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Capacity to refuse treatment and the Mental Health Act 1983

Our People - Maria Nicholas
9 June, 2014

We were recently instructed by a patient in a case before the High Court, concerning his right to refuse a blood transfusion. Although the patient’s identity cannot be revealed to protect his privacy, an anonymised judgment is available to read here: http://www.bailii.org/ew/cases/EWCOP/2014/1317.html

The case concerned a young man (“RC”) detained under the Mental Health Act 1983.  RC is diagnosed with a personality disorder and a symptom of that disorder is that he will sometimes seriously self-harm. On occasion that self-harm has led to serious blood loss such that a blood transfusion has been advised. RC is a Jehovah’s Witness, and will not accept blood transfusions, like others of his faith. Fortunately the last time this happened RC survived without having the blood transfusion administered.

RC’s psychiatrist was understandably concerned about what should happen if RC were to self-harm again to such a degree that he required a blood transfusion. AS RC was detained under the Mental Health Act 1983 (“MHA”), his psychiatrist had a power under s.63 MHA to give him treatment without his consent. It was the psychiatrist’s view that the blood transfusion constituted treatment for the purposes of s.63, in that the need for the transfusion flowed directly from the fact RC was suffering a mental disorder.

RC was assessed by his psychiatrist as having capacity to refuse a blood transfusion and moreover he had made an advance decision refusing a blood transfusion in case he were to lose capacity. The psychiatrist therefore felt she faced an ethical dilemma, and did not consider it would be correct to force the blood transfusion, despite the fact she had the legal power to do so, against RC’s capacitous wish, based on his religious faith (although it was raised during the case that even if his wish was not based on religion, he would still have the right to refuse – engaging Article 8 ECHR, rather than Article 9 ECHR).

The NHS Trust brought the case to the High Court on an urgent ex parte (without notice) application as it considered there was a significant risk RC would seriously self-harm again imminently. Two hearings took place on 9 and 10 April, and a final hearing took place on 24 April 2014.

Mostyn J found that RC had capacity to make a decision about refusing a blood transfusion, and found his advance decision to be valid, should he lose capacity and have to rely on that. The issue remained as to whether s.63 MHA applied, and if so, if it should be used.

It was argued on RC’s behalf that s.63 did not apply at all, on the basis that a blood transfusion cannot be considered treatment for a mental disorder. It was argued that RC’s case was different to those where, for example a patient with a personality disorder was refusing food in order to harm herself and s.63 was used to force feed her, on the basis that RC was not refusing the blood for any reason associated with his personality disorder, but purely due to his religious beliefs. The psychiatric evidence from both his treating psychiatrist and the independent psychiatrist instructed supported this; RC’s refusal of blood was not linked to his personality disorder. Further, there was evidence that to force the blood transfusion would in fact worsen RC’s mental state, and so it could not be considered treatment to alleviate or prevent the worsening of the disorder (in accordance with the definition of treatment in s.145(4) MHA).

Mostyn J did not consider these arguments in detail and concluded that s.63 did apply, in that the blood transfusion was treatment for the mental disorder. However, he also concluded that it would not be correct to force the transfusion on RC in the face of his capacitous refusal of the same.

Mostyn J went back to John Stuart Mill; he quoted his essay On Liberty (1859) where he stated at pp14 – 15:

That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign”.

A full merits review was carried out, and Mostyn J concluded that the decision made by the treating psychiatrist “is completely correct. In my judgment it would be an abuse of power in such circumstances even to think about imposing a blood transfusion on RC having regard to my findings that he presently has capacity to refuse blood products and, were such capacity to disappear for any reason, the advance decision would be operative. To impose a blood transfusion would be a denial of a most basic freedom” [paragraph 42].

RC will therefore not have the blood transfusion imposed on him against his wishes.

The other important point in this case is that the High Court acknowledged there are no checks and balances within s.63; a treating psychiatrist can make life or death decisions and decisions that would amount to “a denial of a most basic freedom” as here, with no requirement to obtain a second opinion or have the decision reviewed. Mostyn J therefore gave his view that in such circumstances, the NHS Trust in question “would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a ‘full merits review’ of the initial decision” [paragraph 21].

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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