An interface overcome – physical treatment for a detained patient 

A Hospital NHS Foundation Trust v K [2023] EWCOP 59 concerned the treatment for leukaemia of a patient detained under the Mental Health Act 1983.

Procedurally, there was a delay in bringing proceedings as a result of a dispute between the Trust responsible for the hospital where K was to receive the treatment, and the private provider responsible for the hospital where she was detained under the MHA 1983.   John McKendrick KC (sitting as Tier 3 Judge) did not “propose to comment on the dispute between the applicant and the X group, other than to observe that no public body or private institution tasked with caring for vulnerable people should compromise their charges’ welfare through a lack of cooperation” (paragraph 17).  There were also multiple other deficiencies in the applicant’s case which made it impossible for the court to give an extempore judgment.

In the reserved judgment, John McKendrick KC was satisfied that K lacked capacity to make the material decisions.  As regards her best interests, he was clear that:

63. Ms KL wishes to live. She wishes to get better. She enjoys her family. She values her autonomy. Her wishes and feelings are clear and she has been able to communicate them to her treating haematology team: she wants to get better and she does not want to die. I place significant weight on her ascertainable and clear wishes.

The treatment, however, would not be risk-free, carrying with it a 5% risk of death from infection.  John McKendrick KC also had:

66. […] very much in mind the arduous nature of the treatment; the prolonged period of inpatient admission; the necessity for X Group staff to be on the ward with a ratio of 4:1 staff and the need for restraint both for mental health reasons and to deliver the intravenous chemotherapy. These are very significant interferences in Ms KL’s rights. They are however, entirely necessary and proportionate because without this background to the treatment, she could not be safely provided with the intravenous chemotherapy. She manifestly needs it. The haematology evidence is that her prognosis with the treatment is good. I am concerned the risk of infection is very high because of the ancillary damage done to cells because of the toxic nature of the chemotherapy and I am in full agreement with the clinicians that inpatient admission until March is necessary and very much in Ms KL’s best interests to keep her safe from infection when she is weakened by the intravenous chemotherapy.

He found, therefore, that three further cycles of intravenous chemotherapy were in her best interests, together with a portacath.

As regards deprivation of liberty, John McKendrick KC had to navigate a complexity caused by the interaction between the MHA 1938 and the DoLS regime, accepting (“under very limited time” (paragraph 71) the agreed submissions that “Ms KL is not ineligible to be deprived of her liberty as a patient in hospital for medical treatment albeit she is on section 17 MHA leave.”   He further agreed with the analysis of the Official Solicitor that any restraint provided outside the circumstances under the chemotherapy terms remained treatment required to keep her safe and well in hospital for purposes of receiving such treatment (i.e. that it did not give rise to ‘medical treatment for mental disorder’) such that it could be authorised under the MCA 2005.  John McKendrick KC made clear that:

74. Restraint must be carried out in accordance with terms of section 6 of the 2005 Act and consistently with paragraphs 6.40 to 6.48 of the 2005 Act Code of Practice. The applicant must agree a care plan with the Official Solicitor in respect of restraint. It will be subject to the court’s anxious scrutiny at the next hearing (see below).

Going forward, John McKendrick KC noted that:

76. Given the multiple breaches of court orders I am concerned for Ms KL’s welfare. The disregard for the orders and directions made by Theis J and the piecemeal nature of how the evidence has been given to Ms KL’s litigation friend and family is not simply a procedural hiccup. It has obscured the court’s focus on the welfare and safety of Ms KL. Therefore, it is necessary to list this matter for a review hearing in the first week of February, with a time estimate of half a day, to consider the deployment of restraint, and to ensure Ms KL’s best interests in respect of cycles 3 and 4 are being properly managed. The parties will agree directions for this. If all matters are agreed then an agreed order can be placed before the court and the hearing vacated. It is necessary to emphasise the importance of the applicant complying with those directions.

77.  Should there be ancillary applications to name the applicant and/or X Group and or seek costs or for any other reason I will make directions to consider such applications.

He also expressly identified his gratitude “to the Official Solicitor, her team and her counsel who have had to grapple with the consequences of the breach of directions by working long hours beyond the reasonable working day” (paragraph 78).

Given the procedural problems faced by the court, it is perhaps unsurprising that it gave relatively short shrift to the deprivation of liberty issue, but one question that it could have asked here was as to whether any authority to deprive KL of her liberty at the acute trust was in fact required at all, or whether placing her under custody of the managers of that hospital under s.17(3) MHA 1983 would have given sufficient authority for the purpose.

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