Since being involved in a leading case on section 63 Mental Health Act 1983 (MHA) back in 2014, which some of you may know was anonymised using my maiden initials ‘RC’, l have always taken a keen interest in any new section 63 case. So, l found myself on Sunday evening reading through the judgment of KAG with interest.
What is section 63?
Where a patient is detained under section 3 MHA and they require treatment for a symptom or manifestation of their mental disorder, their Responsible Clinician (RC) can direct this under section 63. It doesn’t matter if they have mental capacity or not, or if they consent or object.
Background
KAG is a woman in her 60s who underwent emergency surgery in December 2023 following which she developed severe depression and stopped eating and drinking. It was proposed that KAG would be detained under section 3 and treated under section 63. The NHS Trusts involved were clear that her mental disorder manifested in her refusal to eat and drink, despite expressing that she did not wish to die. She had previously been treated using nasogastric feeding, but clinicians now recommended that a PEG be inserted as this would be less risky, more comfortable and more effective. KAG was fearful of the procedure, and her husband initially objected to it and to her detention.
The matter came before the High Court due to confusion over the Official Solicitor’s position at an earlier hearing before a Circuit Judge (where Mr G was displaced as Nearest Relative). This was later clarified but the Trusts still sought a declaration to avoid any further confusion or delay in KAG receiving treatment.
Decision
Ms Butler-Cole KC, sitting as a Deputy High Court Judge, declared pursuant to the inherent jurisdiction of the High Court, that it was lawful for KAG to be treated under section 63 by the insertion of PEG for the provision of CANH.
However, she pointed out that KAG could have been treated under section 63 without an application being made. This is so even where a patient is objecting to the treatment. An application is only required if there is uncertainty about whether a treatment can be provided under section 63.
In light of my recent blog commenting on the voice of P getting louder in the Court of Protection, it is clear that the patient’s voice remains muted under section 63. It is difficult to get your voice heard by way of the costly and out of reach judicial review process.
I was delighted to hear via the recent King’s Speech that the new government will re-start the MHA reform which had been put on hold.
The Briefing Note to the King’s Speech states that:
“The Mental Health Bill will deliver our manifesto commitment to modernise the Mental Health Act 1983 which is woefully out of date. The Bill will make it fit for the 21st century so that patients have greater choice, autonomy, rights and support, and make sure all patients are treated with dignity and respect throughout their treatment.”
In connection to the voice of patients the Briefing Note states:
“strengthening the voice of patients by adding statutory weight to patients’ rights to be involved with planning for their care, and to make choices and refusals regarding the treatment they receive.”
It was clear from the Independent Review that patients detained under the MHA were unhappy about being treated, despite objecting. I wonder whether during any further consultation / drafting there will be a re-consideration of the recommendation, which didn’t make it into the draft Bill, that a Mental Health Tribunal judge should be able to consider a patient’s challenge to their treatment plans? Watch this space!
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