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the interaction between Children Act and Mental Health Act

This reported case is a County Court one (which means that it is not legally binding precedent) but it raises some unusual issues.

 

The “Too Long; Didn’t read” version – don’t treat a s20 child as no longer s20 just because they get detained under Mental Health Act; and if you enjoy judicial dressing downs, there’s plenty in here worth reading.

 

Re T (Children) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B116.html

 

The application itself was by a child, St, now 16, for contact with her siblings. There were five children  (plus St herself, plus another sister older than St). I note that the Judge identifies birth dates for all of the children.  I won’t in this piece, because I think that there are a limited number of families in the Preston area with seven children and the specific dates of birth is probably all that is needed for them to be inadvertently identified by people in that area reading the judgment.  (The “jigsaw identification” issue)

St had had many difficulties in her life and at the time of the application was detained under section 3 of the Mental Health Act for treatment in a hospital. Her parents had had difficulties in caring for her and from around June 2012 had really delegated her care to the Local Authority.

 

For all practical purposes, the Local Authority had been caring for St and meeting her needs and looking after her from June 2012 until she was detained under s3 of the Mental Health Act.

 

The case was not care proceedings, but rather St’s application under section 8 of the Children Act 1989 for contact with her siblings (or as I must now describe it through gritted teeth “for a Child Arrangement Order to spend time with her siblings”  (or in my own rebranding of the rebranding  “Shiny Happy People order”)  )

The Judge had been concerned about the impact on these five children of contact with St, given her predicament and health. He directed the Local Authority to file a section 37 report advising about these matters.

On 7th January 2014 it emerged that St’s status had been changed by the Local Authority and that she was no longer deemed by them to be a child looked after within the meaning of the Children Act, with to s.20 status, but was deemed by them to be a child in need under s.17 of the Children Act. That was extremely concerning because the change of status was reported already to have had a direct impact upon St’s circumstances for the worse. It therefore seemed to me to be appropriate to make a s.37 direction in relation to St and to make her brothers and sisters parties to the proceedings. I recorded, the Local Authority being represented, what the Local Authority had to say about the change of status at that hearing and the order I made includes this recording:-

“The Local Authority contends that under internal policy, St is not ‘looked after’ by them and has not been since she was sectioned under s.3 of the Mental Health Act 1983.”

 

 

[I will confess very quickly that I don't know, off the top of my head whether a looked after child ceases to be looked after once they become detained under the Mental Health Act. There are two possibilities - a common sense literal one that says that it isn't the LA looking after her any more, it is Health, so she is not. And a technical one that suggests to me that there were a raft of statutory instruments that said that children in prisons were looked after so maybe there's one kicking around that I can't yet find that says the same thing about mental health]

 

But more to the point, the Judge’s issue was that this decision had actually detrimentally affected St.

Once again, I made recordings about St’s circumstances, setting out what was being relayed to me by the Local Authority through their counsel; this is recorded on the face of that order:-

“Lancashire County Council informed the court that they deemed the applicant, having ceased to be accommodated under s.20 of the Children Act 1989 when she became detained under the Mental Health Act in September 2013”.

And also;-

“Lancashire County Council further suggests that from the point of such detention, primary parental responsibility which was not being exercised by the respondents was to be exercised by the hospital”.

 

That doesn’t sit right with me – the hospital were looking after St and meeting her physical needs and mental health needs, but they weren’t exercising parental responsibility for her. Suppose for the sake of argument, she had needed an operation that would not have been authorised without parental consent and does not come within the treatment powers of s3? This suggests that the hospital could consent in loco parentis, and that just does not feel right to me.

I was sufficiently concerned that this decision making and approach deprived St of anybody to exercise parental responsibility for her was likely to cause her significant harm given her particular vulnerabilities and circumstances. I therefore made interim care orders in respect of her in accordance with the section pending the preparation of a further s.37 report the need for which was conceded by the Local Authority,.

 

[As readers of the blog may have picked up, I'm not a huge fan of ICOs made under s37 of the Children Act by a Judge of their own motion, but that seems to me to have been the right call here.  I dread to think of how the LA resolved the placement provisions under s22C with a placement in a mental health hospital. For what it's worth, my attempt would be s22C (6) (d)   - I'm not going to set all of that out, because there are limits to even my law geekiness]

 

The LA decided not to issue care proceedings at the conclusion of that Interim Care Order.

 

The Judge was disappointed

 I should explain why I consider three separate aspects of the Local Authority’s decision making in respect of this child are in error and represent a failure to promote her welfare.

I have three purposes in delivering the judgment. Firstly, I very much hope that after receipt of the judgment the Local Authority will review again their approach to this case. It seems to me that it is always a professional strength and not a weakness to be able to change decisions previously taken if it is right to do so.

Secondly, this seems to me to be an important opportunity to publish a judgment which highlights what has happened to a child who ought to have benefitted from two statutory schemes of protection, both under the Mental Health Act as a person suffering from a mental disorder and under the Children Act as a child who a has suffered or is likely to suffer significant harm. St, in any event, is a child whose welfare overwhelmingly deserves scrutiny and promotion within proceedings.

Thirdly, and this is not my primary purpose, it is the intention of those who act on behalf of St to pursue either or both a complaint and/or other remedies in respect of her against the Local Authority and it may very well be that there are matters covered in this judgment that they consider to be of use in pursuing such courses of action. Providing assistance for those proposed actions is certainly not my primary objective and neither would it be proper for that to be a primary objective. The judgment is therefore mainly given in the hope that the Local Authority might reconsider and to highlight the difficulties that have beset this child who has unfortunately fallen between two statutory umbrellas of protection.

 

As nobody was “looking after” St, and her parents had effectively stepped away from her, when she was in the hospital nobody had provided her with funds or the wherewithal to even have basic funds to buy toiletries or christmas presents for her siblings.

 

The hospital were firmly of the view that the Local Authority ought to be looking after St

I therefore have a full letter dated 21st May 2014 written by Dr K, a consultant child and adolescent psychiatrist at the hospital, the responsible clinician for St. The letter sets out his perspective upon what he regards as the necessity of ongoing looked after status during admission. I am very grateful to him for providing that. He says at paragraph 3 of that:

“I find this to be an unusual position and not one which is taken by other local authorities who have responsibility for looked after children who are placed on [name of hospital given] unit.”

He goes on to say:

“I am not aware of any hospital ward that would take parental responsibility upon themselves. Provision of care in loco parentis is much the same as is provided by schools or residential homes and specific decisions regarding treatment require the hospital to seek consent from the individual with parental responsibility in a similar manner as would be the case in the community.”

He also goes onto say that St, for the most part, may have the ability to give her own views but that there will be times when that may not be the case given her illness. He says this:

It may also be worth clarifying limitations of the Mental Health Act in regard to consent to treatment. Section 3 allows for the provision of treatment for a mental disorder to be provided within a hospital setting and as such it allows for treatment to be given under certain circumstances against a patient’s wishes or where they lack mental capacity to give their valid consent. However, the MHA only relates for treatment of the mental disorder, it does not make provision for physical health conditions to be provided against a patient’s wishes, nor does it allow for any other decisions to be made about wider aspects of a patient’s affairs and lifestyle. In the case of a minor, such a decision is either required to be made by taking valid consent from the patient or where this is not possibly by seeking consent from the individual with parental responsibility. There is no legal provision within the Mental Health Act, or any other statute of which I am aware, that allows for a hospital to take parental responsibility upon themselves. In fact I would argue that is strongly in the interests of the young person that a party independent of a hospital hold this role, particularly when the young person is detained by the hospital against their will.”

He goes on:

Moreover, the benefits of continued looked after status whilst a minor is placed within a hospital setting go beyond the provision of valid consent for decisions that do not relate to the mental disorder. Given the complexity of St’s case and the nature of her social care needs it appears essential to me that she has the benefit of a social worker taking a parental role so as to provide her with continuity and stability of care as well as advice and support around the many challenging issues that she is currently facing.”

Equally that was the view of both Mr Jackson and Mrs. Walwin-Holm, the children’s guardians who have at different times represented St within these proceedings. Dr K’s perspective is that of an experienced clinician working within an acute setting to alleviate the distress and improve the situation of young people in the very distressing circumstances that St finds herself. Any person in hospital, whether a young person or a child or not, seems to me to need – and I apologise for being intensely practical – moral support, social support and financial support. My focus here is upon this child during this admission.

 

By the time of the hearing, the Local Authority had wisely reconsidered their decision to treat St as no longer being a looked after child. That of course does not prevent St or her representatives from satellite litigation about whether that decision was unreasonable and whether it had a deleterious effect on her.

 

I don’t think that the Judge really warmed to Mr McHale, the senior manager who had made the original decision to stop treating St as a looked after child.

   I should, in passing, take some comfort from Mr McHale’s approach to the views of the clinicians. This paragraph I read from his statement, of 23rd July 2014 also reflects his oral evidence when he was challenged. He says:

“While I respect the views of my health colleagues, they do not have a full understanding of the roles and responsibility of CSC in relation to children and young people and although we would always listen to their opinion, ultimately it is our responsibility to decide how we deal with individual children and their legal status.”

So I should perhaps take some comfort that the Local Authority are no more prepared to defer to the clinical view than the court’s view.

 

Ouch.

 

On discussing how that decision was made, and why, the Judge had this to say  (underlining mine for emphasis)

 

I am not going to attempt to make a finding of fact as to what the reasoning actually was or what was actually decided. Mr.McHale claims that it was a child specific welfare focused decision. If it was, it seems to me that it worked very badly indeed because it had an immediate impact upon the service that St was receiving for the worse. She ceased to receive any financial support from the Local Authority and the level of moral and social support given to her also decreased in the wake of that decision. There was a CPA (Care Programme Approach) meeting at the hospital in December 2013 which the Local Authority did not attend. St therefore lost her Looked after Child status and the review system, she lost her independent reviewing officer, she lost the duty of the Local Authority to promote contact between her and relevant people and she was left with no money for basic necessities. She is said to have felt abandoned, a feeling that she has been reported as having to have felt on a number of occasions during the proceedings.

Mr McHale asserted that this was never his intention and that in fact what he intended was for all those services St had been receiving under s.20 to be continued by way of an exercise of discretion under s.17. The Local Authority have not brought any contemporaneous documentary evidence to support this assertion. Mr. McHale was apologetic for particularly the loss of money for St which had an intensely distressing effect upon her in circumstances I will come to describe. In general however it seems to me overall that the impact of the decision, whether specifically child focused or a matter of policy, was deleterious to the welfare of the child. It seems to me as a matter of common sense and experience that if somebody is admitted to hospital they do not change their usual home or their residence. They go to hospital to be treated for the duration of an illness. It seems to me highly unlikely that a Local Authority would even contemplate changing a child’s status from s.20 to s.17 if that child were to be admitted to hospital for treatment for any serious or long-term physical illness. It therefore seems to me quite inappropriate that this child, who was subject to s.3 of the Mental Health Act and detained for treatment in hospital for a mental disorder should have lost a status which conveyed rights upon her which would have continued had the illness requiring treatment not been a mental disorder

It seems to me that the care programme approach of the Mental Health Acts should work hand-in-hand with the Looked after Child processes of the Children Act. These schemes should not be alternatives but should be complementary. That would seem to be the view also of the clinicians. The Local Authority and other parties to these family law proceedings have concentrated on St’s right to services upon discharge from hospital, whether as a Looked after Child entitled to a Pathway plan and services for leaving care or otherwise. That is not the focus of this judgment not only because it should not be the focus of this judgment but also because upon discharge from hospital under the Mental Health Act St will be entitled to extensive services both from the health authority and the Local Authority under s.117 of the Mental Health Act.

My concern is that St’s circumstances on the ground were acutely and deleteriously affected by her change of status and this was also the view of the clinicians at the hospital which was expressed during the CPA meeting to which I have referred on 13th December 2013. I have the record of the meeting in which the following is recorded:

“On admission to [name of residence given] St was under a looked after child s.20. Whilst in hospital her case has been closed and she is no longer considered to be looked after. A senior support worker has not been allocated to ensure that St continues to have involvement with services whilst she remains in hospital.”

Later, the meeting, minutes record this:

“Members of the meeting expressed frustrations and difficulties associated with the removal of St’s LAC status due to her being in hospital. Difficulties arise in particular around St’s physical health and the need for parental consent for certain forms of treatment, despite the current lack of contact and care from St’s parents. There is also a lack of money for St now. Kayley I, advocate, also expressed St’s views and distress at the lack of monies. Options were discussed as to how this could be managed. Funding agreed from social care that St to receive £20 a month for toiletries, all agreed that this is not enough. The meeting discussed making a complaint to the Local Authority about the removal of a young person’s looked after care status when a young person becomes an inpatient and all agreed this would be a good idea.”

 

[I think the Judge's analysis that if this child had been in hospital for a broken leg there would have been no suggestion that she was no longer looked after by the Local Authority is a very good one, and it is a good way of looking at it. It may be, and it would require a delve into the Regs that is beyond my current level of enthusiasm and curiousity that this child is not technically s20 but it must be manifestly better for her to have treated her in all ways as though she were]

 

In case you think that the Judge was social-work bashing in this judgment, she clears this up.

 

Mr McHale in his evidence, having read what was trenchant criticism of the Local Authority written by Mr Jackson the then child’s guardian, repeatedly asserted that he considered that the Local Authority had delivered an excellent service to St. In that sense he seemed to me to be understandably taking up cudgels on behalf of his staff. I hope he understood, and I hope that anybody reading this judgment understands, that this judgment is intended to be critical, indeed trenchantly critical of the decisions of the Local Authority. However it is by no means intended to be a criticism of the staff who have been working the case on the ground. It is my impression that those staff, that is Mrs S and her manager, have delivered, as Mr McHale asserts, an excellent service to St within and despite the parameters of the decisions of their senior management. This judgment is not intended in any way to undermine that impression. This court, the social workers on the ground, their managers, the clinical team and the children’s guardian are all motivated by having come across a child in St’s situation to improve her situation. My focus has been on how the realisation of that aspiration has been marred by the decisions of senior management. I therefore agree with Mr McHale that his staff have delivered an excellent service to this child. This is despite the decisions that have been made by their senior management.

 

 

This isn’t social work bashing – this is manager bashing. Short of Mr McHale writing to the younger children to tell them that there was no such thing as Father Christmas, there was not much lower for the Judge’s opinion of him to go.  The overriding judicial impression I was left with was (to borrow from Mark Twain) that the moment had arrived for Mr McHale to leave this world and to declare to the Court which of the two possible destinations he was heading for, so that the Judge could make arrangements to head to the Other Place.

I don’t know Mr McHale, let us be charitable and say that this was one where his actions were out of character (and to be fair, it is legally tricky as to whether s20 technically applies here).  It is never fair to butcher someone based on one case alone, particularly a tricky one.

 

The LA, in the light of all this made the submission that the case should now come to a close and the Court bow out and let the LA get on with it.

 

The word on the tip of your tongue is ‘bold’  – that’s a ‘bold’ submission.

 

That doesn’t really go far enough – that’s a submission for which an advocate is entitled to have a stuntman for.

 

Do we think the Judge agreed with their Stuntman submission?

The Local Authority case, put with admirable clarity by Miss Grundy in her written submissions, is that now is the time for the court to bow out completely not only in relation to St but in relation to all of the children and that the proceedings are ready to be concluded. There are cases when that is entirely right and the court should take a focused and issue specific approach to dive in and dive out of children’s lives and not exercise a more surveying role. In this case I decline to do so. It seems to me necessary that the proceedings continue and the court will bow out when the court is assured that that contact is set to continue appropriately and that all of the necessary services are going in. I flagged up to the parties the possibility of a family assistance order at the final hearing. No party considered this to be a good idea. This court’s scrutiny is going to be upon all of the professionals involved in any event, whether they remain in via s.37 or merely as witnesses. I note that the Local Authority decline to accept a family assistance order as well.

I would very much hope that the Local Authority will consider what I have said in this judgment. It is to be transcribed and published. It seems to me right that the plight of children who are subject to both the Mental Health Act because they are ill and need to be detained for treatment and to the Children Act because they are likely to suffer significant harm attributable to being out of control or by reason of parental default is one that should be brought to the public attention.

 

 

 

 

Extinction bursts

 

 
Northamptonshire NHS Trust v Another 2014

http://www.bailii.org/ew/cases/EWCOP/2014/2.html

This is a sad Court of Protection case, involving a young man named ML. ML had a variety of different needs :- severe learning disability, developmental disorder, autism, epilepsy and diabetes. He has very limited conventional skills of communication or social interaction.

As a result of this, his family reached the point where they needed some help. Three times per week he attends an Autistic Day Centre from 10.00am to 3.00pm, but otherwise lives with his family full-time.

The Trust made an application to the Court of Protection seeking a declaration that it would be in ML’s best interests to reside at Bestwood Hospital and get treatment there until he is in a position to return home.

All parties were agreed that this would be a deprivation of liberty (particularly following the Supreme Court’s decision in Cheshire) , and thus something that would need to be specifically authorised.
5. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met. If I accept the evidence of Susan Freeman, Nurse Consultant, ML is one of the most dangerous patients she has encountered still living within the community. She had, she told me, “only experienced one other person with more aggressive behaviour impact on others to the severity that ML’s does” and this was in the context of 30 Years of nursing people “whose behaviour challenges services” as she puts it. In her statement of the 31st January 2014 Ms. Freeman observed “I am a very experienced learning disability nurse. In all the years that I have been practicing ML is one of the most complex and challenging patients that I have been involved with, the range of his needs is quite vast”. Ms Freeman described ML as showing high levels of aggression “impacting on every area of his life and inhibiting appropriate health care intervention”. She believed his abilities were diminishing in an isolated routine. She said “If ML is not transferred out of his current environment and routines his world is going to continue to decrease”. ML’s diet said Ms Freeman was entirely unsatisfactory. By way of example she said ML ate only jam sandwiches and that little attempt was made to vary the diet. Certainly jam sandwiches, as Mr Weston, later confirmed were all ML ever ate at the Day Centre. I have heard in evidence that this resistance to new experiences, taste or routines is a feature of his autism, not uncommon at this severe end of the spectrum. Ms Freeman was uncompromising in her professional criticism of the National Autistic Society Day Centre. Their approach to ML’s care was she said “fundamentally flawed” it was “managing him at a distance” it involved withdrawing from him to avoid outbursts, it left him isolated and under stimulated and it served to reinforce his reliance on aggression.
6. In respect of the parents Ms Freeman said that they believe ML is simply unable to make progress or develop new skills. They are, she considered, over reliant on medication and believe its restorative powers will ultimately manage ML’s aggressive behaviours.
7. There was, however, a radically different picture of ML presented by other witnesses namely the parents, Ian Weston (the support worker at the NAS Day Centre) and Ms Heather Eyers.
8. It was not possible for the mother (EL) to come to London, it would have required an intolerable and unsustainable interruption to ML’s routine. I took her evidence by telephone link so all could hear it. She told me that she had made progress with ML’s diet, that he was now eating a broader range of foods: ‘pasties’, ‘crisps’, ‘sausages’ she said, by way of example, not particularly nutritious but an important improvement . She and her husband had attributed the peak in ML’s violent behaviour at the end of 2012 and early 2013 as being a consequence of his distress during his term as an inpatient in the Vale Hospital, where they considered he had been too readily ‘secluded’ (locked in a partially padded room) and for extended periods of time (4 ½ hours on one occasion). He had since calmed down and become more manageable. They had experienced no difficulty in managing him at home for months. Both parents said he was happy at home, well known and protected in their local community. He enjoyed seeing his brother and enjoyed the Day Centre. They have a padded room at home and both BL and EL told me that ML goes willingly to it when required. They simply do not see the extent of aggression that is attributed to ML and believe that the documented case gives only a partial picture. “We do not keep records at home”, they say. Moreover, they assert, the case papers inevitably concentrate on problem episodes rather than the many times when ML is relaxed and content. In their carefully presented closing submissions they undertook an analysis of the advantages of their proposals. It purported to be a comparative analysis but in truth, it was, understandably, largely one sided. They wish the present arrangements to continue and submit
Home / NAS Day Centre
i) We accept that there are no community living placements currently suitable for ML but there is no immediate need for ML to be moved from his family home. We are very happy for him to remain living here with us. We have managed to look after ML for 25 years and see no reason why we cannot continue to do so for the future.
ii) We are able to provide physical and medical care for ML. He is not disadvantaged in any way by living at home. We believe that we have the best understanding of ML’s medical needs having had to deal with them over his life.
iii) We believe that ML has gained enormously from moving back into his family home. He is happy and enjoys his life. He has daily contact with the outside world. His life is full and he is happy and secure in his routines.
iv) We believe that the work we have been doing at home with ML and the plans given in the recent NAS (National Autistic Society) witness statement give a solid base for work to develop ML’s functional skills using methods that take his autistic limitations into account. We believe this is likely to result in slow but steady progress for ML.
v) ML is an integral part of a loving family. We have always accepted his challenging behaviour and dealt with it. We have come through the difficult times with him and never gave up on him. We strongly believe that ML enjoys his family life and would want it to continue if he were able to choose.

 

Mr Weston comes out of this case with a considerable amount of credit, and the Judge had asked specifically to hear from him.

9. Having heard in evidence that ML had a particularly good relationship with his care assistant Ian Weston, I asked if Mr Weston could attend court because I hoped to be able to reconcile these differing accounts of ML’s general behaviour. Mr Weston could not have been more positive: he told me that ML enjoys walks but had, for example, easily been distracted from his usual routine when routes were impassable due to recent flooding. That was a good indicator of some of the progress being made he thought. He saw his role as “giving him the enjoyment that he needs”. I am impressed by the extent to which Mr Weston knew how ML was able to enjoy himself: ‘his Ipad'; ‘YouTube’, especially ‘Winnie the Pooh’ videos which he regularly enjoyed. He particularly likes swimming and likes Mr Weston repeatedly jumping into the pool. He enjoys the sound of the splash.
10. Mr Weston described how he had developed a habit for deflecting repeat requests for him to jump in and to which ML had responded. ML had learnt to dry himself which had always been a problem in the past he said. He was very clear that ML was much happier. Mr Weston was a tall well built man, both his stature and his contagious enthusiasm undoubtedly gave him an advantage over some of his colleagues. This was recognised and he was more regularly selected by the Day Centre to assist ML. It was made clear to me that one or two of the more diminutive assistants were less comfortable.
11. ML, it was agreed, likes “strong confident men”. I formed the view that whilst that strength and confidence was important it was not necessarily physical strength that he responded to (though that undoubtedly helps). He appears to respond to those he trusts well. I have seen photographs of him with his mother which reveal a capacity to display affection that the reports and evidence did not fully reveal to me.
12. All this said I note that on one very unfortunate visit to the swimming pool ML lashed out against Mr Weston, causing him to fall to the ground and crack two ribs. Mr Weston had to take some time off work. It did not deter him though and his relationship with ML has continued to flourish. Mr Weston knew that ML’s parents want to keep him at home and attending the Day Care Centre. I am clear that he intended to support them in his evidence. However, his commitment to ML and I thought real affection for him also communicated a sense of his own evaluation of ML’s potential. He seemed to me to be enthusiastic, to go beyond ‘keeping him happy’ and to bring him on. Mr Weston had, in my judgement, a strong sense that ML had greater potential than was being realised. Both ML and the NAS Day Centre are very fortunate to have Mr Weston. It was very clear to me why ML would respond to such enthusiasm and energy.

 

 

 

As part of the analysis of what ML might need in the future, the Judge wanted and needed to know more about the current assistance he is receiving. That seemingly innocuous enquiry led to an exploration of a short period ML had had in hospital, the Vale Hospital.

Ms Eyers, from the National Autistic Society had prepared a report about what the Day Centre were doing with ML, and the Court quoted extensively from it

16. In her report to the Court dated 11th February 2014, Ms Eyers evaluates the rationale and the success of the program. I propose to set her analysis out in full in order properly to do justice to it and so that it can address the criticisms made of it:
“The rationale of our current approach to behaviour support is to ask staff to leave at set intervals, so that ML’s need for time alone is respected before he has to present with physical aggression, which automatically causes the staff to withdraw. This approach aims to weaken the relationship between the presentation of the behaviour of concern and the reinforcer. This is achieved because the reinforcer is delivered independently of the presentation of the behaviour of concern. At the same time staff are modelling a more socially acceptable way for ML to communicate that he would like to spend time alone (waving of the hand). The full rationale is outlined in exhibit HE3.
Since the introduction of the behaviour support programme the day service has seen a drop in the amount of incidents to a maximum of 5 in one month, from up to 12 previously; with no incidents that have caused harm to others in a 3 month period. Analysis of the incident reports also indicates that the length of time of incidents has decreased from a maximum of 5 hours per day to a maximum 3 minutes. The intensity of incidents has also seen a decrease, with 55% of incidents post intervention requiring minimal response from his support team and not interrupting his activity, compared with 21% prior to the intervention – Exhibit HE4.
I feel that the current approach to supporting ML is successful, although it is slow paced, and we have seen a decrease in both the frequency and intensity of behaviours of concern and an increase in the amount of time that staff are spending in the space that has been dedicated to ML. It must be acknowledged that ML only currently spends 15 hours per week at the day service. The aims of the Behaviour Support Programme are now to increase the amount of time that staff are actively engaged in meaningful activity with ML – Exhibit HE5
In terms of the NAS continuing to support ML it is my opinion that whilst his levels of anxiety and physical aggression remain at current frequency and intensity then ML is not posing a high risk to those supporting him, himself or others who use the service. I would be cautious about using any other approach at the day service than the current Behaviour Support Programme, which relies on Non-contingent reinforcement, in which staff give ML structured periods of time when they are not in his company, as well as teaching functionally equivalent skills for him to tell us that he wants us to leave (rather than use of physical aggression), as this is having the affect of decreasing the number of incidents that ML is having, however it is a slow process and would need ML to continue to have his own safe space at the centre and to be more tolerant of staff before we can begin to look at preference assessment to find other activities that interest him.
The use of ‘extinction theory’ would not be appropriate at the day service due to the high risk of an ‘extinction burst’ challenging behaviour, the result of which would be of too high risk in this setting.
The NAS are committed to providing a good support service to ML and I do feel that once we have worked on his ability to tolerate others we can introduce a range of techniques to develop his functional skills and this will include :
i) Implementation of the Picture Exchange System to support his communication skills;
ii) Intensive interaction sessions to support development of his social interaction skills;
iii) Completing Sensory assessment and developing sensory based activities that meet his processing needs, especially in relation to tactile stimulation, olfactory stimulation and proprioceptive stimulation.
iv) Preference assessment to discover activities that interest and motive ML.

 
17. The Strategy referred to as ‘extinction theory’ has been the subject of much controversy in this case
Extinction theory and extinction bursts are a new concept to me, so I am grateful that the Judge explained it. There was a considerable schism between professionals in the case as to whether extinction theory would eventually bear fruit for ML and it was worth persevering through a difficult period, or whether it was harmful and wrong for ML.

24. An Extinction Burst is defined as follows:
“Extinction…. involves eliminating the reinforcement contingency maintaining a response which can result in … a temporary increase in the frequency, intensity or duration of the target response, also called ‘Extinction Bursts’ ” (Cooper, Heron and Heward, 1987 in Leman and Iawatu 1955).
I hesitate to attempt to reduce this concept into lay terms because, as has been emphasised, to do so runs the risk of oversimplifying what can be a subtle and complex process. Nonetheless, with that caveat in mind, it implies that if ML is confronted with something he does not like (stimuli of any kind) his fight instinct is aroused. The essence of the technique is to not respond in spite of the aggression and to continue the stimulus. It seems inevitable that until ML realises that his aggression is not causing the removal of the stimulus his aggression will accelerate. Breaking through this cycle, as I understand it, is termed the “extinction burst”. As ML recognised, he and EL are simply not able to manage this strategy. The reality (as opposed to the theory) is very painful and distressing both emotionally and likely physically too. BL told me he was profoundly afraid for his son, frightened about the technique and about the consequences if as he puts it “it all goes wrong”.
Part of the reason that ML’s family were worried that it would all go wrong, and opposed to ML being placed in hospital was the awful experience of his previous hospitalisation at the Vale.

 

 

25. ML was admitted between March and August 2012 as his parents were struggling to manage him. He returned having been discharged under the Mental Health Act 1983, pursuant to the discretionary powers of the Mental Health Review Tribunal in August 2012. It seems clear that the approach of the The Vale had been challenging and, had broadly, pursued the ‘extinction burst’ strategy that I have referred to above. It was a very difficult period for ML and his family. It was his parents who ultimately applied for his discharge under the Mental Health Act, which was opposed by the Trust.
26. In his 1st report, dated 24th October 2012, Dr Carpenter reviewed this period of admission. He saw no evidence that during the 5 months in hospital ML had learnt new self care skills sufficient to change his care needs. He observes
“In hospital he appears to have been restrained at length and this often disturbed him later, it certainly seems to have encouraged him to use his teeth to get away from being held…
He was then moved to another room to be secluded. My assessment is that as he had by then been in a struggling restraint for a period of time he enters the seclusion room very aroused and angry and then kicks and headbangs in a way that he was not prone to do – to the point of knocking himself unconscious and giving himself black eyes”.
27. In Dr Carpenter’s assessment, based on his review of the notes, the lengths of seclusion needed for ML to calm down were 10 times longer than they had been at home. Dr Carpenter also added:
“It is a challenge to find things that he enjoys. I feel we need to brainstorm the sensory likes he has and activities suitable for his development level“.
28. I endorse his last observation and I would emphasise it because, in different ways, every witness indentified the importance of this. Had there been a more collaborative approach amongst the professionals I suspect that much of this work would already have been done.
29. Annexed to Dr Carpenter’s report is a schedule headed ‘Hospital Seclusion record extracts’. I have found that to be a very disturbing document indeed. BL was unrepresented at this hearing and so I, on his behalf put this document under considerable forensic scrutiny. It is intrinsic to BL’s case that ML’s past treatment at the Vale Hospital has a direct bearing on future treatment and the declarations sought to enable such treatment to be implemented. Analysing carefully the periods of ‘seclusion’ whilst at the Vale Hospital is therefore crucial to this forensic process. BL is not a lawyer, he is a father. Though very effective in other aspects of the presentation of the case, the material relating to seclusion was something he found difficult to organise and evaluate. In my judgment that period was so full of pain for him as a father he could barely face revisiting it. His distress was visible despite his determination to remain controlled.
30. The way in which and the extent to which vulnerable adults are ‘secluded’ or deprived of their liberty is one of the indexes by which we measure our maturity as a democratic society. The necessity and proportionality of restriction of an individual’s personal autonomy requires constant vigilance and effective independent review. Both the framework of the Mental Health Act 1983 and the Mental Capacity Act 2005 are rigorous in affording a regime of both protection and review. Public funding for family members in both systems is rarely available and so they regularly appear unrepresented. This inevitably imposes an even greater burden on the offices of the Official Solicitor to ensure that those who they represent are fully protected. The enquiry into the extent and safety of ML’s detention in the Vale Hospital here was Judge led. It ought not to have been necessary for it to be so. The facts ought to have triggered, at very least, forensic curiosity. The Official Solicitor has provided, valuable assistance on the legal issues the case raises but the welfare investigation was, in my judgement, not sufficiently searching.
31. On the 10th April 2012 ML was kept in seclusion for 5 hours. That was unusual, but the records show that he was regularly secluded between 1 hr and 1hr 30 minutes.
That, if you missed it, was the Judge opening up a six pack of Whup-Ass. He was very unhappy about what the Vale had done, very unhappy that these awful facts came to light as a result of judicial investigation rather than had been presented directly to him, and was very unhappy that the Official Solicitor hadn’t found this stuff out.
The thrust was that “extinction theory” had been used on ML, with a view to when he was exposed to something he didn’t like and became aggressive rather than stopping the exposure, professionals would continue it and ignore the aggression, under the expectation that EVENTUALLY ML would learn that aggressive behaviour does not end up getting his needs met and he would move away from it as a strategy or technique. In practice, what happened was that ML got so aggressive that he had to be secluded, on one occasion for 5 hours but very often for about an hour.

This is what the Judge had to say about seclusion
32. ‘Seclusion’ is defined in the Mental Health Act Code of Practice
“15.43 Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.
15.44 Alternative terminology such as “therapeutic isolation”, “single-person wards” and “enforced segregation” should not be used to deprive patients of the safeguards established for the use of seclusion. All episodes which meet the definition in the previous paragraph must be treated as seclusion, regardless of the terminology used.”
33. Further features of the codes need to be highlighted:
“15.45 Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed.
15.46 Seclusion of an informal patient should be taken as an indication of the need to consider formal detention.
15.47 Hospital policies should include clear written guidelines on the use of seclusion. Guidelines should:
• ensure the safety and wellbeing of the patient;
• ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place;
• distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”);
• specify a suitable environment that takes account of the patient’s dignity and physical wellbeing;
• set out the roles and responsibilities of staff; and
• set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action.
So, having already established that seclusion is a last resort, should only be used for the shortest possible time and should not be used as part of a treatment programme or to manage self-harming behaviour, it was already pretty plain that it ought not to have been used on ML in this way.

It gets worse

35. Susan Freeman drew the hospital’s attention to what she considered to be inadequate padding to the door of the seclusion room. She is very experienced, she is, as is already evident from this judgment, forthright in her manner of expression. I should have thought that anyone hearing her views on this particular issue would have responded immediately and with some alarm. Astonishingly, and I do not use that word lightly, what followed was an email exchange that challenged the necessity of the additional padding largely on the grounds of expense. On one occasion ML knocked himself unconscious and on another may have sustained two black eyes. I say ‘may’ here because there is a possibility that the black and swollen eyes were the consequence of rubbing eyes affected by hay fever. ML is very resistant to physical examination and the Doctor who saw him was unable to come to a conclusion. Ms Freeman preferred the more benign explanation but with respect to her the proper course was to have remained open minded.
36. The fact of injury coupled with the frequency and the duration of some of the periods of seclusion is profoundly disturbing. The tardiness in responding to Ms Freeman’s concerns, (the padding was eventually rectified) and the reasoning behind the delay is to, my mind, unjustifiable. ML’s safety and his dignity were avoidably compromised. At the end of the case I heard from Mr Richard Mc Kendrick , the Chief Operating Officer of the Northamptonshire Healthcare NHS Foundation Trust. He had, I think, been present throughout most if not all of the evidence in this case.
37. He told me from the witness box:
“Hearing the evidence I share the concern expressed. I am very disappointed at the quality of care ML received at the Vale Hospital. I find it unacceptable. On behalf of the Trust I apologise to the L family for making mistakes and getting it wrong. In my experience, listening to and reading the evidence we should have been more proactive from the first point of ML’s head banging to ensure the seclusion room was safe and properly padded…. The whole circumstances of ML’s admission falls far short of the standards our staff and services aim to provide. I can only say the staff acted with good intentions but made mistakes. I apologise unreservedly on behalf of the Trust.”
38. Mr McKendrick went on in his evidence to state “I will take on board the lessons of this hearing to see that this does not happen again.”
39. That fulsome apology was well judged and nothing less would have been appropriate. When I heard it I asked BL for a response. He told me that he was ‘astonished’. He accepted it with dignity, though he commented that it was too late to afford him any reassurance.

 

In case you missed that, the Vale hospital who were secluding this young man because their use of extinction theory wasn’t working, in breach of the code of practice, didn’t have a properly padded room, and despite warnings that this was dangerous AND the young person injuring himself, did not resolve it because of cost issues.
[The Court weren’t dealing with any compensation claim on behalf of ML, though it appears to me that a lot of the essential ingredients are provided here. That decision not to resolve the padding on cost issues might turn out to be a very false economy]

Looking then, at the family’s objections to ML going into hospital, the Judge said this

40. BL feels that if ML goes into care at Bestwood for the lengthy period (18 – 24 months) contemplated, it will, because of his Autism, weaken his relationship with his family, who he does not respond to well out of the context of the home environment. It is distinctly possible he will not want to see them in hospital. If his behaviour were to deteriorate, as it did following the Vale admission, he would potentially be entirely unmanageable in the community (as Ms Freeman already feels he is) and there would in effect be no way back. ML would have lost the delicate security of the present status quo and be consigned to permanent institutional care. For BL that heartbreaking prospect is simply too great a risk.
41. I hope I have done proper justice to BL’s primary arguments. It is not difficult to see how in the light of the painful experience that Mr McKendrick has now acknowledged BL should be so deeply resistant to the care course planned. No parent or compassionate individual could fail to have anything other than profound sympathy for him and his wife.
To be quite honest, I would have stopped there, invited the Trust to devise a care plan that would support this young man at home and in his Day Centre, and made no deprivation of liberty declarations. I really wish that the Court had.

42. My responsibility is to identify what is in ML’s best interest, mindful that the course proposed by the Applicants undoubtedly, as all agree, amounts to a deprivation of liberty. As the Supreme Court has recently restated P (by his litigation friend the Official Solicitor v Cheshire West and Chester Council and another; PQ (by their litigation friend, the Official Solicitor v Surrey County Council [2014] UKSC19, “human rights have a universal character”. In determining best interests, I must be careful here to focus on what is right for ML by independently and dispassionately evaluating his personal situation. BL’s perception of best interests is relevant only in so far as he is a crucial component of any plan and as such any plan which has his whole hearted support is more likely to succeed. But BL’s views have no further weight than that. (See subsection 4 (7) (b) of the Mental Capacity Act 2005 which imposes an obligation to take into account, if it practicable and appropriate to consult them, the views of anyone engaged in caring for the person or interested in his welfare).
43. The forensic process in this court has not permitted any witness to seek refuge in any particular professional ideology. It has kept an intense focus on ML and what is right for him. In the end the picture that emerged is an amalgamation of the views, contributions and experiences of all the professionals, from the varying disciplines and, of course most importantly from the parents. As BL recognised there was ultimately a professional consensus, though not one to which he could subscribe.
44. The key milestones to my conclusions are as follows:
i) ML at 25 will at some point need to be afforded the opportunity of independent living, which will always require a support structure to underpin it. His parents will not be able to care for him for ever;
ii) It is important that any move is planned and not the result of crisis, either in ML’s behaviour or in his parents’ health or general situation;
iii) There is, when analysed, a consensus that ML has greater potential than his present situation is enabling him to realise;
iv) The objectives of any regime of care ought to aspire to the goal of achieving independent living.
v) That goal (iv) may not always mean that ML’s personal happiness is given priority; integral to improvement is challenge which by definition is not easy;
vi) ML has a strong relationship with his parents, sibling and other key figures in his life. This relationship with his loving and committed parents has given ML a template from which to forge other relationships, as has been seen at the NAS Day Centre. All agree that this capacity is a very encouraging prognostic indicator of ML’s capacity to develop strategies that will equip him better for independent living;
vii) It follows from (vi) above that in addressing the balance of risk in terms of likely outcome at the Bestwood Centre the preponderance of evidence is optimistic. This is of crucial importance when determining whether to retain the status quo or not;
viii) Bestwood is a quite extraordinary resource. It is regarded by all the experts as a centre of excellence. It is finely tailored to the needs of those in ML’s circumstances. BL makes a very telling acknowledgement that if it were convenient to their home, so that they could call in frequently, he would now be supportive of it;
ix) Bestwood is highly sought after by many patients, it is an expensive resource that rarely becomes available. It follows that if ML were moved in crisis it is highly unlikely to be available. Indeed this may be ML’s only chance to gain access to such provision;
x) Whilst the Vale Hospital was not best equipped to manage the ‘extinction burst’ approach, predicated on exposure to stimuli, Bestwood is streamlined to put it in place and fully equipped to do so. I am persuaded that such approach is the correct one for ML.

45. I am satisfied that it is in ML’s best interest to have this opportunity. There is no guarantee of success of course and I fully understand the parents anxiety. I have been struck by how similar their concerns are to the fears of every parent whose child leaves home on the first steps to independent living. I don’t intend in any way to trivialise the issues here by that observation nor to underestimate the impact of their bad experiences at the Vale Hospital. I say it because the sheer normality of their reaction signals to me that ML like any other young man is entitled to the opportunity to fulfil his potential, it is the opportunity and not the outcome that is his right. I would be failing to respect his personal integrity and autonomy if I did not afford him this chance. I hope BL and EL will embrace it.

 

[I don't think that the Judge got this wrong, in an analytical sense, but I wish from a human perspective, he had reached a different conclusion]
There followed a very technical argument about the precise legal framework (basically, the Mental Health Act trumps the other regimes if it is accessible, so that was the regime that happened here). The Judge was obviously mindful that under the Mental Health Act, ML’s family could oppose detention under the nearest relative requirement and that an application MIGHT be made to displace them as nearest relatives.
83. For this reason I propose to take an unusual course. As I have foreshadowed above, any application to displace the nearest relative is to be reserved to me (upon the relevant authorisation to sit as a County Court Judge). I also propose to release this judgment to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications in this case, to ensure judicial continuity. I will provide that a copy of this judgment follows this case.

Finally, there were some general case management observations
84. By way of a postscript I would add that I am delivering this judgment in early May having heard evidence and submissions in late February and early March. To accommodate the hearing of this case it was necessary to sit long hours and to overrun into the following case. No time was allocated to read the extensive papers in advance. Two volumes of authorities were presented in closing submission, and no time at all had been allocated to reflect on the submissions to write the judgment or to reflect on the submissions.
85. The consequence is that this judgment has been delayed to a degree that I consider to be quite unacceptable for ML. Those who practice within the Court of Protection must understand that it is part of the responsibility of the lawyers to ensure that there are realistic time estimates given to the court. The instinct to underestimate the timescale of a case in order that it might be heard more expeditiously is misconceived as this case certainly has proved. I make these observations because this case is far from an isolated example. That said I have received invaluable assistance from all Counsel to whom I am extremely grateful.

 

Lucy Series over at The Small Places has written about another case where the vulnerable person has been very badly let down by professionals

https://thesmallplaces.wordpress.com/2014/05/16/another-local-authority-behaving-badly/

and I agree with everything that she writes there. I am do not feel that in either case, quite enough attention went on what could be put in place to care and support these people living in their own homes rather than in institutions.

A Re B type judgment is overdue in Mental Capacity cases, that would put the emphasis squarely on making things work at home if at all possible.

Ethical dilemmas and blood transfusions

 

This is part one of a Court of Protection decision about a very difficult case, throwing up ethical dilemmas.

Nottinghamshire Healthcare NHS Trust and J

http://www.bailii.org/ew/cases/EWHC/COP/2014/1136.html

The features are so complex that it almost reads like an exam question designed to push the law to its breaking point, but tragically involves a real person.

J is a 23 year old, detained under the Mental Health Act – he has a personality disorder.

. A symptom of his disorder is that “he engages in significant self-harm through self-laceration and bloodletting, most recently by opening his brachial artery”. As I understand it, it is not the opinion of the treating psychiatrist that he suffers from any kind of delusions or delusional disorder. His intelligence is within the range of normal and he appears (although this may require further exploration) to have capacity both to make decisions with regard to his medical treatment and also to instruct lawyers to conduct litigation on his behalf.
he “has a long history of significant and repeated self-harming behaviour. His self-harm includes self-strangulation with ligatures and plastic bags, burning himself, and self-injury, including head-butting and self-laceration. He frequently re-opens wounds to aggravate an existing injury and cause further damage and blood loss.”

J signed an advance directive, specifying that he did not want to accept blood transfusions. His parents are Jehovah’s Witnesses and it seems that he had regained that faith.

4. Another aspect of this case is that, because of some history of thrombosis, he is prescribed the anti-coagulant, Warfarin, which has the effect that when he does bleed, he bleeds more profusely than he might otherwise do. Another aspect of the case is that his parents are of the Jehovah’s Witness faith. I understand (although this may later be corrected) that for an appreciable period of time he did not himself profess that faith, but in the last few months he has apparently embraced it and now professes and adheres to the tenets of that particular faith. I have been told in counsel’s case summary that “He has stated that he now practises his religion by praying, reading the bible and reading The Watch Tower magazine. He reports that his religion is important in his life. He remains in contact with his father, who supports him in his faith.” As is widely known, a tenet of the faith of Jehovah’s Witnesses is a prohibition on receiving by transfusion blood or blood products.
5. According to counsel’s case summary, “On 1 February 2014 when in prison he seriously cut his right arm, opening his brachial artery at the antecubital fossa with a razor blade. He had significant blood loss and his haemoglobin fell to an extremely life-threatening level. He was admitted to intensive care and a blood transfusion was advised. He refused blood products on the basis of his Jehovah’s Witness faith. The treating hospital abided by his expressed wish, believing it to be capably stated.” Happily, he in fact survived that event without any blood being transfused.
The Judge looked at the advance directive and circumstances in which it was signed and concluded this

it appears to me that this is clearly an advance decision which was made with capacity and is valid within the meaning of, and for the purposes of, those provisions, and is also one which is applicable to the treatment described in the advance decision, namely a treatment which is transfusions into him of blood or primary blood components (red cells, white cells, plasma or platelets). I am therefore willing to declare on an interim basis that that written advance decision is valid and is applicable to that treatment, not withstanding that (a) his life may be at risk from the refusal of treatment, and (b) he is a patient detained under the Mental Health Acts.
I.e that J had capacity to make the decision that he did not want blood transfusions. Ordinarily, that would be that.

But, when the Mental Health Act comes into play, things become more difficult. There is the power under the MHA s63 for a hospital to provide medical treatment even where the patient does not consent – in effect overriding that objection; IF the medical treatment is for the mental disorder from which he is suffering

“The 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.”
The narrowness or otherwise of s63 has been litigated before (most notably in Ian Brady’s case, where feeding him with tubes was held to be a s63 treatment, even though he rationally understood that his hunger strike would result in his death)

There appears to be clear authority, and in particular the decision of the Court of Appeal in B v Croydon Health Authority [1995] Fam 133, to the effect that the expression “medical treatment given to him for the mental disorder from which he is suffering” is wide enough to extend to medical treatment for physical conditions caused or arising as a result of the underlying mental disorder. Thus if a detained patient suffers from the mental disorder of anorexia, it may be lawful to force-feed that patient as part of “medical treatment given to him for the mental disorder from which he is suffering.” If a detained patient cuts himself as a result of a self-harming mental disorder, then it may be lawful under that section to treat and stitch up the cuts. It is little or no extension of that approach that if, as a result of the mental disorder from which he is suffering, a patient cuts himself and bleeds so profusely that he needs a blood transfusion, it is part of the “medical treatment…for the mental disorder from which he is suffering” to give a medically necessary blood transfusion. So the question arises in this tragic situation, on the particular facts of this case (he being a detained mental patient), as to the interrelation between the provisions of the Mental Capacity Act 2005 in relation to advance decisions and the power under section 63 of the Mental Health Act 1983 to give medical treatment notwithstanding the absence of a consent.
So, it appears that the hospital could legally authorise blood transfusions even though J was objecting to them and had capacity to make that decision.

But, the hospital (I think very properly) felt uncomfortable about doing that, and wanted to place the issues before the Court
13. The dilemma is very well expressed in the statement by the treating psychiatrist, who says,
“I am…aware…that because [the patient] is a detained patient under section 63 of the Mental Health Act I have a power, as his responsible clinician, to override even a capable refusal of medical treatment [viz the advance decision] where that treatment is for the consequences of his mental disorder. It is my opinion that his self-harming behaviour that gives rise to the need for blood products is a direct consequence of his mental disorder and that hence I could use section 63 powers to enforce treatment with blood products upon him despite his capacitous refusal. I have some ethical difficulty in using the Mental Health Act to override a capacitous patient’s wishes based on religious wishes and I would not choose to use my Mental Health Act powers to override his advance decision.”
14. Pausing there, it can at once be seen why I said earlier in this judgment that this case raises ethical issues, for there is the treating doctor herself saying that she professionally feels “some ethical difficulty” in overriding his advance decision even though she has a power to do so under section 63 of the Mental Health Act 1983 and even though he might otherwise die. She continues in her statement:
“However, because of the significant consequences of abiding by his advance decision, which could result in his death, I seek a declaration from the Court as to (1) whether the advance decision is valid and applicable (on taking account of the context that he is refusing life-saving treatment for self-harm which is medicated through his mental disorder) and, if so, (2) whether in coming to my view that blood products should not be enforced upon him in the light of a valid and applicable advance decision, I have correctly struck the balance between the right to freedom of religion and the Article 2 right to life of a detained patient.”

 

The hospital were therefore of the view that although they COULD exercise their power under s63 MHA to compel blood transfusions, they did not feel that they SHOULD.

Pausing there, a question arises as to whether the Court is the right place to make decisions about medical ethics. As Holman J points out (though in neater language than I use) – If you want law, Courts are the right place, if you want ethics you may be in the wrong place.

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.

 

The Court felt uncomfortable about trying to resolve this dilemma without someone speaking on behalf of J, and decided that J’s voice had to be heard before any decision could properly be made

16. The passage that I have just quoted from the statement of the psychiatrist very clearly highlights the terrible dilemma in this case. On the one hand, this young adult has made a clear advance decision, whilst apparently having capacity to do so, that, because of his religious beliefs, he utterly refuses consent and positively directs that he should not be transfused with blood or blood products. On the other hand, he is compulsorily detained, both as a prisoner and now in a psychiatric hospital, where, so far as possible and lawful, the state is under obvious duties to protect him, as the consultant psychiatrist identified in the above passage. He has a right to life under Article 2 of the European Convention on Human Rights; but, under other articles of that Convention, he has a right to freedom of religion and a right to respect for his private life, which includes his own bodily integrity.
17. I have been asked today to make an interim declaration that “it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983.” That is not a declaration which I feel equipped or am willing to make after a hearing of this kind in which I have heard representations from only one side and which is not on notice to the patient or any other person. It is of the essence of the application to the court that this is an issue of very considerable difficulty. Precisely because it is one of such difficulty, it is not one upon which the court can judicially and responsibly rule without hearing and considering so far as possible the arguments on both sides of the issue.
It will be interesting to know how part two develops.

The continuing dilemma for the court is that, unless somebody such as the Official Solicitor engages in this case, there may be no contrary argument. The present position of the patient seems to be that he utterly refuses to consent to a transfusion even if that has the effect of his dying as a result of his self-harming acts (even if those acts are not themselves done with suicidal intent). The position at the moment of the consulting psychiatrist, and therefore of the Trust, is that, notwithstanding the power under section 63, they should not in fact exercise it. Thus, the present position seems to be that if the physical restraints are removed and he is able again to cause profuse bleeding, he may die, whether he intends to bring about his death or not. If there is a contrary argument that the power under section 63 should be positively exercised in circumstances such as this, then it will be very important indeed for the court to hear it.

 

If I were making a prediction, it would be that the Court will decide that the hospital COULD use s63, but fall short of saying that they SHOULD. I think that the Court will probably make the declaration that the Trust seek

“it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983”

But Article 2, and the authorities on the article 2 right to life are probably going to play a significant role in the decision, and I think it could go the other way.

To be clear, the Court cannot MAKE the hospital perform the blood transfusions, but declining to make the declaration that they seek that they SHOULD NOT do it and honour J’s advance directive makes life very uncomfortable for them if they decide not to.

Inherently nothing, nothing inherently

A (hopefully short) discussion about the inherent jurisdiction, particularly as it applies to adults.

I wrote about the Court of Protection popping on the High Court hat to make use of the inherent jurisdiction to get around an otherwise impossible jam, in A NHS Trust v Dr A 2013 http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html and it got me pondering.

As a quick summary, the inherent jurisdiction is a creation of the common law, i.e it was decided in cases before the Court rather than laws enacted by Parliament or regulations or codes drawn up by Ministers.  It essentially provides for the High Court to use unspecified but wide-ranging powers to solve a problem that could not otherwise be achieved by use of statutory powers. In the case of Dr A, because Dr A was detained under the Mental Health Act AND lacked capacity, and the treatment that was considered desirable for him was not in relation to his mental illness but his physical wellbeing; the construction of the Mental Capacity Act prohibited the treatment being authorised by the Mental Capacity Act, and it was treatment that couldn’t be legitimately compelled without consent under the Mental Health Act.

 

The Court’s solution was to make use of the inherent jurisdiction – as we know from that case, had they not done so, the man would probably have died, and we also know that the man went on to make a good recovery and was happy not to have died. So it was the right thing to do. But it was, nonetheless, the High Court using broad and unspecified powers to achieve an outcome that was specifically prevented by legislation enacted by an elected Government. Yes, that legislation was probably a mess and it hadn’t been properly thought through, but nonetheless, the High Court did something that the statute had specifically prevented.

So, my question is – Is the Inherent Jurisdiction a useful and helpful tool to have to allow Judges dealing with difficult cases the necessary flexibility to arrive at what they consider to be the right outcome, or is it a method by which Judges can grant themselves powers that have never been specifically handed to them?  Are we accepting that in exposure to real life, statutory laws will always have stress points and flaws and sometimes break completely and it is helpful to have the judicial Polyfilla of the Inherent Jurisdiction to come to the rescue? Or do we consider that if the UK Parliament wanted to make it lawful for Judges to make orders to sterilise patients, to effectively continue Wardship on someone who was an adult, to determine whether a person could marry, to authorise surgery on conjoined twins against the wishes of parents who were competent, to regulate the relationship between vulnerable adults and their adult son, to decide whether a parent’s views about cancer treatment should be overriden for their child, or to authorise force-feeding, that this should be done through statutory laws?   (Those are all genuine cases involving the use of the inherent jurisdiction to make such orders, and some went on to lead to the introduction of statutory mechanisms to resolve these problems)

Of course, if the inherent jurisdiction hadn’t been there, then the Court could have ended up being unable to make the decisions and orders that were deemed to be in the person’s best interests – it would have been no good to any of those individuals that the Government in four or five years time would bring about some legislation on forced marriages, or persons lacking capacity. Don’t we WANT Judges to be able to make the right decisions – they are seized of the facts, they hear the arguments – we wouldn’t want them to have to make a decision that they felt was not right for the individuals concerned merely because the law hadn’t anticipated this set of circumstances and made provision for it?

On the other side, however, it worries me to an extent, firstly because we are now getting into territories where there IS existing legislation to make provision for these things. Both the Mental Capacity Act and the Mental Health Act have very long and detailed provisions for the circumstances in which treatment can be undertaken without consent. Dr A happened to fit within both pieces of legislation – he was detained under the Mental Health Act, and was determined to lack capacity to make decisions about the feeding treatment under the MCA.  Whilst I consider that the final decision that was taken was right, and in Dr A’s best interests, I can’t get away from a nagging feeling that all of those statutory provisions and requirements were sidestepped by a Judge simply deciding that “X should be done, and I will do it under the inherent jurisdiction”

We surely needed the Mental Health Act and Mental Capacity Act so that it was clear (or comparitively clear) under what circumstances the State could interfere with a person’s life and autonomy, what would be required before the State could do so, what the checks and balances would be, what rights the person would have.  All of that seems to me to get a little lost when a High Court Judge can simply decide that they have the power to achieve the outcome they desire?

In children cases, the use of the inherent jurisdiction is moulded into the statute – it says what it cannot be used for, and gives parameters in which the State can invite the Court to use those powers. In adult cases, it is not incorporated or limited.

Sentences like this, from McFarlane LJ  (who I believe to be a fair and just Judge) still make me shudder a little   “It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”  DL V a Local Authority 2012  http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

I don’t like the notion that Judges are able to consider that they have carte blanche with these powers unless Parliament expressly take them away.  Because another way of looking at it would be – that when you are deciding on compelling medical treatment for a person who doesn’t consent to it, you are looking at whether it can be authorised under either Mental Health Act, Mental Capacity Act or the doctrine of necessity, and that if it can’t, then it simply can’t be authorised.

Once you consider that in every case where the Court uses its Inherent Jurisdiction they are in effect making a decision that the State knows best and can impose a paternalistic decision upon people overriding their autonomy, it becomes something that is potentially concerning.  I say that not because I think any of the Judges who have used it have ever done so for reasons other than genuine belief that it was in the best interests of the individual; but because I firmly believe that people should have autonomy other than in circumstances specifically set out in statute law.  I would rather preserve Judges as the referee , as the person sifting the evidence, hearing the argument, being arbiters and determiners of whether the State has made out its case for taking decisions away from the individual under statutory powers;  and not stepping onto the pitch and taking part in the match itself.

Do I think that this principle is more important than a Court being able to solve an intransigent problem in an individual case?  That’s harder to say – faced with a life or death situation like Dr A and the statutory law as written meaning that the Court would be powerless to order the treatment which it had already decided was in Dr A’s best interests, it is hard to feel that they should be denied the chance to make the right decision. I perhaps feel that using the inherent jurisdiction to Polyfilla the cracks is ultimately less good for the individual than Judges being able to go back to Parliament and say “Look, you hadn’t envisaged this scenario – I have fixed it just this once, but what do you want Courts to do if it comes up again?@

Deprivation of liberty and force-feeding

The Court of Protection grappled with a difficult issue in A NHS Trust v Dr A 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html

Apologies in advance – this is a long article, it is complex and if you don’t do mental capacity or mental health law you probably don’t need to read it.

The facts of the case involved a Doctor who began manifesting erratic behaviour, for example insisting that anyone in the colour red was a member of the Iranian Secret Police and that a book he was writing disproving evolution would make him famous after his death. Dr A also went on hunger strike, following the confiscation of his passport by the UK Border Agency.

Although one expert was of the view that Dr A’s behaviour was all an attempt to apply pressure to reverse decisions about his asylum case, the vast majority of the experts considered that he had had a genuine breakdown of his mental health.

Without going into the details too much, the Court were satisfied that Dr A was suffering from a delusional disorder impairing the functioning of his brain affecting his ability to use or weigh up information relevant to his decision as to whether or not to accept nourishment.  (And thus in terms, that he did not have the capacity to decide to refuse nourishment)

The Court then weighed up whether it was in Dr A’s best interests to receive nutrition by way of force feeding or not  – this is not a simple decision, and a number of competing factors were weighed up and considered. The Court determined that it would be in Dr A’s best interests to receive nutrition by way of nasogastric tube feeding.

However, an issue then arose about whether, having made the declaration that Dr A lacked capacity, and that force-feeding would be in his best interests, whether the Court actually had jurisdiction to compel it.

  1. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.
  1. I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward

 

The fact that the next part of the judgment is headed “Eligibility – a new gap?” will make practitioners in this field very nervous – the last gap went all the way to Europe, and ended up with the Mental Capacity Act and all of the impenetrability that the MCA has become in practice.

The Court had to look at whether force-feeding was a deprivation of liberty, and concluded that yes it was. This may well turn out to be important in other cases involving for example political protests,  Brady-type efforts to end ones own life or persons with eating disorders.

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

The issue then was whether the Court had powers under the MCA to make an order that had the effect of depriving Dr A of his liberty. This becomes very complex, very quickly, even by MCA standards.

  1. 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

And then a long trawl through Schedule 1A of the MCA which sets out when a person is ineligible to be deprived of liberty under the MCA shows that the MCA can’t be used to deprive a person of their liberty if they are being, or are capable of being , detained under the Mental Health Act.

In the light of the evidence suggesting that the criteria set by section 2 MHA might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

The hospital actually detained Dr A under s3 of the Mental Health Act during the interim period between the Judge asking trial counsel how the heck this could be fixed and them coming up with solutions. Did that help?

  1. The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.
  1. Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

 

So, you can provide treatment to a person who is, or is capable of being, detained under the Mental Health Act, in accordance with the MHA  BUT if the treatment isn’t capable of being provided under the MHA you cannot then turn to the MCA as being a vehicle for providing that treatment even if the person does not have capacity and the Court has declared that the treatment is in their best interests, because of Schedule 1 A of the MCA.

Sorry, this is going to be  complex, it takes about five pages of going through the Act itself to get to that point – the Judge was so exasperated by what he described as  the ambiguity, obscurity and possible absurdity of the legislation, that he authorised counsel to look at the Parliamentary debates in a Pepper v Hart exercise to see if this idiocy was what Parliament had intended, or whether it was a cock-up.  (Judges hardly ever embark on the exercise of looking at what Parliament said about the construction of the Act  – it’s that Otto von Bismarck  “laws are like sausages – it is better not to see them being made” thing)

  1. The Official Solicitor now suggests three solutions to the problem described above:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.

I shall consider these options in turn.

Authorising the treatment under the Mental Health Act

Understandably, the Official Solicitor cited the Ian Brady case as authority for the suggestion that force-feeding can be authorised under the Mental Health Act.

This is the key passage in the Brady judgment that sanctioned his force-feeding under the MHA  (a decision that frankly, I found a bit ‘iffy’ at the time, going much further than traditional views that one can forcibly treat the mental disorder but not physical disorders under the MHA)

71.   “On any view, and to a high degree of probability, section 63 (MHA) was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

The medical evidence in this case did not back that up

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

  1. On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.
  1. I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case of uncertainty, where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.
  1. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA

Authorising the treatment under the MCA, by interpreting it in light of the Human Rights Act

I liked this argument, it is clever. If the MCA as drafted, puts a Court in a position of not being able to protect the right to life of a person who the Court has determined does not have the capacity to refuse treatment which would save his life, the Court ought to interpret the MCA in such a way that it does NOT clash with the article 2 right to life. And using the powerful tool of s3 (1) Human Rights Act to do so

Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

 

  1. The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.
  1. It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245.

 

 

But it is still No

  1. The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

  1. I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

Inherent jurisdiction then?

The Judge set out the body of authority which endorses the view that the Court hold an inherent jurisdiction in relation to adults just as it does for children, ending with the most recent authority.

90.   Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ. 253 in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

  1. The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”

In essence, if Parliament wanted to stop the use of inherent jurisdiction to creatively solve problems, they need to legislate this explicitly.

This is the cunning argument deployed  (which involves assuming that when the MCA says “Court” it means only the Court of Protection, not the High Court, even though in practice, as here, it is likely to be the same Judge, sitting in the same room, who just metaphorically puts on a different hat for a moment.

 

93.   (1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision:

(a) “The court” means the Court of Protection; and

(b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection.

I agree with those submissions.

So, having determined that the Court had power under the Inherent Jurisdiction (which is like the legal equivalent of Duct Tape, or perhaps more accurately Polyfilla to cover up the cracks), the Judge then had to consider whether he should go on to use that power.

  1. the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.
  1. In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient’s liberty.
  1. Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

An elegant fix of a mess caused by Parliament.

There is a postscript update on Dr A, which may be of interest

98.   On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.

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