Who calls the shots?

Richard Gordon QC was leading counsel for the applicant in R v Louize Collins. Richard Gordon QC outlines the limits of autonomy under the Mental Health Act

Consent is an important concept for lawyers. The idea that no one may touch our bodies without permission is central to our intuitive feelings regarding personal autonomy. It reflects, too, the deeper utilitarian principle that, although we may harm ourselves, nobody else has the right to do so, any more than we have the right to cause harm to others.

Carried to its logical extreme, of course, the refusal by a competent adult to allow his or her body to be touched, engages a right to refuse life-saving medical treatment – a right to die.

At least in theory, the English Courts have not shrunk from this conclusion. So highly regarded is the notion of autonomy, that it has trumped what Ronald Dworkin calls the other “mortal” issues – the need to treat a person in his best interests and even the sanctity of life itself. Our judges have been very clear that there is a rebuttable presumption that every adult has the capacity to decide his or her own fate.

Nothing in English common law has, so far, required any exception to be made in the case of those suffering from mental disorder. Historically, the mentally ill have been shut away. The assumption has been that mental patients have little control over their own lives. In fact, the presumption of capacity has, with few exceptions in the reported cases, been rebutted in the case of those suffering from mental disorder.

A recent decision of the Court of Appeal in R v Louize Collins & ors, ex parte “S” was not a case involving capacity under the Mental Health Act, but threw up a kaleidoscopic relationship between that Act, the wish to treat “S” in her best interests and the sanctity of life. “S” was a pregnant woman who had refused treatment for pre-eclampsia. Without such treatment, the life and health of herself and her baby were in real danger. As the court held, she fully understood the risks but rejected the advice.

Despite this, she was sectioned under the Mental Health Act. The Court of Appeal held that her detention was unlawful and that if “S” had not been suffering from severe pre-eclampsia, there was nothing in the contemporaneous documents to suggest that an application for her detention would have been considered, let alone justified.

Properly understood then the “S” case, though a strong restatement of the principle of autonomy, has (or at least, on the court's ruling, should have had) little to do with the Mental Health Act at all.

More typical of the court's approach in respect of compulsorily detained mentally ill patients, is that in Tameside and Glossop Acute Services Trust v CH. A pregnant patient detained under the Act was suffering from schizophrenia and had the delusional belief that the doctors wanted to harm her baby.

The foetus was not developing well and the obstetrician believed that if the pregnancy was allowed to continue it might die in the womb. On an application by the hospital trust for a declaration that it would be lawful to carry out a Caesarian without CH's consent, the judge held that the patient's consent was irrelevant because, on the facts, a Caesarian was “medical treatment for mental disorder” within the meaning of the Mental Health Act.

In B v Croydon Health Authority, a detained patient suffering from psychopathic disorder was actually found by the judge to be competent to refuse to be force fed. Such invasive treatment awoke in her vivid memories of sexual abuse by a close relation when she was a child.

Despite this, and despite the fact that the judge made a finding that force feeding was contrary to her best interests, the judge held that feeding by nasogastric tube was medical treatment for mental disorder and that “B” could be “treated” against her will.

My favourite case is that of Re C because it had a happy outcome. “C” was a patient in Broadmoor. He was labelled a chronic paranoid schizophrenic. He suffered from delusions that some of the Broadmoor staff were torturing him and that he had been a doctor who could cure damaged limbs without recourse to amputation.

Then, he was diagnosed as having gangrene in his right foot. Broadmoor moved swiftly. “C” was transferred to a surgical hospital. The doctors treating him wanted to amputate the foot. “C” refused to allow his limb to be amputated in any circumstances then or at any time in the future.

He applied to the High Court for an injunction restraining amputation on that basis. His application was successful. Thus it was that, despite his mental disorder, “C” became the first English litigant to have an advance directive upheld. On a more human note, “C” still has both his legs. It had, in fact, never been necessary to operate at all.

Treatment for gangrene was regarded as purely physical treatment, so “C” could make an advance directive. He could not, however, make advance provision for future treatment for mental disorder (even if contrary to his best interests), if such treatment was considered necessary by the clinicians treating him compulsorily under the Mental Health Act.

The deeper issue is why our society allows self-determination in so limited a field, and why it discriminates so illogically between the consequences of physical and mental illness.