An application was made by Nottinghamshire Healthcare NHS Trust as the Trust responsible for the psychiatric hospital at which the Respondent was detained.
The Respondent was a young male adult who suffered from a ‘severe personality disorder’, which caused him to significantly self-harm, and subsequently be compulsorily detained under the Mental Health Act 1983. He did not suffer from any kind of delusions, and his level of intelligence was normal. He possessed the necessary capacity both to make decisions regarding his medical treatment and instruct lawyers to conduct litigation on his behalf.
Whilst being detained, the Respondent committed an offence upon a staff member, for which he was subsequently convicted and sentenced to 5 years’ imprisonment. However, whilst detained in prison, he began to seriously self-harm. This resulted in significant injuries, and severe blood loss which was further exacerbated by prescription medication that caused him to bleed more profusely.
A critical aspect of the case was that the Respondent’s parents were of the Jehovah’s Witness faith, which religion, in the months leading up to the immediate application, he had also begun to embrace fully.
When in prison, the Respondent seriously cut his right arm, and subsequently lost a great deal of blood, causing his haemoglobin levels to fall to a life-threatening level. As a result, he was admitted to intensive care, and a blood transfusion was advised, which he then refused on the basis of his Jehovah’s Witness faith. The treating hospital abided by his expressed wish, believing it to be capably stated. The Respondent nonetheless survived the incident.
Following further inflictions of serious self-harm, the Respondent was transferred from the prison to the psychiatric hospital where he was then compulsorily detained under sections 47-49 of the Mental Health Act 1983. Here, he was placed in a form of severe mechanical restraint to prevent him from self-harming. However when this was loosened, he began tampering with his wound again (albeit in a minor way). After re-opening his healing wound once more, he was placed in a restraint belt for 24 hours.
The Respondent later signed an advance decision to refuse ‘transfusions of blood or primary blood components’ on the grounds of his Jehovah’s Witness faith, in the event of his incapacity.
When questioned about his justifications for self-harming, the Respondent replied that he had ‘intense emotions that only he [could] dampen down by self-harm’ (according to the counsel’s note). And although at times in the past he had said that he wished to die, he did not express any wish to die at the present time. Further, his self-harming did not appear, to his responsible clinician, to be motivated by bringing about his death.
The application had two limbs:
1. The Applicant sought a declaration from the court that the Respondent’s written advance decision was valid and applicable to the treatment described in that decision.
Section 25(5) and (6) of the Mental Capacity Act 2005 outlined that an advance decision was not applicable to life-sustaining treatment unless it was witnessed in the presence of the maker, and the maker and the witness each signed it in the presence of each other. J’s advance decision was purportedly signed by himself and dated “4/4/14”. Additionally it clearly purported to be witnessed by a witness who also dated it “4/4/14”; however it was not apparent on its face that it was signed by the maker and the witness in the presence of each other. Nonetheless, given that both signatures were dated “4/4/14” and that the document was clearly prepared in order to constitute an advance decision for the purposes of those provisions of the Mental Capacity Act 2005, for the purposes of the present hearing and interim order, Holman J made an assumption on the balance of probability that the maker signed it in the presence of the witness and the witness signed it in the presence of the maker himself. Further, the advance decision was held to have been made with capacity, and be valid within the meaning of, and for the purposes of, those provisions, and was also one which was applicable to the treatment described in the advance decision, namely a treatment involving transfusions into him of blood or primary blood components.
2. The Applicant sought a declaration under the inherent jurisdiction as to the legality of not using section 63 of the Mental Health Act 1983.
The second limb concerned the interrelation between the Mental Capacity Act 2005 provisions relating to advance decisions to refuse treatment, and the applicability in this particular case of section 63 of the Mental Health Act 1983, which applied to those detained under the criminal hospital order provisions of the MHA. Section 63 allowed hospitals to provide medical treatment even where a patient did not consent, thus overriding their expressed wishes within advance decisions. It provided that:
“[t]he 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.”
Holman J found that the expression “medical treatment given to him for the mental disorder from which he is suffering” was wide enough to extend to medical treatment for physical conditions caused or arising as a result of the underlying mental disorder. Therefore, if J cut himself due to a self-harming mental disorder, then it could have been lawful under that section to treat the cuts; and further, also to give medically necessary blood transfusions in the event that the patient had cut himself and bled so profusely that he required a blood transfusion. Although it was a finely balanced argument as to whether the treatment here was physical treatment or treatment closely related to the mental disorder, the blood transfusion was found to be medical treatment given to J for his severe personality disorder, so section 63 made it lawful regardless of his consent
The question therefore arose, on the facts of the immediate case, as to the interrelation between the Mental Capacity Act 2005 provisions concerning advance decisions and the section 63 powers to give medical treatment, notwithstanding the absence of consent.
Despite the fact that the clinicians were therefore able to use section 63 powers to enforce treatment with blood products upon him despite his capacitous refusal, there remained significant ethical issues in doing so. This concerned the use of section 63 powers to override the Respondent’s advance decision which expressed his capacitous wishes that had been predicated on his established religious beliefs. Therefore, despite the fact that advance decisions were not binding on a person’s treatment if they were covered by section 63, they were still nonetheless relevant as a ‘wish’ within the ethical context. Even though the hospital felt that they could exercise their power under section 63 to compel blood transfusions, and J might die otherwise, professionally they felt “some ethical difficulty” in overriding J’s advance decision.
A question later arose as to whether the Court was the right place to make decisions about medical ethics, which Holman J rejected by underlining that the purview of the courts only extended to legal matters:
“I must stress at once that it is never the business of a court in these sorts of situations to make any kind of ethical decision. That is a matter for doctors alone, applying such guidance, if any, as they can obtain from their professional medical bodies. All the court can do is state the applicable law and, where appropriate, apply it in the form of a legal, though not necessarily an ethical, decision”
Ultimately, the Court refused to resolve this matter as they had only heard representations from one side, and the immediate hearing was not on notice to the patient or any other person. Given the difficulty of this issue, the Court held that it was not one upon which they could judicially and responsibly rule without sufficiently hearing and considering the arguments on both sides of the issue.
The order was limited to holding that the written advance decision was valid and applicable. Additionally a further hearing was proposed for the next day. A preliminary inquiry of the Official Solicitor was made, and the Official Solicitor was also requested to attend the next hearing in order to consider what role he should fulfil in this case. Further, the NHS Trust were ordered to use ensure that J was directly represented at the next hearing, and that his father was also informed and encouraged to attend.
The position at the end of the immediate hearing, from the Trust’s perspective, was that the power under section 63 should not be used, and that if J was able again to cause profuse bleeding, he may have died, regardless of whether he intended to bring about his death. The Court held that if there was a contrary argument that the power under section 63 should be positively exercised in such instances, then the courts must hear it.
Commentary from Thomas Dance, barrister, 1 Kings Bench Walk, supplemented by the site proprietor
The judge considered the difficult intellectual distinction in the law between treating a condition as a ‘consequence’ (outside scope of s.63) or a ‘symptom or manifestation’ (inside scope of s.63) of the patient’s disorder. In RC’s case, the parties and the experts were at odds. Applying a non-literal interpretation to the wording of s.63, the judge found a blood transfusion to qualify as treatment of a symptom (i.e. the self-laceration) of RC’s disorder. Therefore, s.63 applied.
“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.”
The judge found that RC did have capacity to refuse treatment, despite the judge’s acceptance that a tenet of RC’s faith prevented him from engaging in the proper balancing exercise required in s.3 of the MCA.
The same will be the case for all religious belief but that is because it is a tenet of the Human Rights principles that human beings have a right to manifest freedom of thought, conscience and belief; so it cannot be used as a reason for discounting their capacity, however unwise or objectively irrational.
The Advance Decision whilst valid could not bind a s63 decision maker, because of s28 of the MCA, which allows the MHA to trump advance decisions in relation to those detained and subject to treatment under Part IV of the Mental Health Act, of which s63 is a fundamental part.
The MCA Code of Practice says that
“13.35 The MHA does not affect a person’s advance decision to refuse treatment, unless Part IV of the MHA means the person can be treated for mental disorder without their consent. In this situation healthcare staff can treat patients for their mental disorder, even if they have made an advance decision to refuse such treatment.
13.36 But even then healthcare staff must treat a valid and applicable advance decision as they would a decision made by a person with capacity at the time they are asked to consent to treatment. For example, they should consider whether they could use a different type of treatment which the patient has not refused in advance. If healthcare staff do not follow an advance decision, they should record in the patient’s notes why they have chosen not to follow it.”
The judge expressed concern that a decision not to impose treatment using s63 Mental Health Act was perhaps not susceptible to judicial review, in contrast to a positive decision to do so. Of course there is no reason to think that an application could NOT BE MADE: only that there is no provision for it mentioned explicitly, and in a hypothetical situation, there might be no-one to make that application.
“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. “
In such a situation, where life-saving treatment was involved, he strongly advised any NHS Trust to apply to the High Court for declaratory relief so as to be compliant with Article 2 ECHR. The inherent jurisdiction of the High Court has therefore another surviving purpose, surviving its supposed winding up, by the Mental Capacity Act.
At the powerful conclusion of the judgment, the judge held that it would be an abuse of power and a denial of a most basic freedom to impose a blood transfusion on RC; he presently had capacity, but even if that disappeared, there was an advance decision under the MCA which should be given effect as a wish. As a result, the treating clinician’s decision not to impose treatment was lawful.