Nottinghamshire Healthcare NHS Trust v J [2014] EWHC 1136 (COP) (Holman J)

Mental Health Act 1983 – interface with the MCA 2005

Summary

In this case the judge was asked to consider an urgent without notice application in a medical treatment case.

The case concerned J, 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 first limb of the 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.” Holman J noted that there was clear authority to the effect that the words “medical treatment given to him for the mental disorder from which he is suffering” were wide enough to extend to medical treatment for physical conditions caused or arising as a result of the underlying mental disorder (B v Croydon Health Authority [1995] Fam 133). It followed that if a detained patient cut himself as a result of a self-harming mental disorder, then it may be lawful under that section to treat and stitch up the cuts. The judge held that it was little or no extension of that approach that if, as a result of the mental disorder from which he is suffering, a patient cuts himself and bleeds so profusely that he needs a blood transfusion, that transfusion would be covered by s.63. Hence this case squarely raised the issue of the interrelation between the provisions of the MCA 2005 in relation to advance decisions and the power under s.63 MHA 1983 to give medical treatment notwithstanding the absence of consent.

The man’s responsible clinician described having ‘some ethical difficulty’ in using the MHA 1983 to override a capacitous patient’s wishes based on religious wishes and stated that she “would not chose to use [her] Mental Health Act powers to override his advance decision.” Holman J stressed (at paragraph 15) that it was not the business of a court to make any kind of ethical decision: “all the court can do is state the applicable law and, where appropriate, apply it in the form of a legal, though not necessarily an ethical, decision.”

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. He listed a hearing for the next day having made a preliminary inquiry of the Official Solicitor. He also directed that the NHS Trust use its best endeavours to facilitate and promote that the patient himself be represented at the hearing and to ensure that the patient’s father be informed of the hearing and encouraged to attend.

Comment

As the judge stated, this case raises a ‘terrible dilemma’, namely the interrelationship between a capacitous advance decision which has the effect of endangering life and the power under the MHA 1983 to override consent where treatment is for a mental disorder.

Given the NHS Trust’s position that those treating the man would not exercise their s63 MHA 1983 powers in the face of a clear advance decision based on religious views, the position at the hearing was that if physical restraints were removed from the patient and he was able to cause profuse bleeding he might die, whether he intended to bring about his death or not.

At a subsequent hearing, of which only press coverage is available, Mostyn J upheld the validity of the advance decision and the lawfulness of J’s responsible clinician under s.63 MHA 1983 not to administer a blood transfusion.