Cardiff and Vale University Health Board v NN
Summary
NN was a 32-year-old woman with a history of substance abuse and schizophrenia, repeatedly detained under the Mental Health Act 1983 from the age of 17 and homeless since 2023. She experienced a coercive, abusive relationship leading to a relapse and became pregnant before being detained under MHA 1983 s.3. There was no dispute that she lacked capacity to conduct the proceedings and to make decisions as to termination, and that she should have a termination if she chose to proceed with it. But the hospital applied for authorisation to deprive liberty if, having taken the first doses of medication she tried to leave the hospital at which point physical and chemical restraint would be required. By the time of the hearing, under the time limits of the Abortion Act 1967 there were only a few days left.
Considering Ferreira, the court agreed that since a capacitous woman would be able to leave the hospital and refuse surgery for any reason, the treatment proposed for NN was materially different to that which would be given to a person of sound mind. Moreover, given the treatment would be given in the general hospital, outside the psychiatric unit, she was not ineligible to be deprived of liberty. Sitting as a Deputy Tier 3 Judge, Victoria Butler-Cole KC declared that NN lacked such capacity, no best interests decision was required, and the authorisation to deprive liberty was granted if required. Ultimately, NN accepted the medical treatment, did not try to leave so the authorisation did not have to be relied upon. She stayed in the general hospital for just under 24 hours then returned to the psychiatric unit.
Departing from the general costs rule, the Judge ordered the Health Board to pay the Official Solicitor’s full costs because of a month’s unreasonable delay in bringing the application. NN would have been saved a month of waiting and wondering why her expressed wishes were not being acted upon, where the procedure would have had lower risks of physical or mental harm. The delay had a negative impact on both her and her mother, who said this had been the worst experience of her life and that it was 'absolutely barbaric'. She was traumatised by watching her daughter having to continue her pregnancy well into the second trimester despite having requested a termination, and then supporting her through a late medical termination which resulted in the baby being born alive. The Judge observed:
43 […] It is incumbent on those concerned with obstetric cases to give the most careful scrutiny at the earliest possible stage to whether orders are actually required from the Court of Protection, and if so, the substance of those orders. In this case, the minutes of various professionals meetings held in June and July 2024 suggest that there was a mistaken belief that any best interests decision about termination of pregnancy for a person without capacity required court authorisation. If there is a professional consensus about the treatment proposed, no intention to impose treatment on P against her wishes, and no disagreement from those concerned with P's welfare such as close family members, the provisions of s.5 and s.6 MCA 2005 permit medical best interests decisions to be taken without court involvement, having followed the requirements of the MCA and any associated professional guidance: An NHS Trust v Y [2018] UKSC 46.
44. If aspects of a treatment plan may constitute a deprivation of liberty, serious thought must be given to how likely it is that those measures will be needed. Is there evidence suggesting that the particular patient, if they have chosen to undergo a medical procedure in hospital, and are in need of pain relief and support from medical professionals, will suddenly refuse help even if they are told their health and potentially their life are at risk? Where the patient is in agreement with the underlying treatment, and, as here, is not suffering from persecutory delusions or an ingrained fear of hospitals or medical professionals, what is it that suggests the risk of needing to take such steps is materially different than for a patient who does not have a diagnosed mental disorder and is not detained under the MHA 1983?”
Comment
This case is of interest for two reasons. The first is that, despite lacking capacity to decide on termination, whether the termination was in her best interests remained NN’s choice. Her ‘will and preferences’ determined the outcome. In UN CRPD terms, despite lacking mental capacity it could be said she retained legal capacity as a rights-holder to determine the outcome. The court was only required if, having expressed her will and beginning the process, her subsequent preferences conflicted with her will, at which point her right to life and health would necessitate physical and chemical restraint.
The second area of interest relates to an issue which perhaps calls for a more general debate: for Article 5 ECHR purposes, do these types of medical treatment cases in fact amount to deprivations of liberty rather than liberty restrictions under MCA ss.5-6? The facts fell outside the Ferreira exception, because more restrictive arrangements would be necessitated because of mental disorder. But the relevant treatment lasted for less than 24 hours. If a deprivation of liberty means non-consensual confinement in a particular place for more than a negligible period of time, should such short-term physical and chemical restraint engage Article 5? If so, why should the statutory DoLS scheme not be used, rather than a court authorisation? Or are these in reality significant Article 8 interferences which, if disputed, require judicial determination?
The case is also usefully, finally, for reminding people (at paragraph 45) that, despite a persistent urban myth to the contrary, s.4B MCA 2005 does not provide a standalone detention authority in an emergency. It only provides such authority where a court order is being sought. If the Government were to bring into force the relevant part of the Mental Capacity (Amendment) Act 2019, s.4B would give such an emergency detention power, but, as yet, we do not have any indication that implementation of any part of that Act is on the cards.
