Judge: Mostyn J
Citation:  EWCOP 1317
This is the sequel to the case of Nottinghamshire Healthcare NHS Trust v J  EWHC 1136 (COP) that we reported in our May newsletter.
The case concerned RC (known as J in the first judgment), a young man aged 23 who was in prison but detained under the Mental Health Act 1983. He suffered from what was described as a serious personality disorder, a symptom of which was that he had engaged in significant self-harm on a number of occasions which resulted in profuse bleeding (he was on anticoagulant drugs because of a history of thrombosis). He was a Jehovah’s Witness and had made what purported to be an advance decision to refuse specified medical treatment, namely blood transfusions.
The matter came on by way of an urgent ex parte application before Holman J on 9 April 2014.
The first limb of the Trust’s application asked for a declaration that a written advance decision was valid and was applicable to the treatment described in the advance decision. The judge considered sections 24 – 26 of the MCA 2005 and declared on an interim basis that the written advance decision was valid and applicable to that treatment notwithstanding that (a) the young man’s life may be at risk from the refusal of treatment and (b) that he was a patient detained under the Mental Health Act.
The second limb of the application brought by the NHS Trust related to the interrelation of the provisions of the MCA 2005 in relation to advance decisions to refuse treatment and the applicability in this case of section 63 of the Mental Health Act 1983 which provides: “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 second limb of the application asked the judge 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.”
Holman J held that he did not feel equipped or willing to make the declaration as he had only heard representations from one side without notice to the patient or any other person. The substantive hearing was ultimately heard before Mostyn J on 24 April; he gave his decision at the hearing, with his reasons following in a judgment dated 1 May 2014.
Mostyn J noted that if a self-destructive course is being pursued by an incapacitated person (who has not made a valid advance decision) then pursuant to Court of Protection Practice Direction 9E life saving measures will likely amount to “serious medical treatment” requiring the issue to be determined by the Court of Protection (paragraph 16). A decision imposing equivalent measures on a vulnerable adult would require a hearing in, and an order of, the High Court (paragraph 17).
A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review – which takes the form of a full merits review. As Mostyn J noted, however,
“19. […] a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged…
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.”
As to the principles that the court should apply when conducting a full merits review on an application for declaratory relief in circumstances where a decision has been made not to impose potentially life-saving treatment under s.63 MHA 1983, Mostyn J held that:
“26. […] Obviously the expressed wishes of the patient will be highly relevant. If there is an advance decision in place under sections 24 and 26 of the MCA then this will weigh most heavily in the scales. The Hippocratic duty to seek to save life, or the benign but paternalistic view that it is in someone’s best interests to remain alive must all surely be subservient to the right to sovereignty over your own body. Beyond this, considerations such as whether the treatment would be futile will no doubt be relevant; for example, if the repair of a laceration would inevitably be followed by a new one or if the patient was suffering from another unrelated terminal disease.”
In this case, the treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports were almost unanimous. They agreed (paragraph 27) that:
1. RC suffered from a mental illness namely antisocial and emotionally unstable personality disorders. This was a disturbance of the functioning of the mind, which was one of the classic definitions of mental disorder.
2. However, he had full capacity to refuse blood products. His refusal derived 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.
3. So far as RC’s capacity to harm himself was concerned on occasions he did so with full capacity. However, on other occasions, particularly at times of severe emotional distress, it was likely that he did so without the capacity to choose to self-harm.
4. RC harmed himself with the intention of distracting himself from distressing thoughts and feelings. He did so without really thinking about the consequences and dangers. However his view was that it is his body and therefore his choice to damage it.
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.
On that question, Mostyn J concluded that:
“31… 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.”
When it came to capacity, having noted the fundamental principle of the presumption of capacity
contained in s.1(2) MCA 2005, Mostyn J noted that:
33. […] 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.’
But, as Mostyn J noted:
“34. This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay [On Liberty] 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.”
Mostyn J further held that the advance decision was valid, complying as it did with all the requirements in ss.24-5 MCA 2005.
Having conducted his full merits review, Mostyn J concluded that the decision made by Dr S not to use the MHA 1983 to override RC’s capacitous wishes was entirely 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.”
This is a very interesting judgment, not least in its clear upholding of the principle that a person with capacity should be able to refuse medical treatment even if – as here – there is a legal framework which could on its face be used to impose it against their will. This is so even where the result of that refusal is either inevitable or likely death. We would also respectfully endorse the proposition that circumstances such as that arose in this case should be brought to the Court.
The case also sits neatly with that of A County Council v MS and RS  EWHC B14 (COP) (the tithing case) that we covered in the May newsletter, in which District Judge Eldergill was at pains to distinguish between the aspects of MS’s decision-making that reflected his deeply-held religious beliefs and those aspects that might be said to relate to an impairment or disturbance of the mind or brain.
For further discussion of the questions relating to the inherent jurisdiction touched upon by Mostyn J, please see the comment by Alex here.