A Healthcare and B NHS Trust  v CC (by his litigation friend, the Official Solicitor) [2020] EWHC 574 (Fam), Lieven J

Emma Sutton was jointly instructed by the applicants in a complex case concerning CC, who had diagnoses of psychotic depression and a mixed personality disorder who was detained under section 3 MHA 1983. CC was also deaf, had type 1 diabetes, and suffered complex physical health issues caused by chronically poor compliance with the required diabetic treatment, including renal failure. The court had to consider the interplay between the MHA 1983 and the MCA 2005 and determine whether, and if so, how dialysis could and should be lawfully given due to CC’s refusal. CC would die within 6 weeks without the necessary treatment. The court agreed with the primary argument that CC’s refusal of dialysis was a manifestation of his mental disorder and that he could be treated under section 63 MHA 1983. Please see here for the judgment.

The full findings of the court at [56] were that:

i. he physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC’s refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983.

ii. CC’s capacity to consent to dialysis treatment fluctuates, however his consent is not required in order to be treated, by way of dialysis treatment, under section 63 MHA 1983.

iii. The decision whether it is in CC’s best interests to receive dialysis treatment is a matter for CC’s responsible clinician (having consulted clinicians attending to his physical health, including the consultant nephrologist), subject to the supervisory jurisdiction of the Court.

iv. Section 58 has no applicability. Section 62 disapplies section 58 in urgent treatment cases such as this where treatment is immediately necessary to save CC’s life, to prevent a serious deterioration of his condition, and to alleviate serious suffering. Section 63 is the appropriate course.

v. As section 63 MHA 1983 can be used as authority to provide medical treatment to CC, including by dialysis treatment and by the use of light physical restraint and chemical restraint (if required), it is unnecessary for the court to exercise its discretion and make a contingent declaration pursuant to section 15(1)(c) MCA 2005 that it is lawful to treat CC in accordance with the proposed dialysis treatment plan in the event that he lacks capacity to make a decision regarding dialysis treatment at the relevant time.

Emma was instructed by Stuart Wallace, in-house lawyer at A Healthcare, and Nadine Mansell, solicitor at Capsticks Solicitors LLP for B NHS Trust.