Judge: Baker J.
Citation:  EWHC 2442 (COP)
Summary: An Iranian doctor, Dr A, went on hunger strike to recover his passport which had been confiscated by the UK Borders Agency following his failed claims for asylum. A further refusal on 8 August led to him pulling out the nasogastric tube, with Dr A saying he wanted to die, and subsequently his detention under section 2, followed by section 3, of the Mental Health Act 1983 (‘MHA’). An improvement in his condition led to his detention being rescinded. However on 5 December 2012 he stopped drinking and removed the nasogastric tube, resisting attempts to have it reinserted. According to his specialist registrar:
“He is clear that he does not wish to die, although he understands that he will die if he continues with the hunger strike. His erroneous and persisting belief that the UKBA may return his passport as a result of hunger strike is impairing his ability to weigh up the reasons for and against continuing in his hunger strike…on the basis that he is unable to weigh up the pros and cons of continuing with the hunger strike, he does not have capacity to make this decision.”
The Trust sought declarations that he lacked capacity to litigate and to make decisions in respect of his nutrition and hydration and that it was lawful to administer the latter. The court was faced with three issues.
(1) Did Dr A have capacity to make decisions about nutrition and hydration?
On the basis of the common law, Baker J was clear that if Dr A had capacity, he was entitled to starve himself to death if that was his choice and the court had to be particularly careful not to him as incapable merely because the decision was extremely unwise. The court accepted the psychiatric consensus that he suffered from a delusional disorder and that, as a result of the delusional disorder, he was unable to litigate and to use and weigh the information relevant to the decision whether to accept nutrition and hydration. For the independent expert, the clearest evidence of Dr A’s incapacity was his persistent belief that the UKBA would grant him a visa should he continue to refuse food.
(2) If he did not have such capacity, what approach to nutrition and hydration was in his best interests?
His Lordship held that although as a matter of strict law the principles relating to best interests and the checklist in the MCA did not apply when the court was exercising its inherent jurisdiction, “they are manifestly applicable in those circumstances because best interests lies at the heart of the inherent jurisdiction” (para 49). Balancing the relevant factors, the clear conclusion was that the balance came down in favour of making an order permitting forcible feeding by artificial nutrition and hydration, and “In particular, the magnetic factor to my mind is the importance of the preservation of life” (para 53).
(3) What power does the court have to make an order providing for the provision of nutrition and hydration given that such provision involves a deprivation of his liberty?
There was no dispute that subjecting Dr A to forcible feeding amounted to a deprivation of liberty. He would be physically restrained against his will while the tube was inserted and the restraint would continue to prevent its removal. On occasions he would be sedated. He was not allowed to leave the hospital. And staff effected complete control over his care, treatment and movements and, as a result, he lost a very significant degree of personal autonomy. The difficulty was identifying how that deprivation was to be authorised in law.
According to MCA s.16(A)(1): “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.” At the initial hearing, the issue was whether he was within the scope of the MHA given that he could be detained under MHA s.3 (MCA Sch 1A, case E). By the time of the further hearing, he had been re-detained under that section (MCA Sch 1A, case A). His Lordship illustrated the new legislative gap:
“67. 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.”
His Lordship analysed three possible solutions.
(i) Provide the treatment under the MHA s.63
The Official Solicitor submitted that Dr A was delusional and his refusal to eat was a manifestation of his mental disorder. But this was not accepted by the Trust. According to the responsible clinician:
“The purpose of the section 3 admission is so we can administer appropriate psychotropic drugs via the nasogastric tube. We do not see food as treatment for his mental illness. The administration of food via the nasogastric tube has not made a difference to his underlying mental state and indeed his mood has deteriorated. The food is administered to prevent him from dying…In my view, it is extremely difficult to disentangle how much of his hunger strike is due to underlying depression or possible delusional disorder. It is important to note that, when he was previously treated with antipsychotics and there was a marked improvement in his mental state, there was still no change in his views regarding continuing with the hunger strike. At the moment it is helpful to separate out what we see as treatment for any possible mental health disorder (i.e. psychotropic medication) from medical treatment required to keep him alive.”
There was therefore a strong feeling that the necessary treatment was for a physical disorder – starvation and dehydration – and not for the underlying mental disorder. Feeding might make Dr A feel better but it was not treating his mental disorder as it would be were he suffering from anorexia nervosa (para 75). His Lordship held:
“79. 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.
80. 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.
81. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr A under the MHA.”
(ii) Interpret the MCA so as to to authorise the treatment
The Official Solicitor submitted – and his Lordship accepted (at para 95) – that, following Rabone v Pennine Care NHS Foundation Trust  UKSC 2, the operational duty in Article 2 existed to protect Dr A against the risk of death from starvation. As to whether MCA s.16(A)(1) could be read narrowly so as to permit the court to deprive liberty, Baker J noted:
“87. 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.’ [Baker J’s emphasis]
88… 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.”
(iii) Invoking the High Court’s inherent jurisdiction
Although the MCA 2005 was intended to provide a comprehensive code for the care of mentally incapacitated adults, the court accepted that it was now firmly established that the inherent jurisdiction survived its arrival: Westminster City Council v C  EWCA Civ 198, ; DL v A Local Authority  EWCA Civ 253, , . Noting that it might conceivably be argued that it should be confined to adults who were vulnerable, as opposed to incapacitated, his Lordship relied on Westminster as authority for the proposition that the jurisdiction benefited both incapacitated and vulnerable persons. As Parker J commented in XCC v AA  EWHC 2183 (COP) at :
“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne.”
Baker J therefore held:
“96. 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.”
By way of a postscript, Dr A received artificial nutrition and hydration under restraint, as well as anti-psychotics; his mental state improved; and he was discharged from MHA detention and make a capacitous decision to return to Iran.
Comment: This fascinating decision illustrates the flexible use of the inherent jurisdiction to plug legislative gaps. Not only can it protect the vulnerable who fall outside the scope of the MCA. It can also be invoked for those who need to be deprived of liberty but fall between the stools of the MHA and MCA. The general references to the primacy of the MHA must now be considered in the light of Charles J’s decision in AM v SLAM Neither regime of detention has primacy in any general sense. However, the DoLS eligibility requirement clearly excludes the use of DoLS in certain limited circumstances, like case A.
The conclusions reached in relation to the mental v physical treatment distinction will no doubt attract attention. Distinguishing the case of Brady is particularly interesting. There, Ian Brady refused food in protest of the way he had been handled which was considered to be a manifestation of his personality disorder. Here Dr A refused food in the delusional belief that he would get his passport back but his starvation was a physical disorder and not a manifestation or symptom of his delusional disorder. It is not an easy distinction to draw and Trusts are clearly encouraged to make court applications in cases of uncertainty.
We note that another possible solution to the conundrum Baker J faced might have been provided by reliance on the concept of ‘residual liberty’ discussed in the decision of the European Court of Human Rights in Munjaz v United Kingdom (Bailii citation  ECHR 1704). In that case, Strasbourg recognised that it is possible that a person subject to a lawful deprivation of their liberty could be subject to a deprivation of that residual part of their liberty that they had previously enjoyed. At the time Schedule 1A was drafted, residual liberty was not recognised by the English Courts; the concept could, though, potentially provide another – simpler – route through the problem of providing treatment for physical disorders in respect of Case A patients. In such circumstances, a person could be seen to have had the deprivation of their liberty authorised for one purpose (the treatment of their mental disorder), but to have retained a degree of residual liberty which would be the subject of further infringement for purposes of treatment of their physical disorder. If, as here, the treatment is for that disorder and solely for that disorder, it could properly be said that they were not ineligible to be deprived of their liberty for that purposes by virtue of the operation of Case A. We will wait and see whether this route is adopted in any future case.