A brace of cases on Section 63 Mental Health Act

Two recently reported decisions of Mrs Justice Lieven (JK v A Local Mental Health Board and A Healthcare and B NHS Trust v CC) provide a helpful analysis of the approach to take when considering treatment under Section 63 Mental Health Act (MHA), particularly when the treatment is for a physical disorder.

The facts

JK was 55 years old and had been diagnosed with autistic spectrum disorder.  He was charged with murder and remanded in prison before being transferred to hospital under section 48 MHA.  Since being imprisoned, he had consistently stated that he wanted to die and would starve himself to death, at one point refusing food for 23 days.  He was considered to have capacity to refuse food and medical treatment and made a valid advance decision refusing medical intervention, even if his life was at risk.  He had a history of sensitivity to noise and a number of secretive obsessions and rituals around food which meant he could not eat in front of other people.  A declaration was sought by the Mental Health Board that it was lawful to force feed JK under section 63 although, at the time the application was made, a treatment plan was still in the process of being drawn up and no clinical decision had been made as to whether it was in his best interests to force feed him.

CC was 34 years of age with a diagnosis of psychotic depression and mixed personality disorder.  He had been diagnosed with Type 1 diabetes as a teenager and had suffered from complex physical health issues caused by chronically poor compliance with diabetic treatment.  Recently those issues had included renal failure requiring dialysis.  His compliance with dialysis was intermittent and the evidence was that if the current sub-optimal level of compliance continued, he would likely die within six weeks.  He was considered to have fluctuating capacity.  When he was stressed or physically unwell (particularly when he went several days without dialysis) he would lose capacity to make decisions.  When well, he had consented to dialysis and said that he wanted to be restrained in future, if he lacked capacity and was refusing life-saving treatment, as he did not want to die.  The healthcare bodies sought a declaration that dialysis could be given to CC as medical treatment under section 63 MHA.

The relevant statutory provisions

Section 63 MHA provides that, with the exception of certain specified treatments (such as ECT), medical treatment can be given to a patient for the mental disorder from which he is suffering without his consent.

This should be read in conjunction with section 145(4) which provides that medical treatment under the MHA means medical treatment “the purpose of which is to alleviate or prevent a worsening of the disorder or one of more of its symptoms or manifestations.”

Key points from the decisions

Mrs Justice Lieven reviewed previous authorities on treatment under section 63 and the detailed decisions in these two cases provide a useful reminder of the approach to be taken by treating clinicians and by the courts in such cases.  The following key points can be distilled from the decisions:

• The power to compulsorily treat a patient under section 63 MHA is conferred on the Responsible Clinician (RC) and not the court but, if the RC decides to impose treatment, the patient can seek a judicial review. 
• The extent to which a condition is within the ambit of section 63, read with section 145(4), can be difficult to ascertain and in cases of uncertainty, the appropriate course is for an application to be made to the court.  The court can make declaratory orders as to whether the proposed treatment falls within section 63 but this must involve a full merits review.
• It is well established that force feeding can be treatment within section 63 but the issue is whether it falls within that section on the individual facts of a case.  In JK’s case the court made a declaration that feeding by way of nasogastric tube was treatment within the scope of section 63 because his refusal to eat was a manifestation or symptom of his ASD.  However the court went on to say that it did not follow that force feeding would be in his best interests nor critically, that this would be treatment that fell within section 145(4) as being to “alleviate or prevent a worsening of the disorder”.  Force feeding would be traumatic for JK given his ASD and aversion to eating in front of other people and the court therefore gave the patient leave to apply to the court to review whether the treatment fell within section 145(4), should any decision be made by the Health Board to force feed him in the future.
• Haemodialysis would not usually be treatment to alleviate or prevent a worsening of or to treat the consequences of a mental disorder.  However, in CC’s case the court held that the dialysis fell within section 63 and 145(4) as it was treating a manifestation of his personality disorder.  The need for the dialysis stemmed from his self-neglect, which was a consequence of his mental disorder.  Further, the fact that he would agree to dialysis when well, meant his refusal was a manifestation of his mental disorder. 
• It was argued on behalf of CC that for section 63 to apply, the primary purpose of the treatment must be to treat the mental disorder.  The court held that it was sufficient that a purpose of the proposed treatment is to alleviate a manifestation of the mental disorder

As these decisions make clear, deciding whether a form of treatment falls within section 63 and section 145(4) can be challenging and you should not hesitate to contact our expert team to discuss any particular cases.