An NHS Foundation Hospital v P

This short judgment explains the reasons for an order I have just made as the out of hours judge in the middle of the night on 13^th and 14^th May 2014 on an extremely urgent application by a hospital foundation trust for a declaration that it is lawful for its doctors to treat a seventeen-year-old girl following a drug overdose notwithstanding her refusal to consent to that treatment.

The extreme urgency of the situation and the lateness of the hour precluded any possibility of convening a hearing in open court, as would normally be arranged in cases involving serious medical treatment, and furthermore did not afford time for lengthy submissions or analysis.

The brief facts are as follows. The girl, hereafter referred to as “P”, is aged seventeen and a half. She has a history of self-harming behaviour and has been known to the local Child and Adolescent Mental Health Service for some time. She has recently been detained briefly under section 2 of the Mental Health Act 1983, but was discharged last week.

At approximately 3.20 pm on 13^th May 2014, P was admitted to hospital having taken an overdose of paracetemol some time earlier that afternoon. Thereafter, for several hours, she firmly resisted all treatment to counter the effects of the paracetamol. She said that her life was “shit” and that she would not have taken the overdose if she was going to agree to take the antidote. Her mother was called to hospital and gave her consent for the treatment, but the hospital trust was reluctant to administer treatment without gaining a court order.

The trust sought the opinion of the on-call child and adolescent consultant psychiatrist responsible for assessing P, who is not employed by the same trust and had not previously met P before this admission. He informed the trust that, although she suffered from a personality disorder, it was his view that she did not lack capacity to make decisions concerning her medical treatment. She was able to understand information and retain it, and also to weigh it up and use it. I was told that the physician at the hospital who was responsible for treating P this evening has some doubts about the psychiatrist’s opinion, having observed her behaving in an erratic and inconsistent way during the course of this hospital admission.

By late evening on 13^th May, the situation had reached a crisis. Unless a paracetamol overdose is treated within approximately eight hours, serious damage to the liver may be sustained and in due course the patient may die. That point was reached at about 10 pm. At approximately 11 pm, a solicitor acting for the trust contacted the out of hours duty officer who in due course telephoned me. Subsequently I spoke to the solicitor, who informed me that she had just learned that P had agreed to take the first dose of medication but that the treating clinicians remained concerned that she might refuse to continue the treatment which must, I was told, be administered over a continuous period of about 21 hours. I also spoke to Penny Logan, the duty solicitor employed by CAFCASS Legal who kindly agreed to assist as advocate to the court.

The trust solicitor applied to the court for an order incorporating a declaration that it was lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the overdose notwithstanding the fact that she is refusing treatment. In certain cases, such treatment may involve sedation and possibly restraint. Accordingly, the trust also sought an order that any steps taken that would amount to a deprivation of liberty would also be lawful.

The first question is whether or not P has capacity to make decisions concerning her medical treatment. Capacity is determined under the provisions of the Mental Capacity Act 2005 which applies to persons over the age of 16. The court must have regard to the principles in section 1 of the Act, including, subsection (2) that a person must be assumed to have capacity unless it is established that she lacks capacity; under subsection (3), that a person is not to be treated as unable to make a decision unless all practical steps to help her to do so have been taken without success and, under subsection (4), that a person is not to be treated as unable to make a decision merely because she makes an unwise decision. Under section 2(1), the test for capacity is whether P is “unable to make a decision for herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. Section 3(1) provides that a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain the information (c) to use or weight that information as part of the process of making the decision or (d) to communicate his decision.

In this case, although the physician at present treating P in hospital has some doubts as to her capacity, the psychiatrist responsible for treating her has expressed the view that she has capacity, notwithstanding her mental health history and personality problems. The information available to the court is extremely limited, consisting as it does simply of information provided by the trust’s solicitor. In the event that there is any further application to the court, written evidence on this question must be obtained as a matter of urgency. On the basis of the limited information available to me, however, I am not satisfied that P lacks capacity within the meaning of section 3. Having regard to the clear principles in section 1, I accordingly propose to make a declaration that on the basis of the information available at present, I am not satisfied that she lacks capacity to make decisions concerning her medical treatment.

I therefore turn to the second question, namely whether I should make a declaration authorising that treatment notwithstanding her refusal to give her consent.

All medical treatment requires consent. Treatment administered to a competent adult without consent will amount to a tortious act and may render the medical practitioner liable to criminal proceedings: Re F (Mental Patient: Sterilization) [1990] 2 AC1. A person with capacity who has attained the age of 18 may refuse treatment, even if that decision is unwise.

A person with capacity under the age of 18 who is “Gillick competent” – that is to say, having a state of maturity, intelligence and understanding sufficient to enable her to take a decision as to medical treatment for herself – is deemed to have legal capacity to consent to treatment. Where, however, a Gillick-competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment: Re W (a minor) (medical treatment: court jurisdiction) [1993] Fam 64 Re P (Medical Treatment: Best Interests) [2004] 2 FLR 1157.

In exercising its inherent jurisdiction, the court must have the child’s welfare as its paramount consideration. The wishes and feelings of the child, in particular those of a 17-year-old young person who is almost an adult, are an important component of the analysis of her welfare. They are not, however, decisive. In addition, the court must consider other factors and in particular in this situation any harm she has suffered or is at risk of suffering. In this case, the risk of harm is clearly at a high level. If she does not receive treatment to counteract the effects of the overdose of paracetamol, she will undoubtedly suffer serious damage to her liver and in probability will die.

As Munby J (as he then was) observed in R,(Burke) v GMC [2004] EWHC 1879 (Admin):

“There is a very strong presumption in favour of taking all steps which would prolong life, and save in exceptional circumstances, or where the patient is dying, the best interests of the patient will normally require such steps to be taken. In cases of doubt that doubt falls to be resolved in favour of the preservation of life.”

Although Munby J was dealing with a different type of application, the principle he pronounced in that case is unquestionably applicable in the circumstances under consideration tonight. In Re W (supra) Balcombe LJ observed at page 88:

“If the court’s powers are to be meaningful, there must come a point in which the court, while not disregarding the child’s wishes, can override them in the child’s own best interests, objectively considered. Clearly such a point will have come if the child is seeking to refuse treatment in circumstances which would in all probability lead to the death of the child or to severe permanent injury”.

In this case, balancing the competing factors, I have no hesitation in concluding that the balance comes down firmly in favour of overriding P’s wishes. I recognise that this is not to be taken lightly. The wishes of a young person aged seventeen and a half are important. They are, of course, entitled to be taken into account as part of her Article 8 rights under ECHR. On the other hand, those rights are not absolute. Here, they are outweighed by her rights under Article 2 – everyone’s right to life shall be protected by law. The court is under a positive or operational duty arising from Article 2 to take preventative measures to protect an individual whose life is at risk: Osman v UK [1998] 29 EHRR 245: Rabone v Pennine Care NHS Foundation Trust [UKSC 2]; A NHS Trust v Dr A [2013] EWHC 2273 (Fam).

In those circumstances, this court is under a heavy duty to take what steps it can to protect P’s life which is manifestly in danger tonight. Accordingly, I have made an order including a declaration that it is lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the effects of her overdose notwithstanding the fact that she is refusing treatment.

Furthermore, it is conceivable that in the course of this life-sustaining treatment it may be necessary to sedate or restrain P. I very much hope that this will not be necessary. But if it is, I declare that such steps be lawful, notwithstanding the fact that they amount to a deprivation of liberty.

In reaching this decision, I repeat that I have taken account of P’s wishes and feelings. The urgency of the situation requires me to make the order without speaking directly to P herself. Every minute that passed increased the risk, and accordingly I informed the trust’s solicitor that I would make the order so that treatment could be continued before the order was drawn up and before this judgment was prepared. It is therefore possible that P may wish to apply to the court to vary or discharge this order later this morning. Accordingly, I will give appropriate directions to facilitate a hearing before the applications judge later this afternoon in the event that she wishes to make such an application, and I will ensure that this judgment is made available to the applications judge for that hearing. If no such application is made by P in the course of the day, the treatment will then continue to its completion after approximately 21 hours. Thereafter, I consider that both parties should have liberty to apply to vary or discharge the order including an application to extend it. It is not appropriate for this order to remain in force long term. Thus, I will order that it shall expire within 28 days, unless an application is made to extend it before that time has elapsed.