This judgment is being handed down in private. It consists of 28 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Case No: FD04 P00637
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE Mr JUSTICE CHARLES
Between :
THE NHS TRUST | Claimant |
- and - | |
Ms T | Defendant |
Bridget Dolan (instructed by Kennedy’s) for the Claimant
Kate Markus (instructed by Fosters) for the Defendant
Edward Solomons, Solicitor Advocate and Deputy Official Solicitor
Hearing date: 20 May 2004
Judgment
The Hon. Mr Justice Charles:
Introduction
This case concerns Ms T who is 37 years old. The Claimant seeks declaratory relief concerning her medical treatment. The Claimant is responsible for the medical care of Ms T, but it is not responsible for her psychiatric care and at present does not have her psychiatric records.
At the hearing before me Ms T was represented by solicitors and counsel. I also heard submissions from the Official Solicitor and, of course, the Claimant. The Official Solicitor was present and represented in one or more of the following capacities, namely, as the potential litigation friend of Ms T, as a friend of the court or as a person who would be invited to make enquiries by the court. His participation was extremely helpful. I pause to comment that it is well recognised that the participation of the Official Solicitor in cases of this type, which are difficult and sensitive, is helpful to the court and others who are involved in them.
I was told that the solicitors acting for Ms T have experienced difficulties in obtaining public funding. To my mind this is surprising and unfortunate. The judge who deals with this case at final hearing may wish to return to this point, however I record at this stage, that in cases of this type it is important that all practical efforts are made to enable the person who is, or may be, refusing treatment to be properly heard (see the guidelines in reported cases referred to below). An important aspect of that is the funding of his or her legal representation.
Background
It was common ground before me that Ms T suffers from a borderline personality disorder and that she has had a long history of psychiatric contact with relevant services.
Ms T has on a number of occasions over the years self harmed by cutting herself and blood-letting. The consequence of this blood-letting is that her haemoglobin level falls to a life threateningly low level such that she requires blood transfusion on an emergency basis. My references to blood transfusion should be read as including iron supplements and other necessary treatment in respect of her dangerously low haemoglobin. This emergency situation can arise on or very shortly after her presentation at, and admission to hospital. The high risk that exists at these times of chronic anaemia is that in the absence of a blood transfusion sufficient oxygen will not be transferred to her body tissues and Ms T will die.
Over the years Ms T has been given blood transfusions on a number of occasions in such emergency situations by the Claimant and although her initial stance has been to refuse such transfusions she has been persuaded by clinicians, or has decided to, accept them.
Such an incident occurred in the autumn of 2001 and it generated some medical opinions which are before me. I shall return to these medical opinions.
On 28 January 2004 Ms T signed an advance directive which contains the following passages:
“You are advised to read the guidance note before completing this document.
This is the advance directive of [Ms T].
If at any time in the future I experience a mental health crisis, I direct that the following instructions are complied with. In particular, I refuse treatment which is contrary to that stipulated in this document. Where I have objected to a specific form of treatment this shall be legally binding on those treating me, unless I am subject to compulsory treatment under the Mental Health Act 1983 [Ms T’s signature follows this passage]
I confirm that I believe the above named [Ms T] has freely stated her directions in this document. It is my understanding and belief that she has the mental capacity to understand the nature and consequences of these directions.
[This passage is signed by (I think) the person named later in the document as Ms T’s advocate]
MY WISHES REGARDING MEDICATION AND TREATMENT
Should my blood volume or HB level fall low, I do not wish to be given a blood transfusion or iron.
REASONS FOR MY DECISION
I make this decision for two reasons. First because I am caught in a vicious circle/set of circumstances too difficult for me to continue enduring. I am not aware of when I am cutting myself, and therefore cannot prevent my HB dropping very low periodically. Having a transfusion does not resolve this problem in the long term, only causes stress to myself.
Secondly I believe my blood is evil, carrying evil around my body. Although the blood given in transfusions is perfectly healthy/clean once given to me it mixes with my own and also becomes evil. Contaminated by my own. Therefore the volume of evil blood in my body will have increased and likewise the danger of my committing acts of evil.
UNDERSTANDING THE NATURE OF THIS DIRECTIVE AND THE EFFECT IT WILL HAVE
I am fully aware that in refusing a blood transfusion I may die.
At the time of writing this I have capacity and am mentally competent.
I attach a letter confirming my understanding of this directive from my GP [who is named].
It is my wish that the following people be told immediately should I be admitted to hospital [an advocate and a social worker are named]
MY CHOICE OF MENTAL HEALTH LAWYER IS [the lawyer is named]
IN THE EVENT THAT I LACK CAPACITY TO MAKE A DECISION FOR MYSELF, I WOULD LIKE THE FOLLOWING PERSON TO BE CONTACTED AND CONSULTED [the person named as the advocate is named]
I confirm that this person knows and understands the terms of this directive, and that they have given them permission to be contacted and will speak for me in a crisis
[The document is then signed by Ms T] ”
The letter from the GP that is referred to in the advance directive is signed by the GP and Ms T. It is addressed ‘To whom it may concern’ and states as follows:
“Ms T would like it noted that she is making a directive via a solicitor and that she would like a discussion with staff responsible for instituting treatment, i.e. blood transfusion, before it is forced upon her and she understands the implications of not undergoing treatment when her anaemia is severe and she is being advised to have a transfusion. Ms T understands that this decision may result in her death.”
On 22 March 2004 Ms T was seen by the Claimant’s treating psychiatrist (Dr C) who reported his views in a letter dated 24 March 2004 which includes the following:
“Diagnosis: emotionally unstable / borderline personality disorder
Current medication: I believe unaltered compared with 30 January 2004
Current condition
Ms T came to outpatient clinic after her advocate (the advocate named in the advance directive). The purpose of this meeting was to discuss the matter of her longstanding unwillingness to accept future blood transfusions and specifically the advance directive which she has produced – issue no. 2 dated 28 January 2004.
Having reviewed her case notes and interviewed her on this occasion, I concluded that I did not think she had capacity to refuse treatment, specifically blood transfusions or iron supplements.
I base this decision on the following:
Her present state of mind is not substantially different to that which pertained some years ago nor is likely to exist in the future. She is in a continuous state of disordered thinking brought about by her mental disorder, namely borderline personality disorder. She does not appear to be making an advanced directive to manage a mental disorder which may occur at a future time; it is present now and is now likely to remain with her for the foreseeable future.
I would emphasise that I do not think Ms T has a psychosis but one of her reasons for declining blood transfusion is that her blood is ‘evil, carrying evil…………’ I believe that in itself represents disordered thinking and borderline personality disorder.
I am aware that my opinion is shared by some psychiatrists but not by others who have pronounced on Ms T’s circumstances. I do not think it will be possible for clinicians alone to reach a conclusion as to what should happen when, inevitably, she requires further blood transfusions in the future. Ms T led me to understand that there have already been some discussions between [the mental health care trust and the Claimant] and I shall make contact with [the mental health care trust] to clarify the position.
Ms T tells me that today in other respects she remains reasonably well and led me to understand cutting had been rather less in recent months since the last transfusion in October 2003. She felt it however, likely, that she would become liable to need a transfusion over the next few months, although she emphasises she would not wish to accept it………..”
This letter was copied to Ms T’s social worker.
The prediction contained in that letter that Ms T would need a blood transfusion was proved to be correct in early April 2004 and this need led to an out of hours application to the Duty Judge, Pauffley J, on Friday 9 April 2004. She made the following order:
“Upon hearing Mr Robert Francis QC on behalf of the Claimant
IT IS ORDERED THAT
1 It is declared that in spite of the defendant not consenting in the present circumstances it is lawful for the Claimant’s servants or agents who are attending on and treating the defendant, to administer a blood transfusion and such other treatment as may be necessary to stabilise her condition.
2. It is further declared for the purpose of administering the treatment referred to above it is lawful for the Claimant’s servants or agents to use such minimum force as may be reasonably necessary for that purpose.
3. The Claimant shall, as soon as may be possible following the commencement of the next legal term, apply for directions for the determination of the lawfulness of such treatment referred to above as may be required in the future.”
The background to the making of that order was briefly that Ms T had been admitted to hospital on the night of Thursday 8 April 2004 having been found in a collapsed state as a result of cutting herself and losing a substantial amount of blood. She was refusing a blood transfusion and the hospital was aware of (a) the advance directive, the accompanying letter from the GP, and the letter from Dr C (the treating psychiatrist) which I have referred to earlier and (b) the medical opinions relating to a similar incident in the autumn of 2001 which I refer to later.
By the evening of Friday 9 April 2004 it was apparent that Ms T’s condition had deteriorated further with her losing the ability to communicate and requiring oxygen. The treating consultant advised that Ms T was at imminent risk of cardiac arrest with uncertain prospects of resuscitation. In those circumstances the matter was treated by the Claimant as an emergency and an application was made to the Duty Judge.
During Friday 9 April 2004 there had been telephone communication concerning the developing situation relating to Ms T between the Claimant and the Official Solicitor. I understand that following the making of the order Ms T received a blood transfusion. I am unclear whether by that stage she was able to object but I understand that the transfusion was given without physical or verbal resistance from Ms T. She has recovered well and was discharged home on 13 April 2004.
On 16 April 2004 her solicitors wrote to the Claimant stating that Ms T stood by her advance directive and wished to oppose further treatment by blood transfusion. On 4 May 2004 Dr C wrote a further letter saying inter alia:
“I have been Ms T’s consultant psychiatrist since the end of the year 2003. I had prior acquaintance with her in the year 2001 when I saw her for a ‘second opinion’ while she was under the care of Dr Cr, consultant psychiatrist, H hospital………
My point in drawing your attention to that existing discussion is that Ms T’s condition in the broadest sense has pertained for some years and, in my opinion, will do so for the foreseeable future, i.e. a matter of years if not for ever. Her condition and attitudes, albeit given my limited personal knowledge, do not appear to fluctuate over weeks and months. For the sake of the record, I will restate my opinion.
Based on my last meeting with her on 22 March 2004 and I have not seen her since, I would say that;
The diagnosis is that of an emotionally unstable borderline personality disorder.
I understand that because of self-cutting and letting of blood she becomes severely anaemic.
She has for some while now been pursuing the matter of an advance directive which she hopes would allow her to refuse blood transfusion to save her life.
In my opinion she does not have the capacity to refuse treatment, specifically blood transfusions or iron supplements.
I say she does not have the capacity because she is affected by personality disorder as described above. She is in a continuous state of disordered thinking brought about by the mental disorder and it is very likely that that disorder will persist for the foreseeable future.
I believe she is attempting to making a valid advance directive to manage any consequences of her mental disorder, namely severe anaemia but that mental disorder is present now and will be for the foreseeable future. It is not the case that she has a mental disorder or illness which is now present and not affecting her so that she is able to consider her actions and responses unaffected by the disorder.
Given the present level of understanding in psychiatry, there has not yet been identified a validated means of treating her mental disorder, namely emotionally unstable personality disorder.
It is very likely that recent circumstances will recur in that because of Ms T’s self-cutting she will become anaemic and require a life saving transfusion. Unless she changes her mind, I think it is equally likely that she will continue to pursue the means, legal or otherwise, to allow her to refuse blood transfusions.
It is very likely, therefore, when I do see her again I will reach the same conclusions as I have earlier.”
The issues in the present proceedings.
These flow from the points that:
an adult of sound mind (i.e. with capacity) is entitled to refuse medical treatment even if his or her life depends upon such treatment (see, for example, St George’s Healthcare NHS Trust v S [1998] 2FLR 728 – ‘S’), whereas in contrast
if an adult does not have capacity the court can authorise his or her medical treatment in his or her best interests.
The legal method by which the court has given such authorisation has been by the grant of a declaration (see, again, for example S)
It follows that the trigger issues in these proceedings relate to whether Ms T had capacity when she entered into the advance directive, and whether she has capacity now and at the final hearing.
Further, in my view, there is an issue as to the effect of the advance directive having regard to its terms when read alone or together with the letter from Ms T’s GP which is referred to in the advance directive. The point that is not clear to me is whether the true interpretation of the advance directive is that:
in the absence of Ms T being subject to treatment under the Mental Health Act 1983 it is to be treated as a binding assertion of her wishes which must be respected by those responsible for her medical treatment, or
it is a declaration that Ms T wishes to be consulted, or for her advocate and further or alternatively her social worker to be consulted, if and when the question of her having a blood transfusion arises.
The common position before me was that if (i) above is the correct interpretation of the advance directive it means that if Ms T had capacity at the time she entered into it then, unless she becomes subject to compulsory treatment under the Mental Health Act 1983, in a situation that is the same as or similar to those which have arisen in the past when she has been given a blood transfusion she could not be given a blood transfusion and she would thus be at high risk of dying (see for example paragraph (iii) of the guidelines in S).
If it is found that Ms T lacked capacity at the time she entered into the advance directive, or that on its true construction it is not determinative of her wishes for the future (or naturally if the advance directive was to be validly revoked) the issue of Ms T’s capacity would still have to be considered by the court before it could give a declaration authorising treatment by blood transfusion that was against the expressed wishes of Ms T now, or at the time the treating doctors recommended such treatment.
This gives rise to the point whether a declaration can be made, or should as a matter of discretion be made, in advance of the time that such treatment is recommended.
Further before any declaration authorising treatment of Ms T by blood transfusion is made the court will have to consider whether or not such treatment is in her overall best interests.
The position before me
The proceedings came before me in the applications list for directions. In addition to directions the Claimant sought (in broad terms) an interim declaration authorising the treatment of Ms T by way of blood transfusion if her haemoglobin level is such that such treatment is necessary to preserve her life or avoid imminent risk of serious injury to her health.
Directions were agreed but the grant of such an interim declaration was disputed.
The possibility of a relevant change of circumstances
It seems to me that in some cases the grant of a declaration (whether interim or final) in respect of treatment in the future of a person alleged to lack capacity could not, or would not as a matter of discretion, be granted because of the possibility of changes in either or both of:
the capacity of the relevant person before the proposed treatment became necessary, and
the state of health of that person and the reasons for and effect of the proposed treatment.
It was not argued before me that this was a case in which the possibility of change and thus uncertainties as to the future would warrant the refusal of an interim declaration on the basis that it was premature to make one. In my view the parties were correct not to make such an assertion because:
the information presently available to the parties and the court indicates that there has been no material change concerning Ms T’s capacity between the times that she entered into the advance directive and now and that it is not likely that there will be such a material change before the final hearing, and
Ms T’s history and the present medical information available to the parties and before the court demonstrate that the circumstances and events leading up to the situation that existed on 9 April 2004, when Ms T was given her last blood transfusion, are likely to be repeated with no material differences. (This is why I say in paragraph 31 ‘as and when’ rather than ‘ if and when’ such a situation occurs in the future).
As to both these points see the citations in this judgment from the views of psychiatrists in 2001 and now.
Further, the medical information presently available to the parties and the court indicates that in such a situation if Ms T is not given a blood transfusion there is a high risk that she would die.
The above lack of uncertainty relating to changes in Ms T’s capacity and further, or alternatively, her medical condition and recommended life saving treatment may distinguish this case from others. Also the point that in Ms T’s case the pressing need for a blood transfusion arises from time to time and once it has been administered Ms T recovers fairly quickly and is discharged from hospital may be a distinguishing feature of this case
Pragmatism
Given the recurring nature of the problem relating to Ms T’s need for a blood transfusion to my mind there is obvious pragmatic force in seeking relief from the court which can be implemented as and when in the future an emergency arises in respect of Ms T which is the same, or essentially similar, to those that have arisen in the past. Not least this enables the issues to considered without the added pressures created by a background emergency.
In this context I comment that potentially different considerations arise in respect of an interim declaration and a final declaration not least because the former is limited in time by reference to the proceedings and during that period an emergency situation such as those that have occurred in the past may or may not occur. At the final hearing if history is a guide a similar need for life saving treatment will arise in the future but the time frame is potentially open ended.
Jurisdiction to grant an interim declaration
The judgment of the Court of Appeal in S makes it very clear that as the law then stood an interim declaration was not something known to the law and was not something that could be granted by the court (see, in particular, [1998] 2 FLR at 755E where the court said:
“Because a declaratory order does have effect, between the parties to the proceedings in which it was made, as a conclusive definition of their legal rights, it should only be made as a final order. The notion of an interim declaration is (as Diplock LJ said in International General Electric v C & E Commissioners [1962] Ch 784, 790) a contradiction in terms. That was recognised by this court, in the context of authority for medical intervention, in Riverside Mental Health Trust v Fox [1994] 1 FLR 614.”
In the Riverside case referred to in that passage the declaratory order had been made ex parte and authorised feeding under sedation. The order provided that the matter should be heard inter partes at a later date and it was held that this provision made it an interim declaration and thus an order that the judge had had no jurisdiction to make.
When I raised the issue of jurisdiction to make an interim declaration the solicitor-advocate for the Official Solicitor drew my attention to Part 25.1 (1)(b) of the CPR which is in the following terms:
“Orders for interim remedies
25.1(1) The court may grant the following interim remedies –
(a) An interim injunction;
(b) An interim declaration;
(c) …………”
It follows from the introduction by the CPR of the power to grant an interim declaration that such relief can no longer be said to be ‘unknown to the law’ and can no longer be said to be ‘a contradiction in terms’. That said, a number of the conceptual difficulties referred to in the earlier authorities and which found the conclusions reached therein on the approach to the grant of, and the effect of, declarations remain.
It was however common ground before me that I had jurisdiction to make an interim declaration along the lines sought by the Claimant pursuant to the power granted by CPR Part 25.
I agree. Although the notes to Part 25 make clear that this form of relief was recommended by the Law Commission in the context of proceedings for judicial review the power has not been so limited by Part 25 and therefore in my view in these Part 8 proceedings I have the power to make an interim declaration.
My approach to the grant of an interim declaration.
In addition to the notes to Part 25 I was referred to a textbook passage concerning judicial review which understandably was directed to proceedings of a different type to those before me. I was also referred to A London Borough v (1) Mr BS (2) S (an adult by her litigation friend the Official Solicitor) [2003] EWHC 1909 where the report shows that interim declarations were granted by both Johnson J and Hughes J. However the report before me contains no reference to the approach or test they took in granting those interim declarations.
The upshot was that I was not referred to authority which gave any real assistance as to the approach or test I should adopt. Further (and necessarily given the time constraints of the applications court) the argument I heard on the test or approach to be adopted was limited. I hasten to add that in mentioning this I make no criticism of any of the parties or their representatives and I make the point to indicate that (a) as this jurisdiction develops further arguments may be put to, or occur to, the court, and (b) there would be advantages in considering the jurisdiction when more time is available.
In considering my approach I return to the judgment of the Court of Appeal in S, the problems facing those concerned with cases of this type on an emergency basis and the approach taken to them prior to the introduction of Part 25. In S [1998] 2 FLR at 755F (following the quotation set out above) the court said:
“Since a declaration ought not to be made on an interim basis, or without adequate investigation of the evidence put forward by either side, it follows that a declaration (especially one affecting an individual's personal autonomy) ought not to be made on an ex parte basis. Apart from injustice and other more obvious objections, it will simply be ineffective to achieve its purpose, that is (in Lord Brandon's words in Re F at 56 and 420-421 respectively) 'to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms and claims'. Non-compliance with a declaration cannot be punished as a contempt of court, nor can a declaration be enforced by any normal form of execution, although exceptionally a writ of sequestration might be appropriate: see Webster v Southwark London Borough Council [1983] QB 698. Apart from that rare exception it operates solely by creating an estoppel per rem judicatam between the parties and their privies (Re F [1990] 2 AC 1, 64 and [1989] 2 FLR 376, 428 respectively). No estoppel can be created by a judgment pronounced in a party's absence without that party having been given notice of the proceedings or any opportunity to be heard. There is authority (New Brunswick Railway Co v British & French Trust Corp [1939] AC 1) that an estoppel per rem judicatam may arise on a default judgment, but in that case the default judgment was regularly obtained. No estoppel can arise from an order which the defendant could not oppose, and which was made in proceedings (or proposed proceedings) of which he or she knew nothing.”
Later at 767D, the court said:
“In this case the judge made a declaratory order (i) on an ex parte application in proceedings which had not then been (and at the start of the hearing of this appeal still had not been) instituted by the issue of a summons; (ii) without S's knowledge or even any attempt to inform her or her solicitor of the application; (iii) without any evidence, oral or by affidavit; and (iv) without any provision for S to apply to vary or discharge the order. The order declared that St George's could subject S to invasive surgery. It is inappropriate (for the reasons given by Lord Diplock) to describe such an order as void, or made without jurisdiction. But it is an order which S is entitled to have set aside ex debito justitiae. That may involve some unfairness to the doctors and nurses at St George's who were all conscientiously, and in very anxious circumstances, seeking to do the right thing. But the unfairness (indeed, injustice) to S would be much greater if the order were not set aside. “
And at 758B the court gave the following guidelines:
“Guidelines
The case highlighted some major problems which could arise for hospital authorities when a pregnant woman presented at hospital, the possible need for Caesarean surgery was diagnosed, and there was serious doubt about the patient's capacity to accept or decline treatment. To avoid any recurrence of the unsatisfactory events recorded in this judgment, and after consultation with the President of the Family Division and the Official Solicitor, and in the light of written submissions from Mr Havers and Mr Gordon, we shall attempt to repeat and expand the advice given in Re MB (Medical Treatment) [1997] 2 FLR 426. This advice also applies to any cases involving capacity when surgical or invasive treatment may be needed by a patient, whether female or male. References to 'she' and 'he' should be read accordingly. It also extends, where relevant, to medical practitioners and health practitioners generally as well as to hospital authorities.
The guidelines depend upon basic legal principles which we can summarise:
(i) They have no application where the patient is competent to accept or refuse treatment. In principle a patient may remain competent notwithstanding detention under the Mental Health Act.
(ii) If the patient is competent and refuses consent to the treatment an application to the High Court for a declaration would be pointless. In this situation the advice given to the patient should be recorded. For their own protection hospital authorities should seek unequivocal assurances from the patient (to be recorded in writing) that the refusal represents an informed decision: that is, that she understands the nature of and reasons for the proposed treatment, and the risks and likely prognosis involved in the decision to refuse or accept it. If the patient is unwilling to sign a written indication of this refusal, this too should be noted in writing. Such a written indication is merely a record for evidential purposes. It should not be confused with or regarded as a disclaimer.
(iii) If the patient is incapable of giving or refusing consent, either in the long term or temporarily (eg due to unconsciousness), the patient must be cared for according to the authority's judgment of the patient's best interests. Where the patient has given an advance directive, before becoming incapable, treatment and care should normally be subject to the advance directive. However, if there is reason to doubt the reliability of the advance directive, (for example it may sensibly be thought not to apply to the circumstances which have arisen) then an application for a declaration may be made.
Concern over capacity
(iv) The authority should identify as soon as possible whether there is concern about a patient's competence to consent to or refuse treatment.
(v) If the capacity of the patient is seriously in doubt it should be assessed as a matter of priority. In many such cases the patient's general practitioner or other responsible doctor may be sufficiently qualified to make the necessary assessment, but in serious or complex cases involving difficult issues about the future health and well-being or even life of the patient, the issue of capacity should be examined by an independent psychiatrist, ideally one approved under s 12(2) of the Mental Health Act. If following this assessment there remains a serious doubt about the patient's competence, and the seriousness or complexity of the issues in the particular case may require the involvement of the court, the psychiatrist should further consider whether the patient is incapable by reason of mental disorder of managing her property or affairs. If so the patient may be unable to instruct a solicitor and will require a guardian ad litem in any court proceedings. The authority should seek legal advice as quickly as possible. If a declaration is to be sought the patient's solicitors should be informed immediately and if practicable they should have a proper opportunity to take instructions and apply for legal aid where necessary. Potential witnesses for the authority should be made aware of the criteria laid down in Re MB and this case, together with any guidance issued by the Department of Health, and the British Medical Association.
(vi) If the patient is unwilling to instruct solicitors, or is believed to be incapable of doing so, the authority or its legal advisors must notify the Official Solicitor and invite him to act as guardian ad litem. If the Official Solicitor agrees he will no doubt wish, if possible, to arrange for the patient to be interviewed to ascertain her wishes and to explore the reasons for any refusal of treatment. The Official Solicitor can be contacted through the Urgent Court Business Officer out of office hours on 0171 936 6000 [now 020 7947 6000].
The hearing
(vii) The hearing before the judge should be inter partes. As the order made in her absence will not be binding on the patient unless she is represented either by a guardian ad litem (if incapable of giving instructions) or (if capable) by counsel or solicitor, a declaration granted ex parte is of no assistance to the authority. Although the Official Solicitor will not act for a patient if she is capable of instructing a solicitor, the court may in any event call on the Official Solicitor (who has considerable expertise in these matters) to assist as an amicus curiae.
(viii) It is axiomatic that the judge must be provided with accurate and all the relevant information. This should include the reasons for the proposed treatment, the risks involved in the proposed treatment, and in not proceeding with it, whether any alternative treatment exists, and the reason, if ascertainable, why the patient is refusing the proposed treatment. The judge will need sufficient information to reach informed conclusion about the patent's capacity, and, where it arises, the issue of best interest.
(ix) The precise terms of any order should be recorded and approved by the judge before its terms are transmitted to the authority. The patient should be accurately informed of the precise terms.
(x) Applicants for emergency orders from the High Court made without first issuing and serving the relevant applications and evidence in support have a duty to comply with the procedural requirements (and pay the court fees) as soon as possible after the emergency hearing.
Conclusion
There may be occasions when, assuming a serious question arises about the competence of the patient, the situation facing the authority may be so urgent and the consequences so desperate that is impracticable to attempt to comply with these guidelines. The guidelines should be approached for what they are, that is, guidelines. Where delay may itself cause serious damage to the patient's health or put her life at risk then formulaic compliance with these guidelines would be inappropriate.
In Re B (adult: refusal of medical treatment) [2002] 1 FLR 1090 the President dealt under the following self explanatory headings with “the principle of autonomy”, “the sanctity of life”, “the presumption of mental capacity” “assessing capacity” and “ambivalence” and therefore covered many of the legal issues that arise in this (and similar) cases. At the end of her judgment she gave further guidance at 1116, in the following terms
Guidance
[100] Guidance has already been given by the Court of Appeal in St George's Healthcare NHS Trust v S; R v Collins and Others ex parte S [1999] Fam 26, [1998] 2 FLR 728, at 63 and 758E respectively. The circumstances of the present case are however very different from the facts of that case. It might be helpful if I restate some basic principles and offer additional guidelines in case a situation similar to the present should arise again:
There is a presumption that a patient has the mental capacity to make decisions whether to consent to or refuse medical or surgical treatment offered to him/her.
If mental capacity is not in issue and the patient, having been given the relevant information and offered the available options, chooses to refuse the treatment, that decision has to be respected by the doctors. Considerations that the best interests of the patient would indicate that the decision should be to consent to treatment are irrelevant.
If there is concern or doubt about the mental capacity of the patient, that doubt should be resolved as soon as possible, by doctors within the hospital or NHS Trust or by other normal medical procedures.
In the meantime, while the question of capacity is being resolved, the patient must, of course, be cared for in accordance with the judgment of the doctors as to the patient's best interests.
If there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision.
In the rare case where disagreement still exists about competence, it is of the utmost importance that the patient is fully informed of the steps being taken and made a part of the process. If the option of enlisting independent outside expertise is being considered, the doctor should discuss this with the patient so that any referral to a doctor outside the hospital would be, if possible, on a joint basis with the aim of helping both sides to resolve the disagreement. It may be crucial to the prospects of a good outcome that the patient is involved before the referral is made and feels equally engaged in the process.
If the hospital is faced with a dilemma which the doctors do not know how to resolve, it must be recognised and further steps taken as a matter of priority. Those in charge must not allow a situation of deadlock or drift to occur.
If there is no disagreement about competence but the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so.
If all appropriate steps to seek independent assistance from medical experts outside the hospital have failed, the NHS Hospital Trust should not hesitate to make an application to the High Court or seek the advice of the Official Solicitor.
The treating clinicians and the hospital should always have in mind that a seriously physically disabled patient who is mentally competent has the same right to personal autonomy and to make decisions as any other person with mental capacity.
The last paragraph in the guidance in S reflects the problems that can arise in an emergency. However the problems which arise from the nature of a declaration and the point that it operates by way of an estoppel and are reflected in the passages I have cited from S remain. As all who have been involved in out of hours and emergency applications are aware these problems are considerable when the emergency involves decisions relating to life saving treatment of an adult which is in the view of the relevant doctors needed urgently but there are doubts as to the capacity of that adult.
I add that in my view the nature of the relief sought in respect of medical treatment of an adult who lacks capacity means that:
the declaratory relief can relate to a particular type or session of treatment without being an interim declaration, and indeed in many cases the relevant treatment is a one off (e.g. a caesarean or an amputation). Once such treatment is carried out that is an end of the matter and the relevant crisis, and thus of the effectiveness of the declaration which is (or is effectively) a final declaration, and
a declaration in respect of treatment and the estoppel based thereon is founded on a particular set of circumstances and facts. From which it follows that as with an advance directive (see the guidance in S paragraph (iii)) it would no longer be determinative (or found the relevant estoppel) if there was a material change in those circumstances and facts. Thus, in my view, a material change in circumstances can found a reconsideration of issues relating to conclusions on both capacity and best interests on which a final (or an interim) declaration was based.
As I understand it when the court is faced with an emergency and thus for example an application for a declaration in respect of treatment that cannot be delayed by reason of there being an imminent high risk to life, an approach that has been taken in the light of the conceptual difficulties identified in S and the guidance given therein is:
to make every effort to ensure that the person who it is proposed should be treated in reliance on any declaration has an opportunity to make representations (either directly or indirectly) to the court (and thus in cases of emergencies out of hours to the Duty Judge) before any declaration is made, and
for the Judge to decide on capacity and then if appropriate on best interests by applying the normal civil standard on the best evidence then available.
In my view, applying that approach so long as the person who it is proposed should be treated has had an opportunity to make some representations directly or through others the court can make a final and effective declaration in respect of identified treatment which it considers on the available evidence to be in the best interests of that person for example to avoid his or her life being put at high risk because of delay in treatment. or to avert serious damage to his or her health. In making that declaration the court has to reach conclusions firstly on capacity and then on best interests based on the available evidence.
In my judgment if, as in my view is the case, such an approach founds an effective final declaration (albeit perhaps a declaration directed to only a particular and emergency session of treatment) it follows that such an approach would also enable the court to make a valid interim declaration.
I add that in my view this approach accords with that of Bracewell J in R v R (interim declaration: adult’s residence) [2000] 1 FLR 451 in which after referring to the presumption of capacity and the point that it can only be displaced by clear evidence (at 452G) she went on to refuse to make an interim declaration on the basis that the application for it was premature saying at 453F, that:
“I have no doubt in this case that the application for an interim declaration is premature because the legal foundation for such an application has not yet been established. There is a presumption that J has full capacity. It has not yet been displaced. I do not know one way or the other whether the evidence will displace that presumption. It appears to me that only if and when that evidence is available before the court that he does lack capacity, would it be appropriate to consider whether an interim declaration should be granted. I refuse the application at this stage and it will therefore be necessary to timetable the hearing of the issues so that the matter can be heard on its merits as soon as possible.”
That passage envisages that an interim declaration could be made on some evidence provided that it was sufficient to rebut the presumption.
I have therefore applied this approach.
As appears below I have concluded that this approach founds the grant of an interim declaration in this case and it was therefore unnecessary for me to go on to consider the validity of possible alternative approaches based perhaps on paragraph (iv) of the guidance in Re B together with the last paragraph of the guidelines in Re S. I return to this in the tailpiece to this judgment.
The application of the above approach.
Firstly I record that I recognise that further information should be obtained and put before the court to enable it to reach a decision on capacity and best interests which would have regard to all relevant evidence that can reasonably be obtained over the next few weeks. This is demonstrated by the agreed directions by which for example it is recognised that expert evidence should be obtained from an independent consultant psychiatrist and an independent consultant physician.
It follows that I recognise that I am considering the issues of capacity and best interests on what is at present incomplete information and that further evidence (and in particular expert evidence) may lead to different conclusions.
Capacity
I was referred to and have applied guidance in Re MB (Medical Treatment) [1997] 2 FLR 426 at 436G to 437H. It is as follows:
Conclusions on capacity to decide
All the decisions made in the Caesarean section cases to which we have referred arose in circumstances of urgency or extreme urgency. The evidence was in general limited in scope and the mother was not always represented as a party. With the exception of Re S (above), in all the cases the court decided that the mother did not have the capacity to make the decision. In these extremely worrying situations, it is important to keep in mind the basic principles we have outlined, and the court should approach the crucial question of competence bearing the following considerations in mind. They are not intended to be determinative in every case, for the decision must inevitably depend upon the particular facts before the court:
Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.
A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise.
Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided it could have arrived at it. As Kennedy and Grubb Medical Law (Butterworths, 2nd edn, 1994) point out, it might be otherwise if a decision is based on a misperception of reality (eg the blood is poisoned because it is red). Such a misperception will be more readily accepted to be a disorder of the mind. Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence, but they may be symptoms or evidence of incompetence. The graver the consequences of the decision, the commensurately greater the level of competence is required to take the decision: Re T (above), Sidaway (a) [1985] AC 871, at 904 and Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112, 169 and 186, [1986] 1 FLR 224, 234 and 251.
A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C (above), a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Banks v Goodfellow (1870) LR 5 QB 549, 569:
'... one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration.'
The 'temporary factors' mentioned by Lord Donaldson MR in Re T (above) (confusion, shock, fatigue, pain or drugs) may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.
Another such influence may be panic induced by fear. Again, careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may also, however, paralyse the will and thus destroy the capacity to make a decision.
Earlier at page 433A/G it was stated:
Capacity to decide
Problems can arise on the issue of capacity to consent to or refuse treatment. The starting-point for consideration of the test to be applied is the decision of this court in Re T (above). The patient who was pregnant had been involved in a car accident and during hospital treatment required a blood transfusion. Lord Donaldson MR reviewed the relevant authorities and said at 112 and 470 respectively:
'Capacity to decide
The right to decide one's own fate presupposes a capacity to do so. Every adult is presumed to have that capacity, but it is a presumption which can be rebutted. This is not a question of the degree of intelligence or education of the adult concerned. However, a small minority of the population lack the necessary mental capacity due to mental illness or retarded development (see, for example, Re F (Mental Patient) (Sterilisation) [1990] 2 AC 1). This is a permanent or at least a long-term state. Others who would normally have that capacity may be deprived of it or have it reduced by reason of temporary factors, such as unconsciousness or confusion or other effects of shock, severe fatigue, pain or drugs being used in their treatment.
Doctors faced with a refusal of consent have to give very careful and detailed consideration to the patient's capacity to decide at the time when the decision was made. It may not be the simple case of the patient having no capacity because, for example, at that time he had hallucinations. It may be the more difficult case of a temporarily reduced capacity at the time when his decision was made. What matters is that the doctors should consider whether at that time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required. If the patient had the requisite capacity, they are bound by his decision. If not, they are free to treat him in what they believe to be his best interests.'
Thorpe J, in Re C (Refusal of Medical Treatment) [1994] 1 FLR 31, formulated the test to be applied where the issue arose as to capacity to refuse treatment. In that case a man of 68 suffering from chronic paranoid schizophrenia refused to have an amputation of his leg). Thorpe J said at 36:
'I consider helpful Dr E's analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, secondly, believing it and, thirdly, weighing it in the balance to arrive at choice. The Law Commission has proposed a similar approach in para 2.20 of its consultation paper 129, "Mentally Incapacitated Adults and Decision-Making".'
I add that I have also had regard to the points made on capacity in Re B under the headings “the presumption of mental capacity” and “assessing capacity”.
Counsel for Ms T took me to earlier views of psychiatrists who had seen Ms T in the autumn of 2001. As I (and the parties understand it) Dr C was referring to these views when he acknowledged in the letters I have cited that his views were not shared by other psychiatrists. In particular counsel for Ms T referred me to the views of the two consultant psychiatrists namely (i) Dr F in a report dated 28 August 2001 and (ii) Dr J in a letter dated 7 September 2001 addressed to a further consultant psychiatrist Dr Cr (who was employed by the Claimant) and had expressed the view (in a letter dated 16 May 2001) that Ms T did not have capacity in relation to her refusal in an advance directive dated 14 May 2001 “for treatment of low haemoglobin to a low or life threatening level causing loss of consciousness or heart failure and refusing blood transfusion or intravenous iron”.
In his report Dr F said under the heading ‘Opinion’ inter alia the following:
“However, I am of the opinion that whilst she may be dissociating when she cuts herself deeply and when she produces a knife to threaten others, at the time when she is given a blood transfusion, it is likely that she is capable of consenting or withdrawing her consent to such treatment. There was nothing in the interview which I conducted to suggest that she did not have the capacity to consent or withdraw her consent to physical treatment.
Nevertheless this is a very complex case which understandably arouses many emotions in those caring for her. I can fully understand why it is that Dr Cr feels that she should be treated with blood transfusions. Indeed it seems unnecessarily destructive to place responsibility on the staff to carry out Ms T’s wishes when she herself is giving a very mixed message. She could surely kill herself quite cleanly if she genuinely intended that. Without detailing appropriate parts of her anatomy, it is quite easy to kill oneself if one’s haemoglobin is as low as Ms T’s by a simple incision in an artery at various points. Ms T has chosen not to do that. I therefore doubt the genuineness of her suicidal impulses.”
Dr J states in his letter, inter alia, as follows:
“Some of her self harming behaviour seems to have taken place in a disassociative state, and this may have been the more serious episodes. However, she also clearly described cutting herself in clear consciousness, and as a deliberate action. She described this partly as attempts to kill herself, but also said that ‘ the less blood I’ve got the less evil there is in me’ a somewhat odd statement which suggests that she might have some delusional belief about this. She was adamant she does not wish to have blood transfusions, and that she stood by the declaration she made earlier this year refusing such treatment. I know that you have stated that she is not competent to make this decision, and that she is taking further legal advice about this situation.
In the second opinion Dr C advised caution in prescribing medication, in view of her physical condition and I can understand the concerns. Even so there seems to be evidence of some continuing psychotic symptoms, with Ms T describing auditory hallucinations, and possibly some delusional ideas regarding ‘evil’ in her blood. Although cold caution is certainly appropriate it seems it will be important to treat mental state if at all possible.
Finally, I feel I should make some comment about the issue of her consent to medical treatment. I was able to discuss her attitude to blood transfusions with her in some detail, and although some of her ideas were slightly odd, it seemed clear to me that she fully understood the nature of the proposed treatment (i.e the blood transfusion), the possible risks and benefits of the treatment and the possible consequences of refusing the treatment. She has clearly been able to understand and retain any information given to her about this, and has reached a judgment as to whether or not she wishes to accept the treatment. My understanding of the common law situation, following the case of R v C is that this is sufficient that she has capacity to refuse treatment.”
Another consultant psychiatrist, Dr O, was also involved in 2001 and in a letter dated 25 October 2001 stated inter alia that:
“I was imagining on my way to see her that I would have to address the problems of competence, capacity and such like in respect of her refusal to accept necessary medical treatment, but as it turned out, we had a frank heart to heart and she was rapidly persuaded as to what was in her best interest and she went on to have a further blood transfusion, sufficient for her to be discharged the following day.
To deal adequately with the subject would require a dissertation and there is no call for that at present. It is worth noting, however, that if she had refused transfusion and I thought she was in imminent danger of dying, I should probably have drawn the conclusion on balance of probabilities, that there was a temporary lack of competence and capacity because of her unsound mind, such that she could have been treated against her will.”
Dr O went on to discuss the decision of the Court of Appeal in S.
It can be seen from these quotations that a similar situation to that which existed in April of this year (and exists now) also existed in 2001.
Additionally, in respect of Ms T’s understanding at the time she signed the advance directive in January 2004 that her refusal of a blood transfusion could lead to her death counsel for Ms T referred me to the advance directive itself and the letter from her GP which is referred to in it. Counsel for Ms T also pointed out that the psychiatrists who had concluded that Ms T lacked capacity had not referred to the relevant test whereas Dr J had referred to Re C (which is cited in Re MB).
In particular I remind myself of the presumption that Ms T has capacity and of the points made by the President in paragraph (v) of the guidance in Re B Further I accept that difficulties arise in assessing the effect and impact of the points made on irrationality and capacity in paragraphs (2), (3) and (4) of the “conclusions on capacity” in Re MB.
However it seems to me that Ms T’s references to her blood being evil equate to the example given that “the blood is poisoned because it is red” in paragraph (3). From that it seems to me that this assertion and belief of Ms T is a misconception of reality which can more readily be accepted to be, and on the present evidence should be accepted to be, a disorder of the mind and further or alternatively symptoms or evidence of incompetence.
On the existing evidence and applying the tests referred to above I prefer the conclusion of Dr C (and those who agree with him) and find that Ms T lacks capacity and lacked capacity when she signed the advance directive. In particular I accept the following comments and conclusions in Dr C’s letters, namely:
Her present state of mind is not substantially different to that which pertained some years ago nor is likely to exist in the future. She is in a continuous state of disordered thinking brought about by her mental disorder, namely borderline personality disorder. She does not appear to be making an advanced directive to manage a mental disorder which may occur at a future time; it is present now and is now likely to remain with her for the foreseeable future.
I would emphasise that I do not think Ms T has a psychosis but one of her reasons for declining blood transfusion is that her blood is ‘evil, carrying evil…………’ I believe that in itself represents disordered thinking and borderline personality disorder. (March letter)
I say she does not have the capacity because she is affected by personality disorder as described above. She is in a continuous state of disordered thinking brought about by the mental disorder and it is very likely that that disorder will persist for the foreseeable future.
I believe she is attempting to making a valid advance directive to manage any consequences of her mental disorder, namely severe anaemia but that mental disorder is present now and will be for the foreseeable future. It is not the case that she has a mental disorder or illness which is now present and not affecting her so that she is able to consider her actions and responses unaffected by the disorder.” (May letter)
Returning to the test in my view these comments and conclusions reflect the points made in paragraph 61 above by reference to paragraph (3) of the “conclusions on capacity” in Re MB and found the conclusion on the present evidence that (a) Ms T is unable to use and weigh the relevant information and thus the competing factors in the process of arriving at her decision to refuse a blood transfusion, and lacks capacity to refuse a blood transfusion, and (b) the position was the same when she signed the advance directive. It follows that on the present evidence I do not agree with Dr J’s application of Re C
Best interests
The best interests test arises if the adult in question is found to lack capacity.
In A v A Health Authority [2002] 1 FCR 481 Munby J points out at paragraph 43 of his judgment that an adult’s best interests involves a welfare appraisal in the widest sense taking into account, where appropriate, a wide range of ethical, social, moral, emotional, and welfare considerations. He refers to Re A (medical treatment: male sterilisation) [2000] 1 FLR 549, where the President confirmed that best interests encompasses medical, emotional and all other welfare issues and Thorpe LJ said (at 560 B/H):
I turn from the outcome in the present case to some more general observations. There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal. The speeches in Re F (Mental Patient: Sterilisation) [1990] AC 1, sub nom Re F (Sterilization: Mental Patient) [1989] 2 FLR 376 read in their context can only bear this interpretation: see particularly the speech of Lord Goff at 77D-G and 440C-F respectively. Subsequently the Law Commission in their 1995 report on mental incapacity recommended an extensive evaluation of best interests: see para 3.28. The latest statement of government policy in Making Decisions shows that the Government currently accepts the Law Commission's recommendation: see para 1.10. Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a Claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the Claimant.
No argument was advanced before me that in the circumstances in which the suggested treatment would be administered it would not be in the best interests of Ms T to have the treatment. In my view the reason for this is that applying the above approach on the present evidence the balance of the competing factors comes down heavily in favour of Ms T having the treatment to save her life. On the present evidence the reasons advanced against the giving of the treatment are found in the advance directive under the heading “reasons for my decision”. To my mind the second reason based on Ms T’s belief that her blood is evil carries no weight in the balancing exercise. The first reason relates to the vicious circle Ms T says she finds herself in but in my view this does not have great weight. Further in my view it is to some extent is undermined by the point that Ms T told Dr C that in other respects she remains reasonably well and led him to understand that cutting had been rather less frequent since October 2003 (see his March letter). I say that even though I acknowledge that Dr C has also said that there has not yet been identified a validated means of treating her emotionally unstable personality disorder.
Interpretation of the advance directive
I add that in my view the opinions given in the autumn of 2001 and the history indicate that the background against which the advance directive was signed in January 2004 contains a number of indications that Ms T is, or can be equivocal. I however add that I have not relied on this, or the point raised above as to the true meaning and effect of the advance directive, in reaching my decision.
Discretion
In my view the points I have made earlier under the headings “the possibility of a relevant change in circumstances” and “pragmatism” provide strong support for the view that I should make an interim declaration now rather than refuse it on the basis that treatment is not needed now and may not be need before the final hearing.
However to guard against a relevant change in circumstances the Claimant was quite content to give through counsel an undertaking to the court to inform both Ms T’s solicitors and the Official Solicitor of each of the following events as soon as is practical after they occur, namely;
(a) the admission of Ms T to hospital, and
(b) the making of a decision to give Ms T the treatment referred to in the declaration.
In my view that additional safeguard supports the view I have reached that having regard to the conclusions I have reached on capacity and bests interests as a matter of discretion I should make an interim declaration.
The interim declaration
I make the following declaration:
It is declared that, with effect until the substantive hearing of this matter or further order:
(a) The defendant (Ms T) lacks capacity to make medical treatment decisions relating to any need she may have for the treatment referred to in sub paragraph (b) below and lacked such capacity when she signed her advance directive on 28 January 2004; and
(b) It is lawful for the Claimant its servants or agents to administer a blood transfusion and any other treatment necessary to stabilise her condition, using such minimum force as may be necessary, if the claimant is medically advised that her haemoglobin level is such that such transfusion or treatment is necessary to preserve the defendant’s life or avoid imminent risk of serious injury to her health.
Tailpiece
In my view correctly no-one suggested that the order of Pauffley J was determinative of issues relating to capacity or any other issues before me. The fact of the application before her out of hours on an emergency basis, and the issues before me, demonstrate that there are difficult human and legal problems in respect of emergencies relating to the authorisation of treatment of an adult who is thought to lack capacity, or who it is thought may lack capacity. Put another way in my view there are problems concerning the approach that should be adopted by the judge and others involved in the middle of the night when the medical opinion is that unless treatment is administered immediately the patient will die and in the case of an adult there are uncertainties relating to his or her capacity to give or refuse consent or the validity or effect of an advance directive. Similar problems exist in the case of a child when those with parental responsibility cannot be found or are not giving consent and when the child is Gillick competent and is objecting to treatment.
I respectfully suggest that point (iv) in the guidance in Re B reflects the natural instinct of many (if not most) people but to my mind the decision and guidance in Re S and the finding of unlawful treatment in Re B (albeit that in that case the patient was treated as competent over the relevant period) give rise to issues as to whether a court can assist by authorising treatment, or by otherwise protecting the doctors from being successfully sued, in the circumstances referred to in point (iv), particularly if the patient is not heard before relief is granted.
In my view the earlier guidance, such problems and the approach to be taken should be reconsidered having regard to the introduction of the power to grant an interim declaration and preferably this should be done when there is time available to consider the points that arise. It may be that at the final hearing of this case such points could be dealt with. It seems to me that included among them are (a) whether the court can grant an interim declaration without the patient being heard, (b) whether interim relief can be granted on the basis that there is doubt as to the capacity of an adult and thus by reference to best interests whilst such doubts remain and, if so, what tests should be applied in measuring the doubt that would trigger that approach and in assessing best interests, (c) whether interim relief other than an interim declaration could be granted in effect to suspend the effect of a refusal of treatment or an advance directive (and thus the autonomy of an adult who was found after full investigation to have capacity) and thereby enable the court to authorise treatment on a best interests approach until doubts as to capacity were resolved and (d) the extent to which a different approach can be taken with children having regard to the inherent jurisdiction in respect of children and the possibility of the court (i) overriding the wishes of a Gillick competent child and giving consent for the treatment of such a child or a younger child, or (ii) making a specific issue order in respect of the treatment of a child (see for example Re R (a minor) (blood transfusion) [1993] 2 FLR 757 at 759, Re O (a minor) (medical treatment)[1993] 2 FLR 149 and Re M (medical treatment) (consent) [1999] 2 FLR 1097).
The following may be relevant to such points, namely (a) the nature of an interim declaration and its legal effect, (b) the effect of point (iv) in the guidance in Re B and the last paragraph in the guidelines in Re S in respect of the lawfulness of treatment of an adult while the issue of his or her capacity is being resolved (for example in the face of an objection to the proposed treatment) and in respect of the grant of relief by the court including an authority to use reasonable force, (c) the relevance of the tests developed over the years in respect of interim injunctions having regard amongst other things to the point that if the potential patient sought relief it would probably be by way of injunction, and (d) the distinctions between the powers and approach of the court in respect of adults who lack capacity and children and in particular the importance of the autonomy of an adult of sound mind (see, for example, S at 739C to 740H).