In JK v A Local Health Board  EWHC 67 (Fam), Lieven J had to grapple with the intersection between the MCA, the MHA and the inherent jurisdiction in addressing the question of whether it would be lawful to force feed a person detained under the Mental Health Act 1983 who was refusing to eat and had made an advance decision to refuse any medical intervention.
The case concerned JK, a 55-year-old man with a diagnosis of Autism Spectrum Disorder (ASD) made late in life. He was currently on remand for the alleged offence of having murdered a close relative, the index offence having taken place in September 2019. He was transferred from prison to hospital, a medium secure psychiatric hospital on 23 October 2019 under s.48 MHA 1983, two medical practitioners having assessed him as suffering from a mental disorder which made it appropriate for him to be detained under the MHA 1983.
Since shortly after arriving at the prison, JK had been saying consistently that he wanted to die, and that he intended to starve himself to death. He refused food for 23 days, then ate limited food for a few days because he was concerned that he might be found not to have capacity to make a decision (the context suggests about eating) if he was in a weakened state. He then returned to refusing food, but he did started eating again at the prison because he wished to be able to attend and give evidence before the court.
His clinical team, including those at the prison and at the hospital were very concerned about the impact of his refusal to eat and drink, including the risk of re-feeding syndrome developing even if he did decide to eat at some later point. On 28 September 2019 JK made an Advance Decision stating that he did not wish for any medical intervention to occur even if his life is at risk. Subject to questions as to JK’s capacity to make it, there was ultimately no issue that this was a valid and applicable Advance Decision (and, he made a further advance decision in effectively the same terms dated 31 October 2019).
The medical evidence before was that JK had capacity to make the decision to refuse food and medical treatment (including palliative care), and also that he had capacity to conduct the proceedings.
The Health Board responsible for JK applied to court in respect of possible future treatment of JK, seeking (at the outset of the hearing):
- a declaration that it would be lawful for treatment to be provided pursuant to s.63 of the Mental Health Act 1983 (MHA) that JK can be force fed;
- in the alternative, a declaration under the inherent jurisdiction that such treatment would be lawful; and
- a declaration under the Mental Capacity Act 2005 (MCA) that the advance decision made by JK could be disregarded as a result of actions by him that were inconsistent with it.
The position of the Health Board evolved during the hearing, conceding that it could not seek a declaration under the inherent jurisdiction, and also that there was not, at that point, sufficient evidence for the court to be able to tell whether force-feeding would be in JK’s best interests, appropriate and lawful.
As Lieven J noted, the primary issue in the case was whether the terms of s.63 MHA 1983 were met: i.e. whether force-feeding could be considered medical treatment for mental disorder in JK’s case, because, if they were, JK’s consent would not be required. This further raised the interaction between the Mental Capacity Act 2005; the Mental Health Act 1983 and the High Court’s inherent jurisdiction, although some of the issues have narrowed during the hearings. Lieven J identified the following issues potentially arise, “although some have become less important, and (e) does not yet arise;
a) Does JK have capacity to make a decision to refuse food?
b) Where the court is invited to make a declaration that a proposed course by the Health Board is medical treatment under s.63 MHA, what legal test should the Court apply?
c) Is the proposed treatment, i.e. force feeding, treatment that falls within s.63?
d) If the proposed treatment does not fall within s.63 can the court authorise the force feeding pursuant to its inherent jurisdiction? this raises two sub-issues;
i) Is there a lacuna in the statutory scheme which the inherent jurisdiction can appropriately fill?
ii) Is JK a vulnerable person within the meaning of SA (Vulnerable Adult with Capacity: Marriage)  1 FLR 867?
e) Is it appropriate on the facts to order that JK can be force fed?
Against a starting point that every citizen of age and of sound mind has the right to make decisions about their treatment, even if those decisions bring about their death, Lieven J observed that there were three circumstances in which adults can have treatment imposed upon them without their consent: “if they lack capacity under the Mental Capacity Act 2005; if they are detained under the Mental Health Act 1983 and the treatment falls within the terms of s.63 (or s.58); or if they can be categorised as “vulnerable” under the High Court’s inherent jurisdiction.”
Lieven J conducted a brief, but comprehensive, survey of the relevant provisions of the MCA 2005 and the MHA 1983 and the relevant case-law. In relation to the inherent jurisdiction, Lieven J noted that:
The Health Board originally put its application to the Court on the alternative basis of either seeking a declaration under the section 63 of the MHA, or that if the Court found there was no power to force feed under s.63 then there was such power under the inherent jurisdiction. However, by the time of the hearing on 4 November 2019 the Health Board had accepted that there was no power under the inherent jurisdiction on the facts of this case to grant a declaration that JK could be force fed. The basis for this concession was that JK was not “vulnerable” within the meaning of SA (Vulnerable Adult with Capacity: Marriage)  1 FLR 867 and as further considered by the Court of Appeal in A Local Authority v DL  3 All ER 1064.
Lieven J considered that this concession was correct:
56. In my view, relying on what McFarlane LJ said at  in DL some caution needs to be exercised over the extent of the category set out at [78iii] of SA [i.e. “for some other reason deprived of the capacity to make the relevant decisions, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent”] given that some of those matters would go directly to mental capacity under the MCA and therefore are covered by that Act. In DL the gap in the statutory scheme was that the MCA covered those who lacked mental capacity to make the decision in issue, but not those whose will had been overborn in making that decision by reason of their vulnerability, for example by coercion.
57. The inherent jurisdiction cannot be used to simply reverse the outcome under a statutory scheme, which deals with the very situation in issue, on the basis that the court disagrees with the statutory outcome. Here the vulnerability which the Health Board originally relied upon was JK’s mental disorder, namely his ASD. Despite his ASD JK undoubtedly has capacity, so he cannot be compulsorily treated under the MCA. If I had found that his decision not to eat was not a manifestation of his mental disorder, then he could not have been compulsorily treated under the MHA. In my view that would have been the end of the matter, because the two statutory schemes deal precisely with someone in JK’s situation, and there is no factor such as coercion which lies outside those considerations.
58. Therefore, either it can be said that there is no lacuna in the statutory scheme which would leave space for the inherent jurisdiction; or alternatively, as the Health Board now accept, JK is not “vulnerable” within the meaning of SA. He is not “vulnerable” because this is not a case of JK’s will being overborn by some factor outside the scheme of the statutes, but rather his decision having been made in circumstances entirely contemplated by the statutes. These two analyses reach the same end result, that JK’s situation either allows treatment without consent under the MHA, or not at all.
Lieven J therefore turned to consider, first, JK’s capacity. She heard from JK, and having heard him, had no reason to doubt the assessment of the consultant psychiatrist who had reported.
The next issue the test to apply under s.63 MHA 1983. As she noted:
66. The MHA gives the power to decide whether to compulsorily treat a patient to the responsible clinician and not to the Court. This is a fundamentally different scheme to that in the MCA where many decisions are given by statute to the court. The difference makes sense because the MHA is a statutory scheme for, inter alia, detention and compulsory treatment in the public interest, where the responsible clinician has a specific role in the statutory scheme. There is no statutory process in the MHA to question the decision of the clinician. However, if the clinician decides to impose treatment then the individual can judicially review that decision, as happened in R v Collins ex p ISB. However, in the present case what is in issue is a proposed future treatment where the clinicians have not yet drawn up a treatment plan, and not yet weighed up the factors for and against force feeding. In A NHS Trust v A Baker J at  said; that in cases of uncertainty under s.63 MHA “where there is doubt whether the treatment falls within section 145 or section 63, the appropriate course is for an application to be made to the court to approve the treatment”. Baker J did not explain what jurisdiction the Court would be exercising in order to make any such declaration and judicial review would not be apposite at this stage as an actual decision to treat has not yet been made. However, the inherent jurisdiction can be used to make declaratory orders, and I can see no reason why a similar principle would not apply here. I therefore will consider the making of declaratory relief.
Following the Court of Appeal decision in R (JB) v Haddock  EWCA Civ 961 ,Lieven J noted that:
68. It therefore must follow that any decision under the inherent jurisdiction both as to whether proposed treatment falls within s.63, as being for a manifestation of the mental disorder; and as to whether it is “treatment” within s.145 under the MHA, must also involve a full merits review.
The next question was whether the proposed force feeding did indeed fall within s.63. This was a decision for the court, although it was: “necessarily a matter on which the Court will be heavily reliant upon medical, and in particular, psychiatric evidence. The interrelationship between the patient’s mental disorder and the treatment which is proposed, is in my view one primarily of medical expertise rather than legal analysis.” Lieven J therefore set out the evidence before reaching her conclusion, thus:
70. It is Dr L’s clear view that JK’s refusal to eat is a manifestation of his autism. Dr L is not only a consultant psychiatrist but also one with a particular expertise in the assessment and treatment of patients with autism. Dr L appeared to me to be a measured, highly knowledgeable and careful witness, whose evidence I can give the maximum weight to. He had met JK twice, once for quite a prolonged interview, and had clearly listened carefully to what JK had said and the information he had gathered. It is true that Dr L and the court, have relatively little information about JK’s mental health before the index offence and the fact that none of the clinicians have been able to speak to JK’s family limits their understanding of his presentation outwith the highly traumatic recent circumstances. However, I do not accept Mr McKendrick’s submission that without such “longitudinal evidence” it is not possible to conclude that the refusal to eat is not a manifestation of JK’s autism.
71. I take in particular from Dr L’s evidence that JK’s rigid and “shutting down” response of saying that he has nothing to live for and refusing to eat, is a not uncommon approach from a person with autism dealing with a crisis situation. JK has been through a quite exceptionally difficult and traumatic few weeks, and it should not be forgotten that the index offence only took place two months ago. It is hardly surprising given his mental disorder perhaps exacerbated by chronic depression, that his response is suicidal. Issues around food and eating appear to have been a feature of his autism, and possibly also OCD, and a refusal to eat therefore has an obvious relationship to his mental disorder.
72. I do accept that with a condition such as autism which is a fundamental part of JK’s personality, it is exceptionally difficult to see how any decision making is not a manifestation of that disorder. I also accept that it is possible that many people faced with JK’s situation would feel despair and potentially be suicidal. However, I do not think the task for me is to try to compare JK’s response to his situation with that of a hypothetical person without autism. It is rather, to try to analyse the degree to which JK’s own response relates to his condition, and the way his mind works because of that condition.
73. In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s.63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder.
However, importantly, that was not the end of the matter:
74. However, that does not mean that I by any means accept that force feeding JK would be in his best interests, or critically would be “treatment” that falls within the definition in s.145(4) of the MHA, as being “to alleviate or prevent a worsening of the disorder…”. It is apparent that force feeding is a highly intrusive process, which involves sedating the patient whilst the naso-gastric tube is inserted and potentially having to restrain the patient for fairly prolonged periods. This process would be extremely upsetting for any patient, but for JK with his ASD and his aversion to eating in front of other people, the process would be even more traumatic. JK said in oral evidence that he viewed the possibility as abhorrent, and it was clear from that response how incredibly upsetting for all concerned having to go through that process would be. If it came to that stage close consideration would necessarily have to be given to the terms of article 3 ECHR and the caselaw such as Herczegfalvy v Austria  15 EHRR 437 and the test of medical necessity.
Lieven J recorded that:
- The position at the moment is that the Health Board are drawing up a detailed treatment plan and are in discussions with appropriate clinical experts. If JK reverts to refusing to eat, and the Health Board decide pursuant to s.63 that he should be force fed, then the matter will need to be restored to court. This could be done by way of a judicial review of the Health Board’s decision at that stage, that force feeding is treatment which falls within s.145(4), the decision having already been made by the court that it is capable of being treatment within s.63. However, given that this is a full merits review, and Baker J said that in cases of uncertainty it was appropriate to bring the matter before the court, it seems to me that the most straightforward route is to give JK liberty to apply to bring the matter back before me sitting in the Family Division, if needed. There is no benefit, and potentially additional cost and complication, by requiring a judicial review action to be commenced.
Helpfully for future cases, Lieven J’s judgment then set out the order that was made.
This case represents the paradigm example of how the law in this area is able to answer the question “can” something take place, but is not obviously well-placed to answer the question “should” an act be done. Lieven J’s careful analysis of the law sets the framework within which the clinicians would have to decide whether to force feed JK (if he continued to refuse to at) by determining that force-feeding could on the facts of his case fall within the scope of s.63 MHA 1983. But the question of whether they should then decide to use s.63 to force feed-is one that is as much ethical as it is legal.
It is of some interest that Lieven J appeared to assume that the clinicians in making that decision (and the court if it were to return to her) would be considering JK’s best interests. Section 63 does not refer to “best interests,” and the test in s.58 (as amended in 2007) for a Second Opinion Appointed Doctor to consider is whether the treatment is “appropriate.” Pre-2007 case-law (such as Haddock, referred to by Lieven J) had proceeded on the basis of “best interests,” but – perhaps surprisingly – there has not been a case subsequent to the passage of the MHA 2007 in which the test has been considered by the courts. “Best interests” is undoubtedly a more calibrated test than “appropriate,” and the Independent Review of the MHA 1983 has recommended that the test be changed to “best interests.” It did, so, however, in relation to those lacking capacity to make decisions about their medical treatment, and it is not perhaps immediately obvious how the test applies to someone, such as JK, who is considered to have such capacity.
In determining what course action to take, no doubt the clinicians will also have in mind – as will the court if it returns to it – the presence of JK’s advance decision, Mostyn J having emphasised in Nottinghamshire Healthcare NHS Trust v RC  EWCOP 137 the weight to be placed on advance decisions to refuse medical treatment for disorder even when they are not formally binding because the treatment is being delivered within the framework of the MHA 1983.
Lieven J’s (obiter) observations about the inherent jurisdiction are also of interest as reinforcing the need to be clear as to whether or not there is, in fact, a gap in the statutory schemes in play. They sit at possible odds to the decision of Cobb J in CD v London Borough of Croydon  EWHC 2943 (Fam), in which he contemplated the use of the inherent jurisdiction against a person in a situation of self-neglect, refusing access to carers and others. We will discuss this case further in the next Mental Capacity Report, but it might be thought that there was no lacuna to be filled there, there being (for instance) no third parties involved who might be thought to be overbearing CD’s will.