A NHS Trust v Dr. A [2013] EWCOP 2442

Case No COP12262006

IN THE HIGH COURT OF JUSTICE

AND IN THE COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/03/2013

Before

THE HONOURABLE MR JUSTICE BAKER

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

AND IN THE MATTER OF DR. A

Between

A NHS TRUSTApplicant

DR. ARespondent

(by his litigation friend the Official Solicitor)

Miss F.Paterson (instructed by the Trust’s Legal Services) appeared for Applicant

Mr Angus Moon QC and Miss Amy Street (instructed by the Official Solicitor) appeared for Respondent

Hearing Hearing dates: 30 th, 31 st January and 20 th– 22 nd March 2013

JUDGMENT

MR. JUSTICE BAKER:

[1]This is an application by a NHS Trust for declaratory relief in respect of a man (whom I shall call “Dr. A”) who is on hunger strike in the Trust hospital. The relief sought by the Trust is in short a declaration :(i) that he lacks capacity to litigate and to make decisions in respect of his nutrition and hydration; and

(ii) that it is lawful for the Trust to administer artificial nutrition and hydration.

[2]This case has attracted a degree of publicity and I shall therefore give leave for the judgment to be published, subject to the proviso that in any report no person, (other than the solicitors or advocates instructed by them and any other persons identified by me in the judgment), including the Trust and the hospital involved, may be identified by name or location and that, in particular, the anonymity of Dr. A. and his family must be strictly preserved. Background

[3]Dr. A. is a fifty-year-old Iranian doctor. In oral evidence, he told me that he had worked as a GP in his home country for about seventeen years until about 2009 at which point he had travelled abroad. He has said on other occasions that, whilst living in Iran, he was treated with antidepressants and antipsychotic medication, although attempts to obtain corroboration of his account from the Iranian medical services have been unsuccessful. He came to this country on or about 14th August 2011 on a six month visa to study English, having allegedly stopped taking the medication a few months previously. He is married with one daughter aged eight, although there is some evidence that he is estranged and possibly divorced from his wife. His wife and daughter have remained in Iran.

[4]Dr. A. has applied for asylum in this country on three occasions, but his applications have all been refused. In early May 2012 his passport was confiscated by the UK Border Agency (“UKBA”) to be returned on the condition that he be returned to Iran. Following an incident at the UKBA office, which led to the police being called, he was taken to the Trust’s hospital under section 136 of the Mental Health Act 1983 (hereafter the “MHA”). After being released, he went on hunger strike in an attempt to recover his passport.

[5]Dr. A. was subsequently admitted to the hospital on 22nd June 2012 after his landlord had called an ambulance. He was found to be suffering from dehydration and pneumonia and reported having suicidal ideas and that he had taken an overdose. He received treatment and was discharged on 26th June 2012, but continued his hunger strike and was readmitted with a variety of consequential physical problems on 9th July 2012. He has been an in-patient continuously since that date.

[6]From an early stage his treating doctors formed the opinion that he might be suffering from a delusional disorder or a paranoid personality disorder, although all the doctors have recognised that the process of diagnosis was complicated by cultural differences. The question of his capacity has been considered on many occasions by a variety of professionals. From the outset the preponderance of opinion has been that he lacks capacity, although on 23rd July one consultant psychiatrist observed:

“I think he has capacity and is making a political point.”

Most professionals, however, reached a different conclusion.

[7]On 1st August 2012 his treating consultant psychiatrist, Dr. WJ, carried out a detailed assessment of his mental capacity and concluded that he lacked capacity to make a decision about eating and drinking. On the next day, 2nd August 2012, a Farsi-speaking psychiatrist, Dr. CA, examined him and concluded that he lacked capacity and also diagnosed that he may be suffering from a delusional disorder and paranoia. Following these examinations a nasogastric tube was inserted to facilitate feeding.

[8]One apparent manifestation of his mental disorder was an obsession about the colour red. It was noted on 6th August 2012 that he had requested:

“That people do not wear or show him red. He feels that people showing him red, such as three students he saw today wearing red, are trying to make him join the Red Party in Iran which he says is the current political party in that country.”

[9]Dr. A’s health continued to deteriorate and he was diagnosed as having pneumonia. Despite obvious symptoms and x-ray evidence, however, he refused to accept that he had any chest infection. He also refused to accept the diagnosis of a urinary infection. He maintained a belief, erroneously, that he had been subjected to a prostatectomy without his consent on his admission to hospital. These false beliefs led the doctors to conclude that he lacked the capacity to weigh information about his medical conditions.

[10]On 8th August 2012 the UKBA refused a further request for asylum. The next day Dr. A. became very agitated, pulling out his nasogastric tube and saying he wanted to die.

[11]On 17th August 2012 his condition was reviewed by his consultant psychiatrist, Dr. WJ. On 20th August 2012 he was detained for assessment under section 2 of the MHA. He subsequently appealed against that decision to the First Tier Tribunal Health, Education and Social Care Chamber (Mental Health) (“the Tribunal”) and his appeal was heard on 28th August 2012. In its decision dated 31st August 2012, dismissing the appeal, the tribunal noted his history of depression and paranoia in Iran and his subsequent medical history. The decision recounted how, whilst in hospital, Dr. A. had said that the Iranian Government had been monitoring him through his computer and had been adversely influencing his medical treatment. The Tribunal accepted the diagnosis of delusional disorder, whilst noting that not all medical professionals thought that he was delusional. Overall, the Tribunal felt that:

“It could not safely be concluded that the life threatening hunger strike was the product of a decision by way of protest formed under the circumstances of good mental health. The overall picture was, on balance, indicative of mental disorder.”

The tribunal considered that, if he was discharged, Dr. A. would return to his flat and continue his hunger strike and that, in these circumstances, “detention in hospital was plainly in the interests of Dr. A’s health and safety”.

[12]After the hearing Dr. A. was prescribed Olanzapine, an antipsychotic. He complained that this left him tired and excessively sleepy, but, by 6th September 2012, he was found to be “rouseable and engaging” and was requesting English language books to study. With the imminent expiry of the section 2 admission, he was detained on 14th September 2012 under section 3 of the MHA. With ongoing treatment, further improvement in his condition was observed. The medical notes record that:

“He was able to laugh and appeared unusually good humoured”

. He spoke “about life in Iran saying he wasn’t sure if he would be in trouble if he went back, but that the lifestyle was too restrictive there”.

[13]On 25th September 2012, Dr. WJ felt that he was brighter and noted that he was now walking around the hospital. By 1st October 2012 it was felt that his mental state had improved, although he still seemed paranoid about the colour red. On 18th October 2012 he was noted to be sitting up in bed, alert and responsive, and had been in touch with a lawyer and verbally consented to the medical staff telephoning the lawyer about his immigration status.

[14]On 29th October 2012 his detention under section 3 was rescinded as his mental state appeared stable. When asked about his future plans, he said that he was homeless in this country and expressed the wish to live in Germany or France where he said he had relatives. He clearly stated that he did not wish to return to Iran. In the same conversation, he indicated that he did not wish to continue with the antipsychotic medication as he did not think he had any mental health problems. Although he remained on the ward undergoing nasogastric feeding, he made no attempts to remove the tube at this stage.

[15]In a case conference on 20th November 2012, however, it was noted that he “continues to state that he will continue to refuse to eat in protest against the UKBA decision to refuse him asylum and to confiscate his passport. He believes that his decision to refuse to eat will help a further appeal to the UKBA”. On 22nd November 2012, it was noted that he was not gaining weight and was fasting during the day. On 23rd November 2012, his consultant psychiatrist noted that he still maintained “that he would not eat until he had his passport back or can stay in the UK.” It was, she says:

“Very difficult to get him to think about what will happen if he leaves hospital without a nasogastric tube and does not eat”

. He was said to find it difficult to answer questions about not eating food in protest at the UKBA’s actions. When asked about considering the effects of not eating, he said he would die and that his life currently meant nothing. The psychiatrist noted, however, that Dr. A. would not consider any detail around this or the possibility of making a formal advance decision. In contrast to his stated wish about dying, however, he also expressed a desire to study and pass an English language exam.

[16]Until about 5th December 2012 Dr. A. was not eating solid food, but was co-operating with the nasogastric tube and drinking some liquids including coffee. On that date, however, he stopped drinking and removed the nasogastric tube and resisted attempts to reinsert it. A note in the hospital records quotes him as saying that he equated not eating and drinking “with soldiers fighting a political battle in Iran knowing they may die for a cause”.

[17]On 7th December 2012 he was noted as having talked to an Iranian medical specialist registrar who noted that he was “becoming a bit paranoid again, more rigid, irritable and asking him to get Iranian Government people to talk to him”. The specialist registrar formed the impression that he was suffering from a re-emergence of a possible delusional disorder. Dr. WJ also noted that Dr. A. was more irritable and more rigid in his thinking.

[18]The hospital records from around this time also contain a document apparently signed by Dr. A. dated 14th December 2012 and addressed to his consultant psychiatrist in the following terms:

“I appreciate your effort for my treatment. You know, I am more than five months in this hospital under treatment. My reason for hunger strike is a protest against the decision of the UK Border Agency because they refused my asylum seeking request and hold my Iranian passport illegally. Please don’t try to save me and I decided to refuse any treatment and receiving fluid or food. You will not be responsible for about what happened for me because I ask you don’t treat me. Only UK Border Agency are responsible for what happened to me. Best Regards.”

On 14th December 2012, however, Dr. A. was noted as having been “very ambivalent about his wish to die”. Having stated at one point that he wished to die, he then said “I’m so glad, you saved my life, I wasn’t thinking straight before”.

[19]On 18th December 2012 possible paranoid ideas were noted about being poisoned when he was staying in Cambridge. On 19th December 2012, a further attempt to reinstate a nasogastric tube was made unsuccessfully.

[20]On about 21st December 2012 a further opinion as to Dr. A’s capacity was sought from Dr. CA who, as stated above, is a Farsi-speaking psychiatrist. He considered that, on balance, Dr. A. did not have the capacity to refuse nutrition and hydration and should be rehydrated against his will, if necessary.

[21]In the light of the complex picture, about Dr. A’s capacity, it was decided to apply to the Court of Protection. On 28th December 2012 an application was therefore made by the Trust for permission to apply for an order permitting the hospital to continue to provide him with artificial nutrition and hydration. In a witness statement in support, his specialist registrar stated that:

“He is clear that he does not wish to die, although he understands that he will die if he continues with the hunger strike. His erroneous and persisting belief that the UKBA may return his passport as a result of hunger strike is impairing his ability to weigh up the reasons for and against continuing in his hunger strike…on the basis that he is unable to weigh up the pros and cons of continuing with the hunger strike, he does not have capacity to make this decision.”

[22]His consultant clinician, Dr. CB, described how he had taken very limited amounts of fluid since removing the tube on 5th December 2012 and, as a result, he had suffered a significant drop in his weight and body mass index with abnormalities of his levels of sodium and potassium. She described his physical state as critical and concluded that he was at high risk of sudden death. That day an emergency court hearing took place by telephone before Mrs. Justice Macur who made an interim declaration that Dr. A. lacked capacity to litigate and make decisions in relation to the serious medical treatment at issue. Pending a further hearing she ordered that it would be lawful, in his best interests, for the clinicians to provide him with artificial hydration and nutrition using reasonable force, restraint and sedation, if necessary. Mrs. Justice Macur appointed the Official Solicitor to act on behalf of Dr. A. in the proceedings. Further directions were given for the next hearing listed on 14th January 2013. The court having concluded that the procedures concerned an application for serious medical treatment as defined in the Court of Protection Practice Direction 9E, Mrs. Justice Macur directed that all subsequent hearings should be heard in public.

[23]Thereafter, nasogastric feeding was re-introduced slowly, supplemented by intravenous fluids to avoid the condition known as “Re-Feeding Syndrome”. Dr. A’s co-operation with these processes was inconsistent. On some, but not all, occasions he pulled out the tubes and had to be physically restrained. Dr. CB described him as:

“Angry and difficult to engage in conversation, he is unable to clearly articulate or weigh up the issues involved in his refusal of food and drink. I am unable to predict in his current state when his capacity regarding the refusal of food or drink may return. He remains at high risk of the effects of malnutrition, which include the multiple effects in all organs. Given that he is currently severely underweight, I would predict that he would die within two to three weeks if he has no nutrition. He would die in a matter of days without fluid.”

[24]At a further hearing on 14th January 2013 Mrs. Justice Eleanor King renewed the interim declarations, made a reporting restrictions order and gave directions for a final hearing on 30th January 2013.

[25]On 21st January 2013 Dr. A. was examined by Dr. JW, an independent expert psychiatrist with a special interest in cultural issues and mental health, who had been instructed to consider Dr. A’s capacity and best interests for the purposes of these proceedings. In his lengthy report, Dr. JW concluded that Dr. A. suffered from both a lack of capacity to litigate and a lack of capacity to refuse nutrition and hydration and that it would be in his best interests to receive artificial nutrition and hydration.

[26]On 24th January 2013, accompanied by a nurse, Dr. A. visited the German Embassy in an unsuccessful attempt to obtain a visa. With the agreement of his consultant physician, Dr. CB, the nasogastric tube was removed during this trip and Dr. A. was observed to drink some supplements and indeed to eat a muffin in the taxi. At all other times he remained on the ward and, on occasion, attempted to remove the nasogastric tube. On several occasions he required sedation with Lorazepam, administered intramuscularly to facilitate the reinsertion of the tube. Medical staff noted a small increase in his weight and he was assessed as being somewhat stronger, although significantly still underweight.

[27]The full hearing started before me on 30th January 2013. I heard evidence over two days including evidence from Dr. A. himself and then adjourned for written legal submissions with the interim declarations remaining in place for the time being. Initially I directed that those submissions should be filed within seven days, but, as a result of certain points of law being raised by the court in the course of the hearing, counsel requested an extension of time which I duly granted. On receiving the submissions, I concluded that it would not be appropriate to reach a decision on the various issues without hearing further oral argument. I therefore listed the matter for a further oral hearing on first available date being 20th March 2013.

[28]Meanwhile, Dr. A remained in hospital. He continued to refuse all food and fluids and was accordingly fed by nasogastric tube against his will under the interim order. He continued to struggle to prevent the nasogastric tube being inserted. Over time, however, he was seen to become increasingly depressed. At one point he hoarded medication and, when this was discovered, he said that he had intended to take an overdose feeling that there was no future for him. As a result, the doctors felt that he should be treated with antidepressants and possibly antipsychotic medication; and, when he refused this treatment, he was, again, on 14th March 2013, placed under section 3 of the MHA and medication was administered via the nasogastric tube. The Issues

[29]The issues to be determined can be summarised as follows:(1) Whether Dr. A. has capacity to make decisions about nutrition and hydration.

(2) If he does not have such capacity, what approach to nutrition and hydration is in his best interests?

(3) What power does the court have to make an order providing for the provision of nutrition and hydration given that such provision involves a deprivation of his liberty? To assist me in resolving these issues, I have had the benefit of written and oral evidence from a number of Dr. A’s treating clinicians and from an expert psychiatrist instructed in these proceedings, Dr. JW, written evidence from the Official Solicitor’s representative and oral evidence from Dr. A. himself. I have also had a series of written submissions from counsel, Miss Fiona Paterson, for the applicant Trust and Angus Moon QC on behalf of the Official Solicitor reinforced by Miss Amy Street at the adjourned hearing. I am very grateful to counsel for their hard work and insight in this difficult case. Capacity

[30]Any person with capacity is entitled to make decisions about his treatment, even if those decisions bring about his death. As Lord Goff of Chieveley observed in Airedale NHS Trust v. Bland

[1993] AC 789

at page 864:

“…the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so.”

Judge LJ (as he then was) expressed this principle more succinctly in St. George’s Healthcare NHS Trust v. S [1999] (Fam) 26:

“Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it.”

There is no doubt that this principle applies in the context of choosing whether to refuse food and drink (see, for example, Secretary of State for the Health Department v. Rob

[1995] 1 All ER 677

and A Local Authority v. E and Others.

[2012] EWHC 1639

). Thus, if Dr. A. has the capacity to make decisions as to whether to take food and drink, he is entitled to starve himself to death if he so chooses. The question is: does he have the capacity?

[31]In determining the question of whether a person has capacity, the court applies the relevant principles of the Mental Capacity Act 2005, specifically sections 1, 2 and 3. Section 1 provides inter alia :(1) “The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. …” Section 2 “People who lack capacity” provided inter alia: (1) “For the purposes of this Act, 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. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to: (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. …” Section 3 “Inability to make decisions” provides: (1) “For the purposes of section 2, a person is unable to make a decision for himself if he is unable: (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of: (a) deciding one way or another, or (b) failing to make the decision.” These statutory provisions are supplemented by the Mental Capacity Act 2005 Code of Practice.

[32]I should also refer briefly at this point to the process provided under sections 24 and 26 under the MCA, whereby a person may make an advance decision to refuse treatment.

[33]So far as those provisions are concerned, the distinction is drawn between those treatments that are life sustaining and those that are not. In the case of the latter, no formality is required and section 24(3) provides that:

“A decision may be regarded as specifying a treatment or circumstances, even though expressed in layman’s terms.”

In the case of life sustaining treatment, however, section 25(5) and (6) provides that an advance decision is not applicable unless it is verified by a statement to the effect that it is to apply to that treatment even if life is at risk; and, further, that both the decision and the statement must be in writing and signed by P or another person in P’s presence and at P’s direction in the presence of a witness who has also signed the decision and the statement of verification. No further reference to this process is necessary in this case because it is accepted that Dr. A. has not made any advance decision that complies with these formalities.

[34]In this case the crucial questions are:(1) Whether Dr. A. is suffering from an impairment of or disturbance in the functioning in the mind or brain; and, if so,

(2) Whether his decision to refuse food and drink is based on a lack of understanding of risks or inability to weigh up the information about the decision attributable to that impairment or disturbance. In this context, where the consequences of a decision will be fatal for Dr. A., the court must in my view be particularly careful not to treat him as incapable of making a decision merely because the decision is extremely unwise. As I pointed out in PH v. A Local Authority and Z Limited and R

[2011] EWHC 1704 (Fam)

and subsequently in CC v. KK

[2012] EWHC 2136 (COP)

, there is a risk that all professionals involved with treating and helping a person - including of course a Judge in the Court of Protection - may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out the appropriate assessment of capacity that is both detached and objective.

[35]In assessing the question of capacity, the court must consider all the relevant evidence. In CC v. KK (supra) I observed at paragraph 24 that:

“The opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, Charles J observed ‘it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision’. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s.2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.”

[36]In this case the court has evidence from Dr. JW, an independent psychiatric expert, Dr. WJ, the psychiatrist principally involved in treating Dr. A, Dr. CA, a Farsi-speaking psychiatrist who has assessed Dr. A during his admission, Dr. CB, his treating physician, and finally Dr. A. himself.

[37]The first question is whether Dr. A. is suffering from a mental disorder so as to cause an impairment or disturbance in the functioning of his brain. The consensus among the psychiatrists is that he is suffering from either a paranoid personality disorder or a delusional disorder. Dr. WJ considers that it is possible that he is suffering from a paranoid personality disorder. She identified a number of factors present which point to such a diagnosis including a pre-occupation with conspiratorial explanations, a sense of personal rights out of keeping with his actual situation and a tendency to excessive self-importance. She acknowledges, however, that there are some difficulties in making a clear diagnosis because(i) there are cultural and regional variations in the manifestations of personality,

(ii) there is little or no evidence of his pre-morbid personality and

(iii) it is possible that some of his personality traits may be attributable either to the effects of starvation itself or to another condition such as delusional disorder.

[38]The alternative diagnosis, delusional disorder, is less common and also dependent on an analysis of whether the beliefs held are acceptable. Dr. WJ highlights the following features of Dr. A’s beliefs which she considers point to the diagnosis of a delusional disorder:(1) repeated statements that his relatives were part of a security system in Iran, that his calls are being monitored and that his doctors’ appointments were scrutinised;

(2) his obsession with the colour red, his belief that it is used by the Iranian Government Political Party and his undue suspicion of anyone wearing the colour because they are, he thinks, doing so in an attempt to exert influence over him;

(3) his belief that the Iranian Intelligence Services monitor his use of his laptop computer;

(4) his belief that he has been followed and bugged;

(5) his belief that microphones are monitoring his every move;

(6) his false belief that he was subjected to a prostatectomy when first admitted to hospital;

(7) the excessive importance which he attaches to his own, as yet, unpublished writings which describe what he regards as the fallacies of Darwinism and provide, in his view, a complete proof of the existence of God and which he believes will make him famous after his death.

[39]In oral evidence Dr. WJ added that delusional disorder is relatively rare. The psychological symptoms are often very subtle and may be difficult to detect if the patient avoids talking about the matters which suggest that he has the disorder. In this case, once he had realised that he had expressed beliefs which had raised concerns, Dr. A. became reluctant to talk about them. Dr. WJ acknowledged that there are difficulties in making a diagnosis of delusional disorder in the context of the widespread suspicion and accusations about the activities of the Iranian Government. On balance, however, she concludes that Dr. A. does suffer from the disorder having regard to the way it has fluctuated when he took, and then stopped taking, antipsychotic medication.

[40]Dr. WJ’s view was shared by both Dr. CA, who provided a witness statement exhibiting his reports at various stages of Dr. A’s hospital admission, and by Dr. JW, the independent expert instructed to carry out the assessment of Dr. A’s capacity to litigate and make decisions about nutrition and hydration. Dr JW conducted an exhaustive review of the medical records and interviewed Dr. A. with the assistance of an interpreter. He found evidence of rigid thinking, persecutory delusions and a possible abnormality of mood. As these abnormal mental processes and behaviours were present during the period of profound weight loss, he accepted that it was therefore difficult to attribute them unequivocally to a condition unrelated to that loss. He noted, however, that Dr. A’s thinking became more flexible and his fixed beliefs abated when he was treated with olanzapine and returned when this treatment ceased. On a balance of probabilities, therefore, he concluded that Dr. A. was suffering from a delusional disorder and as a result there was an impairment of and/or a disturbance in the function of his mind or brain within the meaning of the MCA.

[41]In oral evidence both Dr. WJ and Dr. JW also attached importance to a document described in the proceedings as his “Will” written by Dr. A. in April 2012 in which he purported to make dispositions of his estate after his death and which contains further evidence of his delusional beliefs. Dr. WJ drew attention, in particular, to the account in that document of a theft of money whilst he was in Malaysia which he said had been attributed to the Iranian Intelligence Services by the Malaysian Police; an assertion that, while in Cambridge, he had come under pressure to go to Iran to speak to the Supreme Religious Leader; and his assertion that he had been “subjected to major intentional food poisoning” on two occasions designed “to scare me and drive me toward Khamene’i’s mercenaries.” Having read this document and discussed it with Dr. A., Dr. WJ felt that it was consistent with a delusional disorder. Dr. JW agreed and noted in particular that it was written before Dr. A. started his hunger strike.

[42]All three psychiatrists, Dr. WJ, Dr. CA and Dr. JW, concluded that, as a result of his delusional disorder, Dr. A. lacks capacity to make decisions as to his nutrition and hydration. Specifically he lacks the capacity to use and weigh the information relevant to the decision whether to accept nutrition and hydration. Dr. WJ listed a series of reasons for reaching this conclusion:(1) Regardless of all the evidence given to him by numerous people, including doctors, solicitors and the UKBA itself, he does not believe that there is any possibility that his hunger strike will not end in the UKBA giving in and returning his passport.

(2) He believes that the court has an influence over the UKBA and that the presence of the press at the hearing may also bring about the return of his passport.

(3) He insists that, whatever the legal position, the doctors will not let him die.

(4) His thinking is so rigid and inflexible that he is unable to entertain any possible alternatives to his hunger strike.

(5) He has poor concentration.

(6) It is likely that his low rate of body mass index is having an impact on his capacity to process and weigh up the information.

[43]Dr. WJ also noted that, whilst on occasions Dr. A. has expressed a wish to die, more frequently he has stated that he wishes to live and has expressed gratitude to the doctors for not letting him die. In this context, Dr. WJ referred to conversations she has had with him about making an advance decision to refuse treatment. Dr. WJ thinks that it is significant that he has not taken up this suggestion.

[44]Dr. WJ’s view was again shared by the other doctors. For Dr. JW, the independent expert, the clearest evidence of this inability to use and weigh the information relevant to the decision is his persistent belief that the UKBA will grant him a visa should he continue to refuse food. In these circumstances, all three doctors - Dr. WJ, Dr. CA and Dr. JW - conclude that he lacks the capacity to make decisions about his nutrition and hydration. Dr. JW, who alone was asked to advise as to his capacity to litigate, concludes that he also lacks that capacity.

[45]The only difference between the doctors who gave oral evidence was as to whether Dr. A’s loss of capacity was temporary or indefinite. Dr. JW thought that the loss of capacity was temporary and predicted that capacity would return after treatment. Dr. WJ acknowledged that his loss of capacity might be temporary, but was not confident that it would return given his underlying personality, his history of depression and his very fragile mental state.

[46]Dr. A. also gave oral evidence at the hearing with the aid of an interpreter. He answered questions from the court and from leading counsel for the Official Solicitor. He reiterated that the purpose of his hunger strike was to persuade the UKBA to relent and return his passport. He said that most of the problems had arisen because he was not fluent in English and because of cultural issues. When asked about the Will, he said that “in Farsi we tend to exaggerate”. Had he known that people would take the statements in the Will so seriously, he would not have written them. In response to detailed questions about the contents of that document, however, he substantially reiterated his assertions about the events in Malaysia, the actions of Iranian Intelligence Services, the pressure put on him by people in Cambridge to return to Iran and the incidents of food poisoning, and in some respects elaborated upon them.

[47]Having considered all the evidence, I accept the opinion of the psychiatrists in this case that Dr. A. is suffering from a delusional disorder characterised by the symptoms which Dr. WJ, in particular, described in detail in her statement and oral evidence. I accept that the Will provides particularly pertinent evidence of the disorder dating, as it does, from a period when he was not on hunger strike. I also accept that, as a result of his delusional disorder, Dr. A. lacks the capacity both to litigate and to make decisions about nutrition and hydration and associated treatment. In reaching that conclusion I have of course considered carefully whether his actions are indeed attributable to his mental disorder or merely an extremely unwise action based on a genuine, but misguided, misunderstanding as to the way in which the British authorities and in particular the UKBA operate. It is not uncommon for people to go on hunger strike in the hope that the Government will be forced to change its policy. Hunger strikes are a legitimate form of political protest. Not all hunger strikers are suffering from a mental disorder. In this case, however, I am satisfied that Dr. A. is suffering from a delusional disorder and that this impairs the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment.

[48]I note the difference of opinion between Dr. WJ and Dr. JW as to whether the lack of capacity is temporary or indefinite. I have taken that into consideration and will therefore review the question of capacity at any further hearing that may be directed at the conclusion of this hearing, but it does not affect my decision today. Accordingly, I shall make the declarations as to lack of capacity sought by the applicant Trust. Best Interests Decision

[49]When deciding what order to make on behalf of a person who lacks capacity, whether under the MCA or under its inherent jurisdiction, the court must act in his best interests. Under the MCA, the principles in section 1 continue as follows:

“(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.”

Section 4 headed “Best Interests” makes the following provisions: (1). “In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of: (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2). The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3). He must consider: (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4). He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5). Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6). He must consider, so far as is reasonably ascertainable: (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7). He must take into account, if it is practicable and appropriate to consult them, the views of: (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). (8). The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which: (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. (10). ‘Life-sustaining treatment’ means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. (11). ‘Relevant circumstances’ are those: (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.” Although as a matter of strict law these principles do not apply when the court is exercising its inherent jurisdiction, they are manifestly applicable in those circumstances because best interests lies at the heart of the inherent jurisdiction. As Munby J (as he then was) observed in Re SA (Vulnerable Adult with Capacity)

[2005] EWHC 2492 (Fam)

at paragraph 96, when exercising the inherent jurisdiction, it is “elementary that the court exercises its powers by reference to the incompetent adult's best interests”.

[50]In determining the best interests of an incapacitated adult the courts have developed the use of a balance sheet approach, as explained by Thorpe LJ in Re A (Male Sterilisation)

[2000] 1 FLR 549

at 560(f) to (h):

“Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet…The first entry should be of any factor or factors of actual benefit…Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.”

This approach developed under the inherent jurisdiction has been applied in cases under the MCA (see, for example, W v. M

[2011] EWHC 2443

[51]Applying that approach to this case, the following factors can be assigned to the balance sheet in favour of an order permitting forcible provision of nutrition and hydration to Dr. A. in this case:(1) If nutrition and hydration are not provided, Dr. A. will die. According to his consultant physician, Dr. CB, who signed a statement and gave oral evidence before me, he is likely to die within thirty-five to forty days if artificial nutrition and hydration are withdrawn. In addition, he remains at risk of potentially fatal consequences of starvation including cardiac arrhythmia and pulmonary emboli.

(2) If treated carefully, it is likely that he will make a full physical recovery.

(3) If he receives artificial nutrition and hydration and antipsychotic medication, there is the possibility that he will recover capacity.

(4) On many occasions during conversations with his medical team, in particular Dr. WJ, he has said that he does not wish to die. At one point in his oral evidence he said that he did not wish to die.

(5) The hospital has been informed that members of his family, specifically his parents and sister, do not wish him to die. It can, I think, be assumed that his wife and daughter share that view.

[52]On the other side of the balance sheet, the arguments against making an order permitting forcible artificial nutrition and hydration are as follows:(1) Dr. A. has, on many occasions, declined food and drink and taken active steps to prevent artificial nutrition and hydration by pulling out his nasogastric tube and requiring restraint in order for the tube to be inserted.

(2) Although his written statement signed on 14th December 2012 is not a valid advance decision, it should be seen as representing his wishes and feelings at that stage and taken into account in the balancing exercise.

(3) His hunger strike is a legitimate form of protest and his right to protest should be respected as an aspect of his personal autonomy and of his rights under Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(4) The act of forcible feeding is degrading and unpleasant and would involve a deprivation of liberty.

(5) His recovery may accelerate his return to Iran, which he believes will result in persecution by the Iranian authorities.

[53]Having taken all those factors into account, I have come to the clear conclusion that the balance comes down in favour of making an order permitting the forcible feeding by artificial nutrition and hydration. In particular, the magnetic factor to my mind is the importance of the preservation of life. The importance of this factor has been recognised on numerous occasions in many reported cases. In Bland, (supra) for example, Lord Goff of Chieveley observed at page 863:

“The fundamental principle is the principle of the sanctity of human life. A principle long recognised, not only in our own society, but also in most, if not all, civilised societies throughout the modern world.”

In R (Burke) v. GMC (Official Solicitor and Ors. intervening), Munby J (as he then was) expressed this point in this way in a passage later approved by the Court of Appeal in that case:

“There is a very strong presumption in favour of taking all steps which will prolong life, and save in exceptional circumstances, or where the patient is dying, the best interests of the patient will normally require such steps to be taken. In cases of doubt that doubt falls to be resolved in favour of the preservation of life.”

Paragraph 5.31 of the Mental Capacity Act 2005 Code of Practice requires that:

“All reasonable steps which are in the person’s best interests should be taken to prolong their life.”

The principle continues to carry very great weight in recent cases (see, for example, W v. M (supra) and A Local Authority v. E

[2012] EWHC 1639 (COP)

[54]This court gives due respect to the factors on the other side of the balance sheet, in particular Dr. A’s wishes and feelings. But, in deciding what weight to ascribe to those wishes, it is of course relevant that this court has concluded that he lacks the capacity to use and weigh up information relevant to a decision. Furthermore, I accept the evidence of his treating clinicians that there is a degree of ambivalence about his wishes. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.

[55]I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward. Eligibility - A new gap?

[56]The problem in identifying the court’s jurisdiction to make an order that Dr. A. be subjected to forcible feeding arises from the fact that such treatment involves a deprivation of liberty within the meaning of

Article 5 of the European Convention

of Human Rights. The law defining the circumstances which amount to a deprivation of liberty is well-known and has been developed principally in a line of decisions made in the European Court of Human Rights, most importantly Guzzardi v. Italy,

(1981) 3 EHRR 333

, Storck v. Germany

(2005) 43 EHRR 96

and HL v. the United Kingdom

(2004) 40 EHRR 781

. For the purposes of this judgment, the principles can be stated briefly. When determining whether there is a “deprivation of liberty” within the meaning of Article 5, three conditions must be satisfied:(1) an objective element of a person’s confinement in a certain limited space for a not negligible time;

(2) a subjective element, namely that the person has not validly consented to the confinement in question; and

(3) the deprivation of liberty must be one for which the State is responsible.

[57]When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

[58]Unlike many cases, therefore, the fact that he is being deprived of his liberty is not in dispute. The difficulty arises over identifying how that deprivation may be authorised in law. To describe the problem it is necessary to revisit, briefly, the history of deprivation of liberty in mental capacity cases. As is well-known, the European Court in HL v. United Kingdom (the so-called “Bournewood” case) held that the use of a common law doctrine of necessity as justification for the detention of mentally incapacitated adults who did not qualify for treatment under the MHA was an infringement of Article 5(1)(e) of the Convention, which requires that such detention must be carried out in accordance with a procedure prescribed by law. The lacuna identified in that case, commonly known as the Bournewood gap, was filled by the passage in the Mental Health Act 2007 of extensive amendments to the MCA 2005. The major change introduced by these reforms were the deprivation of liberty safeguards (the so-called “DoLS”), a complex administrative procedure set out in a new schedule to the MCA, schedule A1, for “The authorisation of the detention of a person in a hospital or a care home for the purposes of being given care or treatment in circumstances which amount to a deprivation of liberty”. That administrative procedure is subject to a jurisdiction vested in the Court of Protection by section 21A of the Act to review the lawfulness of the detention.

[59]It is unnecessary for the purposes of this judgment to set out the lengthy and complex terms of the DoLS in any detail. Suffice it to say that schedule A1 provides interalia that a “standard authorisation” for the detention of a person (“P”) must be given by the relevant supervisory body if P meets so-called qualifying requirements identified in the schedule. One of these requirements is the so-called eligibility requirement in respect of which paragraph 17 of schedule A1 provides:(1) The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act.

(2) Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.

[60]The current case does not concern an application for authorisation under Schedule A1, but rather a direct application to the Court of Protection. Under section 16(1) and (2) of the MCA, the court may make an order in relation to matters concerning P’s welfare and under section 17(1)(d) those powers extend to “giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P”. In exercising those powers, the court must of course act in P’s best interests in accordance with section 1(5) and applying the principles in section 4.

[61]The power to make orders for P’s welfare includes the power to make an order that deprives him of his liberty (section 4A inserted by the 2007 amendments). That power, however, is subject to the important qualifications set out in section 16A (also inserted by the 2007 amendments). Section 16A reads as follows:(1) “If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.

(2) If: (a) a welfare order includes provision which authorises a person to be deprived of his liberty, and (b) that person becomes ineligible to be deprived of liberty by this Act, the provision ceases to have effect for as long as the person remains ineligible.

(3) Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order.

(a) ”

[62]Schedule 1A is generally regarded as one of the more difficult provisions in this complex legislation. It provides as follows:

“PART ONE: INELIGIBLE PERSONS Application 1. This Schedule applies for the purposes of (a) section 16A, and (b) paragraph 17 of Schedule A1. Determining ineligibity 2: A person (‘P’) is ineligible to be deprived of liberty by this Act (‘ineligible’) if: (a) P falls within one of the cases set out in the second column of the following table, and (b) the corresponding entry in the third column of the table - or the provision, or one of the provisions, referred to in that entry - provides that he is ineligible. Status of P Determination of Eligibility Case A P is: (a) subject to the hospital treatment regime, and (b) detained in a hospital under that regime. P is ineligible. Case B P is: (a) subject to the hospital treatment regime, but (b) not detained in a hospital under that regime. See paragraphs 3 and 4. Case C P is subject to the community treatment regime. See paragraphs 3 and 4. Case D P is subject to the guardianship regime. See paragraphs 3 and 5. Case E P is— (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes. See paragraph 5. Authorised course of action not in accordance with regime 3. (1) This paragraph applies in cases B, C and D in the table in paragraph 2. (2) P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes. (3) That includes any requirement as to where P is, or is not, to reside. (4) The relevant regime is the mental health regime to which P is subject. Treatment for mental disorder in a hospital 4 (1) This paragraph applies in cases B and C in the table in paragraph 2. (2) P is ineligible if the relevant care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital. P objects to being a mental health patient etc 5. (1) This paragraph applies in cases D and E in the table in paragraph 2. (2) P is ineligible if the following conditions are met. (3) The first condition is that the relevant instrument authorises P to be a mental health patient. (4) The second condition is that P objects: (a) to being a mental health patient, or (b) to being given some or all of the mental health treatment. (5) The third condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects. (6) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following: (a) P's behaviour; (b) P's wishes and feelings; (c) P's views, beliefs and values. (6) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them. PART 2 – INTERPRETATION Application 6. This Part applies for the purposes of this Schedule. Mental health regimes 7. The mental health regimes are: (a) the hospital treatment regime, (b) the community treatment regime, and (c) the guardianship regime. Hospital treatment regimes 8. (1) P is subject to the hospital treatment regime if he is subject to: (a) a hospital treatment obligation under the relevant enactment, or (b) an obligation under another England and Wales enactment which has the same effect as a hospital treatment obligation. (2) But where P is subject to any such obligation, he is to be regarded as not subject to the hospital treatment regime during any period when he is subject to the community treatment regime. (3) A hospital treatment obligation is an application, order or direction of a kind listed in the first column of the following table. (4) In relation to a hospital treatment obligation, the relevant enactment is the enactment in the Mental Health Act which is referred to in the corresponding entry in the second column of the following table. Hospital treatment obligation Relevant enactment Application for admission for assessment Section 2 Application for admission for assessment Section 4 Application for admission for treatment Section 3 Order for remand to hospital Section 35 Order for remand to hospital Section 36 Hospital order Section 37 Interim hospital order Section 38 Order for detention in hospital Section 44 Hospital direction Section 45A Transfer direction Section 47 Transfer direction Section 48 Hospital order Section 51 Community treatment regime 9. P is subject to the community treatment regime if he is subject to: (a) a community treatment order under section 17A of the Mental Health Act, or (b) an obligation under another England and Wales enactment which has the same effect as a community treatment order. Guardianship regime 10. P is subject to the guardianship regime if he is subject to: (a) a guardianship application under section 7 of the Mental Health Act, (b) a guardianship order under section 37 of the Mental Health Act, or (c) an obligation under another England and Wales enactment which has the same effect as a guardianship application or guardianship order. England and Wales enactments 11. (1) An England and Wales enactment is an enactment which extends to England and Wales (whether or not it also extends elsewhere). (2) It does not matter if the enactment is in the Mental Health Act or not. P within scope of Mental Health Act 12. (1) P is within the scope of the Mental Health Act if: (a) an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and (b) P could be detained in a hospital in pursuance of such an application, were one made. (2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act. (3) If the grounds in section 2(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given. (4) If the grounds in section 3(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given. (5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act. Authorised course of action, relevant care or treatment and relevant instrument 13. In a case where this Schedule applies for the purposes of section 16A: ‘authorised course of action’ means any course of action amounting to deprivation of liberty which the order under section 16(2)(a) authorises; ‘relevant care or treatment’ means any care or treatment which: (a) comprises, or forms part of, the authorised course of action, or (b) is to be given in connection with the authorised course of action; ‘relevant instrument’ means the order under section 16(2)(a). 14. In a case where this Schedule applies for the purposes of paragraph 17 of Schedule A1 ‘authorised course of action’ means the accommodation of the relevant person in the relevant hospital or care home for the purpose of being given the relevant care or treatment; ‘relevant care or treatment’ has the same meaning as in Schedule A1 ‘relevant instrument’ means the standard authorisation under Schedule A1 15. (1) This paragraph applies where the question whether a person is ineligible to be deprived of liberty by this Act is relevant to either of these decisions: (a) whether or not to include particular provision (‘the proposed provision’) in an order under section 16(2)(a); (b) whether or not to give a standard authorisation under Schedule A1 (2) A reference in this Schedule to the authorised course of action or the relevant care or treatment is to be read as a reference to that thing as it would be if: (a) the proposed provision were included in the order, or (b) the standard authorisation were given. (3) A reference in this Schedule to the relevant instrument is to be read as follows: (a) where the relevant instrument is an order under section 16(2)(a): as a reference to the order as it would be if the proposed provision were included in it; (b) where the relevant instrument is a standard authorisation: as a reference to the standard authorisation as it would be if it were given. Expressions in paragraph 5 16. (1) These expressions have the meanings given: ‘donee’ means a donee of a lasting power of attorney granted by P; ‘mental health patient’ means a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder; ‘mental health treatment’ means the medical treatment for mental disorder referred to in the definition of ‘mental health patient’. (2) A decision of a donee or deputy is valid if it is made: (a) within the scope of his authority as donee or deputy, and (b) in accordance with Part 1 of this Act. Expressions with same meaning as in Mental Health Act 17. (1) ‘Hospital’ has the same meaning as in Part 2 of the Mental Health Act. (2) ‘Medical treatment’ has the same meaning as in the Mental Health Act. (3) ‘Mental disorder’ has the same meaning as in Schedule A1 (see paragraph 14).”

Application (a) section 16A, and (b) paragraph 17 of Schedule A1. (a) P falls within one of the cases set out in the second column of the following table, and (b) the corresponding entry in the third column of the table - or the provision, or one of the provisions, referred to in that entry - provides that he is ineligible. Status of P Determination of Eligibility Case A P is: (a) subject to the hospital treatment regime, and (b) detained in a hospital under that regime. P is ineligible. Case B P is: (a) subject to the hospital treatment regime, but (b) not detained in a hospital under that regime. See paragraphs 3 and 4. Case C P is subject to the community treatment regime. See paragraphs 3 and 4. Case D P is subject to the guardianship regime. See paragraphs 3 and 5. Case E P is— (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes. See paragraph 5. (2) P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes. (3) That includes any requirement as to where P is, or is not, to reside. (4) The relevant regime is the mental health regime to which P is subject. (2) P is ineligible if the relevant care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital. (2) P is ineligible if the following conditions are met. (3) The first condition is that the relevant instrument authorises P to be a mental health patient. (4) The second condition is that P objects: (a) to being a mental health patient, or (b) to being given some or all of the mental health treatment. (5) The third condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects. (6) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following: (a) P's behaviour; (b) P's wishes and feelings; (c) P's views, beliefs and values. (6) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them. Application Mental health regimes (a) the hospital treatment regime, (b) the community treatment regime, and (c) the guardianship regime. (a) a hospital treatment obligation under the relevant enactment, or (b) an obligation under another England and Wales enactment which has the same effect as a hospital treatment obligation. (2) But where P is subject to any such obligation, he is to be regarded as not subject to the hospital treatment regime during any period when he is subject to the community treatment regime. (3) A hospital treatment obligation is an application, order or direction of a kind listed in the first column of the following table. (4) In relation to a hospital treatment obligation, the relevant enactment is the enactment in the Mental Health Act which is referred to in the corresponding entry in the second column of the following table. Hospital treatment obligation Relevant enactment Application for admission for assessment Section 2 Application for admission for assessment Section 4 Application for admission for treatment Section 3 Order for remand to hospital Section 35 Order for remand to hospital Section 36 Hospital order Section 37 Interim hospital order Section 38 Order for detention in hospital Section 44 Hospital direction Section 45A Transfer direction Section 47 Transfer direction Section 48 Hospital order Section 51 (a) a community treatment order under section 17A of the Mental Health Act, or (b) an obligation under another England and Wales enactment which has the same effect as a community treatment order. (a) a guardianship application under section 7 of the Mental Health Act, (b) a guardianship order under section 37 of the Mental Health Act, or (c) an obligation under another England and Wales enactment which has the same effect as a guardianship application or guardianship order. (2) It does not matter if the enactment is in the Mental Health Act or not. (a) an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and (b) P could be detained in a hospital in pursuance of such an application, were one made. (2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act. (3) If the grounds in section 2(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given. (4) If the grounds in section 3(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given. (5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act. ‘authorised course of action’ means any course of action amounting to deprivation of liberty which the order under section 16(2)(a) authorises; ‘relevant care or treatment’ means any care or treatment which: (a) comprises, or forms part of, the authorised course of action, or (b) is to be given in connection with the authorised course of action; ‘relevant instrument’ means the order under section 16(2)(a). ‘authorised course of action’ means the accommodation of the relevant person in the relevant hospital or care home for the purpose of being given the relevant care or treatment; ‘relevant care or treatment’ has the same meaning as in Schedule A1 ‘relevant instrument’ means the standard authorisation under Schedule A1 (a) whether or not to include particular provision (‘the proposed provision’) in an order under section 16(2)(a); (b) whether or not to give a standard authorisation under Schedule A1 (2) A reference in this Schedule to the authorised course of action or the relevant care or treatment is to be read as a reference to that thing as it would be if: (a) the proposed provision were included in the order, or (b) the standard authorisation were given. (3) A reference in this Schedule to the relevant instrument is to be read as follows: (a) where the relevant instrument is an order under section 16(2)(a): as a reference to the order as it would be if the proposed provision were included in it; (b) where the relevant instrument is a standard authorisation: as a reference to the standard authorisation as it would be if it were given. ‘donee’ means a donee of a lasting power of attorney granted by P; ‘mental health patient’ means a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder; ‘mental health treatment’ means the medical treatment for mental disorder referred to in the definition of ‘mental health patient’. (2) A decision of a donee or deputy is valid if it is made: (a) within the scope of his authority as donee or deputy, and (b) in accordance with Part 1 of this Act. (2) ‘Medical treatment’ has the same meaning as in the Mental Health Act. (3) ‘Mental disorder’ has the same meaning as in Schedule A1 (see paragraph 14).”

Mental health regimes

[63]Thus, schedule 1A refers back to the Mental Health Act (“MHA”) for certain important definitions. “Medical treatment” is defined by section 145(1) of the MHA, as amended by the 2007 Act, to include “nursing, psychological intervention and specialist mental health care, habilitation and rehabilitation”; but this definition is also now subject to section 145(4), also added by the 2007 amendments, which provides that: “Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening, of the disorder or one or more of its symptoms or manifestations.” “Mental disorder” is also defined in schedule A1 of the MCA by reference to the MHA as meaning “any disorder or disability of the mind” (see section 145(1) and (2) of the MHA). It is also important to note at this point that, for patients detained under section 2 or 3 of the MHA, the consent of the patient is, by virtue of section 63 of that Act, not required for any medical treatment given to him for the mental disorder which he is suffering if given by or under the direction of the approved clinician in charge of the treatment.

[64]The skeleton arguments originally prepared for this hearing on behalf of the applicant Trust and the Official Solicitor made no reference to any restriction on the powers of the Court of Protection to make an order for the deprivation of Dr. A’s liberty so as to facilitate force feeding. In the course of the hearing on 30th and 31st January, however, I suggested to counsel that on one view Dr. A. seemed to fall within case E of Schedule 1A of the MCA and, if so, would by virtue of section 16A be ineligible for any order under the MCA that deprived him of his liberty. That suggestion was based on the decision of Charles J in GJ v. The Foundation Trust

[2009] EWHC 2972

who held inter alia that the words “could be made” in paragraph 12(1)(a) of schedule 1A should be interpreted as meaning whether, in the view of the decision maker - that is to say, in the case of an application for welfare order under section 16, the court - the criteria set by or the grounds in sections 2 or 3 of the MHA are met and, if an application was made under them, a hospital would detain P. In the light of the evidence suggesting that the criteria set by section 2 might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

[65]It was this point that led to the extensive reflection and consideration by the parties and their subsequent lengthy written submissions, which, in turn, led to my decision to list the matter for further legal argument, a decision prompted in part by the proposal in the submissions prepared on behalf of the Official Solicitor that Charles J’s interpretation of the phrase “could be made” in paragraph 12(1)(a) of Schedule 1A should not be followed. In the event, however, the decision by Dr. A’s clinicians on 14th March to place him under section 3 of the MHA obviated the need for that particular argument to be ventilated further, at least at this stage in these proceedings, since it had the effect of removing him from case E.

[66]The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.

[67]Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

[68]In an attempt to shed some light on this difficulty, junior counsel in this case, Miss Paterson and Miss Street, have, at my request, devoted long hours in the course of adjournments during the hearing to a perusal of Parliamentary material consisting, in particular, of reports of debates in Hansard and the report of the Joint Committee on Human Rights relating to the passage of the 2007 Act. It seemed to me that, given the ambiguity, obscurity and possible absurdity of the legislation, recourse to such material - if it consisted of clear statements from a Minister or other promoter of the bill - might be permissible under the rule in Pepper v. Hart

[1993] AC 593

. I mean no disrespect to Miss Paterson or Miss Street or their diligent efforts by recording that their labours were in vain. I was taken to several passages in the reports that were of, at best, marginal relevance to the issue; but, regrettably, they are of no real assistance. There is no statement within any of the Parliamentary material that is admissible under the rule in Pepper v. Hart.

[69]The Official Solicitor now suggests three solutions to the problem described above:(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction. I shall consider these options in turn.

Can the forcible feeding be carried out under the MHA?

[70]The Official Solicitor argues, first, that the necessary feeding and associated measures can be taken under the MHA because, on the facts of this case, the forcible feeding comes within the meaning of “medical treatment” under section 145 of the MHA and thus is included in the range of treatment that can be administered under section 63 of the MHA without Dr. A’s consent.

[71]The Official Solicitor cited two cases in which the phrase “medical treatment given to him for the mental disorder from which he is suffering” has been interpreted so as to include forcible feeding by nasogastric tube, namely B v. Croydon Health Authority [1995] (Fam) 133 and R v. Collins ex parte Brady

[2000] Lloyd’s Rep Med 355

. The Croydon case concerned a patient suffering from a psychopathic disorder, one of the symptoms of which was a compulsion to self-harm, and, as a result, she stopped eating and her weight fell to a dangerous level. It was held at first instance by Thorpe J (as he then was) and subsequently by the Court of Appeal that nasogastric feeding amounted to medical treatment since that term included a range of acts ancillary to the core treatment, including those which prevented the patient harming herself and alleviated the consequences of the disorder. Hoffmann LJ (as he then was) observed at page 139A in the Court of Appeal judgment:

“It would seem to me strange if a hospital could, without the patient's consent, give him treatment directed to alleviating a psychopathic disorder showing itself in suicidal tendencies, but not without such consent be able to treat the consequences of a suicide attempt.”

In Brady, the prisoner, Ian Brady, was on hunger strike following his move to a different ward in Ashworth Hospital. He argued that his refusal of food was unrelated to his medical disorder and was a rational decision by a competent person. The respondent hospital argued on the other hand that, whatever may be the intention of the applicant, his refusal of food was a symptom, manifestation or consequence of his mental personality disorder. The Judge, Maurice Kay J (as he then was) found for the respondent hospital stating at paragraph 44:

“On any view, and to a high degree of probability, section 63 was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

[72]Mr. Moon and Miss Street also cite the decision of Wall J (as he then was) in Tameside and Glossop Acute Services Trust v. CH

[1996] 1 FLR 762

which concerned a schizophrenic mother to be whom doctors concluded needed a caesarean section because of complications in her pregnancy, but who harboured the delusional belief that the medical advice given to her was malicious and harmful to the child. The court made a declaration under section 63 of the MHA authorising the caesarean section operation and all necessary ancillary measures, including reasonable restraint.

[73]The Official Solicitor submits that these cases taken together are authority for the proposition that the necessary feeding and associated measures in this case can be taken under the MHA. He submits that this interpretation of the MHA is reinforced by the amendments to section 145 introduced via the 2007 Act which expressly provides that medical treatment in relation to a mental disorder is to be construed as a reference to treatment, the purpose of which is to alleviate or prevent the worsening of the disorder of one or more of its symptoms or manifestations. He also draws attention to section 6 of the MHA 1983 Code of Practice (published in 2008) which provides inter alia at paragraph 6.5:

“Symptoms and manifestations include the way a disorder is experienced by the individual concerned and the way in which the disorder manifests itself in the persons thoughts, emotions, communications, behaviour and actions. But it should be remembered that not every thought or emotion or every aspect of the behaviour of a patient suffering from a mental disorder will be a manifestation of that disorder.”

[74]The applicant Trust does not accept that the necessary feeding and associated measures in this case can be taken under the MHA. In her witness statement, Dr. WJ, Dr. A’s treating psychiatrist, expressed the view that in this case forcible feeding was not treatment within the meaning of the MHA:

“The purpose of the section 3 admission is so we can administer appropriate psychotropic drugs via the nasogastric tube. We do not see food as treatment for his mental illness. The administration of food via the nasogastric tube has not made a difference to his underlying mental state and indeed his mood has deteriorated. The food is administered to prevent him from dying…In my view, it is extremely difficult to disentangle how much of his hunger strike is due to underlying depression or possible delusional disorder. It is important to note that, when he was previously treated with antipsychotics and there was a marked improvement in his mental state, there was still no change in his views regarding continuing with the hunger strike. At the moment it is helpful to separate out what we see as treatment for any possible mental health disorder (i.e. psychotropic medication) from medical treatment required to keep him alive.”

Dr. WJ also expressed concern about the consequences should an appeal against his detention under section 3 be successful.

[75]In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

[76]In her final submissions on behalf of the Trust, Miss Paterson informed me that there are real concerns about the extent to which section 63 of the MHA can be relied on to carry out treatment of physical conditions. If clinicians are in a position where a physical problem only incidentally connected to the mental health disorder could be treated under that section, there is, says Miss Paterson, a perceived risk that the number of patients under section may increase. Such a development would be therapeutically undesirable as doctors prefer, wherever possible, to treat patients informally rather than under section in the hope that a patient will engage with treatment if acting voluntary. Generally, Miss Paterson told me, there is anxiety about the absence of clarity in this area because it is something with which doctors have to grapple every day. In addition Miss Paterson reminds me that the remedies for a patient detained under section 3 of the MHA are either to challenge the section or to seek a judicial review of the proposed treatment. Each of these remedies is a blunt instrument compared to an application to the Court of Protection under the MCA or to the High Court under the inherent jurisdiction seeking an order in the patient’s best interests.

[77]In a further addendum written submission delivered after the hearing, Miss Paterson also cited the decision of the European Court in X v. Finland in which the forced administration of medication to a patient without any immediate judicial scrutiny, or any other remedy whereby a court was able to rule on the lawfulness including proportionality of the treatment, was an infringement of Article 8.

[78]Mr. Moon and Miss Street emphasise that the Official Solicitor recognises the importance of not extending the meaning of “medical treatment” too far so as to extend the deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA, that is to say, a deprivation of liberty in respect of treatment that is not properly aimed at alleviating the disorder or its symptoms or manifestations. They argued, however, that Dr. WJ’s view is based on too narrow an understanding of the phrase “medical treatment for the mental disorder from which A is suffering” in section 63. They submit that Dr. WJ has not taken sufficient account of the wider words of the amendments effected by the 2007 Act. The Official Solicitor submits that Dr. A. is delusional and his refusal to eat is a manifestation of his mental disorder. It is submitted that treatment which is intended to alleviate one of the manifestations of a mental disorder is medical treatment for the mental disorder, even if that treatment does not successfully make a difference to the patient’s underlying mental state. His inability to use or weigh information impacts directly upon his decision to accept nutrition and hydration. The Official Solicitor submits that the possible difficulties that may arise should Dr. A. successfully appeal against his section can only properly be considered if and when they arise.

[79]On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.

[80]I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case 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 to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.

[81]I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA. Can the forcible feeding be ordered under the MCA?

[82]The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.

[83]It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under

Article 2 of the European Convention

of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom

[1998] 29 EHRR 245

. In Savage v. South Essex Partnership NHS Foundation Trust

[2008] UKHL 74

[2009] AC 681

, the House of Lords held that:

“Where there was a real and immediate risk of a detained patient committing suicide, Article 2 imposed an operational duty on the medical authorities to do all that they could or that could reasonably be expected of them to prevent it.”

In Rabone v. the Pennine Care NHS Foundation Trust

[2012] UKSC 2

, the Supreme Court decided that the “operational duty” also extended to protect against the risk of suicide by informal psychiatric patients. The Official Solicitor now submits that the operational duty also exists to protect against the risk of death by starvation of a patient, such as Dr. A., who is currently in hospital, lacks capacity to decide whether to accept nutrition and hydration and whose best interests would be served by receiving nutrition and hydration by force if necessary.

[84]Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

It has been said by Lord Nicholls of Birkenhead in Re S (Care Order) (Implementation of Care Plan)

[2002] UKHL 10

[2002] 2 AC 291

at paragraph 37 that section 3 “is a powerful tool whose use is obligatory. It is not an optional canon of construction. Nor is its use dependent on the existence of ambiguity.” Furthermore, the court is a public authority for the purposes of the Human Rights Act (see section 6(3) of that Act). Under section 6(1):

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

It is therefore submitted that the consequence of these provisions in that this court is under a duty to interpret the MCA in a way that ensures that Dr. A’s rights under Article 2 are respected.

[85]As set above, the terms of section 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

The Official Solicitor submits that, in the light of the duty to interpret the MCA in a way that ensures that Dr. A’s rights under Article 2 are respected, section 16A(1) should be read narrowly so as not to prohibit the inclusion of a welfare order or a provision which authorises the person to be deprived of his liberty where such a provision is necessary to uphold the person’s right to life under Article 2. Alternatively, the Official Solicitor submits that the following words should be read in at the end of section 16A(1):

“save where such provision is necessary to uphold the person’s right to life under Article 2 of the European Convention on Human Rights”

. He submits that a process of reading down or reading in is permissible as it does not go against the grain or thrust of the legislation, which was to fill the Bournewood gap and provide proper safeguards for mentally incapacitated adults who fell outside the scope of the MHA.

[86]On this point the Official Solicitor’s arguments are supported by the applicant Trust. Despite that unanimity, however, I am unable to accept their submissions at this stage, for the following reasons.

[87]The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment: “Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis] In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

[88]I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section. Can forcible feeding be authorised under the inherent jurisdiction?

[89]For centuries the courts exercised jurisdiction derived from the Crown as parens patriae in respect of incapacitated adults. That jurisdiction was abolished following the implementation of the Mental Health Act 1959. At common law, however, the High Court retains jurisdiction in respect of incapacitated adults and in particular to give or withhold consent for medical treatment on the grounds that it is in the best interests of the patient: see Re F (Mental Patient: Sterilisation)

[1992] AC 1

(e) ) in a passage approved by the House of Lords on appeal:

“The common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process - that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.”

The extent and development of this jurisdiction over the ensuing fifteen years is described and analysed by Munby J in Re SA (Vulnerable Adult)

[2005] EWHC 2942 (Fam)

[2006] 1 FLR 867

. At paragraph 37, he summarised the position thus:

“It is now clear, in my judgment, that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court.”

[90]Although the MCA 2005 was intended to provide a comprehensive code for the care of mentally incapacitated adults, it is now firmly established that the inherent jurisdiction has survived the arrival of that statute. So much is clear from the Court of Appeal decision in Westminster City Council v. C

[2008] EWCA Civ. 198

, [2009] (Fam) 11 in which Wall LJ observed at paragraph 54:

“I am in no doubt at all that the inherent jurisdiction of the High Court to protect the welfare of incapable adults, confirmed in this court in Re F (Adult: Court's Jurisdictions) [2001] Fam 38 survives, albeit that it is now reinforced by the provisions of the Mental Capacity Act 2005.”

Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority

[2012] EWCA Civ. 253

in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for - as well as no need for - invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

[91]The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the 'great safety net' described by Lord Donaldson.”

[92]The case of DL concerned an adult who was vulnerable as opposed to incapacitated. It might conceivably be argued that the inherent jurisdiction should now be confined to such persons, since the MCA was designed to provide a comprehensive code for mentally incapacitated adults. The decision in Westminster City Council v. C (supra) is, however, authority for the proposition that the inherent jurisdiction survives for the benefit of incapacitated as well as vulnerable persons and the rationale was expressed eloquently by Parker J in XCC v. AA

[2012] EWHC 2183 (COP)

at paragraph 54:

“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne.”

[93]In those circumstances, Mr. Moon and Miss Street submit that this court has the power under its inherent jurisdiction to make the orders sought on behalf of Dr. A. and are supported in this regard by the applicant Trust. The reasons identified by Mr. Moon and Miss Street are as follows:(1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision: (a) “The court” means the Court of Protection; and (b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection. I agree with those submissions.

[94]Under its inherent jurisdiction, the High Court can make an order authorising a deprivation of liberty but such an order must comply with the provisions of Article 5: per Munby J in Re PS (Incapacitated or Vulnerable Adult)

[2007] EWHC 623 (Fam)

). In particular, any order authorising detention must contain provision for an adequate review at reasonable intervals (see paragraph 23). The reason for this requirement was explained by Munby J in Re BJ (Incapacitated Adult)

[2009] EWHC 3310 (Fam)

at paragraph 10:

“…regular reviews by the court are not merely desirable, not merely a matter of good practice; they go, as both the Strasbourg jurisprudence and the domestic case-law make clear, to the very legality of what is being done.”

[95]Finally, as stated above, the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.

[96]In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment(a) is outside the meaning of medical treatment of the MHA 1983 and

(b) involves the deprivation of a patient’s liberty.

[97]Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

[98]I shall discuss the precise terms of the declaration and order with counsel at the conclusion of this judgment; but that order will provide for a review by this court, which, subject to hearing further submissions, I propose to list in about four months’ time in July of this year. Postscript (23rd July 2013) 110. On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve.He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing. _______________