So Mostyn J’s judgment in the case of RC has been handed down.
RC is serving a prison sentence, but is currently detained in hospital under s.47 MHA which allows for the transfer of prisoners to hospital if they are suffering mental disorders. He has seriously self-harmed in the past and due to a blood disorder which requires him to take the anti-coagulant drug Warfarin he is more likely than most patients to require a transfusion to treat the effects of blood loss after self-harm.
RC is of the Jehovah’s Witness faith, he currently has the capacity to refuse treatment with blood products and has also drawn up a valid advance decision specifying that if he were to lose capacity in the future he would not wish to receive treatment with blood products even if this would result in his death.
Let’s start with stating plainly how serious RC’s predicament is. He is subject to three layers of control. He is a prisoner who has been transferred to hospital for treatment of a mental disorder and whilst subject to the regime of control in hospital he has been subject to further mechanical restraint to stop him self-harming so seriously he may endanger his life. His current mental distress is extreme and the physical conditions of his life give him little opportunity for healing or recovery.
Importantly for RC a rapid recovery will not mean rehabilitation in the community but a return to prison to serve the remainder of his sentence.
Mostyn J. considered evidence from RC’s doctor and an independent psychiatrist concerning RC’s capacity to refuse blood products and whether treatment with a blood transfusion would amount to treatment for a mental disorder for the purposes of s.63.
For unfathomable reasons Mostyn J. does not cite evidence from RC regarding his views on his detention, treatment, religious beliefs or likely future behaviour. Nor did he cite written evidence from RC.
[BEGINNING OF RANT]
The only acceptable reason for not obtaining evidence from RC at this hearing was if RC simply refused to cooperate. If this did happen it is not mentioned in the judgment.
It is unforgivable that RC’s views concerning his own life were not treated as the central evidence in this case. The ECtHR has already held that a judge must at a minimum have visual contact with the applicant in Shukaturov v Russia in order to ‘form her personal opinion about the applicant’s mental capacity’. Saying, as Mostyn J. does in this judgment that he will defer to the expert evidence is a dereliction of duty.
And even if the judge’s conversation with RC only confirmed the view that RC had capacity to refuse treatment there were a great many other issues to discuss. If a judgment will result in someone risking his life then his evidence about why he is making that choice is pivotal. Asking RC what outcome he wants is not window dressing or political correctness.
The person whom the hearing concerns is the chief witness. Only exceptional circumstances such as actual unconsciousness can justify not calling them to give evidence. And even then we have precedents of judges travelling to the bedsides of adults in a minimally conscious state. If they can do that Mostyn J. should certainly have met with RC.
If a chief witness is unavailable for a hearing at the Court of Protection then the hearing needs to be adjourned until the witness is available. If the witness is unwilling to give evidence in open court then special arrangements need to be made to accommodate them, or written evidence admitted instead. But you cannot decide whether someone risks their life without obtaining the best available evidence on the matter.
[END OF RANT]
The judgment found that although a blood transfusion can be treatment for a mental disorder for the purposes of s.63 MHA it would not be appropriate for RC’s clinicians to exercise their discretion and administer a blood transfusion under s.63 because this would conflict with RC’s freedom to refuse treatment consistent with his religious wishes.
The alternative, if RC were to lose capacity as a result of blood loss in the future, would be to treat him under the Mental Capacity Act, but in these circumstances RC’s valid advance decision would have to be honoured.
So under either the MHA or MCA routes treatment with blood products which would be inconsistent with RC’s faith is untenable.
As I said in this earlier blogpost, respecting RC’s refusal of blood products is not the difficult part of the judgment. It is the only outcome which is consistent with existing precedents in English law and with the current approach taken by the ECtHR to the construction of the Article 9 to freedom of religion for Jehovah’s Witnesses, although this latter argument is considerably weaker because the ECtHR has not actually heard any cases with equivalent or even similar facts.
So it is the way in which Mostyn J. reasons which counts. Mostyn J. uses J.S. Mill’s On Liberty as the basis for his argument and argues that we all have a right to self-destruction including RC, and that this right cannot be interfered with except where it has consequences for others.
There is no legal authority for this point. To the contrary, there is authority which states we have a public policy interest in preventing disabled people from destroying themselves and this is precisely why the state owes no positive duty to disabled people to assist them in ending their lives even when they have capacitously stated that they want to die [see Baroness Hale’s judgment in R(Purdy) v DPP at para 68].
Not only is there no legal authority for this point but it flies in the face of the function of the Mental Health Act. RC is detained under s.47 MHA. His continued detention in a psychiatric setting rather than in prison is only lawful if he has both ‘a mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital’ AND ‘appropriate treatment is available to him’. The function of his detention is the prevention of RC’s self-destructive behaviour. Not only do our senior judiciary oppose the view that we have a right to destroy ourselves, we have an entire statute created to ensure that people who look as if they might destroy themselves as a result of a mental disorder can be detained in hospital for treatment.
And the state has positive duties flowing from Article 2 ECHR to ensure that individuals subject to deprivation of liberty such as RC are protected from the consequences of their actions. If RC’s clinicians did not try to prevent his death they would be liable for an action under the Human Rights Act.
It doesn’t matter if Mostyn J. is ideologically opposed to this legal framework, it is the legal framework he is working within.
Leaving aside the law J.S. Mill himself opposed suicide and Mostyn cites the relevant paragraph in a footnote.
And in any event the point may be irrelevant. Because nowhere in the facts does it say that RC wants to kill himself only that he wants to hurt himself. The point could, of course, be clarified by asking RC himself…
The meaning of liberty
The enigma of RC’s case is what it can it possibly mean to assert the right to liberty of a man who is as deprived of liberty as the English legal system can make him?
RC’s right to liberty, as defined by Mostyn J. only extends to the right to destroy himself. RC does not enjoy a right to physical liberty beyond the walls of a hospital or prison. RC does not have a right to choices over most of the material conditions of his life. If the mechanical restraints are removed he can choose to violently harm himself and he can choose to reject potentially life-saving medical intervention. And in these conditions of liberty it seems RC may choose to destroy himself.
The philosopher who would help Mostyn J. most is not Mill but Giorgio Agamben. Agamben has, in his enquiries into the relationships between sovereign power, bare life and the state of exception, explored more fully than any other contemporary philosopher how law addresses the question of life itself. The case of RC is a sad example of law’s difficulty dealing with the liminal spaces that emerge when law tries to make life and death lawful and unlawful. RC is not simply subject to the total control of the institution in which he is held, he is subject to a multitude of rules which compromise his status in society and ability to function as a political actor, even to choose his own representation in court. More importantly though, the effect of Mostyn’s judgment is to place him in a state of exception. English law has created powers to exercise authority over people with mental disorders but it has also specified positive duties which attach to the exercise of those powers. A decision to treat RC under the MHA or under the MCA would have to be made in his ‘best’ interests.
But RC’s clinicians have been told they are not to use s.63 or the MCA to make decisions about RC’s treatment. Yet RC survives subject to total control. On what basis should decisions now be made about his care or treatment?
On this point the judgment is silent. But this is the point which matters. Presumably neither RC nor his clinicians want an enduring deadlock in which he remains in mechanical restraint indefinitely to ensure his safety, unable to recover but also unable to die?
So how should a doctor who has powers of total control over an individual balance the individual’s right to life with his right to freedom of religion?
A case which this may have parallels with is that of Ms B, which concerned an adult woman with capacity receiving artificial ventilation. Her life expectancy was good but Ms B asserted that she wanted to refuse the ventilation and be left to die instead.
Dame Butler-Sloss was anxious to question Ms B carefully to ensure that she fully understood the consequences of her refusal of artificial ventilation. Having established that this was the case she made an order that treatment be discontinued.
In the case of a competent adult patient making a profoundly dangerous decision, notwithstanding the (in my view) bizarre statement in Re T that treatment can be refused for no reason at all it is clearly the case that our community holds us to a higher standard than that. It may be consistent with RC’s Article 2 rights for RC to be allowed to self-harm to the point of killing himself. But to be confident that this is the right judgment I would want to know that a judge has actually spoken to him to clarify that this is his actual intention, that he has tried to clarify the level of risk removing the restraints poses to the patient, the likelihood of therapeutic intervention helping RC and assured RC’s clinicians that no liability for a breach of their duties under Article 2 can arise if they take the risk involved.
In an excellent article from 2007 [apologies paywall] which reviewed the ways in which judges in English courts were employing differing conceptions of autonomy to reach decisions about when patients had the capacity to make treatment decisions John Coggon observed that circumstances alter cases. There is a distinct pattern to those cases where patients had been found to have the capacity to refuse treatment even though their treatment refusal was objectively bizarre and dangerous: All of the established precedents concerned prisoners or forensic mental health patients. By contrast in cases concerning pregnant women where treatment refusal might result in harm to the mother and her unborn child judges required the mother to demonstrate a much higher awareness of what might be in her objective best interests. The effect of the lower threshold for making a determination of incapacity in the latter cases is to ‘save’ the mother from the effects of her own poor judgment.
Coggon’s article reviewed cases decided before the statutory test created under the Mental Capacity Act came into effect. This blogpost is not the place to review whether the trend is still wholly evident now. But it is worth reflecting on whether judgments can still betray the prejudice that sympathetic victims of mental distress are more deserving of compulsory treatment than those who have committed sex offences.