The case concerns the right of a psychiatric patient to choose to die by refusing intervention from the hospital. The Court considered the treatment provisions of Part IV of the Mental Health Act, capacity at common law and the legitimate interests of society in preserving life. However the notoriety of Mr Brady, and his own personality, meant that underlying the judgment were considerations of public policy as much as legal analysis

Foster, Simon

English

Northumbria Journals

180Journal of Mental Health Law November 2000Treatment for Mental Disorder - another step backwards?Simon Foster*R v Collins and Ashworth Hospital Authority ex parte Brady Maurice Kay J Liverpool District Registry(Judgment given 10th March 2000 - at time of going to print the decision is unreported.)Appearances: Mr Nigel Pleming QC and Ms Eleanor Grey (Reid Minty) for the Respondent; MrBenet Hytner QC, Ms Philippa Kaufmann and Mr Robin Makin, solicitor advocate (E Rex Makinand Co) for the Applicant.IntroductionThe case concerns the right of a psychiatric patient to choose to die by refusing intervention fromthe hospital. The Court considered the treatment provisions of Part IV of the Mental Health Act,capacity at common law and the legitimate interests of society in preserving life. However thenotoriety of Mr Brady, and his own personality, meant that underlying the judgment wereconsiderations of public policy as much as legal analysis.The factsThe Applicant, Ian Brady, was 62 years old at the date of the hearing. In 1966 he was sentenced tothree concurrent terms of life imprisonment, for which the Secretary of State fixed a whole lifetariff. Mr Brady accepts that he will never be released. In November 1985 he was transferred to thethen Park Lane Hospital (now incorporated into Ashworth) under section 47 Mental Health Act1983. In 1995 he was moved to Jade Ward, and restrictions were put on his freedom. By way ofcompensation he was granted the use of a personal computer and special visiting arrangements.However, following the publication of the Fallon Report1 the computer was withdrawn andsecurity for visitors was increased. In addition the Applicant began to fear a return to the prisonsystem. On 18th June 1999 an automatic tribunal review confirmed that the Applicant wascorrectly detained in hospital. In September 1999 the Acting Medical Director arranged a meeting to review security on JadeWard. It was agreed that the Applicant should be moved as soon as possible to a more secureenvironment. On 30th September, while the Applicant was writing in his room, a six-person teamentered in full riot gear without explanation, strip searched him and took him to a waiting vanwhich transferred him to Lawrence Ward. The Applicant was under restraint for about fiftyminutes, during which time he offered little or no resistance. His arm was injured, possibly* Principal Solicitor, MIND, London.1 The Report of the Committee of Inquiry into thePersonality Disorder Unit, Ashworth Special Hospital.Cm 4194 (1999) The Stationary Office. Treatment for Mental Disorder - another step backwards?181fractured, during the process. No-one told him why he had been moved; he feared he was beingtransferred to prison. The Applicant has never assaulted or offered physical resistance to staff,either in hospital or before that in prison.The Applicant’s response was to refuse food or sweetened drinks. He was on hunger strikecontinuously until the date of judgment. It is clear from his records that his initial purpose was toprotest, not to starve himself to death; he had used hunger strikes as a tactic some years previously. At the end of October his new Responsible Medical Officer, Dr Collins, expressed the view thatthe clinical team should intervene to prevent deterioration in the Applicant’s condition. On 29thOctober force-feeding commenced, by way of a naso-gastric tube. The Applicant did not consentto this but offered no resistance either. Dr Rix, a consultant forensic psychiatrist, offered a secondopinion, but the Applicant refused to see him.Professor Sines, who was appointed by Ashworth to consider the Applicant’s complaints, reportedon 30th November 1999. He was strongly critical of the move but decided that it had been correctto commence force feeding.On 19th October and 3rd December 1999 and 17th February 2000 the Applicant was interviewedby Professor Maden, who had seen him several times before at the request of his solicitors.Following the 3rd December interview Professor Maden reported that the Applicant had thoughtsof suicide, based on a rational argument that the regime to which he was subjected made his lifeintolerable. He could not say under what circumstances he would be prepared to end his protest. The Applicant’s application for judicial review sought to challenge “the continuing decision... toforce feed the Applicant,... apparently made pursuant to section 63 of the Mental Health Act1983.” Permission to apply for judicial review was granted on 2nd February 2000 by Forbes J, whoalso directed that the psychiatrists should attend for cross-examination. The present judgment wasgiven in open court.The lawSection 63 Mental Health Act 1983 (MHA): “The consent of a patient shall not be required forany medical treatment given to him for the mental disorder from which he is suffering, not beingtreatment under section 57 or 58 above, if the treatment is given by or under the direction of theresponsible medical officer.”Section 145 MHA: ‘medical treatment’ includes “nursing, and also includes care, habilitation andrehabilitation under medical supervision.” Medical treatment has been given a particularly wide interpretation in cases of psychopathic(personality) disorder: Reid v Secretary of State for Scotland2. In B v Croydon Health Authority3Hoffman LJ stated: “Nursing and care concurrent with the core treatment or as a necessaryprerequisite to such treatment or to prevent the patient from causing harm to himself or toalleviate the consequences of the disorder are, in my view, all capable of being ancillary to atreatment calculated to alleviate or prevent a deterioration of the psychopathic disorder. It wouldseem strange if a hospital could, without the patient’s consent, give him treatment directed toalleviating a psychopathic disorder showing itself in suicidal tendencies, but not without suchconsent be able to treat the consequences of a suicide attempt.”2 (1999) 2 WLR 28 at 44 3 (1995) 1 All ER 683 at 687182Journal of Mental Health Law November 2000Precedent facts and ‘super-Wednesbury’Mr Hytner QC, for the Applicant, submitted that the court had first to decide whether force feedingwas in fact treatment ‘for the mental disorder from which he is suffering’. The fact that Dr Collins,the RMO, had reasonably believed it to be so was not the point, as this was a ‘precedent fact’without which the treatment could not be covered by section 63: see Khawaja v Secretary of State forthe Home Department4. The words ‘in the opinion of’ the RMO did not appear in the section andshould not be implied into it. Any derogation from fundamental human rights should be construedstrictly in favour of the Applicant: Khawaja (above) and R v Secretary of State for the HomeDepartment ex parte Simms and O’Brien5. Moreover, the so-called ‘super-Wednesbury test’ in humanrights cases applied as set out in R v Ministry of Defence ex parte Smith6 (per Sir Thomas BinghamMR): ‘The more substantial the interference with human rights, the more the court will require byway of justification before it is satisfied that the decision is reasonable in the sense outlined above.’Mr Pleming QC, for the Respondent Authority, submitted that section 63 should be read in thecontext of Part IV of the Act as a whole. No question of precedent fact arose; the court’s role waslimited to supervising the RMO on Wednesbury principles. In the same way section 62 spoke oftreatment which ‘is immediately necessary to save the patient’s life’. If the court approachedsection 62 on a precedent fact basis it would seriously undermine the ability of healthcareprofessionals to take immediate, emergency steps to save life. Likewise, in R v Mental Health ActCommission, ex parte X7 the court had held that a challenge under section 57 should be consideredaccording to Wednesbury principles. In the present case, therefore, the court should not interferewith Dr Collins’ judgement unless it was irrational.The judgment(i) Section 63Maurice Kay J said that the psychiatrists agreed that the Applicant had a psychopathic orpersonality disorder. However, Professor Maden approached the matter on the basis that a personwithout the disorder could have made the same decision on rational grounds, while Dr Collinsconcluded that the decision to refuse food was caused by the personality disorder. The Applicant’sresponse to the move had been wholly disproportionate and it was “ridiculous not to look to thepersonality disorder for the explanation”. Dr Rix had come to a similar conclusion. His Lordship had no doubt that the opinions of Dr Collins and Dr Rix were correct as to the partthe personality disorder played in the hunger strike. He was therefore satisfied that Dr Collins’approach to section 63 satisfied both the ‘precedent fact’ test and the ‘super-Wednesbury’ test.Section 63 was triggered because what arose was the need for medical treatment for the mentaldisorder from which the Applicant was suffering. The fact that a person without mental disordercould reach the same decision on a rational basis in similar circumstances did not avail theApplicant because he reached and persisted in his decision because of his personality disorder. At the commencement of the hunger strike his Lordship was satisfied that the Applicant’sintention was not to starve himself to death. While he could not reach a certain conclusion aboutthe Applicant’s present intention, the likelihood was that he was playing the system. 4 (1984) 1 AC 745 (1999) 3 WLR 328 at 3416 (1996) QB 517 at 5147 (1988) 9 BMLR 77Treatment for Mental Disorder - another step backwards?183Mr Hytner had submitted that Dr Collins and his team had failed to take into account the qualityof the particular life that was being preserved. That argument did not get off the ground, becausethe Applicant had not to this day told Dr Collins that his intention was to starve himself to death.Moreover, the Applicant was physically healthy and a significant amount of his ‘impoverished’ liferesulted from his extremism in dealing with his circumstances and his uncompromisingrelationship with Ashworth. There was therefore no element of irrationality in Dr Collins’decision to force feed.(ii) CapacityThe parties had also asked the judge to rule on the Defendants’ second argument, that theApplicant lacked capacity to consent and that they had a duty at common law to act in his bestinterests. It was common ground that a mentally disordered patient might nevertheless havecapacity, and that the test in Re C8 applied. Dr Collins had reported that the Applicant had theintellectual ability to appreciate the risk of refusing food but that his ability to weigh theinformation was impaired by the emotions and perceptions he had at the time, which were relatedto his personality disorder. Dr Rix had agreed. Neither Dr Collins nor Dr Rix saw total incapacity,but rather incapacity in the area relating to his battle with the Ashworth authorities. ProfessorMaden, however, did not accept that the Applicant lacked capacity. Mr Hytner submitted that farmore disordered minds had been held to retain capacity, for example in Re C (above).His Lordship was satisfied on a balance of probabilities that, although he was a man of well aboveaverage intelligence, the Applicant had been incapacitated in relation to decisions about foodrefusal since 25th October. His doctors had therefore been empowered to supply medicaltreatment in his best interests. This was a matter of clinical judgement and subject to the test inBolam v Friern Hospital Management Committee9. (iii) A duty to prevent suicide?Mr Pleming submitted that even if he retained capacity the Applicant’s right of self-determinationwas not absolute. There was a public interest in preserving life, preventing suicide and maintainingthe integrity of the medical profession. In Secretary of State for the Home Department v Robb10, whichconcerned a prisoner on hunger strike, Thorpe J had put forward the following principle: “...if anadult of sound mind refuses, however unreasonably, to consent to treatment or care by which hislife would or might be prolonged, the doctors responsible for his care must give effect to his wisheseven though they do not consider it to be in his best interest to do so”. He had cited Re T11,Airedale NHS Trust v Bland12 and the American case of Thor v Superior Court13. However, MrPleming submitted that Robb simply established that there was no duty to intervene and did notaddress the question of whether there was a power to do so. More recent cases had established thatpolice and prison officers owed a prisoner a common law duty to take care to prevent him fromcommitting suicide or causing himself harm (see for example Reeves v Commissioner of Police14). 8 (1994) 1 WLR 2909 (1957) 1 WLR 58210 (1995) 1 All ER 67711 (1992) 4 All ER 64912 (1993) AC 78913 (1993) 5 Cal. 4th 72514 (1999) 3 WLR 363184Journal of Mental Health Law November 2000The judge said that it would be somewhat odd if there was a duty to prevent suicide by an act, butnot even a power to intervene to prevent self-destruction by starvation. He did not consider that,as a first instance judge, he had enough evidence to make a finding in this complex issue, but hedid not believe that he would be constrained by authority from finding for the Respondents.(iv) ConclusionHis Lordship was entirely satisfied that the decision to commence and continue force feeding wasjustified by reference to section 63 and that it was in all respects lawful, rational and fair. Even ifsection 63 had not applied it would still have been lawful because the Applicant had at all materialtimes lacked capacity by reason of his disorder and the steps taken by the doctors were reasonablyperceived to be in his best interests. The application was therefore dismissed.CostsMs Grey, for the Respondent, asked for an order that the Applicant pay the Respondents’ costs.As he was legally aided this should be in the form that determination of his liability should bepostponed for such period as the Court saw fit. As Mr Brady used litigation as a tool, such an orderwould keep an eye on the possibility of settling for liability to costs orders. Ms Kaufmann, for the Applicant, said that the Respondents had themselves welcomed theopportunity to have a Court determine the issue. She conceded that the proceedings wereadversarial, but maintained that a public interest had been served by bringing the matter to Court.Mr Brady would have to seek the permission of the Court to commence proceedings which mightresult in a monetary award and obtain positive advice from his legal advisers before any suchproceedings would be funded by the Legal Aid Board. It would be an improper denial of access tothe Court to impose a costs order as a disincentive; the Court had mechanisms for dealing withfrivolous applications.Maurice Kay J said he would make the order for costs in the form sought by Ms Grey because itwas the normal consequence of adversarial proceedings, and not for collateral purposes. He granted Legal Aid taxation and refused leave to appeal.Comment:It was predictable that Mr Brady would not succeed in this application. Even if he had not beenthe subject of such intense public interest, it is hard to imagine any judge permitting a healthypatient to take his own life by a positive act of will. Moreover, Mr Brady’s approach to hisdetention made it likely that his hunger strike was a weapon against the hospital rather than aconsidered decision to kill himself. It is not therefore surprising that the judge took the view thathis choice arose from his personality disorder and could therefore be overridden, both undersection 63 and on the ‘best interests’ test at common law.Nevertheless, there are worrying features of the judgment. Once again, Hoffman LJ’s controversialdictum in B v Croydon is cited to justify any sort of medical intervention which doctors believebenefits the patient, whether physically or mentally. This goes far beyond what would be regarded,on an ordinary construction of section 63, as ‘treatment for mental disorder’. Given the increasedemphasis on self-determination by those with mental health problems and the prospect of humanTreatment for Mental Disorder - another step backwards?185rights challenges under Article 8, it is high time that the appellate courts looked at B v Croydonagain.In any event, Maurice Kay J seems to have omitted a crucial link in his judgment; the ‘precedentfact’ discussion does not address the point. Even if the hunger strike arose from Mr Brady’spersonality disorder, how can force feeding be regarded as treatment for that condition? If section63 has any remaining meaning- other than ‘the RMO can treat as he or she wishes’- there mustsurely be some connection between the treatment and alleviation of the condition. At least in B v Croydon the saving of life was an integral part of the treatment plan. It is not apparent from thejudgment how Mr Brady’s condition can be treated- but surely keeping someone alive, withoutmore, cannot reasonably be construed as ‘treatment for the mental disorder’? If it is, then Re Citself would have to be reconsidered. There can be less argument with the judge’s logic with regard to the incapacity issue. If Mr Bradywas determined to risk his life to make a point he could reasonably be said to have not ‘weighed’the treatment information. It might have been fairer if the case had been decided on this ground,rather than section 63. The judge was probably wise to avoid ruling on the ‘suicide’ issue, since he did not need to do so.However, he went a considerable distance towards disagreeing with Robb. The fact that he did notcomment upon B v Croydon, whether it was binding upon him or not, suggests that he wasinstinctively more sympathetic to intervention than self-determination- again, a public policyapproach rather than a strictly legal one.Finally, it is disappointing to see that the judge was prepared to make a costs order in a case somanifestly of public interest. This application did not simply challenge a particular decision; itraised fundamental issues of life and death upon which there was no directly applicable authority.At least he did not make the order as a deterrent to future court action, which he was invited todo. As Ms Kaufmann made clear, this would have impugned a fundamental human andConvention right of access to the Courts.

Treatment for Mental Disorder - another step backwards?

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