Tameside and Glossop Acute Services Trust v CH

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date1996
Date1996

WALL, J

Medical treatment – adult patient detained under s 3 of the Mental Health Act 1983 – tests at 38th week of pregnancy showing development of foetus required immediate delivery – patient's consent wavering – whether treatment under s 63 covered induction of birth or Caesarian section with any necessary physical restraint – whether such treatment was in patient's best interests.

The patient, a woman aged 41, had been suffering from schizophrenia since at least 1983. In July 1995 she was highly aroused and admitted to hospital under s 3 of the Mental Health Act 1983. Following her admission she was found to be pregnant. In early January 1995, during the 38th week of pregnancy, the foetus was showing inter-uterine growth retardation. Evidence before the court from a consultant obstetrician and gynaecologist ("the doctor") showed that unless labour was induced very shortly the foetus was likely to die in utero. Induction required the patient's co-operation. Furthermore, if the foetus became distressed during birth there would have to be a Caesarian section, again requiring the consent of the patient. A second consultant gynaecologist confirmed the doctor's assessment of the current state of the pregnancy, the risk to the foetus, and the need for a swift delivery. In view of this consensus the Official Solicitor as guardian ad litem felt able to form an opinion about the medical evidence without taking independent expert advice.

As at the day of the hearing the patient had agreed to an induction of labour and to a Caesarian section if needed, but the doctor did not feel confident that she would remain of the same mind. He would do his very best to persuade her to accept the treatment, but if she were to struggle he would wish to proceed immediately. In his opinion the best treatment he could provide for the patient was to give her a live baby. At the same time he appreciated that if a woman of sound mind in her position were to refuse any particular course of treatment he would be bound to respect that refusal in accordance with the guidelines laid down by the Royal College of Obstetricians and Gynaecologists following Re S (An Adult: Medical Treatment)[1992] 2 FCR 893.

Further evidence was given by the consultant psychiatrist who had first seen the patient in July 1995 and had arranged for her admission to hospital. At some stages of her pregnancy it had been very difficult to help her as she often resisted anyone going near her and as she had shown adverse reaction to major tranquillisers. He considered the patient to be suffering from paranoid schizophrenia and to be incapable of making a balanced rational decision about her treatment. She was delusional and felt that the staff were a threat to her child. She did, however, clearly wish to care for the child. As stillbirth would have a profound, deleterious effect on her, the best interests of the patient lay in her producing

a healthy child. Optimum treatment of her physical condition, producing a live child, would lead to optimum treatment of her mental state, and was therefore directly linked to the outcome of her psychiatric recovery.

The hospital trust applied for a declaration that a Caesarian section including any restraint which might reasonably be required in the interests of the patient could lawfully be performed despite her inability to consent thereto.

Held – (1) In any case in which a declaration was sought that a patient incapable of making a rational decision be given treatment, the greatest care had to be taken to protect the interests of that patient. The court had no parens patriae jurisdiction over mentally incompetent adults to give or withhold consent, but was competent to grant a declaration that a given treatment was lawful and in the patient's best interests. The principles underlying non-consensual treatment as derived from Re F (Mental Patient: Sterilization) [1990] 2 AC 1; Airedale NHS Trust v Bland[1994] 1 FCR 485; Re T (Adult: Refusal of Treatment)[1992] 2 FCR 861; and Re C (Adult: Refusal of Treatment)[1994] 2 FCR 151 could be summarized as: (i) in general it was a criminal and tortious assault to perform physically invasive medical treatment without consent; (ii) a mentally competent patient had an absolute right to refuse treatment even if that refusal might lead to his or her death; (iii) an "incompetent" patient could lawfully be given such treatment as was (a) not contrary to a previously expressed competent decision, (b) necessary to save life or prevent deterioration of mental or physical health, and (c) was in the patient's best interests; and (iv) a patient lacked the relevant mental competence to make a decision if he was incapable of (a) comprehending, (b) believing, and (c) weighing information about treatment.

(2) The present case raised a further and novel question: was it right for a doctor to restrain a patient to administer an anaesthetic if she refused to co-operate? Could the question be answered at common law or did it have to fall within the statutory framework? For s 63 of the Mental Health Act 1983 to apply, medical treatment had to be for the mental disorder from which the patient was suffering. There was overwhelming evidence that this patient lacked the capacity to consent or refuse medical treatment in relation to her pregnancy. She failed the three tests of comprehending, believing, and weighing information about treatment laid down in Re C (Adult: Refusal of Treatment) (above). In particular, she suffered from the delusion that the doctors wished to harm her baby and was incapable of understanding the advice which she was given. Delivery of a stillborn child was likely to lead to a deterioration in her mental health in both the short-term and the long-term. It was plainly in the interests of the patient to give birth to a live baby. As to whether performance of a Caesarian section and, if required, physical restraint was treatment for her mental disorder, it was wrong to adopt too atomistic a view. The terms of the 1983 Act provided that not every act must in itself be likely to alleviate or prevent a deterioration of the patient's mental disorder but that ancillary acts, such as nursing and care were included in the definition of "medical treatment": s 145(1) of the Act. In the present case the proposed treatment was to prevent a deterioration in the mental state of the patient. It was essential for her to give birth to a live baby in order that the treatment of her schizophrenia could be effective. She needed strong anti-psychotic medication which had to be interrupted by her pregnancy and could not be resumed until her child was born. Achievement of a successful outcome of her pregnancy was a necessary part of the treatment of her mental disorder. The proposed treatment of the patient in the present case was within the broad interpretation of s 63 of the Mental Health Act 1983 approved by the Court of Appeal in LB v Croydon District Health Authority[1995] 1 FCR 662. It followed that the patient's consent was not required and that the doctor was entitled, should he consider it clinically necessary, to use restraint to the extent to which it might be reasonably required to achieve the birth of a health baby.

Per curiam: It was unnecessary in the present case to consider the question whether or not the court could make a declaration authorizing the use of reasonable force without relying on s 63 of the Mental Health Act 1983. That point remained to be decided in a future case. The lawfulness of the use of restraint to facilitate treatment had not arisen in Re F (Mental Patient: Sterilization) [1990] 2 AC 1 nor in other reported cases on sterilization. In cases involving anorexia nervosa (see eg South West Hertfordshire Health Authority v KB[1994] 2 FCR 1051) and in LB v Croydon District Health Authority[1995] 1 FCR 662 declarations were founded on s 63 of the 1983 Act. The court expressed no opinion on the argument that it might have power at common law to authorize the use of reasonable force as a necessary element of treatment.

Statutory provisions referred to:

Mental Health Act 1983, ss 2, 3, 57, 58, 63 and 145(1).

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; [1994] 1 All ER 819.

F v Riverside Mental Health NHS Trust[1994] 2 FCR 577.

F (In Utero), Re [1988] FCR 529; [1988] Fam 122; [1988] 2 WLR 1288; [1988] 2 All ER 193.

F (Mental Patient: Sterilization), Re [1990] 2 AC 1.

GF (A Patient), Re [1991] FCR 786.

LB v Croydon District Health Authority[1995] 1 FCR 662; sub nom B v Croydon Health Authority [1995] Fam 133.

S (An Adult: Medical Treatment), Re[1992] 2 FCR 893; [1993] Fam 123; [1992] 3 WLR 806; [1992] 4 All ER 671.

South West Hertfordshire Health Authority v KB[1994] 2 FCR 1051.

T (Adult: Refusal of Treatment), Re[1992] 2 FCR 861; [1993] Fam 95; [1992] 3 WLR 782; [1992] 4 All ER 649.

Huw Lloyd for the hospital trust.

Robert Francis, QC for the patient.

MR JUSTICE WALL.

On 5 January 1996, I made a declaration in favour of Tameside and Glossop Acute Services NHS Trust ("the Trust") in the following terms:

"The operation of Caesarian section and all necessary and/or ancillary treatment in the management of the delivery of the defendant's child including any restraint to the extent to which it may be reasonably required which the plaintiff by its servants or agents propose to perform on the defendant at (a specified hospital, hereinafter called `the hospital') in the event of the same being considered clinically necessary is in the best interests of the defendant and can lawfully be performed despite the defendant's inability to consent thereto."

I also made a consequential order in the following terms namely that:

"No person shall publish in connexion with these proceedings save for the purposes of caring for the defendant or for the...

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