Judgment clarifies principles applicable to the assessment of lawfulness of treatment amounting to further deprivation of liberty

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Norfolk and Suffolk NHS Foundation Trust v HJ [2023] EWFC 92 concerned the lawfulness of administering enemas to a detained mental health patient for gastrointestinal illness, which involved restraining the patient. The patient lacked capacity to make her own decisions concerning her medical treatment and refused to take the enemas. This treatment was outside the Mental Health Act 1983 because her physical illness was unrelated to the patient’s mental health condition. The Trust applied for a court order to ensure that the Trust and its clinical staff were acting lawfully when administering enemas.

The Judge held that the imposition of restraint to administer enemas did not amount to a further deprivation of liberty and, therefore, a court order was not necessary. However, as the case had started with both the Trust and the Official Solicitor (who acted for the patient) submitting that there was a deprivation of liberty, the Judge was invited to provide full reasons for his decision.

The starting point was section 5 of the Mental Capacity Act 2005 (“MCA 2005”), which defines the circumstances in which a person (“D”) can provide care or treatment to a person lacking capacity to consent (“P”) to that care or treatment without incurring personal liability. Section 5 provides that if D takes reasonable steps in administrating treatment to P, and D reasonably believes that doing the act is in P’s best interests, then P is treated in law as a person who has consented to the care or treatment being provided.

Where any part of the care provided to P involves restraint, there are limitations to treatment that can lawfully be administered. Section 6 MCA 2005 provides that restraint short of a deprivation of liberty can lawfully be imposed on P without where: a) it is reasonably believed by those providing care or treatment that it is necessary to prevent harm and b) the restraint used is proportionate to the likelihood and seriousness of that harm. If those conditions are fulfilled, the treatment will be in P’s best interests and no a court order to approve the treatment is needed. In this case, the staff were prepared to undertake a structured review of the detainee’s restraint plan on a periodic basis, including a reconsideration of whether the particular method of delivery remained necessary and proportionate, and whether any less restrictive measures could be used.

However, a person who is detained under the Mental Health Act 1983 has a measure of residual liberty and can be subject to a second deprivation of liberty if P is deprived of that residual liberty: see Lord Bingham in R v Ashworth Hospital Authority ex parte Munjaz [2005] UKHL 58 and Bollan v United Kingdom, App No. 42117/98. Lord Bingham explained that a person who is held by a state body in circumstances where that person is deprived of their liberty on a primary basis and where that deprivation of liberty satisfied the requirements of Article 5 ECHR, nonetheless retained a measure of “residual liberty”. Section 6 MCA restraint cannot justify a deprivation of liberty, including depriving P of her residual liberty.

The ECtHR confirmed at paragraph 65 in Munjaz v United Kingdom [2012] MHLR 351 that a detained person was capable of being subject to a further deprivation of liberty but “whether or not there has been a further deprivation of liberty in respect of a person who is already lawfully detained must depend on the circumstances of the case”. In R (Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187, it was held at paragraph 38 that “the court is not concerned with the appropriateness of the place and conditions of detention in a broad sense, but rather with the narrow question whether the place and conditions of the detention are closely connected with the purpose for which the person is being detained”.

In this case the Judge decided that P was not subjected to a further deprivation of liberty when restrained for the medical treatment. The Judge, Deputy High Court Judge David Lock KC, decided:

“… save in exceptional circumstances, any proper and lawful exercise of clinical judgment by clinicians in administering medical treatment to a detained person will not amount to a deprivation of the person’s residual liberty if there is no element of arbitrariness in the actions of the clinical staff. If restraint is imposed to enable treatment to be administered for a physical health condition for a person who lacks capacity to consent under the MCA, the tests for the lawfulness of that restraint are set out in section 6 MCA. If those conditions are satisfied, the usual consequence will be that there will be no independent breach of the patient’s rights under article 5 ECHR”.

In this case, the Judge found that the treatment plan was carefully thought out and designed to meet the patient’s medical needs in a lawful and proportionate manner. In addition, the staff had given an undertaking to periodically review the treatment plan, including a consideration about whether less restraining measures to be used. In all these circumstances, the Judge ruled that the process of administering enemas, including the imposition of restraint, did not amount to the type of exceptional circumstances which could lead to a further deprivation of the patient’s residual liberty.

Faryal Shafi is a public law researcher at Landmark Chambers.

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