Re Q
Summary
Q was a 50 year old woman with longstanding bulimia nervosa, and diagnoses of various mental health disorders including EUPD and recurrent depression, arising from childhood sexual abuse and trauma. She had been detained under the MHA 1983 at the start of 2021 and discharged from hospital 8 months later under a Community Treatment Order (CTO). One of the conditions of the CTO was that she attend hospital for treatment for extremely low potassium levels, which were caused by her eating disorder. The CTO also required Q to 'engage constructively with all health professionals in the management of the consequences of the eating disorder' and gave examples of the sort of treatment that might be required including weekly blood tests, oral medication, and if that was not sufficient, admission to hospital for further treatment.
The applicant trust, who were providing this treatment, sought declarations in the Court of Protection as to her capacity to make decisions about the treatment and as to whether Q had capacity when she created an Advance Decision to Refuse Treatment (ADRT) for low potassium levels, even if that meant her life would be at risk. The ADRT had been signed prior to the CTO being put in place.
The court held that Q had capacity to make relevant medical treatment decisions and that her ADRT was valid. Q accepted that she was only alive because of the requirements of the CTO, and that she complied with them under duress. There was no question that Q was able to understand and retain the relevant information – the question was whether she could use or weigh the information. The independently instructed psychiatrist, Dr Glover, was of the view that she could not, because of her "pervasively low self-esteem and hopelessness". Q's treating doctors were less persuaded that her sense of worthlessness was as pervasive as Dr Glover had found.
When interviewed, Q rejected the proposition that three short visits to A&E in the space of 5 months to keep her alive was a relatively small price to pay for her continued existence, and the things in life which gave her pleasure.
The court also held that Q had capacity to conduct the proceedings, and that there was no inconsistency in the possibility that Q might have litigation capacity but lack subject matter capacity. Hayden J cast doubt on the view expressed by Mostyn J in An NHS Trust v P [2021] EWCOP 27 (echoing sentiments first expressed by Munby J in Sheffield City Council v E [2005] Fam 326) that it would be virtually impossible to have capacity to conduct proceedings about a matter in respect of which a person lacked capacity.
Comment
It is unfortunate that this judgment does not explain the legal frameworks of the MCA and MHA and their application in the context of advance decisions to refuse treatment.
As a community patient, should Q at any stage lose capacity to make relevant treatment choices, the ADRT would have effect even though it arguably refuses treatment for a mental disorder. Paragraph 24.54 of the MHA Code of Practice states that "treatment cannot be given to CTO patients who have not been recalled to hospital (part 4A patients) contrary to a valid and applicable advance decision." Q could nevertheless be recalled to hospital to receive life-saving treatment under the MHA powers.
As a detained patient, she would not be able to refuse treatment for her mental disorder through an ADRT, and there is caselaw which suggests that treatment of the sort Q required is properly viewed as treatment for her mental disorder, even though it is treatment for a physical manifestation of the disorder (see for example Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317). The validity of the ADRT would be strictly irrelevant if Q was recalled to hospital.
Given that Q presently has the relevant decision-making capacity, the ADRT is irrelevant in any event. The CTO conditions cannot be forced upon her against her wishes while she remains a community patient, in any event.
The purpose of the Trust's application may have been to seek a declaration that it was lawful not to impose treatment on Q, notwithstanding that it could in principle be provided under the Mental Health Act. The overall conclusions of the judgment would not be determinative of future decisions by Q's responsible clinician, but would likely be relevant in considering the use of discretionary powers under the MHA. The court's judgment that Q had capacity and her ADRT was valid would likely also inform future decisions by clarifying that there is no option to force treatment on her outside of an MHA detention.
