Advance decisions, best interests and the definition of treatment: JK v A Local Health Board
A sensitive and complex case involving the Mental Capacity Act 2005, the Mental Health Act 1983 and the High Court’s inherent jurisdiction.
In a sensitive and complex case involving the Mental Capacity Act 2005 (‘the MCA’), the Mental Health Act 1983 (‘the MHA’) and the High Court’s inherent jurisdiction, the Family Division had to deal with an application by a local health board relating to a prisoner with autism spectrum disorder (‘ASD’) detained under the MHA who was refusing to eat and had announced that he wished to die, having completed an Advance Decision to this effect. The court also had to look at potential future treatment options, including the potential legality of him being force fed.
The subject of the health board’s application was a 55 year old man with ASD, JK, on remand after allegedly murdering a relative and a restricted patient under section 48 of the MHA. There was no argument as to JK’s capacity to make the decision to refuse food and medical treatment, but the health board wanted the court’s ruling as to whether force feeding could be seen as medical treatment for his ASD. If so, this could be done without his consent pursuant to section 63 of the MHA, which provides that treatment for mental disorders can be given to people regardless of consent.
The court found no reason to question JK’s capacity whilst the evidence suggested that he understood the consequences of his decision. The key question therefore was around section 63. Although some previous case law has concluded that this could involve force-feeding, the balance has shifted towards recognition of a patient’s rights under the European Convention on Human Rights (‘ECHR’) and the need in particular to consider necessity and proportionality.
The court’s decision
Section 63 MHA - crucially, in this case, the clinicians involved in JK’s care had not yet drawn up a treatment plan, neither had they considered the factors for and against force feeding him. Previous authority suggested that “where there is doubt whether the treatment falls within section 145 or section 63, the appropriate course is for an application to be made to the court to approve the treatment". The judge concluded that the court’s inherent jurisdiction to make declaratory orders could be used in this case, although any such decision as to whether any proposed treatment did indeed fall within section 63 of the MHA had to involve a full merits review.
The refusal to eat - whether proposed force feeding fell within section 63 was a decision for the court, which would be heavily reliant upon medical evidence. The treating psychiatrist's view was that JK's refusal to eat was a manifestation of his ASD and although many people faced with JK's situation would feel despair, it was not the court's task to try to compare his response with that of a hypothetical person without the condition. Rather, the judge found, it had to analyse the extent to which his response related to his condition, and the way his mind worked because of that condition. His refusal to contemplate any alternative paths was a consequence of his ASD and as such fell within section 63. This meant that the proposed force feeding was certainly capable of being treatment for the manifestation of his ASD.
Best interests – having reached the conclusion above however, the judge was at pains to stress that her decision did not mean that she accepted that force-feeding JK would be in his best interests or would amount to “treatment” that fell within the definition of section 145 of the MHA as being “to alleviate or prevent a worsening of the disorder…” JK had said in evidence that he viewed the possibility of force-feeding as abhorrent, so if it looked as though this were going to be likely, close consideration would have to be given to Article 3 of the ECHR, the relevant case law and the test of medical necessity.
Given that the health board were preparing a treatment plan, the judge concluded that, if JK refused to eat and the health board decided to force feed him pursuant to section 63, the matter would have to come back before the court, by way of a judicial review of the health board’s decision that force feeding was treatment falling within section 145, the court having already decided that it is capable of being treatment within section 63.
Conclusions and implications
Cases such as this will invariably turn on their individual facts, but this is a good example of the balancing act which the court must strike, particularly where the patient has capacity and has made an Advance Decision but also where treatment is needed for a mental disorder. The judge’s specific reference to the need to consider Article 3 is evidence of this balancing act and health providers would be wise to consider this when making decisions around patients and section 63 of the MHA.
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