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.


Draft Comment on Article 12 CRPD

The Committee on the Rights of Persons with Disabilities has published its Draft General Comment on Article 12 – the right to equal protection before the law.

This is a really important document for people with mental disorders. You should go and read it and ideally respond to it. Continue reading

A post that is not about forced caesarean sections

Commenting on this case is uncharacteristically fashionable for this blog.

But it has to be said that even after the publication today of the family court judgment concerning the placement of the little girl, P, for adoption there is still far too little which we can seriously evaluate here.

What can’t we say?

We cannot evaluate the original decision to admit the mother to hospital. It would appear that she has a history of significant mental disorder and has continued to receive subsequent specialist mental health care in Italy but the actual symptoms that precipitated her admission in June 2012 are not in the public domain and probably never will be since decisions to detain someone in hospital in this country are clinical rather than judicial and remain confidential.

We cannot evaluate Mostyn J’s judgment in a Court of Protection hearing held in August 2012. The hearing presumably found that the mother did not have capacity to consent to a caesarean section but that it would be in her best interests for the procedure to be performed. This could be for any number of reasons. That judgment is not in the public domain although it may yet be published. It is not clear why the decision about caesarean section needed to be made in court. Many pregnant women with mental disorders detained in hospital will retain capacity to make decisions about their care during the birth so this was not an inevitable or essential step by the hospital. There must therefore have been a specific aspect of the mother’s care that precipitated the move to seek a court order specifying that a caesarean section would be in her best interests.

It is worth noting that by taking this action the hospital were in fact opening their decision-making up to scrutiny, not concealing their actions in order to facilitate a secret adoption. Ss.5 and 6 of the Mental Capacity Act codify the doctrine of necessity – they allow clinicians confident that a medical procedure which is in an incapable adult’s best interests to carry it out and provide a general defence against actions under the civil or criminal law for doing so. If the mother’s clinicians were confident that she lacked capacity to consent to a caesarean and nevertheless would (or might) require one they did not need to apply to the Court of Protection for scrutiny of that decision.

It is also significant and welcome that the hearing took place in the Court of Protection. There is highly controversial caselaw that a caesarean section may be administered to a woman detained in a psychiatric hospital under s.63 of the Mental Health Act as treatment for her mental disorder (Tameside and Glossop v CH [1996] 1 FLR 762). In theory the hospital could, if the mother had refused a caesarean section for reasons relating to her mental disorder, have performed the procedure without her consent as long as it was in her best interests. This is an alarming state of affairs, but it is nevertheless a case that whilst criticised has not been overturned (though I’d strongly urge clinicians reading this not to administer caesarean sections to their detained but capable and refusing patients on ethical grounds alone).

Instead the hospital took a far more responsible course of action and asked the Court of Protection to clarify whether the mother had capacity and whether the intervention was in her best interests – thus providing two safeguards which do not apply to treatment administered under the Mental Health Act. I might, if it is published, deplore Mostyn J’s reasoning about the mother’s best interests or her capacity but I welcome the fact that the issue was decided in the Court of Protection.

We can evaluate the fact that soon after the birth of her child the mother returned to Italy whilst P remained in England. This was regrettable. Why this took place is not clear. The mother may have had strong reasons for wanting to return to Italy. P was with foster carers and it may not have been in her best interests to be removed and placed with a mother who was still seriously unwell at that time. Nevertheless allowing the mother and child to become separated at that time was a decision (or possibly omission) on the part of clinicians which has had significant implications for mother and child subsequently.

And we can evaluate the judicial reasons given for allowing P to be placed for adoption. These are simple. P was six months old at the time of the hearing in Feb 2013. The object of a Family Court hearing is to secure the welfare of the child. There is evidence that if adoption is agreed to be the best means of securing the child’s long-term welfare then the child’s best chances of achieving a stable placement are attained if the child is settled before nine months. So if adoption was agreed to be the best outcome time was of the essence for P. If on the other hand P was to return to the care of her mother, as her mother wished, her hope was that P would remain with foster carers in the UK for a further year before making the transition to life with her mother in Italy.

P’s mother had made a remarkable recovery and was doing well, but this was against a backdrop of recent serious mental illness. She did not currently care for her two older children. She did not have extended family who were in a position to care for P and it did not appear that P’s father was able to care for P. In those circumstances there was a risk that if P’s mother relapsed she would not be able to provide the stable placement P now needs if she is to have the maximum chance of having a good start in life. Nor was the transition plan proposed one which maximised P’s chances of stability.

At this point the circuitous route by which P had reached local authority care is irrelevant. What matters is reaching the decision which will reflect P’s best interests between now and when she turns 18. On the basis of the evidence the judge found that she would be more likely to find stability with an adoptive family than with her mother, even though adoptive families can be imperfect and unstable. As a result he over-rode the requirement for the parent’s consent to the adoption and allowed Essex County Council to start seeking a permanent family for the child.

What can we say?

There may well have been some cock-ups in this case. In particular, para 9 of the judgment describes a family court hearing in October 2012 when the mother appeared unwell but her doctors asserted that she had both legal capacity and the capacity to decide to return to Italy which she subsequently did. This practical separation of mother and child only seven weeks after the birth must, presumably, have made re-establishing contact difficult and raises serious and troubling questions about how we define best interests in cases concerning families. P’s interests were paramount and her mother at that time may not have been able to care for her, but it is not obvious on the basis of what has been reported so far that anyone involved was making decisions with a view to promoting the mother and child relationship.

At the same time whilst we do not know why the application for an order finding that a caesarean section was in the best interests was made we do know that making the application suggests a concern to uphold the law.

Nothing in the facts currently in the public domain suggests a conspiracy. I could try to excuse the terrible sensationalist reporting on this case on the basis that it does involve the complex operation of three different statutory jurisdictions. But I cannot grant that excuse. The underlying statutes are not difficult to understand. Decisions to admit people to hospital on the basis of a mental disorder without consent must be made under the Mental Health Act 1983, decisions taken about treatment for people lacking capacity must be made under the Mental Capacity Act 2005 and decisions made regarding the subsequent welfare of any child born as a result of those interventions must be made under the Children Act 1989.

The people who make decisions about Mental Health Act admission and treatment are psychiatrists and social workers and therefore employees of the NHS. The decisions made about the welfare of the child were made by social workers working in two different teams within Essex County Council. In the family court the judge was assisted by the evidence by P’s guardian and in the Court of Protection the mother will have been represented by the Official Solicitor. The conspiracy theorists are asking us to believe that multiple psychiatrists and social workers working for both the NHS and Essex County Council, assisted by judges sitting in two separate courts, as well as independent representatives of CAFCASS and the Official Solicitor colluded to acquire a baby. These people have clearly never tried to organise a meeting in the public sector.

There is a lot wrong with our legal system. But misrepresenting it as a closed system capable of a monumental conspiracy on this scale is not only a calumny it is dangerous. It leaves the people who have most cause to rely on it with unjustified fears – instead of focusing on the perfectly justified fears we should be addressing.

Pregnant women with mental disorders, even if currently detained, should not be given the impression that substitute decisions about their clinical care during childbirth are likely to be made on the basis of a social worker’s view about the best interests of the child, rather than what is in their clinical best interests. This is not true. Social workers were not involved in that decision.

Nor is it true that the judge made a decision to override the mother’s wishes for fear that she would stop taking her medication in the future as was reported in both the Daily Telegraph and Daily Mail. The far more profound issue was that the mother’s plans for the child involved a long period of uncertainty and the judge took the view that a stable placement through adoption was to be preferred.

There is a final question this case raises. We know that reporting judgments may be a good thing because transparency in judicial reasoning is right in principle. In the family courts and Court of Protection it may come at a cost to vulnerable participants who have no power to control the information which enters the public domain in this way.

One justification for reporting more cases is of course that we can scotch pernicious inaccurate reporting of this nature by ensuring the facts are available from the outset. But a trend worth monitoring when hysteria of this nature is so easy to whip up is the relationship the facts have to the commentary.

Call for Papers – Mental Health and Mental Capacity Law Stream Socio-Legal Studies Association Annual Conference, 9 – 11 April 2014

This years Socio-Legal Studies Association Annual Conference is to be held at Robert Gordon University, Aberdeen.

Initial Deadline for submissions: 27 January 2014

The past year has been a lively one for those interested in mental health and mental capacity law. The Supreme Court has made its first decision interpreting the Mental Capacity Act 2005 (and presumably its decision on the meaning of ‘deprivation of liberty’ will be handed down before the Conference). The Court of Protection continues to cut new ground, most notably in areas relating to best interests. We continue to see the results of how the Scots legislation and the Mental Health Act 2007 south of the border, are working in practice (CTOs, anyone?). At the international level, it is increasingly clear that the UN Convention on the Rights of Persons with Disabilities is changing what is expected of mental health and mental capacity law.
While these legal developments provide a particularly apt occasion for the stream, papers from all areas of the law relating to mental health, mental capacity and mental disability are welcome, including:
• Civil, criminal or informal mechanisms of control, in hospital or in the community
• The law relating to incapacity benefits, and other issues relating to care and programmes in the community;
• Issues relating to discrimination on the basis of mental disability (be it mental health issues, psychosocial disabilities, or learning disabilities)
• International law relating to people with mental disabilities;
• The role of administration or care-givers in the provision of services;
• The role or experience of service users in mental health care.
We impose no restriction on methodology: papers may be empirical, policy-centred, historical, analytic, traditional legal, or theoretical, in approach.
The SLSA is an interdisciplinary organization, and papers are welcome from any academic background, and from people at any stage of their career.
The stream co-ordinator is also happy to consider joint sessions with other streams in the conference where appropriate.
Please feel free to circulate this call for papers to interested scholars and other interested persons working in any discipline related to law and mental disability.

The stream co-ordinator is Peter Bartlett ( Please feel free to contact him with enquiries about the stream. Proposals for papers should be submitted online through the conference website.

About the conference

The Socio-Legal Studies Conference occurs annually, in 2014 at the Department of Law at Robert Gordon University, Aberdeen. It is among the major socio-legal studies conferences internationally, attracting a wide variety of scholars, and subject streams within the conference span the range of topics in socio-legal studies.

All attendees (including presenters) must register for the conference and pay the required attendance fee. Reduced rates are available prior to 7 February 2014, and also for students and SLSA members. Scholarships are also available for students. For more information, see the conference web site.

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

Another reason why £9000 tuition is a bad idea

Effective legal aid is essential to the running mental health law. Anyone who works in the field knows that the considerable bulk of people admitted to psychiatric facilities have few if any assets; without effective legal aid they will not have effective representation. It is disturbing that no one appears to have given serious thought to the effect of high tuition fees on legal aid practice. Continue reading