GT, Re  EWCOP 28I: Court of Protection best interests and the use of s63 Mental Health Act 198323/07/20
In Warrington & Halton Hospitals NHS FT v GTI  EWCOP 28, the Court of Protection has declared that it is in P’s best interests to have a PEG feeding tube inserted in order to provide him with nutrition and prevent deterioration and a potentially fatal collapse, despite P clearly refusing such treatment.
Of interest, P was detained under the Mental Health Act 1983 but the judgement makes no mention of there being any consideration of s63 MHA 1983. On the facts it appears that s63 MHA 1983 could have enabled treatment to be provided under the MHA framework, provided the psychiatric team believed the PEG amounted to medical treatment, the purpose of which is to alleviate or prevent a worsening of a manifestation of GTI’s mental disorder. If this had been the case, a best interests declaration from the Court of Protection would not have been required. Even if the Trust was unsure as to whether s63 MHA 1983 applied and appropriately felt it necessary made an application to Court, we would ordinarily expect that a reference to s63 MHA 1983 would appear in the judgment.
This case concerned ‘GTI’, a 45 year old man with an established history of schizoaffective disorder. In January 2020, he had a paranoid episode and stabbed himself in the neck, causing significant damage to his recurrent laryngeal nerve. This affected his swallow reflex and he was therefore unable to take food or drink orally without significant risks of aspiration. He initially agreed to the insertion of a PEG which would assist with his food and drink intake, planned for 11 March 2020. On 9 March he was detained under section 2 of the Mental Health Act 1983. He then decided he did not want the PEG and the procedure did not go ahead. After multidisciplinary collaboration regarding GTI’s care, a clinical decision-making meeting took place on 20 May 2020, the conclusion of which was that the insertion of a PEG was in GTI’s best interests. An application was made to the Court of Protection by the NHS Trust for a best interests declaration.
The clinical evidence regarding GTI’s condition and prognosis was that – without the PEG – he would deteriorate as a result of malnutrition, potentially leading to his death. The insertion of the PEG itself was not without its risks, including the risk that GTI would try to remove it or interfere with it after it was inserted, but there was no other viable means to deliver nutrition to GTI. GTI did not want the PEG tube because he viewed it as intrusive and held a clearly strong belief that he could, if given the opportunity, eat and drink normally despite the clinical evidence to the contrary. The position on best interests itself was considered ‘clear-cut’ as, without the PEG, there was an increasing risk that he might die, possibly within the next two to three weeks. Whilst the OS, on behalf of GTI, noted that GTI did not wish to have a PEG inserted and wished to feed himself orally, the OS was in agreement with the NHS Trust that the proposed PEG was in GTI’s best interests and it supported the Trust’s application.
The NHS Trust submitted that the capacity evidence provided to the Court clearly demonstrated that GTI lacked capacity. Whilst the OS on the other hand felt that the evidence as to capacity was not as straightforward as in other cases, the OS acknowledged that GTI’s treating consultant gave clear evidence that he considered GTI did lack capacity.
Mr Justice Williams was satisfied that GTI lacked capacity to make a decision about the insertion of a PEG. GTI demonstrated his lack of insight into the consequences of the neurological damage to the nerves in his larynx. He did not accept that food and drink would go directly into his lungs and he said that, in any event, if they did he would cough them up. He did not seem to appreciate there was any risk of death at all. He was therefore either unable to understand the information about the risks, or he was unable to use or weigh that information. Mr Justice Williams also noted that GTI cared deeply for his mother and Mr Justice Williams did not believe GTI would dream of putting his mother through his deterioration, starvation and death which would occur without a PEG. Whilst we have not had the benefit of seeing the clinical evidence, this does sound in the “ball park” of the required procedures alleviating or preventing a worsening of the symptoms of GTI’s mental disorder i.e. treatment of the consequences of the self-harm and the patient’s inability to understand the dangers that oral feeding posed. This would have provided both the mental health and surgical teams to provide treatment. (See for instance A Healthcare and B NHS Trust v CC  EWHC 574 (Fam) in which Capsticks represented both the psychiatric and acute hospital teams.)
In terms of the PEG being in GTI’s best interests, Mr Justice Williams noted that it seemed inevitable that without the PEG his malnutrition would worsen and eventually he would collapse. The insertion of the PEG was a less intrusive and painful means of maintaining nutrition than the alternative. The hope was that, when GTI’s condition improved and his mental health stabilised, he would come to accept the need for the PEG.
What to take away
This case demonstrates the difficult balancing exercise judges have to weigh when they conclude a significant decision in P’s best interests where that decision is contrary to P’s wishes and feelings.
It is interesting that that no consideration seems to have been given to the use of s63 of the Mental Health Act (‘MHA’) 1983 as a potential legal framework for treatment. On the face of it, s63 ought to have been considered as (1) GTI was detained under the MHA 1983 at the relevant time; (2) he required medical treatment for a physical condition that was the manifestation of his mental disorder; and (3) his refusal of that physical treatment was a manifestation of his mental disorder. It is important to consider 145(4) MHA 1983 alongside s63. S145(4) states that ‘medical treatment’ means “the purpose of which is to alleviate or prevent a worsening of the disorder or one or more of its symptoms or manifestations.” Applying the facts to the law in this case, if the injury (severing of the neck) was a symptom or manifestation of the underlying mental disorder then to treat that injury (by way of PEG insertion) would be to treat the manifestation or symptom of the underlying disorder. In which case s63 and s145 MHA 1983 apply.
It is therefore difficult to see why s63 was not considered in this case and not referred to in the application to court. Is this another case of the Mental Health Trust preferring to use the safety-net of a Court of Protection led best interests declaration? The extent to which treatment falls within the ambit of s63 (read in conjunction with s145(4)), can be difficult to ascertain. If a Trust is uncertain about whether s63 MHA 1983 applies, the appropriate course is for an application to be made to the Court raising the two legal options (i.e. Mental Health Act and Mental Capacity Act) available to the parties and the Court in that application. A good example of this being done is A Healthcare and B NHS Trust v CC  EWHC 574 (Fam). The applicant in that case was represented by Capsticks.
The GTI judgement can be found here.
The CC judgement can be found here.
How Capsticks can help
We have a specialist health and social care advisory team of over 20 specialist lawyers, advising clients across the country on all issues relating to consent, capacity and medical treatment. Francis Lyons was a member of Working Party reporting to the Court of Protection Rules Committee on Practice Direction 9E and CANH cases.
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