England and Wales Court of Protection Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
AND
IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand London WC2A 2LL
		9th April 2014

MR JUSTICE HOLMAN:

1. This is an urgent without notice application which has been made to me late this afternoon in my capacity both as a judge of the High Court and also as a judge of the Court of Protection. I have heard this application from first to last in public. I arranged during the course of the hearing for representatives of the media to attend, if they wished to do so, and one is now present. I give this judgment publicly and it may be freely reported.
2. The application is made by an NHS Trust which appears to be the Trust responsible for a certain psychiatric hospital. The respondent to the application is a young male adult, now aged 23. He appears to have had a difficult background and upbringing since I am told that he spent the majority of his childhood in care. There is a statement signed and dated today by a consultant psychiatrist at the psychiatric hospital in which, as I will describe, he is currently compulsorily detained. That statement says that he suffers from "a severe personality disorder". A symptom of his disorder is that "he engages in significant self-harm through self-laceration and bloodletting, most recently by opening his brachial artery". As I understand it, it is not the opinion of the treating psychiatrist that he suffers from any kind of delusions or delusional disorder. His intelligence is within the range of normal and he appears (although this may require further exploration) to have capacity both to make decisions with regard to his medical treatment and also to instruct lawyers to conduct litigation on his behalf.
3. As a result of his medical disorder he has a history of compulsory detention under the Mental Health Act. Unfortunately, in 2012 whilst thus detained he committed an offence upon a staff member, as a result of which he was convicted and sentenced to five years' imprisonment. Recently he has been detained in prison serving that sentence. However, in the last two months or so he has once again been seriously self-harming whilst in prison. I have been told in a case summary prepared for this hearing by Miss Bridget Dolan, counsel who appears on behalf of the NHS Trust, that he "has a long history of significant and repeated self-harming behaviour. His self-harm includes self-strangulation with ligatures and plastic bags, burning himself, and self-injury, including head-butting and self-laceration. He frequently re-opens wounds to aggravate an existing injury and cause further damage and blood loss."
4. Another aspect of this case is that, because of some history of thrombosis, he is prescribed the anti-coagulant, Warfarin, which has the effect that when he does bleed, he bleeds more profusely than he might otherwise do. Another aspect of the case is that his parents are of the Jehovah's Witness faith. I understand (although this may later be corrected) that for an appreciable period of time he did not himself profess that faith, but in the last few months he has apparently embraced it and now professes and adheres to the tenets of that particular faith. I have been told in counsel's case summary that "He has stated that he now practises his religion by praying, reading the bible and reading The Watch Tower magazine. He reports that his religion is important in his life. He remains in contact with his father, who supports him in his faith." As is widely known, a tenet of the faith of Jehovah's Witnesses is a prohibition on receiving by transfusion blood or blood products.
5. According to counsel's case summary, "On 1 February 2014 when in prison he seriously cut his right arm, opening his brachial artery at the antecubital fossa with a razor blade. He had significant blood loss and his haemoglobin fell to an extremely life-threatening level. He was admitted to intensive care and a blood transfusion was advised. He refused blood products on the basis of his Jehovah's Witness faith. The treating hospital abided by his expressed wish, believing it to be capably stated." Happily, he in fact survived that event without any blood being transfused.
6. There were further incidents of self-harm and attempting to tear open his earlier wounds during the course of February 2014. So it was that on 12 March 2014 he was transferred from the prison where he was being detained to the psychiatric hospital in which he is now compulsorily detained by virtue of the provisions of sections 47-49 of the Mental Health Act 1983. Between 13 and 18 March 2014, at that hospital, he had to be placed in a form of severe mechanical restraint, effectively pinning his arms to the sides of his body, so as to prevent him from using his hands to self-harm. When that restraint was loosened on 18 March 2014, he once again began tampering with his wound, although only in a relatively minor way. He again re-opened his healing wound on 31 March 2014 and was again placed in a restraint belt for 24 hours.
7. On 4 April 2014 he signed a document which is in the following terms:

"Advance decision to refuse specified medical treatment

I [his name is inserted] born on [his date of birth is inserted] complete this document to set forth my treatment instructions in the case of my incapacity. I am a Jehovah's Witness and direct that no transfusions of blood or primary blood components (red cells, white cells, plasma or platelets) be administered to me in any circumstances, even if my life is at risk. I am prepared to accept diagnostic procedures, such as blood samples for testing."

The document is then signed with what I presume to be his signature and dated "4/4/14" and witnessed by the signature of a named witness bearing the same date, "4/4/14".

8. Yesterday evening, 8 April 2014, he stated that he wanted to get his artery to bleed and began picking again at his wound, despite being under constant observation by staff. He was therefore once again placed in a restraint belt to prevent damage to his artery. According to counsel's note, "When asked about the reason for his self-harming, he has described feeling intense emotions which he can only dampen down by self-harm. Although at times in the past he has said he wishes to die, he does not express any wish to die at the present time. The motivation for his self-harm does not appear to his responsible clinician to be to bring about his death." This desperately sad situation raises a number of legal and ethical issues and difficulties as a result of which the NHS Trust responsible for the psychiatric hospital in which he is compulsorily detained now make the present application.
9. The application essentially has two limbs. The first limb is of itself relatively straightforward. They seek a declaration from the court pursuant to section 26(4) of the Mental Capacity Act 2005 that the written advance decision, to which I have referred and which I have quoted, exists, is valid, and is applicable to the treatment described in that decision. I have been taken through and given very careful consideration to the provisions of sections 24, 25 and 26 of the Mental Capacity Act 2005, which make statutory provision for an advance decision and its legal effect. At this late hour (5.45 pm) of this day I do not think it is necessary to prolong this judgment (when counsel and the solicitor in the courtroom have much to do when they leave court) by setting out any of the provisions of sections 24-26. It is right that I should record one respect in which it is not absolutely clear on the evidence before me that the written advance decision is one to which those provisions apply. Section 25(5) and (6) of the Mental Capacity Act 2005 provide that an advance decision is not applicable to life-sustaining treatment (which a blood transfusion would plainly be) unless, amongst other matters, it is witnessed in the presence of the maker and the maker and the witness each sign it in the presence of the other. As I have said, the advance decision in this case is purportedly signed by the patient himself and dated 4/4/14. It also clearly purports to be witnessed by a witness who has also dated it 4/4/14, but it does not say on its face that it was signed by the maker and the witness in the presence of each other. In view of the fact, however, that both signatures bear a date 4/4/14 and that the document was clearly prepared in order to constitute an advance decision for the purposes of those provisions of the Mental Capacity Act 2005, I will, for the purposes of the present hearing and interim order, make an assumption on the balance of probability that the maker did indeed sign it in the presence of the witness and the witness signed it in the presence of the maker himself.
10. In all other respects, it appears to me that this is clearly an advance decision which was made with capacity and is valid within the meaning of, and for the purposes of, those provisions, and is also one which is applicable to the treatment described in the advance decision, namely a treatment which is transfusions into him of blood or primary blood components (red cells, white cells, plasma or platelets). I am therefore willing to declare on an interim basis that that written advance decision is valid and is applicable to that treatment, not withstanding that (a) his life may be at risk from the refusal of treatment, and (b) he is a patient detained under the Mental Health Acts.
11. The second limb of the application relates to the interrelation between those provisions of the Mental Capacity Act 2005 in relation to advance decisions to refuse treatment, and the applicability in this particular case of section 63 of the Mental Health Act 1983. That provides as follows:

"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering…if the treatment is given by or under the direction of the approved clinician in charge of the treatment."

12. There appears to be clear authority, and in particular the decision of the Court of Appeal in B v Croydon Health Authority [1995] Fam 133, to the effect that the expression "medical treatment given to him for the mental disorder from which he is suffering" is wide enough to extend to medical treatment for physical conditions caused or arising as a result of the underlying mental disorder. Thus if a detained patient suffers from the mental disorder of anorexia, it may be lawful to force-feed that patient as part of "medical treatment given to him for the mental disorder from which he is suffering." If a detained patient cuts himself as a result of a self-harming mental disorder, then it may be lawful under that section to treat and stitch up the cuts. It is little or no extension of that approach that if, as a result of the mental disorder from which he is suffering, a patient cuts himself and bleeds so profusely that he needs a blood transfusion, it is part of the "medical treatment…for the mental disorder from which he is suffering" to give a medically necessary blood transfusion. So the question arises in this tragic situation, on the particular facts of this case (he being a detained mental patient), as to the interrelation between the provisions of the Mental Capacity Act 2005 in relation to advance decisions and the power under section 63 of the Mental Health Act 1983 to give medical treatment notwithstanding the absence of a consent.
13. The dilemma is very well expressed in the statement by the treating psychiatrist, who says,

"I am…aware…that because [the patient] is a detained patient under section 63 of the Mental Health Act I have a power, as his responsible clinician, to override even a capable refusal of medical treatment [viz the advance decision] where that treatment is for the consequences of his mental disorder. It is my opinion that his self-harming behaviour that gives rise to the need for blood products is a direct consequence of his mental disorder and that hence I could use section 63 powers to enforce treatment with blood products upon him despite his capacitous refusal. I have some ethical difficulty in using the Mental Health Act to override a capacitous patient's wishes based on religious wishes and I would not choose to use my Mental Health Act powers to override his advance decision."

14. Pausing there, it can at once be seen why I said earlier in this judgment that this case raises ethical issues, for there is the treating doctor herself saying that she professionally feels "some ethical difficulty" in overriding his advance decision even though she has a power to do so under section 63 of the Mental Health Act 1983 and even though he might otherwise die. She continues in her statement:

"However, because of the significant consequences of abiding by his advance decision, which could result in his death, I seek a declaration from the Court as to (1) whether the advance decision is valid and applicable (on taking account of the context that he is refusing life-saving treatment for self-harm which is medicated through his mental disorder) and, if so, (2) whether in coming to my view that blood products should not be enforced upon him in the light of a valid and applicable advance decision, I have correctly struck the balance between the right to freedom of religion and the Article 2 right to life of a detained patient."

15. I must stress at once that it is never the business of a court in these sorts of situations to make any kind of ethical decision. That is a matter for doctors alone, applying such guidance, if any, as they can obtain from their professional medical bodies. All the court can do is state the applicable law and, where appropriate, apply it in the form of a legal, though not necessarily an ethical, decision.
16. The passage that I have just quoted from the statement of the psychiatrist very clearly highlights the terrible dilemma in this case. On the one hand, this young adult has made a clear advance decision, whilst apparently having capacity to do so, that, because of his religious beliefs, he utterly refuses consent and positively directs that he should not be transfused with blood or blood products. On the other hand, he is compulsorily detained, both as a prisoner and now in a psychiatric hospital, where, so far as possible and lawful, the state is under obvious duties to protect him, as the consultant psychiatrist identified in the above passage. He has a right to life under Article 2 of the European Convention on Human Rights; but, under other articles of that Convention, he has a right to freedom of religion and a right to respect for his private life, which includes his own bodily integrity.
17. I have been asked today to make an interim declaration that "it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983." That is not a declaration which I feel equipped or am willing to make after a hearing of this kind in which I have heard representations from only one side and which is not on notice to the patient or any other person. It is of the essence of the application to the court that this is an issue of very considerable difficulty. Precisely because it is one of such difficulty, it is not one upon which the court can judicially and responsibly rule without hearing and considering so far as possible the arguments on both sides of the issue.
18. I appreciate that that may leave the NHS Trust and the consultant psychiatrist in a position of some uncertainty at the moment. It leaves them without the protection of the declaration or imprimatur of the court that they seek but, frankly, a declaration of the court is not worth the paper that it is written on unless it is securely founded on due consideration after hearing argument on both sides of an issue such as this.
19. My order this evening will, therefore, essentially be limited to one to the effect that the written advance decision is valid and applicable, as I have indicated. I propose to list a further hearing tomorrow afternoon. I have already made a preliminary inquiry of the Official Solicitor and I propose earnestly to request him to attend tomorrow afternoon so as to consider what role the Official Solicitor may, with his consent, be able to fulfil in this case. In parallel with that, the NHS Trust must use their best endeavours to facilitate and promote that the patient himself (whom I am currently assuming to be capacitous) is directly represented at the hearing tomorrow. I ask the Trust also to ensure that the patient's father is informed of the hearing tomorrow and given every encouragement to attend.
20. The continuing dilemma for the court is that, unless somebody such as the Official Solicitor engages in this case, there may be no contrary argument. The present position of the patient seems to be that he utterly refuses to consent to a transfusion even if that has the effect of his dying as a result of his self-harming acts (even if those acts are not themselves done with suicidal intent). The position at the moment of the consulting psychiatrist, and therefore of the Trust, is that, notwithstanding the power under section 63, they should not in fact exercise it. Thus, the present position seems to be that if the physical restraints are removed and he is able again to cause profuse bleeding, he may die, whether he intends to bring about his death or not. If there is a contrary argument that the power under section 63 should be positively exercised in circumstances such as this, then it will be very important indeed for the court to hear it.
21. For those reasons this evening I will make an order in the terms already announced.