PBU and NJE v Mental Health Tribunal
This significant judgment of the Supreme Court of Victoria, Australia, concerned two patients for whom electro-convulsive therapy ('ECT') was proposed. PBU did not agree that he had schizophrenia but accepted that he had mental health problems, namely depression, anxiety and post-traumatic stress disorder. He was willing to receive psychiatric and psychological treatment for those conditions but not ECT or anti-psychotic medication or treatment. He wished to be discharged from hospital to a prevention and recovery facility and then return home. The detaining hospital considered him to be too unwell for discharge and instead sought the authority of the tribunal to provide ECT on the basis that he lacked capacity to make the relevant decision. NJE suffered from treatment resistant schizophrenia. She wanted to remain in hospital and continue to receive depot and other prescribed medication but the tribunal found that ECT provided the best chance of addressing her symptoms.
At first instance, the tribunal decided that each patient could understand and remember relevant information and communicate a decision in relation to ECT but could not use or weigh that information. It found that each patient lack capacity to give informed consent and that, in the absence of any less restrictive alternative, ordered a course of ECT to be given. On appeal, Justice Bell found that the tribunal had erred in law. It was wrong to conclude that a supposed lack of insight was determinative of PBU's lack of capacity. And requiring NJE to give "careful consideration" to the advantages and disadvantages of ECT set too high a threshold of capacity which was discriminatory. Accordingly, the tribunal decisions were quashed.
The judgment is of particular relevance to the law in England and Wales as the Australian statutory provisions being considered are similar to those in the Mental Health Act 1983 and the Mental Capacity Act 2005. That is, a detained patient with the relevant capacity cannot be compelled to have ECT. Before analysing particular areas of legal interest, it may be helpful to tailor to our domestic law some of Justice Bell's summary of relevant principles (para 206):
- Providing treatment for mental illness is to be done in a manner that affords equal respect for patients' human rights and particularly their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability.
- There is a (rebuttable) presumption that people with mental illness (as for people without that illness) have the capacity to give informed consent which is issue-specific, can fluctuate, and may be enhanced with support, all of which may have significant implications for the capacity-assessing process and the ultimate determination.
- The test of capacity is a functional one in which the question is whether the person has the ability to understand, retain, use and weigh relevant information and communicate a decision; not whether the person has actually done so. The purpose of the functional test (as distinct from a status or outcome-based test) is to ensure that, in relation to capacity to give informed consent, people with mental illness are afforded the same respect for their inherent dignity and autonomy-space as people not having that illness.
- The capacity test must be applied in a non-discriminatory manner so as to ensure that people with mental illness are not deprived of their equal right to exercise legal capacity upon the basis of contestable value-judgments relating to their illness, decisions or behaviour, rather than upon the basis of the neutral application of the statutory criteria. In short, the test is not to be applied so as to produce social conformity at the expense of personal autonomy.
- The right to make unwise decisions recognises that self-determination is important for both dignity and health and that people with mental illness should have the same dignity of risk in relation to personal healthcare decision-making as other people. This reflects the two-way relationship between self-determination, freedom from non-consensual medical treatment and personal inviolability on the one hand and personal health and wellbeing on the other.
- Those assessing capacity must vigilantly ensure that the assessment is evidence-based, patient-centred, criteria-focussed and non-judgmental, and not made to depend, implicitly or explicitly, upon identification of a so-called objectively reasonable outcome.
- The threshold of capacity is relatively low and the person need only possess the functional abilities in respect of the salient features of the decision.
- Acceptance of, belief in and insight into the diagnosis of illness and need for treatment varies significantly depending upon the person and the situation. It is not a normative criterion. Depending upon the facts of the case, a person with mental illness may lack that insight or otherwise not accept or believe that the person has a mental illness or needs treatment yet may have the capacity to give informed consent when assessed under the statutory test. The opposite may be so.
Capacity and insight
Analysing the Mental Capacity Act 2005, Justice Bell noted the absence of a belief requirement which had appeared previously at common law in Re C  1 WLR 290, 292 (the gangrenous leg case). He went on to consider the relevance of belief and emphasised that in Re C, Thorpe J had referred to how the patient "in his own way [C] believes it":
- … Thus Thorpe J appears to have approached the matter by considering the extent to which the person could weigh or use the information. In other words, his Honour has taken belief and insight in respect of the diagnosis and treatment into account not as a criterion (a normative consideration) but as a factual consideration.
- Insight into one's diagnosis and need for treatment varies significantly between different persons and between the same persons in different situations. Insight is potentially affected in nature and degree by various non-capacity influences, including educational background, language proficiency, familiarity with medical issues and family and social relationships (negative and positive) and (often critically) the availability of appropriate support. For these reasons, it is but one of the factual considerations that may be relevant when assessing capacity to give informed consent. As disability law scholars have written:
- The way in which lack of belief or insight in respect of the illness and the need for treatment is considered when assessing capacity is a matter of importance to people with mental disability. This is because it is not uncommon, for various personal, social and medical reasons, for a person with mental disability to deny or diminish the illness and the need for treatment, or to choose non-advised treatment. Nor is it uncommon, for various personal, social and medical reasons, for persons not having mental disability to deny or diminish illness or the need for treatment, or to choose non-advised treatment. In neither case does this mean of itself that the person lacks capacity. …
- In conclusion, it may be accepted that the presence of delusional thinking and irrational fears is 'capable of depriving a person of capacity. The question is whether it does'. So may it be accepted that lack of belief or insight in respect of a mental illness or need for treatment may be capable of supporting a finding of incapacity. The question is whether it does. This means giving due consideration to a relevant fact, not (in effect) applying a determinative normative criterion…
- 221. [T]o rebut the presumption of capacity, it is not sufficient to find that a person does not accept or believe the diagnosis that the person has a mental illness or that the person has no insight into the need for treatment. According to the statutory criteria, a person may not have that acceptance, belief or insight yet may have capacity to give an informed consent, although these matters may be factually relevant in the overall consideration. This is important if the capacity criteria and are to be applied in a manner that is non-discriminatory towards and respects the autonomy space of people with mental illness…
- It is of the first importance that the test of capacity … is applied in a way that does not discriminate against people with mental disability upon that ground, implicitly or explicitly. For anybody, mentally disabled or not, non-belief or non-acceptance of a diagnosis and lack of insight into the need for treatment would not be a sufficient basis for rebutting the presumption of capacity at common law (see above), and it is not under these provisions. As discussed, for a variety of reasons, people have deficiencies of belief, acceptance or insight in relation to the need for medical treatment that to others defy reality. Out of respect for the diversity of humanity and the dignity of risk, the capacity of people not having mental disability is not denied for that reason alone, and it would be discriminatory to deny people with mental disability the same respect. Giving that respect is consistent with ensuring the equal right of people with people with mental disability to self-determination, to freedom from non-consensual medical treatment and to personal inviolability.
Developing the need to avoid the protection imperative so as to maintain objectivity when determining someone's ability to decide, Justice Bell noted:
- It has been said that capacity assessments are inherently risky, uncertain and 'epistemologically fallible', driving many capacity assessors to the apparent safe ground of the 'reasonable' outcome as an implicit default criterion. One can understand the natural human tendency of health professionals and judicial officers, among others, to make decisions in the best interests of vulnerable persons, especially where treatment for grievous ill-health, or even the person's life, is at stake. It has been described as the 'protection imperative'.…
- Moreover, in relation to something as personal as whether a person should consent to or refuse medical treatment, it is problematic to suggest that one person can necessarily determine that another person's decision is objectively unreasonable: a decision to consent to or refuse such treatment may be so subjectively anchored in the individual values, relationships and life's experience of the person as to make it difficult for another even to comprehend the decision; or even if properly comprehended, it may be so subjectively anchored in those respects as simply to defy objective characterisation at all. This is so whether the person has capacity to consent or refuse or not.…
- 172.The judgment of MacDonald J, and those of Peter Jackson J in Heart of England NHS Foundation Trust and Wye Valley NHS Trust v B and the plurality in Starson v Swayze, all concerned with highly eccentric individuals, are notable for applying the capacity test in a way that is criteria-focused, evidence-based, patient-centred and non-judgmental.
- A person may be frequently active and awake at night due to a desire to work with psychic healing powers. This may or may not help to support a finding that the person does not have the ability to use or weigh relevant information. It is important to determine capacity by reference to the statutory criteria, which are based on domains of cognitive functioning, not by reference to decisions or behaviours, which give rise to contestable value judgments. Variation in human behaviour is normal and not necessarily a sign of lacking the capacity to give informed consent. Normal people often believe what to others is extraordinary. Being frequently active and awake during the night is not unheard of in the general population. Many people believe in the power of prayer to heal either individuals or humanity, and actively stay awake at night (sometimes all night) praying with that belief. Some people believe they can heal others by touching or be healed themselves by bathing in or drinking sacred water, and touch others or bath in or drink those waters with that belief. Psychiatric evidence may establish that the belief or behaviour is delusional. Even then, the person may be able to use or weigh relevant information in relation to ECT (and the subjective value of the belief or behaviour to the patient must count in determining whether there is no less restrictive way to treat the patient, having regard to the patient's views and preferences, where this is reasonable…). The capacity assessment needs to go into the relationship (if any) between the delusion and the ability to use or weigh the relevant information, for that is what the statutory criteria and respect for human rights requires.
This judgment is catnip for capacity geeks like the editors (and we also note with pleasure that it specifically cites from research conducted by our Scottish contributor, Jill Stavert). It provides a fascinating, detailed summary of relevant academic opinion and case-law from around the globe, including extensive consideration of Court of Protection judgments. Extracts will – spoiler alert – undoubtedly be festooning forthcoming editions of the Court of Protection Practice and the Court of Protection Handbook (and have already made their way into a skeleton argument at appellate level here). In addition to the extracts that we have concentrated on here, the judgment also contains an important summary of the state of the current art as regards the place of mental capacity in the context of the CRPD, which will be equally useful in informing these debates as they continue to roll around the globe.
 Kate Diesfeld, 'Insight: Unpacking the Concept in Mental Health law' (2003) 10 Psychiatry, Psychology and Law 63; Yuval Melamed et al, 'Insight and Competence to Consent to Psychiatric Hospitalization' (1997) 16 Medicine and Law 721; TE Smith et al, 'Insight and recovery from psychosis in chronic schizophrenia and schizoaffective disorder patients' (2004) 38 Journal of Psychiatric Research 169.
 Christopher Ryan, Sascha Callaghan and Carmelle Peisah, 'The capacity to refuse psychiatric treatment: A guide to the law for clinicians and tribunal members' (2015) 49 Australian and New Zealand Journal of Psychiatry 324, 328.
 See, eg, Re SB v (A patient: Capacity to consent to termination)  EWHC 1417 (COP) (21 May 2013)  (Holman J); Heart of England NHS Foundation Trust  EWHC 342 (COP) (17 February 2014)  (Peter Jackson J).
 Cooper  1 WLR 786, 1794  (Baroness Hale, Lord Hope, Lord Rodger, Lord Brown and Lord Mance agreeing); this conclusion was reached after an analysis that included consideration of Re C  1 WLR 290, Re MB (1997) 2 FLR 426 and NHS Trust  1 All ER 387: at 1793 .
 Mary Donnelly, Healthcare Decision-Making and the Law (Cambridge University Press, 2010) 116.
 PH v A Local Authority  EWCOP 1704 (30 June 2011) [16(iii)] (Baker J) ('PH').
 A University Hospital NHS Trust v CA  EWCOP 51 (8 December 2016) [19(8)] (Baker J); see also PH  EWCOP 1704 (30 June 2011) [16(iii)] (Baker J).
 See further Emily Jackson, 'From "Doctor Knows Best" to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions about Their Medical Treatment' (2018) 81(2) Modern Law Review 247, 263–4.
  EWHC 342 (COP) (17 February 2014).
  EWCOP 60 (28 September 2015).
  1 SCR 722 (Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps JJ) ('Starson').