Monday, 25 June 2012

Mental Health Act or Mental Capacity Act? The Case of E

Inserting a nasogastric tube, while potentially live saving, is a lot less pleasant than this posed model would have you believe

Since my lost post (What’s the Point of Mental Hospitals? Suicide and Suicide Prevention), there has coincidentally been a court judgment relating very closely to the arguments being put forward in that post, as well as the extensive and at times contentious comments on the post.

On 15th June 2012 the Honourable Mr Justice Peter Jackson issued a judgment in the Court of Protection relating to a 32 year old woman known only as E, who was suffering from Anorexia Nervosa, Emotionally Unstable Personality Disorder, and chronic alcohol dependence. This judgment could have far reaching implications.

E had a Body Mass Index of less than 12. She was in a palliative care setting and was refusing to eat. She had a very long history of anorexia, and had had been subject to many treatment regimes over that time, with little or no success. She was at the point of death. The essential decision the Judge had to make was whether or not further life saving treatment against her will was in her best interests.

It was presented to the Judge that, although past treatment had failed, there was a prospect that long term treatment for her eating disorder and other underlying conditions had some prospect of success. In a remarkably humane and clearly written judgment, the Judge concluded:

“The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced.

 I declare that E lacks capacity to make decisions about life-sustaining treatment, and that it is lawful and in her best interests for her to be fed, forcibly if necessary. I find that the resulting interference with E’s rights under Articles 8 and 3 is proportionate and necessary in order to protect her right to life under Article 2.”

This Judgment relates primarily to the Mental Capacity Act. The outcome of the Judgment appears to mean that E can be detained in a hospital and compelled to receive treatment for her mental disorders for 1-2 years or more. She can be deprived of her liberty on the basis that it is in her best interests. And all this will take place under the aegis of the Mental Capacity Act.

While I have no dispute that the judgment was made in the best interests of E, as an AMHP, I am confused, to say the least, at the implications of this judgment for the Mental Health Act.

Far more eminent authorities than the Masked AMHP have commentated on this judgment (Lucy Series, for one, in her excellent The Small Places blog, has raised some cogent issues, and it has had widespread coverage in the national press), so I do not propose to dissect it paragraph by paragraph. I also do not know enough about the case and the extensive treatments E has had over the years to comment on why those involved in her care took the decisions they did that led to E being an informal patient in a palliative care setting.

I am, nevertheless, greatly concerned about the implications for my, and all AMHP’s, practice under the MHA.

The case of GJ (GJ v The FT and The PCT and the Secretary of State for Health (2009) EWHC 2972 (Fam), 20th November 2009) is one that has informed AMHP practice for some time in that it clarified some aspects of the interface between the Mental Health Act and the Mental Capacity Act. This case concluded essentially that, if the Mental Health Act could be used, then it should be used; the MHA trumped the MCA. So, for example, if a person who lacked capacity needed treatment in a hospital for mental disorder and they were not in agreement with this, then treatment should be given under Sec.3 MHA rather than under the Deprivation of Liberty Safeguards under the MCA.

But the case of E seems to throw a spanner in the works.

I have written about the use of the MHA with people with anorexia nervosa before on my blog (Anorexia, the MentalHealth Act – and Kayleigh). To me, it seems clear that anorexia nervosa is a mental disorder within the meaning of the MHA, and if a patient needs treatment for the physical effects of starvation, then it is entirely appropriate to detain them under Sec.3 MHA for treatment. In addition, despite some of the opinions expressed in response to my last post, I regard it as an AMHP’s duty to save life and prevent suicide.

But, as a consequence of bringing E’s case to the Court of Protection and inviting a judgment relating to deprivation of liberty and best interests, E can now receive extremely invasive treatment against her will for an indefinite, but undoubtedly very long period of time, without being detained under the MHA at all.

Not only did it appear unnecessary to bring this case to the Court of Protection, but it appears to have a consequence of reducing E’s recourse to legal challenge of her detention. Had E been detained under Sec.3 MHA for this treatment, then she could have appealed against the decision, and her case could then have been considered by a Tribunal. Even if she had not appealed against detention under the MHA, there would have been periodic automatic referral whenever her detention was extended.

While treatment might be in E’s best interests, I am not sure if the judgment itself was, in the long term, in the best interests of either E or other mentally disordered patients lacking capacity and requiring inpatient treatment against their will.

Why bother with the Mental Health Act at all, if all such treatment can be given under the Deprivation of Liberty Safeguards?


  1. Hello there, I thought exactly the same as you when I first read it (WTF?! what about GJ v Foundation Trust), but when I read it again more closely I think the plan is that E will be detained under the MHA not the DoLS. At paragraphs 90 and 99 it's hinted at, and paragraph 111 says 'Dr D said that he would be willing abide by the court's decision and would participate in placing E under a Mental Health Act section to ensure that treatment was carried out'. I think the fact the court only made a 'declaration' rather than an order also suggests the judge was aware the CoP had no jurisdiction to authorise her detention (because of GJ v Foundation Trust combined with s16A MCA).

    But it is weird. Because if you can use the MHA to get legal protection for what is a reasonably well established use of s3 MHA, why would you bother with the fuss and expense of going to the CoP? I think the answer lies in a real peculiarity of this case. What we have essentially seen here is a local authority using the CoP as a way to 'review' the decision of the health authority not to treat E. The court, in fact, had no jurisdiction to order the health authority to treat E (because they can't make public law orders, and they can't authorise the detention that would be necessary), but the scrutiny of the court of their decision was sufficient to put pressure on the health authority to treat E. Which they will do using the MHA. Which they could have done all along...

    Is this the future of the MCA, I wonder? Different public authorities using the CoP to review each others' decisions?!

  2. I think you're probably right, Lucy. Let's hope it doesn't create a precedent.

  3. But it does seem to leave AMHPs in a strange position. They will have to make the application (I think we can safely assume that the NR won't), and apply their independent judgment, but their judgment appears to have been prejudged by the CoP, even though different criteria apply. In reality, most AMHPs I'm sure would feel comfortable making an application in this case, but it's an *interesting* legal situation if they don't...

  4. In his order the judge authorized E to be deprived of her liberty until such time as provision for detention under the MHA could be put in place.
    I am informed that the relevant professionals agrred that an application under the MHA would be made.

  5. I really don't like this. You see, when a patient is actively committing suicide, for instance taking many pills or trying to hang himself, it is nearly impossible, if not even actually impossible, to prove that the act was rational and the patient has capacity. It is assumed that the act must have been irrational and the patient must be hospitalized and prevented from committing suicide. Now, not eating is a different matter. It takes several weeks for a starving person to die, possibly less if already very thin but possibly more if starvation is partial or interrupted. The individual in question has plenty of time to start eating or ask for help and may have made a rational decision not to do so. Why is it still assumed that, once starvation becomes dangerous, the person does not have capacity? Where does this twisted logic stop? Is there something similar for people who, on the contrary, eat too much or are too obese?

  6. Hello Masked AMHP, you might be interested to read the July edition of the 39 Essex Newsletter, as they pick up on the issue you raise and did a bit of investigating. Paul Bowen (the local authority's barrister) confirmed that the COP did make an interim order authorising E's detention to last until an MHA application could be made. They discuss exactly the issue you raise, around eligibility.

  7. Hello

    If you've read the judgment you'll realise how complicated and tortuous the series of events was. It's one of those cases that's so complex and involved that the simple legal lessons we infer from them could be dangerously glib.

    I had wondered when hearing about the case what was going on at the MHA / MCA interface and had further wondered if there was some benighted part of the Principality where they weren't aware of strongly established MHA case law about the legality of forced feeding. When I read the judgement and learned that staff had ended the MHA detention and were prepared in effect to assist someone starving themselves to death, I was deeply shocked. I'm apalled to hear this having been described as 'palliative care'.

    I did wonder if AMHP commentators would huff and puff about the implied slight to their favoured bit of legislation and comment on the CoP judge's impertinence is making this ruling. Thank goodness he did. The professionals involved could have used the MHA but chose not to and to me, legalising assisted suicide for mental health service users would have been a much more troubling precedent. I was very impressed at the thoroughness of the judgment and the deep humanity of some of the observations made.

    We probably shouldn't get too obsessed by the legalities. I think the 'real' background to the case, which you can glimpse by reading between the lines of the judgment, is the poorly developed state of eating disorder services in Wales. I'm guessing that all the specialist units mentioned in the case were in England and the story of a local CMHT overwhelmed by the demands of a severe presentation with an illness and with limited resources and skills to deploy sounds depressingly familiar. One of the expert witnesses commented that he was surprised when considering her BMI that P hadn't spent much of the last five years subject to specialist care in a residential unit. Instead she spent the time drifting and in intermittent contact with service as her health worsened and options depleted. If P had been given the level of treatment she might have been due in other postcodes at an earlier point, would the point described in the judgment have been reached?

    Anyway, keep it up Masked AMHP - always stimulating - why don't you write a little more about your BIA practice?

    PS is that 'the' Richard Jones?

    1. Thank you for your insightful and thorough comments. I agree with you that there must have been a lot more back story than we are,understandably, not privy to, but which can be inferred from reading the judgment. I would continue to go with the GJ judgment.

      I don't write about my BIA practice for two reasons.
      1. I'm the Masked AMHP, not the Masked BIA.
      2. I'm not actually a BIA. I only talk about the MCA when it interfaces with the MHA.

      (Whispers) I'm guessing by the terse and authoritative comment that it is indeed "the" Richard Jones. I never knew he read the blog. I'll have to be really careful in the future!

    2. Not one of these Richard Jones impersonators you hear about then?

      I thought you were a BIA. Why aren't you a BIA then? Must have been 'Fighting Monsters'. Really, though, try harder.

      I'd continue to go with the GJ judgement too and so did Justice Parker. If treatment is given in this distressing case, and I'm assuming that a wide range of clinical discretion is being allowed as in other MCA rulings about treatment (so it may not), the authority to do so will come from the MHA.

      An interesting thing about the MCA is that if anyone thinks that legalities aren't being observed or major options are being overlooked they can approach the Court. That's how the COP appears to have been used in this case. I'm glad about that. While Mental Health Review Tribunals are forums in which the rights of patients are fully and thoroughly explored the trouble is that you have to be a detained patient to gain access to this protection and that they're focussed on the rather limited issue of release / detain and not on wider issues of welfare and best interest. What if you were (inappropriately) never detained in the first place? The patient in this case was not detained (and was in fact discharged from a section) and her rights were thus neatly removed from legal scrutiny by the MHRT. I'm not aware of any equivalent procedures under the MHA for referring a case because the MHA has been inappropriately ignored or on more general considerations of welfare. (Richard?). I think I'm correct in saying the CQC still has no responsibilty for 'informal' patients? Most Nearest Relatives would not be aware of the right to request a MHA assessment to trigger legal protection for a patient in hospital, so this is a fairly weak protection and writs of Habeas Corpus appear to be out of fashion.

      In Wales under the 'Mental Health Measure' informal patients now have access to statutory advocacy. One of the things I was wondering about this was whether we might eventually see a higher rate of use of MHA powers for some groups where this hasn't historically been the norm (people with neurological problems and dementias).

      Obviously what 'should' have happened on the mid-noughties is that we should have done in the Mental Health Act not bothered with the Mental Capacity Act and had one piece of legislation giving authority, due scrutiny and rights of appeal over a wide range of welfare issues, including treatment, for people with mental disorders, rather than having this rather ragged edge and intemittent overlap between two bits of legislation with quite different philosophies. (Richard? Lucy?) This would have meant one legal jurisdiction (ideally with a Court and some humane and conscientious judges) and one group of professionals ('AMHPBIAs') with day to day responsibility for looking at issues of detention against one set of criteria and not having to worry too much about gaps and inconsistencies. Alas.

      That still wouldn't have sorted out eating disorder services in Wales.

  8. I think all of you are missing the point about 'chronic alcohol dependence'.
    If she had liver damage and it was deemed that this was terminal, it may have been a case of whether it was appropriate to force feed her in order to 'prolong life'.
    It wouldn't be 'life saving' if she was already terminally ill from liver disease.
    This may have been where the issue arose, and would explain why she was in palliative care.
    And why this decision had to be made so carefully.
    But, there is the argument that good nutrition can significantly prolong life for people with liver disease, and if she was in the earlier stages of liver disease the nutrition may actually improve her outcome. So this would have been the argument of the side who felt it was appropriate to feed her.

    Also, it is considered by medical doctors that if a patient is in starvation and has not eaten for more than 7 days, then they do not have capacity to make decisions because of the neuro-cognitive effects of starvation.

    When this is the case, tube feeding has to be started under the MCA against the patient's will if necessary, so the MHA cannot be used because there person may regain the ability to consent to treatment once better nourished.
    once a period of tube feedjng has been given and the person is nourished and has stable blood glucose levels, then they are medically stable enough to be assessed for mental capacity and given a mental health act assessment.
    Some patients at this stage are now able to think more clearly due to getting the nutrition and their blood glucose being stable, and do some will consent to the continuation of treatment on an informal basis, making MHA unnecessary.

    This is the approach used by medical doctors, particularly gastroenterologists who specialise in the effects on the body of malnutrition - she would definitely have been under a gastroenterologist if her chronic alcoholism had caused liver damage.

    So this explains the decision.