NHS Trust v T (adult patient: refusal of medical treatment)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Charles |
| Judgment Date | 28 May 2004 |
| Neutral Citation | [2004] EWHC 1279 (Fam) |
| Docket Number | Case No: FD04 P00637 |
| Court | Family Division |
| Date | 28 May 2004 |
[2004] EWHC 1279 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Charles
Case No: FD04 P00637
Bridget Dolan (instructed by Kennedy's) for the Claimant
Kate Markus (instructed by Fosters) for the Defendant
Edward Solomons, Solicitor Advocate and Deputy Official Solicitor
Hearing date: 20 May 2004
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 is being handed down in private. It consists of 28 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
The Hon. Mr Justice Charles:
Introduction
This case concerns Ms T who is 37 years old. The Claimant seeks declaratory relief concerning her medical treatment. The Claimant is responsible for the medical care of Ms T, but it is not responsible for her psychiatric care and at present does not have her psychiatric records.
At the hearing before me Ms T was represented by solicitors and counsel. I also heard submissions from the Official Solicitor and, of course, the Claimant. The Official Solicitor was present and represented in one or more of the following capacities, namely, as the potential litigation friend of Ms T, as a friend of the court or as a person who would be invited to make enquiries by the court. His participation was extremely helpful. I pause to comment that it is well recognised that the participation of the Official Solicitor in cases of this type, which are difficult and sensitive, is helpful to the court and others who are involved in them.
I was told that the solicitors acting for Ms T have experienced difficulties in obtaining public funding. To my mind this is surprising and unfortunate. The judge who deals with this case at final hearing may wish to return to this point, however I record at this stage, that in cases of this type it is important that all practical efforts are made to enable the person who is, or may be, refusing treatment to be properly heard (see the guidelines in reported cases referred to below). An important aspect of that is the funding of his or her legal representation.
Background
It was common ground before me that Ms T suffers from a borderline personality disorder and that she has had a long history of psychiatric contact with relevant services.
Ms T has on a number of occasions over the years self harmed by cutting herself and blood-letting. The consequence of this blood-letting is that her haemoglobin level falls to a life threateningly low level such that she requires blood transfusion on an emergency basis. My references to blood transfusion should be read as including iron supplements and other necessary treatment in respect of her dangerously low haemoglobin. This emergency situation can arise on or very shortly after her presentation at, and admission to hospital. The high risk that exists at these times of chronic anaemia is that in the absence of a blood transfusion sufficient oxygen will not be transferred to her body tissues and Ms T will die.
Over the years Ms T has been given blood transfusions on a number of occasions in such emergency situations by the Claimant and although her initial stance has been to refuse such transfusions she has been persuaded by clinicians, or has decided to, accept them.
Such an incident occurred in the autumn of 2001 and it generated some medical opinions which are before me. I shall return to these medical opinions.
On 28 January 2004 Ms T signed an advance directive which contains the following passages:
"You are advised to read the guidance note before completing this document.
This is the advance directive of [Ms T].
If at any time in the future I experience a mental health crisis, I direct that the following instructions are complied with. In particular, I refuse treatment which is contrary to that stipulated in this document. Where I have objected to a specific form of treatment this shall be legally binding on those treating me, unless I am subject to compulsory treatment under the Mental Health Act 1983 [Ms T's signature follows this passage]
I confirm that I believe the above named [Ms T] has freely stated her directions in this document. It is my understanding and belief that she has the mental capacity to understand the nature and consequences of these directions.
[This passage is signed by (I think) the person named later in the document as Ms T's advocate]
MY WISHES REGARDING MEDICATION AND TREATMENT
Should my blood volume or HB level fall low, I do not wish to be given a blood transfusion or iron.
REASONS FOR MY DECISION
I make this decision for two reasons. First because I am caught in a vicious circle/set of circumstances too difficult for me to continue enduring. I am not aware of when I am cutting myself, and therefore cannot prevent my HB dropping very low periodically. Having a transfusion does not resolve this problem in the long term, only causes stress to myself.
Secondly I believe my blood is evil, carrying evil around my body. Although the blood given in transfusions is perfectly healthy/clean once given to me it mixes with my own and also becomes evil. Contaminated by my own. Therefore the volume of evil blood in my body will have increased and likewise the danger of my committing acts of evil.
UNDERSTANDING THE NATURE OF THIS DIRECTIVE AND THE EFFECT IT WILL HAVE
I am fully aware that in refusing a blood transfusion I may die.
At the time of writing this I have capacity and am mentally competent.
I attach a letter confirming my understanding of this directive from my GP [who is named].
It is my wish that the following people be told immediately should I be admitted to hospital [an advocate and a social worker are named]
MY CHOICE OF MENTAL HEALTH LAWYER IS [the lawyer is named]
IN THE EVENT THAT I LACK CAPACITY TO MAKE A DECISION FOR MYSELF, I WOULD LIKE THE FOLLOWING PERSON TO BE CONTACTED AND CONSULTED [the person named as the advocate is named]
I confirm that this person knows and understands the terms of this directive, and that they have given them permission to be contacted and will speak for me in a crisis
[The document is then signed by Ms T]"
The letter from the GP that is referred to in the advance directive is signed by the GP and Ms T. It is addressed 'To whom it may concern' and states as follows:
"Ms T would like it noted that she is making a directive via a solicitor and that she would like a discussion with staff responsible for instituting treatment, i.e. blood transfusion, before it is forced upon her and she understands the implications of not undergoing treatment when her anaemia is severe and she is being advised to have a transfusion. Ms T understands that this decision may result in her death."
On 22 March 2004 Ms T was seen by the Claimant's treating psychiatrist (Dr C) who reported his views in a letter dated 24 March 2004 which includes the following:
"Diagnosis: emotionally unstable / borderline personality disorder
Current medication: I believe unaltered compared with 30 January 2004
Current condition
Ms T came to outpatient clinic after her advocate (the advocate named in the advance directive). The purpose of this meeting was to discuss the matter of her longstanding unwillingness to accept future blood transfusions and specifically the advance directive which she has produced – issue no. 2 dated 28 January 2004.
Having reviewed her case notes and interviewed her on this occasion, I concluded that I did not think she had capacity to refuse treatment, specifically blood transfusions or iron supplements.
I base this decision on the following:
Her present state of mind is not substantially different to that which pertained some years ago nor is likely to exist in the future. She is in a continuous state of disordered thinking brought about by her mental disorder, namely borderline personality disorder. She does not appear to be making an advanced directive to manage a mental disorder which may occur at a future time; it is present now and is now likely to remain with her for the foreseeable future.
I would emphasise that I do not think Ms T has a psychosis but one of her reasons for declining blood transfusion is that her blood is 'evil, carrying evil…………' I believe that in itself represents disordered thinking and borderline personality disorder.
I am aware that my opinion is shared by some psychiatrists but not by others who have pronounced on Ms T's circumstances. I do not think it will be possible for clinicians alone to reach a conclusion as to what should happen when, inevitably, she requires further blood transfusions in the future. Ms T led me to understand that there have already been some discussions between [the mental health care trust and the Claimant] and I shall make contact with [the mental health care trust] to clarify the position.
Ms T tells me that today in other respects she remains reasonably well and led me to understand cutting had been rather less in recent months since the last transfusion in October 2003. She felt it however, likely, that she would become liable to need a transfusion over the next few months, although she emphasises she would not wish to accept it……….."
This letter was copied to Ms T's social worker.
The prediction...
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