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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Nottinghamshire Healthcare NHS Foundation Trust v MC [2025] EWHC 920 (Fam) (15 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2025/920.html Cite as: [2025] EWHC 920 (Fam) |
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FAMILY DIVISION
AND IN THE MATTER OF THE INHERENT
JURISDICTION OF THE
HIGH COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NOTTINGHAMSHIRE HEALTHCARE NHS FOUNDATION TRUST |
Applicant |
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- and - |
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MC |
Respondent |
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- and - |
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(1) SHEFFIELD TEACHING HOSPITALS NHS FOUNDATION TRUST (2) DONCASTER AND BASSET LAW TEACHING HOSPITALS NHS FOUNDATION TRUST |
Interested Parties |
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Miss Arianna Kelly (instructed by MJC Law) for MC
Miss Francesca Gardner (instructed by DAC Beachcroft) for the Interested Parties
Hearing date: 25 March 2025
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Crown Copyright ©
Mrs Justice Morgan:
Background
Treatment with oral antibiotics if further infection in his foot occurs;
Blood testing (HbA1c test) every 3-6 months to monitor blood glucose;
Monthly bloods to assess any kidney damage, if improved, reduce to 6 monthly;
Regular blood glucose monitoring (the MDT attempted to do this via a libre device which MC accepted, but then would not allow staff to scan to obtain readings);
Long-acting insulin;
Short acting insulin as required;
Oral medication to control blood pressure;
Regular dressings and assessment of his foot wound.
Legal Framework
Overarching Principles
"... the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so".
"Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it".
"… every person's body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner".
Treatment Without Consent
(1) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the Mental Capacity Act 2005;
(2) Similarly, adults who have capacity but who can be categorised as 'vulnerable' and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority [2012] 3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867);
(3) Under the MHA a detained patient may have treatment imposed on him pursuant to section 63 which provides, so far as is relevant to this case:
"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment".
(1) "medical treatment" includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below);
(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations
"Symptoms and manifestations include the way a disorder is experienced by the individual concerned and the way in which the disorder manifests itself in the person's thoughts, emotions, communication, behaviour and actions. It should be remembered that not every thought or emotion or every aspect of the behaviour, of a patient suffering from mental disorder will be a manifestation of that disorder" (emphasis added)
"If a patient's refusal to pay attention to his personal hygiene or to be treated for a physical condition is assessed as being a manifestation or symptom of his mental disorder, the patient can be washed and/or treated under the authority of the Croydon case as both nursing and specialist care come within the definition of 'medical treatment' in s.145(1)"
Section 63 MHA – Procedure
"[18] A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review: see R (on the application of B) v Haddock (Responsible Medical Officer) [2006] MHLR 306. Paras 13 and 14 of that decision make clear that convention rights will be in play and therefore a "full merits review" must be undertaken on the evidence, with the court making the decision de novo, but placing considerable weight on the initial decision made under section 63 by the approved clinician in charge of the treatment.
[19] But a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged. As is well-known this protects the right to life. It is the most fundamental of the convention rights. Countless authorities have emphasised the imperative duty on public authorities to give effect to this right where detained persons are concerned. So if the approved clinician in charge of the treatment decides not to impose potentially life-saving treatment one can see the important need for judicial scrutiny to determine whether the patient has with a full awareness of the implications elected to opt-out of the right to life granted to him by Article 2. And one would expect, as has happened here, that a second medical opinion would be commissioned concerning the approved clinician's decision.
[21] In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a "full merits review" of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.
[26] What are the principles the court should apply where it conducts a full merits review on an application for declaratory relief in circumstances where a decision has been made not to impose potentially lifesaving treatment under s63? Obviously the expressed wishes of the patient will be highly relevant. If there is an advance decision in place under sections 24 and 26 of the MCA then this will weigh most heavily in the scales. The Hippocratic duty to seek to save life, or the benign but paternalistic view that it is in someone's best interests to remain alive must all surely be subservient to the right to sovereignty over your own body. Beyond this, considerations such as whether the treatment would be futile will no doubt be relevant; for example, if the repair of a laceration would inevitably be followed by a new one or if the patient was suffering from another unrelated terminal disease" (emphasis added).
"Medical treatment given to him for the mental disorder from which he is suffering" (per section 63 MHA)
"On any view, and to a high degree of probability, section 63 was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder" (emphasis added)
"[72] ….. with a condition such as autism which is a fundamental part of JK's personality, it is exceptionally difficult to see how any decision making is not a manifestation of that disorder. I also accept that it is possible that many people faced with JK's situation would feel despair and potentially be suicidal. However, I do not think the task for me is to try to compare JK's response to his situation with that of a hypothetical person without autism. It is rather, to try to analyse the degree to which JK's own response relates to his condition, and the way his mind works because of that condition.
[73] In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s.63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder".
"The physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC's refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983" (emphasis added).
Discussion and Conclusions