Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF [2026] EWHC 1621 (Fam)

[2026] EWHC 1621 (Fam)Case No FD26P00377
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 June 2026
Before
MRS JUSTICE THEIS DBE
Between
Cumbria, Northumberland, Tyne and Wear NHS Foundation TrustApplicantsX NHS Foundation TrustApplicantQFRespondent
Claire Watson KC (instructed by DAC Beachcroft LLP) for ApplicantsSophia Roper KC (instructed by the Official Solicitor) for RespondentHearing Hearing date: 26 June 2026Judgment date: 29 June 2026
Approved Judgment.............................This judgment was delivered in public but a Reporting Restrictions Order dated 29 June 2026 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 QF 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.Mrs Justice TheisIntroduction
[1]The court is concerned with a N208 application dated 12 June 2026 under Part 8 Civil Procedure Rules 1998 (CPR) by two NHS Trusts for declarations under the inherent jurisdiction concerning QF, a 29 year old woman who is detained in a hospital under s3 Mental Health Act 1983 (‘MHA’). The first NHS Trust is responsible for QF’s psychiatric care at the hospital and the second NHS Trust is responsible for providing physical healthcare and treatment to QF.[2]QF is the respondent to the application through her litigation friend, the Official Solicitor. It is agreed that QF lacks capacity to conduct these proceedings. It is also agreed that QF lacks capacity to make the decision regarding the medical treatment in question, namely a blood transfusion under general anaesthetic due to chronic anaemia. QF objects to the proposed medical treatment.[3]When the NHS Trusts made their application on 12 June 2026 they sought the following declarations:(1) the decision to delay the imposition of treatment (namely a blood transfusion under general anaesthesia) pursuant to s.63 Mental Health Act (“MHA”) is lawful, notwithstanding the risks to [QF’s] physical health and the risk of death; and(2) the decision to impose treatment pursuant to s.63 MHA once certain criteria are met is lawful, even if it carries a significant risk of physical and psychological harm and a risk of death.[4]Due to developments in the evidence since the application was issued that position was revised prior to the start of this hearing. The revised declarations sought are(1) It is lawful for those responsible for the medical care of the Respondent to exercise the power under s.63 of the Mental Health Act 1983 to impose treatment on the Respondent without her consent, namely a blood transfusion under general anaesthesia in accordance with the Advanced Medical Care Plan and Conveyance plan approved by the court, notwithstanding that her life may be at risk from the imposition of treatment.(2) It is lawful for those responsible for the medical care of the Respondent not to exercise the power under s.63 of the Mental Health Act 1983 to impose the aforesaid treatment for a period of up to 7 days to allow sufficient time for the Respondent to process the decision and for arrangements to be made for the treatment to be provided so as to optimise the prospects of success and minimise the distress experienced by the Respondent.[5]This change was as a result of agreement being reached between the parties prior to the commencement of this hearing that the proposed blood transfusion should take place under general anaesthetic within the next 7 days.[6]At the start of the hearing I raised the question of the jurisdiction of the court to make the declarations sought under the inherent jurisdiction.[7]Due to the time considerations it was agreed I would hear the medical evidence on 26 June 2026, further written submissions regarding jurisdiction were directed to enable the court to give judgment today. I am grateful to counsel for their industry over the weekend so this judgment can be given today.[8]On 26 June 2026 I heard oral evidence from Dr A, Consultant Psychiatrist, Dr B, Consultant in Intensive Care and the independent expert, Dr Bell, Consultant in Intensive Care.[9]QF was present for the hearing, joining remotely from hospital supported by the solicitor agent instructed by the Official Solicitor who is known to QF, and supporting clinical staff.[10]I recognise how difficult this situation has been for QF. Dr A described how the issue of these proceedings had increased QF’s anxiety, in particular as QF had felt she was given insufficient notice when previous decisions have been made regarding medical treatment. All those involved in this case have sought to avoid unnecessary delay and make decisions about QF’s medical treatment in very difficult circumstances and seek to cause minimum distress and anxiety for QF.[11]I have reached the conclusion that for the reasons set out below the court should make the declarations that the proposed blood transfusion under general anaesthetic for QF is lawful. Also, that it is lawful to delay that for a short period of no more than a few days to enable the practical arrangements to be in place to best manage the risks of this being done.[12]I fully appreciate that this is not what QF wants but I am satisfied that this decision is made to protect and secure QF’s Article 2 and 8 rights that are engaged.

Background summary

[13]It is not necessary for the purposes of this judgment to give a detailed account of the background.[14]QF has been diagnosed with Complex Post Traumatic Stress Disorder (‘PTSD’) and Autism.[15]QF first came into contact with mental health services in 2019 when she was detained under s 136 MHA and referred to the crisis team for support. QF reported a traumatic childhood and carrying out acts of self-harm.[16]Between 2019 and 2024 QF had 10 admissions to hospital, both informally and formally.[17]QF’s current admission started in December 2024. QF had been discharged from hospital the previous day and was found by the police with deep cuts to her hand. QF had lost a lot of blood. QF was detained under s 3 MHA and admitted to hospital.[18]QF’s self-harming behaviour escalated. As a result of repeated cutting QF lost significant amounts of blood and has required medical treatment to address the complications associated with bleeding, including blood transfusions.[19]QF was initially compliant with physical health treatment and underwent a blood transfusion in March 2025 when her haemoglobin dropped to 62 (normal range is between 115g/L to 165 g/L). Since then there has been a decline in QF’s willingness to accept physical health interventions to correct her chronic anaemia, which has developed secondary to her blood loss due to cutting.[20]In January 2026 QF’s haemoglobin level had fallen to 34g/L. As QF would not comply with treatment, a decision was taken to administer a blood transfusion under general anaesthetic against her will using the power under s63 MHA. QF was admitted to the critical care unit at the Acute hospital and given 6 units of blood. Due to QF’s physical resistance QF required chemical sedation followed by intubation and ventilation. Intravenous access was difficult due to QF’s body habitus (BMI > 50). The admission was complicated by an infection requiring antibiotics. QF had recovered sufficiently to leave intensive care within 24 hours of extubation and was discharged from the Acute hospital back to the hospital she was in within 3 days.[21]Following the blood transfusion QF’s haemoglobin rose to 106 g/L.[22]Due to QF’s continued self-harming by cutting her haemoglobin levels dropped again due to ongoing blood loss.[23]In April 2026 QF moved to another ward. In May 2026 a tighter regime of restrictions was imposed, including no visitors and 2:1 supervision which resulted in a reduction in self-harming by cutting.[24]In early June QF’s haemoglobin level had fallen to 46g/L. By mid-June it had risen to 50g/L although the medical evidence is that did not change the overall clinical picture of the need for a blood transfusion.[25]On 8 June 2026 a multi-disciplinary team (‘MDT’) meeting was convened to consider the risks and benefits of administering a further blood transfusion under general anaesthetic. The outcome of that meeting was that a blood transfusion under general anaesthetic contrary to QF’s express wishes would take place following a period of between 4-6 weeks of further psychiatric engagement or if objective criteria (such as the haemoglobin level falling to 40g/L) are met. This was based on the reported progress QF was making in engaging with the psychiatric support. One of the clinicians who attended that meeting favoured earlier intervention.[26]This application was issued four days later on 12 June 2026 seeking, in effect, declarations that implementing the outcome of the MDT meeting would be lawful.[27]Directions were made on 16 June 2026 for the filing of updating evidence and a report from an independent expert, Dr Bell, Consultant in Intensive Care and the matter listed for hearing on 26 June 2026.[28]QF has continued to have blood tests every two weeks and physical observations (pulse and respiratory rate) are checked 4 times a day. QF’s compliance improved but remained inconsistent, for example QF did not comply with blood pressure monitoring.[29]More recently QF’s engagement with the mental health team has declined and QF is no longer compliant with room searches and has refused to attend the Acute hospital for outpatient treatment connected with her anaemia.[30]The clinical team have reported an increase in episodes of chest pain, fainting and unresponsiveness. The clinical view is that this may not be as a result of QF’s anaemia but may be dissociative episodes in the context of her psychiatric illness.[31]As a result of the changing clinical picture, the reduction in engagement by QF, the interim report from Dr Bell and further discussions with the clinical team, the clinical consensus the day before this hearing was that further compliance with the proposed blood transfusion was unlikely to be gained with the result that the blood transfusion under general anaesthetic should take place within seven days. As a consequence the declaration sought was amended, as set out above.

Evidence

[32]I had detailed written evidence from a number of the treating clinicians and the expert, Dr Bell.[33]In her written evidence Dr A, Consultant Psychiatrist, outlined the history of QF’s psychiatric care. At the time of the MDT meeting Dr A reported signs of more positive engagement by QF including engagement with some monitoring, agreeing to room and body searches, handing over blades and verbalising protective factors. It was planned to work towards compliance with a blood transfusion over 4-6 weeks.[34]More generally Dr A remained positive that QF can achieve a degree of recovery over months and years. Whilst Dr A recognises QF objects to the blood transfusion she did not consider QF has an intent to end her life as QF concurrently will ask questions and make plans around her future care.[35]In her second statement Dr A noted QF’s refusal on 10 June 2026 of an oral supplement, and a similar refusal to attend medical outpatient appointments on 16 and 22 June 2026 and QF’s fluctuating views on the blood transfusion.[36]In her oral evidence Dr A confirmed the picture of a reduction in QF’s ability to engage with both the mental health and the medical team with an increased anxiety as a result of these proceedings as it puts QF in a binary position. Dr A recognised that there would be a short term increase in QF’s anxiety if the treatment is imposed against her wishes, however a plan would give a more concrete situation to work with rather than continued uncertainty.[37]In the two statements from Dr C, specialist in acute medicine and the clinical lead for the same day emergency care at the Trust, she outlined the lack of engagement by QF in permitting the baseline tests to be undertaken and QF’s refusal to attend outpatient appointments to permit intravenous administration of iron and folinic acid which would support increasing QF’s haemoglobin levels.[38]Dr B, Consultant in Intensive Care, set out the medical clinical history in his two statements. In his first statement he describes the risks of carrying out the blood transfusion in the way proposed as follows:
“[QF’s] obesity increases the risk of anaesthetic complications, airway difficulties, respiratory complications and prolonged ventilation. There remains a risk of failed airway management, aspiration, ventilator-associated pneumonia, pulmonary embolism, intensive care acquired weakness, cardiovascular complications and, in the most extreme circumstance, death. There is also the substantial psychological burden associated with enforced treatment, particularly in an individual whose difficulties arise from trauma and experiences of loss of control. These concerns are real and should not be minimised.”
[39]At the MDT meeting on 8 June 2026 Dr B stated those risks were balanced with the serious life threatening consequences of not having a blood transfusion. In his second statement Dr P-D detailed the reduced engagement by QF and considered the balance had changed to the need to undertake the blood transfusion sooner. He confirmed this position in his oral evidence.[40]In his two reports the independent expert, Dr Bell, Consultant in Intensive Care, concluded that proactive steps should be undertaken for the blood transfusion under general anaesthetic to take place. Dr Bell met with QF remotely. In his reports he notes the declining clinical picture (increasing fatigue, daytime somnolence) and reduction in engagement with her mental health support.[41]In his oral evidence Dr Bell outlined the unusual clinical situation regarding QF’s chronic anaemia, her refusal to accept any substitute to ameliorate her low haemoglobin levels and her obesity which increases risk, such as cardiorespiratory risks. An added complication was that QF was on a different site to the Acute hospital where the blood transfusion under general anaesthetic would take place. His opinion was that with the revised conveyance plan in place the known risks are managed. He could see no benefit in a further delay once those practical arrangements are in place. His opinion is that the decision whether to undertake the blood transfusion under general anaesthetic is not finely balanced although the question of when it should be done was more nuanced. His view was it should be done in the next 7 days.

Legal framework

[42]What is sought in this application is a determination by the court whether it is lawful for QF’s treating clinicians to use the power under s63 MHA to impose a blood transfusion under general anaesthetic, even if this carries a risk of serious physical harm and death and for there to be a short delay in providing that treatment.[43]Section 63 MHA provides that: “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 given by or under the direction of the approved clinician in charge of the treatment”.[44]“Medical treatment” is defined in s.145 MHA as follows: (1)…“medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also sub section (4) below)… (4) Any reference in this Act to medical treatment in relation to mental disorder, shall be construed as reference to medical treatment the purpose of which is to alleviate, or prevent worsening of, the disorder or one or more of its symptoms or manifestations.”[45]There is no issue in this case that the proposed blood transfusion is medical treatment within s 63 MHA. That was an issue in A NHS Trust v A [2013] EWHC 2442 (Fam) at [80] when Baker J (as he then was) stated ‘In cases of uncertainty where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to made to the court’. This approach was followed by Lieven J in Nottinghamshire Healthcare NHS Foundation Trust v MC [2025] EWHC 920 (Fam) at [11].[46]QF’s right to life under Article 2 ECHR is engaged, as are her rights under Article 8 ECHR in circumstances where QF opposes the proposed blood transfusion and physical and chemical restraint will be required to administer the blood transfusion.[47]Under Article 8(2) ECHR any interference with QF’s Article 8 rights must be in accordance with the law and necessary for the protection of health or morals, in the interests of public safety or for the protection of the rights and freedoms of others. In the case of forced treatment, domestic law must provide “some protection for the individual against arbitrary interference with his or her rights” (X v Finland [2012] ECHR 34806/04318 at [217]).[48]A legal framework which leaves the decision entirely in the hands of the doctor, free from immediate judicial scrutiny or remedy for the patient, may not provide sufficient protection for the patient. In X v Finland at [220] ‘The Court considers that forced administration of medication represents a serious interference with a person’s physical integrity and must accordingly be based on a ‘law’ that guarantees proper safeguards against arbitrariness. In the present case such safeguards were missing. The decision to confine the applicant to involuntary treatment included an automatic authorisation to proceed to forced administration of medication when the applicant reused the treatment. The decision-making was solely in the hands of the treating doctors who could take even quite radical measures regardless of the applicant’s will. Moreover, their decision-making was free from any kind of immediate judicial scrutiny; the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication and to have it discontinued.’[49]In Zagioulina v Russia (App. No. 11737/06 [2013] ECHR 11737/06 at [52] – [53] the European Court of Human Rights emphasised that due to the vulnerability of individuals suffering from mental disorders, any interference with their rights must be subject to scrutiny and only very weighty reasons can justify a restriction of their rights. The Court stated at [53] ‘In the light of the vulnerability of individuals suffering from mental disorders and the need to adduce very weighty reasons to justify any restriction of their rights, the proceeding leading to the involuntary placement of an individual to a psychiatric facility must necessarily provide clearly effective guarantees against arbitrariness. The position is supported by the fact that hospitalisation in a specialised medical institution frequently results in an interference with an individual’s private life and physical integrity through medical interventions against the individual’s will (X v Finland [2012] ECHR 34806/04, para 212, 3 July 2012).’[50]There is an obligation on the State to take any measures which ensure protection of the ECHR rights are not theoretical and illusory but are practical and effective (Sir James Munby, in Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349 at [58).[51]There is no dispute that a decision to provide non-consensual treatment under s.63 MHA is a public law decision that can be the subject of an application for judicial review (A NHS Trust v A [2013] EWHC 2442 (Fam); Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317). An issue in the circumstances of this case may be the reality of that remedy being available to someone in QF’s circumstances.[52]The question of whether the inherent jurisdiction at common law is still available after the enactment of the MHA and MCA in respect of incapable adults and capable but vulnerable persons was considered by the Court of Appeal in DL v A Local Authority [2012] EWCA Civ 532. At [53] – [54] McFarlane LJ stated that the inherent jurisdiction was:
“…targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the 2005 Act. I, like Munby J before me in In re SA , am determined not to offer a definition so as to limit or constrict the group of “vulnerable adults” for whose benefit this jurisdiction may be deployed. … The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in In re SA , para 77): (a) under constraint; or (b) subject to coercion or undue influence; or (c) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”
[53]At [61] McFarlane LJ noted:
“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 2005 Act. 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 of Lymington MR: see In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 , 13.”
[54]As regards a wider jurisdiction in cases such as this in A NHS Trust v A [2014] Fam Baker J considered DL at [89] – [91] and then stated at [92]:
“In re L 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 2005 Act was designed to provide a comprehensive code for mentally incapacitated adults. The decision in Westminster City Council v C [2009] Fam 11 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 A [2013] 2All ER 988, para 54: “The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the 2005 Act 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 2005 Act. 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.” incapacitated. It might conceivably be argued that the inherent jurisdiction should now be confined to such persons, since the 2005 Act was designed to provide a comprehensive code for mentally incapacitated adults. The 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 A [2013] 2All ER 988, para 54: Court is available to those lacking capacity within the meaning of the will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the 2005 Act. 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.”

incapacitated adults who cannot consent as to capacitous adults whose

[55]In Nottinghamshire Healthcare NHS trust v RC [2014] EWCOP 1317 Mostyn J stated:
“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.”

Submissions

[56]Ms Watson KC submits that in the absence of a statutory process for review of the applicability and use of s63 MHA under the MHA or the MCA the inherent jurisdiction provides the necessary safeguards and judicial scrutiny required in exceptional cases where the exercise of the power under s63 MHA is finely balanced and the lawfulness of the decisions taken under s 63 require judicial scrutiny.[57]As regards the availability of judicial review Ms Watson submits the Trusts cannot be claimant and defendant to such an application and, in the circumstances of this case, where QF lacks litigation capacity it would not provide a sufficient or effective remedy for QF. There is no established legal or procedural framework in place for someone in QF‘s position. As noted by Baker J (as he then was) in A NHS Trust v A at [76] judicial review “is a blunt instrument compared to an application to the Court of Protection under the 2005 Act or to the High Court under the inherent jurisdiction seeking an order in the patient’s best interests.”[58]The Trusts submit this is one of those cases that involves an acutely difficult medical ethical decision, particularly as to the timing of treatment. This difficulty was acknowledged by Thorpe J (as he then was) in Secretary of State for the Home Office v Robb [1995] Fam 127 at 132 B when he stated “Medical decisions can be acutely difficult and it is when they are their most acute that applications for declaratory relief are made to the High Court…”.[59]As Ms Watson observed, to place the responsibility to challenge the lawfulness of a decision made under s.63 MHA on a vulnerable detained patient who suffers from a life threatening condition as a consequence of a mental disorder would be manifestly unjust.[60]The Trusts acknowledge that it is not the role of the High Court to provide a general advice serve for clinicians. Also, that applications such as this should not be made because the detained patient objects to treatment being imposed on them under s63 MHA.[61]Ms Watson submits, in circumstances where(i) the detained patient lacks litigation capacity such that judicial review cannot provide a sufficient, practical or effective remedy;(ii) the decision whether to give, delay or withhold treatment is finely balanced; and(iii) exercising or not exercising the discretionary power to provide that treatment within a particular timeframe may lead to premature death, then it is a proper use of the High Court’s inherent jurisdiction for the court to scrutinise the decision to ensure compliance with the State’s duty under Article 2 and to ensure any interference with the patient’s Article 8 rights is justified.[62]On behalf of the Official Solicitor Ms Roper KC does not go behind the analysis provided by Mostyn J in Nottinghamshire Healthcare Foundation NHS Trust v RC [2014] EWCOP 1317 at [18] – [19] that a decision to impose treatment on a patient under s58 or s63 MHA is a decision subject to judicial review and requires a full merits review by the High Court (see R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419) and, by parity of analysis, a decision not to impose such treatment, in circumstances where the patient’s Article 2 rights are engaged is amenable to judicial scrutiny under the inherent jurisdiction of the High Court.[63]Ms Roper also referred to the observations made inNorth Tees and Hartlepool NHS Foundation Trust & Anor v KAG & Ors [2024] EWCOP 38 (T3) where Victoria Butler-Cole KC, sitting as a Deputy High Court Judge, granted a declaration that the insertion of a PEG for the provision of CANH would be treatment for the purposes of section 145 MHA and falling within the meaning of s 63 MHA. At [19], the deputy

judge observed:

“19. Before setting out my reasons for making the declaration, I must state clearly – as the Official Solicitor invited me to – that this application was not required. The AMHP rightly determined that the MHA was the correct legal framework to provide treatment to KAG for her mental disorder, including the provision of CANH, and that is the framework that should have been applied. While there will be cases where the scope of s.63 MHA is in question, this was not one of them. The Official Solicitor did not object to the court making a declaration of lawfulness in the exceptional circumstances of this case, but did not expect similar applications to be made in future. This judgment should not be taken as any sort of encouragement to statutory bodies to seek the court’s intervention where there is no uncertainty on the part of a treating Trust as to whether treatment can be provided under s.63 and s.145 MHA, even in the face of objection by a patient. 20. As Lieven J explained in in Re JK [2019] EWHC 67 (Fam) at §66: “The MHA gives the power to decide whether to compulsorily treat a patient to the responsible clinician and not to the Court. This is a fundamentally different scheme to that in the MCA where many decisions are given by statute to the court. The difference makes sense because the MHA is a statutory scheme for, inter alia, detention and compulsory treatment in the public interest, where the responsible clinician has a specific role in the statutory scheme. There is no statutory process in the MHA to question the decision of the clinician. However, if the clinician decides to impose treatment, then the individual can judicially review that decision.”
[64]Ms Roper submits “The statutory framework of the MHA 1983 confers a wide range of decision-making powers on clinicians subject to a number of safeguards (including the provision for a second opinion and/or review in the case of specific treatment decisions). For that reason, the court should always approach with a high degree of caution any application which effectively invites the court to undertake a review of clinical decisions made within the framework of that statute. There are good reasons why those decisions are best made by the clinicians responsible for treating the patient: they may require to be made quickly, they are best made by those with in depth knowledge of the patient, and any suggestion that court scrutiny should be required risks delay which may itself be entirely contrary to the patient’s best interests.”[65]Further Ms Roper submits that given the overall framework of the MHA it was open to the Trusts to bring an application seeking not to impose treatment, albeit for a relatively short period, because one of the potential consequences of that decision was that QF would die. Also, in the exceptional circumstances of this case it was also open to the Trusts to extends their application to seek a review of the decision to impose treatment as the decision not to impose treatment was already properly before the court. Consequently, the overall merits were before the court and the decision either to impose or not to impose carried risks to QF’s life.

Discussion and decision

[66]This case has, once again, placed under sharp focus the existence and extent of the court’s inherent jurisdiction in the circumstances of this case where QF lacks capacity to make the medical treatment decision in issue, lacks litigation capacity, is detained under the s3 MHA and objects to a decision under s63 MHA for medical treatment which impacts on QF’s rights under Articles 2 and 8 ECHR.[67]The effect of s28 MCA 2005 prevents an application in the circumstances of this case being made to the Court of Protection, as it is a medical treatment decision under Part IV MHA.[68]Whilst an application for judicial review is, in principle, open to QF the practical obstacles in the way of QF effectively accessing that remedy are significant in circumstances where she lacks litigation capacity. This is especially so where QF’s clinical condition is fragile and the consequences for QF either way carry significant risks to QF’s life.[69]Sections 35 – 40 MCA 2005 provide when an independent mental capacity advocate (IMCA) should be appointed to represent P. Section 37 (1) and (3) sets out that when an NHS body is proposing to provide serious medical treatment for P who lacks capacity to consent to the treatment and there is no person who it would be appropriate to consult in determining what would be in P’s best interests, before the treatment is provided, the NHS body must instruct an IMCA to represent P. However, section 37(2) provides that s37 does not apply if P’s treatment is regulated by Part IV of the MHA, which includes medical treatment under s63 MHA.[70]Drawing matters together I am satisfied that whilst each case will need to be considered on its own particular facts:(1) This court’s inherent jurisdiction is, in principle, available in circumstances where there is no remedy or not an effective remedy in accordance with the obligations under the ECHR, or there is some other identified reason for making the application and seeking orders.(2) This court’s inherent jurisdiction is, in principle, available whether the person concerned lacks capacity (see A NHS Trust v A at [92]) or is vulnerable (see DL at [53]-[54]).(3) Before making an application to invoke the inherent jurisdiction very careful scrutiny must be given by the applicant as to the need for and the basis of the inherent jurisdiction to make any orders sought. In this case Ms Watson’s careful analysis provided that, namely (i) QF lacked litigation capacity such that judicial review cannot provide a sufficient, practical or effective remedy; (ii) the decision whether to give, delay or withhold treatment is finely balanced; and (iii) exercising or not exercising the discretionary power to provide that treatment under s63 MHA within a particular timeframe may lead to premature death.(4) If an application is made the applicant should identify in the application the underlying rationale for making the application, set out the orders sought and what, if any, rights are engaged under the ECHR.[71]As regards the procedure for such applications, there has not been sufficient time for the parties to make submissions on this issue. This application has been made by way of a Part 8 Claim under the Civil Procedure Rules 1998 (‘CPR’) using form N208. Such a procedure is used where a claimant seeks the court’s decision on a question or remedy that is unlikely to involve a significant dispute of fact. This procedure was endorsed by McKendrick J in Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 at [54] – [60] where he set out his own view on the jurisdiction and procedure as follows:
“[54]…where there are issues of capacity and best interests but there are also issues between the detained patient and the Mental Health Trust, is that it is helpful for these latter proceedings to be issued pursuant to Pt 8 of the Civil Procedure Rules seeking the application of the Civil Procedure Rules, and in particular CPR Rule 40.20, granting a declaration but doing so in reliance on the statutory powers available to a judge of the High Court pursuant to s 19(2)(a) of the Senior Courts Act 1981. [55] Tempting as it is to make the declaration under the Mental Capacity Act 2005, it does not seem to me that that is the correct approach, and whilst s 15 is drafted in broad terms, it must be read and understood in the context of the Mental Capacity Act 2005. There are many patients who receive treatment compulsorily pursuant to s 63 of the 1983 Act who have capacity. Part of the reason for that are issues of public safety and wider public policy. These issues may well involve other somewhat different interests, and it is easy to imagine there might be parties who wish to intervene in such cases. It seems to me it is always helpful for there to be a procedural code which leads to the declaration being granted. It is clear from this case it is not the Family Procedure Rules, and it does not seem to me appropriate to apply the Court of Protection Rules for the reasons I have just stated. Therefore it seems to me that the Civil Procedure Rules should apply. [55] Tempting as it is to make the declaration under the Mental Capacity Act Capacity Act 2005. There are many patients who receive treatment compulsorily issues of public safety and wider public policy. These issues may well involve other somewhat different interests, and it is easy to imagine there might be parties who procedural code which leads to the declaration being granted. It is clear from this apply the Court of Protection Rules for the reasons I have just stated. Therefore it … [58] There is no need, as we are told by the Court of Appeal in the case of DL v A Local Authority [2012] EWCA Civ 253, [2013] Fam 1, [2012] 3 WLR 1439, [2012] COPLR 504, to resort to the inherent jurisdiction when Parliament has codified in statute the court’s jurisdiction to make declarations. There is an issue between the Trust and FF regarding the treatment, and it is right that a declaration be made as between FF and the Trust which is binding, and that sits ancillary to the s 16 order that I have made under the Mental Capacity Act 2005. It also seems to me that in these cases it is going to be of benefit that whilst the Court of Protection application is issued to deal with capacity or best interest issues, a Pt 8 claim form is also issued to deal with the declaration separately in respect of s 63 of the Mental Health Act 1983. There is no need for anything further to be done other than that claim form to be served, and for that Pt 8 claim form to note the evidence and background set out in the Court of Protection. But given these applications for declarations in respect of s 63 may deal with wider issues of the safety of the public and other issues, the role of the CPR in providing for experts, open justice, and of course costs, is of benefit to any judge hearing these dual applications. That is not intended in any way to drive up costs or make matters more cumbersome, but adherence to the procedural rules is of course important. [59] For those reasons, therefore, I grant a declaration in respect of questions of capacity pursuant to s 15 of the Mental Capacity Act 2005; I make the order sought by the Trust in respect of best interests under s 16 of the Mental Capacity Act 2005; and I will make a declaration in respect of s 63 of the Mental Health Act 1983 pursuant to s 19 of the Senior Courts Act 1981. Those are my reasons for granting the substantive relief in these difficult proceedings.”

apply the Court of Protection Rules for the reasons I have just stated. Therefore it

[72]Whilst it is right that, depending on the circumstances of the case, there may be no factual dispute, that position may not remain. The overriding objective in Part 1 CPR and the courts wide case management powers, together with rule 8.8 CPR, enables the court to keep under review on a case by case basis whether the Part 8 procedure remains the correct procedure.[73]As a matter of practice, in circumstances such as this case, a Trust may wish to actively consider securing an external second opinion as a matter of urgency prior to issuing proceedings to support and inform any decision making in these difficult cases and whether an application for orders under the inherent jurisdiction is required.[74]Once the decision is made to issue an application invoking the inherent jurisdiction in circumstances where declarations are sought, as in this case, the application should be accompanied by a proposed draft directions order and the Official Solicitor should be notified. In addition, if the hearing is to be in public, a draft Reporting Restrictions Order that has complied with the relevant Practice Direction should also be submitted with the application. The application once issued should be allocated immediately to a full time Judge of the Division for directions.[75]Turning now to the facts of this case.[76]I accept the Trusts’ position that at the start of these proceedings, four days after the MDT meeting on 8 June 2026, the decision whether to proceed with the blood transfusion by general anaesthetic was finely balanced due to the significant risks to QF’s life inherent in providing that treatment or not and/or delaying that treatment to enable psychiatric interventions to continue to support QF complying with the proposed blood transfusion.[77]By the time of this hearing the evidential landscape in the case had changed. QF’s engagement with the mental health team had diminished together with the prospects of her compliance. The mental health service team favoured earlier intervention. By the time of the hearing there was a consensus between the clinicians (mental health and medical) and the instructed expert that the blood transfusion under general anaesthetic should take place. There was also a consensus that it should take place within 7 days to ensure the risks identified are managed by the specialist resources being available to reduce the risks, as set out in the revised conveyance plan. That remained the evidential position at the conclusion of the oral evidence, although Dr Bell considered the decision about whether to proceed with the blood transfusion was now not finely balanced, but acknowledged the timing of it was more nuanced.[78]In the light of the evidence the court has I am satisfied in the particular and unusual circumstances of this case the court should grant the declarations now sought. Those circumstances are summarised as follows: i. QF lacks litigation capacity, as a consequence any application for judicial review cannot provide a sufficient, practical or effective remedy for QF to ensure her Article 2 and 8 rights engaged under the ECHR are protected. ii. The decision whether to give or withhold treatment under s63 MHA related to life-sustaining treatment. iii. The decision whether to give, delay or withhold treatment was finely balanced although by the time of the hearing I accept the evidence of Dr Bell that the provision of a blood transfusion was not in itself finely balanced, though it is necessary to preserve QF’s life due to it being highly unlikely QF’s mental health will improve in the relevant timeframe to secure compliance. iv. The consequences of exercising or not exercising the discretionary power to provide that treatment under s63 MHA within a particular timeframe could lead to premature death but had to be balanced with ensuring the optimum arrangements were in place to best manage the known risks to life. v. The evidence demonstrated there had been a careful balance of the competing ECHR rights engaged, steps had been taken to seek to enable QF to comply with the medical decision aimed at protecting her Article 2 rights. vi. The Official Solicitor supported the proposed plan having regard to the clear benefit to QF of the blood transfusion notwithstanding the significant risks of doing so through the use of physical and chemical restraint.[79]The declarations the court will make are:a. The proposed treatment, namely a blood transfusion under general anaesthesia, may lawfully be provided under section 63 of the Mental Health Act 1983 (“MHA”), notwithstanding the risks to [QF’s] physical health and the risk of death associated with the treatment;b. It is lawful for those responsible for the medical care of the Respondent not to exercise the power under s.63 of the Mental Health Act 1983 to impose the aforesaid treatment for a period of up to 7 days to allow sufficient time for the Respondent to process the decision and for arrangements to be made for the treatment to be provided so as to optimise the prospects of success and minimise the distress experienced by the Respondent.

Cited in 2 later judgments