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Judge orders dialysis treatment where refusal by 34-year-old man was manifestation of his mental disorder

A 34-year-old man’s refusal of dialysis was a manifestation of his mental disorder and so he should be ordered to undergo treatment at times when he does not consent to it, a Court of Protection judge has found.

The respondent (CC) in the case of A Healthcare B NHS Trust v CC [2020] EWHC 574 has psychiatric diagnoses of psychotic depression and a mixed personality disorder with marked dissocial and dependent traits. He is deaf and communicates via British Sign Language.

The judge, Mrs Justice Lieven, said CC was detained under section 3 of the Mental Health Act 1983 on X Ward which is the medium secure ward for deaf men within A Healthcare.

The issue in the case was whether CC should be ordered to undergo haemodialysis at times when he does not consent to it.

CC was diagnosed with type 1 diabetes mellitus at the age of 15 and he suffers from complex physical health issues caused by his chronically poor compliance with the required diabetic treatment.

His poor compliance had caused problems with his eyes, but more recently had resulted in renal failure requiring dialysis, and ultimately it was hoped a kidney transplant.

Mrs Justice Lieven said: “It is clear that there is a complex interaction between CC's mental disorder and his physical condition and thus physical health needs.”

CC's current non-compliance with dialysis treatment was thought by his responsible clinician, Dr H, to be a manifestation or symptom of his mental disorder. CC was described by Dr H as having 'at best' fluctuating capacity to make decisions about dialysis treatment.

The judge said that when CC was physically well, he understood that he needed dialysis and expressed a clear and consistent wish to live, but at times of crisis he would refuse dialysis and admission to Y General Hospital ('B NHS Trust') for such treatment to be provided to him.

CC's responsible clinician at A Healthcare and the nephrology team at B NHS Trust (who oversee CC's dialysis care), as joint applicants, sought clarification from the Court that dialysis could be provided to CC under section 63 MHA 1983 as medical treatment within the meaning of section 145(4) MHA 1983.

Mrs Justice Lieven made the order sought under the inherent jurisdiction given the urgency of CC's medical treatment, but has now issued a reasoned judgment.

She heard evidence, briefly, from Dr H, a consultant psychiatrist, and Dr I, a consultant nephrologist.

The judge said that the following issues arose in this case;

  1. Whether CC could be treated under section 63 of the MHA; the renal failure and refusal to accept dialysis being said to be a manifestation of his mental disorder;
  2. Whether section 63 could not be relied upon by the Applicants because of section 58 MHA;
  3. Whether in any event CC could be given dialysis pursuant to the Mental Capacity Act 2005 because he did not have capacity to make the relevant decision;
  4. If CC had fluctuating capacity, whether a declaration could still be made under the MCA 2005.

Mrs Justice Lieven said use of section 63 MHA 1983 to authorise dialysis was not straightforward. “Dialysis is a treatment for end stage renal failure and this would not normally be treatment to alleviate or prevent a worsening of, or to treat the consequences of, a mental disorder. However, Dr H considers that CC's need for dialysis is a consequence of his mental disorders,” she said.

A Healthcare and B NHS Trust brought the matter to Court because Dr H accepted this was not a straightforward case, both because of the issue of whether the dialysis was a treatment to alleviate CC's mental disorder, but also because of his fluctuating capacity. Dr H sought to ensure that he was acting lawfully and in CC's best interests due to the gravity of the decision.

The Applicants brought the matter to court in line with the guidance of Mr Justice Baker in A NHS Trust v A [2013] EWHC 2442 (Fam) at [80] that 'In cases of uncertainty where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court'.

Mrs Justice Lieven found that:

  1. The physical condition CC was now in, by which dialysis was critical to keep him alive, was properly described as a manifestation of his mental disorder. There was 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 was very obviously a manifestation of his mental disorder and dialysis treatment was therefore treatment within the scope of section 63 MHA 1983.
  2. CC's capacity to consent to dialysis treatment fluctuatedd, however his consent was not required in order to be treated, by way of dialysis treatment, under section 63 MHA 1983.
  3. The decision whether it was in CC's best interests to receive dialysis treatment was 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.
  4. Section 58 had no applicability. Section 62 disapplied section 58 in urgent treatment cases such as this where treatment was immediately necessary to save CC's life, to prevent a serious deterioration of his condition, and to alleviate serious suffering. Section 63 was the appropriate course.
  5. As section 63 MHA 1983 could 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 was unnecessary for the court to exercise its discretion and make a contingent declaration pursuant to section 15(1)(c) MCA 2005 that it was lawful to treat CC in accordance with the proposed dialysis treatment plan in the event that he lacked capacity to make a decision regarding dialysis treatment at the relevant time.
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