Freedom of religion, the Mental Health Act and Mental Capacity Act Part 2

So Mostyn J’s judgment in the case of RC has been handed down. Continue reading

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Freedom of religion, the Mental Health Act and Mental Capacity Act

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.

Turning realisable rights into real rights

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?

A final point on orders

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.

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. Continue reading

Stanev v Bulgaria

Rusi Stanev was placed under partial guardianship by the Bulgarian authorities in 2002. His guardian was a public official whom he had never met. This guardian asked his municipal authority to place him in a social care home without seeking his consent, and also arranged for Mr Stanev’s small social security income to be paid direct to the home and not to pass through his hands. The home was in Pastra 400km from Mr Stanev’s home town of Ruse. Conditions in the home were found by the CPT in 2003 to be so poor as to amount to degrading treatment for the purposes of Art 3 of the European Convention on Human Rights. When Mr Stanev tried to leave staff brought him back. When he asked to be discharged from guardianship he was told that this was not in his interests. When his lawyer applied to the courts to have him discharged from guardianship she was told that the application could not be heard because his guardian had not authorised it.

The Grand Chamber of the European Court of Human Rights handed down their judgment on the 17th Jan. The judgment can be found on BAILII here. Continue reading