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.
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.
Last month, a research team across the Universities of Bristol and Bradford and the Mental Health Foundation released their report into best interests decision-making under the Mental Capacity Act 2005 (MCA). The MCA allows for (among other things) decisions to be made for an individual when that person is found to lack the capacity to make the decision for herself. If the individual is found to lack capacity, then a decision can be made on her behalf in her ‘best interests’. The research team looked at a great deal of aspects around this decision-making process, but I was particularly interested in their findings regarding the first step: determining capacity. Continue reading