Background

This judgment involved KAG, a woman in her late 60s. She had occasional bouts of depression throughout her life. She underwent successful surgery in December 2023 for an undescribed ‘serious condition’. Following discharge home, she developed a severe depressive illness associated with self-neglect. This included a significant decrease in her oral intake, with about 20% body weight loss. She was admitted to a general hospital in January 2024, where she remained until the court hearing in July 2024. A nasogastric tube (NGT) was inserted in January 2024 to enable clinically assisted nutrition and hydration (CANH) ‘apparently in reliance on the MCA, and without KAG actively objecting’. She was treated with unnamed ‘psychiatric medications’ and detained under s.2 MHA twice, but neither instance was ‘converted’ to s.3 as she agreed to stay and receive treatment.

At the time of the court case, KAG’s mental state had improved a little, but she remained ‘very anxious’ and with ‘severe depression’. She still had inadequate oral intake and not enough ‘to keep herself alive’. In May 2024, KAG was assessed by the mental health tribunal as likely to engage in assessment and accept treatment, and therefore the s.2 was discharged. However, she did not engage – she declined medication and ‘expressed dissatisfaction’ with NGT feeding.

The judgment noted the vagaries of long-term NGT use in ensuring adequate CANH. A patient in KAG’s position needing long-term CANH would normally have a percutaneous endoscopic gastrostomy (PEG) tube inserted, enabling safer and more effective administration of nutrition and hydration. In June 2024, psychiatrists concluded she needed an admission to a psychiatric hospital under s.3, but the practicalities of NGT feeding precluded this – the psychiatry wards not having the required nursing expertise. The National Health Service (NHS) trusts involved agreed KAG needed a PEG. This would be undertaken once KAG was detained under s.3 and under the provisions of s.63 prior to her transfer to the psychiatric unit. Medical recommendations for admission for treatment were completed, but the approved mental health professional (AMHP) acting on behalf of the local authority was not in agreement that a PEG tube could be inserted utilising MHA powers.

Expert evidence

The evidence from KAG’s treating psychiatrist was that her refusal to eat was a manifestation of her mental disorder. Apart from the difficulties with long-term CANH noted above, a further imperative for a PEG was her overall physical health – her ‘physiological reserve’ was deteriorating owing to the prolonged admission, reliance on NGT feeding and the ‘largely untreated’ severe depressive illness. Continuing delays in PEG tube insertion would also increase risks from the insertion procedure. There was a clear risk she would become too frail to undergo the PEG procedure. KAG’s treating psychiatrist in the general hospital confirmed that, once detained and transferred to a mental health unit, she would have a new responsible clinician and any future treatment decisions, including electroconvulsive therapy (ECT), would be for them to make.

Why the case came to court

At the time the s.3 medical recommendations were made (3 June 2024), the local authority was not in agreement with a PEG tube being inserted under MHA powers. The AMHP involved decided she would not continue the MHA process until either (a) the High Court had determined whether PEG insertion fell within s.63 (her view now being it did) or (b) the Court of Protection determined KAG was ineligible to be deprived of her liberty under the Deprivation of Liberty Safeguards (DoLS), i.e. was this a s.63 MHA ancillary treatment or a serious medical treatment under the MCA? The trusts involved wrote a ‘long letter’ to the local authority explaining the legal framework and ‘inviting them’ to agree to progress the s.3 assessment (17 June 2024). The trusts had also alerted the Official Solicitor’s office that they may need to make an urgent application to the Court of Protection – KAG having been granted a standard DoLS order in hospital. Owing to miscommunications and misunderstandings regarding the legal framework to be used for the PEG procedure between KAG’s solicitor and the Official Solicitor, there was a delay in the Court of Protection hearing.

Outcome

By the time of the Court of Protection hearing (12 July 2024), the Official Solicitor’s position had been made very clear – the proposed treatment fell within s.63/s.145 MHA and it was in KAG’s best interests to have a PEG tube inserted. As a result, the local authority and AMHP changed their positions and no longer sought any MCA declarations. The AMHP was now willing to complete the s.3 admission process. The trusts, however, ‘urged’ the court to make a declaration as to the lawfulness of the insertion of a PEG tube under the MHA, not because this was ‘strictly necessary’, but to avoid any further confusion about the applicable legal framework that would result in a further delay to KAG receiving effective mental health treatment. Although the judge noted that the application was not required, she agreed owing to the complex background of the application and to prevent ‘further confusion and delay’. She confirmed the AMHP had rightly determined that the MHA was the correct legal framework, including the provision of CANH, and this was the framework that should have been applied. The judge commented ‘While there will be cases where the scope of s.63 MHA is in question, this was not one of them’. The judge concurred with the parties in the case, who agreed about various elements of the case (Box 3).

The judge found it was ‘unquestionably in KAG’s interests to receive CANH’ and equally clear it was in her best interests for this to be administered via a PEG. She noted that the procedure was reversible and, importantly, KAG would be able to eat/drink normally while it was in place. Once the PEG was in place KAG could then move to a psychiatric hospital to receive appropriate treatment for her mental illness. The judge opined that although KAG was ‘fearful’ of the PEG procedure, it was the ‘only realistic option’ to maintain her physical health to enable her to ‘get through this period of depression’. She concluded by declaring, under the High Court inherent jurisdiction, that ‘in the event KAG is detained under the MHA, the insertion of a PEG for the provision of CANH will be treatment for the purposes of s.145 MHA and falling within the meaning of s.63’.

Background

This case involved a 34-year-old man, CC, detained under s.3 MHA in a medium secure ward for deaf men within ‘A Healthcare’. He communicated via British Sign Language. Owing to poor adherence to diabetes treatment, CC developed renal failure requiring dialysis. The judgment noted a clear ‘complex interaction’ between his ‘mental disorder and his physical condition and thus physical health needs’. When physically well, CC understood he needed dialysis and expressed ‘a clear and consistent wish to live’. However, ‘at times of crisis’ he would refuse dialysis and admission to hospital (‘B NHS Trust’). The responsible clinician, Dr H, regarded CC’s non-cooperation with dialysis as a manifestation or symptom of his mental disorder. CC was described as having ‘at best’ fluctuating capacity to make decisions about dialysis treatment. The key issue was whether CC should be ordered to undergo haemodialysis at times when he did not consent to it. The two healthcare trusts sought clarification that dialysis could be provided under s.63 MHA as medical treatment within the meaning of s.145(4).

Issues arising

The judgment outlined the issues as being:

• whether CC could be treated under s.63 – the renal failure and refusal to accept dialysis being described as a manifestation of his mental disorder

• whether s.63 cannot be relied on by the applicants because of s.58 MHA

• whether, in any event, CC could be given dialysis under the MCA because he did not have capacity to make the relevant decision

• if CC had fluctuating capacity, whether a declaration can still be made under s.15 MCA (Power to make declarations).

The judgment noted that the case was brought to court in line with previous jurisprudence that advised ‘In cases of uncertainty where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court’ (A NHS Trust v A [2013]). It observed it was ‘not straightforward’ to use s.63 to authorise dialysis – ordinarily, dialysis was for end-stage renal failure and ‘would not normally’ be a treatment to alleviate or prevent a worsening of, or to treat the consequences of, a mental disorder. However, Dr H contended that ‘CC’s need for dialysis was a consequence of his mental disorders’. Thus, the case was brought to court because of (a) the issue of whether dialysis was a treatment to alleviate CC’s mental disorder and (b) CC’s fluctuating capacity. Dr H sought to ensure he was ‘acting lawfully and in CC’s best interests due to the gravity of the decision’.

Psychiatric history

CC’s diagnoses were described as psychotic depression and mixed personality disorder with marked dissocial and dependent traits. There was no significant history prior to his assessment by social services after his mother had raised concerns about his poor diabetes control and self-neglect. Owing to diabetic complications, he was admitted to a general hospital in August 2014. His mental health was assessed there because of his presentation. He was admitted informally to a mental health ward in September 2014 with the diagnosis of depression with psychotic features. In March 2015, he was detained under s.2 MHA and subsequently s.3, under which he remained. In May 2015, CC was admitted to a medium secure ward at A Healthcare, where he remained at the time of the court hearing. Dr H concluded CC was at ‘imminent risk of death’ because of his regular refusal of dialysis and associated treatments. This was underpinned by ‘the degree of CC’s personality disorder’, causing self-neglect to ‘an extreme level’. Dr H further described how CC remained ‘extremely argumentative and abusive towards staff’ and was ‘very impulsive’, for example he had turned off a dialysis machine during active dialysis and was ‘very skilled at subverting security and does this to get immediate gratification regardless of the longer-term harm he does to himself or other[s]’.

Medical history

CC was diagnosed with type 1 diabetes mellitus at age 15. His chronically poor adherence to diabetes management eventually caused renal failure. Throughout his admission to A Healthcare, he complied poorly with physical treatment. In March 2019, he presented acutely unwell and was transferred to B NHS Trust, where he was found to be in renal failure requiring a renal transplant. Haemodialysis commenced in May 2019, but his cooperation ‘fluctuated significantly’ – he disconnected himself from the dialysis machine at least once and refused to attend at times. Consequently, a move to peritoneal dialysis was commenced. This overnight dialysis would be less burdensome compared with haemodialysis three times a week. However, a period of a few weeks of critical haemodialysis was needed before peritoneal dialysis could commence (following surgical insertion of a catheter into his abdomen). It was hoped peritoneal dialysis could commence in February 2020. Despite agreeing to this, CC only accepted about half the required amount of haemodialysis needed to keep him well. It was assessed that if he continued this suboptimal level of dialysis then he would probably die within 6 weeks. Clinicians drew up a treatment plan to enact if CC refused haemodialysis, to include light restraint and, if necessary, sedation. The intention was that this would only need to continue until early March 2020, when peritoneal dialysis could commence. An additional urgency, should he refuse dialysis, was that he would die within 9–13 days.

Capacity

Clinicians in both trusts assessed CC’s capacity to consent to treatment with dialysis. As mentioned above, it was concluded that ‘at best’ he had fluctuating capacity. Two days before the hearing, Dr H concluded that CC lacked capacity to consent to dialysis as he was unable to understand or retain relevant information (s.3(1)(a)(b) MCA) owing to his personality disorder (s.2(1) MCA). When CC was mentally well and cooperating with haemodialysis, he engaged in appropriate discussions about future treatment, including ‘his desire to switch to peritoneal dialysis’. When he met the solicitor (the day before the hearing) he understood that, were he to stop dialysis, he ‘would, not could, would die’ and said ‘I don’t want to die’. He also stated ‘100% it’s my intention to carry on having dialysis’. He ‘was reluctant to accept the possibility that he might refuse it’ but stated that ‘if I did, I won’t but if I did, I would want to be restrained and have it given to me’. It was clear CC did not wish to die and was not refusing dialysis to allow himself to die.

However, when stressed, psychotic or physically unwell, especially when he had not had haemodialysis for several days, the clear consensus was that he lost capacity to make haemodialysis decisions. At such times he was unable to understand, retain or weigh the relevant information and at times would refuse to communicate any decision. Dr H explained that, following extensive discussions between himself, the renal consultant, the ward multidisciplinary team, CC and his family, and CC’s independent mental capacity advocate (IMCA), his opinion was that it was in CC’s best interests to have haemodialysis and to have this under ‘restraint/sedation if it is necessary to prevent imminent death and he is refusing dialysis for as long as he is clear and consistent that he does not want to die’. Dr H commented ‘The purpose of ensuring that [CC] has dialysis, even if he is refusing it, is so that his long held desire to stay alive is met, and to enable him to stay alive long enough to receive a renal transplant which will very significantly improve the length and quality of his life’. Dr H appositely noted that, were CC to consistently express capacitous views and wishes that he wanted to die or lacked capacity but was consistent in stating he wanted to die, his best interests would need to be reassessed.

The Mental Health Act

The judgment considered the ‘interactions’ between s.63, s.145(4), s.58(1)(b), s.58(3) and s.62(1). CC’s counsel argued that dialysis was not treatment for a manifestation of CC’s mental disorder and therefore s.63 was inapplicable – they suggested the correct route was s.58 and SOAD authorisation. Counsel for the trusts argued to the contrary. The judgment reviewed whether dialysis was medical treatment, the purpose of which was to alleviate or prevent a worsening of a manifestation of the mental disorder, i.e. within section 145(4). The judgment was clear that s.63 was the appropriate course:

i.e. s.58 was expressly excluded from cases where urgent treatment is under s.62, and the s.62 threshold was met in this case. The judgment also observed ‘in most if not all cases where s.63 is relied upon, the treatment will involve some use of medication, often sedation’ and that this would also be subsumed under s.63 (as opposed to being separately authorised under s.58 and SOAD authorisation): ‘It makes no sense of the statute for sedation to be dealt with under one statutory route and other forms of treatment to be dealt with by a wholly different one’.

The Mental Capacity Act

Use of the MCA was proposed as an alternative, as CC had fluctuating capacity to consent to dialysis and the court could make a ‘contingent declaration’ pursuant to section 15(1)(c) MCA – that it was lawful to treat CC with the proposed dialysis treatment plan in the event he lacked capacity to make the decision. The judge concurred there was ‘no doubt’ that CC did have fluctuating capacity, and it was clear when he was agitated, upset and refused dialysis that he did not have capacity to consent. The judgment emphasised this was not a case of ‘CC simply making a poor decision with which the court and the health professionals do not agree’. A magnetic factor for the court was that when well CC did not wish to die and wished to have dialysis. The crux of the matter was that when CC changed his mind this was ‘a function of his mental state worsening, and that in turn is a function at least in part of him refusing dialysis’ – so when he refused dialysis, he lacked capacity. Pragmatically the judgment noted it was ‘not possible or practical’ for the trusts to come to Court each time CC had lost capacity in order to seek a s.15 MCA declaration that providing dialysis, including restraint if necessary, was lawful, especially given how rapidly his mental state fluctuated.

Interestingly, the judgment thought in some ways the ‘case is more straightforward’. Returning to the magnetic factor of the case, at the time of the hearing, CC had capacity, and it was clear he wanted dialysis, did not want to die and wished to continue with dialysis when he lost capacity. The judgment felt this was in practice ‘akin to an advance decision’ under s.24 MCA (Advance decisions to refuse treatment: general), albeit CC had not formally made an advance decision contained within s.25 MCA (Validity and applicability of advance decisions) and it was an advance decision to accept treatment, not refuse it. Hence, the judgment noted that in these circumstances it was ‘relatively easy’ to declare that if CC lost capacity for dialysis, then it was in his best interests (s.4 MCA) to have dialysis, which ‘undoubtedly’ accorded with CC’s wishes and feelings. If he did not have dialysis he would ‘die very prematurely’.

The judgment

The judge concluded that this was ‘a clear case of the treatment proposed, the dialysis, treating a manifestation of the mental disorder, namely personality disorder’ and CC’s refusal of dialysis was ‘very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63’. The judgment revisited the interplay between various sections of the MHA and found the following.

• The physical condition CC was now in, whereby dialysis was critical to keep him alive, was properly described as a manifestation of his mental disorder. There was a very real prospect that if he was not mentally ill, his self-care would be such that he would not need dialysis.

• CC’s refusal of dialysis was ‘very obviously a manifestation of his mental disorder’ and dialysis treatment was therefore treatment within the scope of s.63.

• CC’s capacity to consent to dialysis treatment fluctuated. However, his consent was not required in order to be treated, by way of dialysis, under s.63.

• The decision whether it was in CC’s best interests to receive dialysis treatment was a matter for CC’s responsible clinician (in consultation with clinicians for his physical health), subject to the supervisory jurisdiction of the court.

• Section 58 had no applicability – s.62 disapplies s.58 in urgent treatment cases such as this, where treatment is immediately necessary to save CC’s life, to prevent a serious deterioration of his condition and to alleviate serious suffering – s.63 was the appropriate course.

• As s.63 can be used as authority to provide medical treatment to CC, including by dialysis treatment and by the use of light physical and chemical restraint (if required), it was unnecessary for the court to exercise its discretion and make a contingent declaration pursuant to s.15(1)(c) MCA that it was lawful to treat CC in accordance with the proposed dialysis treatment plan, in the event that he lacked capacity to make a decision regarding dialysis treatment at the relevant time.