An NHS Foundation Hospital v P  EWHC 1650 (Fam) (Baker J)
This was an out of hours urgent application under the inherent jurisdiction by a Trust for a declaration that it was lawful for its doctors to treat a 17 year old girl (P) following a drug overdose, notwithstanding her refusal to consent to the treatment.
P had a history of self-harming and had been known to the Child and Adolescent Mental Health Service for some time. The week before the hearing she had been discharged from detention under section 2 of the Mental Health Act 1983.
P had taken an overdose of paracetamol and was admitted to hospital shortly afterwards. For several hours she resisted all treatment to counter the effects of the paracetamol. Her mother consented to the treatment on P’s behalf, but the Trust was reluctant to administer treatment without a court order.
The Trust sought the opinion of a child and adolescent psychiatrist who considered that P had a personality disorder but did not lack capacity to make decisions about her medical treatment.
By late evening the situation was critical because unless a paracetamol overdose is treated within approximately 8 hours, there may be serious liver damage which may lead to the patient dying. That point had been reached at 10pm. At 11pm a solicitor acting for the Trust contacted the out of hours’ duty officer who telephoned the judge. When the judge spoke to the solicitor he was informed that P had agreed to take the first dose of medication but the treating clinicians were concerned that she might refuse to continue the treatment which needed to be administered over a continuous period of about 21 hours. A duty solicitor employed by CAFCASS Legal agreed to assist the judge as an advocate to the court.
The Trust solicitor asked for an order including a declaration that it was lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the overdose, and to carry out such sedation or restraint as might be required, even if they would amount to a deprivation of liberty.
As P was over 16, the judge applied the provisions of the MCA 2005 to the question of whether she had capacity. The judge noted that the information available to the court was limited but given the opinion of the psychiatrist, would grant a declaration that ‘on the basis of the information available at present, I am not satisfied that she lacks capacity to make decisions concerning her medical treatment.’
The judge reiterated the legal position. All medical treatment requires consent. Treatment administered to a competent adult without consent will amount to a tortious act and may render the medical practitioner liable to criminal proceedings. A person with capacity of 18 or over may refuse treatment even if that decision in unwise (and may lead to death).
However, in respect of a child with capacity who is under 18, the court may exercise its inherent jurisdiction to override the child’s wishes in her best interests and give its consent to her treatment. The child’s welfare is the court’s paramount consideration. Whilst the wishes and feelings of a 17 year old is an important component of the analysis of welfare, they are not decisive. The court must also consider other factors and in particular any harm the child has suffered or is at risk of suffering.
The judge held that the balance came down firmly in favour of overriding P’s wishes. Her Article 8 rights were outweighed by her rights under Article 2. The judge therefore made the declarations sought by the Trust.
Having made those declarations, the judge again emphasised that he had taken account of P’s wishes and feelings. He referred to the fact that due to the urgency of the situation he had made the order without speaking directly to P. He noted that it was possible that P might wish to apply to the court to vary or discharge the order later in the morning. He made directions to facilitate a hearing before the applications judge in the event that P did wish to make such an application. If P did not make an application then the treatment should continue for the 21 hours. Both parties could then apply to vary or discharge the order. The order should not remain in force long term and the judge ordered that it would expire within 28 days unless an application was made to extend it before that date.
The unusual wording of the declaration of incapacity in this case appears to be a function of the urgency of the case which caused difficulties in obtaining detailed evidence – as Peter Jackson J pointed out recently in Re JB, language such as ‘not being satisfied that P has capacity’ sits uneasily with the presumption of capacity and the burden of proof under the MCA 2005. Given the urgency of the situation and the seriousness of the risks to P however, it is easy to see why the court took the approach it did, and attempted to put in place measures for P to challenge the declarations swiftly – although one wonders how likely it is in reality that a 17 year old receiving treatment in hospital, whose mother and doctors supported that treatment, would have been able to get before the applications judge the next day.
P was on the cusp of being an adult and acquiring the ability to take unwise decisions if she had capacity. In such cases (as the judge acknowledged) her wishes and feelings should be given significant weight. The seriousness of the potential harm in this case (possible death) outweighed her strongly voiced wishes (although we note that she had in fact agreed to the first dose of the antidote). Given the factual matrix in this case, the evidence of a mental disorder and the fact that she had recently been discharged from section 2, the interesting question arises whether P’s Article 2 rights might have led the judge to the same conclusion even if she had turned 18 and the case had been heard under the MCA 2005 (Rabone v Pennine Care NHS Foundation Trust  UKSC 2).