The case of Tees Esk and Wear Valleys NHS Trust v KAG [2024] EWCOP 38 (T3) and others offers a compelling illustration of the complexities that can arise at the intersection of mental health law and capacity law in the context of medical treatment decisions. This case involved the proposed insertion of a percutaneous endoscopic gastrostomy (PEG) for a patient, KAG, suffering from severe depression and refusing to eat. The NHS Trusts, seeking to provide this treatment, aimed to detain KAG under the Mental Health Act 1983 (MHA) to enable the use of Section 63, which allows for medical treatment without consent in certain circumstances. This strategy became a point of contention with the local authority responsible for arranging admission to hospital under the MHA. The case grappled with the interpretation and application of Section 63, particularly whether the PEG insertion constituted treatment for KAG’s mental disorder. Further complexity arose from questions surrounding KAG’s capacity to consent to treatment and the appropriate forum for determining the lawfulness of the proposed procedure.
It has come to light that certain organisations believe that S63 covers the ‘three-month rule’. This is a false belief. Section 58(1)b is where the three-month rule arises.
While the publisher and author(s) have used their best efforts in preparing information at this website, they make no representation or warranties with respect to the accuracy, completeness or applicability of the contents of this presentation and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose.
Publications do not contain all information available on topics and have not been created to be specific to any individual’s or organisation’s situation or needs. Modifications and corrections may be made without notice.
The publication of materials from the political domain, does not imply any sort of political alignment or support for any politically driven change/policy – even if so construed.
Shared knowledge and experience are not advice, even if so construed. You must consult with an appropriate professional for your own needs. Readers must not disregard advice from their mental health professional based on any information, knowledge or opinion shared in articles on this site.
Nothing said on any publication at this site is to be used to modify or disregard existing policy and law applicable to any entity or organisation.
The author and publishers do not accept liability or responsibility to any person or entity regarding any loss or damage incurred, or alleged to have been incurred, directly or indirectly, by the information contained.
External Links Disclaimer: This website may contain links to external websites not provided or maintained by this site or one author. There is no guarantee of the accuracy, relevance, timeliness, or completeness of any information on external websites. No liability is accepted for any loss or damage that may arise from the use of external sites.
Table of Contents
- Factual background
- Legal and Procedural Issues
- Analysis of decision
- Implications for Practice
- Conclusion
Factual background
KAG, a woman in her late 60s with a history of intermittent depression, underwent successful emergency surgery in late December 2023. However, post-surgery, she developed severe depression leading to self-neglect, including inadequate food and fluid intake, and significant weight loss. By mid-January 2024, she required hospitalisation.
KAG experienced two brief periods of detention under Section 2 of the MHA in late January and late April 2024. Both times, she consented to remain in hospital for treatment, avoiding the need for detention under Section 3. A nasogastric tube was inserted for clinically assisted nutrition and hydration (CANH) in January 2024, seemingly under the Mental Capacity Act 2005 (MCA), without active objection from KAG. She also received psychiatric medication.
Despite some improvement in her mental health, KAG remained unable to maintain adequate nutrition and hydration orally. She also expressed dissatisfaction with the nasogastric tube and occasionally refused medication. Her treating doctors concluded that she required admission to a psychiatric hospital under Section 3 of the MHA, with two medical recommendations for admission completed on 3 June 2024.
A practical obstacle arose: the psychiatric units were not equipped to manage a patient receiving CANH via a nasogastric tube. The Trusts proposed inserting a PEG tube, viewing it as a safer and more effective long-term solution. They believed this could be done under Section 63 of the MHA once KAG was detained under Section 3. However, the local authority responsible for arranging the Section 3 admission disagreed that the PEG insertion could be authorised under the MHA, creating a point of contention.
Legal and Procedural Issues
The case of Tees Esk and Wear Valleys NHS Trust v KAG presented a complex legal and procedural challenge, primarily due to the interplay of two key pieces of legislation: the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA).
a. Intersection of the MHA and MCA
KAG’s situation fell within the overlapping spheres of both the MHA and the MCA. The MHA provides a framework for the compulsory detention and treatment of individuals with mental disorders in the interests of their own health or safety or for the protection of others. The MCA, on the other hand, provides a framework for making decisions on behalf of individuals who lack the capacity to make those decisions themselves.
In this case, KAG’s initial admission to the hospital and the insertion of the nasogastric tube were seemingly managed under the MCA. However, as her condition deteriorated and she began to refuse treatment, the Trusts sought to rely on the MHA to authorise the insertion of the PEG. This shift between legal frameworks created a degree of confusion and uncertainty.
The central issue was whether the proposed PEG insertion could be considered treatment for KAG’s mental disorder under Section 63 of the MHA. If so, it could be administered without her consent, as long as it was given by or under the direction of the responsible clinician. However, if it was considered treatment for a physical condition, and KAG lacked capacity to consent to it, then the MCA would apply, and a best interests decision would need to be made.
The distinction between treatment for a mental disorder and treatment for a physical condition is not always clear-cut, particularly in cases like KAG’s, where the refusal to eat was a direct manifestation of her mental illness. This ambiguity contributed to the legal and procedural complexities of the case.
b. Scope of Section 63 MHA
Section 63 of the MHA authorises the provision of medical treatment for mental disorder without the consent of the patient. However, the scope of this provision, specifically in relation to the insertion of a PEG for the purpose of CANH, became a central issue in this case.
The Trusts argued that the PEG insertion fell within the scope of Section 63, as KAG’s refusal to eat was a direct manifestation of her mental disorder. They contended that the PEG was necessary to treat her mental disorder effectively, as it would provide a more stable and reliable means of administering nutrition and hydration, allowing her to be transferred to a psychiatric unit where she could receive appropriate care.
The local authority, on the other hand, initially disagreed with this interpretation. They argued that the PEG insertion was primarily a treatment for a physical condition (malnutrition), rather than a mental disorder. This disagreement highlighted the ambiguity surrounding the scope of Section 63 and its application to treatments that address the physical consequences of mental illness.
The case law surrounding Section 63 provides some guidance on this issue. In the case of B v Croydon Health Authority ([1995] 1 All ER 683), the court held that the provision of CANH could fall within the scope of Section 63 if it was considered treatment for a mental disorder. However, the court also emphasised that the specific circumstances of each case must be carefully considered.
In KAG’s case, the medical evidence supported the Trusts’ view that her refusal to eat was a direct manifestation of her mental disorder. There was no other medical explanation for her inability to maintain adequate nutrition and hydration. This evidence was crucial in establishing that the PEG insertion was indeed treatment for her mental disorder, and therefore could be lawfully administered under Section 63.
c. Jurisdictional Confusion
The Trusts’ decision to apply to the Court of Protection for a declaration on the lawfulness of the PEG insertion under Section 63 of the MHA was procedurally problematic. It highlights the jurisdictional boundaries between the Court of Protection and the High Court.
The Court of Protection’s jurisdiction primarily concerns issues of capacity and best interests in relation to individuals who lack capacity to make decisions for themselves. It is the appropriate forum for determining whether an individual has capacity to consent to medical treatment and, if not, what treatment would be in their best interests.
The High Court, on the other hand, has jurisdiction over the interpretation and application of the MHA. It is the appropriate forum for determining disputes concerning the lawfulness of detention under the MHA or the lawfulness of medical treatment proposed to be administered under the MHA.
In this case, the primary issue was the interpretation and application of Section 63 of the MHA. The Trusts sought a declaration from the Court of Protection that the PEG insertion fell within the scope of Section 63 and could be lawfully administered without KAG’s consent. However, this question stretched the jurisdiction of the Court of Protection.
In paragraph 25 of the judgment, the judge acknowledged the limitations of the Court of Protection in addressing the broader issue of KAG’s future mental health treatment.
Specifically, the judge stated:
It was my impression that Mr G’s concerns were less about the PEG procedure and more about what future treatment KAG might be given for her mental health if detained. The merits of any future treatment for KAG’s mental health are not a matter for me on this application.
This statement reflects the fact that the Court of Protection’s jurisdiction is primarily focused on determining issues of capacity and best interests in relation to medical treatment. While the court can make decisions about whether a specific treatment should be provided, it was probably over-reaching to make broader decisions about a patient’s overall care plan or future treatment options.
In KAG’s case, the judge’s primary concern was whether the PEG insertion was lawful under Section 63 of the Mental Health Act 1983 (MHA). Once this issue was resolved, the judge did not have the authority to delve into the merits of other potential treatments for KAG’s mental health, such as electroconvulsive therapy (ECT). These decisions would be made by KAG’s responsible clinician under the MHA, taking into account her best interests and any relevant clinical guidelines.
The judge’s recognition of the limitations of the Court of Protection in this case highlights the importance of understanding the jurisdictional boundaries between the Court of Protection and other legal frameworks, such as the MHA. It also emphasises the need for clear communication and collaboration between healthcare professionals, mental health practitioners, and legal representatives to ensure that patients receive the necessary treatment in a timely and lawful manner, while respecting the limits of the court’s authority.
d. Role of the Official Solicitor
The Official Solicitor plays a crucial role in safeguarding the interests of vulnerable individuals involved in legal proceedings. In this case, the Official Solicitor was appointed as KAG’s litigation friend due to her presumed lack of capacity to conduct the proceedings herself.
The Official Solicitor’s involvement in the case introduced an unexpected layer of complexity. Initially, the Trusts were informed by a caseworker at the Official Solicitor’s office that the issue of the PEG insertion was a serious medical treatment matter requiring an application to the Court of Protection. This advice was relayed by Mr Z, a solicitor who had been approached by KAG and her husband, during the displacement proceedings.
However, the Official Solicitor’s formal position, as presented later in the proceedings, was that the PEG insertion fell squarely within the scope of Section 63 of the MHA and did not require a court application. This clarification highlighted the potential for miscommunication and underscored the importance of obtaining formal legal advice from the Official Solicitor, rather than relying on informal preliminary views.
The Official Solicitor’s ultimate position supported the Trusts’ view that the PEG insertion was lawful under Section 63 of the MHA. This position likely influenced the AMHP’s decision to change their stance and proceed with the Section 3 admission process. It also provided further support for the judge’s decision to grant the declaration sought by the Trusts.
e. Position of the AMHP
The Approved Mental Health Professional (AMHP) plays a statutory role in the process of admitting patients to hospital under the MHA. In this case, the AMHP’s position on the lawfulness of the PEG insertion was initially unclear and contributed to the need for court intervention.
Following the Circuit Judge’s decision to stay the displacement proceedings and invite the Trusts to make an application to the Court of Protection, the AMHP took the view that she would not take any further steps under the MHA until the court had determined the lawfulness of the PEG insertion. This decision effectively created an impasse, preventing KAG from being admitted to the psychiatric hospital and receiving the treatment she needed.
However, by the time of the hearing in the Court of Protection, the AMHP had changed her position. She was now willing to complete the Section 3 admission process, based on her understanding of the Official Solicitor’s view that the PEG insertion fell within the scope of Section 63 of the MHA.
The AMHP’s change of position was a crucial turning point in the case. It removed the need for the court to make a declaration on the lawfulness of the PEG insertion, although the judge ultimately decided to do so to avoid any further confusion or delay.
The AMHP’s initial reluctance to proceed with the admission process may have stemmed from a lack of clarity regarding the scope of Section 63 of the MHA. Her subsequent change of position, after considering the Official Solicitor’s view, highlights the importance of clear communication and collaboration between all parties involved in cases of this nature.
Analysis of decision
The judge in this case was tasked with determining whether the proposed insertion of a PEG for KAG, under the circumstances, was lawful. She concluded that it was, but not without acknowledging the unusual and complex circumstances that led to the case being brought before the court.
The judge accepted the Trusts’ argument that the PEG insertion was treatment for KAG’s mental disorder, as her refusal to eat was a direct manifestation of her depression. There was no other medical explanation for her inability to maintain adequate nutrition and hydration. The judge also considered the practical benefits of the PEG, such as its greater comfort and effectiveness compared to the nasogastric tube, and the fact that it would allow KAG to be transferred to a psychiatric unit where she could receive more appropriate care.
The judge acknowledged the disagreement between the parties regarding the scope of Section 63 of the MHA and the initial uncertainty regarding the position of the Official Solicitor. She also noted the AMHP’s change of position, which ultimately made the court’s decision less crucial than it might have been.
Despite the AMHP’s willingness to proceed with the Section 3 admission, the judge decided to exercise her inherent jurisdiction and grant the declaration sought by the Trusts. This decision was made to avoid any further confusion or delay in KAG’s treatment. The judge recognised the urgency of the situation and the potential harm that could result from further delays.
The judge’s decision provides clarity on the application of Section 63 of the MHA in cases where a patient’s refusal to eat is a direct manifestation of their mental disorder. It also highlights the importance of clear communication and collaboration between all parties involved in such cases to ensure that patients receive the necessary treatment without undue delay.
Implications for Practice
The case of Tees Esk and Wear Valleys NHS Trust v KAG provides valuable lessons for healthcare professionals, legal practitioners, and mental health practitioners involved in the care and treatment of individuals with mental disorders.
a. Clarity in Legal Framework
This case highlights the importance of a clear understanding of the legal framework governing medical treatment decisions for individuals with mental disorders. The intersection of the MHA and the MCA can create complexity and confusion, particularly in cases where a patient’s capacity to consent to treatment is fluctuating or in question.
Healthcare professionals must be familiar with the scope of Section 63 of the MHA and its application to treatments that address the physical consequences of mental illness. They should also be aware of the jurisdictional boundaries between the Court of Protection and the High Court and the appropriate forum for resolving disputes concerning the lawfulness of medical treatment under the MHA.
b. Communication and Collaboration
Effective communication and collaboration between all parties involved are essential in cases involving complex medical treatment decisions. This includes healthcare professionals, mental health practitioners, legal representatives, and the patient’s family and carers.
In this case, the initial disagreement between the Trusts and the local authority regarding the lawfulness of the PEG insertion under Section 63 of the MHA contributed to delays in KAG’s treatment. Clear and timely communication between the parties could have potentially avoided this delay and facilitated a more efficient resolution.
c. Role of Specialist Legal Advice
Seeking specialist legal advice at an early stage can help to avoid confusion and ensure that the correct legal framework is applied. In this case, obtaining formal legal advice from the Official Solicitor could have potentially prevented the initial misunderstanding regarding the need for a court application.
Specialist legal advice can also assist healthcare professionals in navigating the complexities of the MHA and the MCA, ensuring that they are acting lawfully and in the best interests of the patient. This is particularly important in cases involving novel or complex treatment decisions, such as the insertion of a PEG for a patient with a mental disorder.
Conclusion
The case of Tees Esk and Wear Valleys NHS Trust v KAG serves as a stark reminder of the intricate legal challenges that can arise when treating individuals with mental disorders, particularly when their capacity to consent to treatment is compromised. The intersection of the MHA and the MCA creates a complex legal landscape, demanding a clear understanding of the scope and application of each Act.
This case highlights the potential ambiguities surrounding Section 63 of the MHA and its application to treatments addressing the physical consequences of mental illness. It underscores the importance of accurate interpretation of this provision and the need for clear communication and collaboration between healthcare professionals, mental health practitioners, legal representatives, and the patient’s family.
The jurisdictional confusion arising from the Trusts’ application to the Court of Protection, rather than the High Court, further emphasises the need for specialist legal advice in such cases. Early involvement of legal experts can help to clarify the appropriate legal framework, avoid procedural errors, and ensure that the patient’s best interests are protected.
The Official Solicitor’s role in safeguarding vulnerable individuals is also highlighted in this case. However, the initial confusion surrounding their position underscores the importance of obtaining formal legal advice, rather than relying on preliminary views.
The AMHP’s vacillation in this case demonstrates the challenges faced by mental health practitioners when making decisions with significant implications for patients’ welfare. It highlights the need for ongoing education and training to ensure that AMHPs are confident in applying the relevant legal frameworks.
In conclusion, Tees Esk and Wear Valleys NHS Trust v KAG offers valuable lessons for all those involved in the care and treatment of individuals with mental disorders. By promoting clarity in the legal framework, fostering effective communication and collaboration, and seeking specialist legal advice when necessary, there is likely to be more assurance that patients receive the necessary treatment in a timely and lawful manner, while safeguarding their rights and best interests.
