Re X [2015] EWCOP 36

The issues related to X’s physical health and whether treatment in the form of dietary exclusion and supplements fell within the powers of the Mental Health Act or the authority of the mother AY by her deputyship.

At trial the issues related to diet and whether the welfare deputyship should be restored or discharged and furthermore the court was asked to make a series of findings of fact against AY.

Background
X is aged 25 and suffering from an autistic spectrum disorder and moderate to severe learning disabilities. He is largely non-verbal but fully mobile and able to read, write and use an iPad to assist his communication. He lived in a care home and there were issues as to his dietary needs and constipation. All accepted that he is fully dependent on carers to meet all his personal care needs, food and fluid intake.
AY, X’s mother, was in January 2010 made a deputy for property and affairs and in February 2010 was made welfare deputy with authority to decide:

• where X should live and with whom
  
• day-to-day care, including diet and dress
  
• consent to medical or dental examination and routine treatment
  
• participation in leisure activities
  
• complaints about care or treatment
  

However on 25 January 2010 X was sectioned under the Mental Health Act – as a result the ability of a welfare deputy to decide where X is to live became ineffective and was overridden by the MHA. By February 2012 X moved to a residential care home having been discharged from the Mental Health Act. However there then appeared to be issues as to a decision made by X’s new GP not to provide X’s dietary supplements and instead to administer psychotropic drugs - namely citalopram. As a result AY issued an application and sought orders “to support and uphold her decision to refuse consent” for and to prohibit the administration of citalopram to X. Following an assault by X on a staff member at the care home X was sectioned again under the Mental Health Act and the responsible clinician felt it appropriate to administer Citalopram. X was detained in hospital for a month before returning to the care home but by October 2012 he was again subject to a section under the Mental Health Act.

Various applications were made to the court and on 21 March 2013 the court determined the issues to be as follows:

• whether X has a bowel condition at all;
  
• if he does, what is the appropriate treatment in his best interests, either by medication or diet, including nutritional supplements as proposed by AY;
  
• whether the appropriate treatment for the bowel condition identified is treatment for the mental disorder (autism) for which X is currently detained under the mental health act, it symptoms or manifestations.

X was discharged from his section under the Mental Health Act in July 2014 and had an unrestricted diet since 15 July 2014 when he went to live at a new placement which provided for accommodation for up to 9 service users. This placement was identified and agreed by all parties and there was no issue as to his removal from the placement. Contact occurred between X and his parents on a consensual basis and was working well. AY continued to believe that X’S behavioural challenges were reflective of a bowel condition which left him impacted and in pain, which he cannot otherwise express. She believed that this bowel condition can and should be treated by means of excluding certain types of food notably gluten casein and lactose from his diet and giving him nutritional supplements. 

AY stated that she was best placed to make decisions about the welfare of X and said that the deputyship should be reinstated. The local authority stated that the bowel condition is functional constipation probably arising from difficulties in the toilet training process attributable to his learning disability. The local authority sought a series of findings of fact which are set out in a schedule to confirm its view that AY  takes an unconventional approach to X’s care and treatment and seeks to impose her views to the detriment of X’s well-being. 

The local authority maintained that X should be allowed an unrestricted diet and medical treatment should be given as advised by responsible clinicians. The local authority sought a revocation of the welfare deputyship on the basis that a wide use of such authority jeopardises X’s stability and placement because of the strains it places on those responsible for day-to-day care. The Official Solicitor accepted the expert independent medical evidence that there was no need for further testing of X’s bowel or dietary tolerance and no need for restricting his diet. The Official Solicitor contended that it was in X’s best interests for diet and treatment to be determined by the responsible clinicians. The Official Solicitor’s view was that welfare deputyship should be discharged and no replacement deputy is required.

Decision
The court referred to the decision of Baker J in G v  E [2010] EWHC 2512 (COP) paras 57 and 61 and referred to the best interests test. The court had regard to article 8 of the ECHR and in the context of treatment referred to the observations of Baroness Hale in Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67 that “decision-makers must look at… welfare in the widest sense: not just medical, but social and psychological”.

The court applied section 16 of the Mental Capacity Act 2005 and the code of practice paragraphs 5.8, 8.31 and 8.38 referring to deputyship.

In terms of fact-finding the court adopted the summary of the law as set out by Baker J at paragraphs 82 – 90 of his judgment in the matter of MA Local Authority v M, E and A [2014] EWCOP 33.

The court accepted the schedule of findings sought by the local authority (see paragraph 100 to 111 of the judgment comprising of 11 separate findings sought against AY) and in particular found in relation to the provision of psychotropic medication; “I accept the conclusions of the independent experts in preference to the views expressed by AY. I note that they are consistent with the attempt made in January 2014 to reduce the dose of olanzapine, which failed because challenging behaviour returned. I am satisfied that those conclusions amount to good evidence that X has benefited from treatment with Olanzapine”.

In conclusion the court found it was not in X’s interests for AY alone to have authority to make decisions for X and found that it was in X’s best interests if the decisions in respect of X’s diet and treatment were taken in a collaborative process after due consultation in accordance with the general approach of the Mental Capacity Act 2005. In relation to deputyship the court declined to reinstate deputyship saying; “I understand AY will feel the revocation of her welfare deputyship as a blow. It is therefore appropriate to make clear that it should not – and I am confident that it will not – operate to exclude her from contributing to the process of welfare decision-making for her son. Rather, it restores her to the usual position for a parent of an incapacitated adult, as envisaged by those who framed the Mental Capacity Act. Accordingly wherever it is practicable and appropriate to consult, any person or body making a “best interests” decision for X must take into account her views, pursuant to section 4 (7) of the Act “. The court did not make a replacement deputy.

Discussion
This case raises interesting issues about the interplay between the Mental Health Act and the Mental Capacity Act, particularly concerning the provision of treatment. In the final analysis the weight of expert opinion outplayed the strongly held beliefs of X’s mother who had cared for him at home as a child and had remained with his parents at home until he was aged 22.

The judgment reminds all (and this includes local authorities) of the consultation process when making a best interests decision as set out in section 4 (7) of the MCA. It also reiterates that a lack of deputyship does not equal lack of consultation by decision-makers; rather it emphasises the requirements on decision-makers to consult.

Whether this case will lead in future to local authorities/hospitals taking a firmer view in relation to treatment provided for incapacitated adults where relatives object will no doubt remain to be seen. As can be seen from the judgment AY was faced with a plethora of expert evidence which challenged her views and beliefs and she acted in person throughout the hearing albeit with a McKenzie friend. There can be little doubt this would have been a very stressful two day hearing culminating in a decision which she had long fought so hard against.

It may be somewhat surprising that no issue was raised in this case as to DOLS although at the time of the hearing the placement identified and agreed upon by all parties was not specified - that is to say it was not specified as a care home or supported living. Given that it was a house in the community for up to 9 residents one might assume supported living and therefore outside the statutory DOLS scheme (this applies to hospitals and care homes  under section 39A MCA 2005) but would nevertheless fall to be considered and approved by the court.

Read the full text of the judgment on Bailii