Alex RKIn lieu of a Mental Capacity Report, the next edition of which will be out in February, and which will have further coverage of the cases mentioned here, I provide here a round-up of a burst of judicial authority in late December / early January (each of these are also posted separately for those wanting more bite-sized breakdowns).
Mental disorder, medical evidence and deprivation of liberty
In Stockport MBC v KB [2023] EWCOP 58, HHJ Burrows addressed two questions in relating to ‘community DoL’ applications that have bubbled away for some time. As he noted at paragraph 2:
The first is whether, in order to satisfy the requirement under Article 5§1(e), namely that P suffers from “unsoundness of mind”, the evidence upon which that conclusion is based has to say so in those terms? Secondly, whether the Court, either in its guise as a judge considering a COPDOL11 application on the papers, or via an application under the COP1 procedure, has to be in possession of evidence from a medical doctor?
As set out by HHJ Burrows, the decision came against a backdrop of considerable difficulty on the part of the applicant local authority obtaining the requisite evidence from GPs. Some of their concerns related to the use of the term ‘unsound mind.’ Some of them were also concerned about their unwillingness to carry out an assessment they did not feel qualified to carry out. As HHJ Burrows noted at paragraph 15:
If the letter in response was going to be used in any way as a mental health assessment it was thought they would need to have been section 12 approved doctors under the MHA’83. In fact, s.12 MHA approval is relevant only to the process of authorising detention within that Act, often referred to as “sectioning”. As the COPDOL11 form makes clear, s. 12 approval is not required for an assessment to be made in this process. Notwithstanding that, however, any clinician who does not consider themselves able to certify that a patient has a mental disorder or is “of unsound mind”, must not do so.
Further GP concerns were about the ‘medico-legal’ implications of putting their names to confirmations that a person is of unsound mind (HHJ Burrows, unfortunately, did not comment upon the validity or otherwise of this concern), and, finally, that none of the three forms of standard contracts under which GPs operate oblige them to provide medical evidence to public bodies for Court of Protection applications (he could also have added that GPs fall outside the scope of those to whom s.49 applications can be directed).
HHJ Burrows summarised his conclusions at paragraph 2 thus:
(1) In the context of applications to authorise a package of care, which inevitably results in P being deprived of his or her liberty, the Court must be satisfied that P suffers from unsoundness of mind. However, these words have no mystical powers; they are not an “open sesame” giving access to the Article 5 cave. They refer to a mental disorder. It is for the court to be satisfied that P is of unsound mind on the basis of the evidence before it. Provided that evidence satisfies the Court that P has a mental disorder, and subject of course to the other essential requirements also being satisfied, the Court may authorise detention.
(2) The European Court of Human Rights (ECtHR) jurisprudence is clear that “unsoundness of mind” has to be proved by those seeking to assert it on sound medical evidence. Usually that evidence will come from a medical doctor, generally a psychiatrist or General Practitioner. Whether, in appropriate circumstances that evidence could come from a psychologist, mental health nurse, or other similar specialist clinical expert may be a moot point. It is one I do not have to decide in this case. I simply direct that the Applicant needs to commission and instruct a registered medical doctor, either a psychiatrist or a GP, to review KB’s case and provide a report dealing with her diagnosis as well as whether that condition causes her to lack capacity to make relevant decisions, as well as the likely duration of that condition.
HHJ Burrows gave chapter and verse as to the reasoning underpinning his conclusions by reference to Strasbourg case-law, up to and including the Grand Chamber ‘restatement’ of the position in Rooman v Belgium [2019] ECHR 109, making clear that the key consideration was as to whether there was reliable evidence of mental disorder, rather than (for instance) the use by any clinician of the precise term ‘unsound mind.’ Further, as he put it at paragraph 31:
The word “medical” connotes that the evidence is of and pertaining to the science of medicine. It is clear to me that means a registered medical practitioner. There is no need to elaborate on that in this case. Here it means either a psychiatrist or a GP. Whether a wider net can be cast for other clinicians, such as clinical psychologists, learning disability nurses, or occupational therapists, may be a moot point. However, in this case the evidence needed is from a medical doctor.
One observation that might give readers pause is HHJ Burrows’s statement at paragraph 28 that “[o]f course it is important to be clear… that the Court remembers that the mental disorder must be the cause of the mental capacity,” as it could be read as suggesting that it is necessary for the capacity assessment to be carried out by a clinician. This is undoubtedly not the case, because it is entirely possible for assessment of whether the person has capacity to consent to the arrangements giving rise to their confinement to be carried out (for instance) by a social worker; so long, in such a case, as there is medical evidence that the person does, indeed, have a mental disorder.
Further, although it is entirely understandable that HHJ Burrows did not wish to wade into the debate about how wide a definition can be given to the word ‘medical,’ it is perhaps to be regretted that he did, as it was an issue causing considerable discussion in the context of the (now aborted) moves towards implementation of the Liberty Protection Safeguards. I, for one, would have been interested in his take (even obiter) on in a later paragraph – 130 – in Ilnseher v Germany to that cited in his judgment, where the European Court of Human Rights said:
As for the requirements to be met by an “objective medical expertise”, the Court considers in general that the national authorities are better placed than itself to evaluate the qualifications of the medical expert in question [,,,] However, in certain specific cases, it has considered it necessary for the medical experts in question to have a specific qualification, and has in particular required the assessment to be carried out by a psychiatric expert where the person confined as being “of unsound mind” had no history of mental disorders […] as well as, sometimes, the assessment to be made by an external expert […] (case citations omitted, emphasis added).
The MCA and human rights – a refresher
Paul Bowen KC, sitting as a Tier 3 Judge, helpfully restated the interaction between the MCA and the ECHR in the medical treatment context in Re BNK (Dental Treatment) [2023] EWCOP 56. The case concerned dental treatment in relation to a 36 year old man with profound cognitive impairments. There were three options before the court, summarised at paragraph 3 thus:
3.1. Option one: Do nothing. This is likely to be BNK’s preferred option and is the least restrictive option which avoids the disadvantages associated with Options 2 and 3. However, this option does not address BNK’s current and future pain and the risk of serious infection, including sepsis which is a life-threatening condition.
3.2. Option two: General anaesthetic to allow full examination, radiographs, extraction of roots of upper front teeth and any other necessary treatment including fillings, extractions and/or extraction of all remaining teeth if they are not functional or unrestorable. This would address BNK’s pain and infection and would make eating and drinking more comfortable once the initial pain and swelling have receded. Other baseline medical examinations could also be carried out while BNK is anaesthetised namely blood tests; an ultrasound scan of his abdomen to investigate his abdominal pain; rectal examination; and an ear examination. However, this is a more restrictive option, is likely to cause BNK distress and require physical or chemical restraint during conveyance and admission. After awaking from the anaesthetic there would be post-operative pain and a risk of post-operative complications, but these should be manageable with a specific aftercare plan. There may also be psychological distress and BNK may be more resistant to treatment in future.
3.3. Option three: General anaesthetic for planned extraction of all remaining teeth (‘full dental clearance’). The advantages and disadvantages are as for Option 2, except a major additional disadvantage is BNK would have no teeth which would severely hamper his ability to eat and drink, which would be a significant loss. BNK’s father considers this would cause him significant distress as eating snacks is the ‘single activity that lights up his day’. This would be mitigated in future if BNK once his gums have hardened and/ or he is fitted for dentures, but this could only happen once the gums have healed. The major advantage of this option over Option 2 is that BNK would require no interventions in future which would spare him significant distress.
On the evidence before him, Paul Bowen KC found that option 2 was to be preferred, although he accepted that option 3 would be in BNK’s best interests if “upon examination, it transpires that he has insufficient manageable or functional teeth worth preserving; or if the process of conveyance and admission should prove so traumatic for BNK that it should be avoided in future at all costs. As I have already observed, the evidence is that BNK will still be able to eat many of the snacks he enjoys even after full dental clearance once the immediate sensitivity has gone” (paragraph 29).
Paul Bowen KC also noted at paragraph 30 that:
The parties made no submissions to me in relation to the human rights implications of the proposed treatment but I am satisfied that both Options 2 and 3 are compatible with BNK’s human rights and therefore lawful under s 6 HRA. Even if it might be said that the imposition of restraint and the administration of treatment against BNK’s wishes reached the threshold of ‘inhuman and degrading’ treatment for the purposes of Article 3, a medical intervention which is a therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading and is therefore not a violation: NHS Trust v X, [109]. Furthermore, while such treatment is also a prima facie interference with the right to bodily integrity protected by Article 8(1), such treatment may be justified under Article 8(2) as a necessary and proportionate means of achieving the legitimate end of preserving life and protecting BNK from harm. The state may be under a positive duty to protect an incapacitated adult such as BNK from serious pain and illness and from any real and immediate risks to life of which it is aware under Articles 2 and 3: see R. (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20. Such a duty will outweigh any countervailing duty to respect BNK’s right to bodily integrity under Article 8. I do not need to decide whether such a duty is in fact owed in these circumstances, as the state has a wide margin of appreciation when balancing its competing duties and ‘is entitled to have regard to the preservation of life as a factor that can permissibly be taken into account in appropriate circumstances in evaluating, for example, whether there has been a breach of article 3 or whether the qualifications to articles 8 and 9 come into play’: NHS Trust v X, [108]. I am satisfied that there is medical necessity for BNK to receive the proposed treatment in Options 2 and 3 and that if, on examination, Option 3 is preferred that will be for reasons of medical necessity. There will be no breach of BNK’s human rights in those circumstances.
It is also of note, finally, that BNK was identified as being a Jehovah’s Witness, but no relief ended up being sought because the risk of blood products being required as a result of the dental work was so low and any emergency would arise slowly and there were non-blood products which could be used.
Medical treatment and the clarity of options
In The NHS Foundation Trust v K [2023] EWCOP 57, Judd J had to consider an application for declarations with respect for K, a young person who was currently an inpatient in intensive care, with a progressive condition and whose treating doctors considered to be reaching the end of her life. The application was brought because it had proven very difficult to engage her family in discussions about end of life care.
As Judd J identified, there were only three options: (1) to continued to treat her in ICU, intubated so as to allow her to receive continuous breathing support; (2) to extubate her, and to stop any further attempts to re-intubate in the event of respiratory difficulties; and (3) to have a tracheostomy to manage her breathing support. Options 2 and 3 would give a prognosis of weeks or months; option (2) unlikely to be more than days. The Trust was not prepared to offer option 1 (nor did any of the experts instructed to report to the court consider it to be appropriate); it submitted that option 2 was in K’s best interests, but was prepared to offer option 3 if the court disagreed with option 2.
On the facts of the case, Judd J found that option 3 was not in J’s best interests, because thew prospects of K being able to obtain any benefit from a longer life and/or interaction with her family following a tracheostomy were too poor to outweigh the significant burdens that this would entail. Whilst she was clear that option 2 (palliative care and extubation) would also carry with it the potential for distress and discomfort to K with symptoms that will require careful management. It would mean that the time with her family would be very short and realistically it seemed there is no alternative to remaining in the ICU. As she noted at paragraph 45, “[u]ltimately, however, it is my clear view, having read the care plan provided, that it is this pathway which is in her best interests, not a tracheostomy. I will therefore make the declaration sought by the Applicant Trust.”
Whilst this case is – sadly – not unusual as regards the clinical dilemmas involved, it was perhaps unusual in the clarity with which the Trust set forward what options were and were not on the table, so that there was not the (troubling) confusion which can otherwise reign as to the dividing line between the clinicians offering their clinical expertise as to the appropriateness (or otherwise) of the possible options, and the court deciding on behalf of the person as to which option to accept.
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.
Capacity in context – a paradigm case
A Local Authority v KP [2023] EHWC 3210 (Fam) is a case not easily reducible to a short summary. In very broad outline, however, it concerned a significant dilemma as to the steps to be taken to safeguard the interests of an 18 year old woman with cognitive impairments who did not – or could not – understand the risks to which she was at from her mother’s partner. The dilemma was accentuated by the fact that previous steps taken by the local authority to remove the woman from her mother’s house had not only not worked, but they had also had a serious impact on the young woman’s mental health.
In a detailed and careful judgment, David Lock KC made a number of observations about capacity in particular which are of wider application. As he identified, the two key areas of decision-making for KP were capacity to decide whether to live in a property with her mother’s partner, D, and the ability to make the decision whether to have contact with him. The expert evidence before him, which he accepted, told David Lock KC two things:
69. First,the precise extent to which KP has a lack of capacity remains unclear and that further tests need to be undertaken to test the extent to which KP has capacity to understand how others are functioning and thus make her own decisions. Secondly, that KP may well have fluctuating capacity depending on the extent of her dysregulation. On a good day she may well be able to understand enough to make decisions for herself but may not be able to do so when her mind is dysregulated. However, Dr Kliman does not suggest that KP ever has capacity in respect of making decisions about contact with D because her mindset is so affected by his influence and by her mother’s staunch refusal to accept that D presents any risk to KP at all.
[…]
71. The City of York case [PC & Anor v City of York Council [2013] EWCA Civ 478] confirms that, in order for KP to have capacity to decide whether she should share accommodation with D or have any contact with him, she needs to have some degree of understanding that D’s previous convictions and his character presents some risk to her and, she must, to some extent understand that spending time with him gives rise to such a risk. If she is able to understand that information, she next needs to be able to use and weigh that information about risk in making the decision whether she should share accommodation with D or have any contact with him.
72. In my judgment, the evidence is clear that KP has no real degree of understanding that D’s previous convictions and his character presents any degree of risk to her. She, like her mother, refuses to accept that D presents any risk to her. She not only refuses to accept that D presents a risk but, in my judgment, she is unable to do so because she does not have the ability to engage with the idea that D and her mother may not be right about this issue. I accept the evidence from Dr Kliman that KP has relied on and accepted the assurances given by her mother over and above any concerns raised by her social workers or support workers and so refuses to accept that D presents any risk whatsoever. In my judgment, the evidence shows that D is by far the dominant figure in this household and, due to the poor cognitive functioning of both KP and J, D has a considerable ability to mould and shape how both KP and her mother see the world. They are clearly acting under his influence and it is an influence that he is keen to maintain, as the social workers saw in September 2023 when he rather than J accompanied KP to a meeting with the social workers.
75. I consider that there is a real possibility that D is seeking to exert influence over KP because he wishes to keep her living with him and J for his own purposes. At this stage, it is not clear what those purposes are but there is a relatively high risk that whatever he has in mind for KP, that will not be objectively judged to be in her best interests.
76. KP will only lack capacity to make her own decisions about sharing accommodation with D and having contact with him if she is unable to understand the risks to her from doing so because of her impairment of the mind or brain. I am satisfied, based on the evidence of Dr Kliman, that her inability to understand the risks that D presents are substantially caused by her inability to envisage circumstances being different to how she sees them at the moment. That inability to see and assess the risks of a counterfactual situation appears to me to arise directly from a combination of her autism and her learning difficulties.
David Lock KC, however, was very clear that KP’s situation was one directly covered by s.1(3) MCA 2005, because the evidence before him was that it was possible that, with some targeted and focused psychological support over a period of weeks or even months, KP might gain an understanding about D’s risks and thus might reach the position where she was able to understand the risks that D presented. He therefore felt unable to make a final determination (as opposed to an interim one under s.48) that KP lacked capacity in the material domains until all reasonable steps had been taken to undertake the relevant work. He also noted that, at that point, “serious issues” (paragraph 80) would arise as to whether she was nonetheless sufficiently vulnerable that the inherent jurisdiction should be invoked.
The Court of Protection’s best interests jurisdiction therefore being in play, David Lock KC identified that there were:
89. […], at present, no “good options” here. Allowing KP to continue to live with a registered sex offender cannot be considered to be a good option, particularly where he may have assaulted her in the past (although that is unclear) and is on bail under suspicion of having committed further offences. Nonetheless, at this stage, it is the only option available to me. I therefore invite the Local Authority to prepare a plan setting out how they propose to support KP and keep KP as safe as is reasonably practicable (and allowing her to keep her job) on the assumption she continues to live at J’s house. That plan should set out any injunctive relief that the Local Authority invites the court to provide in order to ensure that KP remains safe.
In the meantime, pending the preparation of that plan, David Lock KC set out a number of orders he was prepared to make to protect KP, primarily directed to enabling the local authority to work with KP in the absence of J and D.
Significantly, the judgment contains the following postscript:
94. This hearing took place on 22 and 23 November 2023 and KP was present at the hearing with her solicitor throughout the hearing. Since circulating this judgment in draft, I have been told that, on 25 November following the hearing, KP made her own decision to leave J’s house and temporarily moved in with her boyfriend at his parent’s house. She said she has blocked D and says is not going to talk to him again. She has also made a series of disclosures which suggest that D may be grooming her towards a sexual relationship with him or someone else.
95. The Local Authority have seen KP on multiple occasions since the hearing and KP has been shown supported accommodation in another area which she likes. The Local Authority are also making efforts to seek to get her employment transferred to a hotel which is local to her new place of residence. Her email to the social worker said “I’m going to start getting my life together and thank you G for opening my eyes wish I could hug you”. Whilst I am conscious that KP’s learning difficulties and ASD mean that her views could change again, I welcome this development. The overall evidence [suggests that] the careful and sensitive way in which this case was conducted in front of KP has played a significant part in her change of mind. I wish her well for the future.
As noted above, the observations about capacity, and in particular how to approach questions of capacity under constraint, are of broader application. They reflect the approach adopted in Singapore under the equivalent (identical) legislation in Re BKR, in which the Singaporean Court of Appeal made clear that it is legitimate to take account of the person’s actual circumstances when determining their current ability to make decisions about those circumstances. Importantly, as the judgment in the instant case emphasises, however, what might be said to be a broad approach to decision-making capacity carries with it the corollary of an acute focus on s.1(3) MCA 2005 and the steps that can be taken to support the person to recognise the impact of their circumstances upon them.
Those wanting to think further about these issues may also find of interest this shedinar discussion with Dr Kevin Ariyo about the research work of the Mental Health and Justice Project about interpersonal influence, and this book on relational autonomy in practice.
