Symptom and consequence: not interchangeable

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.

A recent case posed a difficult problem to a court, which in turn delivered a surprising judgment. A 34 year old man, CC, was detained under the Mental Health Act 1983 (MHA) due to psychotic depression and a mixed personality disorder with ‘marked dissocial and dependent traits’. CC was deaf, using British Sign Language, and thus detained on a medium secure ward for deaf men. His symptoms were reported to the court as ‘...sustained periods of very low mood which are accompanied by psychotic symptoms including hands signing in free space (a deaf equivalent of hearing voices) and receiving command hallucinations from his dead grandmother’. He had persecutory beliefs that people were trying to kill him and his family.

CC presented with diabetes at 15; his abject lack of compliance had led to ‘incredibly poor control’ of this underlying illness. As a result, according to his psychiatrist, his eyesight was compromised and he had developed renal failure, amongst other serious illnesses. CC remained detained because of his ‘extreme level’ of self neglect, placing himself at an imminent risk of death. ‘Extremely argumentative and abusive towards staff’, CC’s impulsiveness exposed him to serious levels of harm. He had disconnected himself from haemodialysis mid way through a session, causing considerable alarm. CC’s refusal to accept the thrice-weekly treatment had by February 2020 resulted in only 2 of 49 sessions being successfully delivered in the preceding 3 months. A recent emergency admission with profound hyperkalaemia was noted.

CC’s psychiatrist asserted that his patient’s capacity fluctuated. If he refused several sessions of dialysis, becoming unwell and distressed, he lost capacity to make decisions about his treatment. During times when he had capacity, CC had told his doctors he did not want to die and that he recognised that when he was unwell he refused treatment that whilst capacitous he would accept. Going further, CC had during a lucid discussion repeatedly asked to be restrained to allow treatment to be properly delivered, if when incapacitated he resisted dialysis. The agreed purpose of dialysis would be to keep him alive long enough to receive a renal transplant which would ‘very significantly improve the length and quality of his life’.

The question for the court was whether CC should be compelled to undergo haemodialysis at times when he refused it.

The judge found as a fact, without evident difficulty, that CC lacked capacity when he was refusing dialysis. This opened the possibility under the Mental Capacity Act 2005 (MCA) of a  ‘contingent declaration’ being made by the court, acknowledging that patients seeking treatment may be overborne by their anxieties when the moment of treatment arrives, leading to incapacity, panic and refusal. This contingency is addressed by a declaration that the patient’s agreement in advance to be treated remains valid, notwithstanding incapacitous resistance; it has been employed in cases of needle-phobic women anticipating childbirth.

Despite recognising the discretion to make a contingent declaration in CC’s case, the court took a very different route. Section 63 of the MHA provides for the ‘...treatment of physical health problems only to the extent that such treatment is part of, or ancillary to, treatment for mental disorder (for example treating wounds self inflicted as a result of mental disorder)’. At first sight the MHA would not be available to treat renal failure, since that would not usually be construed as a symptom or manifestation of a mixed personality disorder. CC’s psychiatrist felt that his non compliance with dialysis treatment was a symptom of the mental disorder. But the judge went much further: ‘In my view this is a clear case of the...dialysis treating a manifestation of ...his personality disorder’. This enabled her to use s63 as an authority to provide compulsory dialysis together with any necessary physical and chemical restraint.

The reason that this decision matters is that by contrast to other treatments authorised by the MHA, therapies authorised by s63 require no consent from the patient, nor does it provide the mandatory second opinion designed to protect the patient from misguided clinicians or acts of bad faith. Furthermore, the MHA makes no provision for clinicians to act in the patient’s best interest. To protect patients’ human rights, parliament installed safeguards in the MHA to prevent its use for treatment of physical illness. The treatment of physical illness in incapacitated patients remains the remit of the MCA.

The judge was careful to note that dialysis was a treatment of CC’s mental disorder, as opposed to the treatment of mental disorders generally. It cannot readily be understood why in CC’s case renal failure was a symptom of personality disorder. Section 145(4) of the MHA provides that compulsory treatment may be used ‘...for the purpose of alleviating...manifestations’ of the mental disorder. Taken together, ‘symptoms and manifestations’ are intended to cover all the ways that the disorder affects the patient’s functioning in terms of how the patient thinks, feels or believes. But not to describe a physical consequence such as renal failure.

It would be unfortunate if we were to arrive at the position whereby clinicians felt that the most straightforward way to optimise the treatment of chronic physical illness in people with mental disorders was to adopt the compulsion of the Mental Health Act 1983.

Robert Wheeler
Department of clinical law
May 2020