This case considers what might fall within the auspices of treatment under the Mental Health Act 1983 and factors to take into consideration when making such decisions. The Judge also comments (obiter) on the scope of the inherent jurisdiction and what might (or might not) amount to “vulnerability.”
||JK v A Local Health Board  EWHC 67 (Fam)|
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:
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:
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:
His clinical team were concerned about the following risks:
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.
As obiter commentary: