B e f o r e :
THE HONOURABLE Mr JUSTICE CHARLES ____________________
____________________
Bridget Dolan (instructed by Kennedy's) for the Claimant Kate Markus (instructed by Fosters) for the Defendant Edward Solomons, Solicitor Advocate and Deputy Official Solicitor Hearing date: 20 May 2004 ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
The Hon. Mr Justice Charles:
Introduction
This case concerns Ms T who is 37 years old. The Claimant seeks declaratory relief concerning her medical treatment. The Claimant is responsible for the medical care of Ms T, but it is not responsible for her psychiatric care and at present does not have her psychiatric records.
At the hearing before me Ms T was represented by solicitors and counsel. I also heard submissions from the Official Solicitor and, of course, the Claimant. The Official Solicitor was present and represented in one or more of the following capacities, namely, as the potential litigation friend of Ms T, as a friend of the court or as a person who would be invited to make enquiries by the court. His participation was extremely helpful. I pause to comment that it is well recognised that the participation of the Official Solicitor in cases of this type, which are difficult and sensitive, is helpful to the court and others who are involved in them.
I was told that the solicitors acting for Ms T have experienced difficulties in obtaining public funding. To my mind this is surprising and unfortunate. The judge who deals with this case at final hearing may wish to return to this point, however I record at this stage, that in cases of this type it is important that all practical efforts are made to enable the person who is, or may be, refusing treatment to be properly heard (see the guidelines in reported cases referred to below). An important aspect of that is the funding of his or her legal representation.
Background
It was common ground before me that Ms T suffers from a borderline personality disorder and that she has had a long history of psychiatric contact with relevant services.
Ms T has on a number of occasions over the years self harmed by cutting herself and blood-letting. The consequence of this blood-letting is that her haemoglobin level falls to a life threateningly low level such that she requires blood transfusion on an emergency basis. My references to blood transfusion should be read as including iron supplements and other necessary treatment in respect of her dangerously low haemoglobin. This emergency situation can arise on or very shortly after her presentation at, and admission to hospital. The high risk that exists at these times of chronic anaemia is that in the absence of a blood transfusion sufficient oxygen will not be transferred to her body tissues and Ms T will die.
Over the years Ms T has been given blood transfusions on a number of occasions in such emergency situations by the Claimant and although her initial stance has been to refuse such transfusions she has been persuaded by clinicians, or has decided to, accept them.
Such an incident occurred in the autumn of 2001 and it generated some medical opinions which are before me. I shall return to these medical opinions.
On 28 January 2004 Ms T signed an advance directive which contains the following passages:
The letter from the GP that is referred to in the advance directive is signed by the GP and Ms T. It is addressed 'To whom it may concern' and states as follows:
On 22 March 2004 Ms T was seen by the Claimant's treating psychiatrist (Dr C) who reported his views in a letter dated 24 March 2004 which includes the following:
This letter was copied to Ms T's social worker.
The prediction contained in that letter that Ms T would need a blood transfusion was proved to be correct in early April 2004 and this need led to an out of hours application to the Duty Judge, Pauffley J, on Friday 9 April 2004. She made the following order:
The background to the making of that order was briefly that Ms T had been admitted to hospital on the night of Thursday 8 April 2004 having been found in a collapsed state as a result of cutting herself and losing a substantial amount of blood. She was refusing a blood transfusion and the hospital was aware of (a) the advance directive, the accompanying letter from the GP, and the letter from Dr C (the treating psychiatrist) which I have referred to earlier and (b) the medical opinions relating to a similar incident in the autumn of 2001 which I refer to later.
By the evening of Friday 9 April 2004 it was apparent that Ms T's condition had deteriorated further with her losing the ability to communicate and requiring oxygen. The treating consultant advised that Ms T was at imminent risk of cardiac arrest with uncertain prospects of resuscitation. In those circumstances the matter was treated by the Claimant as an emergency and an application was made to the Duty Judge.
During Friday 9 April 2004 there had been telephone communication concerning the developing situation relating to Ms T between the Claimant and the Official Solicitor. I understand that following the making of the order Ms T received a blood transfusion. I am unclear whether by that stage she was able to object but I understand that the transfusion was given without physical or verbal resistance from Ms T. She has recovered well and was discharged home on 13 April 2004.
On 16 April 2004 her solicitors wrote to the Claimant stating that Ms T stood by her advance directive and wished to oppose further treatment by blood transfusion. On 4 May 2004 Dr C wrote a further letter saying inter alia:
The issues in the present proceedings.
These flow from the points that:
ii) if an adult does not have capacity the court can authorise his or her medical treatment in his or her best interests.
The legal method by which the court has given such authorisation has been by the grant of a declaration (see, again, for example S )
It follows that the trigger issues in these proceedings relate to whether Ms T had capacity when she entered into the advance directive, and whether she has capacity now and at the final hearing.
Further, in my view, there is an issue as to the effect of the advance directive having regard to its terms when read alone or together with the letter from Ms T's GP which is referred to in the advance directive. The point that is not clear to me is whether the true interpretation of the advance directive is that:
ii) it is a declaration that Ms T wishes to be consulted, or for her advocate and further or alternatively her social worker to be consulted, if and when the question of her having a blood transfusion arises.
The common position before me was that if (i) above is the correct interpretation of the advance directive it means that if Ms T had capacity at the time she entered into it then, unless she becomes subject to compulsory treatment under the Mental Health Act 1983, in a situation that is the same as or similar to those which have arisen in the past when she has been given a blood transfusion she could not be given a blood transfusion and she would thus be at high risk of dying (see for example paragraph (iii) of the guidelines in S ).
If it is found that Ms T lacked capacity at the time she entered into the advance directive, or that on its true construction it is not determinative of her wishes for the future (or naturally if the advance directive was to be validly revoked) the issue of Ms T's capacity would still have to be considered by the court before it could give a declaration authorising treatment by blood transfusion that was against the expressed wishes of Ms T now, or at the time the treating doctors recommended such treatment.
This gives rise to the point whether a declaration can be made, or should as a matter of discretion be made, in advance of the time that such treatment is recommended.
Further before any declaration authorising treatment of Ms T by blood transfusion is made the court will have to consider whether or not such treatment is in her overall best interests.
The position before me
The proceedings came before me in the applications list for directions. In addition to directions the Claimant sought (in broad terms) an interim declaration authorising the treatment of Ms T by way of blood transfusion if her haemoglobin level is such that such treatment is necessary to preserve her life or avoid imminent risk of serious injury to her health.
Directions were agreed but the grant of such an interim declaration was disputed.
The possibility of a relevant change of circumstances
It seems to me that in some cases the grant of a declaration (whether interim or final) in respect of treatment in the future of a person alleged to lack capacity could not, or would not as a matter of discretion, be granted because of the possibility of changes in either or both of:
ii) the state of health of that person and the reasons for and effect of the proposed treatment.
It was not argued before me that this was a case in which the possibility of change and thus uncertainties as to the future would warrant the refusal of an interim declaration on the basis that it was premature to make one. In my view the parties were correct not to make such an assertion because:
ii) Ms T's history and the present medical information available to the parties and before the court demonstrate that the circumstances and events leading up to the situation that existed on 9 April 2004, when Ms T was given her last blood transfusion, are likely to be repeated with no material differences. (This is why I say in paragraph 31 'as and when' rather than ' if and when' such a situation occurs in the future).
As to both these points see the citations in this judgment from the views of psychiatrists in 2001 and now.
Further, the medical information presently available to the parties and the court indicates that in such a situation if Ms T is not given a blood transfusion there is a high risk that she would die.
The above lack of uncertainty relating to changes in Ms T's capacity and further, or alternatively, her medical condition and recommended life saving treatment may distinguish this case from others. Also the point that in Ms T's case the pressing need for a blood transfusion arises from time to time and once it has been administered Ms T recovers fairly quickly and is discharged from hospital may be a distinguishing feature of this case
Pragmatism
Given the recurring nature of the problem relating to Ms T's need for a blood transfusion to my mind there is obvious pragmatic force in seeking relief from the court which can be implemented as and when in the future an emergency arises in respect of Ms T which is the same, or essentially similar, to those that have arisen in the past. Not least this enables the issues to considered without the added pressures created by a background emergency.
In this context I comment that potentially different considerations arise in respect of an interim declaration and a final declaration not least because the former is limited in time by reference to the proceedings and during that period an emergency situation such as those that have occurred in the past may or may not occur. At the final hearing if history is a guide a similar need for life saving treatment will arise in the future but the time frame is potentially open ended.
Jurisdiction to grant an interim declaration
The judgment of the Court of Appeal in S makes it very clear that as the law then stood an interim declaration was not something known to the law and was not something that could be granted by the court (see, in particular, [1998] 2 FLR at 755E where the court said:
In the Riverside case referred to in that passage the declaratory order had been made ex parte and authorised feeding under sedation. The order provided that the matter should be heard inter partes at a later date and it was held that this provision made it an interim declaration and thus an order that the judge had had no jurisdiction to make.
When I raised the issue of jurisdiction to make an interim declaration the solicitor-advocate for the Official Solicitor drew my attention to Part 25.1 (1)(b) of the CPR which is in the following terms:
It follows from the introduction by the CPR of the power to grant an interim declaration that such relief can no longer be said to be 'unknown to the law' and can no longer be said to be 'a contradiction in terms'. That said, a number of the conceptual difficulties referred to in the earlier authorities and which found the conclusions reached therein on the approach to the grant of, and the effect of, declarations remain.
It was however common ground before me that I had jurisdiction to make an interim declaration along the lines sought by the Claimant pursuant to the power granted by CPR Part 25.
I agree. Although the notes to Part 25 make clear that this form of relief was recommended by the Law Commission in the context of proceedings for judicial review the power has not been so limited by Part 25 and therefore in my view in these Part 8 proceedings I have the power to make an interim declaration.
My approach to the grant of an interim declaration.
In addition to the notes to Part 25 I was referred to a textbook passage concerning judicial review which understandably was directed to proceedings of a different type to those before me. I was also referred to A London Borough v (1) Mr BS (2) S (an adult by her litigation friend the Official Solicitor) [2003] EWHC 1909 where the report shows that interim declarations were granted by both Johnson J and Hughes J. However the report before me contains no reference to the approach or test they took in granting those interim declarations.
The upshot was that I was not referred to authority which gave any real assistance as to the approach or test I should adopt. Further (and necessarily given the time constraints of the applications court) the argument I heard on the test or approach to be adopted was limited. I hasten to add that in mentioning this I make no criticism of any of the parties or their representatives and I make the point to indicate that (a) as this jurisdiction develops further arguments may be put to, or occur to, the court, and (b) there would be advantages in considering the jurisdiction when more time is available.
In considering my approach I return to the judgment of the Court of Appeal in S , the problems facing those concerned with cases of this type on an emergency basis and the approach taken to them prior to the introduction of Part 25. In S [1998] 2 FLR at 755F (following the quotation set out above) the court said:
Later at 767D, the court said:
And at 758B the court gave the following guidelines:
In Re B (adult: refusal of medical treatment) [2002] 1 FLR 1090 the President dealt under the following self explanatory headings with "the principle of autonomy", "the sanctity of life", "the presumption of mental capacity" "assessing capacity" and "ambivalence" and therefore covered many of the legal issues that arise in this (and similar) cases. At the end of her judgment she gave further guidance at 1116, in the following terms
The last paragraph in the guidance in S reflects the problems that can arise in an emergency. However the problems which arise from the nature of a declaration and the point that it operates by way of an estoppel and are reflected in the passages I have cited from S remain. As all who have been involved in out of hours and emergency applications are aware these problems are considerable when the emergency involves decisions relating to life saving treatment of an adult which is in the view of the relevant doctors needed urgently but there are doubts as to the capacity of that adult.
I add that in my view the nature of the relief sought in respect of medical treatment of an adult who lacks capacity means that:
ii) a declaration in respect of treatment and the estoppel based thereon is founded on a particular set of circumstances and facts. From which it follows that as with an advance directive (see the guidance in S paragraph (iii)) it would no longer be determinative (or found the relevant estoppel) if there was a material change in those circumstances and facts. Thus, in my view, a material change in circumstances can found a reconsideration of issues relating to conclusions on both capacity and best interests on which a final (or an interim) declaration was based.
As I understand it when the court is faced with an emergency and thus for example an application for a declaration in respect of treatment that cannot be delayed by reason of there being an imminent high risk to life, an approach that has been taken in the light of the conceptual difficulties identified in S and the guidance given therein is:
ii) for the Judge to decide on capacity and then if appropriate on best interests by applying the normal civil standard on the best evidence then available.
In my view, applying that approach so long as the person who it is proposed should be treated has had an opportunity to make some representations directly or through others the court can make a final and effective declaration in respect of identified treatment which it considers on the available evidence to be in the best interests of that person for example to avoid his or her life being put at high risk because of delay in treatment. or to avert serious damage to his or her health. In making that declaration the court has to reach conclusions firstly on capacity and then on best interests based on the available evidence.
In my judgment if, as in my view is the case, such an approach founds an effective final declaration (albeit perhaps a declaration directed to only a particular and emergency session of treatment) it follows that such an approach would also enable the court to make a valid interim declaration.
I add that in my view this approach accords with that of Bracewell J in R v R (interim declaration: adult's residence) [2000] 1 FLR 451 in which after referring to the presumption of capacity and the point that it can only be displaced by clear evidence (at 452G) she went on to refuse to make an interim declaration on the basis that the application for it was premature saying at 453F, that:
That passage envisages that an interim declaration could be made on some evidence provided that it was sufficient to rebut the presumption.
I have therefore applied this approach.
As appears below I have concluded that this approach founds the grant of an interim declaration in this case and it was therefore unnecessary for me to go on to consider the validity of possible alternative approaches based perhaps on paragraph (iv) of the guidance in Re B together with the last paragraph of the guidelines in Re S . I return to this in the tailpiece to this judgment.
The application of the above approach.
Firstly I record that I recognise that further information should be obtained and put before the court to enable it to reach a decision on capacity and best interests which would have regard to all relevant evidence that can reasonably be obtained over the next few weeks. This is demonstrated by the agreed directions by which for example it is recognised that expert evidence should be obtained from an independent consultant psychiatrist and an independent consultant physician.
It follows that I recognise that I am considering the issues of capacity and best interests on what is at present incomplete information and that further evidence (and in particular expert evidence) may lead to different conclusions.
Capacity
I was referred to and have applied guidance in Re MB (Medical Treatment) [1997] 2 FLR 426 at 436G to 437H. It is as follows:
Earlier at page 433A/G it was stated:
I add that I have also had regard to the points made on capacity in Re B under the headings "the presumption of mental capacity" and "assessing capacity".
Counsel for Ms T took me to earlier views of psychiatrists who had seen Ms T in the autumn of 2001. As I (and the parties understand it) Dr C was referring to these views when he acknowledged in the letters I have cited that his views were not shared by other psychiatrists. In particular counsel for Ms T referred me to the views of the two consultant psychiatrists namely (i) Dr F in a report dated 28 August 2001 and (ii) Dr J in a letter dated 7 September 2001 addressed to a further consultant psychiatrist Dr Cr (who was employed by the Claimant) and had expressed the view (in a letter dated 16 May 2001) that Ms T did not have capacity in relation to her refusal in an advance directive dated 14 May 2001 "for treatment of low haemoglobin to a low or life threatening level causing loss of consciousness or heart failure and refusing blood transfusion or intravenous iron".
In his report Dr F said under the heading 'Opinion' inter alia the following:
Dr J states in his letter, inter alia, as follows:
Another consultant psychiatrist, Dr O, was also involved in 2001 and in a letter dated 25 October 2001 stated inter alia that:
Dr O went on to discuss the decision of the Court of Appeal in S .
It can be seen from these quotations that a similar situation to that which existed in April of this year (and exists now) also existed in 2001.
Additionally, in respect of Ms T's understanding at the time she signed the advance directive in January 2004 that her refusal of a blood transfusion could lead to her death counsel for Ms T referred me to the advance directive itself and the letter from her GP which is referred to in it. Counsel for Ms T also pointed out that the psychiatrists who had concluded that Ms T lacked capacity had not referred to the relevant test whereas Dr J had referred to Re C (which is cited in Re MB ).
In particular I remind myself of the presumption that Ms T has capacity and of the points made by the President in paragraph (v) of the guidance in Re B Further I accept that difficulties arise in assessing the effect and impact of the points made on irrationality and capacity in paragraphs (2), (3) and (4) of the "conclusions on capacity" in Re MB .
However it seems to me that Ms T's references to her blood being evil equate to the example given that "the blood is poisoned because it is red" in paragraph (3). From that it seems to me that this assertion and belief of Ms T is a misconception of reality which can more readily be accepted to be, and on the present evidence should be accepted to be, a disorder of the mind and further or alternatively symptoms or evidence of incompetence.
On the existing evidence and applying the tests referred to above I prefer the conclusion of Dr C (and those who agree with him) and find that Ms T lacks capacity and lacked capacity when she signed the advance directive. In particular I accept the following comments and conclusions in Dr C's letters, namely:
Returning to the test in my view these comments and conclusions reflect the points made in paragraph 61 above by reference to paragraph (3) of the "conclusions on capacity" in Re MB and found the conclusion on the present evidence that (a) Ms T is unable to use and weigh the relevant information and thus the competing factors in the process of arriving at her decision to refuse a blood transfusion, and lacks capacity to refuse a blood transfusion, and (b) the position was the same when she signed the advance directive. It follows that on the present evidence I do not agree with Dr J's application of Re C
Best interests
The best interests test arises if the adult in question is found to lack capacity.
In A v A Health Authority [2002] 1 FCR 481 Munby J points out at paragraph 43 of his judgment that an adult's best interests involves a welfare appraisal in the widest sense taking into account, where appropriate, a wide range of ethical, social, moral, emotional, and welfare considerations. He refers to Re A (medical treatment: male sterilisation) [2000] 1 FLR 549, where the President confirmed that best interests encompasses medical, emotional and all other welfare issues and Thorpe LJ said (at 560 B/H):
No argument was advanced before me that in the circumstances in which the suggested treatment would be administered it would not be in the best interests of Ms T to have the treatment. In my view the reason for this is that applying the above approach on the present evidence the balance of the competing factors comes down heavily in favour of Ms T having the treatment to save her life. On the present evidence the reasons advanced against the giving of the treatment are found in the advance directive under the heading "reasons for my decision". To my mind the second reason based on Ms T's belief that her blood is evil carries no weight in the balancing exercise. The first reason relates to the vicious circle Ms T says she finds herself in but in my view this does not have great weight. Further in my view it is to some extent is undermined by the point that Ms T told Dr C that in other respects she remains reasonably well and led him to understand that cutting had been rather less frequent since October 2003 (see his March letter). I say that even though I acknowledge that Dr C has also said that there has not yet been identified a validated means of treating her emotionally unstable personality disorder.
Interpretation of the advance directive
I add that in my view the opinions given in the autumn of 2001 and the history indicate that the background against which the advance directive was signed in January 2004 contains a number of indications that Ms T is, or can be equivocal. I however add that I have not relied on this, or the point raised above as to the true meaning and effect of the advance directive, in reaching my decision.
Discretion
In my view the points I have made earlier under the headings "the possibility of a relevant change in circumstances" and "pragmatism" provide strong support for the view that I should make an interim declaration now rather than refuse it on the basis that treatment is not needed now and may not be need before the final hearing.
However to guard against a relevant change in circumstances the Claimant was quite content to give through counsel an undertaking to the court to inform both Ms T's solicitors and the Official Solicitor of each of the following events as soon as is practical after they occur, namely;
(b) the making of a decision to give Ms T the treatment referred to in the declaration.
In my view that additional safeguard supports the view I have reached that having regard to the conclusions I have reached on capacity and bests interests as a matter of discretion I should make an interim declaration.
The interim declaration
I make the following declaration:
It is declared that, with effect until the substantive hearing of this matter or further order:
(b) It is lawful for the Claimant its servants or agents to administer a blood transfusion and any other treatment necessary to stabilise her condition, using such minimum force as may be necessary, if the claimant is medically advised that her haemoglobin level is such that such transfusion or treatment is necessary to preserve the defendant's life or avoid imminent risk of serious injury to her health.
Tailpiece
In my view correctly no-one suggested that the order of Pauffley J was determinative of issues relating to capacity or any other issues before me. The fact of the application before her out of hours on an emergency basis, and the issues before me, demonstrate that there are difficult human and legal problems in respect of emergencies relating to the authorisation of treatment of an adult who is thought to lack capacity, or who it is thought may lack capacity. Put another way in my view there are problems concerning the approach that should be adopted by the judge and others involved in the middle of the night when the medical opinion is that unless treatment is administered immediately the patient will die and in the case of an adult there are uncertainties relating to his or her capacity to give or refuse consent or the validity or effect of an advance directive. Similar problems exist in the case of a child when those with parental responsibility cannot be found or are not giving consent and when the child is Gillick competent and is objecting to treatment.
I respectfully suggest that point (iv) in the guidance in Re B reflects the natural instinct of many (if not most) people but to my mind the decision and guidance in Re S and the finding of unlawful treatment in Re B (albeit that in that case the patient was treated as competent over the relevant period) give rise to issues as to whether a court can assist by authorising treatment, or by otherwise protecting the doctors from being successfully sued, in the circumstances referred to in point (iv), particularly if the patient is not heard before relief is granted.
In my view the earlier guidance, such problems and the approach to be taken should be reconsidered having regard to the introduction of the power to grant an interim declaration and preferably this should be done when there is time available to consider the points that arise. It may be that at the final hearing of this case such points could be dealt with. It seems to me that included among them are (a) whether the court can grant an interim declaration without the patient being heard, (b) whether interim relief can be granted on the basis that there is doubt as to the capacity of an adult and thus by reference to best interests whilst such doubts remain and, if so, what tests should be applied in measuring the doubt that would trigger that approach and in assessing best interests, (c) whether interim relief other than an interim declaration could be granted in effect to suspend the effect of a refusal of treatment or an advance directive (and thus the autonomy of an adult who was found after full investigation to have capacity) and thereby enable the court to authorise treatment on a best interests approach until doubts as to capacity were resolved and (d) the extent to which a different approach can be taken with children having regard to the inherent jurisdiction in respect of children and the possibility of the court (i) overriding the wishes of a Gillick competent child and giving consent for the treatment of such a child or a younger child, or (ii) making a specific issue order in respect of the treatment of a child (see for example Re R (a minor) (blood transfusion) [1993] 2 FLR 757 at 759, Re O (a minor) (medical treatment) [1993] 2 FLR 149 and Re M (medical treatment) (consent) [1999] 2 FLR 1097).
The following may be relevant to such points, namely (a) the nature of an interim declaration and its legal effect, (b) the effect of point (iv) in the guidance in Re B and the last paragraph in the guidelines in Re S in respect of the lawfulness of treatment of an adult while the issue of his or her capacity is being resolved (for example in the face of an objection to the proposed treatment) and in respect of the grant of relief by the court including an authority to use reasonable force, (c) the relevance of the tests developed over the years in respect of interim injunctions having regard amongst other things to the point that if the potential patient sought relief it would probably be by way of injunction, and (d) the distinctions between the powers and approach of the court in respect of adults who lack capacity and children and in particular the importance of the autonomy of an adult of sound mind (see, for example, S at 739C to 740H) .