Nottinghamshire Healthcare NHS Trust v RC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 01 May 2014 |
| Neutral Citation | [2014] EWHC 1317 (COP) |
| Docket Number | Case No: 1248585T |
| Court | Court of Protection |
| Date | 01 May 2014 |
[2014] EWHC 1317 COP
COURT OF PROTECTION
AND
HIGH COURT OF JUSTICE, FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: 1248585T
Miss Bridget Dolan (instructed by Mills & Reeve LLP) for the Applicant
Miss Claire Watson (instructed by Guile Nicholas Solicitors) for the Respondent
Mr Robert Francis QC (instructed by The Official Solicitor) as Advocate to the Court
Hearing date: 24 April 2014
RC is aged 23. He is the child of parents who practise the faith of the Jehovah's Witnesses, but he was not baptised as such. At aged 4 he was taken into care. He was not brought up as a Jehovah's Witness. He has a long history of repeated self-harming conduct which has extended to self-strangulation and other self-injury such as burning himself, self-laceration and head-butting. He has been diagnosed as suffering from both antisocial and emotionally unstable personality disorders. He has also suffered thromboses for which he is prescribed the anti-coagulant warfarin.
RC was first admitted to a psychiatric hospital in 2006, when aged 15. In 2012 he was convicted of a serious sexual assault and sentenced to 5 years imprisonment. In August 2013, while in prison, he embraced the religion of the Jehovah's Witnesses, although he has not yet been baptised into that faith and the conversion procedure would be lengthy.
As is well-known, for doctrinal reasons Jehovah's Witnesses will refuse a blood transfusion as part of medical treatment. This is a central article of faith and will be adhered to even if death eventuates. It derives from an interpretation of Genesis 9:4; Leviticus 17:10, 14; Deuteronomy 12:23; and Acts 15:28, 29, all of which prohibit the eating of blood.
On 1 February 2014 when in prison RC badly slashed his brachial artery (the major blood vessel of the upper arm) at the crook of his elbow. When in hospital he refused a blood transfusion although no harm resulted from that decision. On 12 March 2014 he was admitted to a secure psychiatric hospital. On a number of occasions he attempted to reopen the wound and was placed in a restraint belt to prevent him from doing so.
On 4 April 2014 RC signed an advance decision under sections 24 and 26 of the Mental Capacity Act 2005 ("MCA"). As I explain below, this was properly witnessed. It provided that no transfusions of blood or primary blood components should be administered to him in any circumstances, even if his life was at risk. Provided that he was of capacity when he made it, this decision has the same effect as if the decision was made when the proposed treatment is to be carried out.
On 9 April 2014 these proceedings were commenced. The applicant NHS trust seeks:
i) Pursuant to the MCA, declarations by the Court of Protection as to RC's capacity:
a) to refuse blood products, and
b) to self-lacerate.
ii) Again pursuant to the MCA, a declaration by the Court of Protection that the advance decision of 4 April 2014 is valid and operative should a situation arise where RC needs a blood transfusion but is incapable (for whatever reason) of issuing a decision to refuse one.
iii) Pursuant to the inherent jurisdiction of the High Court a declaration that a decision already taken (at least in principle) by the clinician in charge of RC's treatment (Dr S) not to impose a blood transfusion on him (should one be needed) is lawful.
I have heard this case in public. The press has been in attendance. I have made an order preventing the identification of RC, the hospital where he is held and the clinician who is treating him. This is to protect his private interests. Otherwise, everything may be fully reported.
Legal principles
In principle, every citizen who is of age and of sound mind has the right to harm or (since 1961) to kill himself. This is an expression of the principle of the purpose of power found in the Declaration of the Rights of Man and of the Citizen (1793) and in John Stuart Mill's essay On Liberty (1859) where he stated at pp14 – 15:
"That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … Over himself, over his body and mind, the individual is sovereign" 1
Thus Judge LJ in St George's Healthcare NHS Trust v S [1969] Fam 28, 43 stated:
"Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it."
This right applies equally to detained citizens. In Home Secretary v Robb [1995] 1 FLR 412 Thorpe J stated:
"…every person's body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner"
A very recent example is Newcastle Upon-Tyne-Hospitals Foundation Trust v LM [2014] EWHC 454 (COP). There a gravely ill 63-year-old female Jehovah's Witness urgently needed a blood transfusion but had told the doctors that she was adamant that she would not want treatment with any blood products. Jackson J declared that it was lawful for the doctors treating her to withhold blood transfusions or the administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death. He held at para 24:
"There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it."
This is not to say that the right to self-destruction has no consequences for others. As Mill says "I fully admit that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large." Thus in Home Secretary v Robb Thorpe J stated "the …consideration of protecting innocent third parties is one that is undoubtedly recognised in this jurisdiction 2." Therefore, if a detained person were to make a formal written request to be given a razor blade with which to harm himself, or a rope with which to hang himself, such a request should obviously be refused both on moral and legal grounds for this reason, as dealing with the aftermath would be a dreadful and traumatic task for the staff 3.
There are three circumstances where adult citizens may have treatment or other measures imposed on them without their consent.
i) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the MCA.
ii) Similarly, adults who have capacity but who can be categorised as "vulnerable" and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority [2012] 3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867).
iii) Under the Mental Health Act 1983 ("MHA") a detained patient may have treatment imposed on him or her pursuant to section 63 which provides, so far as is relevant to this case:
"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment"
At first blush section 63 strikes one as an illiberal provision, given that it applies to all detained mentally ill patients who may well not lack capacity (as here). However, it can be well justified when one reflects that the treatment in question may be needed not merely for the protection of the patient but also for the prevention of harm to others, given the violent eruptions to which mental illness can give rise.
I turn to the question of judicial authorisation where powers are exercised in the three instances I have mentioned.
If a self-destructive course is being pursued by an incapacitated person (who has not made a valid advance decision) then pursuant to Court of Protection Practice Direction 9E life saving measures will likely amount to "serious medical treatment" requiring the issue to be determined by the Court of Protection. Plainly, in any case where the protected party contests a decision to impose treatment on him he is entitled to a hearing in the Court of Protection to determine the issue. The reports of cases in the Court of Protection are full of examples where life-saving treatment has been ordered in the face of trenchant opposition from the incapacitated person. A striking example is Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) where a 32-year-old woman suffering from extremely severe anorexia nervosa saw her life as pointless and wished to be allowed to make her own choices, realising that refusal to eat must lead to her death. All of the parties supported with different degrees of strength the view that it would not be in her interests to force-feed her. Nonetheless Jackson J held that the woman did not have the mental capacity to make the decision about treatment by forcible feeding and that the court must take the decision that was in her best interests. He ordered that it was in her best interests to be fed and to live. At para 137 he memorably held:
"We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know. E is a special person, whose life is of value. She does not see it that way now, but she may in future."
Obviously, a...
To continue reading
Request your trial