JK v A Local Health Board
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 13 November 2019 |
| Neutral Citation | [2019] EWHC 67 (Fam) |
| Docket Number | Case No: FD19F00097,FD19F00097 |
| Court | Family Division |
| Date | 13 November 2019 |
[2019] EWHC 67 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven DBE
Case No: FD19F00097
Mr Michael Mylonas QC and Ms Emma Sutton (instructed by NHS Wales Shared Services Partnership — Legal & Risk Services) for the Applicant
Mr John McKendrick QC (instructed by Bindmanns LLP) for the Respondent
Hearing dates: 4th November 2019
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.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is an application by A Local Health Board (the Health Board) in respect of possible future treatment of JK. The original application was for: (1) a declaration that it is lawful for treatment to be provided pursuant to s.63 of the Mental Health Act 1983 (MHA) that JK can be force fed; (2) in the alternative, a declaration under the inherent jurisdiction that such treatment is lawful; and (3) a declaration under the Mental Capacity Act 2005 (MCA) that an advance decision could be disregarded as a result of actions by P that were inconsistent with it.
JK is a 55-year-old man with a diagnosis of Autism Spectrum Disorder (ASD) made late in life. He is currently on remand for the alleged offence of having murdered a close relative, the index offence having taken place in recent weeks. He was transferred from A Prison to A Hospital, a medium secure psychiatric hospital on 23 October 2019 under s.48 of the MHA.
The application came before me on 23 October 2019 in the High Court in London. Ms Sutton represented the Health Board, and she had her instructing solicitor and two clinicians, Dr L and Dr J on the phone. JK was not represented, having been assessed to have litigation capacity, and having declined representation (as told to me by the Health Board). JK had told Dr J that he did not wish to speak to me by phone, but did wish to participate in the hearing. As I will explain further below the issue appeared at that stage to be extremely urgent, given that JK had been refusing to eat for a fairly prolonged period and, in those circumstances, I decided that the best course was to adjourn the hearing and continue the hearing the following day at A Hospital. However, on 24 October 2019 when I met JK at A Hospital, JK told me that he did want representation and that he would eat up to the next hearing, as long as that was the following week. Given the importance of the issue, and the legal complexities, I therefore adjourned the application again in order for JK to instruct a solicitor and counsel.
The matter then came back before me on 4 November 2019. JK is now represented by Mr McKendrick QC, and the Health Board by Mr Mylonas QC with Ms Sutton. I am very grateful to them all for their assistance in this very difficult case.
I heard evidence from Dr L, a consultant psychiatrist who had assessed JK after two meetings with him and Dr J, a consultant psychiatrist and the clinician responsible for JK's care at A Hospital. I have a witness statement from JK, which was drawn up in some haste but contains a very moving account of his family background and his perception of his current situation, and JK gave oral evidence.
JK's background history
JK was born in 1964 and has one sister, from whom he has been estranged for very many years. It is apparent that he had a very unhappy childhood and describes his father having been highly controlling and at times violent to JK, and probably his mother. JK had a long-standing partner for 24 years and has 2 step children and 5 children with his ex-partner. The relationship with his partner broke down around 2 years ago. This seems to have been, although I cannot be sure, a defining event in his life. He was for a period homeless before moving in with his father. The relationship with his father had been strained for many years. He is now estranged from his children, although he said he would like to see at least one of them to explain his wish to starve himself to death. It has not been possible for any of the professionals now involved in the case to speak to any of JK's family.
JK had worked as a carpenter but had had problems over the years with chronic fatigue syndrome and ASD. It seems that a significant cause of difficulty for him, and something that has caused him great anxiety and frustration, has been his interactions with the Department for Work and Pensions (DWP) and the assessments that he had to undertake over many years. He reports that problems with the DWP, both for him and his ex-partner, contributed to the breakdown in his relationship.
JK's history in terms of mental disorder is described by the experts as being highly unusual. JK had had some interactions with psychiatric services since 2016. He has reported that he has made five suicide attempts over the years, with one resulting in hospitalisation. There is no reported history before the index offence of anti-social behaviour or violence. There is a record of being prescribed Sertraline for depression in the past, but according to JK this had little or no benefit. In October 2018 he was diagnosed with ASD. JK had no support for his autism before the diagnosis, and it may well be that this was a strong contributing factor in many of the problems and frustrations he had with governmental agencies and decision making over the years. It was notable that when he gave his oral evidence he was still preoccupied with problems that he had had with the DWP and his view was that if he now returned to the community he could not cope with dealing with that and other governmental agencies.
According to Dr L's report, SG has said that he has made five serious suicide attempts. It is not clear when these occurred, but it seems that they have been in recent years. He had a history of heavy drinking at times, but not in the recent years. It is reported that since he has been in healthcare at prison, he has presented with symptoms consistent with ASD, including rigidity of thinking, liking of routine and a difficulty with dealing with the unexpected.
The index offence took place in recent weeks. It is described in the reports as a frenzied attack using a knife or screwdriver. JK called the police after the index offence and admitted to it. He was arrested and remanded in custody at A Prison on 14 September 2019. Perfectly appropriately he was advised by his legal team to say nothing in evidence to me about the index offence. He was assessed by two medical practitioners on 10 October 2019 as suffering from a mental disorder which makes it appropriate for him to be detained under the MHA. A transfer direction was made by the Secretary of State for Justice on 21 October 2019 and he was transferred to A Hospital on 23 October, pursuant to s.48 of the Mental Health Act 1983. He has been resident at A Hospital since, under the clinical care of Dr J and her team. He was very unhappy about the way that he had been transferred, and felt that it had been deceitful. However, as far as I could tell the way the transfer was done was intended to minimise the impact upon him.
Since shortly after arriving at A Prison JK has been saying consistently that he wants to die and that he intends to starve himself to death. Between 10 September 2019 and 2 October 2019 (i.e. 23 days) he refused food. He then ate limited food for a few days, because he was concerned that he might be found not to have capacity to make the decision if he was in a weakened state. After 2 October 2019 he has largely been refusing food, but he has started eating again at A Prison because he wished to be able to attend and give evidence before the court.
His clinical team, including those at A Prison and at the hospital were very concerned about the impact of his refusal to eat. He is at severe risk of re-feeding syndrome, even if he does decide to eat at some later point. This would include hypophosphatemia, with increasing weakness leading to collapse, hypoglycaemia and cardiac arrest. If he chooses to continue not to eat then he will die, although as he is continuing to drink this may take some time. It is not possible to give specificity regarding life expectancy however the Guidelines for the clinical management of people refusing food in immigration removal centres and prisons (January 2010) produced by the Department of Health states that if a person is well nourished at the beginning of the fast and is prepared to take adequate fluid, they are usually at little risk of dying from malnutrition for at least six to eight weeks.
On 28 September 2019 JK made an Advance Decision stating that he does not wish for any medical intervention to occur even if his life is at risk. There was originally an issue raised by the Health Board that this advance decision was not valid. However, the Health Board now accept that it is valid, and in any event JK has made a fresh advance decision in effectively the same terms dated 31 October 2019. Therefore, there is a lawful advance decision in place, subject to the findings I make below about JK's capacity.
On 27 September 2019 Dr S, the resident psychiatrist at A Prison and Dr J, both assessed that JK had capacity at that time to make the decision not...
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