Norfolk and Suffolk NHS Foundation Trust v HJ
| Jurisdiction | England & Wales |
| Judge | Mr David Lock |
| Judgment Date | 17 June 2023 |
| Neutral Citation | [2023] EWFC 92 |
| Court | Family Court |
| Docket Number | Case No: FD23F00014 |
[2023] EWFC 92
Mr David Lock KC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: FD23F00014
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
AND SITTING IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Nicola Greaney KC (instructed by Kennedys LLP) for the Applicant
Mr Rhys Hadden (instructed by the Official Solicitor) for the Respondent
Hearing dates: 24 May 2022
Judgment Approved
Mr David Lock KC:
This judgment concerns the lawfulness of care being provided to HJ who is now 64 years of age. HJ has long standing Bipolar Affective Disorder with psychotic symptoms which results in her experiencing hallucinations and delusions. She presents with signs of cognitive impairment. She has a diagnosis of acute oropharyngeal dysphagia as well as a number of physical health problems including renal impairment, chronic constipation, double incontinence, hypothyroidism. I will refer to the patient as “HJ” in this judgment in order to anonymise her and I grant an injunction to restrain anyone identifying HJ as the person to whom this judgment relates.
The Norfolk and Suffolk NHS Foundation Trust (“ the Trust”) originally applied for a determination that it was lawful to deprive HJ of her liberty whilst Trust clinicians were administering enemas to treat HJ for constipation. For the reasons set out below, it is now agreed that the Trust does not need the relief that it originally sought. Nonetheless, as this case has given rise to a series of issues concerning the treatment of detained mental health patients for physical conditions, I have been asked by the parties to give a full judgment and do so. The parties were also not able to agree whether the engagement of HJ's rights under article 8 of the European Convention on Human Rights (“ ECHR”) imposed additional procedural duties on the Trust which should be included within a court order, including a duty to conduct regular reviews of the treatment regime.
The Trust was represented by Ms Nicola Greaney KC and the Official Solicitor was appointed act to act as HJ's litigation friend, and represented by Mr Rhys Hadden. I am grateful to both counsel for their oral and written submissions.
The facts.
HJ was admitted on 19 June 2020 to a hospital operated by the Trust and was detained there following an order made by a Responsible Clinician under section 3 of the Mental Health Act 1983 (“ MHA”). Since her detention, HJ has been accommodated on an admission and assessment ward for those with acute mental illness who cannot safely be managed in the community.
The medical evidence in this case is not in dispute and I can therefore summarise it. HJ's mental health condition manifests in very challenging behaviour, which includes verbally and physically attacking other staff and patients, verbal outbursts and other disinhibited behaviour. She is treated with anti-psychotic medication which is administered covertly (following a best interest assessment) because she otherwise declines medication, although she will sometimes agree to depot antipsychotic medication. It is challenging for clinical staff to maintain a level of stability in her mental health due to the difficulty in ensuring that she takes all of her medication.
HJ also suffers from chronic constipation. Her constipation is not directly related to her mental health conditions but arises due to functional bowel disease and slow intestinal transit. The usual management for this condition for patients without mental health conditions is a combination of diet, exercise, laxatives and enemas as needed, along with seeking to avoid other medication that aggravates constipation. Following advice from a gastroenterologist, the Trust sought to increase HJ's dose of laxatives with a view to dropping or reducing the need for enemas. However, the laxatives stimulated strong peristaltic contractions and hence, the laxative dose was reduced to prevent those side effects. The combination of laxatives and regular enemas has managed to keep HJ's bowels reasonably open. She has also been prescribed linaclotide which is a drug for those with constipation refractory to laxatives.
The Trust accepts that HJ's resistance to treatment for her chronic constipation is closely related to the mental disorders from which she suffers. Her Bipolar Affective Disorder with psychotic symptoms results in her refusing other medications and care interventions, largely because she does not understand the potential benefit to her from some of medication prescribed for her or the consequences for her of not taking those medications. However, the Trust submits that her chronic constipation is a physical condition which has not been caused by HJ's mental disorder. On this point there is agreement between the Trust and the Official Solicitor, and I also agree.
The Trust also submits that her chronic constipation is not the primary or even a subsidiary cause of her mental disorder, although there is some evidence that she can present with an improved mental state after she has had an enema. That is the thrust of the medical evidence and I agree that this is the case. The fact that HJ's presenting mental health state can, to an extent, be improved or can deteriorate depending on her physical condition does not mean that her mental health condition is caused by her physical health problems. She may well present with fewer symptoms of her mental health condition when she is in good physical health and not in pain, but her gastrointestinal illness is not the cause of her Bipolar Affective Disorder. It follows that, as agreed between the parties, the administration of enemas falls outside the scope of section 63 MHA even applying the expanded scope of section 63 arising from cases such as B v Croydon Health Authority [1995] Fam 133.
Whilst her refusal of medication and the need to treat her with medication covertly might have an impact on the efficacy of laxatives and other medication, it seems to me that the Trust are correct to say that the key problem is that the treating team is fully justified in not increasing the dose of laxatives to the dosage initially recommended by the gastroenterologist because HJ cannot tolerate a higher dose of laxatives and experiences strong contractions. This appears to be a physical reaction to laxative medication and does not appear to be related to her mental disorder. In any event, the evidence suggests that some enemas may be needed even if HJ could tolerate an increased dose of laxatives.
Prior to her current admission, HJ had lived in the community for many years. In April 2018 she was admitted to a hospital operated by the Norfolk and Norwich University Hospitals NHS Foundation Trust with a urinary tract infection. At that point she presented with psychotic delusions and severe self-neglect. She was then detained under the MHA at the Trust hospital where she is now detained and subsequently discharged to a care facility where she was subject to a supervision regime which meant that she was deprived of her liberty. A standard authorisation order was made under Schedule A1 of the Mental Capacity Act 2005 (“ MCA”). That standard authorisation meant that the deprivation of her liberty in that care facility was lawful. HJ was thereafter re-admitted to the Trust hospital and detained under s.3 MHA on 19 June 2020 following a decline in her mental health subsequent to a fall. She has thus been in hospital and receiving this treatment for the past 3 years.
HJ continues to suffer from chronic constipation and is prescribed regular enemas which are currently being administered every 2 to 3 days, alongside daily laxatives (lactulose and senna) and another medication (linaclotide) used to treat constipation. In order for an enema to be administered, HJ requires restraint from nursing staff and about 5 members of staff are usually required. The process of providing her with an enema was described by Nurse O who gave helpful evidence by video link to the court. She explained that when staff consider that HJ is suffering signs of distress and an enema may be needed, she is guided or physically escorted from the “pod area” towards her bed and placed in the prone position and rolled onto her left side. Staff will then go on either side of the bed and hold her arms for reassurance. Once HJ is on the bed, nursing staff explain to her that they need to administer an enema. At this time HJ will typically either attempt to pull at staff clothing or grip onto staff hands or body parts. The administration of the enema itself requires 4 people to assist with the physical restraint required; one person on each side to restrain arms, one to administer the enema and a fourth person to hold both legs and prevent HJ from kicking staff. A fifth person is also required to open doors entering her room, support her head if needed and monitor her physical state during the restraint. HJ will continue to be loud and verbally aggressive towards staff throughout this process.
Nurse O further explained that:
(i) The typical duration of physical restraint when administering the enema with HJ on the bed is approximately “3–5 minutes in length”;
(ii) It may take between “30 seconds to 5 minutes” for HJ to be physically escorted from the pod area to her bedroom. This escort may require some form of physical restraint (such as holding her forearms), although hand holding can be used more often than not;
(iii) HJ has had other forms of treatment provided via the same restraint procedure including: (i) administration of depot medication once per week (although this has not been required since March 2023); (ii) administration of rapid tranquilisation by intra-muscular injection on a PRN basis; (iii)...
To continue reading
Request your trial