FD24F00084 - [2025] EWHC 920 (Fam)

The leading case on the meaning of this phrase is B v Croydon Health Authority [1995] 1 ALL ER 683 (“Croydon”), where it was held by the Court of Appeal that the feeding by nasogastric tube of a patient who was suffering from borderline personality disorder was treatment which fell within the scope of section 63 MHA because such treatment was aimed at treating a symptom of the disorder - a compulsion to self-harm.

Croydon widened the ambit of section 63 MHA somewhat from the literal words, and with a focus that treatment for a physical disorder must be connected with a pre-existing mental disorder. In St George’s Healthcare NHS Trust v S [1999] (Fam) 26, Judge LJ explained at page 52A that Croydon is authority for the proposition that section 63 MHA “may apply to the treatment of any condition which is integral to the mental disorder” (emphasis added).

Thereafter, in R v Collins ex p ISB [2000] Lloyd's Rep. Med. 355, (“Re Collins”), Mr Justice Maurice Kay was considering an application for judicial review by Ian Brady, challenging a decision by the clinicians at Ashworth Hospital to force feed him. Mr Brady had been diagnosed as having a psychopathic disorder and had decided to refuse food in part as a protest against events in Ashworth. The Judge's conclusions at §44 were that:

“On any view, and to a high degree of probability, section 63 was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder” (emphasis added)

In Re JK v A Local Health Board [2019] EWHC 67 (Fam), in considering whether force feeding of a detained patient fell within section 63 MHA, Lieven J held that:

“[72] ….. with a condition such as autism which is a fundamental part of JK's personality, it is exceptionally difficult to see how any decision making is not a manifestation of that disorder. I also accept that it is possible that many people faced with JK's situation would feel despair and potentially be suicidal. However, I do not think the task for me is to try to compare JK's response to his situation with that of a hypothetical person without autism. It is rather, to try to analyse the degree to which JK's own response relates to his condition, and the way his mind works because of that condition. 

[73] In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s.63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder”.

In the circumstances of MC's case, the Trust has submitted that it may be useful to consider the question of the manifestation of MC's severe personality disorder in a similar way to that in which Lieven J approached the question of JK’s autism.

In A Healthcare & B NHS Trust v CC [2020] EWHC 574 (Fam) (“Re CC”), a case where dialysis treatment was found to be treatment for a manifestation of the patient’s mental disorder within section 63 MHA, Lieven J, at §56(i), explained that:

“The physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC's refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983” (emphasis added).

I recognise of course that as I consider the question of MC's approach to self-care for his physical complaints, there is a tension between the view expressed by Lieven J in Re CC as to the prospects of how a patient might approach that if not mentally ill, and the recognition that within the MCA 2005 ‘capacity’ embraces the making of unwise decisions. For me, in the particularly difficult circumstances of this case, which MC's responsible clinician has characterised as finely balanced, that tension has served to underscore the considerable importance of the expert psychiatric evidence.

Ms Kelly makes in this case the well-pitched point that appellate authority on the scope of section 63 MHA is limited, and that recent cases are overwhelmingly persuasive rather than binding authority. I agree and accept that. Whilst I have had the benefit of Ms Kelly’s detailed recitation of section 63 MHA case law and what she submits is the modern developing landscape of the European jurisprudence within which s63 falls to be considered, I have not in this case found it helpful or necessary to venture through that landscape at length. Ultimately I accept Ms Kelly’s own submission on the point: that there does not emerge a clear picture from the jurisprudence, and it demonstrates the fairly fact-specific nature of the determination to be made.