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.

Patients present to our hospital with a variety of deliberately self inflicted injuries. These include cuts, overdoses, swallowing the indigestible; or failing to eat and drink.

There are also less common injuries, such as conjunctival insertions, and burns.

Providing the patient consents to treatment, the effects of the injuries can usually be neutralised. If the patient is a young person (16 to 17 years old), then it may be possible to rely on their parents to provide consent, although as can be seen below, persistent refusal of the young person may lead to a court declaration, even in the middle of the night. However, generally, consent is available and therapy can proceed. Nevertheless, it is vital to control the patient’s environment; in every case where a patient presents with self harm, they must be denied any opportunity of harming themselves further.

If patients of any age refuse treatment, your clinical management much depends on whether they have capacity. Although tempting to conclude that a patient who harms himself could only have done so because he lacks capacity in the first place…such a deduction is not tenable. In England, young people and all adults (18 years and over) are presumed to have capacity. It is only by overcoming this presumption by proving that (i) the patient has an impairment of, a disturbance in the functioning of the mind or brain; and (ii) is unable to understand the relevant information, retain it, weigh it and communicate their resultant decision….that the diagnosis of incapacity can be made.

If the patient lacks capacity, then in the absence of an advanced decision, they must be treated in their best interests. On the basis of the common law, and now the Mental Capacity Act 2005 (MCA), all efforts must be made to save their lives, or to prevent permanent irremediable harm. When considering the list set out in the first paragraph: All of these injuries may be treated to their logical conclusion, and these legal authorities includes the necessary, proportionate and least restrictive restraint that may be required to achieve the treatment. Hopefully, the patient will regain their capacity, and provide consent for the latter stages of the treatment.

However, (self-evidently) this authority does not extend to imposing non-consensual interventions that go beyond saving life or preventing permanent irremediable harm. You are obliged to stem the haemorrhage, repair the brachial artery, close the forearm wounds ….but plainly, you are not permitted to fix the Dupytren’s contracture or excise the ganglion, just because it seemed to be convenient under the same anaesthetic.

If the adult has capacity to refuse treatment that will save their lives, then their autonomy should be respected. The practicalities of our acquiescence to their wishes do, nevertheless, depend on the clinical situation. When Kerrie Wooltorton presented to hospital with poisoning, and whilst competent, steadfastly refused treatment that could have saved her life, days passed; during this period for reflection, her clinicians were able to conclude that they could follow her wishes, making her comfortable, but allowing her to die. At the other end of this time spectrum, if an emergency is so dire that the doctor has inadequate time to assess capacity, then he should act to save life; the rugby tackle of the ‘competent’ patient running towards the open third-floor window illustrates this point.

If the competent young person refuses her consent in these circumstances, despite her mother’s provision of consent, then Trusts have resorted to Court. Six weeks ago, in P, a High Court judge was called in the middle of the night by emergency department staff faced with a 17 year old girl who had taken an overdose of paracetamol. She was refusing liver-protective treatment, although her mother had readily agreed to it. At the time of the call to court, nine hours had passed since ingestion. A psychiatrist did not consider that she lacked capacity. The judge acknowledged the competent young person’s right to make her own decisions, and her undoubted wishes and feelings that led to her overdose, and continued to operate in her refusal of treatment. Nonetheless the judge found that the young person’s views were not decisive, when balanced against the risks of liver necrosis. For this reason, the Court authorised treatment for the overdose, and for any restraint or sedation that might be necessary to accomplish this.

One circumstance causing difficulty is when a competent patient is admitted with a self-inflicted injury that is sectioned under the Mental Health Act 1983 (MHA). The MHA authorises, under some circumstances, non consensual treatment and detention for the medical treatment of mental illness, but not for the treatment of physical illness. In a recent case, it was held that a man with schizophrenia could be detained and treated for his mental illness without his consent under the terms of the MHA. But that retaining him in hospital, and giving him non-consensual therapy with a view to controlling his diabetes could not be authorised in the same way. To achieve diabetic control the MCA, together with it’s associated protections, must be employed.

This is not merely bureaucratic. Those guarding our civil liberties are rightly determined that patients with mental illness should lose no more of their liberty than is absolutely necessary to achieve treatment for their index illness. Otherwise, they must share all other liberties that their fellow citizens enjoy.

With this in mind, it is important to contemplate s63 of the MHA. This does permit us to provide medical treatment to competent patients for physical injuries that are related to the mental illness for which they have been sectioned (in some circumstances) under the MHA. In B a 24-year-old woman was detained under s3 of the MHA due to her psychopathic illness; for which psychotherapy was the only known treatment. One of the symptoms of her illness was a compulsion to harm herself; this she variously accomplished by cutting, burning and starving herself. The application to court flowed from her weight reduction to 30 kg, when it was feared that without feeding, she would die. The court found that her compulsion to starve was a symptom of her mental illness, and that feeding could be regarded (in this context) as ‘medical treatment’. In this way, B could be compulsorily fed under the authority of s63. Unsurprisingly, providing non-consensual treatment for physical conditions under s63 has at times caused consternation; for instance when a competent schizophrenic woman has had to endure non consensual caesarean section, since the birth of the live baby ‘would allow effective treatment of her mental illness’ .

In some forms of mental illness, the refusal of food is considered as a symptom of mental illness, and falls well within the remit of s63 if the patient has already been compulsorily detained, whether or not he is competent. For those without capacity, feeding may be given under the MCA. For those with capacity but not admitted under the MHA, an application to the High Court under its inherent jurisdiction is likely to make non-consensual feeding lawful. Again, any court declaration will make lawful the necessary, proportionate and least restrictive restraint that may be required to achieve the treatment.

Please seek advice if you have lingering uncertainties when faced with these difficult cases.

Daily Telegraph, 1 October 2009
NHSFT v P [2014]EWHC 1650 (Fam)
B v Croydon HA [1995] Fam 133
Tameside & Glossop v CH [1996] 1 FCR 753

People who refuse medical or surgical treatment for self-inflicted injury