EXPERIMENTAL TREATMENT - BEST INTERESTS AND MENTALLY INCAPACITATED PATIENTS.

ADENIPEKUN OLUWATEMILORUN ADEPEJU

EXPERIMENTAL TREATMENT - BEST INTERESTS AND MENTALLY INCAPACITATED PATIENTS.

B v D [2017] EWCOP 15

I. INTRODUCTION

The court in B v D has to decide as to the proper approach to determining whether a particular life-sustaining treatment is in the best interests of a mentally incapacitated patient. The Mental Capacity Act deals with the procedures for decision-making on behalf of mentally incapacitated adults. The Act is intended to encompass people who suffer from such a degree of mental illness or disability that they are incapable of taking decisions for themselves. Incapacity can arise in a wide variety of mental conditions such as mental handicap, mental infirmity, mental illness, brain damaged, physically ill or handicapped people. 

The legal decision for D was based upon an assessment of his mental capacity, best interests and the medical treatment. The central question is whether it would be best to provide the experimental treatment D, or to withdraw treatment and allow him continue living his life with his mental condition. On one hand experts feel that it is likely that D would experience pain and discomfort from continued treatment which would most likely not make a difference to his health. On the other hand, going for the experimental treatment might not be so terrible as there is chance of recovery which would greatly alleviate his suffering.  

Usually, patients are offered experimental procedures because there are no other alternatives for them, these involve those who are terminally ill and are at a risk of dying and have no alternative treatment available and they may accept because of the chance that they would benefit from it, even though it is more likely that the results will benefit others but at the same time, should those with no other hope be denied the smallest, remotest chance of benefit, or is it discriminatory and unethical to automatically exclude them from experimental procedures? 

I don’t agree that the court should stop people who are willing to subject themselves for experimental treatment especially if that seems to be their only hope. This is in a way based on the argument that we are all obliged to participate in research and that where there is some reasonable likelihood of a beneficial effect, it is appropriate for risky research to proceed. And especially where they have supportive family and personal funds. Someone has to be the experiment so why not allow these patients pave the way for experimential treatment. It will be understandable if this treatment has to be funded by NHS, then the courts out of their own discretion can decide to refuse to allocate funds to such treatment. Where the patient has the funds to go abroad for this treatment, has shown a great desire to be subjected to this treatment and also has a family who is ready to support him fully, then he should be allowed to take the risk.

II. The Factual Background and Decision in B v D

The issue in this case was whether it was in the best interests of D who lacks capacity as a result of a traumatic brain injury to receive Stem Cell Treatment. The court held that it was.

D was born in Eastern Europe in 1990 and moved to this country with his family at the age of ten. He became a British citizen in 2006 and shortly afterwards joined the Army. In June 2013, while serving abroad, D was assaulted in a bar by another member of the regiment and knocked unconscious. He was admitted and found to have sustained substantial injury in his brain. He was then transferred to a rehabilitation hospital and in 2014 moved to a military rehabilitation centre, where he remained for over two years, apart from a short unsuccessful move to another brain injury centre. Despite undergoing an extensive multi-disciplinary rehabilitation programme incorporating physical mobility therapy, cognitive/neuropsychological input and speech and language rehabilitation, he continued to suffer, however, from very significant disabilities, including extensive physical disabilities, and global cognitive impairments including reduced attention, concentration, information-processing capacity, memory, executive functioning, and receptive and expressive language. He has reduced intelligibility when tired and it is said that he is highly impulsive when emotionally aroused and his behaviour became increasingly difficult to manage at various times during his admission to X House.

Mrs B had extensively researched treatment options for D and identified stem cell therapy as a possible way forward. She initially approached a clinic in Germany but it transpired that the establishment was unable to provide appropriate stem cell therapy tailored to D’s particular traumatic brain injury. After further research, Mrs B identified a clinic in Moscow, as a safe and appropriate clinic. The medical staff at X House, however, opposed this proposal on the basis that the use of stem cell therapy for patients such as D was not yet established in this country and that there was insufficient evidence to suggest that the benefits outweighed the risks. In response, Mrs B filed an application in the Court of Protection for declarations and orders pursuant to ss 15 and 16 of the Mental Capacity Act 2005 to determine D’s capacity and, in the event that he lacked capacity, to make best interests declarations, in particular regarding his medical treatment, and further for an order appointing Mrs B as his health and welfare deputy. The application included an assessment by his treating neuropsychologist to the effect that, as a result of the impairment to his brain, D lacked the capacity to make decisions concerning his medical treatment. In particular, he lacked the capacity to understand, use and weigh the relevant information. The neuropsychologist expressed the opinion that, due to his cognitive difficulties, D was not able to understand more complex information. He was able to say that the stem cells will make him “normal” but was not able to follow the description or the rationale of how they work. Furthermore, as a result of his difficulties, he was unable to use or weigh up the options as part of the decision- making process. His rigid thinking patterns made it impossible for him to think flexibly about the pros and cons of the treatment. The neuropsychologist added that D was assessed as being vulnerable to being suggestible to others. He said that his mother thinks the treatment will make him “normal” and therefore he will do it.

When objection was taken to the proposed treatment in Moscow, Mrs B identified an alternative Swiss Medica clinic in Belgrade. It is that proposal which is now before the court.

Baker J thus had to consider whether it was in the best interests of D, to travel to Serbia to receive the stem cell treatment. The major arguments the other party made were that the treatment was unsupported by any, or at least any significant, body of research, that it had not been subjected to clinical trials and that the evidence that it was, or might be, an effective treatment for traumatic brain injury was almost entirely anecdotal. As D had resources to pay for the treatment from a compensation payment, this was not a case of if there was lack of public funding. Instead the question for the court was whether it was in D’s best interests to get this treatment. It was clear that D did not have the capacity to make the decision. His mother served with her application evidence from D’s treating neuropsychologist to the effect that, as a result of the impairment to his brain, D lacked the capacity to make decisions concerning his medical treatment:

Baker J knew that D very much wanted this treatment. He was able to deduce this from his conversation with him. He knew that D will be much more than miserable if he is denied the opportunity to have stem cell treatment and so having appraised the risks and considered the advantages and disadvantages of the options in this case, Baker J ultimately reached the clear conclusion that this court should give its provisional consent to D travelling to Belgrade to receive stem cell treatment subject to a stringent series of conditions that would have to be met before he could give final approval.

III. Discussion

A. Mental Capacity

The Universal Declaration on Bioethics and Human Rights, adopted by the UNESCO General Conference in 2005, laid out in Art 7 the conditions for providing treatment to a person who lacks the capacity to consent. It states:

'[A]uthorisation for research and medical practice should be obtained in accordance with the best interest of the person concerned and in accordance with domestic law…'

The proviso thus is that if the authorisation obtained is not in accordance with the best interests of the patient concerned, then it will not be regarded as valid consent.

Similarly, in the Council of Europe Convention on Human Rights and Biomedicine, known as the Oviedo Convention. Article 6(1) of this instrument states that 'an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit'.

Persons suffering from brain damage may have suffered an injury resulting in mental incapacity which renders any ability to make decisions. During the recovery process, cognitive, emotional and behavioural problems can make it impossible for brain injury survivors to understand the consequences of their decisions and so health personnels and the Court might try to step in and make decisions on behalf of the patient where there has not been any long-term arrangements put in place to enable decisions to be made in the patient’s best interests. The MCA provides that 

‘the Court may make declarations as to whether a person has or lacks capacity, either in relation to a specified decision or in relation to specified matters, and as to the lawfulness of any act done or yet to be done in relation to that person.’ 

The Court can only do for a person what he could lawfully do himself if he had mental capacity. In effect the Court stands in the mentally incapacitated person’s shoes.  

How do we then determine when a person lacks mental capacity? The MCA states that; a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

This case sheds no new insights on the concept of incapacity, but it is important in relation to the determination of best interests. For the purposes of the Mental Capacity Act 2005, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary. A lack of capacity cannot be established merely by reference to a person's age or appearance, or to a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

As D lacked capacity, the doctors had a power and a duty to give whatever treatment was necessary in their best interests. Assessing best interests involves two stages. The first stage is to consider what treatments would be supported by a responsible body of medical opinion as required by the Bolam test. For example, doctors in an intensive care unit might hold a multi-disciplinary meeting to discuss a patient’s treatment, and whether it is worth continuing. If they all agree that treatment isn’t helping, they may then seek to withdraw life support. Unfortunately, in medicine, and perhaps even more so in ethics, there are situations where agreement is not possible, and reasonable people may reach different conclusions. 

The second stage was to choose from that range of treatments which was best for the mentally incapacitated patients. The doctor or court would remain free to choose any of a range of Bolam-supported options, but would then have to weigh the actual and potential benefits and the risks of adverse consequences. The doctor or court must take into account social as well as purely medical interests in determining which course would be best. The decision-maker should then be prepared to give reasons why the course chosen is thought to be the best.The problem was that the treatment was untried and there was so far no validation of the experimental work done abroad.

Given that the treatment was experimental, it was always going to be difficult to find staunch support for it as being in the best interests of the patients. Dame Elizabeth Butler Sloss paved the way to such a solution by emphasising the point from Re A (medical treatment) (male sterilisation) that social interests as well as medical interests need to be considered under the rubric of best interests. Medical issues were not the only matters to which the court should have regard in considering the outcome of these cases. Dame Elizabeth Butler Sloss P was concerned to ensure that the Bolam test ought not to be allowed to inhibit medical progress. She held that:

'On the medical evidence, and consistent with the philosophy that underpinned the test, it would not in itself have been irresponsible or unethical to give the treatment to the patients, although the requirement for surgery raised issues as to the assessment of the risks involved.'

Although the risks are easily identified, potential benefits are very difficult to assess, given the experimental nature of the treatment, and indeed, there might even be none. Some of the benefits a patient might get are that; allowing the patient go along with his desired treatment will accord with the patients’s wishes and feelings and, knowing that what he sees as a potential treatment avenue has at least been tried. Therefore, the treatment will not be futile as the slightest chance of benefit to D from the experimental treatment will justify its use. Accordingly, the proposed treatment complied with the Bolam test. It thus remains to consider whether the treatment was in the patient's best interests. The issue is simplified by the fact that this is the only treatment available to D, there is no other alternative.

Baker J’s judgment validates a number of well-established recommendations concerning the MCA 2005 and, in particular, medical treatment decisions; that the MCA 2005 is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under the Act, therefore, the court has no higher powers than the patient would have had if he were of full capacity. Patients cannot demand that doctors administer treatment which the doctor considers is not appropriate; as any treatment which the doctors do decide to give must be lawful. The question for the Court of Protection is not whether it is lawful to withhold treatment, but whether it is lawful to give it, since without consent medical treatment of any sort cannot be administered and P’s own wishes are of central importance in best interests decision making, although the MCA 2005 does not impose a test of substituted judgment. There is a need to see the patient as an individual, with his own values, likes and dislikes, and to consider his best interests in a holistic way.

Generally, for treatment to be provided lawfully to a competent adult patient, he must consent, that is, agree to and acquiesce in the treatment being proposed. This requires an intention on the part of the patient to consent. However, intention may be inferred from words or conduct which the reason observer would construe as manifesting intentional consent. D due to being incapacitated by his brain damage obviously cannot explicitly state what treatment he wants, but it has been proved he has a significantly limited understanding of what the Stem Cell treatment entails and of the possible risks, and  it is obvious from the tests Baker J carried out that D wants the treatment very much.

B. Best Interests

Was the decision in D’s Best Interests? The focus of the judgment deals with how to determine what is in a patient’s best interests. The first thing to note is the strong presumption that it is in a person’s best interests to stay alive. His wishes and feelings are an important factor in any analysis of what constitutes best interests. The court understands that D will be much more than miserable if he is denied the opportunity. It was noted that D will likely demonstrate an adverse reaction in his behaviour which may ultimately impede his rehabilitation. It was clear that although D did not have the mental capacity to make the decision as regards the best treatment for himself, but he had his mother ready and willing to seek out the best treatment for him. 

What is entailed in assessing Best Interests? The MCA gave limited guidance as to what constitutes best interests. S.4 though stipulates the process that must be considered when determining P’s best interests. It might best be considered as a process of construing a decision on behalf of the person who cannot make that decision themselves. The court is the decision maker and thus has to make the decision by considering all relevant circumstances and taking out the steps set put in section 4(3) to (7). There are no limits played on the nature or type of circumstances which may be relevant to the decision. It all depends on the facts of the case. As observed from Hayden J in M v Mrs N & Ors, in order to take a decision properly which considers all relevant circumstances, the decision maker must undertake a proper inquiry into both P’s circumstances and the type of decision that the decision maker is being called upon to make. The Mental Capacity Act though does not of course say that P’s wishes are to be paramount, nor does it lay any express presumption in favour of implementing them if they can be ascertained. The main objective is that of D’s best interests and thus due regard should be given to it. 

As the Supreme Court emphasised in Aintree University NHS Hospitals Trust v James 

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”. 

Clearly, the exact nature of the medical treatment in question, along with its prospects of a successful outcome, would have to be analysed appropriately when weighing up best interests. Consultation of friends, family and those looking after him will also be highly relevant in this assessment.Therefore the Court is expected to arrive at the right decision for P as an individual human being and not the decision that best fits with the outcome that the professionals desire. This is exactly what Baker J sought to do. 

The Mental Capacity Act Code of Practice para 5.31 provides for a limited number of cases where it may be in the best interests of a Patient, in certain circumstances, for life-sustaining treatment to be withheld ‘where treatment is futile, overly burdensome to the Patient and where there is no prospect of recovery.’ Baker J thus considered opinions from experts who were opposed to the treatment. Some of the reasons the experts gave were that the efficacy of this treatment has not been established through any clinical trials and that D will be exposed to both known and unknown risks associated with the procedure and that travelling to undergo the treatment risks disrupting his rehabilitation programme. 

Despite the resolute and unanimous medical view, the judge decided against the trust and refused to grant the declaration sought to allow the withholding of treatment. Although Baker J accepted all of the medical opinions and concluded that the Patients condition was almost bleak, he was not persuaded that the treatment to the Patient would be futile or that there was no prospect of recovery and so he ultimately decided to go with the wishes, feelings, beliefs and values of D and his understanding of the prospects of success and risks of the treatment. He concluded: 

‘But all life is an experiment. In my thinking about this case, I have repeatedly come back to those words of Munby J in [Re MM; Local Authority X v MM (By the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443 at [120]] and to the rest of the passage, in particular: “Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person's happiness. What good is it making someone safer if it merely makes them miserable?’

The treatment is experimental with unknown risks and benefits and so it begs the question; should it be allowed to be given to an incapacitated patient? Could it be said to be in their best interests? Should such desperate remedies only be given where a patient with capacity consented to them?

This question of uncertainty was raised by Lady Hale in Aintree University Hospitals NHS Foundation Trust v. James (by his litigation friend, the Official Solicitor) and others. This case centred on whether withholding specified life-sustaining interventions was in the best interests of Mr James, a 68-year-old man receiving intensive care. The Court of Protection had determined that whilst the proposed treatment offered no prospect of a cure, it did bring with it the opportunity to resume 'a quality of life that [Mr. James] would regard as worthwhile'. The benefits of the proposed treatment outweighed the potential unpleasant consequences associated with it. The treatment would therefore not be futile, and it would be in Mr James' best interests for doctors to proceed with it, should the need arise.

D has no alternative treatment, although his disease was neither progressive nor fatal, and the risks and benefits of this proposed treatment is uncertain, still it is reasonable to expect the parties in this instance to consider such treatment in case there is some chance of a benefit to D. 

It would be best to take an expansive approach in order to interpret best interests in the wildest possible way. Baker J adopted the balance sheet approach to best interests from Re A (medical treatment) (male sterilisation). This took into account not only of the medical and non-medical benefits and disadvantages, but also of the broader welfare issues of the two patients. Perusing through the balancd sheet would also consider their abilities, their future with or without treatment, the views of the families, and the impact of refusal of the applications. All of these matters had to be weighed up and balanced in order for the court to come to a decision in the exercise of its discretion.

Since the treatment was untried, it was not known what the likely benefits would be, and, following the Re A approach, the court had to weigh up the possible benefits against the possible risks. On the benefit side, his Lordship (at [54]), recognising that the patient had a consitient and strongly-held wishes and feelings was careful not to falsely inflate his hopes and then have to dash them completely. There was a slight but not non-existent chance of improvement, which actually ought to regarded as unlikely but not impossible, since no-one knows the outcome. The medical evidence showed that there was a potiential for improvement, although the evidence for this is only the anecdotal evidence of Dr. Bulboh unsupported by any research or by the opinion of Prof Martino. Regardless of the outcome of the treatment Baker J noted that there may be a psychological benefit to D arising from (1) his having his wishes respected and (2) knowing that what he sees as a potential treatment avenue has at least been tried.

By allowing D to go abroad for the experimential treatment, this will be in support of upholding his right. Each patient is entitled under the European Convention on Human Right to the right to life. The convention also gives each patient the right to respect for his family life, thus by allowing D to go for further treatment, it give him a worthwhile life worth leaving for. Lord Donaldson in Re J (a minor) (wardship: medical treatment) made a statement that ‘there is a very strong presumption in favour of a course of action which will prolong life’. In addition, D explicitly was able to convince Baker J of his vested interest in the  positive outcome the experimental treatment would have in his life, a view supported by Hoffmann LJ in Airedale NHS Trust v Bland when he said: ‘It is demeaning to the human spirit to say that, being unconscious, he can have no interest in his personal privacy and dignity, in how he lives or dies.' 

This combination of Art 2, Art 8, the common law recognition of the sanctity of life, and the recognition of an interest in dying with dignity was used to support the case for treatment and also the need to afford recognition and strong weight to the views of Mrs. B (the patient’s mother). Mrs B acknowledges that the treatment will not miraculously cure her son, but strongly believes that D’s health will improve after the treatment and it doesnt matter how minute the improvemnt is as long as there is one. It was clear that the view of the family was afforded great weight as they are deeply and sincerely committed to this treatment and if the treatment was refused, they would be greatly distressed. Of course this would not affect their commitment to helping D live with his illness. Baker J noted in his balance sheet that one of the advantages to him refusing D’s treatment is that ‘the progress he has made through rehabilitation will not be put at risk.’

In cases like this where the proposed remedies for mentally incacipated patients seem desperate and far-fetched, the court may have to weigh the possible benefits to be derived from undergoing the treatment against the more quantifiable risks. Where the results is equally balanced, the court should give the views of the patients (and the family) and the effect of a refusal great weight in the wider considerations of the best interests test which the court has to apply to each patient. 

The purpose of the best interest test is to be subjective and consider matters from the patients point of view. It is not for others ( the health personnels here) to say that a life which a patient (D) would regard as worthily is not worth living. Lady Hale in Aintree v James also gave a compelling argument on the approach a court should take when considering best interests and best treatment. She stated that the starting point was the strong presumption that it was in a person’s best interests to stay alive. She ruled that the fundamental question is whether it is in the Patient’s best interests and therefore lawful to give the treatment, not whether it is lawful to withhold it.

C. Medical Treatment

Judicial decisions on providing experimental procedures in England and Wales are limited, but in Simms v Simms, we see something similar decided here by the court. The patients suffered from probable variant Creutzfeldt-Jakob disease, and, at that time, there were no recognized effective drugs to halt neurological deterioration or prolong life. Because of their illnesses, the patients were unable to consent to the treatment, and so their parents sought a declaration that it would be lawful to provide it to them in their best interests. Dame Elizabeth Butler-Sloss P. stated that the patients lacked the capacity to decide for themselves and that “[w]here there is no alternative treatment available and the disease is progressive and fatal, it seems … to be reasonable to consider experimental treatment with unknown benefits and risks, but without significant risks of increased suffering to the patient, in cases where there is some chance of benefit to the patient.”

Furthermore, “[a] patient who is not able to consent to pioneering treatment ought not to be deprived of the chance in circumstances where he would have been likely to consent if he had been competent.” 

Participation in experimential treatment was thus appears open to all, but Dame Butler-Sloss was unclear whether providing these kinds of treatment to those without capacity would fall within the Bolam test. Nevertheless, she noted that it could not be allowed to inhibit medical progress, and if one waited for the Bolam test to be complied with to its fullest extent, no innovative work … would ever be attempted. Thus, although there was not a professional body of opinion endorsing these treatments, there was evidence from responsible medical opinion which does not reject the research, so it would not in itself be irresponsible or unethical to give the treatment to these patients. 

The decision in Simms v Simms is important because it involves what Dame Butler-Sloss variously termed “experimental,” “pioneering,” and “innovative” “treatment” that had not previously been used on humans, and the intended recipients were in a terminal, no-other-hope situation. The precedent value of this case is unclear because the extreme nature of the circumstances alone means that similar facts are likely to arise only rarely, nevertheless, it indicates that a court can approve the use of an experimental procedure for those with no other hope outside a clinical trial.

Best Interests and Mental Capacity in relation to Medical Treatment now fall under the Mental Capacity Act, 2005. Where there is a dispute as to the treatment to be provided, then such decisions should be referred to the Court of Protection for a declaration. 

For consent to Medical Treatment to be a valid defence to a claim for battery before a court, it has to be shown that the patient’s consent was real in that he could understand in a general sense what he was consenting to be involved in. The degree of capacity required to consent in Medical Treatment is either the patient must have the capacity to understand the nature and effect of the treatment proposed or the capacity to understand the explanation given by the doctor. Therefore, the more serious the decision, the greater the capacity required. The Mental Capacity Act 2005 now requires that where it is proposed to provide or secure the provision of serious medical treatment for a person lacking the capacity to consent to the treatment an independent mental capacity advocate must be instructed to represent that person.

Where there is no alternative treatment available and the disease is progressive and fatal, it is reasonable to consider experimental treatment with unknown benefits and risks, but without significant risks of increased suffering to the patient, in cases where there was some chance of benefit to the patient. A patient who is not able to consent to pioneering treatment ought not to be deprived of the chance in circumstances where he would have been likely to consent if he had been competent. The professional standard test ought not to be allowed to inhibit medical progress.

The good news as Butler-Sloss P. Put it in Simms v Simms, is that “It is the judge not the doctor who makes the decision that it is in the best interests of the patient that the operation be performed or the treatment be given.” 

III. Conclusion

This case deals with how the best interests of a patient who lacks capacity should be assessed, within the framework of the Mental Capacity Act 2005. When it came to conducting the best interests test in light of these considerations, the court came to the clear conclusion that withdrawing the stem cell treatment would not be in D’s best interests.  His conclusions in this regard makes it clear the extent to which the judge sought to recognise D as an “individual human being”. The Court in effect decided that a treatment will not be futile as long as it will benefit the patient, even if it has no effect upon the underlying disease or disability. Recovery does not necessarily mean a return to full health, it simply means the resumption of a quality of life that the patient himself would regard as worthwhile; “it is not for others to say that a life which the patient would regard as worthwhile is not worth living” 

The most significant element of this judgment is the weight placed on of the role of the patient’s (or their family’s) wishes in determining what constitutes a worthwhile recovery, and what is in their best interests. A patient’s best interests involves not only medical interests, but also the patient’s physical and mental welfare in the long run.

IS COMPULSORY DETENTION AND TREATMENT OF MENTAL HEALTH PATIENTS ALWAYS A BREACH OF HUMAN RIGHTS?

ADENIPEKUN OLUWATEMILORUN A.

“IS COMPULSORY DETENTION AND TREATMENT OF MENTAL HEALTH PATIENTS ALWAYS A BREACH OF HUMAN RIGHTS?”. 

I. ABSTRACT

We all have Human rights. These are the basic rights and freedoms that belong to everyone and which are based on shared values like dignity, fairness, justice, and equality.  The law sets out a minimum standard for how we should all be treated by international and national, including the NHS. These rights are not just abstract principles. The advent of the Human Rights Act 1998 has brought this to the forefront and demonstrated that there is a danger of compromising the fundamental human rights of mentally vulnerable individuals. Human rights apply to everyone, and  cannot be taken away except in specific, pre-determined situations and according to law. Within this essay, I explore a number of situations in which key human rights need to be restricted, usually to protect an individual with mental health issues or to protect others who may be affected by that individual’s actions or behaviour. When thinking about restricting rights, any such action should be proportionate. This means that mental health care practitioners must be able to show that they have taken the individual’s rights into account, and that any restriction is kept to the minimum possible and is never excessive. In a hospital setting, any restrictive policies should not adopt a blanket approach that affects all patients, but should be assessed and applied on an individual and proportionate basis.

II. INTRODUCTION

The Human Rights Law is important in the context of mental health because of two fundamental ideas unique to the protection of rights and freedoms. First, human rights law is the only source of law that legitimises international scrutiny of mental health policies and practices within a sovereign country. Individuals have always had inherent rights and freedom, however, recognising this rights is a recent phenomenon and it is just in recent times that states are being held accountable for violations. Thus human rights are a matter of international law enforceable against the state. This renders each country's mental health policies and practices susceptible to international monitoring.

Secondly, human rights law provides fundamental protections that cannot be taken away by the ordinary political process. Persons possess rights simply because of their being human. Thus, persons with mental disabilities need not prove that they deserve certain rights or can be trusted to exercise them in socially and culturally acceptable ways. Human rights law provides fundamental protections without qualification or exception. This aspect of human rights is particularly important because persons with mental disabilities have had to confront stereotypic assumptions about their humanity. 

The Mental Health Act 1983 as amended contains few restrictions on the compulsory psychiatric treatment of detained patients. This area of mental health has always posed a difficult area for doctors and human rights, because when is it justifiable to treat patients against their will? Respect for autonomy is a central principle in contemporary healthcare ethics, under normal circumstances no treatment can be performed without the patient's consent; however how does this work if the patient has been determined mentally  incapable of making rational decisions and therefore unable or unwilling to give consent. The question then is should the doctor's still proceed as it is in the best welfare of the patient or withhold treatment because the patient is unable or unwilling to give consent? 

For mental health patients, who are more vulnerable and, therefore, more at risk if their human rights are breached, the Human Rights Act (‘HRA’) is a vital protection. When things go wrong the HRA ensures that there is accountability. It allows individuals to take court action when their human rights have been violated, and it gives them a way of seeking justice. The Human Rights Act came into operation in October 2000, incorporating into English law the European Convention of Human Rights, which was originally formed to ensure no repetition of the atrocities of the second world war. The government intends to guarantee basic human rights in a broad range of circumstances, and this is relevant to how psychiatric patients are being managed by public authorities. This is to ensure no one acts in a manner incompatible with the convention.

     

The Mental Health Act 1983 allows for doctors to treat mental health patients without consent, except in specific circumstances. The issue with this is that it raises the presumption that there are no human right law and so doctors can treat mental health patients as they wish except in extreme treatments, but this provision is actually in line with what is provided in Art. 5 of the European Convention on Human Rights (ECHR). There, the ECHR explicitly allows the detaining of patients when necessary for the purposes of treatment as long as this is done in a lawful manner. We see something similar in F v West Berkshire Health Authority  where it was held that even if a person lacks capacity to give consent to a particular treatment, it would be lawful if the doctor considered it to be in the best interests of the patient. 

This article has been divided into three parts. The first part examines how international human rights law can become a potent tool for advancing the welfare and dignity of persons with mental disabilities. The second part discusses involuntary detention under the ECHR and the provisions taken to ensure that no one is arbitrarily dispossessed of his liberty. Relevant aspects of the ECHR will be described, focusing on its application in the UK Courts. The third part addresses the question of whether involuntary treatment of persons with mental illness is compatible with the provisions of the Human Rights Law and by extension the ECHR and if so in what circumstances. 

III. THE LEGAL STANDARDS - HOW HUMAN RIGHTS ARE PROTECTED BY THE LAW

  

There seems to be a reluctance in the courts to acknowledge that compulsory treatment actually raises human rights concerns. The most relevant are the right to liberty, in particular in relation to the detention of mentally disordered people, and the prohibition of torture and other forms of ill treatment along with the protection of the right to privacy in relation to involuntary treatment.

In England, human rights are protected by the European Convention on Human Rights (the ‘ECHR’), the UK Human Rights Act 1998, The UN  Convention on the Rights of Persons with Disabilities, The Mental Health Act, The Mental Health Review Tribunal and The standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The law applies to everyone equally and provides an important means of protection for the most vulnerable people in our communities, as well as a means of defining our individual and collective responsibility to uphold them.

1. The European Convention on Human Rights 

The ECHR is made up of a series of articles, with each article being a short statement that defines a right or freedom, together with any permitted exceptions. These rights apply to everyone in the UK. The Convention plays an ever increasing role in determining the standards of treatment of those detained by the state and hence is of particular importance for those in hospitals or similar institutions. The European Convention on Human Rights is a ‘living instrument’ such that judgments emanating from the European Court of Human Rights will continually build upon previous jurisprudence and evolve over time. As Article 3 case law has evolved, its interpretation has broadened to now include a thorough scrutiny of hospital and prison conditions and healthcare provision where people are kept in detention.

2. The UK Human Rights Act 1998

This Act brings most of the fundamental rights and freedoms contained in the European Convention on Human Rights into UK law. The rights included here affect the rights that everyone has in their day-to-day life including, for example, the right to family life, a fair trial, and what you can say or do. Most rights have limits to ensure that they do not unfairly infringe upon other people’s rights. Others, such as the right not to be tortured, can never be limited by a court or anyone else. Cases based on the UK Human Rights Act 1998 can be argued in a UK court or tribunal and, in addition, all other legislation should be interpreted and applied in a way that is consistent with it.

3. The UN Convention on the Rights of Persons with Disabilities (CRPD)

People with a mental illness may be subject to the CRPD. Particularly challenging under the CRPD is the scope, if any, for involuntary treatment. Conventional mental health legislation, such as the Mental Health Act appears to violate, for example, Article 4 (‘no discrimination of any kind on the basis of disability’), Article 12 (persons shall ‘enjoy legal capacity on an equal basis with others in all aspects of life’) and Article 14 (‘the existence of a disability shall in no case justify a deprivation of liberty’). It is to be noted that a new form of mental health law, such as the Fusion Law proposal, is consistent with the principles of the CRPD. Such law is aimed at eliminating discrimination against persons with a mental illness. It covers all persons regardless of whether they have a ‘mental’ or a ‘physical’ illness, and only allows involuntary treatment when a person's decision-making capability is impaired and where supported decision making has failed. In addition, involuntary treatment would require an assessment that such treatment gives the person's values and perspective paramount importance. While, arguably, most of the rights in the CRPD are already protected by other UN treaties, the CRPD frames rights in a way that is specific for people with disabilities, a group of persons rarely referred to in those other treaties.

4. The Mental Health Act

The Mental Health Act (1983) is the main piece of legislation that covers the assessment, treatment and rights of people with a mental health disorder. People detained under the Mental Health Act need urgent treatment for a mental health disorder and are at risk of harm to themselves or others.

5. The Mental Health Review Tribunal

The Mental Health Tribunal, is an independent quasi-judicial body established to safeguard the rights of persons subject to the Mental Health Act 1983. It provides for consideration of appeals against the medical detention or forced treatment of a person who was deemed to be suffering from a mental disorder that was associated with a risk to the health or safety of that person or others. The MHRT is an independent tribunal, described as a safeguard for the liberty of the individual and to insure against unjustified detention in hospital. 

Assignment of duties under this various laws are carried out only by public authorities and bodies exercising public functions have legal duties under this law. These include: the NHS organisations and staff, the police, local authorities and their employees, NHS and private nursing and care homes, funded by public funds, prison staff and courts and tribunals including Mental Health Tribunals.

IV. DEPRIVATION OF LIBERTY: INVOLUNTARY DETENTION UNDER THE ECHR

The Mental Health Act allows detention on the basis of a mental disorder “of the nature or degree” that warrants compulsory admission to hospital. The case of R v Smith clarified that it was necessary only to show that the nature of the disorder was appropriate to allow continued detention, thus allowing for patients who relapse rapidly in the community to remain detained until they are more adequately treated. Part II of the 1983 Act provides three distinct routes – for assessment (s.2, for up to 28 days); for treatment (s.3, for up to 6 months, renewable); and, in a matter ‘of urgent necessity’, an emergency admission (s.4, for up to 72 hours). In order to satisfy the admission criteria, the person concerned must be suffering from a ‘mental disorder’ of a ‘nature or degree’, which ‘warrants’ or makes it ‘appropriate’ for him or her to be detained as an in-patient. In addition, this detention must be ‘necessary for the health and safety of the patient or for the protection of others’. 

The admission criteria under the 1983 Act do not imply mental incapacity. Indeed, many people with mental disorder are still capable of making rational judgments and decisions. Compulsory admission under the Act is based on the presence of a mental disorder coupled with either the risk to the patient’s own health or safety, or the safety of other persons. This will be determined by the medical professionals involved in the admissions process. Once the patient is compulsorily detained in hospital, she is entitled to challenge the grounds for her continued detention and may apply to a Mental Health Review Tribunal (MHRT) to review her case. It is obliged to discharge the patient immediately if the criteria for admission are no longer met. There are MHRTs in each of the health service regions in England and Wales and each three-person MHRT panel comprises a legal, medical and lay member. All compulsorily detained patients are entitled to apply to the Tribunal to review their legal status and the 1983 Act introduced a procedure for automatic periodic reviews, even when the patient herself does not apply. 

The ECHR, other treaties, and the laws in England contain rights which are very specific to mental health settings, as well as overarching rights which should be enjoyed by everyone. It is good to note that The UK is a signatory to the ECHR, and this is independent of the European Union. Thus, rights under the ECHR will not be affected by the UK leaving the European Union. 

ARTICLE 5

Under Article 5, everyone has the right to liberty; however, there are certain circumstances where it would be appropriate for this right to be limited. Being detained in a mental health ward is an example of this. However, detention cannot be arbitrary and should always be justified in law and the proper procedures followed, such as authorisation by a Mental Health Tribunal. Detention under mental health law does not in itself breach the right to liberty unless it is unlawful.

Article 5 1(e) of the Convention refers to several categories of individuals, namely persons spreading infectious diseases, persons of unsound mind, alcoholics, drug addicts and vagrants. The link between all those persons is that they may be deprived of their liberty either in order to be given medical treatment or because of considerations dictated by social policy, or on both medical and social grounds. The reason why the Convention allows these individuals, all of whom are socially unstable, to be deprived of their liberty is not only that they may be a danger to public safety but also that their own interests may necessitate their detention. 

In order for a detention to be ‘lawful’ under Article 5 of the Convention, it must first comply with the requirements of domestic law. Under the MHA 1983, people can be detained under a section of the Mental Health Act to allow medical staff to examine, assess and treat them. Medical professionals must usually consult with a range of professionals and a person’s nearest relative before sectioning a person, but that relative cannot always prevent their loved one being sectioned although they can challenge it at a Mental Health Tribunal. The Mental Health Act sets out when it is legal to detain and treat someone, who is authorised to do it, and what procedures should be followed.

Where there is a deprivation of liberty, it is particularly important that the principle of legal certainty be satisfied. It was therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law be foreseeable in its application. This would entail law of sufficient detail and precision to enable a person such as the applicant to understand and foresee the legal consequences of non-compliance. The Court made clear that any such detention must be in compliance with both the principle of proportionality and the requirement that there be an ‘absence of arbitrariness’ such that other less severe measures have been considered and found to be insufficient to safeguard the individual and the public. This would entail that the deprivation of liberty was necessary in all the circumstances. 

Although Article 5 (1) (e) of the ECHR in principle allows for the detention of persons of “unsound mind”, cases such as Winterwerp v. Netherlands and Witold v. Poland made clear that for detention to comply with principles of proportionality and freedom from arbitrariness, it must be established that the detained person concerned constitutes a serious threat because of his or her violent behaviour, or the detention is required for therapeutic reasons. In order to properly gauge the situation, ECHR case law requires a qualified medical assessment based on the person’s actual state of mental health and not solely on past events. Further clarification regarding the thresholds which must be met for the deprivation of liberty to comply with Article 5 (1) (e) is set out in the Winterwerp case, where the court noted that: 

“The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.”

There must also be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In other words, the institution of detention must be appropriate to the nature of the treatment. The Court found that where these conditions are satisfied, deprivation of liberty is justified, both on grounds of public policy and in order to provide medical treatment. Thus, Article 5 has as its objective not only the protection of the public but also protection of the interests of the subject of the detention.

The court went further than previous judgments to set out additional safeguards against the deprivation of liberty. While recognising that in some cases the welfare of a person should be taken into account, the court insisted that: “the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty.” It also stated that: “any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny.”

The detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons. A mental condition must be of a certain gravity in order to be considered as a “true” mental disorder. In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case. 

The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub-paragraph (1) (e) of Article 5 , is the date of the adoption of the measure depriving that person of his liberty as a result of that condition. When the medical evidence points to recovery, the authorities may need some time to consider whether to terminate an applicant’s confinement. However, the continuation of deprivation of liberty for purely administrative reasons is not justified. The detention of persons of unsound mind must be effected in a hospital, clinic, or other appropriate institution authorised for the detention of such persons. By contrast, a person can be placed temporarily in an establishment not specifically designed for the detention of mental health patients before being transferred to the appropriate institution, provided that the waiting period is not excessively long.

V. INVOLUNTARY TREATMENT

The requirement to consent to medical treatment was integrated into Article 3, on the right to integrity of the person, of the Charter of Fundamental Rights of the European  Union. The current law relating to treatment of detained patients is governed by Part 4 of the Mental Health Act 1983. The general rule is contained in section 63:

“The consent of a patient shall not be required for any medical treatment given to him for mental disorder from which he is suffering, not being a form of treatment to which section 57, 58, or 58a applies, if the treatment is given under the direction of the approved clinician in charge of the treatment.”

The only statutory restriction on compulsory treatment commences three [3] months after medication is first given to the patient in his or her period of detention. From that time, treatment may occur if either the patient has capacity and consents to the treatment, or if a SOAD certifies that the patient either lacks capacity or is not consenting to treatment and that ‘it is appropriate for the treatment to be given’. This is a new standard, introduced by the Mental Health Act 2007. Section 58 does provide some statutory language for the SOAD in determining whether treatment should be compelled, but both sections 58 and 63 are silent on the standard for compulsion to be applied by the responsible clinician. 

As noted earlier, human rights for persons with mental disability focus primarily on liberty and security; for example, ensuring adequate standards and procedures for involuntary admission to hospital and the opportunity for meaningful periodic review by a court or tribunal. The Court held in Hutchison Reid v. United Kingdom that confinement under Article 5(1)(e) may be necessary not only where a person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons. In this case there was unanimous medical evidence that the applicant was suffering from a mental disorder of a psychopathic type manifesting itself in abnormally aggressive behaviour. This was objective evidence of true mental disorder. In light of the Sheriff's finding that there was a high risk of his committing further sexual offences if released, the mental disorder was of a kind or degree warranting compulsion, and the decision not to release could be regarded as justified under Article 5(1)(e). Therefore, the court concluded that the decision not to release the applicant in 1994 was not arbitrary, and the prime purpose of Article 5(1) was to protect against arbitrary detention.

The new test for deciding under ss 57, 58 and 58A whether treatment may lawfully be given is ‘that it is appropriate for the treatment to be given.’ The test employed under the MHA 1983 was that ‘the treatment ought to be given having regards to the likelihood that it will alleviate or prevent deterioration in the patient’s condition.’ The House of Lords decision in Reid was applied in Ruddle v. Secretary of State for Scotland and Ruddle, viewed as a dangerous psychopath, was discharged as untreatable. This prompted the Scottish Parliament to amend the law to make it clear in cases such as the applicant's that the fact that the mental disorder is not treatable in clinical terms does not require release where a risk to the public remains. 

Treatment without consent potentially engages Arts 3 and 8 of the ECHR. Remedies are available for infringement of these rights under English Law. Most mental health treatments that people receive in hospital happen on a voluntary basis. People usually agree to be in the hospital and have consented to their treatment. However, when people are very ill, that is, there are serious concerns about their safety, or the safety of others, they can be held in hospital and given compulsory treatment there, whether or not they agree to it. The most important reason stated for ordering involuntary treatment was the patients’ perceived need of care and treatment. Firstly, this was seen as necessary in cases where patients refused care and there was a risk of suicide. Secondly, involuntary treatment was seen as justified in cases where seriously ill patients refused treatment that was seen as essential for improving their condition, both psychiatric and somatic. Thirdly, also protection from social harms was seen as a viable reason for involuntary treatment. 

Those detained under the MHA 1983 may have the capacity to manage their affairs and decline treatment as long as they meet the Re C Test. There are three stages to the decision (1) Can the patient understand and retain the relevant treatment information? (2) Does the patient believe it? (3) Can the patient weigh the information in the balance to arrive at a choice? The third part of the above criteria may easily be weighted against the mental health patient because this individual is unsound of mind, therefore how can they balance the information to come to a choice? Therefore giving an opt out for doctors to get consent in most mental health treatments in detention and also under the MHA 1983, this consent cannot be overridden in respect to ECT and medication after the period of three (3) months is over. Section 63 denies the need for consent if treatment is issued by a responsible medical officer. 

Under the English law medical treatment has been interpreted in B v Croydon Health Authority in order to include force feeding of an anorexic; however overriding the consent of a sectioned patient can only occur in relation to a recognised mental illness of which the patient has been classified. It is believed that as long as the actions are done in accordance to the MHA 1983 it would not breach Articles 3 or 8, as concluded in R (PS) v Dr G and Dr W. Therefore, the rights of mental health patients are greatly reduced and it doesn’t matter if the individual can come to a decision about treatment themselves as in all likelihood it would be overridden.

What is the position in relation to patients who lack mental capacity to consent to treatment but who are not mentally disordered under the 1983 Act? This would include, for example, patients with dementia, severe learning disability or brain injury. As was noted in Re F, the House of Lords stated that no person is able to consent to treatment on behalf of those who lack capacity to consent. However, the court held that mentally incapacitated patients may be compulsorily treated by doctors on the basis of the common law doctrine of ‘necessity’, as long as the treatment is deemed to be in the patient’s best interests. This common law jurisdiction was applied by the courts to ‘detained’ informal patients in R v. Bournewood Community Mental Health NHS Trust. The House of Lords found that the practice of treating compliant incapacitated patients in this way was accept- able. Patients with long-term mental incapacity who do not resist treatment may be subject to compulsory treatment in a psychiatric hospital outside the mental health legislation. The problem with this is that such patients are in an extremely vulnerable position and are denied a number of important safeguards in contrast with those detained under the 1983 Act. The best interests decision is subject to very little, if any, independent scrutiny. Informally ‘detained’ patients fall outside the 1983 Act and thus cannot complain about the quality of treatment and conditions to the Mental Health Act Commission, nor are they entitled to apply to the MHRT to challenge their detention. To what extent does this infringe their rights under the ECHR?

The ECHR has played a fairly prominent role in the formulation, interpretation and application of the Mental Health Act 1983. The case of X v. UK, where a successful challenge under Article 5(4), to the Mental Health Act 1959, resulted in amendments to the procedures for review of detention in the 1983 Act as it passed through Parliament. The ruling resulted in increases to the frequency of detained patients’ entitlement to apply for review of their detention. A number of Articles of the ECHR are relevant to the compulsory admission and treatment of mentally disordered individuals. Of central relevance is Article 5, which governs the liberty and security of the person and is designed to ensure that no one is arbitrarily deprived of his/her liberty, provides that:

“Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following circumstances and in accordance with a procedure prescribed by law:

(e) the lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics, drug addicts or vagrants.”

The case of Winterwerp v. The Netherlands mentioned above has been particularly instructive on the meaning of Article 5 (1) (e). Winterwerp demonstrated that, in the context of the detention of persons of unsound mind, in order to be lawful (except in an emergency) the detention must satisfy three minimum conditions. Additionally, in Aerts v. Belgium, the ECtHR held that where the basis of detention is Article 5(1)(e), there must be some link between the reason the patient has been deprived of liberty and the place and conditions of detention, and that the detention will comply with Article 5 if it takes place in a hospital, clinic or other appropriate institution. As long as these conditions are met, the ECtHR has held that there is no requirement that the disorder must be capable of being treated before the individual can be compulsorily detained. Taken together, the criteria and procedures for compulsory admission under the 1983 Act would seem to comply with the minimum conditions imposed by Article 5(1)(e) as interpreted in Winterwerp v. The Netherlands which is that the requirement of objective medical expertise be satisfied by the medical recommendations and counterbalanced by the presence of the ASW or nearest relative.

Medical Necessity

In Herczegfalvy v Austria, the European Court of Human Rights, considering whether compulsory treatment could amount to a breach of art. 3, said: 

“While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3 (art. 3), whose requirements permit of no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”

Thus, the court took the approach that whilst it would consider ultimately whether Article 3 had been breached, the medical authorities were well placed to decide on the therapeutic methods to be used to preserve the physical and mental health of the patient. There would be no breach of Article 3 where therapeutic necessity has convincingly been shown to exist. This approach has been described as highly deferential to mental health professionals.

The Court applied the same test to alleged breaches of the applicant’s rights under Article 8. In R. (on the application of W) v Broadmoor Hospital, Hale LJ, commenting on Herczegfalvy, said that:

“One can at least conclude rom this that forcible measures inflicted upon an incapacitated patient which are not a medical necessity may indeed be in human or degrading. The same must apply to forcible measures inflicted upon a capacitated patient.”

In other words, compulsory treatment which cannot be convincingly shown to be a medical necessity will amount to a breach of the patient’s Convention rights, whether the patient is competent or not. But the fact that there is a responsible body of medical opinion against the proposed treatment is not decisive to determine that medical necessity has not been convincingly shown. The existence of a competing body of medical opinion is relevant to the question of whether treatment is in the patient’s best interests or medically necessary, but it is no more than that. The standard is a high one, and the answer to the question whether medical necessity has been convincingly shown depends upon a number of factors, including: 

“(a) how certain is that the patient does suffer from a treatable mental disorder; (b) how serious a disorder is it; (c) how serious a risk is presented to others; (d) how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition; (e) how much alleviation is there likely to be; (f) how likely is it that the treatment will have adverse consequences for the patient; and (g) how severe may they be. 

In R. (on the application of PS) v Responsible Medical Officer,  Silber J held that the treatment of a competent detained patient with anti-psychotic medication under s.58(3)(b) of the Mental Health Act 1983, contrary to his religious beliefs, did not necessarily involve a breach of art. 3 of the ECHR. In order to constitute a breach or art.3, the proposed treatment had to reach a minimum level of severity for ill-treatment, taking into account all the circumstances, including the positive and adverse mental and physical consequences, the nature and context of the treatment, the manner and method of its execution, its duration, and if relevant, the sex, age and health of the patient. It also had to be established that there was no medical or therapeutic necessity for the treatment since as a general rule, a method of treatment which is a therapeutic necessity can not be regarded as inhuman or degrading. Moreover, in order to be in the patient’s best interests and a medical necessity, it does not have to be shown that the treatment is necessary to prevent the patient causing harm to others or to protect the patient from serious harm. 

The test of necessity derived from Herczegfalvy v Austria does not require a court considering a challenge to treatment proposed under s.58(3)(b) of the Mental Health Act 1983 to be convinced of each of the individual matters going to the test of medical necessity. There is a single question of medical or therapeutic necessity for the court to address when forcible treatment is challenged. In R. v Haddock, the applicant argued that before medical treatment could be administered without the patient’s consent under s.58(3) it had to be shown first, that the patient suffered from a particular condition, and, thirdly that the appellant would benefit from the treatment. The crucial question was therefore: “what is the relevant diagnosis?” The Court of Appeal rejected this argument, because of the inherent difficulty of making some psychiatric diagnosis, due not least to the possibility of co-morbidity of, for example, some forms of mental illness and psychopathic disorder. The question of “medical necessity” is composite in nature:

“It is one to which the answer will always be one of value judgment derived from other value judgments on often difficult and complex questions of diagnosis and prognosis on which there may be some difference of medical opinion.”

As to the appropriate standard for determining whether “medical necessity” for compulsory treatment has been established, Auld LJ considered that it could not be expressed in terms of a legal standard of proof, since it involves a professional value judgment about the likelihood of treatment being effective. Although, diagnosis may be important to the decision making process under s.58.  It followed that the requirement for a court to be convinced of medical necessity was not capable of being expressed in terms of a standard of evidential proof. Rather it was a value judgment as to the future, or forecast, to be made by a court in reliance on medical evidence according to a standard of persuasion, and therefore it was doubtful whether it amounted to more than satisfaction of “medical necessity” on a balance of probabilities”, or as a “likelihood” of therapeutic benefit - the test in s.58(3)(b) for triggering a decision. 

Principle of Necessity

In Re F, the House of Lords held that the principle of necessity provided the solution to the problem of patients who lack the capacity to consent. It was axiomatic, said Lord Bridge, that treatment which is necessary to preserve the life, health or well-being of the patient may lawfully be given without consent. Lord Goff had no doubt that the common law recognised a principle of necessity which might justify action which would otherwise be unlawful, and Lord Brandon. Without referring specifically to a general principle of necessity, said that the common law would be seriously defective if it failed to provide a solution to the problem created by an inability to consent to treatment.

Lord Brandon concluded that an operation or other treatment performed on adult patients who are incapable, for one reason or another, of consenting, would be lawful provided that it is in the best interests of the patient. It will be in their best interests:

“…if, but only if, it is carried out in order either to save their lives or to ensure improvement or prevent deterioration in their physical or mental health.”

Lord Brandon used the same argument to justify adopting the Bolam test as the appropriate standard for measuring the patient’s best interest. The difficulty with applying the Bolam test to the defence of necessity was that there could well be more than one view, as to what is in the best interests of the patient and, accordingly, as to what course of conduct in relation to incompetent patients is justified in law. When applied in the context of a negligence action the Bolam test effectively means that competing “responsible bodies of medical opinion” cannot be challenged. Following a responsible practice means that a defendant is not negligent, even where there are other, and possibly better, responsible practices. Applied to treatment decisions about incapacitated adults this would leave decisions about medical treatment, even controversial treatment such as sterilisation, within the discretion of the medical profession. Patients would have  a right to have non-negligent decisions made about their medical treatment, but no right to the best decision. 

VI. CONCLUSION

This paper looked at the human rights implications of treatment and compulsory detention for mental health patients and demonstrated that in the wake of the Human Rights Act 1998, protecting patient rights is regarded as a priority. This has been articulated and reinforced throughout the official documents which have accompanied the Laws. The Mental Health Law poses major challenges for a justification for involuntary treatment that is not discriminatory. Some have stated that existing mental health legislation is unfairly discriminatory against people with a mental illness. I recommend that there is still a need for the concept of ‘mental disorder’ to be clearly defined in legislation,  and not just in a code of practice. It should also be sufficiently defined in compliant with Article 5 of the ECHR. Legislation should require that all compulsory treatment accord with a treatment plan, and that the plan be subject to authorisation and review by an independent person or organisation. Treatment considered necessary which is not contained within the plan would require independent review before being carried out, other than in an emergency. Users should be involved in the planning process and be informed of this right.