FD24F00084 - [2025] EWHC 920 (Fam)

I accept, as have the parties, the evidence as to capacity. In distinction to many of the authorities to which counsel have referred me, the issue of whether MC has capacity to litigate and capacity to make decisions about his treatment has not been in issue in this case. Ms Kelly nevertheless asked both witnesses who gave evidence a number of questions about capacity. Dr B in her oral evidence was astute to highlight the fact that the decisions MC makes about his health and treatment are what she called ‘unwise’ but it was her firm view, as is the view of his responsible clinician, that he has the capacity to make them. The ‘unwise’ decision and its inconsequence as an indicator of capacity has, of course, been firmly established by section 1(4) MCA 2005.

I am satisfied, for the avoidance of doubt, that MC has capacity in both domains.

At the heart of the argument before me has been the question of whether the medical treatment for MC's physical health needs is medical treatment under section 63 MCA. Whilst I, naturally acknowledge that Ms Kelly is right to submit that Mrs Justice Lieven’s decision in Re JK, on which the Trust places some reliance, is not binding on me, I may nevertheless, and in the circumstances of this case I do, find myself in agreement with aspects of her reasoning. Just as Lieven J did, I similarly find myself, in this case, heavily reliant on the medical evidence, notably that which comes from the psychiatric disciplines.

Dr B, from the perspective of her role in the case a clinician offering an expert opinion to the court, arrived in her report at the following conclusion “[MC's] inconsistent engagement with treatment for his physical health conditions is symptomatic of his mental disorder, namely personality disorder. Specifically traits of tendency to conflict with others, mistrust of others, tendency to bear grudges, suspiciousness and a pervasive tendency to distort the advice and opinions of others, in this case professionals, as hostile or contemptuous”. She continued from this to reason that “Since [MC's] inconsistent engagement with recommended treatment is due to mental disorder, medical treatment for these serious conditions can be given without his consent under Section 63 MHA 1983”.

She did not depart from this expert opinion when cross examined. Ms Kelly submits, and I accept, that there was greater contextual nuance surrounding that unshaken opinion as Dr B explained how she had arrived at that conclusion. Both Dr B and Dr A were asked questions in which they were invited to consider the position as it might be, were MC to be someone without a severe personality disorder and living out in the community, managing and making choices for his own administration of medication. Without the severe personality disorder, even if in prison, because of his offending, he would often be likely to manage his own medication. It was put to the witnesses that it is only really because he is in Rampton, and because of the rules which that institution has surrounding its residents and medication that the issue arises. Both Dr B and Dr A struggled to contemplate the notion of the hypothetical MC unaffected by severe personality disorder. Dr B in trying to provide a response in that context found herself in the position that it was not something that for her had meaning since it would be not MC, but an entirely different person that she was being invited to consider. It does not seem to me right to overlook or to understate the fact that the reason that MC is eligible to be detained in Rampton at all, is by reason of his severe personality disorder. I accept the medical evidence that that is a mental disorder within the meaning of section 1(2) MHA. To the extent that Ms Kelly relies on MC's own evidence (and his instructions to her) that he does not have a personality disorder, I reject that. I note that the issue of the personality disorder is one which has been considered and reviewed throughout his stay in Rampton and has been independently considered by the Mental Health Review Tribunal. I have considered whether the prospect (and it is on the evidence no more than that) of a possible future move to a medium secure unit should cause me to reach any different view. It does not.

Dr B certainly accepted the proposition that the fact control was something that assumed prominence in MC's thinking may be linked to the fact that there are so few opportunities for him to have control as he was detained in a secure unit. She was however of the view that it was inextricably linked with his severe personality disorder. Pressed by Ms Kelly she did not accept that the conditions for which it would be proposed to treat MC are not also in consequence of his mental health disorder. She was prepared to agree that a diagnosis of type 1 diabetes might often be made in childhood and was not in and of itself a manifestation of MC's mental disorder, however her evidence was that the progression of the symptoms to the extent that they had and now presented as serious diabetic complications, set out in the evidence of those charged with care and treatment of his physical health, was such a manifestation. Her professional view in that respect remained notwithstanding her acceptance that some of them – for example the retinal issues - might have come about in a patient with type 1 diabetes unaffected by personality disorder.

I agree that it may be, that MC's approach to health care includes elements of a strong wish to control in an environment where the opportunity to exert control is markedly diminished (inevitably so, the environment being a ward in a high secure institution populated by those with severe personality disorders). I accept nevertheless Dr B’s evidence that the strong wish to control has its roots in his severe personality disorder. The severe personality disorder, as Dr B’s evidence so helpfully explained, is in effect shorthand, which gathers into it the features making up the condition of for example his paranoia, distrust and confrontational functioning. This manifests itself in an approach to health care which is not intentional self-harm but prioritises in decision making those features in which feed into his overwhelming desire to have and exert control eclipsing those which would lead to him having better physical health.

Dr A who is MC's responsible clinician impressed me as a thoughtful and careful witness. MC had steadfastly refused to speak to her and she told me that in fact had been prepared to do so only twice during the time she had had responsibility for him. She was at pains to explain that within the context of the unusual community of the ward in this particular facility, that it was not so strange as it might otherwise be, to have so limited an experience of personal interaction with a patient. She went on to say that it was important to factor in that in her role, personal day to day involvement was something which was limited by the need to be able to stand back and take objective treatment decisions. Although she did not say so in so many words, the impression I formed from her evidence is that even within the context of the discipline of forensic psychiatry, it requires a particular degree of skill, expertise and understanding to work effectively on wards such as the one in which MC is detained in Rampton. That skill includes finding ways to work with patients whose mental health and personality profiles are especially challenging and disruptive of the more usual therapeutic relationship. I attach a good deal of weight to her evidence. Dr A was asked to reflect on whether the prospect of forced treatment (and therefore the declaration sought) in reality arose at all, since MC does not refuse all treatment. The example she was taken to was that he is compliant with having his evening insulin dose. That did not, in Dr A’s view alter her view since, in agreeing to the insulin, MC was not in reality complying with the treatment as he refused to cooperate with the testing of the blood sugar level ordinarily undertaken as a precursor. It was an illustration, she explained, of why the declaration was in her view necessary. In a most striking response Dr A said “I worry about a situation where a nurse gives him insulin in the evening in those circumstances and he is hypoglycaemic overnight and dies. The coroner will ask the nurse if they gave him insulin and then will ask did you check his blood sugar level before you gave it”. Dr A was at pains to point out that that illustration was not one which she intended defensively, and I did not regard it as such. It does, however, go some way in explaining how, in circumstances where a capacitous individual does not wish to have treatment imposed against their will, and a Trust does not wish to impose such treatment against their will, that seemingly uncontentious state of affairs has nonetheless required a contested application before this court.

I agree with Dr A that this is a finely balanced case. It is one which I have reached decisions in the particular fact-specific circumstances of MC's situation. In common with the two most impressive medical professionals who gave oral evidence, I have not found it helpful to seek to consider how decisions might or might not be made differently were MC's situation to be wholly factually different. I accept that on the psychiatric evidence called and properly tested before me, that the treatment contemplated falls within section 63 MHA.

It follows from that determination that I must move on to consider the declaration sought that it is lawful for MC's treating clinicians not to use force to provide him with medical treatment for his physical health needs. As indicated by Ms Kelly, if I am persuaded as to the Trust’s case on section 63 MHA, MC is supportive of the declaration, since it is consistent with his position that treatment should not be forced upon him. I am satisfied that it is right to make the declaration sought.

I will accordingly make the declarations sought by the applicant Trust and will invite Counsel to submit a final order and amended reporting restrictions order.