Case Summary: JK v A Local Health Board [2019] EWHC 67 (Fam)

• Treatment for mental disorder under the Mental Health Act 1983
• Scope of the inherent jurisdiction
• Advance decisions to refuse treatment

• Provides further judicial guidance on what might amount to treatment under the Mental Health Act 1983 (N.B. each case will turn upon its facts and caution should be exercised in drawing analogies);
• Forced treatment (here force-feeding) under s.63 Mental Health Act 1983 in the face of a valid and applicable advance decision to refuse treatment might engage Article 3 ECHR (prohibition of inhuman or degrading treatment or punishment) – close consideration of Article 3 and the test of medical necessity is required;
• A decision to treat (or not to treat) under s.63 Mental Health Act 1983 is amenable to judicial review;
• In cases where clinicians are uncertain as to whether a treatment falls within the MHA, an application should be made to Court to approve the treatment (or lack thereof) through declaratory relief. Such cases will be a “full merits review”;
• The Court will be heavily reliant on medical/psychiatric evidence in determining whether treatment falls within the MHA and the interrelationship between the mental disorder and the treatment;
• Fact that a person of sound mind might make a similar decision in similar circumstances does not prevent a conclusion that the same decision has an interrelationship with a mental disorder from which a person is suffering sufficient to mean that it falls within the remit of the MHA where treatment could be given;
• Inherent jurisdiction:
  • Shouldn’t be used for a situation that is covered by a statutory scheme – for example, that is covered by either the MCA or the MHA (including, situations where those Acts do not permit intervention);
  • If someone is deemed to have capacity under the MCA and the proposed treatment does not fall within the ambit of the MHA, the inherent jurisdiction shouldn’t be used to address a “vulnerability” arising from the impairment/disturbance in the functioning of the mind/brain or the mental disorder – as that “vulnerability” is contemplated for and within the scope of either MCA and/or MHA.

This case concerns JK, who is on remand for an alleged murder and transferred to prison under s.48 Mental Health Act 1983. He has Autism Spectrum Disorder, was refusing food and had made 2x advance decisions to refuse medical treatment. He had capacity to refuse food and refuse medical treatment. The issue was whether force-feeding would be treatment for his mental disorder which could fall within the auspices of s.63 Mental Health Act 1983 (and therefore be given absent his consent).

The Court gave “maximum weight” to the evidence of the specialist ASD Consultant Psychiatrist – who the Court found to be measured, highly knowledgeable and a careful witness.

Whilst accepting that many people, faced with JK’s situation, would feel despair and potentially be suicidal, that did not detract from the analysis as to the link between JK’s ASD and his decision-making. JK’s decisions were a symptom/manifestation of his mental disorder and as such fell within the auspices of the MHA.

Mrs Justice Lieven emphasised that just because force-feeding is capable of falling within the scope of s.63, does not mean that it should be given, acknowledging that for JK it would be:

• Highly intrusive;
• Extremely upsetting and traumatic.

If the Health Board decide to force-feed under s.63, the matter will need to be restored to Court.

Before Mrs Justice Lieven DBE

JK is a 55yr old man with a diagnosis of Autism Spectrum Disorder (“ASD”), currently on remand for alleged murder of a close relative (only a matter of weeks previously). He was recently transferred from prison to hospital under s.48 Mental Health Act 1983 (the “MHA”). JK is assessed as having litigation capacity to instruct legal representation.

JK was diagnosed with ASD in October 2018; he is reported to present with symptoms consistent with ASD e.g. rigidity of thinking, liking of routine and a difficulty with dealing with the unexpected.

JK expresses a consistent wish to die and an intention to starve himself to death. Between 10 September – 2 October (23 days) he refused food completely. He has intermittently eaten since then because:

• a concern that he would be found to lack capacity to make the decision if in a weakened state; and
• he wanted to attend and give evidence in Court.

On 28 September, JK made an advance decision refusing medical intervention, even if his life is at risk. He made a further advance decision on the same terms on 31 October.

JK has been assessed by a Consultant Psychiatrists who is a specialist in ASD. He concluded that JK has capacity to:

• refuse food;
• refuse medical treatment (including palliative care); and
• litigate.

His clinical team were concerned about the following risks:

• re-feeding syndrome leading to cardiac arrest; and/or
• death from lack of nutrition.

The specialist ASD Consultant Psychiatrist considered that JK’s decision to refuse food was a manifestation of his ASD (“demand avoidant” behaviour in the face of a crisis) and that there was potentially treatment available which might alleviate his ASD (psychological interventions and force-feeding).

At the time of the hearing, the full, detailed treatment plan had not been completed – the treating clinicians being in the process of taking advice from specialists. As such, the treating team were not yet in a position to take a view on whether the treatment plan would be implemented if it was declared by the Court to be treatment for JK’s mental disorder which could be delivered under the MHA.

The Health Board was seeking a declaration that it would be lawful for the clinical team to force-feed under s.63 MHA (on the basis that it was not yet possible for the Court to make a declaration that it should be given as the treatment plan was not yet sufficiently detailed).

JK argued that his decision to refuse food and medical treatment was not a manifestation of his ASD, but a response to the situation that he found himself in.

• Every person of age and of sound mind has the right to make decisions about treatment, even if those decisions bring about his death;
• The 3 circumstances where an adult can have treatment imposed upon them without their consent are:
  • If they lack capacity under the Mental Capacity Act 2005;
  • If they are detained under the MHA and treatment falls within s.63/s.58;
  • If they are “vulnerable” and under the High Court’s inherent jurisdiction.
• Force-feeding can be treatment within s.63 (B v Croydon Health Authority [1995] 1 ALL ER 683 – where the patient had borderline personality disorder and it was deemed that force-feeding was treating the symptom of the disorder of compulsion to self-harm);
• Force-feeding was also permitted in R v Collins ex p ISB [2000] Lloyd's Rep. Med. 355 to Ian Brady – as it was deemed that his hunger strike was a manifestation/symptom of his personality disorder. The fact that a person without a mental disorder could reach the same decision on a rational basis in similar circumstances, did not change the fact that Mr Brady’s decision was because of his personality disorder;
• JK has capacity to refuse food, to refuse medical treatment and to litigate;
• There is no statutory process under the MHA to question the decision of the Responsible Clinician to compulsorily treat under s.63 MHA – but such a decision could be judicially reviewed;

As obiter commentary:

• JK is not “vulnerable” for the purposes of the inherent jurisdiction;
• The inherent jurisdiction cannot be used to reverse the outcome that is reached under a statutory scheme – e.g. under the MCA or the MHA;
• JK’s “vulnerability” would have been born out of his ASD – but he was assessed as having capacity (so does not fall within the MCA) and if the decision had been that the treatment fell outside the MHA, there would not have been a “gap” in the statutory framework – he would have been outside of the scope of both, but entirely within the contemplation of those schemes.