A Local Health Board v AB [2015] EWCOP 31

This case was the final hearing of an application by A Local Health Board (‘LHB’) to perform two operations on the Patient (‘P’), the first being dental surgery to extract P’s back teeth and, after a short time to ensure there was no infection, then to perform a cardiac operation.  As the P was an in-patient detained under section 3 of the Mental Health Act 1983 (‘MHA’) there was an issue as to whether or not the court had jurisdiction under the Mental Capacity Act 2005 (‘MCA’) to deprive P of her liberty in order to undergo the operations or whether or not the court should be making declarations under its Inherent Jurisdiction. 

The Facts
P was a woman of 34 years and has a serious heart and life threatening condition; the only recommended treatment was surgery. P also has mental health problems; since her childhood years P has been diagnosed with mild/borderline learning disabilities. She also has a working diagnosis of autism and a schizophrenic illness.

The court gave the LHB permission to make the application. The matter was heard in public but the court imposed reporting restrictions. P was represented by the Official Solicitor (‘OS’). P’s Independent Mental Capacity Advocate was present but did not make oral representations.

Concerns
The court heard from two independent experts; the consultant cardiac anesthetist, and P’s responsible clinician. The concerns were:-

• There was no other treatment recommended other than surgery to repair the aneurism and the use of a tissue aortic valve replacement was the treatment of choice;
  
• The tissue valve may degenerate and could require further replacement in 8-15 years time but developing techniques may remove the need for further surgery;
  
• If a mechanical valve was used there was a risk of blockage if warfarin was not taken properly (a drug to thin the blood). There was a likelihood that if P did not take this medication and the valve was to jam P would die. If she were to have an accident and was not able to control the bleeding (because of the warfarin) that risk could be fatal;
  
• Although P had been diagnosed with an abnormal hearth rhythm with an abnormal connection between the two main heart chambers at childhood this was not the cause of her current problem;
  
• P was diagnosed with a swelling at the aortic root and without surgery there was a risk of rupture and almost instantaneous death. P was already beyond the hinge point and was lucky not to have had a rapture;
  
• There were mortality rates associated with surgery but these are far less than the risk of dying from a ruptured aneurism. 
  

Objections
P objected to the surgery for fear of not waking up and that she may die during surgery. P knew that as she had a heart condition from childhood and that nothing has happened as a result of that.  P did not agree that she had a heart problem that needs to be treated. However P did state that she did not want to die and would be ‘rescued’ under emergency surgery. P’s views were relayed through the medics and the OS. The OS on P’s behalf supported the declarations that P did not have capacity to conduct the proceedings or whether or not to undergo the operations.  

P’s parents took a neutral view and left the decision to the court.

The Law
The court considered the interaction between the MHA and the MCA. Section 4A and section 4B of the MCA allows the court to deprive a person of their liberty who lacks capacity as long as it is the best interests of that person, and where it is necessary to give life sustaining treatment (section 4B).

Section 16(2)(a) of the MCA allows the court to make decisions concerning a persons personal welfare. However where the person is subject to a regime under the MHA they are ineligible to be deprived of the liberty under a section 16 MCA order (see schedule 1A paragraph 2 of the MCA for an example of who is ineligible). 

The court considered whether P will be ineligible under MCA even if P was given leave under section 17, with or without conditions, of the MHA to attend hospital for surgery. The court also considered that there would be additional restraints under the principles in Cheshire West and Cheshire Council v P [2014] AC 896 meaning that P would be deprived of her liberty.  

The court could make declarations under the Inherent Jurisdiction to bridge the gap between the two legislative provisions (referring to A NHS Trust v A [2013] EWHC 2442 (Fam) starting at paragraph 89 (see paragraph 59 to 62 for the analysis)).

The court undertook a Best Interests Assessment as per paragraph 4 of the MCA although it was using its power under its Inherent Jurisdiction.

Decision
The court found that P did not have capacity to litigate, nor was she able to understand and weigh up the information regarding the benefits and the risks of the operations being proposed.

It was agreed at the beginning of the hearing that P’s status as a patient under section 3 of the MHA would exclude the Court of Protection powers due to the provisions in Schedule 1A of the MCA paragraph 2. As the illness was physical and not linked to P’s mental disorder this would prevent treatment under the MHA.

The court made the necessary declarations under its Inherent Jurisdiction.

Discussion
The court made it clear that section 4B governs life-sustaining treatment in an emergency only, not where the court has time to consider the matter fully for elective surgery (see paragraph 49) and it was appropriate to consider a section 16 order.

As section 16 (2)(a) could not come into play as P was detained under a regime pursuant to the MHA, and that the detention of P for surgery does not fall within the relevant provisions of the MHA, then it was left to the court to make declarations under its Inherent Jurisdiction.

As P’s treatment required detention for a physical purpose and not a mental purpose the provisions of the MHA do not apply and the court concluded that P also fell outside the scope of the MCA.

This case highlights the gap between the two differing legislative provisions of the MCA and the MHA but highlights the use of the court’s Inherent Jurisdiction.

The court did undertake a balancing act when assessing the positive and the negatives of whether or not P ought to have the surgery and assessing what was in P’s best interests.

Read the full text of the judgment on Bailii