A NHS Trust v Dr A: A New Bournewood Gap?

At issue in this post is the situation where a deprivation of liberty may be required for practical purposes, but is apparently precluded by the eligibility requirements contained in schedule 1A of the MCA.

This situation arose in A NHS Trust v Dr A [2013] EWHC 2442 (COP). At the relevant time, Dr A, an Iranian doctor wishing to claim refugee status in the UK, was detained under s 3 of the Mental Health Act with a diagnosis of either paranoid personality disorder or a psychotic disorder. His passport had been confiscated by the UK Border Agency pending his enforced return to Iran, and he had commenced a hunger strike in an attempt to obtain its return. At the time of the court hearing, his weight was dangerously low. He had been force fed with a PEG for some time, but had commenced to remove it and thus actively resist the artificial feeding, resulting in a requirement of his ongoing sedation. The question was therefore whether the artificial feeding could be continued.

Force Feeding as Treatment under the Mental Health Act?

The Mental Health Act allows the compulsory treatment for mental disorder of people sectioned under that statute, whether or not those individuals have the capacity to consent to the treatment. In other cases (eg.,B v Croydon Health Authority [1995] Fam 133, R v Collins, ex p Brady [2000] Lloyd’s Rep Med 355), force-feeding had been held to be sufficiently related to the mental disorder as to be able to be considered treatment for the mental disorders of the individuals in those cases (although in Brady, it was also justified on the basis of incapacity).

In the present case, the medical staff took the view that the feeding was not treatment for Dr A’s mental disorder. In the view of the treating psychiatrist, the feeding did not address A’s underlying mental state, and indeed A’s mood had deteriorated rather than improved during the compulsory feeding. In the psychiatrist’s view, the feeding was to keep A alive, not to treat his mental disorder.

The B and Brady cases were controversial when they were decided. They were part of a stream of decisions that took an extremely broad view of what constituted treatment for mental disorder – a stream that in some cases allowed Caesarean Section operations to be treatment for schizophrenia, for example (see Tameside and Glossop v CH [1996] 1 FLR 762). Insofar as the A case begins to put some meaningful limitations on the treatment that can be enforced under the MHA, it is surely a good thing: the act was to be limited to treatment for mental disorder, and should not be extended beyond such treatments.

How far A is meant to have a precedential effect is however doubtful. None of the jurisprudence regarding the treatment that can be compelled under the Act is analysed in any detail. The Court’s view appears to flow from an uncritical adoption of the views of the treating psychiatrist. If the psychiatrist had viewed the matter differently, it would seem that the Court would have ordered the treatment using the MHA. This too is unsatisfactory, as it suggests that permitted scope of MHA compulsion may depend on luck of the draw as to which psychiatrist is in charge of treatment. That sort of arbitrariness is not consistent with the rule of law, in a matter of fundamental relevance to the human rights of the individual.

The Capacity Issue

As the MHA was held not to be available, the issue of Dr A’s capacity became of considerable relevance, and the Court held that Dr A did not have capacity to make the decision as to his ongoing nutrition and hydration. There was certainly professional evidence to support the finding, and consistent with a laudable and developing practice, the Court heard evidence from Dr A himself. Nonetheless, the finding of incapacity warrants some scrutiny.

It would seem that of considerable relevance to the Court’s finding was Dr A’s unshakable belief that if he continued with his hunger strike, along with attendant publicity surrounding it, the UKBA would return his passport. It was accepted as fact in court that this belief was incorrect, and Dr A’s failure to accept that possibility appears to have been important to the Court’s decision. The evidential value of this view, however, is at best tendentious. If Dr A’s view had been that the hunger strike and attendant publicity would have exerted considerable pressure on the UKBA, it is surely not a contentious view at all: one might reasonably expect that the UKBA does not like it when such situations are placed in the public domain, and a reasonable person might therefore suspect that such tactics would put them under pressure. Given that proposition, is Dr A’s apparently unshakable view that this pressure would be sufficient to ensure the return of his passport a mark of incapacity? A apparently believes something that is false; but notwithstanding judicial dicta to the contrary in the past, this should not necessarily be understood as constituting incapacity. This is particularly an issue in this case, where this view appears to subsist even when Dr A’s mental state was relatively good. He may have been wrong; but that is a different question to capacity. As the Act makes clear, an individual is not to be treated as lacking capacity merely because he or she makes a decision that is unwise. It would have been appropriate to see that issue explored more extensively in the judgment.

DOLS and the Patient Sectioned under the MHA

In general, non-psychiatric treatment of detained patients is subject to the general law: sectioned patients with capacity can consent to or refuse such treatment; for patients lacking capacity, the MCA applies and such treatment proceeds if and only if it is in the best interests of the patient. In normal circumstances that does not create a practical problem.

What complicates the treatment in A is that it could only be given if A were subjected to restrictions that themselves constituted a deprivation of liberty. The Court tells us little about what those restrictions were, in part perhaps because the deprivation of liberty was agreed by all parties. Certainly A was sedated at least some of the time, but not so far that he was unable to provide evidence to the Court. Insofar as it was relatively time-specific restraints that were required, it is not obvious that this would constitute a deprivation of liberty. Certainly not all cases involving the non-psychiatric treatment of sectioned people lacking capacity will raise the problems in A.

For those that do, the difficulty is that the eligibility requirement of the DOLS (sch 1A) does not allow the use of the MCA to deprive people of liberty, if they are already detained under the MCA. Unlike the other DOLS schedules, this schedule binds the court as well as DOLS assessors. As part of the A case, a search was made of parliamentary materials, and the situation where such ‘double’ detention would be required does not appear to have been considered in the legislative process leading to the 2007 Act.

The matter was of particular concern in the A case because of the duty on states under art 2 of the ECHR to protect the life of persons in the direct control of the state, such as persons in psychiatric facilities. One option considered was that the Court would, pursuant to our obligations under the ECHR, read in an amendment to the eligibility criteria, so that deprivations of liberty would be permitted in situations where life was at stake. The Court declined to do so on the basis that this would fundamentally alter the clear meaning of the statutory provision. Whatever the merits of that justification, that reading in an exception limited to art 2 (right to life) would be unacceptable in any event. For persons lacking the relevant capacity outside psychiatric facilities, treatments that require a deprivation of liberty will be performed on the basis of a best interests test and the DOLS. Some of these treatments will involve risks to life; some will not. Reading in an exception to the eligibility criteria restricted to art 2 would mean that people in psychiatric facilities would not receive treatments that, while demonstrably in their best interests, were not to address life-threatening conditions. This raises issues of the right to health of such detained patients in circumstances that are not life-threatening.

The Court instead uses its inherent jurisdiction – the jurisdiction originating in the fifteen years prior to the passage of the MCA, which gave the High Court extensive powers over people lacking capacity. Whatever one feels about the result on the facts of the case, it is perhaps fair to ask why it was not acceptable for the Court to use the ECHR to make a decision counter to the clear meaning of the statute, but it was acceptable to use the common law to do so. Nonetheless, that is the approach that was taken.

The legality of the inherent jurisdiction in this context has not as yet been finally determined. The obvious comparator is HL, where the use of the doctrine of necessity (from which the inherent jurisdiction at least partially flows) was found to be in violation of Art 5. Unlike the HL case, however, A was a case determined by the Court after a full hearing in which A was present and made submissions: the due process concerns in HL are therefore not likely to be an issue. Art 5 does require that deprivations of liberty be consistent with domestic law; it would be interesting to see how the Strasbourg court would respond to a legal process that circumvents a statutory provision, no matter how meritorious the case. HL was ambiguous on the question of whether the inherent jurisdiction as it existed at that time had sufficient substantive clarity for purposes of Art 5; this might or might not still be an issue.

Indeed, it is fair to wonder how the whole question of ‘double detention’ would be addressed by the Strasbourg court. The tradition of the Court has been to view deprivation of liberty as not admitting of degree: once you were detained, as A was when sectioned under the MHA, Article 5 rights would apply, and that was that. It is not clear how Strasbourg would view the imposition of additional restraints for the purposes of force-feeding an individual already legally detained, with a pre-existing judicial forum to challenge that detention. Such practices have in the past been viewed in the context of Articles 3 (right to be free from inhuman or degrading treatment or punishment) or 8 (private and family life) – see, eg., Nevmerzhitsky v the Ukraine (Application no. 54825/00, judgment of 12 October 2005). The use of the MHA tribunal to answer the ECHR points would however be unsatisfactory in cases such as A. Insofar as the motivation for the detention is the feeding rather than the mental disorder, the MHA tribunal has no jurisdiction to inquire into that issue. Dr A should have the right to a hearing that actually addresses the issues that are pivotal to the deprivation of liberty he experiences, with clear criteria as to the determination of the appropriateness of what is happening to him. But for the eligibility problem, that is what he would have under the combined effect of the MHA, MCA and DOLS.

Peter Bartlett


2 thoughts on “A NHS Trust v Dr A: A New Bournewood Gap?

  1. Isn’t the problem here that case A in Sch 1A MCA does not adequately replicate s.28 MCA- which prohibits the use of the MCA for medical treatment FOR MENTAL DISORDER under MCA for a patient subject to Part 4 MHA. If Case A was in line with s. 28 (which I suggest it should be, and the fact it isn’t is just an error) then the problem would be solved?

  2. Just to clarify – do you mean that if Case A simply stated that if P is detained under the MHA and being treated under Part 4 MHA then P is ineligible to be deprived of his liberty under the MCA then that would meet the mischief?

    Procedurally I agree with you, any way of making the DOLS neater must be good.

    But substantively it still leaves both a set of facts that is just plain odd – someone who the law states is mad enough to be detained not mad enough to meet the threshold for forcible feeding for a mental disorder under s.63 even after that was set about as low as it could possibly be after Brady and not capable enough to make his own decision about a hunger strike. I think the approach the court takes is the right one, and the one consistent with international law and guidance on the management of hunger strikes in detained people, which curiously they do not cite. But it is not intuitive.

    And it leaves a huge gap in practical enforcement which did not apply when Brady was argued and Mr Justice Kay at the QBD could comfortably consider all the MHA, capacity and inherent jurisdiction issues (had they arisen) at a single hearing.

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