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Without consent

When is medical treatment without the patient’s consent inhuman or degrading?
Peter Marquand looks at a recent case

28 February 2003

In R (N) v M [2002] EWCA Civ 1789; [2003] 1 FCR 124 the Court of Appeal considered whether proposed medical therapy for a mental disorder amounted to inhuman or degrading treatment under Art 3 of the European Convention on Human Rights (ECHR). This decision is relevant not just to medical treatment under the Mental Health Act but also to treatment under the common law of those without capacity to decide for themselves. Under the common law, a patient who does not have capacity to consent to or refuse medical treatment must be treated in his or her best interests (Re F [1990] 2 AC 1). The treatment provided to patients detained under the Mental Health Act (MHA) must however comply with the provisions of the Act. In both circumstances the treatment must be compatible with the patient’s human rights. Facts N, a long-term patient detained under the MHA, brought a judicial review of a responsible medical officer’s (RMO) decision to treat her without her permissi...

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