Nottinghamshire Healthcare NHS trust and RC 2014
This one came before the Court of Protection earlier this year, and I wrote about it here
Where Holman J was sympathetic to the hospitals decision not to impose blood transfusions on someone who did not want them, even though there was an argument that they COULD impose them under s63 of the Mental Health Act, but decided he needed the patient to be represented through the Official Solicitor and to hear full argument before deciding the case.
It is important to remember throughout that the Trust were minded to follow RC’s wishes and not administer blood transfusions (even life-saving ones) against his will, but because of the risk that this could contribute to his death, they wanted to seek a declaration from the Court of Protection / High Court that it was acceptable to do this.
[Peculiarly, this judgment never once mentions that earlier judgment, but it would be astronomically surprising if Nottinghamshire had two different Jehovah’s Witnesses who were self-harming and refusing blood transfusions and the doctors sought a declaration that they wanted to respect his wishes even though it might result in his death, so I think it is the same case]
Mostyn J gives a very thoughtful judgment, and draws on some important jurisprudence and philosophy
8. In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill’s essay On Liberty (1859) where he stated at pp14 – 15:
“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign”
9. Thus Judge LJ in St George’s Healthcare NHS Trust v S  Fam 28, 43 stated:
“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it.”
10. This right applies equally to detained citizens. In Home Secretary v Robb  1 FLR 412 Thorpe J stated:
“…every person’s body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner”
However, there are three sets of circumstances in which a person’s autonomy over their own body can come into question and where the State might override their decisions
13. There are three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.
i) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the MCA.
ii) Similarly, adults who have capacity but who can be categorised as “vulnerable” and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority  3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage)  1 FLR 867).
iii) Under the Mental Health Act 1983 (“MHA”) a detained patient may have treatment imposed on him or her pursuant to section 63 which provides, so far as is relevant to this case:
“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”
At first blush section 63 strikes one as an illiberal provision, given that it applies to all detained mentally ill patients who may well not lack capacity (as here). However, it can be well justified when one reflects that the treatment in question may be needed not merely for the protection of the patient but also for the prevention of harm to others, given the violent eruptions to which mental illness can give rise
On the first of those, the Judge very carefully considered the capacity issue and determined that RC had capacity to decide to refuse blood transfusions and the fact that his decision was centred on religious beliefs did not diminish his capacity
33 A fundamental principle under section 1(2) MCA is that capacity is to be assumed unless it is established, on the balance of probabilities, to be lacking. The effect of section 2 and section 3 MCA is that a person will lack the capacity to make a decision if, by reason of mental disorder, they are unable to understand, or retain, or use or weigh up the information relevant to that decision, or to communicate their decision. In this case Mr Francis QC correctly argues that the only the possible question relates to whether RC is able to weigh information in the balance. In his report Dr Latham says:
“His ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create, in his mind (and others) an absolute prohibition on blood products and so there is relatively little “weighing” when it comes to this decision.”
34 This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay John Stuart Mill speaks of the prohibition in Islam on the eating of pork. He describes how Muslims regard the practice with “unaffected disgust”; it is “an instinctive antipathy”. There can be no circumstances where a Muslim could “weigh” the merit of eating pork. It is simply beyond the pale. So too, it would appear, when it comes to Jehovah’s Witnesses and blood transfusions. But it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA.
35 I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion should his medical circumstances indicate that one is necessary.
36 I am completely satisfied on the evidence and so declare that RC has full capacity to refuse the administration of blood products.
That rules out the possibility that the Court could declare under the MCA that the treatment was in RC’s best interests, because RC has capacity to say no.
Mostyn J agreed that the Trust were right to have sought the guidance of the Court before finalising a decision about whether to impose blood transfusion treatment under s63 of the Mental Health Act
21 In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a “full merits review” of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.
Was this, as a matter of fact and law, a s63 case in any event? Mostyn J eventually concludes that it is, and that the Trust COULD theoretically administer the blood transfusions against RC’s wishes
27 Both the treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports, attended a meeting (by telephone) and gave oral evidence to me. They were almost unanimous. They agreed that:
i) RC suffers from a mental illness namely antisocial and emotionally unstable personality disorders. This is a disturbance of the functioning of the mind, which is one of the classic definitions of mental disorder.
ii) However, he has full capacity to refuse blood products. His refusal derives almost exclusively from his religious faith. Further, he had full capacity to enter into the advance decision on 4 April 2014. Further still, his decision to adopt the religion of the Jehovah’s Witnesses was made with full capacity.
iii) So far as RC’s capacity to harm himself is concerned on occasions he does so with full capacity. However, on other occasions, particularly at times of severe emotional distress, it is likely that he does so without the capacity to choose to self-harm.
iv) RC harms himself with the intention of distracting himself from distressing thoughts and feelings. He does so without really thinking about the consequences and dangers. However his view is that it is his body and therefore his choice to damage it.
28 Where they disagreed was whether the administration of a blood transfusion amounted to treatment which prevented the worsening of a symptom or manifestation of RC’s mental disorder. Dr S was of the opinion that it plainly was. Dr Latham disagreed. He wrote in his report
“In my opinion, it is crucial that any “treatment” for mental disorder provided under the direction of an approved clinician is recognised as a treatment for mental disorder in psychiatric terms and is given [as] a direct consequence of the symptom or manifestation of the mental disorder. In this regard, the treatment of force-feeding for eating disorders could be recognised as a “treatment” but I think it is highly unlikely that a blood transfusion could be. This in my view, might provide a way to “draw a line” so as to ensure proper protection of people’s right to refuse treatment where they have capacity to do so.
In conclusion, any treatment with a blood transfusion is not, in my opinion a treatment for mental disorder, nor is it treatment for a symptom of that mental disorder. It is a treatment for a physical consequence of a symptom of the mental disorder; hypovolaemic shock or life-threatening anaemia. This consequence is not wholly as a result of the self harm but contributed to by his treatment with warfarin. The treatment with warfarin is unrelated to his mental disorder.”
29 Miss Watson, who represents RC, adopts this reasoning and states that it is in fact consistent with the authorities. Miss Dolan, who represents the NHS trust, and Mr Francis QC who acts as advocate to the court, disagree and suggest that a proper interpretation of the authorities must lead to a conclusion that Dr S is right and that a blood transfusion would plainly amount to treatment of a symptom or manifestation of the underlying mental disorder.
30 If I were confined to the literal words of sections 63 and 145(4) I think I would agree with Dr Latham and Miss Watson. However, the authorities have supplied a definition which is some distance from the meaning of the literal words. In St George’s Healthcare NHS Trust v S at 747F Judge LJ stated that “section 63 of the Act may apply to the treatment of any condition which is integral to the mental disorder”.
On reflection I am in agreement with Mr Francis QC’s analysis. It cannot be disputed that the act of self harming, the slashing open of the brachial artery, is a symptom or manifestation of the underlying personality disorder. Therefore to treat the wound in any way is to treat the manifestation or symptom of the underlying disorder. So, indisputably, to suture the wound would be squarely within section 63. As would be the administration of a course of antibiotics to prevent infection. A consequence of bleeding from the wound is that haemoglobin levels are lowered. While it is strictly true, as Dr Latham says, that “low haemoglobin is not wholly a manifestation or symptom of personality disorder”, it is my view that to treat the low haemoglobin by a blood transfusion is just as much a treatment of a symptom or manifestation of the disorder as is to stitch up the wound or to administer antibiotics
In this case, where the hospital did not intend to go against the patient’s wishes, that decision may not have too much importance, but it has wider implications for other patients. If a mentally ill person is self-harming and bleeding, then s63 of the MHA can be used, the Court have ruled, to administer a blood transfusion. [Although see the next portion of the article to see that this is very substantially qualified]
The next question was, having established that the Trust COULD do this under s63, SHOULD they?
41 Finally I turn to the declaration which is sought pursuant to the inherent jurisdiction of the High Court concerning the decision of Dr S not to invoke the powers under section 63 MHA. In her first witness statement at paragraph 8 she stated
“I have some ethical difficulty in using the MHA to override a capacitious patient’s wishes based on religious wishes and I would not choose to use my MHA powers to override his advanced (sic) decision”
42 In my judgment, conducting, as I must, a full merits review, I conclude that the decision made by Dr S is completely correct. In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets) notwithstanding the existence of powers under section 63 MHA.
That would seem then to be that s63 MHA could be used to administer a blood transfusion to a patient who was refusing it, but where that patient has capacity to refuse it and gives reasons, it would be wrong to impose it on them, and acceptable for the hospital to withhold that treatment.
The distinction, I suppose, being a patient who says “I don’t want any treatment” and one who expresses a decision to refuse blood transfusions. It is a little bit tricky to square this decision (which I think is right) with the Brady decision to impose force-feeding under s63 on Ian Brady (which I personally think was wrong).
Both involve the use or not of s63 for treatment which comes lawfully within the section, but this case involves more consideration of whether, having established that s63 COULD be used, it SHOULD be used