A NHS Trust v Dr. A

B e f o r e :

THE HONOURABLE MR JUSTICE BAKER IN THE MATTER OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF DR. A ____________________

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Miss F.Paterson (instructed by the Trust's Legal Services) appeared on behalf of the Applicant Mr Angus Moon QC and Miss Amy Street (instructed by the Official Solicitor) appeared on behalf of the Respondent Hearing dates: 30th, 31st January and 20th – 22nd March 2013 ____________________

HTML VERSION OF JUDGMENT ____________________

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MR. JUSTICE BAKER:

This is an application by a NHS Trust for declaratory relief in respect of a man (whom I shall call "Dr. A") who is on hunger strike in the Trust hospital. The relief sought by the Trust is in short a declaration : (i) that he lacks capacity to litigate and to make decisions in respect of his nutrition and hydration; and (ii) that it is lawful for the Trust to administer artificial nutrition and hydration.

This case has attracted a degree of publicity and I shall therefore give leave for the judgment to be published, subject to the proviso that in any report no person, (other than the solicitors or advocates instructed by them and any other persons identified by me in the judgment), including the Trust and the hospital involved, may be identified by name or location and that, in particular, the anonymity of Dr. A. and his family must be strictly preserved.

Dr. A. is a fifty-year-old Iranian doctor. In oral evidence, he told me that he had worked as a GP in his home country for about seventeen years until about 2009 at which point he had travelled abroad. He has said on other occasions that, whilst living in Iran, he was treated with antidepressants and antipsychotic medication, although attempts to obtain corroboration of his account from the Iranian medical services have been unsuccessful. He came to this country on or about 14 th August 2011 on a six month visa to study English, having allegedly stopped taking the medication a few months previously. He is married with one daughter aged eight, although there is some evidence that he is estranged and possibly divorced from his wife. His wife and daughter have remained in Iran.

Dr. A. has applied for asylum in this country on three occasions, but his applications have all been refused. In early May 2012 his passport was confiscated by the UK Border Agency ("UKBA") to be returned on the condition that he be returned to Iran. Following an incident at the UKBA office, which led to the police being called, he was taken to the Trust's hospital under section 136 of the Mental Health Act 1983 (hereafter the "MHA"). After being released, he went on hunger strike in an attempt to recover his passport.

Dr. A. was subsequently admitted to the hospital on 22 nd June 2012 after his landlord had called an ambulance. He was found to be suffering from dehydration and pneumonia and reported having suicidal ideas and that he had taken an overdose. He received treatment and was discharged on 26 th June 2012, but continued his hunger strike and was readmitted with a variety of consequential physical problems on 9 th July 2012. He has been an in-patient continuously since that date.

From an early stage his treating doctors formed the opinion that he might be suffering from a delusional disorder or a paranoid personality disorder, although all the doctors have recognised that the process of diagnosis was complicated by cultural differences. The question of his capacity has been considered on many occasions by a variety of professionals. From the outset the preponderance of opinion has been that he lacks capacity, although on 23 rd July one consultant psychiatrist observed: "I think he has capacity and is making a political point." Most professionals, however, reached a different conclusion.

On 1 st August 2012 his treating consultant psychiatrist, Dr. WJ, carried out a detailed assessment of his mental capacity and concluded that he lacked capacity to make a decision about eating and drinking. On the next day, 2 nd August 2012, a Farsi-speaking psychiatrist, Dr. CA, examined him and concluded that he lacked capacity and also diagnosed that he may be suffering from a delusional disorder and paranoia. Following these examinations a nasogastric tube was inserted to facilitate feeding.

One apparent manifestation of his mental disorder was an obsession about the colour red. It was noted on 6 th August 2012 that he had requested:

Dr. A's health continued to deteriorate and he was diagnosed as having pneumonia. Despite obvious symptoms and x-ray evidence, however, he refused to accept that he had any chest infection. He also refused to accept the diagnosis of a urinary infection. He maintained a belief, erroneously, that he had been subjected to a prostatectomy without his consent on his admission to hospital. These false beliefs led the doctors to conclude that he lacked the capacity to weigh information about his medical conditions.

On 8 th August 2012 the UKBA refused a further request for asylum. The next day Dr. A. became very agitated, pulling out his nasogastric tube and saying he wanted to die.

On 17 th August 2012 his condition was reviewed by his consultant psychiatrist, Dr. WJ. On 20 th August 2012 he was detained for assessment under section 2 of the MHA. He subsequently appealed against that decision to the First Tier Tribunal Health, Education and Social Care Chamber (Mental Health) ("the Tribunal") and his appeal was heard on 28 th August 2012. In its decision dated 31 st August 2012, dismissing the appeal, the tribunal noted his history of depression and paranoia in Iran and his subsequent medical history. The decision recounted how, whilst in hospital, Dr. A. had said that the Iranian Government had been monitoring him through his computer and had been adversely influencing his medical treatment. The Tribunal accepted the diagnosis of delusional disorder, whilst noting that not all medical professionals thought that he was delusional. Overall, the Tribunal felt that:

The tribunal considered that, if he was discharged, Dr. A. would return to his flat and continue his hunger strike and that, in these circumstances, "detention in hospital was plainly in the interests of Dr. A's health and safety".

After the hearing Dr. A. was prescribed Olanzapine, an antipsychotic. He complained that this left him tired and excessively sleepy, but, by 6 th September 2012, he was found to be "rouseable and engaging" and was requesting English language books to study. With the imminent expiry of the section 2 admission, he was detained on 14 th September 2012 under section 3 of the MHA. With ongoing treatment, further improvement in his condition was observed. The medical notes record that: "He was able to laugh and appeared unusually good humoured". He spoke "about life in Iran saying he wasn't sure if he would be in trouble if he went back, but that the lifestyle was too restrictive there".

On 25 th September 2012, Dr. WJ felt that he was brighter and noted that he was now walking around the hospital. By 1 st October 2012 it was felt that his mental state had improved, although he still seemed paranoid about the colour red. On 18 th October 2012 he was noted to be sitting up in bed, alert and responsive, and had been in touch with a lawyer and verbally consented to the medical staff telephoning the lawyer about his immigration status.

On 29 th October 2012 his detention under section 3 was rescinded as his mental state appeared stable. When asked about his future plans, he said that he was homeless in this country and expressed the wish to live in Germany or France where he said he had relatives. He clearly stated that he did not wish to return to Iran. In the same conversation, he indicated that he did not wish to continue with the antipsychotic medication as he did not think he had any mental health problems. Although he remained on the ward undergoing nasogastric feeding, he made no attempts to remove the tube at this stage.

In a case conference on 20 th November 2012, however, it was noted that he "continues to state that he will continue to refuse to eat in protest against the UKBA decision to refuse him asylum and to confiscate his passport. He believes that his decision to refuse to eat will help a further appeal to the UKBA". On 22 nd November 2012, it was noted that he was not gaining weight and was fasting during the day. On 23 rd November 2012, his consultant psychiatrist noted that he still maintained "that he would not eat until he had his passport back or can stay in the UK." It was, she says: "Very difficult to get him to think about what will happen if he leaves hospital without a nasogastric tube and does not eat". He was said to find it difficult to answer questions about not eating food in protest at the UKBA's actions. When asked about considering the effects of not eating, he said he would die and that his life currently meant nothing. The psychiatrist noted, however, that Dr. A. would not consider any detail around this or the possibility of making a formal advance decision. In contrast to his stated wish about dying, however, he also expressed a desire to study and pass an English language exam.

Until about 5 th December 2012 Dr. A. was not eating solid food, but was co-operating with the nasogastric tube and drinking some liquids including coffee. On that date, however, he stopped drinking and removed the nasogastric tube and resisted attempts to reinsert it. A note in the hospital records quotes him as saying that he equated not eating and drinking "with soldiers fighting a political battle in Iran knowing they may die for a cause".

On 7 th December 2012 he was noted as having talked to an Iranian medical specialist registrar who noted that he was "becoming a bit paranoid again, more rigid, irritable and asking him to get Iranian Government people to talk to him". The specialist registrar formed the impression that he was suffering from a re-emergence of a possible delusional disorder. Dr. WJ also noted that Dr. A. was more irritable and more rigid in his thinking.

The hospital records from around this time also contain a document apparently signed by Dr. A. dated 14 th December 2012 and addressed to his consultant psychiatrist in the following terms:

On 14 th December 2012, however, Dr. A. was noted as having been "very ambivalent about his wish to die". Having stated at one point that he wished to die, he then said "I'm so glad, you saved my life, I wasn't thinking straight before".

On 18 th December 2012 possible paranoid ideas were noted about being poisoned when he was staying in Cambridge. On 19 th December 2012, a further attempt to reinstate a nasogastric tube was made unsuccessfully.

On about 21 st December 2012 a further opinion as to Dr. A's capacity was sought from Dr. CA who, as stated above, is a Farsi-speaking psychiatrist. He considered that, on balance, Dr. A. did not have the capacity to refuse nutrition and hydration and should be rehydrated against his will, if necessary.

In the light of the complex picture, about Dr. A's capacity, it was decided to apply to the Court of Protection. On 28 th December 2012 an application was therefore made by the Trust for permission to apply for an order permitting the hospital to continue to provide him with artificial nutrition and hydration. In a witness statement in support, his specialist registrar stated that:

His consultant clinician, Dr. CB, described how he had taken very limited amounts of fluid since removing the tube on 5 th December 2012 and, as a result, he had suffered a significant drop in his weight and body mass index with abnormalities of his levels of sodium and potassium. She described his physical state as critical and concluded that he was at high risk of sudden death. That day an emergency court hearing took place by telephone before Mrs. Justice Macur who made an interim declaration that Dr. A. lacked capacity to litigate and make decisions in relation to the serious medical treatment at issue. Pending a further hearing she ordered that it would be lawful, in his best interests, for the clinicians to provide him with artificial hydration and nutrition using reasonable force, restraint and sedation, if necessary. Mrs. Justice Macur appointed the Official Solicitor to act on behalf of Dr. A. in the proceedings. Further directions were given for the next hearing listed on 14 th January 2013. The court having concluded that the procedures concerned an application for serious medical treatment as defined in the Court of Protection Practice Direction 9E, Mrs. Justice Macur directed that all subsequent hearings should be heard in public.

Thereafter, nasogastric feeding was re-introduced slowly, supplemented by intravenous fluids to avoid the condition known as "Re-Feeding Syndrome". Dr. A's co-operation with these processes was inconsistent. On some, but not all, occasions he pulled out the tubes and had to be physically restrained. Dr. CB described him as:

At a further hearing on 14 th January 2013 Mrs. Justice Eleanor King renewed the interim declarations, made a reporting restrictions order and gave directions for a final hearing on 30 th January 2013.

On 21 st January 2013 Dr. A. was examined by Dr. JW, an independent expert psychiatrist with a special interest in cultural issues and mental health, who had been instructed to consider Dr. A's capacity and best interests for the purposes of these proceedings. In his lengthy report, Dr. JW concluded that Dr. A. suffered from both a lack of capacity to litigate and a lack of capacity to refuse nutrition and hydration and that it would be in his best interests to receive artificial nutrition and hydration.

On 24 th January 2013, accompanied by a nurse, Dr. A. visited the German Embassy in an unsuccessful attempt to obtain a visa. With the agreement of his consultant physician, Dr. CB, the nasogastric tube was removed during this trip and Dr. A. was observed to drink some supplements and indeed to eat a muffin in the taxi. At all other times he remained on the ward and, on occasion, attempted to remove the nasogastric tube. On several occasions he required sedation with Lorazepam, administered intramuscularly to facilitate the reinsertion of the tube. Medical staff noted a small increase in his weight and he was assessed as being somewhat stronger, although significantly still underweight.

The full hearing started before me on 30 th January 2013. I heard evidence over two days including evidence from Dr. A. himself and then adjourned for written legal submissions with the interim declarations remaining in place for the time being. Initially I directed that those submissions should be filed within seven days, but, as a result of certain points of law being raised by the court in the course of the hearing, counsel requested an extension of time which I duly granted. On receiving the submissions, I concluded that it would not be appropriate to reach a decision on the various issues without hearing further oral argument. I therefore listed the matter for a further oral hearing on first available date being 20 th March 2013.

Meanwhile, Dr. A remained in hospital. He continued to refuse all food and fluids and was accordingly fed by nasogastric tube against his will under the interim order. He continued to struggle to prevent the nasogastric tube being inserted. Over time, however, he was seen to become increasingly depressed. At one point he hoarded medication and, when this was discovered, he said that he had intended to take an overdose feeling that there was no future for him. As a result, the doctors felt that he should be treated with antidepressants and possibly antipsychotic medication; and, when he refused this treatment, he was, again, on 14 th March 2013, placed under section 3 of the MHA and medication was administered via the nasogastric tube.

The issues to be determined can be summarised as follows:

To assist me in resolving these issues, I have had the benefit of written and oral evidence from a number of Dr. A's treating clinicians and from an expert psychiatrist instructed in these proceedings, Dr. JW, written evidence from the Official Solicitor's representative and oral evidence from Dr. A. himself. I have also had a series of written submissions from counsel, Miss Fiona Paterson, for the applicant Trust and Angus Moon QC on behalf of the Official Solicitor reinforced by Miss Amy Street at the adjourned hearing. I am very grateful to counsel for their hard work and insight in this difficult case.

Any person with capacity is entitled to make decisions about his treatment, even if those decisions bring about his death. As Lord Goff of Chieveley observed in Airedale NHS Trust v. Bland [1993] AC 789 at page 864:

Judge LJ (as he then was) expressed this principle more succinctly in St. George's Healthcare NHS Trust v. S [1999] (Fam) 26 :

There is no doubt that this principle applies in the context of choosing whether to refuse food and drink (see, for example, Secretary of State for the Health Department v. Rob [1995] 1 All ER 677 and A Local Authority v. E and Others. [2012] EWHC 1639). Thus, if Dr. A. has the capacity to make decisions as to whether to take food and drink, he is entitled to starve himself to death if he so chooses. The question is: does he have the capacity?

In determining the question of whether a person has capacity, the court applies the relevant principles of the Mental Capacity Act 2005, specifically sections 1, 2 and 3. Section 1 provides inter alia :

Section 2 "People who lack capacity" provided inter alia:

Section 3 "Inability to make decisions" provides:

These statutory provisions are supplemented by the Mental Capacity Act 2005 Code of Practice.

I should also refer briefly at this point to the process provided under sections 24 and 26 under the MCA, whereby a person may make an advance decision to refuse treatment.

So far as those provisions are concerned, the distinction is drawn between those treatments that are life sustaining and those that are not. In the case of the latter, no formality is required and section 24(3) provides that:

In the case of life sustaining treatment, however, section 25(5) and (6) provides that an advance decision is not applicable unless it is verified by a statement to the effect that it is to apply to that treatment even if life is at risk; and, further, that both the decision and the statement must be in writing and signed by P or another person in P's presence and at P's direction in the presence of a witness who has also signed the decision and the statement of verification. No further reference to this process is necessary in this case because it is accepted that Dr. A. has not made any advance decision that complies with these formalities.

In this case the crucial questions are:

In this context, where the consequences of a decision will be fatal for Dr. A., the court must in my view be particularly careful not to treat him as incapable of making a decision merely because the decision is extremely unwise. As I pointed out in PH v. A Local Authority and Z Limited and R [2011] EWHC 1704 (Fam) and subsequently in CC v. KK [2012] EWHC 2136 (COP) , there is a risk that all professionals involved with treating and helping a person - including of course a Judge in the Court of Protection - may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out the appropriate assessment of capacity that is both detached and objective.

In assessing the question of capacity, the court must consider all the relevant evidence. In CC v. KK (supra) I observed at paragraph 24 that:

In this case the court has evidence from Dr. JW, an independent psychiatric expert, Dr. WJ, the psychiatrist principally involved in treating Dr. A, Dr. CA, a Farsi-speaking psychiatrist who has assessed Dr. A during his admission, Dr. CB, his treating physician, and finally Dr. A. himself.

The first question is whether Dr. A. is suffering from a mental disorder so as to cause an impairment or disturbance in the functioning of his brain. The consensus among the psychiatrists is that he is suffering from either a paranoid personality disorder or a delusional disorder. Dr. WJ considers that it is possible that he is suffering from a paranoid personality disorder. She identified a number of factors present which point to such a diagnosis including a pre-occupation with conspiratorial explanations, a sense of personal rights out of keeping with his actual situation and a tendency to excessive self-importance. She acknowledges, however, that there are some difficulties in making a clear diagnosis because (i) there are cultural and regional variations in the manifestations of personality, (ii) there is little or no evidence of his pre-morbid personality and (iii) it is possible that some of his personality traits may be attributable either to the effects of starvation itself or to another condition such as delusional disorder.

The alternative diagnosis, delusional disorder, is less common and also dependent on an analysis of whether the beliefs held are acceptable. Dr. WJ highlights the following features of Dr. A's beliefs which she considers point to the diagnosis of a delusional disorder:

In oral evidence Dr. WJ added that delusional disorder is relatively rare. The psychological symptoms are often very subtle and may be difficult to detect if the patient avoids talking about the matters which suggest that he has the disorder. In this case, once he had realised that he had expressed beliefs which had raised concerns, Dr. A. became reluctant to talk about them. Dr. WJ acknowledged that there are difficulties in making a diagnosis of delusional disorder in the context of the widespread suspicion and accusations about the activities of the Iranian Government. On balance, however, she concludes that Dr. A. does suffer from the disorder having regard to the way it has fluctuated when he took, and then stopped taking, antipsychotic medication.

Dr. WJ's view was shared by both Dr. CA, who provided a witness statement exhibiting his reports at various stages of Dr. A's hospital admission, and by Dr. JW, the independent expert instructed to carry out the assessment of Dr. A's capacity to litigate and make decisions about nutrition and hydration. Dr JW conducted an exhaustive review of the medical records and interviewed Dr. A. with the assistance of an interpreter. He found evidence of rigid thinking, persecutory delusions and a possible abnormality of mood. As these abnormal mental processes and behaviours were present during the period of profound weight loss, he accepted that it was therefore difficult to attribute them unequivocally to a condition unrelated to that loss. He noted, however, that Dr. A's thinking became more flexible and his fixed beliefs abated when he was treated with olanzapine and returned when this treatment ceased. On a balance of probabilities, therefore, he concluded that Dr. A. was suffering from a delusional disorder and as a result there was an impairment of and/or a disturbance in the function of his mind or brain within the meaning of the MCA.

In oral evidence both Dr. WJ and Dr. JW also attached importance to a document described in the proceedings as his "Will" written by Dr. A. in April 2012 in which he purported to make dispositions of his estate after his death and which contains further evidence of his delusional beliefs. Dr. WJ drew attention, in particular, to the account in that document of a theft of money whilst he was in Malaysia which he said had been attributed to the Iranian Intelligence Services by the Malaysian Police; an assertion that, while in Cambridge, he had come under pressure to go to Iran to speak to the Supreme Religious Leader; and his assertion that he had been "subjected to major intentional food poisoning" on two occasions designed "to scare me and drive me toward Khamene'i's mercenaries." Having read this document and discussed it with Dr. A., Dr. WJ felt that it was consistent with a delusional disorder. Dr. JW agreed and noted in particular that it was written before Dr. A. started his hunger strike.

All three psychiatrists, Dr. WJ, Dr. CA and Dr. JW, concluded that, as a result of his delusional disorder, Dr. A. lacks capacity to make decisions as to his nutrition and hydration. Specifically he lacks the capacity to use and weigh the information relevant to the decision whether to accept nutrition and hydration. Dr. WJ listed a series of reasons for reaching this conclusion:

Dr. WJ also noted that, whilst on occasions Dr. A. has expressed a wish to die, more frequently he has stated that he wishes to live and has expressed gratitude to the doctors for not letting him die. In this context, Dr. WJ referred to conversations she has had with him about making an advance decision to refuse treatment. Dr. WJ thinks that it is significant that he has not taken up this suggestion.

Dr. WJ's view was again shared by the other doctors. For Dr. JW, the independent expert, the clearest evidence of this inability to use and weigh the information relevant to the decision is his persistent belief that the UKBA will grant him a visa should he continue to refuse food. In these circumstances, all three doctors - Dr. WJ, Dr. CA and Dr. JW - conclude that he lacks the capacity to make decisions about his nutrition and hydration. Dr. JW, who alone was asked to advise as to his capacity to litigate, concludes that he also lacks that capacity.

The only difference between the doctors who gave oral evidence was as to whether Dr. A's loss of capacity was temporary or indefinite. Dr. JW thought that the loss of capacity was temporary and predicted that capacity would return after treatment. Dr. WJ acknowledged that his loss of capacity might be temporary, but was not confident that it would return given his underlying personality, his history of depression and his very fragile mental state.

Dr. A. also gave oral evidence at the hearing with the aid of an interpreter. He answered questions from the court and from leading counsel for the Official Solicitor. He reiterated that the purpose of his hunger strike was to persuade the UKBA to relent and return his passport. He said that most of the problems had arisen because he was not fluent in English and because of cultural issues. When asked about the Will, he said that "in Farsi we tend to exaggerate". Had he known that people would take the statements in the Will so seriously, he would not have written them. In response to detailed questions about the contents of that document, however, he substantially reiterated his assertions about the events in Malaysia, the actions of Iranian Intelligence Services, the pressure put on him by people in Cambridge to return to Iran and the incidents of food poisoning, and in some respects elaborated upon them.

Having considered all the evidence, I accept the opinion of the psychiatrists in this case that Dr. A. is suffering from a delusional disorder characterised by the symptoms which Dr. WJ, in particular, described in detail in her statement and oral evidence. I accept that the Will provides particularly pertinent evidence of the disorder dating, as it does, from a period when he was not on hunger strike. I also accept that, as a result of his delusional disorder, Dr. A. lacks the capacity both to litigate and to make decisions about nutrition and hydration and associated treatment. In reaching that conclusion I have of course considered carefully whether his actions are indeed attributable to his mental disorder or merely an extremely unwise action based on a genuine, but misguided, misunderstanding as to the way in which the British authorities and in particular the UKBA operate. It is not uncommon for people to go on hunger strike in the hope that the Government will be forced to change its policy. Hunger strikes are a legitimate form of political protest. Not all hunger strikers are suffering from a mental disorder. In this case, however, I am satisfied that Dr. A. is suffering from a delusional disorder and that this impairs the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment.

I note the difference of opinion between Dr. WJ and Dr. JW as to whether the lack of capacity is temporary or indefinite. I have taken that into consideration and will therefore review the question of capacity at any further hearing that may be directed at the conclusion of this hearing, but it does not affect my decision today. Accordingly, I shall make the declarations as to lack of capacity sought by the applicant Trust.

When deciding what order to make on behalf of a person who lacks capacity, whether under the MCA or under its inherent jurisdiction, the court must act in his best interests. Under the MCA, the principles in section 1 continue as follows:

Section 4 headed "Best Interests" makes the following provisions:

Although as a matter of strict law these principles do not apply when the court is exercising its inherent jurisdiction, they are manifestly applicable in those circumstances because best interests lies at the heart of the inherent jurisdiction. As Munby J (as he then was) observed in Re SA (Vulnerable Adult with Capacity) [2005] EWHC 2492 (Fam) at paragraph 96, when exercising the inherent jurisdiction, it is "elementary that the court exercises its powers by reference to the incompetent adult's best interests".

In determining the best interests of an incapacitated adult the courts have developed the use of a balance sheet approach, as explained by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at 560(f) to (h):

This approach developed under the inherent jurisdiction has been applied in cases under the MCA (see, for example, W v. M [2011] EWHC 2443 ).

Applying that approach to this case, the following factors can be assigned to the balance sheet in favour of an order permitting forcible provision of nutrition and hydration to Dr. A. in this case:

On the other side of the balance sheet, the arguments against making an order permitting forcible artificial nutrition and hydration are as follows:

Having taken all those factors into account, I have come to the clear conclusion that the balance comes down in favour of making an order permitting the forcible feeding by artificial nutrition and hydration. In particular, the magnetic factor to my mind is the importance of the preservation of life. The importance of this factor has been recognised on numerous occasions in many reported cases. In Bland , (supra) for example, Lord Goff of Chieveley observed at page 863:

In R (Burke) v. GMC (Official Solicitor and Ors. intervening) , Munby J (as he then was) expressed this point in this way in a passage later approved by the Court of Appeal in that case:

Paragraph 5.31 of the Mental Capacity Act 2005 Code of Practice requires that:

The principle continues to carry very great weight in recent cases (see, for example, W v. M (supra) and A Local Authority v. E [2012] EWHC 1639 (COP) ).

This court gives due respect to the factors on the other side of the balance sheet, in particular Dr. A's wishes and feelings. But, in deciding what weight to ascribe to those wishes, it is of course relevant that this court has concluded that he lacks the capacity to use and weigh up information relevant to a decision. Furthermore, I accept the evidence of his treating clinicians that there is a degree of ambivalence about his wishes. I therefore conclude that it is in Dr. A's best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.

I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties' legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward.

The problem in identifying the court's jurisdiction to make an order that Dr. A. be subjected to forcible feeding arises from the fact that such treatment involves a deprivation of liberty within the meaning of Article 5 of the European Convention of Human Rights. The law defining the circumstances which amount to a deprivation of liberty is well-known and has been developed principally in a line of decisions made in the European Court of Human Rights, most importantly Guzzardi v. Italy , (1981) 3 EHRR 333 , Storck v. Germany (2005) 43 EHRR 96 and HL v. the United Kingdom (2004) 40 EHRR 781. For the purposes of this judgment, the principles can be stated briefly. When determining whether there is a "deprivation of liberty" within the meaning of Article 5, three conditions must be satisfied:

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

Unlike many cases, therefore, the fact that he is being deprived of his liberty is not in dispute. The difficulty arises over identifying how that deprivation may be authorised in law. To describe the problem it is necessary to revisit, briefly, the history of deprivation of liberty in mental capacity cases. As is well-known, the European Court in HL v. United Kingdom (the so-called " Bournewood " case) held that the use of a common law doctrine of necessity as justification for the detention of mentally incapacitated adults who did not qualify for treatment under the MHA was an infringement of Article 5(1)(e) of the Convention, which requires that such detention must be carried out in accordance with a procedure prescribed by law. The lacuna identified in that case, commonly known as the Bournewood gap, was filled by the passage in the Mental Health Act 2007 of extensive amendments to the MCA 2005. The major change introduced by these reforms were the deprivation of liberty safeguards (the so-called "DoLS"), a complex administrative procedure set out in a new schedule to the MCA, schedule A1, for "The authorisation of the detention of a person in a hospital or a care home for the purposes of being given care or treatment in circumstances which amount to a deprivation of liberty". That administrative procedure is subject to a jurisdiction vested in the Court of Protection by section 21A of the Act to review the lawfulness of the detention.

It is unnecessary for the purposes of this judgment to set out the lengthy and complex terms of the DoLS in any detail. Suffice it to say that schedule A1 provides inter alia that a "standard authorisation" for the detention of a person ("P") must be given by the relevant supervisory body if P meets so-called qualifying requirements identified in the schedule. One of these requirements is the so-called eligibility requirement in respect of which paragraph 17 of schedule A1 provides:

The current case does not concern an application for authorisation under Schedule A1, but rather a direct application to the Court of Protection. Under section 16(1) and (2) of the MCA, the court may make an order in relation to matters concerning P's welfare and under section 17(1)(d) those powers extend to "giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P". In exercising those powers, the court must of course act in P's best interests in accordance with section 1(5) and applying the principles in section 4.

The power to make orders for P's welfare includes the power to make an order that deprives him of his liberty (section 4A inserted by the 2007 amendments). That power, however, is subject to the important qualifications set out in section 16A (also inserted by the 2007 amendments). Section 16A reads as follows:

Schedule 1A is generally regarded as one of the more difficult provisions in this complex legislation. It provides as follows:

Determining ineligibity

Authorised course of action not in accordance with regime

Treatment for mental disorder in a hospital

P objects to being a mental health patient etc

(3) The first condition is that the relevant instrument authorises P to be a mental health patient.

(4) The second condition is that P objects:

PART 2 – INTERPRETATION

Application

Mental health regimes

Hospital treatment regimes

Guardianship regime

England and Wales enactments

P within scope of Mental Health Act

Authorised course of action, relevant care or treatment and relevant instrument

'authorised course of action' means any course of action amounting to deprivation of liberty which the order under section 16(2)(a) authorises;

'relevant care or treatment' means any care or treatment which:

Expressions in paragraph 5

Expressions with same meaning as in Mental Health Act

Thus, schedule 1A refers back to the Mental Health Act ("MHA") for certain important definitions. "Medical treatment" is defined by section 145(1) of the MHA, as amended by the 2007 Act, to include "nursing, psychological intervention and specialist mental health care, habilitation and rehabilitation"; but this definition is also now subject to section 145(4), also added by the 2007 amendments, which provides that:

The skeleton arguments originally prepared for this hearing on behalf of the applicant Trust and the Official Solicitor made no reference to any restriction on the powers of the Court of Protection to make an order for the deprivation of Dr. A's liberty so as to facilitate force feeding. In the course of the hearing on 30 th and 31 st January, however, I suggested to counsel that on one view Dr. A. seemed to fall within case E of Schedule 1A of the MCA and, if so, would by virtue of section 16A be ineligible for any order under the MCA that deprived him of his liberty. That suggestion was based on the decision of Charles J in GJ v. The Foundation Trust [2009] EWHC 2972 who held inter alia that the words "could be made" in paragraph 12(1)(a) of schedule 1A should be interpreted as meaning whether, in the view of the decision maker - that is to say, in the case of an application for welfare order under section 16, the court - the criteria set by or the grounds in sections 2 or 3 of the MHA are met and, if an application was made under them, a hospital would detain P. In the light of the evidence suggesting that the criteria set by section 2 might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was "within the scope of the MHA" and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

It was this point that led to the extensive reflection and consideration by the parties and their subsequent lengthy written submissions, which, in turn, led to my decision to list the matter for further legal argument, a decision prompted in part by the proposal in the submissions prepared on behalf of the Official Solicitor that Charles J's interpretation of the phrase "could be made" in paragraph 12(1)(a) of Schedule 1A should not be followed. In the event, however, the decision by Dr. A's clinicians on 14 th March to place him under section 3 of the MHA obviated the need for that particular argument to be ventilated further, at least at this stage in these proceedings, since it had the effect of removing him from case E.

The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a "hospital treatment regime" within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.

Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his "treatment" under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

In an attempt to shed some light on this difficulty, junior counsel in this case, Miss Paterson and Miss Street, have, at my request, devoted long hours in the course of adjournments during the hearing to a perusal of Parliamentary material consisting, in particular, of reports of debates in Hansard and the report of the Joint Committee on Human Rights relating to the passage of the 2007 Act. It seemed to me that, given the ambiguity, obscurity and possible absurdity of the legislation, recourse to such material - if it consisted of clear statements from a Minister or other promoter of the bill - might be permissible under the rule in Pepper v. Hart [1993] AC 593 . I mean no disrespect to Miss Paterson or Miss Street or their diligent efforts by recording that their labours were in vain. I was taken to several passages in the reports that were of, at best, marginal relevance to the issue; but, regrettably, they are of no real assistance. There is no statement within any of the Parliamentary material that is admissible under the rule in Pepper v. Hart .

The Official Solicitor now suggests three solutions to the problem described above:

I shall consider these options in turn.

Can the forcible feeding be carried out under the MHA?

The Official Solicitor argues, first, that the necessary feeding and associated measures can be taken under the MHA because, on the facts of this case, the forcible feeding comes within the meaning of "medical treatment" under section 145 of the MHA and thus is included in the range of treatment that can be administered under section 63 of the MHA without Dr. A's consent.

The Official Solicitor cited two cases in which the phrase "medical treatment given to him for the mental disorder from which he is suffering" has been interpreted so as to include forcible feeding by nasogastric tube, namely B v. Croydon Health Authority [1995] (Fam) 133 and R v. Collins ex parte Brady [2000] Lloyd's Rep Med 355. The Croydon case concerned a patient suffering from a psychopathic disorder, one of the symptoms of which was a compulsion to self-harm, and, as a result, she stopped eating and her weight fell to a dangerous level. It was held at first instance by Thorpe J (as he then was) and subsequently by the Court of Appeal that nasogastric feeding amounted to medical treatment since that term included a range of acts ancillary to the core treatment, including those which prevented the patient harming herself and alleviated the consequences of the disorder. Hoffmann LJ (as he then was) observed at page 139A in the Court of Appeal judgment:

In Brady , the prisoner, Ian Brady, was on hunger strike following his move to a different ward in Ashworth Hospital. He argued that his refusal of food was unrelated to his medical disorder and was a rational decision by a competent person. The respondent hospital argued on the other hand that, whatever may be the intention of the applicant, his refusal of food was a symptom, manifestation or consequence of his mental personality disorder. The Judge, Maurice Kay J (as he then was) found for the respondent hospital stating at paragraph 44:

Mr. Moon and Miss Street also cite the decision of Wall J (as he then was) in Tameside and Glossop Acute Services Trust v. CH [1996] 1 FLR 762 which concerned a schizophrenic mother to be whom doctors concluded needed a caesarean section because of complications in her pregnancy, but who harboured the delusional belief that the medical advice given to her was malicious and harmful to the child. The court made a declaration under section 63 of the MHA authorising the caesarean section operation and all necessary ancillary measures, including reasonable restraint.

The Official Solicitor submits that these cases taken together are authority for the proposition that the necessary feeding and associated measures in this case can be taken under the MHA. He submits that this interpretation of the MHA is reinforced by the amendments to section 145 introduced via the 2007 Act which expressly provides that medical treatment in relation to a mental disorder is to be construed as a reference to treatment, the purpose of which is to alleviate or prevent the worsening of the disorder of one or more of its symptoms or manifestations. He also draws attention to section 6 of the MHA 1983 Code of Practice (published in 2008) which provides inter alia at paragraph 6.5:

The applicant Trust does not accept that the necessary feeding and associated measures in this case can be taken under the MHA. In her witness statement, Dr. WJ, Dr. A's treating psychiatrist, expressed the view that in this case forcible feeding was not treatment within the meaning of the MHA:

Dr. WJ also expressed concern about the consequences should an appeal against his detention under section 3 be successful.

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

In her final submissions on behalf of the Trust, Miss Paterson informed me that there are real concerns about the extent to which section 63 of the MHA can be relied on to carry out treatment of physical conditions. If clinicians are in a position where a physical problem only incidentally connected to the mental health disorder could be treated under that section, there is, says Miss Paterson, a perceived risk that the number of patients under section may increase. Such a development would be therapeutically undesirable as doctors prefer, wherever possible, to treat patients informally rather than under section in the hope that a patient will engage with treatment if acting voluntary. Generally, Miss Paterson told me, there is anxiety about the absence of clarity in this area because it is something with which doctors have to grapple every day. In addition Miss Paterson reminds me that the remedies for a patient detained under section 3 of the MHA are either to challenge the section or to seek a judicial review of the proposed treatment. Each of these remedies is a blunt instrument compared to an application to the Court of Protection under the MCA or to the High Court under the inherent jurisdiction seeking an order in the patient's best interests.

In a further addendum written submission delivered after the hearing, Miss Paterson also cited the decision of the European Court in X v. Finland in which the forced administration of medication to a patient without any immediate judicial scrutiny, or any other remedy whereby a court was able to rule on the lawfulness including proportionality of the treatment, was an infringement of Article 8.

Mr. Moon and Miss Street emphasise that the Official Solicitor recognises the importance of not extending the meaning of "medical treatment" too far so as to extend the deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA, that is to say, a deprivation of liberty in respect of treatment that is not properly aimed at alleviating the disorder or its symptoms or manifestations. They argued, however, that Dr. WJ's view is based on too narrow an understanding of the phrase "medical treatment for the mental disorder from which A is suffering" in section 63. They submit that Dr. WJ has not taken sufficient account of the wider words of the amendments effected by the 2007 Act. The Official Solicitor submits that Dr. A. is delusional and his refusal to eat is a manifestation of his mental disorder. It is submitted that treatment which is intended to alleviate one of the manifestations of a mental disorder is medical treatment for the mental disorder, even if that treatment does not successfully make a difference to the patient's underlying mental state. His inability to use or weigh information impacts directly upon his decision to accept nutrition and hydration. The Official Solicitor submits that the possible difficulties that may arise should Dr. A. successfully appeal against his section can only properly be considered if and when they arise.

On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady .

I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case 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 be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.

I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA.

The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.

It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights "everyone's rights to life shall be protected by law". Amongst the duties imposed on the State by Article 2 is the so-called "operational duty" requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245 . In Savage v. South Essex Partnership NHS Foundation Trust [2008] UKHL 74 , [2009] AC 681 , the House of Lords held that:

In Rabone v. the Pennine Care NHS Foundation Trust [2012] UKSC 2 , the Supreme Court decided that the "operational duty" also extended to protect against the risk of suicide by informal psychiatric patients. The Official Solicitor now submits that the operational duty also exists to protect against the risk of death by starvation of a patient, such as Dr. A., who is currently in hospital, lacks capacity to decide whether to accept nutrition and hydration and whose best interests would be served by receiving nutrition and hydration by force if necessary.

Under section 3(1) of the Human Rights Act:

It has been said by Lord Nicholls of Birkenhead in Re S (Care Order) (Implementation of Care Plan) [2002] UKHL 10 , [2002] 2 AC 291 at paragraph 37 that section 3 "is a powerful tool whose use is obligatory. It is not an optional canon of construction. Nor is its use dependent on the existence of ambiguity." Furthermore, the court is a public authority for the purposes of the Human Rights Act (see section 6(3) of that Act). Under section 6(1):

It is therefore submitted that the consequence of these provisions in that this court is under a duty to interpret the MCA in a way that ensures that Dr. A's rights under Article 2 are respected.

The Official Solicitor submits that, in the light of the duty to interpret the MCA in a way that ensures that Dr. A's rights under Article 2 are respected, section 16A(1) should be read narrowly so as not to prohibit the inclusion of a welfare order or a provision which authorises the person to be deprived of his liberty where such a provision is necessary to uphold the person's right to life under Article 2. Alternatively, the Official Solicitor submits that the following words should be read in at the end of section 16A(1): "save where such provision is necessary to uphold the person's right to life under Article 2 of the European Convention on Human Rights". He submits that a process of reading down or reading in is permissible as it does not go against the grain or thrust of the legislation, which was to fill the Bournewood gap and provide proper safeguards for mentally incapacitated adults who fell outside the scope of the MHA.

On this point the Official Solicitor's arguments are supported by the applicant Trust. Despite that unanimity, however, I am unable to accept their submissions at this stage, for the following reasons.

The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

For centuries the courts exercised jurisdiction derived from the Crown as parens patriae in respect of incapacitated adults. That jurisdiction was abolished following the implementation of the Mental Health Act 1959. At common law, however, the High Court retains jurisdiction in respect of incapacitated adults and in particular to give or withhold consent for medical treatment on the grounds that it is in the best interests of the patient: see Re F (Mental Patient: Sterilisation) [1992] AC 1. As Lord Donaldson of Lymington, Master of the Rolls, observed in the Court of Appeal in that case (page 30(e)) in a passage approved by the House of Lords on appeal:

The extent and development of this jurisdiction over the ensuing fifteen years is described and analysed by Munby J in Re SA (Vulnerable Adult) [2005] EWHC 2942 (Fam) , [2006] 1 FLR 867 . At paragraph 37, he summarised the position thus:

Although the MCA 2005 was intended to provide a comprehensive code for the care of mentally incapacitated adults, it is now firmly established that the inherent jurisdiction has survived the arrival of that statute. So much is clear from the Court of Appeal decision in Westminster City Council v. C [2008] EWCA Civ 198 , [2009] (Fam) 11 in which Wall LJ observed at paragraph 54:

Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ 253 in which Davis LJ said at paragraph 70:

The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, "Limited use of Wardship and Inherent Jurisdiction in matters relating to Children". On this, McFarlane LJ said at paragraph 61:

The case of DL 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 MCA was designed to provide a comprehensive code for mentally incapacitated adults. The decision in Westminster City Council v. C (supra) 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. AA [2012] EWHC 2183 (COP) at paragraph 54:

In those circumstances, Mr. Moon and Miss Street submit that this court has the power under its inherent jurisdiction to make the orders sought on behalf of Dr. A. and are supported in this regard by the applicant Trust. The reasons identified by Mr. Moon and Miss Street are as follows:

I agree with those submissions.

Under its inherent jurisdiction, the High Court can make an order authorising a deprivation of liberty but such an order must comply with the provisions of Article 5: per Munby J in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam) ). In particular, any order authorising detention must contain provision for an adequate review at reasonable intervals (see paragraph 23). The reason for this requirement was explained by Munby J in Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam) at paragraph 10:

Finally, as stated above, the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.

In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient's liberty.

Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

I shall discuss the precise terms of the declaration and order with counsel at the conclusion of this judgment; but that order will provide for a review by this court, which, subject to hearing further submissions, I propose to list in about four months' time in July of this year.

On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors' opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties , detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14 th June 2013 Dr WJ rescinded Dr A's detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.