Nottinghamshire Healthcare NHS Trust v RC

RC is aged 23. He is the child of parents who practise the faith of the Jehovah’s Witnesses, but he was not baptised as such. At aged 4 he was taken into care. He was not brought up as a Jehovah’s Witness. He has a long history of repeated self-harming conduct which has extended to self-strangulation and other self-injury such as burning himself, self-laceration and head-butting. He has been diagnosed as suffering from both antisocial and emotionally unstable personality disorders. He has also suffered thromboses for which he is prescribed the anti-coagulant warfarin.

RC was first admitted to a psychiatric hospital in 2006, when aged 15. In 2012 he was convicted of a serious sexual assault and sentenced to 5 years imprisonment. In August 2013, while in prison, he embraced the religion of the Jehovah’s Witnesses, although he has not yet been baptised into that faith and the conversion procedure would be lengthy.

As is well-known, for doctrinal reasons Jehovah’s Witnesses will refuse a blood transfusion as part of medical treatment. This is a central article of faith and will be adhered to even if death eventuates. It derives from an interpretation of Genesis 9:4; Leviticus 17:10, 14; Deuteronomy 12:23; and Acts 15:28, 29, all of which prohibit the eating of blood.

On 1 February 2014 when in prison RC badly slashed his brachial artery (the major blood vessel of the upper arm) at the crook of his elbow. When in hospital he refused a blood transfusion although no harm resulted from that decision. On 12 March 2014 he was admitted to a secure psychiatric hospital. On a number of occasions he attempted to reopen the wound and was placed in a restraint belt to prevent him from doing so.

On 4 April 2014 RC signed an advance decision under sections 24 and 26 of the Mental Capacity Act 2005 (“MCA”). As I explain below, this was properly witnessed. It provided that no transfusions of blood or primary blood components should be administered to him in any circumstances, even if his life was at risk. Provided that he was of capacity when he made it, this decision has the same effect as if the decision was made when the proposed treatment is to be carried out.

On 9 April 2014 these proceedings were commenced. The applicant NHS trust seeks:

I have heard this case in public. The press has been in attendance. I have made an order preventing the identification of RC, the hospital where he is held and the clinician who is treating him. This is to protect his private interests. Otherwise, everything may be fully reported.

In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill’s essay On Liberty (1859) where he stated at pp14 - 15:

“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign” (Footnote: ¹)

Thus Judge LJ in St George’s Healthcare NHS Trust v S [1969] Fam 28, 43 stated:

“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it.”

This right applies equally to detained citizens. In Home Secretary v Robb [1995] 1 FLR 412 Thorpe J stated:

“…every person's body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner”

A very recent example is Newcastle Upon-Tyne-Hospitals Foundation Trust v LM [2014] EWHC 454 (COP). There a gravely ill 63-year-old female Jehovah's Witness urgently needed a blood transfusion but had told the doctors that she was adamant that she would not want treatment with any blood products. Jackson J declared that it was lawful for the doctors treating her to withhold blood transfusions or the administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death. He held at para 24:

“There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it.”

This is not to say that the right to self-destruction has no consequences for others. As Mill says “I fully admit that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large.” Thus in Home Secretary v Robb Thorpe J stated “the …consideration of protecting innocent third parties is one that is undoubtedly recognised in this jurisdiction (Footnote: ²).” Therefore, if a detained person were to make a formal written request to be given a razor blade with which to harm himself, or a rope with which to hang himself, such a request should obviously be refused both on moral and legal grounds for this reason, as dealing with the aftermath would be a dreadful and traumatic task for the staff (Footnote: ³).

There are three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.

At first blush section 63 strikes one as an illiberal provision, given that it applies to all detained mentally ill patients who may well not lack capacity (as here). However, it can be well justified when one reflects that the treatment in question may be needed not merely for the protection of the patient but also for the prevention of harm to others, given the violent eruptions to which mental illness can give rise.

I turn to the question of judicial authorisation where powers are exercised in the three instances I have mentioned.

If a self-destructive course is being pursued by an incapacitated person (who has not made a valid advance decision) then pursuant to Court of Protection Practice Direction 9E life saving measures will likely amount to “serious medical treatment” requiring the issue to be determined by the Court of Protection. Plainly, in any case where the protected party contests a decision to impose treatment on him he is entitled to a hearing in the Court of Protection to determine the issue. The reports of cases in the Court of Protection are full of examples where life-saving treatment has been ordered in the face of trenchant opposition from the incapacitated person. A striking example is Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) where a 32-year-old woman suffering from extremely severe anorexia nervosa saw her life as pointless and wished to be allowed to make her own choices, realising that refusal to eat must lead to her death. All of the parties supported with different degrees of strength the view that it would not be in her interests to force-feed her. Nonetheless Jackson J held that the woman did not have the mental capacity to make the decision about treatment by forcible feeding and that the court must take the decision that was in her best interests. He ordered that it was in her best interests to be fed and to live. At para 137 he memorably held:

“We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know. E is a special person, whose life is of value. She does not see it that way now, but she may in future.”

Obviously, a decision imposing equivalent measures on a vulnerable adult requires a hearing in, and an order of, the High Court.

A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review: see R (on the application of B) v Haddock (Responsible Medical Officer) [2006] MHLR 306. Paras 13 and 14 of that decision make clear that convention rights will be in play and therefore a “full merits review” must be undertaken on the evidence, with the court making the decision de novo, but placing considerable weight on the initial decision made under section 63 by the approved clinician in charge of the treatment.

But a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged. As is well-known this protects the right to life. It is the most fundamental of the convention rights. Countless authorities have emphasised the imperative duty on public authorities to give effect to this right where detained persons are concerned. So if the approved clinician in charge of the treatment decides not to impose potentially life-saving treatment one can see the important need for judicial scrutiny to determine whether the patient has with a full awareness of the implications elected to opt-out of the right to life granted to him by Article 2. And one would expect, as has happened here, that a second medical opinion would be commissioned concerning the approved clinician’s decision.

In Home Secretary v Robb the court was concerned with an application for declaratory relief in respect of a prisoner on hunger strike. Thorpe J stated:

“Medical ethical decisions can be acutely difficult and it is when they are at their most acute that applications for declaratory relief are made to the High Court.

…

So this decision is not a borderline one; this is a plain case for declaratory relief.”

And in St George’s Healthcare NHS Trust v S [1998] 2 FLR 728 at 755A Judge LJ stated:

“An application for declaratory relief has since Re F been the usual procedure when a health authority has taken the initiative in seeking the court’s ruling on the lawfulness of treatment”

It seems to me that with the advent of the Human Rights Act 1998 the argument for declaratory relief in such a case becomes appreciably stronger.

In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a “full merits review” of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.

I now turn to the scope of section 63.

Section 63 is confined to “any medical treatment given to [the patient] for the mental disorder”. The interpretation section, section 145(4), provides that:

“Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (emphasis added)

The cases have drawn a distinction between a condition which is, on the one hand, a consequence of the disorder, and, on other hand, a condition which is a symptom or manifestation of it. The former is not within section 63, the latter is. I confess to finding the distinction intellectually challenging. At all events a wide (but not always consistent) interpretation has been given to section 145(4). Thus the decision to force-feed Ian Brady was held to be within section 63. His hunger strike, ostensibly in protest at the decision to move him to another ward, was held to be a manifestation or symptom of his very profound personality disorder (he was additionally found to be incapacitated): see Ex parte Brady [2000] Lloyd's Rep Med 355. In B v Croydon Health Authority [1995] Fam 133 the court declared that it was lawful to force-feed a patient who would otherwise die from self-starvation which was the result of her borderline personality disorder. By contrast in A NHS Trust v Dr A [2014] 2 WLR 607 a hunger strike by a detained Iranian doctor protesting about the impoundment of his passport was held to be not a manifestation or symptom of his mental disorder. In Tameside and Glossop Acute Services v CH [1996] 1 FLR 762 it was held that section 63 could be used to restrain a patient to enforce a Caesarean section upon her; while in St George’s Healthcare NHS Trust v S the opposite conclusion was reached.

In this case there is a dispute between the parties and the experts as to whether administration of a blood transfusion following an episode of self-laceration is treatment of a symptom or manifestation of RC’s mental disorder or treatment of a consequence of it. I agree that this is a legal rather than a factual question, and I will answer it later.

What are the principles the court should apply where it conducts a full merits review on an application for declaratory relief in circumstances where a decision has been made not to impose potentially life saving treatment under s63? Obviously the expressed wishes of the patient will be highly relevant. If there is an advance decision in place under sections 24 and 26 of the MCA then this will weigh most heavily in the scales. The Hippocratic duty to seek to save life, or the benign but paternalistic view that it is in someone’s best interests to remain alive must all surely be subservient to the right to sovereignty over your own body. Beyond this, considerations such as whether the treatment would be futile will no doubt be relevant; for example, if the repair of a laceration would inevitably be followed by a new one or if the patient was suffering from another unrelated terminal disease.

Both the treating clinician, Dr S, and the independent forensic psychiatrist Dr Latham made written reports, attended a meeting (by telephone) and gave oral evidence to me. They were almost unanimous. They agreed that:

Where they disagreed was whether the administration of a blood transfusion amounted to treatment which prevented the worsening of a symptom or manifestation of RC’s mental disorder. Dr S was of the opinion that it plainly was. Dr Latham disagreed. He wrote in his report

“In my opinion, it is crucial that any "treatment" for mental disorder provided under the direction of an approved clinician is recognised as a treatment for mental disorder in psychiatric terms and is given [as] a direct consequence of the symptom or manifestation of the mental disorder. In this regard, the treatment of force-feeding for eating disorders could be recognised as a "treatment" but I think it is highly unlikely that a blood transfusion could be. This in my view, might provide a way to "draw a line" so as to ensure proper protection of people's right to refuse treatment where they have capacity to do so.

In conclusion, any treatment with a blood transfusion is not, in my opinion a treatment for mental disorder, nor is it treatment for a symptom of that mental disorder. It is a treatment for a physical consequence of a symptom of the mental disorder; hypovolaemic shock or life-threatening anaemia. This consequence is not wholly as a result of the self harm but contributed to by his treatment with warfarin. The treatment with warfarin is unrelated to his mental disorder.”

Miss Watson, who represents RC, adopts this reasoning and states that it is in fact consistent with the authorities. Miss Dolan, who represents the NHS trust, and Mr Francis QC who acts as advocate to the court, disagree and suggest that a proper interpretation of the authorities must lead to a conclusion that Dr S is right and that a blood transfusion would plainly amount to treatment of a symptom or manifestation of the underlying mental disorder.

If I were confined to the literal words of sections 63 and 145(4) I think I would agree with Dr Latham and Miss Watson. However, the authorities have supplied a definition which is some distance from the meaning of the literal words. In St George’s Healthcare NHS Trust v S at 747F Judge LJ stated that “section 63 of the Act may apply to the treatment of any condition which is integral to the mental disorder”.

On reflection I am in agreement with Mr Francis QC's analysis. It cannot be disputed that the act of self harming, the slashing open of the brachial artery, is a symptom or manifestation of the underlying personality disorder. Therefore to treat the wound in any way is to treat the manifestation or symptom of the underlying disorder. So, indisputably, to suture the wound would be squarely within section 63. As would be the administration of a course of antibiotics to prevent infection. A consequence of bleeding from the wound is that haemoglobin levels are lowered. While it is strictly true, as Dr Latham says, that "low haemoglobin is not wholly a manifestation or symptom of personality disorder", it is my view that to treat the low haemoglobin by a blood transfusion is just as much a treatment of a symptom or manifestation of the disorder as is to stitch up the wound or to administer antibiotics.

I now turn to my conclusion on the various declarations that have been sought.

A fundamental principle under section 1(2) MCA is that capacity is to be assumed unless it is established, on the balance of probabilities, to be lacking. The effect of section 2 and section 3 MCA is that a person will lack the capacity to make a decision if, by reason of mental disorder, they are unable to understand, or retain, or use or weigh up the information relevant to that decision, or to communicate their decision. In this case Mr Francis QC correctly argues that the only the possible question relates to whether RC is able to weigh information in the balance. In his report Dr Latham says:

“His ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create, in his mind (and others) an absolute prohibition on blood products and so there is relatively little "weighing" when it comes to this decision.”

This aspect of the test of capacity must be applied very cautiously and carefully when religious beliefs are in play. In his essay John Stuart Mill speaks of the prohibition in Islam on the eating of pork. He describes how Muslims regard the practice with “unaffected disgust”; it is “an instinctive antipathy”. There can be no circumstances where a Muslim could “weigh” the merit of eating pork. It is simply beyond the pale. So too, it would appear, when it comes to Jehovah’s Witnesses and blood transfusions. But it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA.

I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion should his medical circumstances indicate that one is necessary.

I am completely satisfied on the evidence and so declare that RC has full capacity to refuse the administration of blood products.

I do not think that a formal declaration as to his capacity to harm himself is necessary or appropriate, particularly in the light of the agreed expert evidence which I have set out above. However I record that I agree with the evidence that sometimes RC does, and sometimes he does not, have the capacity to inflict lacerations on himself.

I now turn to the advance decision of 4 April 2014. Under section 26(4)(a) and (b) MCA the Court of Protection may make a declaration as to whether such an advance decision is valid and is applicable to a treatment.

Under sections 24 and 25 MCA there are a number of formal requirements for validity. These have been helpfully listed by Miss Dolan in her skeleton argument as follows:

“Under MCA an advance decision refusing life-saving treatment will only be valid and applicable if it is made by someone (‘P’) with capacity to do so and:

a.

it specifies the treatment in question (s.25(4)(a))

b.

any circumstances specified in the advance decision are present (s.25(4)(b))

c.

there are no reasonable grounds for believing circumstances exist not anticipated by P when making the advance decision that would have affected the decision (s.25(4)(c))

d.

it is verified by a statement that it is to apply even if P’s life is at risk (s.25(5)(a))

e.

it is in writing (s.25(6)(a))

f.

it is signed by P (s.25(6)(b))

g.

the signature is made or acknowledged in the presence of a witness (s.25(6)(c))

h.

the witness has signed it in P’s presence (s.25(6)(d))

i.

it has not been withdrawn when P had capacity (s.24(2)(a))

j.

there is no subsequent lasting power of attorney that covers the same matter (s.24(2)(b))

k.

P has not acted inconsistently with the advance decision (s.24(2)(c))”

The only question relates to the witnessing requirements in (g) and (h). The document has the signature of a witness on it; the question is whether RC and the witness signed it in each other’s presence. However, Dr S was able to tell me in her oral evidence that she saw them sign it in each other’s presence. Accordingly I am perfectly satisfied that all the formal requirements relating to the advance decision are satisfied. Further, I am perfectly satisfied that RC had full capacity when he executed the document on 4 April 2014. Therefore, should RC ever be in a position where for whatever reason he lacks capacity, but there is indicated a medical need for a transfusion, then the advance decision will be operative.

Finally I turn to the declaration which is sought pursuant to the inherent jurisdiction of the High Court concerning the decision of Dr S not to invoke the powers under section 63 MHA. In her first witness statement at paragraph 8 she stated

“I have some ethical difficulty in using the MHA to override a capacitious patient’s wishes based on religious wishes and I would not choose to use my MHA powers to override his advanced (sic) decision”

In my judgment, conducting, as I must, a full merits review, I conclude that the decision made by Dr S is completely correct. In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom. I therefore declare that the decision of Dr S is lawful and that it is lawful for those responsible for the medical care of RC to withhold all and any treatment which is transfusion into him of blood or primary blood components (red cells, white cells, plasma or platelets) notwithstanding the existence of powers under section 63 MHA.