In JK v A Local Health Board, the Family Division of the High Court recently provided some useful narrative on the approach to be taken when considering the force-feeding of capacitous patients who are detained under the Mental Health Act and more generally on the use of section 63 MHA when treating patients against their will.
Facts in brief
JK was a 55-year-old male with a diagnosis of Autistic Spectrum Disorder (ASD) made later in life. At the time of the hearing, he was on remand for alleged murder. He had recently been transferred from prison to a secure hospital under section 48 MHA.
Since his detention in prison, JK had consistently stated that he wanted to die and intended to starve himself to death. He had refused food for 23 days but had started eating again shortly before the hearing as he wanted to attend court. He was considered to have capacity to make decisions about refusing food and had made a recent valid advance decision refusing medical intervention, even if his life was at risk. His treating consultants were very concerned about the impact of the refusal to eat and sought declarations from the court including a declaration that it would be lawful to force feed JK under section 63 of the MHA.
Evidence was heard from an independent consultant with expertise in ASD who expressed the view that JK had capacity to make decisions about whether to eat and whether to accept forcible feeding. He also considered that JK’s decision not to eat was a manifestation of his mental disorder.
The primary issue for the court to decide was whether the case fell within section 63 MHA which allows a patient to be given “medical treatment” for the mental disorder from which they are suffering without their consent being required. Medical treatment for mental disorder is described in section 145(4) MHA as medical treatment “the purpose of which is to alleviate, or prevent a worsening of, the disorder of one of more of its symptoms or manifestations.”
The court referred to existing case law which had already established the proposition that force-feeding can be treatment for a mental disorder. The question for the court to decide therefore was whether JK’s refusal to eat was a manifestation of his mental disorder. It was noted that the extent to which a situation falls within section 63 and section 145(4) can sometimes be difficult to ascertain.
Relying on the evidence of the independent consultant, the court held that JK’s refusal to contemplate any alternative paths and his rigid belief that refusing to eat was his only way forward, was a consequence of his autism and the case fell within section 63.
However, the court did not go on to make a declaration that JK could be force fed. The court held that just because JK could be treated under section 63, it did not automatically follow that he should be treated. On the evidence available, it was not clear that force-feeding would be in his best interests nor that such treatment would fall within section 145(4) as being treatment “to alleviate or prevent a worsening of the disorder.” At the time of the hearing, the hospital was still in the process of drawing up a detailed treatment plan. The court therefore held that if JK reverted to refusing to eat, a further hearing should take place to decide if forcible feeding would fall within section 145(4).
Points to take away
The case provides some helpful analysis of the applicability of section 63 and also the interface with the Mental Capacity Act (MCA) and the court’s inherent jurisdiction. The points to be distilled from the decision include:
- Where there is doubt about whether a treatment falls within section 63 and / or section 145(4) MHA, the appropriate course is to make an application to the court. The court can then make a declaration as to whether the proposed treatment is permitted under the MHA.
- The court’s inherent jurisdiction is not applicable in cases such as this. JK had capacity and so could not be treated under the MCA. If his decision to refuse food was not a manifestation of his mental disorder, he could not be compulsorily treated under the MHA either and that would be an end to it. The inherent jurisdiction cannot be used to reverse the outcome under a statutory scheme.
- Neither section 63 nor section 145(3) MHA refer to a patient’s best interests but this decision suggests that, for a court to provide a declaration that a form of treatment is appropriate under the MHA, it will require a detailed treatment plan that it will use to undertake an analysis of the benefits and burdens of the proposed treatment in order to determine the impact on the patient’s mental disorder and hence, whether it falls within section 145(4).