A Healthcare B NHS Trust v CC

This application concerns the Respondent, CC (‘CC’), aged 34. CC has psychiatric diagnoses of psychotic depression and a mixed personality disorder with marked dissocial and dependent traits, he is deaf and communicates via British Sign Language.

CC was diagnosed with type 1 diabetes mellitus at the age of 15 and he suffers from complex physical health issues caused by his chronically poor compliance with the required diabetic treatment. CC’s poor compliance has caused problems with his eyes, but more recently has resulted in renal failure requiring dialysis, and ultimately it is hoped a kidney transplant. It is clear that there is a complex interaction between CC’s mental disorder and his physical condition and thus physical health needs.

CC’s current non-compliance with dialysis treatment is thought by his responsible clinician, Dr H, to be a manifestation or symptom of his mental disorder. CC is described by Dr H as having ‘at best’ fluctuating capacity to make decisions about dialysis treatment.

When CC is physically well, he understands that he needs dialysis and expresses a clear and consistent wish to live, but at times of crisis he will refuse dialysis and admission to Y General Hospital (‘B NHS Trust’) for such treatment to be provided to him.

CC’s responsible clinician at A Healthcare and the nephrology team at B NHS Trust (who oversee CC’s dialysis care), as joint applicants, seek clarification from the Court that dialysis can be provided to CC under section 63 MHA 1983 as medical treatment within the meaning of section 145(4) MHA 1983.

The Applicants were represented before me by Ms Sutton of counsel, and CC through the Official Solicitor by Mr Lock QC. Mr Lock was instructed only shortly before the hearing and, as I explain below, he raised an issue which I considered required further submissions from both parties. I made the order sought under the inherent jurisdiction given the urgency of CC’s medical treatment, but reserved judgement so that I could deal with both issues together in a reasoned judgment.

I heard evidence, briefly, from Dr H, a consultant psychiatrist, and Dr I, a consultant nephrologist.

The following issues arise in the case;

Use of section 63 MHA 1983 to authorise dialysis is not straightforward. Dialysis is a treatment for end stage renal failure and this would not normally be treatment to alleviate or prevent a worsening of, or to treat the consequences of, a mental disorder. However, Dr H considers that CC’s need for dialysis is a consequence of his mental disorders.

A Healthcare and B NHS Trust have brought the matter to Court because Dr H accepts this is not a straightforward case, both because of the issue of whether the dialysis is a

The Applicants brought this matter to court in line with the guidance of Mr Justice Baker in A NHS Trust v A [2013] EWHC 2442 (Fam) at [80] that ‘In cases of uncertainty where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court’.

CC is originally from the Portsmouth area. He has 2 children from previous relationships and despite efforts of his Multi Disciplinary Team, and CC’s expressed wishes, he does not have contact with either child. He does however enjoy the benefit of contact with his parents and extended family. His parents support him being given dialysis.

CC came to the attention of social services following concerns from his mother regarding the management of his diabetes and self-neglect. He was admitted to Queen Alexandra Hospital in Portsmouth in August 2014 due to complications of diabetes where he was assessed for admission into Bluebell Ward at Springfield Hospital.

When CC started suffering from a deterioration in his mental health is unknown. The key dates can be summarised as follows:

CC is therefore currently detained under section 3 MHA 1983.

Dr H characterises the symptoms of CC’s mental disorders as follows: ‘The symptoms of [CC]’s psychotic depression are that he has sustained periods of very low mood which are accompanied by psychotic symptoms including hands signing in free space (which is a Deaf equivalent of hearing voices in a hearing person) and receiving command hallucinations from his dead grandmother. He has also had persecutory beliefs that people are trying to kill him or his family. When he is depressed he very significantly neglects his own wellbeing including by refusing treatment for his physical health problems.

CC continues to meet the criteria for detention under section 3 MHA 1983. In particular, Dr H notes that:

CC was admitted to A Healthcare on 11 May 2015 and his physical health was a significant problem. His diabetes was unstable with regular instances of significant hypoglycaemia as well as ongoing problems with an infected wound on his head and a UTI. Throughout his admission at A Healthcare CC has complied poorly with the physical healthcare treatment.

On 26 March 2019, CC complained of chest pain and was transferred to B NHS Trust where he was found to be anaemic and was given a blood transfusion. He was advised that he was in renal failure and required a kidney transplant. CC commenced renal replacement therapy by haemodialysis on 30 May 2019.

Since May 2019 CC’s compliance with dialysis has fluctuated significantly. There has been at least one occasion when he disconnected himself from the dialysis machine and a number of times he has refused to attend dialysis. In order to maintain a reasonably stable state CC needs to have dialysis three times a week for 4 hours on each occasion. In January 2020 his attendance for dialysis fell considerably.

Consideration has been given to move CC to peritoneal dialysis (PD). This is an operation that would allow the insertion of a catheter and then CC could have overnight dialysis which would be considerably less burdensome for him. A catheter was inserted on 24 December 2019 but unfortunately the exit site became infected, at least possibly through CC’s very poor self-care. On 26 January 2020 CC sustained hyperkaleamic paralysis from very high potassium levels, which was a result of refusal to attend some dialysis sessions. His condition led to loss of ability to use his limbs and a serious risk of death.

A second PD catheter was inserted on 12 February 2020 and it is hoped and intended to commence PD dialysis on 9 March 2020. However, it is critical to CC’s condition that haemodialysis continues, at an appropriate level, until the PD dialysis can commence otherwise CC will die.

CC requires 4 hours of dialysis 3 times a week (total of 12 hours), but despite agreeing to the necessary regime on 4 February 2020 he has since only accepted half the required amount (at best); namely 2 hours of treatment, 3 times a week (total of 6 hours). The likely cause of death if CC continues to refuse the necessary treatment would be hyperkalaemic cardiac arrest. The evidence was that if CC continued with the current sub-optimal level of dialysis he would probably die within 6 weeks.

In the past 9 ½ months of dialysis (from 30 May 2019 – 14 February 2020) only 56 of the 122 sessions were for the required 4 hours (46% compliance) and, most concerningly, from 9 November 2019 – 14 February 2020 only 2 of the 49 sessions

Less than 4 hours of dialysis is not enough to achieve the toxin removal required in the absence of residual kidney function and this is reflected by the life-threatening episodes of raised potassium levels in CC’s bloods which he has suffered. If CC refuses any treatment, the matter is even more urgent and he will die within 9-13 days.

The treating clinicians have drawn up a treatment plan to put in place if CC does refuse dialysis. This involves light restraint and, if necessary, sedation. The hope and intention is that this will only need to continue up to early March 2020 when PD can be commenced.

An assessment regarding CC’s capacity to conduct these proceedings was undertaken by Dr H on 18 February 2020 which concluded that he lacked capacity as he was unable to understand or retain the relevant information (section 3(1)(a)-(b) MCA 2005 applied) due to his personality disorder (section 2(1) MCA applied). In his report Dr H said;

However, the team at A Healthcare think that CC has fluctuating capacity. Dr H’s report said that when CC is stressed or physically unwell, particularly if he has gone several days without dialysis, he loses capacity to make decisions about dialysis (para 2.24). This illustrates the complicated interaction between CC’s physical and mental state.

It is relevant in this regard that Mr Maguire, a solicitor at MJC Law acting on behalf of the Official Solicitor, went to see CC on 19 February 2020 (the day before the hearing). He produced an Attendance Note, which strongly suggested that CC (at that time) had a good understanding of the purpose of dialysis and the reasons for having it. He was asked about what would happen if the dialysis stopped and the Attendance Note says;

CC was then asked about what would happen if he refused dialysis in the future, and he said;

It is also clear from the Attendance Note that CC does not wish to die, and he is not refusing dialysis in order to allow himself to die.

The arguments on the first issue turn on the interaction between the following sections; Section 63

There are two arguments raised by Mr Lock about whether or not the dialysis can be provided under section 63. The first turns on whether the dialysis is medical treatment, the purpose of which is to alleviate or prevent a worsening of a manifestation of the mental disorder (i.e. the wording of section 145(4)). This issue has been considered in a series of cases and I recently summarised the caselaw in JK v A Local Health Board [2019] EWHC 67 (Fam). I will simply set out that summary here;

Mr Lock argues that the treatment proposed, dialysis, is not treatment for a manifestation of CC’s mental disorder. Ms Sutton on the basis of the caselaw set out above and Dr H’s evidence, argues that the dialysis is treatment to alleviate one of the manifestations of CC’s mental disorder.

In my view this is a clear case of the treatment proposed, the dialysis, treating a manifestation of the mental disorder, namely personality disorder. The need for dialysis stems from CC’s self-neglect, including in regard to diet, which has led in whole or in part to his kidney failure. The reason his diabetes has resulted in kidney failure is to a

Mr Lock argues that for section 63 to apply, the primary purpose of the treatment must be to treat the mental disorder. He takes this from section 145(4) which refers to the “purpose” being to treat the disorder. However, I do not think that one can take from the words of section 145(4) a need to analyse a hierarchy of potential purposes of the treatment or causative links. It is in my view sufficient that a purpose of the proposed treatment is to alleviate a manifestation of the mental disorder. There is no suggestion in any of the caselaw that I have referred to above that the Court (or a clinician) has to go through the type of exercise Mr Lock proposes. It is therefore sufficient that the renal failure is a manifestation of the mental disorder.

However, this then brings one to the second argument on the power under section 63. Mr Lock argues that section 63 excludes treatment that falls within section 58. Section 58 covers the administration of medicine and it is accepted that the provision of any form of sedation would be medicine within section 58, even though Mr Lock agrees that the dialysis itself would not fall within the definition. The other conditions within section 58(1) are met.

He then goes on to argue that this means that under section 58(3) either the patient must consent to the medical treatment or the clinician must follow the procedure under section 58(3)(b) and (4), which includes the requirement to consult two other persons, one of whom is known as the second opinion doctor (SOAD).

Mr Lock relies on R (B) v S [2006] 1 WLR 810 where at [46] Lord Phillips said;

Mr Lock therefore argues that section 63 is inapplicable in this case, and the correct route for the Trust to go down is section 58 and the SOAD.

The whole issue of section 58 only came up just before the hearing, and I therefore gave both parties permission to file additional submissions in writing on the point. Ms Sutton in her written submissions argues that section 58 has no relevance in a case such as this. She points out that by section 62, section 58 is expressly excluded from cases where the treatment is immediately necessary to save life or to prevent serious deterioration of the patient’s condition. She says that the evidence shows beyond any doubt that the treatment is urgently needed and meets the section 62 threshold.

Further she argues that Mr Lock accepts that the dialysis itself does not fall within section 58 because it does not involve the giving of medicine. To the degree that Mr Lock is relying on the sedative (midazolam) as being medicine that is not being used to treat the mental disorder but rather to facilitate the treatment plan. The Trust would be in an unworkable situation by which part of the proposed treatment plan (the dialysis), would go by way of section 63 and another part (the sedation) would be under section 58. I note that this would also be the case with force feeding cases, which is the subject matter of much of the caselaw, because the feeding itself would not fall under section 58 but any sedation given would. It will often if not always be the case that any force feeding treatment plan will include the prospect of sedation. Therefore, Ms Sutton argues that in practice, section 63 would become largely if not wholly unworkable.

Finally, she argues that Mr Lock’s argument is contrary to binding authority. In B v Croydon Health Authority [1995] 1 All ER 863 the Court of Appeal was dealing with an argument about whether force feeding, via a nasal gastric tube, was treatment within section 63. The Court of Appeal found that it was treatment that fell within section 145 and therefore section 63. Ms Sutton relies on two passages in particular. Hoffman LJ at p.138E-G;

I raised with Mr Lock that if he was correct it would appear that a number of the previous decisions on section 63 must have been wrongly decided, because they would have involved, to a greater or lesser degree, the giving of medication. These cases include A NHS Trust v A [2013] EWHC 2442 (COP) where Baker J was considering the force feeding of an asylum seeker who was detained under section 3 MHA 1983. In that case, the Official Solicitor had submitted at [73] that Croydon, Brady, and Tameside (previous cases on the use of section 63) ‘taken together are authority for the proposition that the necessary feeding and associated measures in this case can be taken under the MHA’. The associated measures must have included sedation as needed. Mr Lock argued that the issue of section 58 was not addressed in those cases, and that it is not clear the degree to which the treatment in question would have required medication. It may be that in some of these cases the question of the use of section 58 rather than section 63 was not raised, but it is apparent from the passage of Neil LJ in

In my view, on this second issue under the MHA 1983 Mr Lock’s arguments are wrong and section 63 is the appropriate course. There is no doubt that in this case, as in most if not all the previous authorities, the treatment being proposed under section 63 is urgent, and in all those cases life-saving. The proposed dialysis for CC is plainly extremely urgent, and without it he will undoubtedly die. In those circumstances in my view the case plainly falls within section 62(1)(a) (b) and (c) and as such section 58 is excluded. In particular, in urgent treatment cases such as this, treatment is immediately necessary to save CC’s life, to prevent a serious deterioration of his condition and to alleviate serious suffering.

I also accept on the facts that Mr Lock’s analysis would make section 63 largely, if not wholly redundant, because in most if not all cases where section 63 is relied upon, the treatment will involve some use of medication, often sedation. It makes no sense of the statute for sedation to be dealt with under one statutory route and other forms of treatment to be dealt with by a wholly different one.

I do accept Mr Lock’s point that considerable care needs to be taken in the use of section 63 if it is not to become a way of treating detained mental patients, with or without capacity, without their consent. However, the safeguard that is in place is the requirement set out by Baker J in NHS Trust v A at [80] that in cases of uncertainty, the appropriate course is to apply to the Court.

The alternative basis upon which A Healthcare and B NHS Trust put their case is that CC has fluctuating capacity to consent to dialysis and the Court should make a contingent declaration pursuant to section 15(1)(c) MCA 2005 that it is lawful to treat CC in accordance with the proposed dialysis treatment plan in the event that he lacks capacity to make the relevant decision.

I have no doubt on the evidence that CC does have fluctuating capacity. Mr Maguire’s statement and Attendance Note indicates strongly that when Mr Maguire saw CC on 19 February 2020 he understood the benefits of dialysis and understood the consequences of not having it, i.e. that he would die. He could understand and process the information and the Attendance Note points clearly to CC having capacity on that day.

However, the evidence both from Dr H and Dr I points equally clearly to a conclusion that when CC is agitated or upset and starts to refuse dialysis, his mental state becomes very poor, and when he refuses dialysis, he does not have capacity. I emphasise that this is not a case of CC simply making a poor decision with which the Court and the health professionals do not agree. Mr Maguire’s Attendance Note and Dr H’s evidence are both clear, that when well CC does not wish to die and wishes to have dialysis. His change of position is a function of his mental state worsening, and that in turn is a function at least in part of him refusing dialysis. I therefore find that when CC refuses dialysis he does lack capacity.

It is not possible or practical for A Healthcare and / or B NHS Trust to come to Court at each point when CC has lost capacity to seek a declaration that giving him dialysis,

In those circumstances A Healthcare and B NHS Trust ask that I make a contingent declaration. The Applicants rely on the recent decision of Hayden J in GSTT and SLAM v R [2020] EWCOP 4. In that case Hayden J was dealing with woman who was 39 weeks pregnant, and at the time of the hearing had capacity in relation to her obstetric care. She was adamant that she did not want a caesarean section. However, she suffered from bipolar disorder and was detained under section 3 MHA 1983. With considerable reluctance Hayden J made a declaration under section 15 MCA 2005 that if the woman lost capacity it was lawful for the Trust to deliver her obstetric care even if it did not accord with her clearly stated, and at the point of the application, capacitous wishes.

Hayden J was very careful to explain that he was only making this type of contingent declaration because of the particular facts of the case, see [57]. In particular, he pointed out that women did quite frequently change their view on what obstetric interventions they wished for once labour began. But because the woman here would not have that opportunity, because she was likely to lose capacity, the judge needed to ensure that her range of obstetric options were not closed down when she went into labour. It was in those circumstances that he was prepared to make the contingent declaration under section 15 MCA 2005.

In some ways this case is more straightforward. CC currently has capacity and is clear that he wants to have dialysis; that he does not want to die; and that he wishes to continue to have dialysis if he loses capacity. This is therefore in practice akin to an advance decision under section 24 MCA 2005, albeit that he has not gone through the formal processes of an advance decision contained in section 25 MCA 2005 and it is an advance decision to accept treatment not refuse it. It is in those circumstances relatively easy to declare that if CC loses capacity in respect of a decision about dialysis, then it is in his best interests to have dialysis in accordance with the care and treatment plan proposed. Such a declaration undoubtedly accords with CC’s wishes and feelings, both because he has said so when he has capacity, but also because he is clear that he wants to live, and if he does not have dialysis then at some point he will die very prematurely.

By reason of the above, the Court finds that: