Those of you not obsessed with the twists and turns of ‘eligibility’ for the deprivation of liberty safeguards, which is a particular issue arising from the interaction of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), I suggest you tune out now. Those of you hoping this will have some fascinating CRPD-related insights, apologies, this discussion will remain within the parallel universe of trying to make sense of conflicting obligations in domestic legislation, neither of which are likely to be CRPD compliant (or even ECHR compliant, given the way this case turned out). But eligibility geeks – let’s get stuck in. I’m sort of assuming readers are familiar with the case GJ v The Foundation Trust (2009) which concerns when a person who is not detained under the MHA but who is in hospital is ‘eligible’ for detention under the DoLS. Here’s my recent effort to schematise the judgment:
When I am stuck on questions of eligibility, I turn to Richard Jones’s guides to the MHA and MCA, and since I can’t improve upon perfection I suggest you do the same! But in fact, this case was slightly different to the GJ situation, and perhaps even more complicated… The unfortunate judge having to deal with the mess left by Parliament on this occasion was Mr Justice Baker.
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 any case, noting the ‘ambiguity, obscurity and possible absurdity of the legislation’ (!), Baker J asked counsel to search the Parliamentary records for any signs of its intentions regarding s16A (applying Pepper v Hart). Unsuprisingly, since (as Richard Jones points out) Parliament barely roused itself to properly scrutinise a piece of legislation which would impact upon a trivial matter like the liberty of tens of thousands of citizens during the passage of the DoLS, they didn’t turn up anything to offer any greater clarity.
Baker J then considered the following three options, proposed by the Official Solicitor:
(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.
(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.
(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.
Could the forcible feeding be given under the MHA?
I have to confess that at first I thought that the first option, that the treatment could be given under the MHA, was a no-brainer. The case law is pretty clear that forcible feeding is permissible under the MHA in the case of anorexia, as starvation is a symptom of anorexia, and so I had assumed it would be here too. Dr A had been diagnosed with a delusional disorder, he was refusing to eat because of his delusional disorder (according to the capacity assessment conducted by doctors and the court), and therefore his physical symptoms could be linked to his mental disorder in an analogous way to starvation in patients with anorexia. The NHS Trust took the opposite view, however. And here is their fascinating reasoning as to why:
…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. [76)
Now, I don’t suggest for one second the doctors were seeking to avoid legal safeguards in this case – an application to the Court of Protection is hardly a lightweight legal alternative to the MHA. However, I am perplexed by their line of argument. I can’t quite work out if the NHS Trust wants to argue that they should be able to informally treat a person who is objecting to treatment for a physical condition which is ‘incidentally’ connected with a mental health disorder, in the hope that they play ball further down the line, or whether they want to use the Court of Protection or the inherent jurisdiction in every such case. The former option would suggest that they want to treat people in circumstances which could amount to detention without any detention safeguards. This would obviously violate Article 5 ECHR. The latter option would involve a massive amount of litigation.
In any case, however, Baker J did distinguish the circumstances of Dr A from the anorexia cases and the Brady case on the grounds that ‘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’. Personally, I don’t find this an easy distinction to get my head around (particular in view of Brady), but anyway, that will probably unruffle some feathers around the scope of the MHA. The consequence of this was that s63 MHA could not be used to forcibly feed Dr A.
Can forcible feeding be authorised by the Court under the MCA?
Counsel for the Official Solicitor argued that the Court of Protection not only could authorise the forcible feeding under s16 MCA, but that it must because of the ‘operational duty’ to save life arising out of Article 2 ECHR (as interpreted in Rabone and Savage). According to the Official Solicitor, the Court must (as a public authority itself, bound by the Human Rights Act 1998 to respect ECHR rights), not interpret s16 MCA 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, it was submitted that s16A MCA (the bit that says authorisation of any deprivation of liberty is subject to the DoLS eligiblity criteria) should be interpreted in accordance with its legislative intention to fill the Bournewood Gap.
Despite the unanimity of the Official Solicitor and the Trust, and the ‘attractions’ of their arguments, Baker J was unable to accept their submissions. He felt that this ‘reading in’ of Article 2 to s16A MCA would fundamentally alter the clear meaning of the provision :
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:
“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]
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.’  (my emphasis)
Can forcible feeding be authorised under the inherent jurisdiction?
In a nutshell, the ancient parens patriae jurisdiction in respect of ‘incapable’ adults was abolished by the MHA 1959. This set in motion a chain of cases in the ‘80s and ‘90s which invented a ‘declaratory’ jurisdiction out of the doctrine of necessity, which was eventually codified as the MCA. But the MCA did not kill off the inherent jurisdiction of the court; through some mystical process connected with the common law, it resurfaced – bigger than ever – and could now be applied to ‘vulnerable adults’ who did not even ‘lack capacity’ within the meaning of the MCA. (For a more fulsome introduction to the inherent jurisdiction, check out this guide by the Essex Autonomy Project). The existence of the inherent jurisdiction raises all kinds of constitutional and rule of law based questions, which I have no plans to discuss today, but the long and the short of it was that Baker J used this amorphous jurisdiction to authorise detention for the purposes of treatment in this case.
This judgment was published about six months after The Independent first reported its outcome. This meant that Baker J could add a short postscript to the judgment, detailing (for the benefit of the public) what happened next. Dr A was duly force fed and treated with antipsychotic medications, ‘His mental state gradually improved’, he began to eat and drink voluntarily and he chose to return to Iran. His doctors felt these were capacitious decisions. I often wonder what happens in the outcome of these cases; it’s an interesting insight into the increasingly public-facing nature of Court of Protection judgments that it was reported here. I would be interested to know, however, how Dr A felt about the whole affair and the court proceedings. It is very rare indeed that we get to learn how ‘P’ felt about capacity assessments and best interests decisions after they have been taken.
What are the implications of this case?
I am still wrestling with the implications of this case. Dr A’s circumstances were unusual, to be sure, but circumstances where doctors will want to treat an objecting patient for physical symptoms which are ‘incidentally’ connected with a mental disorder are not unusual. I suspect some (much?) of the time the question of whether they are deprived of their liberty for the purposes of such treatment is not seriously considered, and so these issues of eligibility do not arise. In this case, eligibility only arose because Baker J himself started asking uncomfortable questions.