Eligibility – a new gap?

The Court of Protection case about the Iranian doctor on a hunger strike because the UK Border Agency had confiscated his passport, which popped up in the news some time ago, has meandered it’s way onto BAILII. The case is extremely interesting for its treatment of mental capacity and cultural differences, but I’m not going to talk about that today (for me, it did bring to mind the play Blue/Orange, by Joe Penhall, where the audience is left wondering in places how implausible the ‘delusions’ of a psychiatric patient that he is the son of Idi Amin actually are). What I want to talk about is the discovery of... (drum roll please) a new Bournewood Gap

Those of you not obsessed with the twists and turns of ‘eligibility’ for the deprivation of liberty safeguards, which is a particular issue arising from the interaction of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), I suggest you tune out now. Those of you hoping this will have some fascinating CRPD-related insights, apologies, this discussion will remain within the parallel universe of trying to make sense of conflicting obligations in domestic legislation, neither of which are likely to be CRPD compliant (or even ECHR compliant, given the way this case turned out).  But eligibility geeks - let’s get stuck in. I’m sort of assuming readers are familiar with the case GJ v The Foundation Trust (2009) which concerns when a person who is not detained under the MHA but who is in hospital is ‘eligible’ for detention under the DoLS. Here’s my recent effort to schematise the judgment:

When I am stuck on questions of eligibility, I turn to Richard Jones's guides to the MHA and MCA, and since I can't improve upon perfection I suggest you do the same!  But in fact, this case was slightly different to the GJ situation, and perhaps even more complicated...  The unfortunate judge having to deal with the mess left by Parliament on this occasion was Mr Justice Baker.

Dr A is an Iranian doctor who had been denied asylum in the UK. He was staging a hunger strike in protest at the UK Border Agency confiscating his passport. The case appears to have arrived in court after Dr A ceased to co-operated with the insertion of a naso-gastric tube, and there was a 'complex picture' around his capacity to consent (or refuse consent) to this treatment.  Various doctors, independent experts and the court concluded that he ‘lacked capacity’ in relation to this issue and the court held that it was in his best interests for him to be forcibly fed. The Official Solicitor, who represented Dr A (as he was found to lack the capacity to litigate) and the NHS Trust were in agreement on this, and in agreement that this treatment would involve a deprivation of liberty. 

The question was: could the Court make an order authorising a treatment which involved a deprivation of liberty, if a person was ineligible for the DoLS?  This issue arose because of a little-observed quirk of the MCA.  The Court of Protection can authorise a deprivation of liberty by way of an order under s16 MCA.  However, s16A MCA places a restriction on this power of the court, to the effect that it cannot authorise any deprivation of liberty if they are not eligible for the DoLS in the meaning of Schedule 1A MCA.  This issue has, in fact, arisen before in the case Re E (Medical Treatment: Anorexia), although it was not addressed in the published judgment (but according to the July 2012 edition of the 39 Essex St Newsletter the Court was aware of the issue, although I think the solution arrived upon there still appears to contravene s16A...).  Given that the issue has arisen before, I was surprised that nobody raised it before the Court and Baker J himself had to ask the question [64].

At first the question of eligibility fell to be considered under the notorious (from GJ) 'Case E' under s2 Schedule 1A MCA. This is the question of which framework - MHA or DoLS - a person who is in hospital should be detained under.  This would have necessitated an inquiry into whether Dr A would be detained 'but for' a treatment for mental disorder, as per GJ (see the above slide).  However, events overtook the court before this could be settled and Dr A was detained under s3 MHA, plumping him squarely into the 'Case A' bracket of Schedule 1A, which unambiguously says that he would be ineligible for the DOLS.  Baker J concluded:

In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived. [66]

At this point, I began to wonder why, given that the fact of detention was itself already authorised under s3 MHA, the Court of Protection also needed to authorise the detention - could it not just make an order, or even a declaration of lawfulness under s15 MCA, regarding the treatment and be done with it?  Baker J explains it like this:

Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his "treatment" under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself. [67]

I have to confess that I am still unsure why the MHA can't authorise the detention element and the MCA the treatment, does anybody have any thoughts?  Perhaps it is because of the worry - expressed at one point by the Trust - that if Dr A ceased to be detained under the MHA there would be no residual authority for the detention necessitated by the treatment treatment.

In any case, noting the ‘ambiguity, obscurity and possible absurdity of the legislation’ (!), Baker J asked counsel to search the Parliamentary records for any signs of its intentions regarding s16A (applying Pepper v Hart). Unsuprisingly, since (as Richard Jones points out) Parliament barely roused itself to properly scrutinise a piece of legislation which would impact upon a trivial matter like the liberty of tens of thousands of citizens during the passage of the DoLS, they didn’t turn up anything to offer any greater clarity.

Baker J then considered the following three options, proposed by the Official Solicitor:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.
(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.
(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court's inherent jurisdiction.

Could the forcible feeding be given under the MHA?

I have to confess that at first I thought that the first option, that the treatment could be given under the MHA, was a no-brainer. The case law is pretty clear that forcible feeding is permissible under the MHA in the case of anorexia, as starvation is a symptom of anorexia, and so I had assumed it would be here too. Dr A had been diagnosed with a delusional disorder, he was refusing to eat because of his delusional disorder (according to the capacity assessment conducted by doctors and the court), and therefore his physical symptoms could be linked to his mental disorder in an analogous way to starvation in patients with anorexia.  The NHS Trust took the opposite view, however. And here is their fascinating reasoning as to why:

...Miss Paterson informed me that there are real concerns about the extent to which section 63 of the MHA can be relied on to carry out treatment of physical conditions. If clinicians are in a position where a physical problem only incidentally connected to the mental health disorder could be treated under that section, there is, says Miss Paterson, a perceived risk that the number of patients under section may increase. Such a development would be therapeutically undesirable as doctors prefer, wherever possible, to treat patients informally rather than under section in the hope that a patient will engage with treatment if acting voluntary. Generally, Miss Paterson told me, there is anxiety about the absence of clarity in this area because it is something with which doctors have to grapple every day. In addition Miss Paterson reminds me that the remedies for a patient detained under section 3 of the MHA are either to challenge the section or to seek a judicial review of the proposed treatment. Each of these remedies is a blunt instrument compared to an application to the Court of Protection under the MCA or to the High Court under the inherent jurisdiction seeking an order in the patient's best interests. [76)

As an aside, a rise in the number of patients 'under section' could be a bad thing, if those patients were not detained.  But it might also signify a rise in the number of those who are already de facto detained, being given the appropriate safeguards.  

Now, I don’t suggest for one second the doctors were seeking to avoid legal safeguards in this case – an application to the Court of Protection is hardly a lightweight legal alternative to the MHA. However, I am perplexed by their line of argument. I can’t quite work out if the NHS Trust wants to argue that they should be able to informally treat a person who is objecting to treatment for a physical condition which is ‘incidentally’ connected with a mental health disorder, in the hope that they play ball further down the line,  or whether they want to use the Court of Protection or the inherent jurisdiction in every such case. The former option would suggest that they want to treat people in circumstances which could amount to detention without any detention safeguards. This would obviously violate Article 5 ECHR. The latter option would involve a massive amount of litigation.  

Curiously, the NHS Trust then produced the case of X v Finland in support of their view that the Court of Protection is a better instrument than the MHA for these types of cases. X v Finland raises really fundamental questions about the compatibility of the MHA (and the MCA) with Article 8 ECHR (as Nell Munro explains in this excellent post), as it essentially finds that a person must be able to bring proceedings to challenge individual treatments (not just their detention) which they object to. Now, in theory a person could challenge involuntary treatment under the MCA by applying to the Court of Protection, and a person treated under the MHA could seek a Wilkinson hearing by judicial review, but given how rarely this happens (in the context of the implied volume of people objecting to treatment under the MHA), I’m doubtful this constitutes a ‘practical and effective’ right, or an accessible remedy for the purposes of Article 8 ECHR (or Articles 6 and 13 ECHR). So it appears that the Trust might be trying to argue that in these cases, where the ‘need for detention’ arises from treatment for a physical condition which is only incidentally connected with a mental disorder (and not a 'symptom' of it), the case should go to the Court of Protection. This would certainly be a very interesting – and brave – view, which I can’t imagine many Trusts agreeing with, but still, it is interesting to see X v Finland (finally) being produced before a UK court.

In any case, however, Baker J did distinguish the circumstances of Dr A from the anorexia cases and the Brady case on the grounds that ‘The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder’. Personally, I don’t find this an easy distinction to get my head around (particular in view of Brady), but anyway, that will probably unruffle some feathers around the scope of the MHA. The consequence of this was that s63 MHA could not be used to forcibly feed Dr A.

Can forcible feeding be authorised by the Court under the MCA?

Counsel for the Official Solicitor argued that the Court of Protection not only could authorise the forcible feeding under s16 MCA, but that it must because of the ‘operational duty’ to save life arising out of Article 2 ECHR (as interpreted in Rabone and Savage). According to the Official Solicitor, the Court must (as a public authority itself, bound by the Human Rights Act 1998 to respect ECHR rights), not interpret s16 MCA narrowly ‘so as not to prohibit the inclusion of a welfare order or a provision which authorises the person to be deprived of his liberty where such a provision is necessary to uphold the person's right to life under Article 2’ [85]. Alternatively, it was submitted that s16A MCA (the bit that says authorisation of any deprivation of liberty is subject to the DoLS eligiblity criteria) should be interpreted in accordance with its legislative intention to fill the Bournewood Gap.

Despite the unanimity of the Official Solicitor and the Trust, and the ‘attractions’ of their arguments, Baker J was unable to accept their submissions. He felt that this ‘reading in’ of Article 2 to s16A MCA would fundamentally alter the clear meaning of the provision [87]:

The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:
"Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose." [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.’ [87] (my emphasis)

For a moment there, it looked as if Baker J was about to deliver yet another declaration of incompatibility of the MHA and the ECHR (see this list of all declarations of incompatibility, many of which concern the MHA).  In the event, however, the inherent jurisdiction of the Court rode to the rescue...  

Can forcible feeding be authorised under the inherent jurisdiction?

In a nutshell, the ancient parens patriae jurisdiction in respect of ‘incapable’ adults was abolished by the MHA 1959. This set in motion a chain of cases in the ‘80s and ‘90s which invented a ‘declaratory’ jurisdiction out of the doctrine of necessity, which was eventually codified as the MCA. But the MCA did not kill off the inherent jurisdiction of the court; through some mystical process connected with the common law, it resurfaced – bigger than ever – and could now be applied to ‘vulnerable adults’ who did not even ‘lack capacity’ within the meaning of the MCA.   (For a more fulsome introduction to the inherent jurisdiction, check out this guide by the Essex Autonomy Project).  The existence of the inherent jurisdiction raises all kinds of constitutional and rule of law based questions, which I have no plans to discuss today, but the long and the short of it was that Baker J used this amorphous jurisdiction to authorise detention for the purposes of treatment in this case.

Postscript

This judgment was published about six months after The Independent first reported its outcome. This meant that Baker J could add a short postscript to the judgment, detailing (for the benefit of the public) what happened next. Dr A was duly force fed and treated with antipsychotic medications, ‘His mental state gradually improved’, he began to eat and drink voluntarily and he chose to return to Iran. His doctors felt these were capacitious decisions. I often wonder what happens in the outcome of these cases; it’s an interesting insight into the increasingly public-facing nature of Court of Protection judgments that it was reported here.  I would be interested to know, however, how Dr A felt about the whole affair and the court proceedings.  It is very rare indeed that we get to learn how 'P' felt about capacity assessments and best interests decisions after they have been taken.

What are the implications of this case?

I am still wrestling with the implications of this case. Dr A’s circumstances were unusual, to be sure, but circumstances where doctors will want to treat an objecting patient for physical symptoms which are ‘incidentally’ connected with a mental disorder are not unusual. I suspect some (much?) of the time the question of whether they are deprived of their liberty for the purposes of such treatment is not seriously considered, and so these issues of eligibility do not arise.  In this case, eligibility only arose because Baker J himself started asking uncomfortable questions.

NHS Trusts, as we learned from the submissions in this case, are in any case reluctant to use the MHA to deliver such treatments.  The implication appeared to be that they preferred to treat 'informally', ie. without safeguards, but there also appeared to be some preference for airing these disputes about treatment in a judicial forum (an odd position, occupying both extremes of the procedural safeguards spectrum at once!).  The implication of this judgment appears to be that in any case they cannot be administered under the MHA, nor can the Court of Protection make an order authorising treatment under s16 MCA. Instead, the inherent jurisdiction must be relied upon. 

But does this apply for all kinds of treatment in such cases? I suspect forcibly feeding a failed asylum seeker raised all kinds of alarm bells at the Trust, carrying with it all kinds of political connotations not to mention media interest. I wonder if this lay behind their decision to apply to the Court of Protection, rather than rely upon s63 MHA. But there are plenty of other treatments falling into this category which might be involuntarily administered, perhaps even forcibly. I suspect some Trusts may have been assuming they were covered by ss5-6 MCA in such cases, but it would be perverse if ss5-6 MCA (which is technically a defense, not a power) could provide some legal cover where the Court of Protection itself could not. Should we expect anything less of the tangled web that is eligibility...?

And what of X v Finland, the question of whether a person’s objections to involuntary treatment should always be heard by a court? Surely it would be out of keeping with the ECHR guarantees of practical and effective rights, to rely upon a population who are detained and may have difficulties with comprehension, to know about – and exercise – a right to challenge these treatments in court without assistance? The point of these ECHR procedural safeguards is to safeguard against arbitrary interferences with a person's rights, and relying on a person's abilities to initiate and conduct such litigation without assistance seems like a pretty arbitrary way to go about that.  Therefore, does a Trust, which administers such treatment, have a duty to help a person to get to court to have their objection properly scrutinised by a judge? That would be my reading of X v Finland, read in connection with general ECtHR authorities about special procedural safeguards to help people with mental disabilities access justice effectively (Stanev v Bulgaria, RP v UK). It was a shame, in a way, that the question of when involuntary treatment decisions must go to court was not discussed in more detail, as that may well prove to be the ultimate downfall of both the MCA and the MHA from an ECHR perspective.

And then, of course, there is the question of the UN Convention on the Rights of Persons with Disabilities. These days it sometimes feels to me as if I am reading, writing and working in two parallel human rights universes: one (the one I inhabited for this post) infused by the slowly evolving rights guaranteed by the European Convention on Human Rights, another infused by the nebulous, exciting and frustratingly slippery rights of the UN CRPD. If I was writing today with my CRPD head on, the whole issue would be about ‘mental capacity’, and the impermissibility of forced treatment.  The question of whether or not a person is eligible for a framework that does not comply with the UN CRPD, for involuntary treatment which does not either, would be beside the point. But for those caught within the system as it stands, there are pressing questions about what safeguards exist to enable them to challenge and resist involuntary treatment, given that a CRPD compliant framework is not likely to be adopted any time soon.