987] AC 625 per Lord Bridge of Harwich at p 702). The courts adopt a minimalist approach. As Lord Bridge said in this passage of his speech:

    .... [It] is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by he statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.

  23. The trilogy of cases to which I have referred is made up of the decision of this court in R v Civil Service Appeal Board ex p Cunningham [1991] 4 All ER 310, the decision of the House of Lords in R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 and the decision of the Divisional Court in R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242. I agree with Sedley LJ, whose judgment I have read in draft, that it should not be taken for granted that the HEFC case would be decided in the same way to-day. Indeed, it might well have been decided a different way in 1993.

  24. Be that as it may, the Divisional Court held in that case – and I know of no later decision which impugns its approach – that one of the classes of case where the common law implies a duty to give reasons is where the subject-matter is an interest so highly regarded by the law (for example, personal liberty) that fairness requires that reasons, at least for particular decisions, be given as of right.

  25. In the light of the judgments of this court in Wilkinson (see [2001] EWCA Civ 1545 at [25]-[30], [53] and [82]-[83]) I have no hesitation in holding that a decision to administer medical treatment to a competent non-consenting adult patient falls into this category. Parliament recognised the importance of giving reasons both when a patient is first detained for medical treatment for his disorder (which may be non-consensual: see section 63) under section 3 of the 1983 Act and when a Mental Health Review Tribunal makes a decision affecting a patient (see rule 23(2) of the Mental Health Review Tribunal Rules 1983). With the coming into force of the Human Rights Act 1998 the time has come, in my judgment, for this court to declare that fairness requires that a decision by a SOAD which sanctions the violation of the autonomy of a competent adult patient should also be accompanied by reasons. The fact that the critical decision is made by a doctor in the exercise of his clinical judgment and not by a tribunal following a more formal process, cannot, in my judgment, be allowed to diminish the significance of the doctor’s decision.

  26. Ms Nathalie Lieven, who appeared for the respondents on this appeal, gave her clients’ reasons for resisting this conclusion with her customary clarity. It became increasingly obvious, however, in the course of argument that her clients’ concerns had a lot to do with their reluctance to expose SOADs to linguistic criticism of their reasoning in the rather alien processes of a court of law.

  27. There is an interesting discussion of the “intolerable burden” grounds for resisting the giving of reasons in the essay by Sir Patrick Neill QC entitled “The Duty to Give Reasons: the Openness of Decision-making” (see The Golden Metwand and the Crooked Cord, ed Christopher Forsyth and Ivan Hare (1998) at pp 163-4). Sir Patrick describes how a review in Australia showed how ten years after a fairly wide statutory duty to give reasons had been introduced in that jurisdiction a higher quality of decision-making had resulted. The authors of the review observed that the “cost” of providing statements of reasons had to be balanced against the social justice benefit which flowed from the fact that aggrieved individuals knew how their cases had been decided.

  28. I can see no good reason why the same discipline should not apply to the decisions of SOADs. Indeed, we were shown during the course of argument the short two-page letter written by Dr Feggetter to Mr. Kinton (MHAC) on 26th October 2000 which would have served admirably as the requisite statement of reasons, when coupled with the formal certificate he had signed the previous day. It is very clear that Dr Feggetter did not feel that Mr. Wooder had sufficient knowledge of his illness and its potential for violence to be a reliable witness on his own account as to the absence of any risk of further violence if he remained untreated. Dr Feggetter stated concisely and clearly the reasons why he agreed with the RMO’s view that she should be able to treat him. He was clearly influenced by the need to protect other patients and staff on the ward from the risk of an assault by Mr. Wooder (which Dr Feggetter described as “his dangerousness”) if he were to remain unmedicated. It is understandable why he thought, although he did not spell this out, that other considerations should take second place.

  29. The law will not require a SOAD to dot every ‘i’ and cross every ‘t’ when giving reasons for his opinion. So long as he gives his reasons clearly on what he reasonably regards as the substantive points on which he formed his clinical judgment, this will suffice. Any concerns MHAC and SOADs may have about SOADs being exposed to the bother of expensive and time-consuming litigation should be mitigated by the consideration that any legal challenge will require the permission of the court. Unless a patient can show a real prospect of establishing that a SOAD has not addressed any substantive point which he should have addressed, or that there is some material error underlying the reasons that he gave, the court will not grant permission. If on the other hand a patient can demonstrate either of these matters to the satisfaction of a court, I can see nothing unreasonable in allowing a legal challenge.

  30. It was common ground that there may be cases in which it would be inappropriate for a SOAD’s reasons to be disclosed to a patient. Ms Lieven submitted that if we were to hold that the law implies a duty to disclose a SOAD’s reasons, the appropriate formula for an exemption from that general duty should be that contained in article 5(1) of the Data Protection (Subject Access Modification) (Health) Order 2000, namely that such disclosure would be likely to cause serious harm to the physical or mental health of the patient or any other person. This language mirrors the language used for the exemption contained in section 7(1) of the Access to Medical Reports Act 1988. I accept Ms Lieven’s submission.

  31. The next issue we have to decide arises mainly out of the terms of the second declaration which Henry LJ granted Mr. Wooder permission to seek judicial review (see paragraph 2(ii) above). It seems inappropriate for us to express any opinion on this point. Although the RMO’s solicitors were served with notice of the amended application, Dr Heads has not appeared at the hearing or made representations to the court on the issue. In these circumstances we do not know the contents of the 25 pages which Dr Heads gave Dr Feggetter, and we were told that no point of general principle arises here. Ms Lieven told us that an RMO will very often prepare no special report for a SOAD but merely invite him to consider the medical records already in existence, adding perhaps a few words of explanation. She suggested, without knowing the detail, that it was quite likely that the papers Dr Heads gave Dr Feggetter were records with which Mr. Wooder was familiar in any event.

  32. Finally, I would reject Mr. Fitzgerald’s submission that a patient should be given the SOAD’s reasons by someone other than the RMO. The RMO is the doctor responsible for the patient’s care and it may be that matters will be known to the RMO, but not to the SOAD, which make it one of the exceptional cases for withholding disclosure on “serious harm” grounds. In future, therefore, the SOAD should send a statement of his reasons to the RMO or to the hospital (see section 132 for the duty of the hospital managers to give relevant information to a detained patient) together with any opinion he may have on the desirability of withholding them from the patient on “serious harm” grounds. The RMO should then make them available to the patient to read, unless it is a case in which reliance can properly be placed on the “serious harm” exemption from disclosure.

  33. The reasons should be prepared and disclosed to the patient as soon as practicable. Mr. Fitzgerald did not pursue to the end his argument that this process must necessarily always precede the administration of the sanctioned treatment. It is only necessary to consider the facts of a case like Wilkinson (see [2001] EWCA Civ 1454 at [4]; [2002] 1 WLR 419) to understand that it may not always be appropriate to delay treatment once the SOAD’s certificate has been given.

  34. For these reasons I would be disposed to grant a declaration that fairness demands that a SOAD should give in writing the reasons for his opinion when certifying under section 58 of the Mental Health Act 1983 that a detained patient should be given medication against his will, and that these reasons should be disclosed to the patient unless the SOAD or the RMO considers that such disclosure would be likely to cause serious harm to the physical or mental health of the patient or any other person. The application for the second declaration set out in paragraph 2(ii) of this judgment should be dismissed.

  35. By way of a footnote it is pleasant to be able to record that Mr. Wooder’s medication has now been reduced to the lowest dose of anti-psychotic medication possible, coupled with a daily mood stabiliser. He is settled on this medication regime, for which he has signed the requisite form, and is progressing well. This does not, however, mean that the point we are deciding is necessarily an academic one even in his case, since he continues to be a detained patient and the occasion may arise in the future when he refuses to consent to a proposed treatment. (Compare Wilkinson at [7]).

    Lord Justice Sedley

  36. I agree with the reasoning and conclusions of Lord Justice Brooke, but I take the liberty of adding my own views on two of the most problematical topics he has canvassed.

    THE DUTY TO GIVE REASONS

  37. Mr. Fitzgerald’s argument in its strong form does not depend on any expansion of the duty to give reasons beyond the point reached a decade ago in Doody. Here, as there, it can be said that the impact of the decision is so invasive of physical integrity and moral dignity that it calls without more for disclosure of the reasons for it in a form and at a time which allow the individual to understand and respond to them. But even if Ms Lieven is right in her submission that there is a material difference between an administrative decision relating to incarceration and a medical opinion relating to treatment, the answer does not necessarily differ.

  38. I have first to say, nevertheless, that I do not accept Ms Lieven’s premise. In each case – the prisoner’s and the patient’s – a person with special qualifications is equipped in the public interest with statutory powers which impact directly on someone’s physical and moral autonomy. Any such power carries a heavy burden of responsibility. The SOAD’s opinion, while of course it is clinical, has legal and moral dimensions which cannot be marginalised and which are in every sense the SOAD’s business and – if necessary – the court’s.

  39. But if this is wrong, or if for some other reason the analogy with life-sentence prisoners’ tariffs is imperfect, it becomes necessary to look more closely at the present ambit of the duty to give reasons. No advocate should today embark on an argument about this without considering, in addition to the reported cases, the article by Professor Paul Craig [1994] CLJ 282 on the Higher Education Funding Council case, and the chapter by Sir Patrick Neill QC (as he then was) in The Golden Metwand and the Crooked Cord (OUP, 1998, p.161), ‘The duty to give reasons: the openness of decision-making’. They demonstrate the distance still to be travelled in this regard between the present state of English authority and a principled framework of public decision-making.

  40. In R v Cambridge University, ex parte Evans [1998] ELR 515, a reserved judgment given on an application for leave which had been argued on both sides, I said this about the decision to which I had been a party in the HEFC case:

    .... we did not hold .... that the categories of case in which reasons must be given were closed. In our concluding summary we went no further than to hold that the class of apparently aberrant decisions did not include those which were challengeable by reference only to the reasons for them, such as a pure exercise of academic judgment.

    ....

    No public lawyer supposes that the last word has yet been said on the duty to give reasons.

    ....

    I consider it arguable .... both that the categories derived from authority in [the HEFC case] are incomplete, and that that even within them there may be exercises of academic judgment which, though never patently aberrant, are nevertheless of sufficient importance to the individual to require that reasons be given for them.

  41. If therefore Ms Lieven were right in urging that the SOAD’s opinion is analogous to an academic judgment in being challengeable only by reference to the reasons for it and so beyond the reach of the duty to give reasons (a syllogism which, though it was understandably welcomed at the time in academic circles, I have come to suspect may be flawed), it would be necessary to ask whether the HEFC case would necessarily be decided in the same way today. For my part I am not sure that it would be, although it would certainly not follow that every examination grade and mark had to be similarly explained. It is certainly not an answer, with all respect to Ms Lieven’s argument, that the cases relied on by Mr. Fitzgerald concern adjudication and are therefore distinguishable. To collapse substance into form in this way would be to invert the logic of modern public law and to turn it back towards the arid categories of judicial, quasi-judicial, administrative and discretionary acts which dogged it in its postwar resurgence.

  42. It is particularly necessary to bear two things in mind when reading the HEFC decision.

    • One is that Lord Mustill had been careful, shortly before, in Doody to say that “the law does not at present [my italics] recognise a general duty to give reasons for an administrative decision”, while the court in the HEFC case rejected the submission that particular duties to give reasons could any longer be regarded as exceptional. Sir Patrick Neill’s article (above) shows amply why this is so.

    • Secondly, as again Sir Patrick points out, lawyers seem to have manifested their classic learnt response to those two cases by treating the categories so far acknowledged in the reactive and exploratory growth of the common law as exhaustive. Rather than try to fit given shapes into pre-formed slots like toddlers in a playgroup (I am not referring to the educated and thoughtful arguments before us), the courts have to continue the process of working out and refining, case by case, the relevant principles of fairness.

  43. Even, therefore, if it were the case that the SOAD’s opinion was a decision challengeable only by reference to the reasons for it, I would hold, on the grounds set out by Lord Justice Brooke, that its impact was such that the reasons had to be given.

    THE VEHICLE OF CHANGE

  44. In Lloyd v McMahon Lord Bridge delivered the definitive modern restatement of the classic formulation of Byles J in Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 that where fair dealing by a public authority is at issue “the justice of the common law will supply the omission of legislature”. The process is not one of discerning implied terms but of adding necessary ones. It has been the engine of modern public law, and there is no reason to believe that its force is spent.

  45. But the Human Rights Act 1998 has created a new and different paradigm of superimposed law. Where Convention rights are engaged by statute, s.3 requires the statute to be read so far as possible compatibly with those rights. Where a court, as a public authority, is considering how it should act, s.6 requires it to act compatibly with those rights if legally possible. While many of the Convention rights replicate the standards of the common law, in respects relevant to the present case the two diverge.

  46. One relevant divergence is that the common law sets high standards of due process in non-judicial settings to which the Strasbourg court declines to apply art. 6. Here a claimant can derive better protection from the common law than from the Convention, and s.11(a) of the Human Rights Act expressly preserves his right to do so. It is why I consider that the difficult argument about the point at which art. 6 bites on the s.58 process is of only secondary relevance. For reasons I have given, Mr. Wooder can derive all the protection he is entitled to from the duty to give reasons at common law.

  47. A second relevant divergence, however, is of the opposite kind. Art. 8 recognises a standard of protection of personal autonomy which, while it is familiar to the common law in negative terms in the form of trespass to the person, is novel for us in its affirmative Convention form, elaborated now by an important body of jurisprudence. In such a situation a question of constitutional importance arises: are the Convention values to be assimilated to the common law, or are they to be imported distinctly through the mechanism of the Human Rights Act 1998?

  48. The Human Rights Act itself contains a warrant for both processes. The s.6 prohibition on acting incompatibly with Convention rights arguably conditions the common law itself: see now A v B [2002] EWCA Civ 337 para 4. It is probable, though as yet undecided, that “acting” governs remedies and procedures rather than doctrines of substantive law; but judicial review is very largely about remedies, the giving of reasons among them. The s.3 imperative, by contrast, is directed purely to the process of statutory construction. It is not, in my belief, anything like as revolutionary as strict constructionists have suggested. Once it is acknowledged that parliamentary intent has always been a deferential but fictional account of the meaning of the text (which is why Pepper v Hart [1993] 1 AC 593 was and still is so heavily contested), s.3 ceases to be a supplanting mechanism and settles in as a strong canon of construction. As such it clearly operates in the present case on s.132 of the Mental Health Act 1983, elaborating the requirement to inform the patient “so far as relevant in his case” about the effect of s.58 so as make the obligation fully Convention-compliant. Even if s.132 were not there, exactly the same result would in my opinion be arrived at through s.58 itself, because what matters for s.3 purposes is not the particular configuration of the statute but whether

    1. its subject matter attracts Convention rights and, if it does,

    2. its terms nevertheless block their application.

  49. Given the present divergences between the common law and the Convention, I think care is required, for reasons which this appeal illustrates, in mapping the route by which their respective standards and controls are to be imported into public law functions. In a generation’s time, when the Convention rights have become second nature to lawyers (as the innovative principles of modern criminal law became second nature to them in the course of the nineteenth century) the difference between the two methods of rapprochement will probably cease to matter. For the present, for the reasons given by Lord Justice Brooke, I agree that both the common law path, by way of incremental development, and the Convention path, by way of art. 8, take Mr. Fitzgerald home on his principal argument that the patient is entitled, not as a matter of grace or of practice but as a matter of right, to know in useful form and at a relevant time what the SOAD’s reasons are for his opinion on the RMO’s proposal to override his will.

    Lord Justice Potter

  50. I agree with the judgment of Lord Justice Brooke and the observations of Lord Justice Sedley on the duty to give reasons. I too consider that Mr. Wooder can derive the protection to which he is entitled from the duty to give reasons under common law, subject to an exemption framed in the terms indicated in paragraph 30 of the judgment of Lord Justice Brooke. I have also read with interest the observations of Lord Justice Sedley under the heading ‘The Vehicle of Change’. In that connection I would observe that in my opinion it is not necessary to resort to any consideration of the extent to which Article 8 of the Convention may be engaged for the purposes of a decision in this case.


Cases

R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545; [2002] 1 WLR 419; Lloyd v McMahon [1987] AC 625; R v Civil Service Appeal Board ex p Cunningham [1991] 4 All ER 310; R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531; R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242; R v Cambridge University, ex parte Evans [1998] ELR 515; Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180; A v B [2002] EWCA Civ 337; Pepper v Hart [1993] 1 AC 593

Legislations

Mental Health Act 1983: s.3, s.58, s.132

Mental Health Review Tribunal Rules 1983: r 23

Human Rights Act 1998: s.3, s.11

Data Protection (Subject Access Modification) (Health) Order 2000: Art.5(1)

Access to Medical Reports Act 1988: s.7

European Convention on Human Rights: Art.6, Art.8

Authors and other references

Review of the Mental Health Act 1959 (1978, Cmnd 7320)

Sir Patrick Neill QC, “The Duty to Give Reasons: the Openness of Decision-making” in The Golden Metwand and the Crooked Cord, ed Christopher Forsyth and Ivan Hare (1998)

Professor Paul Craig, "Higher Education Funding Council case", [1994] CLJ 282

Representations

Edward Fitzgerald QC & Dermot Casey (instructed by Kaim Todner) for the Appellant

Nathalie Lieven (instructed by the Treasury Solicitor) for the Respondents


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