This social welfare update is by Tim Baldwin of the Garden Court Chambers Court of Protection Team.
Confusion arising from nearest relative displacement proceedings in the County Court
Tim Baldwin considers the issues arising in (1) North Tees and Hartlepool NHS Foundation Trust (2) Tees Esk and Wear Valleys NHS trust (Applicants) v (1) KAG (by their litigation friend the Official Solicitor) (2) Mr G and (3) Stockton-on-Tees Borough Council (Respondents) [2024] EWCOP 38 (T3) North Tees and Hartlepool NHS Foundation Trust & Anor v KAG & Ors [2024] EWCOP 38 (T3).
The Court of Protection had to grapple with where the line lay between permitting the use of clinically assisted nutrition and hydration under the Mental Health Act 1983 and the Mental Capacity Act 2005, and where confusion can arise even when the matter is before another court.
The factual background
The applicant NHS Trusts applied on 1 July 2024 to the Court of Protection for a declaration under s 15 of the Mental Capacity Act 2005, concerning the lawfulness of the insertion of a percutaneous gastronomy tube (PEG) to provide KAG, their patient, with clinically-assisted nutrition and hydration.
The NHS Trusts sought the following declarations:
- i) It is in the best interests of KAG to undergo urgent placement of a percutaneous gastrostomy tube (‘PEG’);
- ii) the proposed PEG procedure could lawfully be undertaken pursuant to powers under s.63 Mental Health Act 1983 (MHA);
- iii) KAG is ineligible to be deprived of her liberty under Sched 1A MCA.
KAG is a woman in her late 60s who has severe depression leading her to neglect herself, including by not eating or drinking. KAG had lost 20% of her bodyweight since January 2024, and was being cared for in hospital. A nasogastric tube was inserted to provide her with assisted nutrition and hydration. This provision of nutrition and hydration was purportedly in accordance with the provisions under the Mental Capacity Act 2005, and without KAG actively objecting to this treatment and insertion of the tube.
In addition to this treatment, KAG had two short periods of admission to hospital under s 2 of the Mental Health Act 1983 in January and April 2024, but admission for assessment led to an admission for treatment and detention under s 3 of the 1983 Act, as on each occasion, KAG agreed to remain in hospital and to continue to receive treatment.
However, following discharge from s 2 of the Mental Health Act 1983 in May 2024, KAG did not continue to engage with medical treatment, declined medication at times, and expressed dissatisfaction with being fed by a nasogastric tube.
Thus, as of 3 June 2024, KAG’s treating doctors recommended that KAG be admitted to a psychiatric hospital, pursuant to s 3 of the Mental Health Act 1983. The applicant NHS Trusts considered that insertion of a percutaneous gastronomy tube (“PEG”) would be clinically appropriate, due to practical problems associated with the long-term use of a nasogastric tube for nutrition and hydration, and also that psychiatric units would not accept a patient who was being fed by nasogastric tube.
The applicant NHS Trusts’ position was that a PEG could be inserted once KAG was admitted under s.3 Mental Health Act 1983 and before KAG was transferred to the psychiatric unit by the responsible clinician under s 63 of the Mental Health Act 1983, which permits treatment for a mental disorder or its symptoms to be given, irrespective of whether the patient consented to that treatment.
Stockton-on-Tees Borough Council is the local authority responsible for arranging KAG’s admission to hospital for treatment under s.3 of the Mental Health Act 1983. The Council accepted the applicant NHS Trusts’ analysis and applied to the County Court on 18 June 2024 to displace KAG’s husband (“Mr G”) as her nearest relative, for the purposes of the Mental Health Act 1983, on the basis that he was unreasonably objecting to KAG’s admission to hospital for treatment under s 3.
Nevertheless, in the displacement proceedings on the 27 June 2024 before a Circuit Judge in the County Court where KAG was not represented by way of the Litigation Friend but rather KAG has a Relevant Person’s Representative (“RPR”) appointed under schedule A1 of the Mental Capacity Act 2005, as Stockton-on-Tees Borough Council had made a standard authorisation for the deprivation of KAG’s liberty when in hospital. The applicant NHS Trusts had sought a review of that DOL on the basis that KAG was no longer eligible, given her increasing objection to treatment. There was much confusion as to whether the question of whether a PEG should be inserted was a serious medical treatment issue that needed to be decided by the Court of Protection.
In particular, whether the Official Solicitor was to be involved in the representation of KAG and the Judge gave judgment to the effect: “I was told… that the Official Solicitor…was firmly of the view that this was a serious medical treatment case and considered that the matter should be adjourned. The Official Solicitor considered that the fact that [KAG’s husband’] was now agreeing the displacement heightened the need for [KAG] to be represented.”
However, from the evidence before the Court of Protection, it is not clear whether this was an accurate report of the Official Solicitor’s view and the representative of the Official Solicitor, before the Court of Protection, did not accept that this was the Official Solicitor’s view.
Nevertheless, the County Court Judge stayed the application to displace Mr G as the nearest relative, and invited the applicant NHS Trusts to apply to the Court of Protection for the appropriate declarations of lawfulness.
Before the Court of Protection, the Official Solicitor, on behalf of KAG, submitted that the insertion of a PEG to provide clinically assisted nutrition and hydration for KAG, or any patient whose refusal to eat was a manifestation of their mental disorder fell clearly within s.63 Mental Health Act 1983, and it was unnecessary for the applicants to apply to the Court of Protection for a declaration.
Judgment
DHCJ Butler-Cole KC, sitting as a Tier 3 judge, held that it had not been necessary for the NHS Trusts to apply to the Court of Protection, as the Mental Health Act 1983 was the correct legal framework to apply to provide treatment for KAG for her mental disorder, including the provision of clinically assisted nutrition and hydration.
Further, although there would be cases where the scope of the application of s 63 of the Mental Health Act 1983 was in question, this was not such a case. Although the Official Solicitor did not object to the Court making a declaration of lawfulness in the exceptional circumstances, the judgment should not be taken as any sort of encouragement to statutory bodies to seek the Court’s intervention where there was no uncertainty on the part of a treating NHS Trust as to whether treatment could be provided under s.63 and s 145 of Mental Health Act 1983, even in the face of objection by a patient and where JK v A Local Health Board [2019] EWHC 67 (Fam) § 19 applied.
The Court, following B v Croydon HA [1995] Fam 133, further held that the provision clinically assisted nutrition and hydration by means such as a PEG was, in principle, a form of treatment that could fall within s.63 and s.145 of the Mental Health Act 1983. The Court identified by applying the test from JK v A Local Health Board [2019] EWHC 67, that the critical question was whether clinically assisted nutrition and hydration was a treatment for a symptom, or manifestation of a mental disorder, which was likely to be strongly influenced by the relevant medical evidence. The medical evidence in this case was that KAG’s s refusal to eat was a manifestation of her mental disorder.
In this case, it was not that of KAG voluntarily stopping eating and drinking, and KAG did not express any wish to die. Moreover, it unquestionably in KAG’s interests to receive clinically assisted nutrition and hydration by way of PEG, rather than nasogastric tube. The Court identified that a PEG would be less risky, more comfortable and more effective. Also, a PEG was reversible, and KAG would be able to eat and drink normally while it was in place should she wish.
Although the operation to insert the PEG was unpleasant, it was short and under sedation, and, once in place, KAG would be able to move to a suitable therapeutic environment, where she could receive the treatment she needed for her mental disorder. Despite KAG being fearful of the procedure, it was the only realistic option to maintain KAG’s physical health, and to help her to get through her period of depression.
Rather than by use of the Mental Capacity Act 2005, the Court determined and declared that, pursuant to its inherent jurisdiction, that the insertion of a PEG for the provision of would be “treatment” for the purposes of s.145 of the Mental Health Act 1983 and falling within the meaning of s.63 of that Act.
Comment
This case illustrates how confusion may arise in respect of the authorisation of, and the basis for provision of invasive medical treatment, by use of the Mental Capacity Act 2005 or Mental Health Act 1983. Such confusion can arise even when this is before experienced judges and advocates exercising a jurisdiction under the Mental Health Act 1983. Although it appears that the High Court was able to resolve the dispute, in this case relatively straightforwardly, based on the medical evidence before the Judge, it remains that there may still be cases which are more complex and less clear, requiring the intervention of the court.
The interaction of the statutory frameworks with Mental Capacity Act 2005 and Mental Health Act 1983, which may run up against each other concerning issues of medical treatment without consent, can be difficult to navigate, understand, and resolve quickly. The Mental Health Act 1983 is subject to a review, and given the Mental Capacity Act 2005 is almost 20 years old, it may also be useful for the Government to review its operation and effectiveness.
In this context, it might be useful for the Government to consider whether there is a need for a single statutory scheme rather than two, sometimes conflicting and complex, statutory frameworks for the provision of care to people with mental disorders or impairment or disturbance in the function of their mind or brain.
