Alex RKNorth Tees and Hartlepool NHS Foundation Trust & Anor v KAG & Ors [2024] EWCOP 38 (T3) is a case confirming the hard-edged nature of s.63 Mental Health Act 1983. It concerned a woman, KAG, who developed severe depression and in consequence was not eating or drinking. For extremely complicated reasons, including potentially crossed wires as to what the Official Solicitor’s position, the case ultimately came before Victoria Butler-Cole KC (sitting as a Deputy Tier 3 judge), who was asked to declare that it was lawful for a PEG to be inserted to provide KAG with clinically assisted nutrition and hydration. She did so, but made clear that:
19. [t]his application was not required. The AMHP rightly determined that the MHA was the correct legal framework to provide treatment to KAG for her mental disorder, including the provision of CANH, and that is the framework that should have been applied. While there will be cases where the scope of s.63 MHA is in question, this was not one of them. The Official Solicitor did not object to the court making a declaration of lawfulness in the exceptional circumstances of this case, but did not expect similar applications to be made in future. This judgment should not be taken as any sort of encouragement to statutory bodies to seek the court’s intervention where there is no uncertainty on the part of a treating Trust as to whether treatment can be provided under s.63 and s.145 MHA, even in the face of objection by a patient.
20. As Lieven J explained in in Re JK [2019] EWHC 67 (Fam) at §66:
“The MHA gives the power to decide whether to compulsorily treat a patient to the responsible clinician and not to the Court. This is a fundamentally different scheme to that in the MCA where many decisions are given by statute to the court. The difference makes sense because the MHA is a statutory scheme for, inter alia, detention and compulsory treatment in the public interest, where the responsible clinician has a specific role in the statutory scheme. There is no statutory process in the MHA to question the decision of the clinician. However, if the clinician decides to impose treatment, then the individual can judicially review that decision.”
21. The observation by Mrs Justice Lieven in the subsequent case of A Healthcare and B NHS Trust v CC [2020] EWHC 574 (Fam)at paragraph 48 needs to be read carefully. The judge accepted a submission that “considerable care needs to be taken in the use of section 63[MHA] 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[2013] EWHC 2442 (Fam) at [80] that in cases of uncertainty, the appropriate course is to apply to the Court.” Lieven J is there referring to a risk that s.63 MHA is given such a broad interpretation that it can be relied on to treat conditions that are not manifestations or symptoms of a mental disorder – it is self-evident that s.63 MHA permits the treatment of mental disorders without consent. The uncertainty referred to by Baker J (as he then was) is “doubt as to whether the treatment falls within section 145 and section 63 MHA”. It is not a reference to cases where the detained patient objects to treatment.
22. The question whether, where a detained patient objects to treatment being imposed on them under the MHA, and lacks capacity to conduct proceedings or to instruct a representative to bring proceedings for judicial review, the treating Trust has any duty to find a litigation friend for the patient or take any other steps to bring the dispute before a court, does not fall to be determined in this case, as the Trusts have in fact brought an application in respect of the lawfulness of the proposed treatment.
Victoria Butler-Cole KC found on the facts of the case before her that it was:
24. […] unquestionably in KAG’s interests to receive CANH. Equally, it is clear to me that it is now in her interests for CANH to be administered by way of PEG rather than nasogastric tube. As I have previously set out, a PEG will be less risky, more comfortable and more effective. It is reversible, and KAG will be able to eat and drink normally while it is in place should she wish. While the operation to insert the PEG has the potential to be an unpleasant experience, sedating medication will be given, and it will only last for around 10 minutes. Once in place, KAG will be able to move to a suitable therapeutic environment where she can receive the treatment she needs for her mental disorder. Dr A was clear that this was simply not possible in her current hospital which is not a psychiatric hospital. Although KAG is fearful of the procedure, it is the only realistic option to maintain her physical health and to help her to get through this period of depression, as she has in the past.
Comment
This judgment is delivered at an interesting point, coming as it does as the Government has announced plans to bring forward plans to amend the Mental Health Act 1983. A considerable amount of attention was paid by the independent Review of the Mental Health Act 1983 (to which I was the legal adviser) to the question of whether the current procedural safeguards around treatment for mental disorder complied with Article 8 ECHR. The review concluded (at pages 75-6) that:
At the moment, a patient has only very limited ability to question the treatment they are receiving in the first three months of their detention, and most decisions are taken on the basis of the opinion of the patient’s Responsible Clinician alone. After three months a second opinion from a SOAD is required if the patient lacks capacity or has capacity and has not consented. Until that point, most treatments can be administered despite a patient’s refusal, without any statutory requirement to explain or justify that decision. Criticism of this situation was raised as an issue by service users. Service users’ unhappiness with the way they were treated, more even than the detention itself, persisted long after the period of detention or treatment was over. We are clear that the current approach does not go far enough to meet either the ECHR or the CRPD […]
[…]
At the moment the only way for a patient to challenge the decision of the RC and SOAD is a right to appeal treatment by way of Judicial Review, but we have reached a firm conclusion that it is simply inaccessible. It is both too difficult and too expensive. We believe there should be a route of challenge to a single judge of the Tribunal, supported by non-means tested legal aid. That judge would have the power either to require the Responsible Clinician to reconsider their treatment decision or to order that a specific treatment is not given where they find that it is a disproportionate interference with the patient’s rights. The judge would not have the power to order that a specific treatment is provided, but only to prevent treatment (as set out above).
The draft Mental Health Bill did not include this proposal. The Joint Committee convened to consider the draft Bill noted that:
263. We agree with the Independent Review that a slimmed down Mental Health Tribunal should be able to consider whether a patient is entitled to challenge their treatment plans, if requested, following a Second Opinion Authorised Doctor review of their care and treatment plan or a major change in treatment. We recommend that the Government amend the draft Bill to allow for pilots in the first instance, to ensure that the additional workload is manageable and the Tribunal and clinicians’ roles are not compromised.
It will be interesting to see what the Bill brought forward says in due course.
One other observation: whilst the application did not need to be brought, this is not the same as saying that Trusts cannot bring applications where they consider that the arguments for and against treatment are finely balanced. There is a steady stream of cases involving patients with disordered eating (usually, but not exclusively patients with anorexia) where Trusts could use s.63 MHA 1983 to treat, but vote with their feet to seek a determination instead from the Court of Protection as to whether (1) the person has the capacity to make the relevant decisions; and (2) if not, what is in their best interests.
