Thursday, 3 July 2014

The Case of P and the MCA/MHA Interface: Recent Case Law

An urgent referral to the Courts for a child, P, aged 17 years, was made on 13th May 2014 and was heard late at night by Mr Justice Baker.

P had a history of self harming behaviour and was well known to the Child and adolescent Mental Health Service. She had briefly been detained under Sec.2 MHA, but had been discharged the previous week.

In the afternoon of 13th May 2014 she had taken an overdose of paracetamol, and was refusing lifesaving treatment. Although her mother had given consent to this treatment, the hospital trust was reluctant to treat her on this basis.

They arranged for the on call child and adolescent psychiatrist to assess P. He did not have any previous acquaintance with P prior to the assessment.

The judge noted:
“Although she suffered from a personality disorder, it was his view that she did not lack capacity to make decisions concerning her medical treatment. She was able to understand information and retain it, and also to weigh it up and use it. I was told that the physician at the hospital who was responsible for treating P this evening has some doubts about the psychiatrist’s opinion, having observed her behaving in an erratic and inconsistent way during the course of this hospital admission.”

Because of the necessity to treat the overdose before irreversible damage was done, the Trust went to the court to seek a declaration “that it was lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the overdose”.

The case depended entirely on a judgment relating to the capacity of P. The judge noted: “although the physician at present treating P in hospital has some doubts as to her capacity, the psychiatrist responsible for treating her has expressed the view that she has capacity, notwithstanding her mental health history and personality problems.”

The judge reached the conclusion that he was “not satisfied that P lacks capacity within the meaning of section 3 [of the MCA]. Having regard to the clear principles in section 1, I accordingly propose to make a declaration that on the basis of the information available at present, I am not satisfied that she lacks capacity to make decisions concerning her medical treatment.”

The judge then continued to consider issues of “Gillick competence”:

“A person with capacity under the age of 18 who is “Gillick competent” – that is to say, having a state of maturity, intelligence and understanding sufficient to enable her to take a decision as to medical treatment for herself – is deemed to have legal capacity to consent to treatment. Where, however, a Gillick competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment.”
He concluded:

“The wishes of a young person aged seventeen and a half are important. They are, of course, entitled to be taken into account as part of her Article 8 rights under ECHR. On the other hand, those rights are not absolute. Here, they are outweighed by her rights under Article 2 – everyone’s right to life shall be protected by law. The court is under a positive or operational duty arising from Article 2 to take preventative measures to protect an individual whose life is at risk.”

He therefore declared that “it is lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the effects of her overdose notwithstanding the fact that she is refusing treatment”.

There are a number of interesting and potentially highly significant conclusions to consider in relation to this judgment.

Here is another case in which a judge has relied on the concept of “inherent jurisdiction” to reach what he considered was the most appropriate decision. Under English common law, a superior court has the jurisdiction to hear any matter that comes before it, and it allows it to control its own processes and to control the procedures before it.

I recently considered a judgment from the Court of Protection in which inherent jurisdiction was invoked in order to reach, in that case, a somewhat extraordinary and legally dubious conclusion.

It does appear that, where existing legislation appears to a judge to be deficient, then “inherent jurisdiction” can be invoked to facilitate whatever judgment a judge wishes to make. I am concerned, especially in this case, that other potential resolutions to the case of P within existing law were not explored.

I am reminded of the case of Kerrie Wooltorton, a woman with a personality disorder who drank antifreeze and then refused life saving treatment. On the basis that she had capacity and had made an advance decision refusing treatment, she was allowed to die, and the subsequent inquest upheld the decisions of the doctors responsible for her care. I considered this case at some length here.

In such cases, where a patient who has capacity is refusing treatment, perhaps consent to treat against the patient’s will can be obtained from the courts regardless of existing legislation, as long as the judge is prepared to invoke the court’s “inherent jurisdiction”.

The judge concluded that P had capacity, and therefore the Mental Capacity Act could not be used. But he did not appear to consider the powers under the Mental Health Act.

The 2007 MHA introduced an amendment: Sec.64G, which covers emergency treatment for patients lacking capacity. This does give powers for people to give emergency treatment, especially if the treatment is to be given in order to save the patient’s life.

However, since P was deemed by both the psychiatrist and the judge to have capacity, this section could not apply.

But, as I pointed out in my blog on Kerrie Wooltorton, the issue of whether or not a patient can be deemed to have capacity is not particularly relevant to a determination regarding detention under the MHA.

For example, in order to legally detain someone under Sec.2, the AMHP merely has to be satisfied that the patient “is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period” and that the patient “ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”

In order to be able to treat P under Sec.2 MHA, it was only necessary to establish that she was suffering from a mental disorder within the meaning of the MHA, and that this was of a nature of degree that warranted her detention for assessment and/or treatment.

Since P had been a patient of CAMHS, and the assessing psychiatrist was satisfied that she had a personality disorder, which is a “mental disorder” within the meaning of the Act, and she undoubtedly needed assessment/treatment, then an AMHP could have made an application using a medical recommendation from the psychiatrist and one from a hospital doctor who was intending to treat her.

It would certainly have avoided the necessity to get a High Court judge out of bed.


  1. Out of interest though, if MHA 2 had been invoked, would treatment have to mean an intervention that was specifically to do with treating the disorder, as opposed to treatment for physical ill-health? I just wondered if taken more broadly, this would mean placing under S2 someone (with a pre-existing mental disorder) who was refusing to take treatment for diabetes for example?

    1. If the medical condition arose as a result of the mental disorder, eg taking an overdose because of a depressive illness, then the patient can be treated under the MHA.

  2. Hello. The judge seems to have been very nice about it but is it just possible the CAMHS psychiatrist was talking pompous cobblers. To achieve a definitive assessment of mental capacity in a minor in a life and death situation on the basis of one contact and no prior knowledge in what I assume because of the medical emergency and the location of the contact would not have been the easiest of interviews indicates to me a very talented or a very arrogant practitioner. In this context, failure to consider the MHA might seem less surprising if no less excusable.

  3. Section 64 is not applicable here as it only applies to CTO patients, had the patient been detained the applicable power is s.63, which predates 2007. Agreed that s.2/3 application seems the most obvious solution here, but did this occur in a part of the country in which finding two out-of-hours s.12 doctors and an AMHP is less practicable than getting a judge out of bed?

    1. One of the hospital doctors, Sec.12 or not, could have provided one of the medical recommendations, and the CAMHS psychiatrist the other. Reading between the lines, the psychiatrist, looking only at whether P had capacity or not, did not consider use of the MHA, and I don't think it occurred to anyone to request an assessment under the MHA.

  4. so did this poor girl die of liver failure over several days?