Nottinghamshire Healthcare NHS Foundation Trust v MC [2025] EWHC 920 (Fam)

[2025] EWHC 920 (Fam)Case No FD24F00084
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
AND IN THE MATTER OF THE INHERENT
JURISDICTION OF THE
HIGH COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 April 2025
Before
MRS JUSTICE MORGAN
Between
NOTTINGHAMSHIRE HEALTHCARE NHS FOUNDATION TRUSTApplicantMCRespondentSHEFFIELD TEACHING HOSPITALS NHS FOUNDATION TRUSTDONCASTER AND BASSET LAW TEACHING HOSPITALS NHS FOUNDATION TRUSTInterested Parties
Miss Emma Sutton KC (instructed by Browne Jacobson) for TrustMiss Arianna Kelly (instructed by MJC Law) for MCMiss Francesca Gardner (instructed by DAC Beachcroft) for Interested PartiesHearing Hearing date: 25 March 2025
Approved Judgment.............................MRS JUSTICE MORGANThis judgment was delivered in public but a reporting restrictions order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the parties must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
[1]By an application dated 27th November 2024, Nottinghamshire Healthcare NHS Foundation Trust (hereinafter ‘the Trust’) applies under the inherent jurisdiction for declaratory relief concerning the medical care and treatment of the respondent. The respondent, is a 53 year old man. The Trust seek a declaration under the inherent jurisdiction that the decision of MC's responsible clinician, Dr A, not to impose treatment pursuant to section 63 of the Mental Health Act 1983 (“MHA”), without MC's consent, is lawful, even if that leads to suboptimal treatment, a continued decline in his physical health, and a risk of death. This hearing has been held in public, subject to a reporting restrictions order dated 10 December 2024 and later amended. Time did not permit delivery of a judgment on the same day.[2]The applicant Trust has been represented by Ms Sutton KC, MC by Ms Kelly and the interested parties by Ms Gardner. I express my gratitude to Counsel for the skill and care with which each has advanced their respective case and for the very high quality of the detailed skeleton arguments submitted in advance of the hearing from which the arguments have been developed orally.[3]On 20th January 2025 by an order listing the matter for a final hearing, 3 issues were identified for determination i) Whether treatment for MC's physical health needs is medical treatment under section 63 MHA; his refusal for such treatment being said to be a manifestation of his severe personality disorder ii) Whether MC has capacity to make decisions regarding his physical health needs within the meaning of the Mental Capacity Act 2005 (MCA) and iii) (in either event) Whether it is lawful and/or in MC's best interests for his treating clinicians not to use force to provide MC with medical treatment for his physical health needs (including through physical, chemical or mechanical restraint), even if this leads to MC's premature death.[4]MC has been detained under section 37/41 MHA in Rampton High Security Hospital (“Rampton”), operated by the Trust, since January 2005. This means that MC is detained at Rampton pursuant to a hospital order made by the Crown Court for treatment for his mental disorder as an alternative to prison, and that it was also considered necessary to make a restriction order to protect the public from serious harm. MC has engaged in very little risk reduction work due to the manifestations of his mental disorder. MC is a “restricted patient” so cannot be discharged by his responsible clinician without the consent of the Secretary of State for Justice. MC has a significant forensic history. Rampton patients meet the criteria of posing a grave danger to themselves or the public. MC has spent the greater part of his adult life in custody and/or detained. The fact that he is so detained has a relevance to the medication he may (in fact may not) have access to and keep/administer for himself in the way that a capacitous adult might otherwise have.

Background

[5]MC has suffered from type 1 (insulin dependent) diabetes for many years. For much of this time his compliance with treatment has been poor, and during his time in custody, he has deliberately mismanaged his diabetes.[6]As a result of his mismanagement, he now has serious complications associated with poorly controlled diabetes, severe hypertension and peripheral vascular disease. He is also non-compliant with blood tests which are necessary to monitor blood glucose control for people with diabetes (HbA1c test), and with blood glucose testing which is necessary to keep daily blood glucose levels within a safe range and avoid hypo or hyperglycaemic episodes. Optimum blood glucose control reduces the risk of development of complications. He does not refuse all treatment. He is for example willing to take insulin in the evening, if not always then at least most of the time, but not to have his blood sugar levels checked immediately prior to the administration of that insulin by a healthcare worker on the ward.[7]In relation to his earlier treatment, it is significant that MC required, in January 2024, a below-the-knee amputation which was secondary to gangrene and sepsis. This arose because of his poor compliance with diabetes treatment and management. He now requires the use of a wheelchair as a consequence. Dr Nabais (consultant interventional cardiologist, Salisbury NHS Foundation Trust), instructed by the Trust to provide a second opinion, describes MC as now having “end stage complications of diabetes”. MC has developed micro-vascular complications of diabetes, including diabetic retinopathy (damage to the back of the eye), diabetic neuropathy (nerve damage) and diabetic nephropathy (chronic loss of kidney function).[8]The treatment plan for MC's multiple serious complications, connected with his poorly controlled diabetes, should be: Treatment with oral antibiotics if further infection in his foot occurs; Blood testing (HbA1c test) every 3-6 months to monitor blood glucose; Monthly bloods to assess any kidney damage, if improved, reduce to 6 monthly; Regular blood glucose monitoring (the MDT attempted to do this via a libre device which MC accepted, but then would not allow staff to scan to obtain readings); Long-acting insulin; Short acting insulin as required; Oral medication to control blood pressure; Regular dressings and assessment of his foot wound.[9]MC refuses to engage with the above plan. He refuses most of his daily insulin, refuses the necessary associated testing (blood glucose and blood testing), and refuses to take the recommended prescribed medication for his (end) stage 3 hypertension.[10]The Trust’s position is that MC's refusal to accept medical treatment for his physical health, which for the purposes of this application embraces his type 1 diabetes and associated end stage symptoms, severe hypertension and peripheral vascular disease and infected left foot, is a manifestation of his severe personality disorder. The treatment for those identified physical health conditions, the Trust contends, is medical treatment within the scope of section 63 MHA and that from that it follows that his consent is not required for medical treatment to be given pursuant to section 63 MHA. Since MC does not wish to receive treatment, he would have to be subject to restraint and administration of treatment forced upon him which in the circumstances of this case would also carry with it the prospect of exacerbating the consequences of some of his physical health conditions – such as, for example, a marked further rise in his already high blood pressure – with adverse outcomes. The Trust therefore seeks a declaration that it is lawful for MC's treating clinicians not to use force to provide him with medical treatment for his physical health needs even if this leads to adverse health consequences including MC's early death.[11]On behalf of MC, it is also argued that it is not in his interests for medical treatment for his physical conditions to be forced upon him or for restraint used to deliver such treatment. It appears from the document filed on his behalf that there is an acceptance of the evidence filed on behalf of the Trust that any attempt to use restraint would put him at severe and immediate risk of harm. Since he is capacitous to conduct these proceedings and not represented through the official solicitor, it is further contended, on his instructions, that he does not have a relevant mental illness - he has long disputed the diagnosis of severe personality disorder; that he wishes to make his own decisions about treatment of long-term physical health conditions, and that the treatment proposed cannot properly be said to be treatment that will treat symptoms or manifestations of a mental disorder. So far as the intended treatment set out at paragraph 8 above, it has been argued before me, and set out in detail in writing, that all of that which is listed is directed at treatment for his type 1 diabetes and does not relate to treatment for a manifestation of his mental disorder. It follows, on MC's case, that the medical treatment contemplated does not fall within section 63. If I accept that, it then follows that the declaration sought that as to the lawfulness of not administering treatment is inapposite. If on the other hand I am against the primary position that the treatment does not fall within section 63, MC invites me to make the declaration sought by the Trust since that is consistent with the overarching outcome he seeks i.e. that treatment will not be forced upon him.[12]The interested parties described themselves as ‘neutral’ on the substantive issue but were keen, in the event that there were to be any declaratory relief for the Trust, to have the benefit of the same relief.[13]The subject matter of this application does not relate to treatment which is immediately necessary to save MC's life. If urgent treatment is immediately necessary to save MC's life, MC will be treated as would be the case for any other patient. It will be for the relevant clinicians, at the time the need arises to exercise their clinical judgment, to decide what the available treatment option(s) are , and whether restraint (including through physical, chemical or mechanical restraint), is necessary to provide life sustaining treatment to him and for such treatment to be provided under Part 4 of the MHA under the direction of MC's responsible clinician. There is no area of disagreement between the parties as to this and no issue taken with it on MC's behalf. It is notable that MC has said both that he does not want to die and that in an emergency situation he would want to receive treatment to save his life.[14]At this hearing I have heard evidence from Dr B, consultant forensic psychiatrist, who was instructed to give an independent assessment of MC's capacity to make informed decisions on health and treatment issues and Dr A, consultant forensic psychiatrist, who is MC's responsible clinician at Rampton. Each of them had provided written evidence which I had read in advance of the hearing. As well as the oral evidence from those two witnesses, which it will be convenient to consider elsewhere in this judgment, there was a large volume of documentary material which included a Report by Prof Handran Soran FRCP Consultant Physician and Endocrinologist employed by Manchester University NHS Foundation Trust dated November 2024, a Report by Dr Sergio Nabais MRCP Consultant Interventional Cardiologist date December 2024 both of whom were instructed by the Trust prior to the institution of proceedings to provide second opinions. Dr C who has responsibility for his physical health conditions at Rampton, had drawn together an update on MC's three main physical health conditions under consideration by the court. I had also MC's own witness statements of evidence dated December 2024 and February 2025. He had been explicit that he neither wished to attend (remotely) at the hearing nor to give oral evidence.[15]It is neither necessary nor would it be practicable to replicate in this judgment all of the evidence which I have heard and read at this hearing. Rather I will make reference to that which has influenced my thinking in arriving at the conclusions I have reached. I have read carefully and found illuminating and informative that which I have received in written form from all of those who have in their differing spheres provided health care to MC. I took care to return to and to read again following the oral evidence and submissions MC's own written statements.[16]From all that I have heard and read, it is clear that MC's health position has continued gradually to decline. In November 2024 he developed an infected diabetic left foot with cellulitis. Within the evidence is contained the view of the vascular surgeon at Sheffield Teaching Hospitals (who assessed MC at Northern General Hospital) that MC was at high risk of sepsis arising from of his uncontrolled diabetes and high blood pressure. The discharge summary from the vascular surgeon includes reports of deliberate interference by MC with the healing process of the foot, by placing the foot in faeces. I bear in mind that I have not heard evidence about that aspect which MC does not accept. His disinclination to cooperate with treatment in relation to the diabetic foot within the context of i) having lost already one leg, ii) understanding (as I accept on the evidence he does) the consequences of not complying and iii) his explicit statement that he does not want to die, underscores the complexity of the situation from a psychiatric perspective. The more so, given the unanimous opinion from those qualified to give it, that his actions are not actions of intentional self-harm.[17]His vascular surgeon considered that with persistent inadequate metabolic control of his diabetes, MC's life expectancy would be another 1 or 2 years. Should he develop sepsis, amputation of the remaining leg would be required, and which posed a risk of death. Follow up by the diabetic team was indicated “to ensure he was compliant with his diabetes medication for proper glucose control”. MC is not currently in a critical state but remains non-compliant with treatment assessed by his clinicians as necessary for his physical health. In those circumstances there is a consensus of medical view that the ongoing risk of life-threatening complications remains and is increasing.[18]Professor Soran from whom, in contemplation of this application, a second opinion was sought by the Trust, in November 2024, regarded MC's case as “very challenging”. Within his report he provided a non-exhaustive list of the risk factors which arise from MC's mismanagement of his physical health issues associated with his advanced and end stage diabetes. The most significant he identified as:
“Hypoglycaemia and possible brain damage; Severe hyperglycaemia, diabetes ketoacidosis, and possible mortality; A potential risk of hypoglycaemia if MC receives his fast-acting insulin and refuses to eat; and risk of uncontrolled blood pressure and its complications including stroke and acute myocardial infarction”
. Those significant aspects were to be seen within the context of other complications of uncontrolled diabetes and hypertension, including the increased risk of atherosclerotic cardiovascular disease, progression of MC's microvascular complications (retinopathy, nephropathy and neuropathy), and increased risk of infections.[19]Dr Nabais who as set out above had given a second opinion in December 2024 concludes in his written evidence‘As a result of his non-compliance and uncontrolled hypertension, he is at high risk of future cardiovascular events and hypertensive complications, including myocardial infarction, stroke, heart failure, kidney failure, intracerebral haemorrhage, acute heart failure with pulmonary oedema, acute kidney injury, hypertensive encephalopathy, and aortic dissection’. In contemplation of treatment against MC's wishes under the auspices of section 63 MHA, his clinical view is that this would be inappropriate and would carry with it significant risk, expressed in these terms: “the use of restraint to enforce anti-hypertensive medication could worsen his high blood pressure. This would be associated with a disadvantageous risk of acute complications, including stroke, heart attack, aortic dissection, or heart failure. From that point of view, restraint would be counter-productive".[20]In reaching that view, Dr Nabais was clear that he had been informed by the medical records from which it could be seen that past experience indicated that MC would be likely to resist strongly and that accordingly high levels of physical and mechanical restraint would be necessary. The process of restraint (again based on past experience) would be commensurately stressful and distressing for him. It was to be predicted that MC's anger would directed at the clinical team and would likely result in yet further disengagement from treatment and breakdown in the already fragile therapeutic relationship.

Legal Framework

[21]There has not been at this hearing active dispute between counsel as to the applicable legal framework. That which was set out on behalf of the applicant and on which I draw for much of that which follows was undisputed. There has been something approaching a dispute as to whether it is necessary in the circumstances of this particular case for me to give detailed consideration to the European jurisprudence by reference to which context Ms Kelly positions some of her arguments. Ms Sutton submitted that it was unnecessary for the court to undertake a separate analysis of the European jurisprudence where there was no identified difference in approach. I have considered with care those authorities to which counsel have directed my attention in their written and oral submissions.

Overarching Principles

[22]There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it. As set out by Lord Brandon in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1: “a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force ... without their consent’, and if he were to do so, he would commit the tort of trespass to the person”.[23]As Lord Goff 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”.[24]The right to self-determination was expressed succinctly by Judge LJ in St George's Healthcare NHS Trust v S [1999] (Fam) 26 at page 43G that: “Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it”.[25]This right applies equally to detained citizens. In Home Secretary v Robb [1995] 1 FLR 412 Thorpe J (as he then was) explained that:
“… every person's body is inviolate and proof against any form of physical molestation …. The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner”
.

Treatment Without Consent

[26]As summarised by Mostyn J in Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317 (“Nottinghamshire”) at §13, there are three circumstances where adults may have treatment or other measures imposed on them without their consent:(1) Adults lacking capacity who pursue a self-destructive course may have treatment forced upon them in their best interests pursuant to the terms of the Mental Capacity Act 2005;(2) Similarly, adults who have capacity but who can be categorised as ‘vulnerable’ and who as a consequence of their vulnerability have been robbed of the ability to give a true consent to a certain course of action, may also have treatment or other measures imposed on them in their best interests pursuant to the inherent jurisdiction of the High Court (see DL v A Local Authority [2012] 3 WLR 1439, and Re SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867);(3) Under the MHA a detained patient may have treatment imposed on him pursuant to section 63 which provides, so far as is relevant to this case: “The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, … if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.[27]Section 63 MHA must be read in conjunction with section 145 MHA as follows: (1) “medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below); (4) 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[28]Counsel specifically referred me to Guidance outside the case law. First The MHA Code of Practice (published in 2015), prepared in accordance with section 118 MHA by the Secretary of State for Health, at §23.5 where it is set out that:
“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 person’s thoughts, emotions, communication, behaviour and actions. It should be remembered that not every thought or emotion or every aspect of the behaviour, of a patient suffering from mental disorder will be a manifestation of that disorder”
(emphasis added)[29]Second, in the latest edition of the Mental Health Act Manual (27th Edition), at §1-849, Professor Richard Jones explains that:
“If a patient’s refusal to pay attention to his personal hygiene or to be treated for a physical condition is assessed as being a manifestation or symptom of his mental disorder, the patient can be washed and/or treated under the authority of the Croydon case as both nursing and specialist care come within the definition of ‘medical treatment’ in s.145(1)”
[30]In R (on the application of B) v Ashworth Hospital Authority [2005] UKHL 20 it was held by the House of Lords (Lady Hale at §29), that section 63 MHA authorised a patient to be treated for any mental disorder from which he was suffering, irrespective of whether this fell within the form of disorder from which he was classified as suffering in the application, order or direction justifying his detention.

Section 63 MHA – Procedure

[31]In Nottinghamshire, Mostyn J emphasised the following:
“[18] A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review: see R (on the application of B) v Haddock (Responsible Medical Officer) [2006] MHLR 306. Paras 13 and 14 of that decision make clear that convention rights will be in play and therefore a "full merits review" must be undertaken on the evidence, with the court making the decision de novo, but placing considerable weight on the initial decision made under section 63 by the approved clinician in charge of the treatment. [19] But a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged. As is well-known this protects the right to life. It is the most fundamental of the convention rights. Countless authorities have emphasised the imperative duty on public authorities to give effect to this right where detained persons are concerned. So if the approved clinician in charge of the treatment decides not to impose potentially life-saving treatment one can see the important need for judicial scrutiny to determine whether the patient has with a full awareness of the implications elected to opt-out of the right to life granted to him by Article 2. And one would expect, as has happened here, that a second medical opinion would be commissioned concerning the approved clinician's decision. [21] In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a "full merits review" of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one. [26] What are the principles the court should apply where it conducts a full merits review on an application for declaratory relief in circumstances where a decision has been made not to impose potentially lifesaving treatment under s63? Obviously the expressed wishes of the patient will be highly relevant. If there is an advance decision in place under sections 24 and 26 of the MCA then this will weigh most heavily in the scales. The Hippocratic duty to seek to save life, or the benign but paternalistic view that it is in someone's best interests to remain alive must all surely be subservient to the right to sovereignty over your own body. Beyond this, considerations such as whether the treatment would be futile will no doubt be relevant; for example, if the repair of a laceration would inevitably be followed by a new one or if the patient was suffering from another unrelated terminal disease”
(emphasis added). “Medical treatment given to him for the mental disorder from which he is suffering” (per section 63 MHA)[32]The leading case on the meaning of this phrase is B v Croydon Health Authority [1995] 1 ALL ER 683 (“Croydon”), where it was held by the Court of Appeal that the feeding by nasogastric tube of a patient who was suffering from borderline personality disorder was treatment which fell within the scope of section 63 MHA because such treatment was aimed at treating a symptom of the disorder - a compulsion to self-harm.[33]Croydon widened the ambit of section 63 MHA somewhat from the literal words, and with a focus that treatment for a physical disorder must be connected with a pre-existing mental disorder. In St George’s Healthcare NHS Trust v S [1999] (Fam) 26, Judge LJ explained at page 52A that Croydon is authority for the proposition that section 63 MHA “may apply to the treatment of any condition which is integral to the mental disorder” (emphasis added).[34]Thereafter, in R v Collins ex p ISB [2000] Lloyd's Rep. Med. 355, (“Re Collins”), Mr Justice Maurice Kay was considering an application for judicial review by Ian Brady, challenging a decision by the clinicians at Ashworth Hospital to force feed him. Mr Brady had been diagnosed as having a psychopathic disorder and had decided to refuse food in part as a protest against events in Ashworth. The Judge's conclusions at §44 were that:
“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”
(emphasis added)[35]In Re JK v A Local Health Board [2019] EWHC 67 (Fam), in considering whether force feeding of a detained patient fell within section 63 MHA, Lieven J held that: “[72] ….. with a condition such as autism which is a fundamental part of JK's personality, it is exceptionally difficult to see how any decision making is not a manifestation of that disorder. I also accept that it is possible that many people faced with JK's situation would feel despair and potentially be suicidal. However, I do not think the task for me is to try to compare JK's response to his situation with that of a hypothetical person without autism. It is rather, to try to analyse the degree to which JK's own response relates to his condition, and the way his mind works because of that condition. [73] In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s.63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder”.[36]In the circumstances of MC's case, the Trust has submitted that it may be useful to consider the question of the manifestation of MC's severe personality disorder in a similar way to that in which Lieven J approached the question of JK’s autism.[37]In A Healthcare & B NHS Trust v CC [2020] EWHC 574 (Fam) (“Re CC”), a case where dialysis treatment was found to be treatment for a manifestation of the patient’s mental disorder within section 63 MHA, Lieven J, at §56(i), explained that:
“The physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC's refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983”
(emphasis added).[38]I recognise of course that as I consider the question of MC's approach to self-care for his physical complaints, there is a tension between the view expressed by Lieven J in Re CC as to the prospects of how a patient might approach that if not mentally ill, and the recognition that within the MCA 2005 ‘capacity’ embraces the making of unwise decisions. For me, in the particularly difficult circumstances of this case, which MC's responsible clinician has characterised as finely balanced, that tension has served to underscore the considerable importance of the expert psychiatric evidence.[39]Ms Kelly makes in this case the well-pitched point that appellate authority on the scope of section 63 MHA is limited, and that recent cases are overwhelmingly persuasive rather than binding authority. I agree and accept that. Whilst I have had the benefit of Ms Kelly’s detailed recitation of section 63 MHA case law and what she submits is the modern developing landscape of the European jurisprudence within which s63 falls to be considered, I have not in this case found it helpful or necessary to venture through that landscape at length. Ultimately I accept Ms Kelly’s own submission on the point: that there does not emerge a clear picture from the jurisprudence, and it demonstrates the fairly fact-specific nature of the determination to be made.

Discussion and Conclusions

[40]I accept, as have the parties, the evidence as to capacity. In distinction to many of the authorities to which counsel have referred me, the issue of whether MC has capacity to litigate and capacity to make decisions about his treatment has not been in issue in this case. Ms Kelly nevertheless asked both witnesses who gave evidence a number of questions about capacity. Dr B in her oral evidence was astute to highlight the fact that the decisions MC makes about his health and treatment are what she called ‘unwise’ but it was her firm view, as is the view of his responsible clinician, that he has the capacity to make them. The ‘unwise’ decision and its inconsequence as an indicator of capacity has, of course, been firmly established by section 1(4) MCA 2005.[41]I am satisfied, for the avoidance of doubt, that MC has capacity in both domains.[42]At the heart of the argument before me has been the question of whether the medical treatment for MC's physical health needs is medical treatment under section 63 MCA. Whilst I, naturally acknowledge that Ms Kelly is right to submit that Mrs Justice Lieven’s decision in Re JK, on which the Trust places some reliance, is not binding on me, I may nevertheless, and in the circumstances of this case I do, find myself in agreement with aspects of her reasoning. Just as Lieven J did, I similarly find myself, in this case, heavily reliant on the medical evidence, notably that which comes from the psychiatric disciplines.[43]Dr B, from the perspective of her role in the case a clinician offering an expert opinion to the court, arrived in her report at the following conclusion “[MC's] inconsistent engagement with treatment for his physical health conditions is symptomatic of his mental disorder, namely personality disorder. Specifically traits of tendency to conflict with others, mistrust of others, tendency to bear grudges, suspiciousness and a pervasive tendency to distort the advice and opinions of others, in this case professionals, as hostile or contemptuous”. She continued from this to reason that “Since [MC's] inconsistent engagement with recommended treatment is due to mental disorder, medical treatment for these serious conditions can be given without his consent under Section 63 MHA 1983”.[44]She did not depart from this expert opinion when cross examined. Ms Kelly submits, and I accept, that there was greater contextual nuance surrounding that unshaken opinion as Dr B explained how she had arrived at that conclusion. Both Dr B and Dr A were asked questions in which they were invited to consider the position as it might be, were MC to be someone without a severe personality disorder and living out in the community, managing and making choices for his own administration of medication. Without the severe personality disorder, even if in prison, because of his offending, he would often be likely to manage his own medication. It was put to the witnesses that it is only really because he is in Rampton, and because of the rules which that institution has surrounding its residents and medication that the issue arises. Both Dr B and Dr A struggled to contemplate the notion of the hypothetical MC unaffected by severe personality disorder. Dr B in trying to provide a response in that context found herself in the position that it was not something that for her had meaning since it would be not MC, but an entirely different person that she was being invited to consider. It does not seem to me right to overlook or to understate the fact that the reason that MC is eligible to be detained in Rampton at all, is by reason of his severe personality disorder. I accept the medical evidence that that is a mental disorder within the meaning of section 1(2) MHA. To the extent that Ms Kelly relies on MC's own evidence (and his instructions to her) that he does not have a personality disorder, I reject that. I note that the issue of the personality disorder is one which has been considered and reviewed throughout his stay in Rampton and has been independently considered by the Mental Health Review Tribunal. I have considered whether the prospect (and it is on the evidence no more than that) of a possible future move to a medium secure unit should cause me to reach any different view. It does not.[45]Dr B certainly accepted the proposition that the fact control was something that assumed prominence in MC's thinking may be linked to the fact that there are so few opportunities for him to have control as he was detained in a secure unit. She was however of the view that it was inextricably linked with his severe personality disorder. Pressed by Ms Kelly she did not accept that the conditions for which it would be proposed to treat MC are not also in consequence of his mental health disorder. She was prepared to agree that a diagnosis of type 1 diabetes might often be made in childhood and was not in and of itself a manifestation of MC's mental disorder, however her evidence was that the progression of the symptoms to the extent that they had and now presented as serious diabetic complications, set out in the evidence of those charged with care and treatment of his physical health, was such a manifestation. Her professional view in that respect remained notwithstanding her acceptance that some of them – for example the retinal issues - might have come about in a patient with type 1 diabetes unaffected by personality disorder.[46]I agree that it may be, that MC's approach to health care includes elements of a strong wish to control in an environment where the opportunity to exert control is markedly diminished (inevitably so, the environment being a ward in a high secure institution populated by those with severe personality disorders). I accept nevertheless Dr B’s evidence that the strong wish to control has its roots in his severe personality disorder. The severe personality disorder, as Dr B’s evidence so helpfully explained, is in effect shorthand, which gathers into it the features making up the condition of for example his paranoia, distrust and confrontational functioning. This manifests itself in an approach to health care which is not intentional self-harm but prioritises in decision making those features in which feed into his overwhelming desire to have and exert control eclipsing those which would lead to him having better physical health.[47]Dr A who is MC's responsible clinician impressed me as a thoughtful and careful witness. MC had steadfastly refused to speak to her and she told me that in fact had been prepared to do so only twice during the time she had had responsibility for him. She was at pains to explain that within the context of the unusual community of the ward in this particular facility, that it was not so strange as it might otherwise be, to have so limited an experience of personal interaction with a patient. She went on to say that it was important to factor in that in her role, personal day to day involvement was something which was limited by the need to be able to stand back and take objective treatment decisions. Although she did not say so in so many words, the impression I formed from her evidence is that even within the context of the discipline of forensic psychiatry, it requires a particular degree of skill, expertise and understanding to work effectively on wards such as the one in which MC is detained in Rampton. That skill includes finding ways to work with patients whose mental health and personality profiles are especially challenging and disruptive of the more usual therapeutic relationship. I attach a good deal of weight to her evidence. Dr A was asked to reflect on whether the prospect of forced treatment (and therefore the declaration sought) in reality arose at all, since MC does not refuse all treatment. The example she was taken to was that he is compliant with having his evening insulin dose. That did not, in Dr A’s view alter her view since, in agreeing to the insulin, MC was not in reality complying with the treatment as he refused to cooperate with the testing of the blood sugar level ordinarily undertaken as a precursor. It was an illustration, she explained, of why the declaration was in her view necessary. In a most striking response Dr A said “I worry about a situation where a nurse gives him insulin in the evening in those circumstances and he is hypoglycaemic overnight and dies. The coroner will ask the nurse if they gave him insulin and then will ask did you check his blood sugar level before you gave it”. Dr A was at pains to point out that that illustration was not one which she intended defensively, and I did not regard it as such. It does, however, go some way in explaining how, in circumstances where a capacitous individual does not wish to have treatment imposed against their will, and a Trust does not wish to impose such treatment against their will, that seemingly uncontentious state of affairs has nonetheless required a contested application before this court.[48]I agree with Dr A that this is a finely balanced case. It is one which I have reached decisions in the particular fact-specific circumstances of MC's situation. In common with the two most impressive medical professionals who gave oral evidence, I have not found it helpful to seek to consider how decisions might or might not be made differently were MC's situation to be wholly factually different. I accept that on the psychiatric evidence called and properly tested before me, that the treatment contemplated falls within section 63 MHA.[49]It follows from that determination that I must move on to consider the declaration sought that it is lawful for MC's treating clinicians not to use force to provide him with medical treatment for his physical health needs. As indicated by Ms Kelly, if I am persuaded as to the Trust’s case on section 63 MHA, MC is supportive of the declaration, since it is consistent with his position that treatment should not be forced upon him. I am satisfied that it is right to make the declaration sought.[50]I will accordingly make the declarations sought by the applicant Trust and will invite Counsel to submit a final order and amended reporting restrictions order.

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