A Healthcare, B NHS Trust v CC
Judge: Lieven J
Citation:  EWHC 574 (Fam)
This case concerned a 34-year-old man (‘CC’) with psychotic depression, mixed personality disorder who was deaf, had diabetes and was detained under s.3 of the Mental Health Act 1983. The main issue was whether haemodialysis was medical treatment for his personality disorder for the purposes of MHA s.63. Lieven J held that the dialysis treatment, use of light physical restraint and chemical restraint (if required), was authorised by s.63.
Medical treatment for mental disorder
The responsible clinician’s view was that CC’s non-compliance with dialysis treatment was a symptom or manifestation of his mental disorder and that ‘at best’ his decision-making capacity was fluctuating. Without dialysis he would die and, to be reasonably stable, he needed 4 hours of it, three times a week. The treating team’s intention was to commence peritoneal dialysis, which involved the insertion of a catheter, enabling less burdensome overnight dialysis. But, in the meantime, haemodialysis was necessary. His acceptance of the treatment fluctuated, but there were times – including the day before the hearing – when he was clear that he wanted it, did not want to die, and would want to be restrained if necessary to receive it.
Lieven J held that the treatment fell within the scope of MHA s.63:
- In my view this is a clear case of the treatment proposed, the dialysis, treating a manifestation of the mental disorder, namely personality disorder. The need for dialysis stems from CC’s self-neglect, including in regard to diet, which has led in whole or in part to his kidney failure. The reason his diabetes has resulted in kidney failure is to a large extent because of that self-neglect, which is itself a consequence of his mental disorder….[I]t seems to me clear that the physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self care in a way that would have not led to the need for dialysis. Further, that CC is refusing dialysis is very obviously a manifestation of his mental disorder. When he is mentally well he agrees to dialysis. His situation is therefore highly analogous with that of the force feeding cases.
The judge rejected the argument that, to fall within s.63, the “primary purpose” of the treatment must be to treat the mental disorder:
- 37 … I do not think that one can take from the words of section 145(4) a need to analyse a hierarchy of potential purposes of the treatment or causative links. It is in my view sufficient that a purpose of the proposed treatment is to alleviate a manifestation of the mental disorder. There is no suggestion in any of the caselaw that I have referred to above that the Court (or a clinician) has to go through the type of exercise Mr Lock proposes. It is therefore sufficient that the renal failure is a manifestation of the mental disorder.
Interface between ss.62, 63 and 58
The health bodies submitted that the sedation required to carry out the dialysis fell within MHA s.58 and therefore required either capacitous consent or a second opinion appointed doctor (‘SOAD’) to certify the sedation as appropriate. Lieven J held that s.58 was excluded because this was emergency treatment for the purposes of s.62:
- 46. In my view, on this second issue under the MHA 1983 Mr Lock’s arguments are wrong and section 63 is the appropriate course. There is no doubt that in this case, as in most if not all the previous authorities, the treatment being proposed under section 63 is urgent, and in all those cases life-saving. The proposed dialysis for CC is plainly extremely urgent, and without it he will undoubtedly die. In those circumstances in my view the case plainly falls within section 62(1)(a) (b) and (c) and as such section 58 is excluded. In particular, in urgent treatment cases such as this, treatment is immediately necessary to save CC’s life, to prevent a serious deterioration of his condition and to alleviate serious suffering.
- 47. I also accept on the facts that Mr Lock’s analysis would make section 63 largely, if not wholly redundant, because in most if not all cases where section 63 is relied upon, the treatment will involve some use of medication, often sedation. It makes no sense of the statute for sedation to be dealt with under one statutory route and other forms of treatment to be dealt with by a wholly different one.
- 48. I do accept Mr Lock’s point that considerable care needs to be taken in the use of section 63 if it is not to become a way of treating detained mental patients, with or without capacity, without their consent. However, the safeguard that is in place is the requirement set out by Baker J in NHS Trust v A at  that in cases of uncertainty, the appropriate course is to apply to the Court.”
The alternative argument of the health bodies was to seek a contingent declaration under MCA s.15(1)(c). The evidence suggested that the day before the hearing, CC had capacity to make the decision but it was fluctuating. The judge would have been prepared to make the declaration but, given that the treatment fell within MHA s.63, it was not necessary to do so:
- 51. … I emphasise that this is not a case of CC simply making a poor decision with which the Court and the health professionals do not agree. Mr Maguire’s Attendance Note and Dr H’s evidence are both clear, that when well CC does not wish to die and wishes to have dialysis. His change of position is a function of his mental state worsening, and that in turn is a function at least in part of him refusing dialysis. I therefore find that when CC refuses dialysis he does lack capacity
- 55. In some ways this case is more straightforward. CC currently has capacity and is clear that he wants to have dialysis; that he does not want to die; and that he wishes to continue to have dialysis if he loses capacity. This is therefore in practice akin to an advance decision under section 24 MCA 2005, albeit that he has not gone through the formal processes of an advance decision contained in section 25 MCA 2005 and it is an advance decision to accept treatment not refuse it. It is in those circumstances relatively easy to declare that if CC loses capacity in respect of a decision about dialysis, then it is in his best interests to have dialysis in accordance with the care and treatment plan proposed. Such a declaration undoubtedly accords with CC’s wishes and feelings, both because he has said so when he has capacity, but also because he is clear that he wants to live, and if he does not have dialysis then at some point he will die very prematurely.”
Accordingly, it was held that it was for the responsible clinician to decide whether to provide the dialysis treatment under s.63, in consultation with the clinicians attending to his physical health, including the consultant nephrologist, which was subject to the supervisory jurisdiction of the High Court.
This is an interesting decision for many reasons. First, and as acknowledged at paragraph 9, treatment for end stage renal failure would not normally be seen as treatment for mental disorder. As the MHA Code of Practice recognises at paragraph 16.6:
- [Medical treatment] includes treatment of physical health problems only to the extent that such treatment is part of, or ancillary to, treatment for mental disorder (eg treating wounds self-inflicted as a result of mental disorder). Otherwise the Act does not regulate medical treatment for physical health problems.
For mental disorder to result in self-neglect which results in kidney damage and therefore treatment for kidney damage is treatment for mental disorder reflects a very elastic interpretation of s.63. And such elasticity is hugely significant in human rights terms, given that, controversially, s.63 neither requires consent nor a second opinion. This decision can be contrasted with GJ v Foundation Trust  EWHC 2972 (which was not referred to in the judgment) where GJ was forgetting to take his insulin because of dementia. There it was held that diabetic treatment was physical treatment and not treatment for mental disorder.
Secondly, the arguments around s.58 were rather novel. Section 58 is the 3-month psychiatric medication rule and the safeguards apply “if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder”. It is surprising therefore that all parties accepted that sedation for dialysis (namely midazolam) was medicine administered for personality disorder. Moreover, it was not clear whether, even if it was, 3 months had elapsed since it was first administered.
Thirdly, the reference to CC’s “advance decision to accept treatment” needs unpacking. An advance decision under MCA s.24 is to refuse healthcare so, in reality, his capacitous desire for treatment was an advance statement which has very different legal consequences to an ADRT.