Section 63 Mental Health Act 1983 and the overdosing patient

P v an NHS Foundation Hospital [2014] EWHC 1650 (Fam)

P was a 17½-year-old girl. She had a history of self-harming behaviour and had been known to the local CAMHS team for some time. She had recently been detained under section 2 MHA 1983 but was discharged approximately one week before presenting at hospital having taken a paracetamol overdose earlier that day. She refused the antidote. Her mother was called to hospital and gave her consent for treatment but the Trust was reluctant to administer treatment without gaining a court order. By late evening, the situation had reached a crisis, as the window for delivering the antidote was closing. An out of hours application was made to the High Court to allow treatment against P’s wishes and to sedate/restrain her as required.

The Trust contended that P lacked capacity to decide as to her medical treatment. Mr Justice Baker, who heard the case, was not satisfied that P lacked capacity to refuse the antidote. However, because P was (just) under 18, he held that he was entitled to override her wishes (as important as they were) because he was required to have P’s welfare as his paramount consideration. He was therefore entitled to consider the fact that P would probably die without the antidote, and the balance came down in favour of overriding her wishes.

As P was not detained under the MHA 1983 at the time of her admission (and no consideration appears to have been given to detaining her), section 63 MHA 1983 did not apply. However, the case indicates the stark dividing line between those who are below 18 (even if only just) and those who are adults. Had the case been decided by reference to the MCA 2005, then P’s refusal to consent would have been determinative given that Baker J was not satisfied that the treating Trust had established that P lacked capacity. The case also indicates how important it is that applications are made to the court in cases where it is clear that the consequence of abiding by a child’s wishes will be likely to lead to their death.

An NHS Trust v Dr A [2013] EWCOP 2442

Whilst this case does not concern an overdose, it is significant because it contains a detailed examination of the scope of section 63 MHA 1983 in the context of life-sustaining treatment.

An Iranian doctor, Dr A, went on hunger strike to recover his passport which had been confiscated by the UK Border Agency following his failed claims for asylum. He was subject to detention under the MHA 1983, which was then subsequently rescinded. A naso-gastric tube was also inserted, but Dr A removed it, resisting attempts to have it reinserted. The treating Trust sought declarations that Dr A lacked capacity to make decisions in respect of his nutrition and hydration and that it was lawful to administer feeding through a naso-gastric tube. The case came before Mr Justice Baker, who held that Dr A lacked capacity to make decision about his feeding, and that it was in his best interests for him to be provided with feeding through a naso-gastric tube.

The difficulty that then arose was that Dr A was, by the time that the matter was finally heard, detained again under the MHA 1983. However, Dr A’s treating psychiatrist did not think that force feeding was treatment within the meaning of section 63 MHA 1983. She took the view that, whilst it would undoubtedly keep him alive, it was not treatment for his mental disorder (as might have been the case were he suffering from anorexia, for example). Baker J agreed, holding that, in the case before him, force feeding was treatment for a physical disorder that arose from Dr A’s decision not to eat and drink, notwithstanding that the decision to refuse food was affected by his mental disorder. The physical condition was therefore in part a consequence of Dr A’s mental disorder, but not obviously either a manifestation or a symptom of it. Baker J therefore concluded that it could not be authorised under the MHA 1983.

Nor could Dr A be treated under the MCA 2005 because his force-feeding would inevitably involve a deprivation of his liberty; because of the Byzantine operation of the eligibility provisions in the ‘DOLS regime’ under Schedule A1 to the MCA 2005, such a deprivation of liberty could not be authorised under the MCA 2005 because he was detained under the MHA 1983.

Baker J did not, however, leave matters there. Rather, he held that he could (and would) make a declaration and order under the inherent jurisdiction of the High Court to allow the force-feeding of Dr A (and the related deprivation of his liberty).

Importantly, Baker J made it clear that wherever there is any doubt as to whether or not the provision of artificial nutrition and hydration represents treatment for the mental disorder suffered by the patient, an application to court for a declaration should be made. He also made it clear that courts should be reluctant to extend the scope of section 63 MHA 1983 so as to solve otherwise complicated jurisdictional difficulties.

Nottinghamshire NHS Trust v RC [2014] EWCOP 1317

RC was 23. He was diagnosed with a personality disorder. In August 2013, he embraced the Jehovah’s Witness faith while in prison. On 1 February 2014, RC self-harmed by opening his brachial artery. He survived this incident. RC was then transferred to a secure psychiatric hospital under the MHA 1983, where he continued to seek to self-harm. On 4 April 2014, RC made an advance decision refusing blood products, and his self-harm attempts continued.

This left his psychiatrist in the position where she – potentially – had the power under section 63 MHA 1983 to impose a blood transfusion, which could save RC’s life, but that she would be using those powers to override wishes she believed to be capacitous. Properly, but unsurprisingly, she found herself in an ethical dilemma.

A declaration was therefore sought from the High Court that it was lawful for the psychiatrist not to use her power under section 63 MHA 1983. Mostyn J, whilst expressing some reservations about the apparent width of section 63, held that on the facts of the case, RC’s self-harm was a manifestation of his underlying personality disorder, a consequence of the self-harm was bleeding, and hence that providing a blood transfusion could in principle fall within the scope of section 63 MHA 1983. Mostyn J also found that RC had full capacity to refuse the administration of blood products and his advance decision would be operative, if he lost capacity.

In the circumstances, Mostyn J held that it would be ‘an abuse of power’ even to think about imposing a blood transfusion on RC, and that this would be a denial of a ‘most basic freedom’. He therefore declared that the decision of the treating psychiatrist not to impose treatment under section 63 MHA 1983 was lawful.

Mostyn J observed that, where the approved clinician for a patient makes a decision not to impose treatment under section 63 MHA 1983, and where the consequences of that decision may prove to be life-threatening, then the NHS Trust in question would be ‘well advised’ to apply to the High Court for declaratory relief. This fell short of a finding that Trusts have to apply, but is nonetheless a very clear judicial steer. It is particularly important given that the decision to invoke section 63 MHA 1983 is capable of being challenged by way of judicial review if the patient is dissatisfied, and that the level of scrutiny of the decision is likely to be intense in any such judicial review.

The case is also significant for the weight placed upon the advance decision made by RC even in the face of the power available to the clinicians under section 63 MHA 1983, and therefore stands as a reminder of the importance of ensuring that (if at all possible) clinicians take step to make themselves aware of any relevant advance decision before commencing forced treatment.