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Avon and Wiltshire Mental Health Partnership & North Bristol NHS Trust v WA & Ors [2020] EWCOP 37

Introduction

This application concerned WA, a Palestinian refugee, who believes he was born on 29 December 1994, and who was therefore 25 years old. WA is a patient at Southmead Hospital, Bristol, having been admitted due to malnourishment. WA suffers from post-traumatic stress disorder and depression as a consequence of extreme physical and sexual abuse suffered during a ‘disastrous’ foster placement in Italy between his flight from Palestine, where he had suffered sustained abuse from members of Hamas, and his arrival in the UK in 2009.  Since his admission, WA has intermittently refused nutrition and hydration via a naso-gastric (‘NG’) tube after the Home Office accepted age assessments concluding that he was born 6 years earlier.

The age dispute did not affect WA’s right to live in the UK. On arrival in the UK, he was placed with foster carers with whom he still lives, a member of a ‘close and supportive family.’ WA claimed asylum and was (ultimately) granted indefinite leave to remain in 2019. The dispute has caused WA significant bureaucratic difficulties (for example, when he filled out completed forms, including one to volunteer at the Nightingale Hospital), but the main issue for WA was his clear belief that the Home Office stripped him of his identity, dignity, and his connection with his deceased parents and heritage.

‘For WA the removal of his date of birth is perceived as a fundamental violation of his own rights and an assault on his identity. As a prisoner in Palestine and a victim of physical and sexual abuse in Italy, WA experienced the complete negation of his autonomy at a stage in his childhood and adolescence where he might otherwise have started to explore it. Having listened to him, his parents, the psychiatrists and psychologists, during the course of this hearing, it is clear that WA experienced the change of his date of birth as effectively abusive.’ [6]

There are ongoing parallel proceedings in the administrative court to judicially review the decision of the Home Office not to change the date of WA’s birth on his biometric records. Feeling ‘hopeless,’ WA began to refuse to eat and drink.  He was eventually admitted to Southmead hospital, where he intermittently accepted IV fluids, some minimal foods, and an NG tube.  He was detained under section 3 MHA 1983 for a month, but had been discharged for a month by the time of the hearing.  The Vice President of the Court of Protection, Hayden J, found that his refusal to eat was not in any way a ‘protest’ and that ‘it would be entirely wrong to describe his actions as being on “hunger strike”’ [65].  Very sadly, he found that WA had ‘all but given up’ hope of the Home Office accepting the date of birth which his grandmother told him was his and which is such an integral part of his identity.

On 1 July 2020m WA’s weight was 47.7kg and his BMI was a precarious 14.7kg/m2.  Since 16 June 2020, he had agreed to try to take some food by mouth with additional nutritional support by NG tube and IV fluids, but NG tube feeding was necessary to ensure a nutritional intake sufficient to sustain life.  The risk of death would increase substantially as his body mass index fell. Dr R informed the court that death could occur suddenly through organ failure.

The application

The applicants applied for personal welfare orders under the Mental Capacity Act to provide medical treatment to WA in the form of clinically assisted nutrition and hydration (‘CANH’). The first applicant, Avon and Wiltshire Mental Health Partnership Trust, provides liaison psychiatry services to Southmead Hospital which is run by the second respondent, North Bristol NHS Trust. The second respondent was WA’s foster mother (‘DT’), who has cared for WA with her husband since 2009.

There was substantial agreement that WA capacity to conduct the proceedings himself and he did so as first respondent, his foster mother being second respondent.  The Official Solicitor did not represented WA but accepted the invitation of the court to act as Advocate to the Court ‘to assist in the complex moral, ethical and legal issues’ presented by the case.

 

Issues

The issues before the court were:

Whether WA lacks capacity to conduct these proceedings;

Whether WA lacks capacity to make decisions about his nutrition and hydration; and if not;

Whether WA is a vulnerable adult in respect of whom orders can and should be made under the inherent jurisdiction (and in particular whether the Court can make an order for forcible feeding that involves a deprivation of WA’s liberty);

Whether, if (ii) or (iii) applies, what approach to nutrition and hydration would be in WA’s best interests. 

 

Capacity

Since WA’s admission to Southmead Hospital on 20 April 2020, he had had an unusually high number of assessments to analyse his capacity to make decisions regarding his nutrition and hydration. 17 assessments were undertaken between 20 April 2020 and 3 July 2020. This included clinical assessments on the ward, and two expert assessments from Dr Cahill, on behalf of the applicants, and Professor Wild, on behalf of WA. Many of the professionals considered that WA had capacity to make decisions regarding his nutrition and hydration, but his treating clinicians (Dr G and Dr C) and Dr Cahill all considered that he lacked capacity.

WA was able to understand and retain the information relevant to the decision, and could evidently communicate his decision.  The crux of the dispute was whether WA had an impairment of the mind or brain which caused him to be unable to use or weigh the relevant information as part of the process of making the decision (section 3(1)(c) MCA 2005).

It was recognised that WA was able to use and weigh some parts of the relevant information. Ultimately, Dr Cahill (on behalf of the applicants) concluded that WA lacked capacity to make decisions about his nutrition:

‘WA has become fixated with the assigned date of birth to a degree which overwhelms him and to a point where it dominates his thinking and became a conductor for past trauma. … this occludes WA’s ability to weigh the relevant information in the context of a global decision as opposed to individual facets of it. …  this constitutes an impairment of the mind and prevents WA from taking the decision.’ [84]

Ultimately, Hayden J agreed.  He went on: ‘I have not adopted the individual reasoning of any of the psychiatrists. I have been able to identify aspects of each of their reports and oral evidence which resonate with my own impression of WA and DT. Though this has been a challenging exercise, it has been made a great deal easier by the willingness of the doctors to take on board countervailing interpretations and alternative perspectives. In a real sense their evidence, individually and collectively, has been investigative, non-adversarial and entirely free from the defence of amour propre which occasionally casts a shadow over expert opinion. In short, I have heard evidence of the highest quality.’ [86]

 

Best interests

Inevitably, consideration was given to whether there was any available treatment for the underlying PTSD which was causing WA to refuse to eat and drink.  WA did not think so, telling the judge that ‘he had had enough of therapy’ [76]. Hayden J noted that WA might have been provided therapy which was not sufficiently focused, and recorded that the therapy identified as potentially helpful was

‘narrative therapy, the objective of which is to develop strategies to enable WA to recover a sense of identity in the context of revisiting the significant relationships in both his present and past. The key to the therapy is identified as kindness, empathy and cultural awareness. In all this the engagement of DT will be crucial. There is a real risk of potentially retraumatising WA. It is thought to be helpful to focus WA on the identity which he retains such as his name, his genes, his language, his religion, his ancestors and heritage.’ [76]

In terms of best interests, the treatment plan which was ultimately presented to the court envisaged treatment options ‘some of which will require WA’s cooperation as well as others which it is proposed should be delivered against his expressed wishes’ calls for ‘great sensitivity and discretion’ to implement it [87-88].  It did not provide for any chemical or physical restraint, due to the complex history of torture and abuse sustained by WA and the potential for symptoms of PTSD to resurface as a consequence of the implementation of such a plan.

Hayden J emphasised the weight to be placed on WA’s wishes for the purposes of section 4(6) MCA 2005 and stated that WA’s decision to reject CANH, ‘entirely coherent, clearly articulated and consistently expressed, requires to be given very great weight. In many circumstances such a decision, even where P is incapacitous, would nonetheless be determinative’[93].  He also recognised that WA had ‘developed a pattern of passive submission in circumstances where, intellectually and emotionally, he may be profoundly resistant. This strategy was the only way he could survive his abuse.’ In those circumstances, ‘if WA’s failure actively to resist was not, in truth, consent, there is, as I have been told, a real risk of reigniting the trauma of past abuse.’ [94]

Hayden J considered that ‘a plan predicated on compliance without actual agreement may be entirely legitimate’ in appropriate circumstances.  However, he confronted the underlying purpose of the persuasive techniques referred to in evidence (‘gentle persuasion’, ‘tacitly compliant’, ‘passive acceptance’, ‘tacit cooperation’ and ‘acquiescence’) and stated directly:

‘looked at collectively, the phrases reveal themselves to be that which they are i.e. euphemisms for force feeding. A plan which stated specifically that WA will be force fed unless he actively resists would, I suspect, cause most people to recoil from it. It does not become any less disagreeable when dressed in softer language.

He went on, in an echo of many of his other judgments, to emphasise that ‘protecting the autonomy of the incapacitous is every bit as important as protecting the autonomy of the capacitous.’ [95-96].

The judge accepted the evidence of DT that WA ‘had reached a tipping point in which he is entirely clear that he can no longer live without the reinstatement of what he is certain is his true date of birth.’  He also considered that the prospects of securing WA’s engagement in the narrative therapy intrinsic to restoring his psychological health were not encouraging, and that meanwhile, ‘the provision of CANH in the absence of the therapeutic support was described by Dr Cahill as treating the symptoms and not the cause and thus ultimately futile.’  Ultimately

‘feeding WA against his will, with no psychological therapy, would in fact be antitherapeutic. In other words, it would most likely be harmful. I accept both Dr C’s view and Dr Cahill’s graphic but, in my judgement accurate, analogy. All this highlights just how important this package of therapeutic care is. If the psychotherapy were to be offered at a time when WA was being fed against his will, I consider that the prospect of his engaging with it is vanishingly remote.’ [99]

He also recorded that WA could interpret coercion or even persuasion as ‘effectively abusive,’ and also that WA might not resist to avoid hurting his nurses [100-101].

Ultimately Hayden J found that the section of the treatment plan which proposed treatment without agreement, even in the absence of physical resistance, was neither practically viable nor in WA’s best interests.

‘It is fraught with unmanageable and significant risk. Ultimately, it cannot be reconciled, in my judgement, with the protection of WA’s autonomy’ [102].

Every effort should be made to ‘persuade, encourage and cajole’ WA to accept nutrition and hydration.  ‘Attempts to deploy these techniques should be permitted with far greater persistence than would be considered appropriate in the case of a capacitous adult.’ Ultimately, however,

‘when WA says no to CANH his refusal should be respected. No must mean no!’ [102]

 

Brief Comment

WA was at the centre of the case throughout, offering encouragement for all parties in future cases to consider imaginative ways in which P can participate. Hayden J noted that

‘It is an interesting feature of remote hearings that they have served, in a number of cases, actively to promote the participation of P in the court process. I have visited WA (remotely) in his hospital bed, with his parents in attendance, on two occasions.’ [60]

The process by which the judge reached his ultimate conclusion on capacity is also interesting.  It shows that a conclusion as to capacity in cases with multiple assessments may legitimately be reached by the court identifying different aspects of reports, assessments, witness statements, and oral evidence, and then considering that within the wider canvas presented by P and his/her family. It cannot simply be assumed that every clinician is either all right or all wrong.  Unsurprisingly, the court will be helped by a constructive and open-minded approach from clinicians, whether treating or expert, and other witnesses.

The conclusion on best interests is also worth detailed reading, although the decision was reached on the very particular and unusual facts of the case.  Hayden J considered WA’s best interests in their widest sense – not only his interesting in preserving a life of a man who the judge found ‘has a great deal to offer the world as well as much to receive from it,’ but the longer term consequences for his mental and physical health of treatment imposed even gently against his will.  Although WA lacks capacity to make decisions regarding CANH, his autonomy demands the same respect as that of a capacitous person, even if ultimately it can be overridden. Protection of that autonomy may ultimately justify not imposing life sustaining treatment.

 

Neil Davy was instructed by DAC Beachcroft LLP for North Bristol NHS Trust  

Emma Sutton was instructed by the Official Solicitor as Advocate to the Court.