CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 février 2006

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Casadevall , President ,   Sir   Nicolas Bratza   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego,   Mr   J. Šikuta, judges , and Mrs F. Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 22 March 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr John Wilkinson, is a United Kingdom national, who was born in 1932 and is a resident of Broadmoor Hospital in Berkshire. He was represented before the Court by Ms Scott-Moncrieff, a solicitor practising in London. A.     The circumstances of the case The applicant is subject to hospital and restriction orders under the Mental Health Act 1983 (“the 1983 Act”) following his conviction for rape of a minor in October 1967. He is therefore detained in a psychiatric hospital. In April 1998 the applicant suffered a mild heart attack (when he was awaiting surgery for another condition) and thereafter was diagnosed as suffering from minor coronary disease. Throughout his period of confinement, there has been considerable debate as to whether he was mentally ill. There was a consensus that he suffered from a “psychopathic personality disorder”, a condition not classed as a mental illness. However, there was disagreement as to whether he also suffered from a mental illness. On 11 October 1988, for example, the Mental Health Review Tribunal found that he was suffering from a mental illness. Following that decision, Dr O, the applicant’s responsible medical officer at the time, proposed treating the applicant with anti-psychotic medication. She sought a second opinion from Dr L, a second opinion appointed doctor (“SOAD”) appointed by the Mental Health Act Commission. Dr L did not give the necessary authority. He considered that there was sufficient evidence to suggest that the applicant might be suffering from a psychosis to justify treatment in the event of his agreeing to it, but not sufficient evidence to justify treatment against his wishes. In July 1999 another responsible medical officer (“the RMO”) took over the applicant’s care. The RMO formed the view that the applicant’s pronounced paranoid beliefs and attitudes were due, not only to his personality disorder, but also to an underlying psychotic mental illness. In any event, the RMO considered anti-psychotic medication necessary to relieve the applicant of his “paranoid ideation”. These views were reflected in the RMO’s report of December 1999. In 1999 (it is not clear precisely when), the RMO proposed the new medication to the applicant and the applicant refused it: from the outset, he made it clear that he would physically resist it. Since he was not consenting, the treatment had to be certified by a SOAD (see section 58(3)(b) of the 1983 Act below). On 31 January 2000 the RMO requested the appointment of a SOAD. Dr H (“the SOAD”), a highly experienced consultant psychiatrist, was appointed. On 17 February 2000 the SOAD examined the applicant (it was disputed during the domestic proceedings how long this examination took: 5 minutes according to the applicant; 30-40 according to the SOAD). The SOAD issued a certificate of second opinion on that date certifying that the applicant was not capable of understanding the nature, purpose and likely effects of the proposed medication, “but that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, it should be given”. The certificate authorised a plan of treatment whereby the specific drugs would be administered on a number of occasions. The SOAD also signed a Form 39 confirming that the statutory criteria had been fulfilled. The RMO was concerned that, when faced with a threatening situation, the applicant was apt to become extremely anxious and agitated and that he had acted violently on many occasions (for example by starting fires). As a result, he and the other members of his clinical team arranged that the applicant would have no notice of the SOAD’s arrival to the hospital and that the medication would be administered immediately after the certification had been obtained. Accordingly, on the same day that the SOAD’s certificate was signed (17   February 2000), the applicant was given anti-psychotic medication by the RMO against his will. On 2 March 2000 he was again injected with the same medication. On each occasion, the applicant physically resisted and had to be restrained by members of staff. On the first occasion, he suffered an angina attack and had to be taken to a seclusion room. The applicant claimed that he subsequently suffered significant side-effects from the treatment, including low blood pressure and chest pain. Since a further injection was due to be administered on 16 March 2000, the applicant consulted his solicitors on 8 March 2000. The applicant sought judicial review of the decision to administer the treatment. The only relief he sought was a declaration that the proposed future treatment would be unlawful. He did not seek any relief in relation to the past treatment. On 15 March 2000 the High Court gave him leave to apply for judicial review and granted an injunction preventing further treatment pending the hearing of his substantive challenge. His solicitors obtained a report from a consultant psychiatrist (Dr G) and the RMO and the SOAD (two of the respondents in the applicant’s proceedings) prepared witness statements. In his first witness statement, dated 10 April 2000, the RMO said the following: “The conclusion of my opinion is that I believe medication holds out a real prospect of giving benefit to the applicant. I wish to emphasise that what I am proposing is a trial of medication only in order to see what benefit the patient derives from it. If there is no benefit then the trial will be stopped. I believe the patient is suffering from mental illness. The essential point in my view is that whether one favours a diagnosis of mental illness or one of personality disorder a trial mediation [sic] can and should be given for the paranoia which all doctors agree is both present and considerable... Although other psychiatrists think otherwise I think it would be unsafe to move [the applicant] to conditions of medium security without giving him a trial of medication. [The applicant] has been attempting to get the Mental Health Review Tribunal to support his moving to conditions of medium security and the Tribunal adjourned in July 1999 in order, among other things, for a report to be obtained from Dr [S]... Dr [S] reassessed him and in a report dated 25 August 1999 Dr [S] said... “I do not believe that a treatment with antipsychotic medication at the present time would be indicated”... I wrote a letter to Dr [S] dated 3 February 2000...saying that I intended to give [the applicant] a trial of medication. Dr [S] replied in his letter of 11 February 2000 saying that he would be very happy to await the outcome. He wrote ... “I am a strong believer in a “trial of mediation”[sic] in patients such as [the applicant] who have spent many years in hospital and have been unsuccessful moving on. I can think of several patients who have successfully moved from Broadmoor to Ravenswood House where previously undiagnosed mental illness was treated with successful results. I would therefore be very interested in the outcome of any trial of antipsychotic medication”... For the reasons above the patient’s best interests are served by trial medication. The potential benefit could be considerable enabling the patient to move on to a less secure and restrictive hospital and possible eventual return to the community. If the trial does not work the patient will be no worse off than he is at present...” As to capacity to consent the RMO said: “[The applicant]’s paranoid attitudes and beliefs render him incapable upon the subject of treatment with medication...In my view he lacks capacity because of his mental illness but if we take the view expressed in Dr [G]’s report of 17.5.98...that [the applicant] only has a personality disorder and that the paranoia is due to that, then [the applicant] still, I would emphasise, does not have capacity. Whichever way we look at it, he does not believe that he shows paranoia and he therefore does not believe that he needs medication to treat it. He further believes that Broadmoor hospital and I and other doctors before me acting as agents, have sought to obstruct his discharge from the hospital. He is not able to see that medication could be of benefit to him.” As to the applicant’s heart condition, he said: “Many patients suffer [angina] attacks from time to time and come to no harm and I have spoken with Dr [X] about this. He told me there is always a chance when [the applicant] suffers an attack of angina it will develop into a heart attack, but that chance is very small.” The SOAD, in his first witness statement, described a 30 to 40 minute interview with the applicant. He said that he looked at the applicant’s reports, which substantiated his claim that he suffered from a personality disorder but also raised the question of his paranoid thoughts. There was no clear consensus, in his opinion, as to whether these thoughts were a part of his personality disorder or if they related to an underlying illness. As to the treatment plan, he said: “I felt that the treatment plan proposed by the RMO was both reasonable and addressed an issue that was preventing the further rehabilitation of the patient. That the patient was experiencing paranoid ideation was apparent both from records made in his clinical notes and from his personal presentation upon examination by myself. Whether such paranoid ideation was associated with his primary diagnosis of personality disorder or was symptomatic of mental illness unconnected with that diagnosis, it was reasonable in my view to attempt to relieve [the applicant] of this symptom and would be in [the applicant]’s best interests. It is accepted clinical practice to treat persons with paranoid ideation with antipsychotic medication.” In his report, dated 12 April 2000, Dr G said the following in relation to diagnosis: “The prevailing view of psychiatrists who have assessed [the applicant] over the years is that he suffers from a personality disorder, and not from a psychotic mental illness. [The RMO]’s opinion that [the applicant] has a paranoid psychotic illness does not appear to arise from evidence of new symptoms that have recently emerged, but is based on a further careful review of [the applicant]’s history and presentation. [The RMO]’s conclusion that treatment with antipsychotic medication would help [the applicant] progress after many years in Broadmoor was reached in good faith and with concern for [the applicant]’s welfare. In my view the basis for arguing that [the applicant] suffers from a paranoid psychotic illness, or schizophrenic illness is weak and there is inadequate clinical evidence to justify such a diagnosis. There is not a good history of positive psychotic symptoms such as delusional beliefs, abnormal perceptions (e.g. hallucinations) or characteristic abnormalities of thinking and affect. There has not been a gross decline in his level of social functioning indicative of chronic psychosis. The past observations noted by [the RMO] in his tribunal report (10/12/99) of thought disorder and emotional incongruity have not been sustained and are certainly not present in [the applicant]’s current presentation. The persistent characteristics of irascibility, explosive anger, poor judgment and suspiciousness are typical of a personality disorder of a paranoid type. There should be particular caution about inferring that [the applicant]’s beliefs about Broadmoor Hospital amount to delusions. They do not have the fixed, incorrigible form of delusions. The content of some of his ideas, namely about the motivation of hospital staff, is in my view misguided and wrong, but it is psychologically understandable, given his experience, personality and the context of long term detention, and it is not wholly irrational...” As to medication, he said; “In my view it was not appropriate under all the circumstances to administer antipsychotic medication forcibly to [the applicant]. In particular, I believe that there were significant medical risks associated with forcible medication under restraint in his case. Antipsychotic medication is generally appropriate and beneficial in the treatment of psychotic illness but generally not in the treatment of personality disorder. The likelihood that antipsychotic medication would modify [the applicant]’s personality characteristics and help him become more relaxed and amenable was low in my opinion... The risks and adverse effects of antipsychotic medication in [the applicant]’s case included his medical history and his psychological reactions to the treatment. He was an elderly man with ischaemic heart disease. He had consistently been opposed to taking anti-psychotic medication... It was foreseen that antipsychotic medication would probably have to be given forcibly under restraint. [The applicant] had indicated that he would physically resist. It is known that sudden cardiac death can occasionally occur when patients are given medication under restraint. This is recognised as a special risk associated with restraint that does not apply when antipsychotic mediation is given in a normal way. The position is summarised in a Report for the Royal College of Psychiatrists ‘ The Association between Antipsychotic Drugs and Sudden Death ’, published in 1997 [“the College Report”]. In weighing up the reasonableness of the decision to forcibly medicate [the applicant] under restraint the two principal concerns are his adverse medical history and the equivocal evidence of medical illness...I do not think that forcible administration of antipsychotic medication under restraint was appropriate or justified.” On 18 May 2000 the High Court refused an application, by the applicant, for an order that the RMO, the SOAD and Dr G attend the substantive judicial review hearing for cross-examination on their witness statements. On 2 October 2000, the date of the coming into force of the Human Rights Act 1998 (“the 1998 Act”), the applicant was granted permission to appeal this refusal to the Court of Appeal. In the meantime, the SOAD withdrew his authorisation for the treatment. However, the RMO remained of the view that the applicant required anti-psychotic medication and intended to seek a further SOAD certificate to that end unless precluded from doing so by the courts. On 18 October 2001 the Court of Appeal allowed the applicant’s appeal and held that cross-examination would be appropriate in this case. Lord Justice Simon Brown found, referring to paragraphs 82-83 of the Herczegfalvy v. Austria judgment (of 24 September 1992, Series A no. 244), that a court must inevitably reach its own view both as to whether the applicant was indeed incapable of consenting (or refusing consent) to the treatment and, depending upon the conclusion on that issue, as to whether the proposed forcible administration of such treatment would threaten his life and so be impermissible under Article 2 of the Convention, would be degrading and so impermissible under Article 3 and would not be justifiable as both necessary and proportionate under Article 8, given the extent to which it would invade the appellant’s right to privacy. He noted that the “super-Wednesbury test” which had been applied in judicial review cases involving Article 8 rights had been found by the European Court of Human Rights to be inadequate ( Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, §§ 129-139, ECHR   1999 ‑ VI) and he could see no basis upon which an approach disapproved of in the context of homosexuality in the armed forces could be acceptable in the context of forcibly treating mental patients particularly as the case raised a “real question under Article 3”. He went on to point out that if the applicant was considered to have the capacity to refuse consent to the treatment, it was difficult to suppose that he should nevertheless be forcibly subjected to it despite the RMO’s views: the impact on the applicant’s rights to autonomy and bodily inviolability was immense and its prospective benefits (not least given his extreme opposition) appeared “decidedly speculative”. Moreover, even if he was not capable of consenting, the court would need to be satisfied (in the language of the Herczegfalvy judgment) that the medical necessity had been “convincingly shown to exist ... according to the psychiatric principles generally accepted at the time.” Accordingly, Lord Justice Simon Brown concluded that what would be required on a substantive challenge to future treatment would be a “full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists.” Finally, he did not think that Article 14 added anything to the debate. As to Article 6 of the Convention, he stated: “If I am correct in having concluded that the [applicant] on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts, then plainly the requirements of Article 6 are satisfied: the Administrative Court [on an application for judicial review] will conduct a merits review on the evidence.” Lord Justice Brooke and Lady Justice Hale also allowed the appeal. On the question of the level of review, Lady Justice Hale had regard to Articles 3 and 8 of the Convention and found that: “Whatever the position before the [1998 Act], the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8. Super-Wednesbury is not enough. The [applicant] is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: i.e. whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent ‘having regard to the likelihood of its alleviating or preventing a deterioration of his condition’. If they are, in other words if [the RMO] rather than [Dr G] is right, then I would hold that this treatment could be given to him. This is not the same as saying that every patient is entitled to such a hearing in advance. Once again the analogy with arrest holds good. The RMO and SOAD are not determining his civil rights and liabilities. They are merely deciding to impose or authorise treatment in the belief that the statutory grounds for doing so exist. They do not have to go to court for advance authorisation (although as in the incapacity cases there is nothing to stop them doing so if the case is a particularly difficult or controversial one). But once a situation exists in which the treatment can be scrutinised, whether before or after the event, then that scrutiny should take place.” Dr G prepared a supplementary report dated 27 October 2000 as to the applicant’s capacity to consent. Dr G analysed the applicant’s ability to use information and weigh it in the balance in making his decision. He considered that there were four aspects to the applicant’s opposition to the treatment, two of which were rational, one of which was partially rational and partly based on lack of insight, and the last of which was manifestly wrong and based on paranoid suspicion about the motivation of his RMO. Taking this into account Dr G reached the ‘overall judgment’ that the applicant had capacity to consent. The RMO prepared a second witness statement, dated 23 November 2000 in response to Dr G’s original and supplementary reports. He pointed out that the conclusion of the College Report, referred to by Dr G was that: “There are insufficient epidemiological data to prove that sudden death is more likely among people being treated with antipsychotic medication than it is among the general population. However, there are no data to prove that there is no causal connection between the use of this group of drugs and sudden death.” He also stressed that he had given the applicant depot medication rather than a preparation which would have acted immediately. As a result, during the short period where the applicant was being given the injection and was suffering the angina attack the amount of antipsychotic drugs in his blood stream would have been negligible. There was no question of the drugs causing the angina attack. That was caused by the over-exertion. He obtained evidence from Prof B, the convenor of the group which wrote the College Report, and from Dr D, who sat on the review panel for the said report, both of whom supported his interpretation of the report. Dr D in his letter of reply apparently stated that the risk of sudden death was very small. As to capacity the RMO said: “[It] is clear that [the applicant] is not able to believe treatment information which I give him because he is very suspicious about my motives, he sees me as part of a corrupt system in which individuals, including doctors, have no compunction about telling lies in order to support the system and protect themselves... I believe that this is a considerable impairment of [the applicant]’s ability to “weigh” information and balance risks and needs in order to come to a reasonable decision, in addition to his difficulty in believing information about his mental condition and treatment needs. This is caused by his suspiciousness and anxiety which derive directly from his mental condition. I am entirely satisfied that [the applicant] does not have capacity with respect to decisions about the treatment of his mental condition.” The SOAD also prepared a second witness statement, dated 15 November 2000, in which he said that he had been aware of the applicant’s heart condition from the records but that he had considered that the potential benefits of the treatment outweighed the risks. Since the Court of Appeal hearing there have been no further attempts to impose compulsory treatment and the applicant has not attempted to progress the judicial review proceedings to a substantive hearing. B.     Relevant law and practice 1.     Treatment under the 1983 Act Detention in a psychiatric institution pursuant to the 1983 Act does not, of itself, authorise treatment. The individual’s consent must be obtained or, if that consent is not forthcoming, Part IV of the 1983 Act applies. Section 63 provides that the treatment shall be given for the mental disorder from which the individual suffers: without compliance with this condition, the treatment is unlawful. Sections 57 and 58 of the 1983 Act then go on to provide a range of additional safeguards graded to reflect the severity of the various treatments which may be contemplated. Section 58, the relevant section for the present case, applies to two different forms of treatment (electronic convulsive therapy and “long-term medication”). Both can only be applied on the basis of conditions set out in section 58. In the case of long-term medication, the conditions are set out in section 58 (3) and (4): “(3)     Subject to section 62 below [which makes provision for urgent treatment], a patient shall not be given any form of treatment to which this section applies unless (a)     he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or (b)     a registered medical practitioner appointed as aforesaid (not being [the RMO]) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. (4)     Before giving a certificate under subsection 3(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner ...” 3. The SOAD The “registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State” referred to in section 58 (3) above is commonly referred to as an SOAD. The Mental Health Act Code of Practice (“the Code”) provides guidance as to his role. Paragraphs 16.20 -22 of the Code state that: “The role of the SOAD is to provide an additional safeguards to protect that patient’s rights...The SOAD acts as an individual and must reach his or her own decision as to whether the proposed treatment is reasonable in the light of the general consensus of appropriate treatment for such a condition....The SOAD should seek professional opinion about the nature of the patient’s disorder and problems, the appropriateness of various forms of treatment including that proposed, and the patient’s likely response to different types of treatment. The SOAD should take into account any previous experience of comparable treatment of a similar episode or disorder. The SOAD should give due weight to the opinion, knowledge and skill of those consulted.” Paragraph 16.26 of the Code describes the SOAD’s obligations during a visit: “During the visit the SOAD should a. in the case of a treatment under section 58, satisfy him or herself that the patient’s detention papers are in order; b. interview the patient in private if possible. Others may attend if the patient and SOAD agree, or if it is thought that the doctor would be at significant risk of physical harm from the patient. c. discuss the case with the patient’s RMO face to face, or on the telephone in exceptional circumstances; d. consult with two other persons professionally concerned with the patient’s care as statutorily required...The SOAD should be prepared, where appropriate, to consult a wider range of persons professionally concerned with the patient’s case than those required by the Act, and, with the patient’s consent, the patient’s Nearest Relative, family, carer or advocates.” 2.     Limitation on liability Section 139 of the 1983 Act provides, in so far as relevant, as follows: “(1)     No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act ... unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.” 4. Subsequent case-law The Court of Appeal reconsidered its judgment in this case in the subsequent case of R (N) v M and others [2002] EWCA Civ 1789. The claimant in that case was also a restricted mental patient detained in hospital, who refused to consent to a treatment plan which included the administration of anti-psychotic medication by injection for her psychotic illness. The claimant obtained a report from a psychiatrist who concluded that she was unlikely to be psychotic and therefore should not be given anti-psychotic medication. An SOAD issued a certificate under section 58(3)(b) of the 1983 Act stating that the claimant was suffering from either paranoid psychosis or severe personality disorder and required regular anti-psychotic treatment. He considered that the claimant did not have the capacity to consent. The claimant’s application for judicial review was dismissed. The High Court concluded in the light of the medical evidence that the claimant did not have capacity to consent and that the treatment was necessary in her best interests. It considered that the medical necessity for treatment had been convincingly shown in accordance with the test in the Herczegfalvy case. The Court of Appeal dismissed the appeal. It approved the High Court’s application of the Herczegfalvy test. In addition, it stated that cross-examination should not always be necessary because, in many cases, it would be clear whether medical necessity has been convincingly shown without having to hear oral evidence. It stressed that the Court of Appeal’s decision in the present case should not be used as a charter for routine applications for cross-examination in human rights cases. It pointed out that the court’s role was “essentially one of review”. C. Council of Europe standards On 3 January 2000 the Working Party of the Steering Committee on Bioethics of the Council of Europe (“the Working Party”) published a consultation paper on the protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients in a psychiatric establishment (“the White Paper”). As to the procedures for taking a decision of involuntary placement or treatment, the White Paper said the following (at § 4.2-4.3): “[T]he decision confirming involuntary placement or treatment should be taken by a relevant independent authority, which should base its decision on valid and reliable standards of medical expertise. The Working Party had considered at length the notion of “relevant independent authority”...In the opinion of the Working Party, the relevant question was the independence of the body or authority which takes the decisions of placement, the independence of which could be verified by the fact that it was a different authority than the one which proposed the measure and by the fact that its decision was a sovereign decision not influenced by instructions from any source whatsoever. It was thus noted that, in some countries, the relevant authority may be a doctor authorised to take such a decision with a psychiatric establishment, for example, who should be independent in relation to the doctor who proposed the placement measure...” As to involuntary treatment it said (at § 6.3-4) “The representative of a person should be consulted but where he/she refuses consent to treatment for the person concerned, it should be possible to approach a court or court-like body with the power to respect or overturn the decision of the representative. The Working Party was also of the opinion that a written scheme of involuntary treatment must be drawn up, if possible, in consultation with the patient, his or her representative or, where there was no representative, submitted to an independent authority for decision. The scheme should be reviewed regularly and open to modification at all times in consultation with the patient, his or her representative or an independent authority, as appropriate. Should the patient not consent to the said scheme, he or she should be able to appeal to a court or court-like body.” This White Paper led to Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with a mental disorder (“the Recommendation”), adopted by the Committee of Ministers on 22 September 2004. When adopting the decision the Permanent Representative of the United Kingdom indicated that he reserved the right of his Government not to comply with the Recommendation as a whole. Article 16 of the Recommendation, provides as follows: “ Article 16 – Scope of chapter III The provisions of this chapter apply to persons with a mental disorder: i. who have the capacity to consent and are refusing the placement or treatment concerned; or ii. who do not have the capacity to consent and are objecting to the placement or treatment concerned.” Articles 18 to 20 (which are all within chapter III) provide as follows: “ Article 18 – Criteria for involuntary treatment A person may be subject to involuntary treatment only if all the following conditions are met: i. the person has a mental disorder; ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons; iii. no less intrusive means of providing appropriate care are available; iv. the opinion of the person concerned has been taken into consideration. Article 19 – Principles concerning involuntary treatment 1. Involuntary treatment should: i. address specific clinical signs and symptoms;   ii. be proportionate to the person’s state of health; iii. form part of a written treatment plan; iv. be documented; v. where appropriate, aim to enable the use of treatment acceptable to the person as soon as possible. 2. In addition to the requirements of Article 12.1 above, the treatment plan should: i. whenever possible be prepared in consultation with the person concerned and the person’s personal advocate or representative, if any; ii. be reviewed at appropriate intervals and, if necessary, revised, whenever possible in consultation with the person concerned and his or her personal advocate or representative, if any. 3. Member states should ensure that involuntary treatment only takes place in an appropriate environment. Article 20 – Procedures for taking decisions on involuntary placement and/or involuntary treatment Decision ... 2. The decision to subject a person to involuntary treatment should be taken by a court or another competent body. The court or other competent body should: i. take into account the opinion of the person concerned; ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted. However, the law may provide that when a person is subject to involuntary placement the decision to subject that person to involuntary treatment may be taken by a doctor having the requisite competence and experience, after examination of the person concerned and taking into account his or her opinion. 3. Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article 25. Procedures prior to the decision 4. Involuntary placement, involuntary treatment, or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience, and in accordance with valid and reliable professional standards. 5. That doctor or the competent body should consult those close to the person concerned, unless the person objects, it is impractical to do so, or it is inappropriate for other reasons. 6. Any representative of the person should be informed and consulted.” ‘Competent body’ is defined by Article 2.3 of the Recommendation to mean:   “an authority, or a person or body provided for by law which is distinct from the person or body proposing an involuntary measure, and that can make an independent decision.” Article 25 of the Recommendation, which is also within chapter III, provides as follows: “ Article 25 – Reviews and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment 1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right: i. to appeal against a decision; ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; iii. to be heard in person or through a personal advocate or representative at such reviews or appeals. 2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals. 3. Member states should consider providing the person with a lawyer for all such proceedings before a court. Where the person cannot act for him or herself, the person should have the right to a lawyer and, according to national law, to free legal aid. The lawyer should have access to all the materials, and have the right to challenge the evidence, before the court. 4. If the person has a representative, the representative should have access to all the materials, and have the right to challenge the evidence, before the court. 5. The person concerned should have access to all the materials before the court subject to the protection of the confidentiality and safety of others according to national law. If the person has no representative, he or she should have access to assistance from a personal advocate in all procedures before a court. 6. The court should deliver its decision promptly. If it identifies any violations of the relevant national legislation it should send these to the relevant body.” 7. A procedure to appeal the court’s decision should be provided.” Article 28 (which is in chapter V) provides, in so far as relevant: “1. Treatment for mental disorder that is not aimed at producing irreversible physical effects but may be particularly intrusive should be used only if no less intrusive means of providing appropriate care is available. Member states should ensure that the use of such treatment is: i. subject to appropriate ethical scrutiny; ii. in accordance with appropriate clinical protocols reflecting international standards and safeguards; iii. except in emergency situations as referred to in Article 12, with the person’s informed, written consent or, in the case of a person who does not have the capacity to consent, the authorisation of a court or competent body; iv. fully documented and recorded in a register.” COMPLAINTS The applicant complained that the imposition of medical treatment against his will was a breach of the State’s negative obligations under Articles 3 and 8 of the Convention. The applicant also argued that the authorities failed in their positive obligation under Articles 3 and 8 to provide suitable safeguards against the imposition of treatment that would violate his rights under those Articles. He specified two safeguards in particular that should have been in place: the authorities should have, of their own accord, sought approval from a court before imposing treatment; secondly, he should have been able to bring a challenge against the treatment, before it took place, in a court which would have been able to provide a suitable level of review. In addition, he submitted that Article 6 was violated because he was not able to have a determination of his ‘civil right’ to autonomy in a court that would have provided a review on the merits. He also complained under Article 13 of the Convention, that he did not have an effective remedy in relation to the said breaches. Finally, he complained under Article 14 of discrimination on the basis of his status as a patient detained under the 1983 Act. THE LAW Preliminary Issue – Exhaustion of Remedies 1. Submissions of the parties The Government pointed out that the applicant did not challenge his past treatment in the judicial review proceedings. They submitted that he could have done so – seeking, for example, a declaration and damages. There would have been no significant difference between such proceedings and other possible public law proceedings, such as declaratory proceedings in the Family Division of the High Court, or section 7 Human Rights Act proceedings. However, they considered that his reasons for not bringing judicial review proceedings in relation to past treatment were understandable and pragmatic: such proceedings would not have been worthwhile on a cost-benefit analysis. As for private law proceedings, they argued that, in theory, the applicant could have brought a tortious claim in relation to the past treatment. However, they accepted that such a claim would have faced major factual and legal difficulties because there was no indication that either the RMO or the SOAD acted negligently or in bad faith. Thus a negligence action would not have been a realistic option. A claim for assault would also have been fraught with difficulty because of section 139(1) of the 1983 Act, which precluded any liability against the doctors in question (see above). In the circumstances, they did not submit that the applicant had failed to exhaust domestic remedies, although they did note that, in relation to past treatment, there was, in principle, an avenue which remained open. The applicant corrected the Government’s assertion that damages would have been available in any judicial review proceedings. He pointed out that, as a result of section 31(4) of the Supreme Court Act 1981, damages were only available in judicial review proceedings where the facts give rise to a private law claim in damages in addition to the public law claim for judicial review. In addition, he asserted that no claim for negligence was made because it was not his case that the decision of the RMO and the SOAD did not accord with a reasonable body of medical opinion (the test in Bolam v   Friern Hospital [1957] 2 AER 118, as modified in Bolitho v City & Hackney HA [1988] AC 232). 2. The Court’s assessment The Court recalls that Article 35 of the Convention only requires the exhaustion of such remedies as relate to the breaches of the Convention alleged and which at the same time can provide effective and sufficient redress. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (See Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996–IV, §§ 66 and 68; and V. v. the United Kingdom [GC], no.   24888/94, § 57, ECHR-IX). In the present case, the Government accepted that the applicant would not have had any real prospects of success in private law proceedings. The applicant made it clear that it was no part of his case that the RMO or SOAD had acted in bad faith or, further, that either had acted unreasonably (namely, not in accordance with a responsible body of medical opinion – the Bolam/Bolitho test): he thereby effectively conceded that negligence proceedings had no real prospect of success. The Court finds no reason to differ from the views of the parties and, further, finds that section 139 of the 1983 Act excluded any other civil action. It considers that private law proceedings did not offer any reasonable prospects of success and that such proceedings could not therefore be considered effective within the meaning of Article 35 § 1 of the Convention. Although the applicant could have brought public law proceedings, he would not have been able to obtain damages in relation to past treatment. By virtue of section 31(4) of the Supreme Court Act 1981 the only remedies available in s