Nottinghamshire Healthcare NHS Trust v RC  EWHC 1317 (COP)
This is the sequel to the case of Nottinghamshire Healthcare NHS Trust v J  EWHC 1136 (COP) that we reported in our May newsletter. It was received just too late to include in that newsletter.
The case concerned RC (known as J in the first judgment), a young man aged 23 who was in prison but detained under the Mental Health Act 1983. He suffered from what was described as a serious personality disorder, a symptom of which was that he had engaged in significant self-harm on a number of occasions which resulted in profuse bleeding (he was on anticoagulant drugs because of a history of thrombosis). He was a Jehovah’s Witness and had made what purported to be an advance decision to refuse specified medical treatment, namely blood transfusions.
The matter came on by way of an urgent ex parte application before Holman J on 9 April 2014.
The first limb of the Trust’s application asked for a declaration that a written advance decision was valid and was applicable to the treatment described in the advance decision. The judge considered sections 24 – 26 of the MCA 2005 and declared on an interim basis that the written advance decision was valid and applicable to that treatment notwithstanding that (a) the young man’s life may be at risk from the refusal of treatment and (b) that he was a patient detained under the Mental Health Act.
The second limb of the application brought by the NHS Trust related to the interrelation of the provisions of the MCA 2005 in relation to advance decisions to refuse treatment and the applicability in this case of section 63 of the Mental Health Act 1983 which provides: “the consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering…if the treatment is given by or under the direction of the approved clinician in charge of the treatment.” The second limb of the application asked the judge to make an interim declaration that “it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983.”
Holman J held that he did not feel equipped or willing to make the declaration as he had only heard representations from one side without notice to the patient or any other person. He listed a hearing for the next day having made a preliminary inquiry of the Official Solicitor. He also directed that the NHS Trust use its best endeavours to facilitate and promote that the patient himself be represented at the hearing and to ensure that the patient’s father be informed of the hearing and encouraged to attend.
The substantive hearing was ultimately heard before Mostyn J on 24 April; he gave his decision at the hearing, with his reasons following in a judgment dated 1 May 2014.
The legal framework
Mostyn J started his consideration of the case with a review of some fundamental legal principles, namely that:
(1) In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself (St George’s Healthcare NHS Trust v S  Fam 28); and
(2) That right extends also to those who are detained (Home Secretary v Robb  1 FLR 412 Thorpe J), albeit that the consideration of protecting innocent third parties is one that is undoubtedly recognised in this jurisdiction, such that “if a detained person were to make a formal written request to be given a razor blade with which to harm himself, or a rope with which to hang himself, such a request should obviously be refused both on moral and legal grounds for this reason, as dealing with the aftermath would be a dreadful and traumatic task for the staff” (paragraph 12) (The provision of a rope would also be an offence under the Suicide Act 1961, s2(1) (complicity in another’s suicide).
Mostyn J then noted the three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.
(1) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the MCA;
(2) Similarly, adults who have capacity but who can be categorised as “vulnerable” and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority  3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage)  1 FLR 867).
(3) Under the Mental Health Act 1983 (“MHA”) a detained patient may have treatment imposed on him or her pursuant to section 63 which provides, so far as is relevant to this case:
“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment”
As regards judicial authorisation in respect of three circumstances identified immediately above:
(1) If a self-destructive course is being pursued by an incapacitated person (who has not made a valid advance decision) then pursuant to Court of Protection Practice Direction 9E life saving measures will likely amount to “serious medical treatment” requiring the issue to be determined by the Court of Protection. “Plainly, in any case where the protected party contests a decision to impose treatment on him he is entitled to a hearing in the Court of Protection to determine the issue” (paragraph 16). Mostyn J cited as an example of a case in which life-saving treatment has been ordered in the face of trenchant opposition from the incapacitated person that of Re E (Medical treatment: Anorexia)  EWHC 1639 (COP)
(2) A decision imposing equivalent measures on a vulnerable adult requires a hearing in, and an order of, the High Court (paragraph 17);
(3) A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review: see R (on the application of B) v Haddock (Responsible Medical Officer)  MHLR 306. Paras 13 and 14 of that decision make clear that convention rights will be in play and therefore a “full merits review” must be undertaken on the evidence, with the court making the decision de novo, but placing considerable weight on the initial decision made under section 63 by the approved clinician in charge of the treatment. As Mostyn J noted, however,
“19. […] a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged. As is well-known this protects the right to life. It is the most fundamental of the convention rights. Countless authorities have emphasised the imperative duty on public authorities to give effect to this right where detained persons are concerned. So if the approved clinician in charge of the treatment decides not to impose potentially life-saving treatment one can see the important need for judicial scrutiny to determine whether the patient has with a full awareness of the implications elected to opt-out of the right to life granted to him by Article 2. And one would expect, as has happened here, that a second medical opinion would be commissioned concerning the approved clinician’s decision.
21. In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a “full merits review” of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.”
As to the principles that the court should apply when conducting a full merits review on an application for declaratory relief in circumstances where a decision has been made not to impose potentially life saving treatment under s.63 MHA 1983, Mostyn J held that:
“26. […] Obviously the expressed wishes of the patient will be highly relevant. If there is an advance decision in place under sections 24 and 26 of the MCA then this will weigh most heavily in the scales. The Hippocratic duty to seek to save life, or the benign but paternalistic view that it is in someone’s best interests to remain alive must all surely be subservient to the right to sovereignty over your own body. Beyond this, considerations such as whether the treatment would be futile will no doubt be relevant; for example, if the repair of a laceration would inevitably be followed by a new one or if the patient was suffering from another unrelated terminal disease.”
The treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports were almost unanimous. They agreed (paragraph 27) that:
(1) RC suffered from a mental illness namely antisocial and emotionally unstable personality disorders. This was a disturbance of the functioning of the mind, which was one of the classic definitions of mental disorder.
(2) However, he had full capacity to refuse blood products. His refusal derived almost exclusively from his religious faith. Further, he had full capacity to enter into the advance decision on 4 April 2014. Further still, his decision to adopt the religion of the Jehovah’s Witnesses was made with full capacity.
(3) So far as RC’s capacity to harm himself was concerned on occasions he did so with full capacity. However, on other occasions, particularly at times of severe emotional distress, it was likely that he did so without the capacity to choose to self-harm.
(4) RC harmed himself with the intention of distracting himself from distressing thoughts and feelings. He did so without really thinking about the consequences and dangers. However his view was that it is his body and therefore his choice to damage it.
Where they disagreed was whether the administration of a blood transfusion amounted to treatment which prevented the worsening of a symptom or manifestation of RC’s mental disorder. Dr S was of the opinion that it plainly was. Dr Latham disagreed.
Mostyn J noted that:
“30. If I were confined to the literal words of sections 63 and 145(4) I think I would agree with Dr Latham and Miss Watson. However, the authorities have supplied a definition which is some distance from the meaning of the literal words. In St George’s Healthcare NHS Trust v S at 747F Judge LJ stated that ‘section 63 of the Act may apply to the treatment of any condition which is integral to the mental disorder’.
31 On reflection I am in agreement with Mr Francis QC’s analysis [i.e. that of Dr S]. It cannot be disputed that the act of self harming, the slashing open of the brachial artery, is a symptom or manifestation of the underlying personality disorder. Therefore to treat the wound in any way is to treat the manifestation or symptom of the underlying disorder. So, indisputably, to suture the wound would be squarely within section 63. As would be the administration of a course of antibiotics to prevent infection. A consequence of bleeding from the wound is that haemoglobin levels are lowered. While it is strictly true, as Dr Latham says, that ‘low haemoglobin is not wholly a manifestation or symptom of personality disorder’, it is my view that to treat the low haemoglobin by a blood transfusion is just as much a treatment of a symptom or manifestation of the disorder as is to stitch up the wound or to administer antibiotics.”
When it came to capacity, having noted the fundamental principle of the presumption of capacity contained in s.1(2) MCA 2005, Mostyn J noted that:
33. […] In this case Mr Francis QC correctly argues that the only the possible question relates to whether RC is able to weigh information in the balance. In his report Dr Latham says:
‘His ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create, in his mind (and others) an absolute prohibition on blood products and so there is relatively little ‘weighing’ when it comes to this decision.’
But, as Mostyn J noted:
“34. This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay [On Liberty] John Stuart Mill speaks of the prohibition in Islam on the eating of pork. He describes how Muslims regard the practice with ‘unaffected disgust’; it is ‘an instinctive antipathy’. There can be no circumstances where a Muslim could ‘weigh’ the merit of eating pork. It is simply beyond the pale. So too, it would appear, when it comes to Jehovah’s Witnesses and blood transfusions. But it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA.
35. I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion should his medical circumstances indicate that one is necessary.
36. I am completely satisfied on the evidence and so declare that RC has full capacity to refuse the administration of blood products.”
Mostyn J further held that the advance decision was valid, complying as it did with all the requirements in ss.24-5 MCA 2005. “Therefore, should RC ever be in a position where for whatever reason he lacks capacity, but there is indicated a medical need for a transfusion, then the advance decision will be operative” (paragraph 40).
Having conducted his full merits review, Mostyn J concluded that the decision made by Dr S not to use the MHA 1983 to override RC’s capacitous wishes was entirely completely correct:
“In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets) notwithstanding the existence of powers under section 63 MHA.”
This is a very interesting judgment, not least in its clear (and I would suggest completely correct) upholding of the principle that a person with capacity should be able to refuse medical treatment even if – as here – there is a legal framework which could on its face be used to impose it against their will. This is so even where the result of that refusal is either inevitable or likely death. I would also respectfully endorse the proposition that circumstances that arose in this case should be brought to the Court; it is interesting to note that Mostyn J (unlike Holman) felt no compunction about wading into the ethical dilemma that confronted Dr S by holding without hesitation that she was correct in his instinctive reaction that it would problematic to use s.63 MHA 1983.
The case also sits neatly with that of A County Council v MS and RS  EWHC B14 (COP) (the tithing case) that we covered in the May newsletter, in which District Judge Eldergill was at pains to distinguish between the aspects of MS’s decision-making that reflected his deeply-held religious beliefs and those aspects that might be said to relate to an impairment or disturbance of the mind or brain.
The one point that I hesitated over when reading was the comment made in relation to the power of the High Court to order treatment to be carried out upon a vulnerable adult. I am not, for myself, sure that the inherent jurisdiction has ever been deployed that far, at least since the coming into force of the MCA 2005 – in my experience, the courts have had recourse to this jurisdiction to seek to remove the external sources of the pressure robbing the vulnerable adult of their ability to give true consent, rather than to take, in essence, best interests decisions on the part of P. Indeed, a contention that the inherent jurisdiction could be used “in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance” was robustly rejected by Macur J in LBL v RYJ and VJ  EWHC 2665 (COP) (the Court of Appeal referring with approval in DL to her comments that the jurisdiction in this regard is facilitative rather than dictatorial). Whilst Baker J approved the force-feeding (and associated deprivation of liberty) of Dr A under the inherent jurisdiction, it was clear that Dr A lacked capacity to take the material decisions for purposes of the MCA 2005 – Baker J had to have recourse to the inherent jurisdiction because of the vagaries of Schedule 1A to the MCA 2005.
That having been said, it seems to me that the time will inevitably come when the decision in Re T (Adult: Refusal of Treatment)  Fam 95 is revisited through the prism of the MCA 2005. In that case, Lord Donaldson MR considered the question of capacity to refuse medical treatment, first in isolation, and then by reference to “The vitiating effect of outside influence.” He noted  Fam 95 at 113 that:
“A special problem may arise if at the time the decision is made the patient has been subjected to the influence of some third party. This is by no means to say that the patient is not entitled to receive and indeed invite advice and assistance from others in reaching a decision, particularly from members of the family. But the doctors have to consider whether the decision is really that of the patient. It is wholly acceptable that the patient should have been persuaded by others of the merits of such a decision and have decided accordingly. It matters not how strong the persuasion was, so long as it did not overbear the independence of the patient’s decision. The real question in each such case is “Does the patient really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself?” In other words “Is it a decision expressed in form only, not in reality?”
When considering the effect of outside influences, two aspects can be of crucial importance.
First, the strength of the will of the patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful. Second, the relationship of the “persuader” to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be, but is by no means necessarily, much stronger than would be the case in other relationships. Persuasion based upon religious belief can also be much more compelling and the fact that arguments based upon religious beliefs are being deployed by someone in a very close relationship with the patient will give them added force and should alert the doctors to the possibility – no more – that the patient’s capacity or will to decide has been overborne. In other words the patient may not mean what he says.”
As Butler-Sloss LJ put it (at 117):
The question may arise as to whether the decision to consent to or reject treatment is made by a patient who has the capacity to make the decision, in other words whether he is fit to make it, or whether he has genuinely made the decision. Even if at the moment of decision the patient is fit to make it, his will may have been overborne by the undue influence of another, or by deception or misinformation of a significant kind. Although the issues of capacity and genuine consent or rejection are separate, in reality they may well overlap, so that a patient in a weakened condition may be unduly influenced in circumstances in which if he had been fit, he would have resisted the influence sought to be exercised over him.
In T’s case, the Court of Appeal held that T’s purported written refusal of a blood transfusion was not effective in all the circumstances, including T’s mental and physical state when she signed the form, the pressure exerted on her by her mother and the misleading response to her inquiry as to alternative treatment. The doctors, the Court found, were therefore justified in treating her on the principle of necessity.
If and when a case such as T’s comes before the courts now, very interesting questions will arise as to whether:
(1) the court would treat her as incapacitated for purposes of the MCA 2005 (which would appear unlikely);
(2) the court would find that she was vulnerable in the Re SA sense and whether it would hold that the inherent jurisdiction has survived the enactment of the MCA 2005 so as to allow treatment to be carried out; and
(3) whether in carrying out this treatment, the doctors are entitled to rely upon the doctrine of necessity (which, logically, would appear to be correct as, by definition, ss.5-6 MCA 2005 could not apply).
Whilst Mostyn J’s comments in this case would suggest that the court would reach the same outcome if T’s case was to come before the courts again, I would be cautious before relying upon them too heavily as considered statements of the law in an area that has been curiously under-rehearsed since the MCA 2005 was enacted.