Can the Mental Health Act enforce blood transfusion?

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

The question as to whether an advance decision to refuse treatment (ADRT) can be used to refuse blood transfusion was answered in a case heard in 2014. But in the same year the different question of whether transfusion could be given compulsorily was also addressed.

This concerned RC, 23, who at the time of the court hearing was in a secure psychiatric hospital. He had been transferred there from prison, where he was serving a five year sentence for a serious assault. In February 2014 RC deliberately lacerated his brachial artery, and had since attempted to reopen that wound a number of times. This led to his compulsory admission to the secure hospital a month later, together with the use of a restraint belt to prevent him slashing the artery.

The court found that RC suffered from a personality disorder rendering him antisocial and emotionally unstable. He cut himself with the intention of providing a distraction from distressing thoughts and feelings, particularly when severely distressed. The court held that at least on some occasions RC had full capacity to harm himself. Furthermore, RC took the view that it ‘…is his body and therefore his choice to damage it’.

In April 2014, three weeks after admission to the psychiatric hospital, RC signed an ADRT, which was in turn properly witnessed. It provided that no transfusions of blood or primary blood components should be administered to him in any circumstances, even if his life was at risk. This accorded with an earlier trenchant refusal of blood transfusion after his arterial injury in February.

Anticipating the inevitability of further self inflicted vascular injuries, the secure hospital trust sought, amongst other things, a declaration that RC had the capacity to refuse blood products and that his ADRT was valid and operative should the situation arise where RC needed transfusion but was incapable (for any reason) of issuing a decision to refuse one.

The court found that an adult of a sound mind (with respect to this particular decision) was entitled to refuse medical treatment, and that this right was not diminished by his status as a detained prisoner. In addition, since the judge was ‘perfectly satisfied’ that RC had full capacity in April when he executed the ADRT, his advance decision will be operative should he ever be in the position where for whatever reason he is incapacitated and a blood transfusion is indicated.

It is not surprising that advance decisions to refuse medical treatment for mental illness are rendered ineffective if and when a patient comes under the scope of part IV of the Mental Health Act 1983, which gives authority to compel a capacitous person to have such treatment. After all, if refusal of treatment was possible, patients with relapsing mental illness could choose to avoid the compulsion inherent in the MHA 1983, in part, defeating its purpose.

Section 63 of the Act provides for, amongst other things, compulsory treatment of physical disease only if this is a symptom or manifestation of the mental illness for which the patient has been compulsorily detained. Lacerations inflicted as a result of delusory psychotic beliefs would be included in this, so compulsory treatment of RC’s brachial artery injury could be provided lawfully if necessary despite RC’s capacitious refusal. The judge considered whether in addition to suturing the laceration, blood transfusion to correct RC’s resultant anaemia could also be compulsorily administered.

Although an ADRT can be overridden if treatment under section 63 is required, the facts of RC’s case were considered by the judge to be ‘highly relevant’. The judge went further, finding that to ‘…impose a blood transfusion would be a denial of a most basic freedom ... an abuse of power even to think about imposing a blood transfusion … that he presently had capacity to refuse.' This illustrates the point that section 63 gives discretion to impose compulsory treatment upon the patient, but it does not compel the doctor to treat if he or she feels this is disproportionate or unnecessary.

From RC’s perspective, this was a just result. Whilst the court found that blood transfusion could be administered compulsorily under section 63 of the Act, it was also held that the highly relevant facts of his case made it unjust to use this legal power to force RC to have blood.

In finding that blood transfusion could be considered a treatment for mental disorder in this context, the judge extended the remit of compulsory treatment. Treatment of the long term consequences of injury has not, until RC’s case, been compellable under section 63. The courts had hitherto been fastidious in restricting the extent that physical illness can be treated under mental health legislation.

Paracetamol overdoses, if caused by a depressive illness, can be compulsorily treated in the sectioned patient with activated charcoal, intending to reduce the biological burden of the drug. But no-one has ever suggested compulsorily dealing with subsequent hepatic replacement therapy under the Mental Health Act. Liver damage caused by paracetamol is analogous to anaemia caused by arterial injury. Deciding whether blood transfusion should be imposed under section 63 may be a more complex exercise than this judgement suggests.

Robert Wheeler
Department of clinical law
January 2020