FD24F00084 - [2025] EWHC 920 (Fam)

In Nottinghamshire, Mostyn J emphasised the following:

“[18] A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review: see R (on the application of B) v Haddock (Responsible Medical Officer) [2006] MHLR 306. Paras 13 and 14 of that decision make clear that convention rights will be in play and therefore a "full merits review" must be undertaken on the evidence, with the court making the decision de novo, but placing considerable weight on the initial decision made under section 63 by the approved clinician in charge of the treatment.

[19] But a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged. As is well-known this protects the right to life. It is the most fundamental of the convention rights. Countless authorities have emphasised the imperative duty on public authorities to give effect to this right where detained persons are concerned. So if the approved clinician in charge of the treatment decides not to impose potentially life-saving treatment one can see the important need for judicial scrutiny to determine whether the patient has with a full awareness of the implications elected to opt-out of the right to life granted to him by Article 2. And one would expect, as has happened here, that a second medical opinion would be commissioned concerning the approved clinician's decision.

[21] In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a "full merits review" of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.

[26] What are the principles the court should apply where it conducts a full merits review on an application for declaratory relief in circumstances where a decision has been made not to impose potentially lifesaving treatment under s63? Obviously the expressed wishes of the patient will be highly relevant. If there is an advance decision in place under sections 24 and 26 of the MCA then this will weigh most heavily in the scales. The Hippocratic duty to seek to save life, or the benign but paternalistic view that it is in someone's best interests to remain alive must all surely be subservient to the right to sovereignty over your own body. Beyond this, considerations such as whether the treatment would be futile will no doubt be relevant; for example, if the repair of a laceration would inevitably be followed by a new one or if the patient was suffering from another unrelated terminal disease” (emphasis added).