Best interests analyses

Health iStock 000005083391XSmall 146x219Mr Justice Mostyn has confirmed that, when dealing with a patient whose treatment decisions will be handled under the MCA 2005, the wishes and feelings of that patient should be confined to the best interests analysis. Richard Jolly, Tony Yeaman and Beth Buchanan report.

The patient in Re CD [2015] EWCOP 74 was a 43 year-old-woman (CD) who had been diagnosed as schizophrenic at the age of 25. CD became the subject of a detention order under section 3 of the Mental Health Act 1983 ("MHA") in June 2014 and displayed a long history of violence, bizarre delusions and generally aggressive behaviour.

During the course of some treatment for a self-inflicted stab wound, doctors discovered two abnormal growths on CD’s ovaries. Despite not being regarded as cancerous, the growths continued to expand and doctors grew concerned that, without imminent surgery, they may interfere with her kidney function and, ultimately, curtail her life expectancy to around six or seven years.

Although she eventually consented to the surgery, having initially refused, doctors remained concerned as to CD’s capacity for making such a decision. At a capacity assessment in March 2015, her consulting physician noted that she continued to express delusional beliefs as to the cause of the growths, ranging from “a baby” to “a spiritual lump”.

Accordingly, the court was tasked with determining whether the surgery was in CD’s best interests, as per the criteria in section 4 of the Mental Capacity Act 2005 (“MCA”), regardless of her express consent.

Decision

Despite CD making it clear that she wanted the operation to proceed, she was unable to make such a decision in the eyes of the law, given her mental state, so the decision relating to treatment lay with the court. Mostyn J provided the necessary court order to ensure that CD received the surgery. His order was intrinsically coercive in that, in the event that she changed her mind about having the surgery or resisted, restraints could be used and the operation would still proceed. This meant that it was necessary for the court to authorise the deprivation of her liberty in accordance with Article 5 of the European Convention on Human Rights.

In reaching his decision, Mostyn J first took into account the issue of capacity. Following several psychiatric assessments, CD had been regarded as “clinically psychotic” and Mostyn J declared her “manifestly” lacking capacity, as defined by sections 1-3 of the MCA. In fact, the judge went so far as to make arrangements to witness CD at her hospital setting, to gain a better understanding of her wishes and feelings. Upon meeting her, he felt that CD was far more personable than had been conveyed in the court papers and it was clear to him that she wanted the operation to go ahead.

The court then went on to consider the concept of deprivation of liberty. Mostyn J, having previously criticised the Supreme Court’s decision in Cheshire West, continued to express his frustration at the “extremely confusing” test while also rejecting any suggestion that his approach to cases such as this would be “distorted” by his feelings towards Cheshire West. His confusion, he said, was compounded by the “highly ambiguous” wording of paragraph 3(2) of schedule 1A to the MCA, governing the “eligibility” of the subject to be deprived of their liberty. With direct application of the wording to this case, this would read:

"CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes."

This, when read literally, would mean that if the surgery was not deemed a “requirement” of the MHA detention regime, CD would be ineligible to be deprived of her liberty under the MCA. As a result, any orders on her treatment couldn’t be made under the power of the MHA and would instead have to come from the inherent jurisdiction of the High Court.

Mostyn J however, favouring an alternative reading, held that if the MHA regime had imposed a specific requirement to deal with the ovarian mass, then CD could not be deprived of her liberty under the MCA in order to deal with this problem under the MCA. But the MHA did not impose a specific requirement, so the MCA could still be used and indeed should be used, rather than transferring out of the Court of Protection to use the inherent jurisdiction of the High Court.

Comment

Mostyn J again expressed his disagreement with the Court of Appeal’s approach to and interpretation of aspects of the Cheshire West decision. His view is that if the MHA cannot be used to authorise the physical treatment required, which it cannot, then it means that the MCA can be used as required, and the matter can be dealt with in the Court of Protection, not the High Court. Clearly that is a practical and sensible approach, and all parties were happy to follow this .This case highlights the confusion generated by the interaction between the MCA and MHA, which can cause problems with many practitioners.

Weightmans acted on behalf of the applicant. The operation went ahead and we understand that it was a success. It is important to remember, and pleasing to note, that these complicated legal arguments ultimately lead to a positive and practical result for the patient who was the subject of these proceedings.

Richard Jolly, Tony Yeaman and Beth Buchanan are partners at Weightmans. Richard can be contacted on 0151 242 7954 or This email address is being protected from spambots. You need JavaScript enabled to view it..