LB v Croydon District Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
THORPE, J.
Medial treatment – adult patient suffering from borderline personality disorder – not suffering from anorexia nervosa but refusing food to punish herself – whether patient could refuse force feeding – whether such feeding amounted to medical treatment for the purposes of s 63 of the Mental Health Act 1983.
The plaintiff, a young woman of 24, had suffered sexual abuse during her childhood, primarily by her grandfather after whose death she first came into contact with psychiatric services. She developed a pattern of self harm by para-suicide, cutting, and burning. When restrained she began to refuse food as a means of self-punishment. Her first adult sexual relationship ended in an abortion and profound distress. A month later, in January 1993, she was detained under s 3 of the Mental Health Act 1983 as suffering from mental illness. In April 1993 she was reassessed for psychotherapy which took the form of 50 minutes a fortnight and ceased after three sessions and the departure of the therapist. By December 1993 her weight had dropped from 64 kg to 34 kg and feeding by naso-gastric tube was contemplated. She instructed a solicitor to oppose any attempt at such feeding. She increased her food intake somewhat so that by the beginning of February 1994 her weight had increased to 39 kg. However, she then went into another period of decline. ECT and naso-gastric feeding were considered but not given. She wrote a letter, which was a lucid self-assessment, refusing both treatments as inappropriate and explaining that she considered that only a relationship of trust between herself and one person in the hospital would help her to deal with her guilt feelings and her eating difficulty.
By May 1994 her weight had dropped to a critical low and tube feeding was decided on. The plaintiff obtained an injunction preventing tube feeding until determination of her summons for a declaration that she should not be fed medically against her will and in the meantime increased her food intake to 2,000 calories a day. A number of medical reports were submitted to the court and the Official Solicitor was instructed to appear as amicus curiae.
Held – (1) The principal issues presented on behalf of the plaintiff related first to her mental capacity and secondly whether force feeding amounted to medical treatment for a mental disorder within the meaning of s 63 of the Mental Health Act 1983. The first issue depended upon whether the plaintiff, the patient, was capable of completing each of the three consecutive stages of the decision making process, namely: receiving and retaining relevant information; believing the relevant information; and weighing that information in the balance so as to arrive at a true choice. It was also helpful to distinguish between three mental conditions. The highest tier was damage or failure affecting cognition. The
second tier was psychotic illness resulting in loss of touch with reality. The lowest tier was neurotic illness and personality disorders falling short of delusion. In this case the plaintiff fell within the last group. She did not suffer from depressive illness nor from a specific eating disorder. She suffered from a borderline personality disorder, coupled with post traumatic stress disorder. As to her capacity, she was not a compulsive risk taker, her moods of depression were to some extent caused by the environment provided for her by the defendant, she was not suicidal, and there was no more than a superficial similarity between this patient and one suffering from anorexia nervosa. This patient punished herself by refusing food only when other methods had been removed from her. On the facts, she had the mental capacity to carry out all three stages of the cognitative process that led to a balanced refusal of offered medical treatment and that in her present state she had capacity to refuse naso-gastric or intravenous feeding.
(2) If this conclusion were wrong and the plaintiff was incompetent, then treatment would have to be provided for her in accordance with her best interests. Force feeding would not be in her best interests unless her physical state became so low as to threaten her survival. Were she to receive the psychotherapeutic treatment which she required she might not remain in her present condition. The scarcity of the appropriate specialist resources was a matter of real concern. There was a social responsibility for the creation of her present condition. Nevertheless, naso-gastric feeding clearly fell with the definition in s 63 of the 1983 Act of "any medical treatment" for which the patient's consent was not required if given for the mental disorder from which the patient suffered (unless it fell within s 57 or s 58, which it did not). In Re C (An Adult: Refusal of Treatment)[1994] 2 FCR 151 treatment for a gangrenous foot was in all senses remote from the patient's mental disorder. The effect of s 63 was to limit the autonomy of a competent patient to treatment not related to the mental disorder for which the patient was detained. It was disquieting that where (as here) the basis of detention was a borderline personality disorder, where the patient did not lack capacity, and where the imposition of treatment would not (save in extreme circumstances) be in the patient's best interests, that s 63 should legalize what the common law did not. However, s 118 of the 1983 Act had obliged the Secretary of State to prepare and revise a code of practice. That code required that consent to treatment be sought from a patient with capacity, even though the treatment fell within s 63. In consequence the patient was not entitled to the declaration sought by her summons that she could not be fed medically against her will. A declaration would be made in terms that tube feeding for the purpose of saving the patient's life and/or alleviating symptoms of starvation would be medical treatment for her mental disorder within the meaning of s 63 of the Mental Health Act 1983.
Statutory provisions referred to:Mental Health Act 1983, ss 3, 57, 58, 63, 118 and 145.
Cases referred to in judgment:Airedale NHS Trust v Bland[1994] 1 FCR 485; [1993] AC 789; [1993] 2 WLR 316; [1993] 1 All ER 821.
C (An Adult: Refusal of Treatment), Re[1994] 2 FCR 151; [1994] 1 WLR 290.
F (Mental Patient: Sterilization), Re [1990] AC 1.
South West Hertfordshire Health Authority v KB[1994] 2 FCR 1051.
T (An Adult: Medical Treatment), Re[1992] 2 FCR 861; [1992] Fam 95.
W (A Minor) (Medical Treatment: Court's Jurisdiction), Re[1992] 2 FCR 785.
Richard Gordon, QC and Craig Barlow for the plaintiff.
Robert Francis, QC and Christopher Johnson for the defendant.
Gordon Murdoch as amicus curiae.
MR JUSTICE THORPE.These summonses raise the issue as to whether a person compulsory detained under the Mental Health Act 1983, not for mental illness but for a long-standing personality disorder, has the capacity to refuse medical treatment. The parties to the summonses are a young lady, the plaintiff, and the Croydon Area Health Authority that manages Warlingham Park Hospital where she is detained.
The Official Solicitor appears as amicus curiae and I would like to record my gratitude to Mr Hinchcliffe and Mr Murdoch who have put before the court evidence necessary for the fair disposal of the summonses that had not been submitted by the parties themselves. This case demonstrates how vitally necessary is the presence of the Official Solicitor in difficult cases to determine adult capacity.
The plaintiff is 24 years of age. She is the younger of two children. When she was about 6 she was sexually abused by her grandfather and continuously until the age of about 10, when the abuse ceased as a result of her grandfather suffering a stroke. When she was 13 years of age she was sexually abused by a lodger. From the age of about 14 to 16 she had a poor relationship with her parents, who are described as Born Again Christians. She left school at the age of 16 with four "O" levels. After training as a data analyst she worked for about three-and-a-half years for a shipping company.
In 1990 her grandfather died. His death caused in her a strong but mixed emotional reaction. In January 1991 she was admitted for the first time to Warlingham Park Hospital and that was her first contact with specialist psychiatric services. In 1991 she was assessed by Dr Hutchinson, the consultant psychotherapist who was available to patients at Warlingham Park. At that stage, Dr Hutchinson's opinion was that she was not suitable for psychotherapy.
Thereafter, there is a history of frequent admissions and discharges at different psychiatric units. There is a pattern of recurrent self-harm by para-suicide, cutting and burning. When the opportunities to cut herself or to burn herself were removed by surveillance, she turned to restricting her food intake as a last means of self-punishment.
At the end of 1991, she was admitted for a period of approximately three months to a specialist hospital, the Atkinson Morley. She had a particular friend, who was also in psychiatric care, who died of an overdose in March 1992, and that led to some deterioration in the plaintiff's stability. She was admitted to Warlingham Park on 14 October 1992 as an informal inpatient at which date she had a body weight of at least 64 kilos.
On 16 December 1992 she underwent the termination of a pregnancy which was the result of her first adult sexual relationship, in fact with an older patient at Warlingham Park. This experience proved profoundly upsetting.
On 18 January 1993 she was compulsory detained under s 3 of the Mental Health Act 1983. The basis of her detention under that section was that she was suffering from mental illness but, as I will demonstrate in due course, that was an erroneous classification since she was suffering not from a mental illness but from a psychopathic disorder.
In April 1993, she was reassessed by Dr Hutchinson for psychotherapy. At that stage, she...
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