A Healthcare v CC (by his litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] EWHC 574 (Fam) |
| Date | 11 March 2020 |
| Docket Number | Case No: FD20F00009,FD20F00009 |
| Court | Family Division |
[2020] EWHC 574 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven
Case No: FD20F00009
Ms Emma Sutton (instructed by the in-house legal department for A Healthcare and Capsticks Solicitors LLP for B NHS Trust) for the Applicants
Mr David Lock QC (instructed by the Official Solicitor) for the Respondent
Hearing dates: 20 February 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This application concerns the Respondent, CC ( ‘CC’), aged 34. CC has psychiatric diagnoses of psychotic depression and a mixed personality disorder with marked dissocial and dependent traits, he is deaf and communicates via British Sign Language. CC is detained under section 3 of the Mental Health Act 1983 ( ‘MHA 1983’) on X Ward which is the medium secure ward for deaf men within A Healthcare ( ‘A Healthcare’). The issue in the case is whether CC should be ordered to undergo haemodialysis at times when he does not consent to it.
CC was diagnosed with type 1 diabetes mellitus at the age of 15 and he suffers from complex physical health issues caused by his chronically poor compliance with the required diabetic treatment. CC's poor compliance has caused problems with his eyes, but more recently has resulted in renal failure requiring dialysis, and ultimately it is hoped a kidney transplant. It is clear that there is a complex interaction between CC's mental disorder and his physical condition and thus physical health needs.
CC's current non-compliance with dialysis treatment is thought by his responsible clinician, Dr H, to be a manifestation or symptom of his mental disorder. CC is described by Dr H as having ‘at best’ fluctuating capacity to make decisions about dialysis treatment.
When CC is physically well, he understands that he needs dialysis and expresses a clear and consistent wish to live, but at times of crisis he will refuse dialysis and admission to Y General Hospital ( ‘B NHS Trust’) for such treatment to be provided to him.
CC's responsible clinician at A Healthcare and the nephrology team at B NHS Trust (who oversee CC's dialysis care), as joint applicants, seek clarification from the Court that dialysis can be provided to CC under section 63 MHA 1983 as medical treatment within the meaning of section 145(4) MHA 1983.
The Applicants were represented before me by Ms Sutton of counsel, and CC through the Official Solicitor by Mr Lock QC. Mr Lock was instructed only shortly before the hearing and, as I explain below, he raised an issue which I considered required further submissions from both parties. I made the order sought under the inherent jurisdiction given the urgency of CC's medical treatment, but reserved judgement so that I could deal with both issues together in a reasoned judgment.
I heard evidence, briefly, from Dr H, a consultant psychiatrist, and Dr I, a consultant nephrologist.
The Issues
The following issues arise in the case;
i) Whether CC can be treated under section 63 of the MHA; the renal failure and refusal to accept dialysis being said to be a manifestation of his mental disorder;
ii) Whether section 63 cannot be relied upon by the Applicants because of section 58 MHA;
iii) Whether in any event CC can be given dialysis pursuant to the Mental Capacity Act 2005 (‘MCA 2005’) because he does not have capacity to make the relevant decision;
iv) If CC has fluctuating capacity, whether a declaration can still be made under the MCA 2005.
Use of section 63 MHA 1983 to authorise dialysis is not straightforward. Dialysis is a treatment for end stage renal failure and this would not normally be treatment to alleviate or prevent a worsening of, or to treat the consequences of, a mental disorder. However, Dr H considers that CC's need for dialysis is a consequence of his mental disorders.
A Healthcare and B NHS Trust have brought the matter to Court because Dr H accepts this is not a straightforward case, both because of the issue of whether the dialysis is a treatment to alleviate CC's mental disorder, but also because of his fluctuating capacity. Dr H seeks to ensure that he is acting lawfully and in CC's best interests due to the gravity of the decision.
The Applicants brought this matter to court in line with the guidance of Mr Justice Baker in A NHS Trust v A [2013] EWHC 2442 (Fam) at [80] that ‘In cases of uncertainty where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court’.
CC's medical history
CC is originally from the Portsmouth area. He has 2 children from previous relationships and despite efforts of his Multi Disciplinary Team, and CC's expressed wishes, he does not have contact with either child. He does however enjoy the benefit of contact with his parents and extended family. His parents support him being given dialysis.
CC came to the attention of social services following concerns from his mother regarding the management of his diabetes and self-neglect. He was admitted to Queen Alexandra Hospital in Portsmouth in August 2014 due to complications of diabetes where he was assessed for admission into Bluebell Ward at Springfield Hospital.
Mental health
When CC started suffering from a deterioration in his mental health is unknown. The key dates can be summarised as follows:
24 Sep 2014 CC admitted informally to Bluebell Ward, Springfield Hospital, with a diagnosis of depression with psychotic features.
23 Mar 2015 CC detained under section 2 and then section 3 MHA 1983 at Springfield Hospital.
11 May 2015 CC admitted to X Ward, A Healthcare, where he has remained to date.
CC is therefore currently detained under section 3 MHA 1983.
Dr H characterises the symptoms of CC's mental disorders as follows:
‘The symptoms of [CC]'s psychotic depression are that he has sustained periods of very low mood which are accompanied by psychotic symptoms including hands signing in free space (which is a Deaf equivalent of hearing voices in a hearing person) and receiving command hallucinations from his dead grandmother. He has also had persecutory beliefs that people are trying to kill him or his family. When he is depressed he very significantly neglects his own wellbeing including by refusing treatment for his physical health problems.
The symptoms of [CC]'s personality disorder are that he finds it very difficult to control his emotions, particularly his anger, and his behaviour. This can lead to him becoming very easily agitated and very aggressive or abusive when he is agitated. He has significant difficulties in thinking through his actions and in particular accepting short term discomfort in order to achieve his long term goals. His personality disorder makes it exceptionally difficult for him to make any decision considering information other than the here and now. [CC]'s personality disorder leads to him depending very significantly on others to contain his distress and manage his problems for him. Historically this has been a dependence on his mother to do these things for him, and currently he projects this onto staff working with him as well as his family. [CC]'s personality disorder leads him to refuse treatment of his physical health problems as he is not able to weigh up the short term impact of having treatment that he does not immediately want, against his long term goal of staying alive’.
Dr H further states that:
‘[CC]'s risk to his own health is very significant. He has incredibly poorly controlled diabetes and is dependent on dialysis to stay alive. He actively undermines attempts to manage both of these conditions and regularly refuses treatment for them. He interferes with dialysis machines while he is undergoing dialysis and has turned off a dialysis machine while it was running which we have been advised could have led to his sudden death.
[CC]'s understanding of his diabetes and how to manage it is very limited. Whilst on Bluebell Ward he would snack on sweets which he would conceal from staff resulting in his blood sugars being very variable. His diabetes control has been so poor for so long that he has significant physical sequalae of these including his poor eyesight, renal failure, and severe impairment to his mobility due to him developing an infection in a muscle in his leg which had to debrided …’
CC continues to meet the criteria for detention under section 3 MHA 1983. In particular, Dr H notes that:
‘The degree of [CC]'s personality disorder is that he is self neglecting to an extreme level currently which places him at imminent risk of death due to his refusal of dialysis and other lifesaving treatments on a regular basis. He is extremely argumentative and abusive towards staff. He is very impulsive and puts himself at serious risk of harm as a result such as when he has turned off a dialysis machine while he was having active dialysis at the time. He is very skilled at subverting security and does this to get immediate gratification regardless of the longer term harm he does to himself or other’
Physical Health
CC was admitted to A Healthcare on 11 May 2015 and his physical health was a significant problem. His diabetes was unstable with regular instances of significant hypoglycaemia as well as ongoing problems with an infected wound on his head and a UTI. Throughout his admission at A Healthcare CC has complied poorly with the physical healthcare treatment.
On 26 March 2019, CC complained of...
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