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Cite as: B v Croydon Health Authority 1994, CA: Force-Feeding the Hunger-Striker under the Mental Health Act 1983

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B v Croydon Health Authority 1994, CA: Force-Feeding the Hunger-Striker under the Mental Health Act 1983.

Kirsty Keywood

Lecturer in Law, University of Liverpool
< jaje@liverpool.ac.uk>

Copyright © 1995 Kirsty Keywood.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary.

Judgments declaring the legality of force-feeding under the Mental Health Act 1983 had previously been made by courts of first instance (eg Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144; South West Hertfordshire Health Authority v Brady [1994] Med L Rev 208). B v Croydon Health Authority [1995] 1 All ER 683 gave the Court of Appeal the opportunity to review the substantive issues relating to the legality of force-feeding under the Mental Health Act. This casenote assesses the validity of the ruling that force-feeding under the Mental Health Act 1983, s 63 is lawful and analyses the implications of the decision for hunger-strikers in other contexts.

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Contents
The Facts
The Judgment: Did Tube-Feeding Constitute a Medicine under the Mental Health Act 1983, s 58?; Did Tube-Feeding Constitute Treatment for B's Mental Disorder under the Mental Health Act 1983, s 63?; The Question of B's Capacity to Refuse Tube-Feeding
Analysis: Treatment for Mental Disorder Includes Treatment of Symptoms; Additional Safeguards for Tube-Feeding?; Capacity to Refuse Tube Feeding; The Politics of Hunger Striking

The Facts.

The appellant, B, was suffering from a borderline personality disorder coupled with post-traumatic stress disorder and had an irresistible desire to inflict-self-harm. The only treatment for her condition was psychoanalytic psychotherapy. On 18th January 1993 B was admitted to hospital under the Mental Health Act 1983, s 3 which permits compulsory admission for treatment. Whilst subject to such detention her desire to cause self-harm found a new outlet - B began to refuse food and her weight dropped to a dangerously low level. She was given three sessions of psychotherapy in the summer of 1993, but this was withdrawn because the Health Authority felt that B ought to gain weight before resuming therapy and because the psychotherapist was leaving. B did regain some weight under threat of feeding by naso-gastric tube. In May 1994 her weight plummeted and once more tube-feeding was threatened.

In June 1994 B sought an injunction to restrain Croydon Health Authority from feeding her by naso-gastric tube without her consent. The judge granted the order which continued in force until a full hearing could take place. At the full hearing Thorpe J dismissed B's application for an injunction. At the time of the full hearing, B had again started to eat under threat of force-feeding. Both parties nevertheless sought clarification as to the legality of any future attempts to tube-feed B without her consent. Thorpe J held that tube-feeding did constitute treatment for B's mental disorder within the meaning of the Mental Health Act, s 63, so that B could have been fed by naso-gastric tube notwithstanding her refusal to the treatment. B appealed against the judgment. The respondent Health Authority cross-appealed, seeking a declaration that B did not in fact have legal capacity to refuse tube-feeding.

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The Judgment.

Lord Justice Hoffmann gave the leading judgment, with which their Lordships Lord Justices Henry and Neill agreed. The court considered whether tube-feeding constituted a medicine within the meaning of the Mental Health Act 1983, s 58 and further whether tube-feeding was medical treatment for B's mental disorder within the meaning of s 63 of the Act.

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Did Tube-Feeding Constitute a Medicine under the Mental Health Act 1983, s 58?

Counsel for the appellant argued that tube-feeding was a medicine within the meaning of s 58 of the Act and could not therefore be administered to the competent patient without her consent. This section requires that the provision of specified medical treatments (including the administration of medicines) is dependant on the patient giving valid consent to the proposed treatment, or certification by a registered medical practitioner that the treatment should be given. It applies, inter alia, to 'the administration of medicine to a patient by any means...at any time during a period for which he is liable to be detained as a patient to which this Part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder' (s 58(1)(b)). Counsel's argument was not accepted by their Lordships who felt that the crucial factor in defining a substance as a medicine was its chemical composition. The manner of its administration ie. whether by tube or other means, is irrelevant to the determination of a substance as a medicine. Since food is not a medicine within the meaning of s 58, the patient's consent is not required before treatment can be administered. B could therefore be treated, notwithstanding her refusal to the tube-feeding.

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Did Tube-Feeding Constitute Treatment for B's Mental Disorder under the Mental Health Act 1983, s 63?

It was submitted by Counsel for the appellant that the treatment provided by the Health Authority (ie. tube- feeding) was not treatment for B's mental disorder as required by s 63. This section allows the administration of medical treatment for the patient's mental disorder without the consent of the patient, for treatments not covered by s 57 and s 58 of the Act. Since it had already been established that the only treatment for B's disorder was psychoanalytic psychotherapy, it was argued that tube-feeding was at best treatment for the symptoms of the disorder, but not the disorder itself. To reinforce the submission, Counsel reminded the court that the Mental Health Act, s 3(2)(b), which permits compulsory detention for treatment of patients with psychopathic disorder, requires that the proposed medical treatment must be likely to alleviate or prevent a deterioration in the patient's condition and be necessary for the health or safety of the patient or for the protection of others that he receive such treatment. Unless the proposed treatment satisfies s 3, the very detention of the appellant would be unlawful. Their Lordships found this analysis to be too 'atomistic' and held that a broader view had to be taken of the term 'medical treatment for mental disorder' in s 63. Reference was made to s 145 of the 1983 Act, which defines medical treatment as including inter alia nursing, habilitation and rehabilitation. It was held therefore, that treatments which were ancillary to the core treatment did fall within the definition of medical treatment. In considering whether medical treatment satisfies the requirements of s 3, regard must be had to the treatment as a whole, and not to each individual element of the treatment. On this analysis, therefore, feeding by naso-gastric tube did constitute a treatment for mental disorder within the meaning of s 63, as it complemented the core treatment of psychotherapy. Their Lordships did advise, however, that without the existence of a core treatment, tube-feeding would have itself been unlawful, as would the very detention of the appellant.

It was accepted by their Lordships that the Mental Health Act 1983, s 62 also justified this conclusion. This section permits the administration of certain forms of treatment specified in s 57 and s 58 (eg surgical operation for destroying brain tissue; the administration of electro-convulsive therapy) in situations of emergency, without adherence to the normal requirements of s 57 (ie. patient consent) and s 58 (ie. patient's consent or a second opinion) of the 1983 Act. It was held that such emergencies are likely to be caused by the symptoms of the patient's disorder, rather than the disorder per se. Since s 62 is concerned only with urgent medical treatments, medical treatments performed in ordinary circumstances under s 57 and s 58 also include treatment of the symptoms as well as the mental disorder. Once again, treatment for the symptoms of a mental disorder cannot be dissociated from the treatment for the cause.

Finally, given that s 63 comprised no conceptual vagueness, there was no violation of the right to respect for one's private life under Article 8 of the European Convention on Human Rights. According to their Lordships the limitations placed on a person's private life by s 63 (ie. the power to tube-feed the patient) were "sufficiently precise to enable the individual to foresee its consequences for him" (at 688) and did not therefore violate Article 8 of the Convention. In other words, the meaning of 'treatment for mental disorder' in s 63 as comprising treatment of the symptoms of the disorder as well as its underlying cause, was sufficiently clear to avoid violation of the right to respect for one's private life.

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The Question of B's Capacity to Refuse Tube- Feeding.

Their Lordships declined to rule on the question of whether B lacked capacity to refuse naso-gastric tube- feeding, as the patient could be tube-fed in future under s 63, notwithstanding her legal capacity to refuse such treatment. Lord Justices Hoffmann and Neill did express concern, however, as to the trial judge's finding that B was competent to refuse treatment. It was suggested by Lord Justice Hoffmann that B had been unable to exercise a true choice in refusing to eat. This concern sprang from the fact that B's evidence suggested that she had not been aware of the seriousness of her condition and that she had found it extremely difficult to break the cycle of self-punishment that she found herself in. Despite these concerns, their Lordships did not make a decision on this issue.

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Analysis.

It had already been established in Airedale NHS Trust v Bland [1993] AC 789, HL that naso- gastric feeding constituted a form of 'medical treatment' and the Court of Appeal had previously ruled on the legality of issuing an interim declaration on the force-feeding an anorexic patient under the Mental Health Act (Riverside Mental Health Trust v Fox [1994] Med L Rev 95). B v Croydon Health Authority is significant, however, as it has given the Court of Appeal the opportunity to consider the substantive issues relating to the legality of force-feeding under the Mental Health Act. A number of issues in the judgement warrant further consideration.

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Treatment for Mental Disorder Includes Treatment of Symptoms.

The Court's finding that treatment for mental disorder under s 63 includes treatment for the symptoms of that disorder, is not surprising. Leaving aside the question of whether various forms of hunger-striking should fall within the legal definition of mental disorder in the Mental Health Act (see later), it is surely right that medical practitioners have the power to treat the manifestations of mental disorders under s 63, as well as the underlying cause. Lord Justice Hoffmann's analogy is particularly striking here:

It would seem strange to me if a hospital could, without the patient's consent, give him treatment directed to alleviating a psychopathic disorder showing itself in suicidal tendencies, but not without such consent be able to treat the consequences of a suicide attempt." (at 688)

Without the ability to treat symptoms of the disorder, it has been claimed that the ability to treat the mental disorder may become ever more difficult (South West Hertfordshire Health Authority v Brady [1994] Med L Rev 208). There are dangers, however, in the treatment of particular symptoms and the methods of treatment employed. The treatment of naso-gastric tube-feeding for patients with anorexia nervosa is particularly problematic. It has been argued that the non-consensual tube-feeding of anorexics destroys the relationship of trust between patient and practitioner and jeopardises the patient's prospects of long-term recovery (Dresser, 1984). There are also physical risks attached to tube-feeding, eg. pneumonia and over- hydration. If one is to accept the initial premise that treatment for mental disorders should include treatment for symptoms, and further that tube-feeding as a form of medical treatment for symptoms is somewhat hazardous, there may be a strong argument for demanding additional safeguards before this form of medical treatment is employed.

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Additional Safeguards for Tube-Feeding?

The Mental Health Act 1983, s 63 permits the medical treatment for mental disorder (and its symptoms) without the consent of the patient. Where treatments are irreversible or particularly hazardous, they are taken outside the scope of s 63 and demand additional safeguards before treatment can be administered. Section 57 of the Act, which permits surgical operations for the destruction of brain tissue and the surgical implantation of hormones (Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983, SI 1983 No. 893), requires the consent of the patient and a second opinion by a registered medical practitioner. Section 58 of the 1983 Act permits the administration of medicine for a period in excess of three months, or electro-convulsive therapy, but requires either the patient's prior consent or a second medical opinion. Given that the administration of tube-feeding is not without controversy or medical contra-indications, additional safeguards in the form of a second medical opinion and/or the prior consent of the patient may be desirable (Fennell 1995). It is submitted that the consent of the competent patient should be required before tube-feeding is administered to treat the symptoms of a patient's mental disorder. In the case of the incompetent patient, it is suggested that adequate safeguards could take the form of a second medical opinion.

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Capacity to Refuse Tube- Feeding.

It is suggested that the Court's refusal to reach a decision on B's capacity to refuse tube-feeding is prudent. Although there may well have been doubts as to her capacity to refuse treatment at the time tube-feeding was threatened, it must be remembered that B's competence was assessed by the court after the threat of tube- feeding had been averted. A valid assessment of B's competence would have to take place at the time of her refusal of tube-feeding.

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The Politics of Hunger Striking.

Lord Justice Hoffmann acknowledged the fundamental right of a competent patient to self-determination:

The general law is that an adult person of full mental capacity has the right to choose whether to eat or not. Even if the refusal to eat is tantamount to suicide, as in the case of a hunger strike, he cannot be compelled to eat or forcibly fed."

Patient autonomy is subject to limitations, however. The treatment decisions of the competent pregnant patient (Re S (Adult: Refusal of Medical Treatment) [1992] 4 All ER 671)) and the competent minor (Re W (A minor) (medical treatment) [1992] 4 All ER 627) will not always be respected. These two exceptions to the principle of autonomy must be joined by a third - those competent patients who are detained under the Mental Health Act 1983. To refine more accurately the principle stated by Lord Hoffmann, a hunger strike undertaken by a competent patient detained for treatment under the Mental Health Act, where the refusal to eat is a symptom of the patient's mental disorder, constitutes an exception to the general principle that every competent adult has the right to choose whether to eat or not.

The consequence of drawing a distinction between the hunger striker in prison and the hunger striker detained in hospital, is that the latter may be deprived of his/her 'right' to strike. It is arguable that this may be justified on the grounds that the decision of the mentally disordered hunger striker is motivated by the mental disorder. This is a highly contestable assertion, however. It is far from settled that eating disorders, for example, should be classified as mental disorders:

Anorexia nervosa exemplifies the arbitrariness inherent in labelling individuals mentally ill. Imposing the medical model upon the events comprising an episode of anorexia is only one of several ways to give meaning to these events." (Dresser 1984)

It is further contestable on the ground that a person who is 'compelled' in any sense to reach a decision about medical treatment, without understanding the issues relevant to it is not legally competent to refuse proposed treatment (Re C (adult: refusal of medical treatment) [1994] 1 All ER 819). Although in reality it may be difficult to distinguish the anorexic from the political dissident, the right to hunger strike may well become the privilege of the non-disordered, non-sectioned patient.

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Bibliography.

Dresser, R (1984) "Feeding the Hunger Artists: Legal Issues in Treating Anorexia Nervosa", [1984] Wisconsin Law Review 297.

Fennell, P (1995) "Force-Feeding and the Mental Health Act 1983", 145 New Law Journal 319.

Hogget, B (1990) Mental Health Law (London: Sweet & Maxwell).

Orbach, S (1993) Hunger Strike (London: Penguin Books).

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