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.

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