Yes yes yes I know we need to do a blog post on Cheshire West. It is in the pipeline.
In the meantime I’m doing another blogpost on a judgment which has not even been published yet. The facts are in the public domain and it extends an issue we already addressed in this blog a few weeks ago – the interfaces between the Mental Health Act, Mental Capacity Act and the right to freedom of religion under Article 9 ECHR.
J is 23 years old and currently detained under the Mental Health Act. He will cut himself severely if not physically restrained and these deep cuts will cause life-threatening bleeding which may only be treatable with a blood transfusion. J is a Jehovah’s Witness and and has drawn up an advance directive specifying that he did not want to receive a blood transfusion under any circumstances even if a failure to treat might result in his death.
The advance directive is valid for the purposes of the Mental Capacity Act. It was signed and witnessed and J had mental capacity at the time it was drawn up. But advance directives do not apply to treatment administered under the Mental Health Act.
Treatment given to J to treat the effects of his self-harm will be lawful treatment under s.63 of the Mental Health Act. But J’s doctors applied to the Court of Protection for a declaration regarding the legality of their treatment because given he currently has capacity to refuse treatment and has made an advance directive it would be unethical to override these wishes and perform a blood transfusion upon him.
In a sense the advance directive is a red herring. It is useful future evidence that J’s religious convictions are not a current whim but apart from that even if J were not detained under the MHA it would only be relevant if J was incapable of making a capacitous refusal of a blood transfusion. In fact two hearings have found that J does have the capacity to make decisions about his treatment. The point is unusually well-established in his case.
Mostyn J. has held that J’s doctors have the discretion not to perform a blood transfusion should one become necessary in J’s case. His reasons have yet to be published but will be interesting to see.
At issue here is the extent to which a patient detained under the MHA enjoys the same right to freedom of religion as any other patient. Interestingly, the jurisprudence of the European Court of Human Rights as it applies to Jehovah’s Witnesses is not particularly helpful. The most useful case is a chamber judgment from 2010 concerning the total suppression of the Jehovah’s Witness faith in Russia. One justification put forward for this by the Russian authorities was that in promoting the carrying of ‘No Blood’ cards by followers the Jehovah’s Witness faith promoted suicide. The ECtHR held that provided the decision to carry a ‘No Blood’ card was capacitous and not the result of an overborne will encouraging followers to carry these cards could be consistent with public policy.
But domestic jurisdictions have already gone much further in advancing the right of Jehovah’s Witnesses to protect their religious convictions even if this places them in danger and the caselaw the ECtHR cited was of necessity drawn from Ontario, England, Spain, South Africa and the USA.
And since the passing of the MCA a number of cases have upheld the position in English law that the advance directives of Jehovah’s Witnesses which specify the refusal of blood products should usually be honoured. Whatever the ethical questions this raises the legal point is well-established in English law. A refusal by Jehovah’s Witness of a life-saving blood transfusion should be respected unless there are circumstances that put healthcare stuff on notice that it may not have been made voluntarily.
So J is in an extraordinary position. His doctors confirm that he has the mental capacity to refuse treatment. If he was at home and self-harmed to the extent that he has and were taken to an A&E Department the position that his current refusal (were he able to make one) or his advance directive should be respected would be uncontroversial. It is only the fact of his detention under the Mental Health Act which makes compulsory treatment possible at all. Reports on the outcome of Mostyn J’s judgment state that he held that clinicians can leave J untreated if he self-harms to the point of endangering himself again. This seems consistent with the only legal position that makes any sense. Patients detained under the Mental Health Act must, at a minimum, enjoy the same right to freedom of religion as anyone else. But how he reached that conclusion and distinguished J’s freedom to decide to harm himself and refuse treatment without interference from the position of other patients who self-harm will be critical. Parliament in 2005 clearly did not intend that patients in psychiatric detention should be able to use the provisions of the Mental Capacity Act to protect their interest because they explicitly excluded detention under the MHA from the ambit of the MCA.
J’s case is similar to a number of other cases which appear to straddle the operations of the MHA and MCA and also involve the protection of human rights of detained people. Cases like SB, AA, E and J raise huge questions about the viability of maintaining both a Mental Health Act and Mental Capacity Act and in effect two jurisdictions to safeguard the human rights of people with mental disorders.
The only major proposal around for improving this state of affairs is George Szmukler and John Dawson’s proposal for a Fusion Law. I am personally hugely sceptical about the likelihood of improving the transparency and consistency or challenge-ability (is that a word?) of professional decision-making about people with mental disorders if the threshold used is whether they have the mental capacity to make a decision. So I am a fusion sceptic.
But cases like J’s provide an opportunity to watch and reflect. If Mostyn J offers robust guidance on how clinicians should make decisions about protecting J’s freedom of religion whilst working within the MHA then the case for fusion is weakened. But a poor judgment which leaves clinicians less clear how to decide the next difficult set of facts reduces the case for maintaining the status quo.
This is an easy read version of an article about people who cannot make a decision. You can read the original article in the Journal of Social Welfare and Family Law.
Part 1: When do we have to make decisions for other people?
The law in England says sometimes people cannot make decisions for themselves. Sometimes people cannot make decisions because they do not understand things. Sometimes people who are very sad or very angry cannot make decisions because their feelings are so strong. Sometimes people cannot make decisions because they cannot remember what they need to know to make decisions.
When we cannot make a decision the law says other people can make the decision for us. Usually this will be someone we know well and who knows about the decision too. If someone does not understand whether they need medicine a doctor may make the decision for them. The doctor must make a decision that is in the person’s best interests.
The law says that in deciding what is in someone’s best interests the person making the decision must think about what the other person would like. If the doctor gives someone medicine she must think about what the person likes. For example some people do not like tablets. The doctor could give them a medicine which comes as a syrup instead.
Part 2: What is this article about?
Sometimes we do not know what is in someone’s best interests. When this happens the person who has to make the decision can ask a special Court to tell them. This court is called the Court of Protection.
Judges in the Court of Protection make decisions for people who cannot make a decision for themselves. I wanted to know how the judges think about what people who cannot make decisions would like.
I looked at lots of decisions that the judges had made. These decisions are called cases. Cases are very important. Judges have to look at cases that have already been decided when they make decisions. This is to make sure we treat cases that are the same in the same way.
In most of the cases the judges do not talk about what the person who cannot make a decision would like.
There are some cases where the judge does look at what the person who cannot make a decision would like.
I looked at those cases carefully. Continue reading
The following post is a guest blog by Amanda Keeling and re-blogged from the blog of the Institute for Mental Health.
The Mental Capacity Act 2005 provides a framework for making a decision for an individual who is found to lack capacity to make it him or herself. Where an individual lacks capacity to make a decision, a decision must then be made in their best interests under s.4 of the Act. Section 4(6) provides that, when making a decision in someone else’s best interests, account must be taken of any past or present wishes or feelings, beliefs or values that would have influenced their decision, and any other factors they would have been likely to have taken into account if they had capacity.
Since the MCA came into force (and indeed, prior to the MCA as well), it has long been a subject of debate as to the weight that an individual’s wishes and beliefs carry in this process. Munby J (as he then was) gave two judgments in the years just after the MCA came into force which dealt with this factor, the first being Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam), at paras -, the second being ITW v Z & Ors  EWHC 2525 (Fam), which restates Re MM and adds several elements. Re MM noted that P’s wishes and feelings should always be a significant factors, but were not necessarily determinative. He pointed to the need to consider the degree of P’s capacity when expressing wishes and feelings, and the impact of not giving effect to them. ITW v Z and others added the caution that the relevance of wishes and feelings will be case by case, and that additional factors to consider are the strength and consistency of those views over time, how rational, sensible, responsible and pragmatic the views were, and the possibility of actually implementing the action necessary to respect the views.
Munby J was, in that case, specifically dealing with P’s current wishes, when he/she lacks capacity, but those factors are equally applicable to thinking about the relevance of past wishes and beliefs; in particular, where someone has made a strong statement refusing a particular treatment, and subsequently loses capacity, what weight should that statement be given?
Sections 24-26 of the MCA outline the process of ‘advance decisions’ – these are decisions which are binding on medical professionals with regards to refusal of treatment where the issue arises once P has lost capacity. For advance decisions to be binding on professionals, they must be ‘valid and applicable’ to the circumstances, and must be signed by both P (or P’s representative) and a witness – any other written statement is simply something to be taken into account as part of s.4(6).
However, a recent decision in the Court of Protection, published a few weeks ago, suggests that spoken statement can have a similar effect as advance decisions, although presumably they are not legally binding in the same way.
Newcastle Upon Tyne Hospital Trust v LM  EWHC 454 (COP) centred on the time-honoured issue in medical law of the giving of blood products to Jehovah’s Witnesses. LM had been admitted to hospital in early February, suffering from a duodenal ulcer, which was causing dangerously low haemoglobin levels. During the next few days, LM met with several medical professionals to discuss her treatment options, and she was very clear that she did not wish to accept blood products. She was also seen by a psychiatrist, due to her presenting with confusion on arrival, and a history of depression and schizophrenia. She was found by the psychiatrist to be well, and the physical medical professionals she spoke with felt that she understood the implications of refusing blood products and had capacity to make the decision.
Subsequently, LM’s condition deteriorated significantly, she required intubation, ventilation and sedation, and clearly lacked capacity to make any further decisions. Her anaemia became profound and life-threatening, and it was clear that a blood transfusion was really her only hope of survival, but that even then, her condition may not have improved. In addition to her statements during the preceding days, the clinical team had been aided by information from members of LM’s congregation, who affirmed the strength of her belief, and her views on the issues of blood products, which had been consistent since the 1970s. The medical team decided that her decision to refuse blood products should be respected, and sought a judgment from the Court of Protection affirming this decision, given its life-threatening nature.
Mr Justice Jackson, handing down his judgment sadly after LM had passed away, agreed with the decisions made by the medical staff. He considered that LM’s decision was ‘valid and applicable’, and it was correct to respect it. He considered carefully the issue of her capacity at the time the decision was made, and the long-held and consistent nature of her belief on the issue, and concluded that her refusal of consent ‘was applicable to her later more serious condition. There was no difference in kind and I am satisfied that she intended her decision to be effective in the circumstances that subsequently arose’ (para 21).
This is not a decision being made within the framework of s.4(6), but rather a clear spoken refusal of consent being treated with the same respect as a written, valid advance decision. Although not clear from the judgment, one presumes that such spoken words are not binding on professionals in the same way as a valid advance decision under ss. 24-26 of the MCA are, but it does give much more weight to such clearly stated advance statements. This is to be applauded – LM was making a decision about the specific treatment relevant to her condition with capacity, and very close to the time when the treatment actually needed to be given. Further, there was clear evidence that this decision was not being taken on a ‘whim’, but a long-held belief; why should it not have been respected, simply because it was not written in a specific format?
However, Jackson J does note that, had there not been such a clear, valid and applicable decision, and the issue had to be decided under best interests, he ’would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. It is also of relevance that a transfusion might not have been effective to save her life’ (para 23, emphasis added).
We are now in a position where, when refusal of consent stems from clearly stated and long-held beliefs, it seems to have a ‘determinative weight’ when considering best interests. Further, where that refusal is made clearly, with capacity, with regards to specific treatment, it will be treated like a valid advance decision. However, there are still some questions; Jackson J adds in the point that it is ‘also of relevance that a transfusion might not have been effective to save her life’, but we are left wondering what the decision of the court might have been had it been a more certainly life-saving procedure. There is also the issue that this is an issue of religious conviction – would a long-held belief founded on other grounds be given the same respect?
I teach tort law to first year law students, and coincidentally last week our tutorial was on trespass and issues of consent and capacity, and even more coincidentally, the problem question we dealt with concerned the refusal of consent for a blood transfusion. However, the woman in the problem question was refusing the transfusion due to a fear of contracting CJD, despite the negligible risk of this happening. When we were discussing ‘Grace’s’ refusal of consent for the blood transfusion (claiming, somewhat dramatically, ‘I’d rather die than contract CJD!’), my classes were often split as to what they thought the doctors should do with regards to respecting that statement once Grace lost consciousness and the giving of a transfusion became a matter of life or death.
Some felt that such a clear decision should be respected, while others questioned the validity of this decision, as they were concerned she did not truly understand the risk. We explored the issue a little more, and considered the circumstances where such a statement might be respected – perhaps she had been a vet during the 1990s and seen many cows suffering with BSE, perhaps she had been a research scientist. I asked what if she had simply developed something of an obsession, and done a lot of research, and decided that death was better than the risk, however small, of living with and dying from CJD. On this, the classes were often split again, and I certainly would be interested in the view of a court. Would a deeply held belief such as this be respected, or would it be considered, in the words of Munby J in ITW v Z and others as not ‘rational, sensible, responsible or pragmatic’? That is a difficult question to answer, and certainly raises questions about the prioritisation of religious belief over others.
My understanding at this point is that AA is still trying to participate in hearings concerning the placement of her daughter P. This ongoing litigation will take place in the family courts and falls outside both my expertise, and the terms of reference of this blog. There is thorough commentary raising a range of different concerns here, here and here.
There were some really useful points raised on this post and I apologise for not replying to all of them. One which I did not reply to because I did not want to say anything glib was ‘I don’t agree that the innocent have nothing to fear. They may not have anything to fear from the law when it works as it is intended to, – but how was this woman supposed to find someone to defend her interests?’
This is the nub of the problem. As outsiders with no actual knowledge of the situation but considerable knowledge of domestic law all the mental health and family law commentators swiftly realised that the initial reports in the Daily Telegraph and Daily Mail must have been overstated or contain significant omissions. We now know this to be the case as Cardiff Law School summarises.
At the same time we know that even if the law worked as intended (and you’ll gather from my own posts I think that is a moot point) AA did not have opportunities to defend her own views of her situation. Her ‘interests’ were represented by no doubt highly skilled counsel appointed on her behalf by the Official Solicitor. So AA enjoyed a lot of rights to process, but little substantive right to challenge the decisions being made about her.
And there is a cruel irony to this because AA’s rights to a fair hearing and to respect for her private and family life – the two rights which may have been infringed here, were actually protected in turn by a complex package of international legal obligations.
AA’s protection under international law
AA was uniquely vulnerable. She was in the third trimester of pregnancy, in a foreign country away from family and friends, experiencing a mental disorder which may or may not have affected her capacity to reach important decisions about her life and she was subject to detention. Her vulnerability is recognised under domestic law – which is why we have all these procedures before she can be detained under the Mental Health Act, subject to forced treatment under the Mental Capacity Act or have her child removed from her care under the Children Act. Her vulnerability is also recognised under international law because she would have fallen within the scope of the Hague Convention on the International Protection of Adults to which Italy is a contracting party. The Convention does not, in itself, create any rights to respect for AA’s fundamental rights. But Schedule 3 MCA did create an obligation on the UK authorities to ensure that that the Italian authorities were notified of her status and that AA’s interests in her property were secured. I have no idea how these obligations are interpreted within Italian constitutional law. Within domestic law such obligations would have to be interpreted in light of s.6 of the Human Rights Act and would require consideration of the principle of respect for AA’s private and family life under Article 8 of the ECHR, i.e. there may have been a duty on the Italian authorities to consider what steps they could take to keep mother and child together.
AA’s protection under EU law
AA was an EU citizen and a worker when she arrived in the UK and thus exercising rights under the Treaty on the Functioning of the European Union. Her access to emergency healthcare was a right exercised under Regulation (EC) 883/2004 (warning pdf) and presumably Essex Health Trust sought reimbursement for her care from the Italian authorities. If they did then decisions made about her care undoubtedly fell within the scope of EU law. This matters because after the decision in Akerberg-Fransson we know that the scope of the Charter of Fundamental Rights of the European Union (the Charter) extends to the interpretation of domestic legislation which is being used to implement an EU right, so in this case it could be applied to the interpretation of the Mental Health Act and Mental Capacity Act insofar as they are being used to define the scope of AA’s rights of access to treatment under EU law. The key right here is Article 47 of the Charter which protects the right to a fair hearing and incorporates all the procedural rights guaranteed under Article 6 ECHR. You might ask (as Mostyn J. did in another of his recent judgments) how the Charter is of relevance when the UK explicitly derogated from it by negotiating the famous opt-out: Protocol 30 TFEU. The answer is that in a close analysis of the text the Advocate-General in N.S. v Secretary of State for the Home Department found that the Protocol primarily reaffirmed the content of Art 51 of the Charter and clarified the application of the remaining provisions, but was clearly not intended to disapply the Charter to those states which had negotiated it. There is a crucial difference between fundamental rights as recognised under EU law and under the ECHR however. If it is found that a state’s action in implementing EU law has been inconsistent with the Charter then the requirements of EU primacy require the national court to disapply the domestic law, and not merely find the provision incompatible.
This protection is far more problematic, I do not know if Essex Health Trust conceptualised AA as an EU citizen protected by the Charter, but I would argue they certainly should have done. AA’s rights were distinctively affected because she was an EU citizen working in another member state. Had she remained at home in Italy her vulnerability would have been substantially diminished.
These international legal mechanisms for recognising rights apply before you even consider the application of the ECHR to AA’s case, or the rights contained in the UN Convention on the Rights of Persons with Disabilities which the UK has also ratified.
But to transform these realisable rights into real rights AA first had to be an actor with legal capacity and able to define her own interests.
If there is a larger moral to this then it is that the political significance of legal capacity cannot be overstated. Defining rights alone is of little value. The large and as yet unanswerable questions all remain. How do we define who cannot exercise legal capacity or provide appropriate assistance to those who need it? I know of no supported decision-making regime, for example, that has solved the problem of supporting decision-making when someone has current psychosis, and as someone with personal experience of psychosis my imagination struggles to accomodate that.
And how can we begin to ensure that the failsafes our system applies to ensure that when individuals are vulnerable for multiple reasons (pregnant, foreign, seriously ill, detained) we are able to interpret their interests and represent them robustly?
In this case Mostyn J. had at least four options available:
1. To consider the local authority’s request for a police protection order under s.46 Children Act. This would allow the police to remove the baby from AA’s care immediately after the birth.
2. To suggest the local authority apply under s.38 Children Act after the birth seeking an interim care order for the child. This would allow a hearing where AA’s interests could be represented by the Official Solicitor and the child’s welfare could be discussed.
3. To make an order under s.16 Mental Capacity Act finding that it is in the mother’s best interests to be cared for in a Mother and Baby Unit. It is not clear if this was properly advocated for by the Official Solicitor. The practical effect of this decision would be that the child would remain with the mother, but would not at this point be subject to any order under the Children Act. The Mother and Baby Unit option was recommended by the clinician working for the Health Trust and would allow AA and her baby to remain together consistent with her wishes. If it was necessary to detain AA to make this option possible then this could be done under the Mental Health Act (there is precedent for this, in Re E(Medical Treatment) the CoP ordered that the patient receive treatment for her mental disorder in her best interests, but in order to practically achieve this she was subsequently detained under s.3 MHA).
4. To make no order or recommendations at all.
Since the baby was to be born the following day we will assume 4 was not a realistic option. Mostyn J. ruled out 1 on the basis that it was heavy-handed. He took the initiative, indicating that he is capable of taking initiative and advocated 2. Why didn’t he take the initiative and apply 3 instead which was consistent with the medical evidence, evidence of AA’s wishes and presumably consistent with the child’s welfare?
There might have been strong reasons to suppose AA posed an immediate risk to her child after the birth. But this evidence did not appear to have been advanced by the local authority, instead the evidence was she might not be capable of caring for the child due to an earlier history of neglecting her other children.
In any event if AA posed immediate risks to her child after birth there would also be risks involved in option 2 which he did choose.
Choosing Option 3 would not prevent the local authority applying for an order under s.38 at any later point if they became concerned about the child’s welfare, or in an emergency asking the police to apply for an order under s.46. It only facilitated choices, it did not limit them.
Choosing Option 3 would rely on a bed being available. This would be an obligation on the Health Trust and not the local authority. Since AA was about to undergo major surgery Mostyn J. could easily have said that he was minded to make an order under the Mental Capacity Act but invited the Health Trust to ensure that the relevant service was available for AA and her child before doing so and then reconvened the hearing the following day.
In any event Option 3 was not chosen, despite the Official Solicitor representing the view that it should be. A further question then is why the Official Solicitor did not appeal this decision? It was of grave significance to AA, and as Celticknot pointed out in an earlier comment on this blog the senior courts have been critical of judgments made in the early stages after a child is born which lead inexorably to adoption. An advocate concerned with promoting AA’s best interests should have been vigilant regarding this point.
It has been said this is an extempore judgment. I agree. But I don’t think that justifies a failure to survey the options which has such serious implications for AA.
‘I might, if it is published, deplore Mostyn J’s reasoning about the mother’s best interests or her capacity…’
Showing uncanny prescience Mostyn J’s judgment and the transcript of the case of Re AA have now been published and I deplore them (warning pdf).
I wanted them to be better than this. But the judgment does not really explain how the test of capacity in s. 2 Mental Capacity Act applies to AA and reading the transcript my suspicion is that he has not assessed AA’s capacity properly, and may even have confused it with her best interests.
What did the judge know at the point he made his judgment?
AA was detained in hospital under s.3 of the Mental Health Act. She had a ‘schizophrenic disorder which was psychotic in nature’, and she was experiencing delusions.
She had had two previous births by caesarean section increasing the risk of a uterine rupture in this pregnancy to something close to 1%.
At the time of the hearing she was 39 weeks pregnant and it was proposed that the caesarean be performed the following day.
Her doctors favoured a planned caesarean performed under a general anaesthetic because they feared that if she was allowed to go into labour spontaneously she might lie about the onset of labour and interfere with efforts made to help her. Planned caesarean would allow them total control of the process and thus make the process maximally physically safe.
The finding of lack of capacity
In the judgment Mostyn J. tells us that he finds AA lacks capacity ‘within the meaning of s.2(1) MCA. But s.2(1) MCA only tells us that for a person to lack mental capacity in English law they must have a ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’
AA certainly met this requirement. But the judgment does not tell us why she met the further requirements of being unable to make a decision under s.3 MCA. To be unable to make a decision a person must be unable to understand, retain, use or weigh or communicate their decision even after all necessary practical assistance has been provided to them. The judgment contains no discussion of what efforts have been made to discuss birth planning with AA, nor of whether she understands the consequences of refusing a caesarean section.
This does not mean AA had capacity at the time. Only that the judgment does not communicate that she did not.
The finding that a caesarean was in AA’s best interests
He further fails to apply the best interests test in s.4 correctly. He correctly identifies that the interests he is meant to take into account are primarily those of the mother and not those of the child who is, as yet, unborn. This is clearly a difficult task since in late pregnancy the interests of most women are intimately intertwined with those of their baby. There is a suggestion this was true for AA, because it is recorded in the transcript that she wants to see and hold her baby after it is born. Nevertheless the position in law is that we cannot start from the position of healthy baby = happy mother and work backwards to establish what the mother’s interests are.
We can however, identify in some cases that the mother’s best interests will prospectively be achieved through a healthy delivery and take that into account when making a best interests assessment. This is true when giving birth to a healthy child will be critical to the mother’s mental health for example. Unfortunately, Mostyn J. places a high value on this point but fails to consider any other evidence concerning the mothers past wishes, feelings, beliefs or values. Nor is any evidence from her family concerning her views on childbirth cited. Of course, this may not have been available, but its absence should have been noted and strongly regretted since it makes the decision reached under s.4 MCA largely artificial.
The actual best interests assessment to be reached here was a subtle one. Vaginal birth after caesarean is a normal practice and the risks of uterine rupture cited in the judgment are those given in standard literature given to women considering this. So if AA was refusing a caesarean this did not by itself indicate anything amiss. Many women with capacity with a history of previous caesareans choose to give birth vaginally every day. The case also reinforces the view that adults lacking capacity are not allowed to make the same risky decisions that are permitted to the rest of society.
As Lucy Series predicted, if AA had been present a better judgment might have been reached. There might have been practical difficulties in securing the physical presence of a woman with serious mental distress, currently detained who was also 39 weeks pregnant at this hearing. But the sheer absence of her voice in the decision being reached about her life is utterly inexcusable. We must do better than this.
Finally, the thing that utterly baffles me about this judgment is Mostyn J’s objection to the placement in a Mother and Baby Unit, which is what her treating clinician had recommended and which would have been by far the best option for her since it would have respected the one wish we know her to have had – to have contact with her baby. I cannot make head nor tail of paragraph 7 of the judgment and can only identify uncharitable (to Mostyn J.) interpretations to place upon it. If anyone could help me out I’d be grateful.