Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The 50-year-old man was a former GP in his home country of Iran, who came to England on a six-month visa in August 2011 in order to study English. During his stay he applied for asylum three times, to be declined every time. In May 2012 his passport was confiscated by the UK Border Agency, to be returned to him only when he went back to Iran. The man subsequently went on a hunger strike, mistakenly believing that this would help him recover his passport. He was admitted to hospital in July 2012 following several physical problems caused by his hunger strike, and continued to remain in hospital for almost a year following this initial admittance.
During his initial time in hospital the man's psychiatrists and doctors concluded that he was suffering from a delusional disorder, and lacked the capacity to decide whether to eat or drink. Shortly after these conclusions were made the man was fitted with a nasogastric tube in order to facilitate feeding, which on many occasions he removed and refused the reinsertion of. The man expressed several symptoms of a delusional disorder: a negative obsession with the colour red; an overwhelming suspicion that the Iranian government was monitoring him via his computer; and, perhaps most shockingly, the erroneous belief that the hospital had performed a prostatectomy without his consent. In August 2012 he was detained in hospital under s 2 of the Mental Health Act 1983 and, later, under s3 of the same Act. An application was made to the Court of Protection in December 2012 for permission to apply for an order allowing the hospital to continue providing the man with artificial nutrition and hydration.
After considering evidence from the man's doctors, including independent psychiatric assessments, the judge accepted the opinion of the psychiatrists involved in the case that the man did, indeed, suffer from a delusional disorder, and, by extension, did not have the capacity to either litigate, or make decisions concerning nutrition and hydration.
The judge concluded that, in accordance with s 1(5) of the MCA, it was in the man's best interests to be forcibly administered artificial nutrition and hydration by the hospital. However, the issue had arisen of whether it was a deprivation of his liberty, in regard to Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 due to the hospital having to physically restrain the man whilst fitting him with a nasogastric tube. Despite finding that this subject was surrounded by much complex legislation from both the MHA and the MCA (a lot of which contradicted itself), the judge remained clear that he was under an operational duty, as per s 2 of the MCA, to protect the man as someone who lacks capacity to decide whether to accept nutrition and hydration at the risk of starvation.
He, therefore, authorised the treatment of the man, including the deprivation of his liberty - ie, the forcible administering of artificial nutrition and hydration, and the lawful application of an appropriate level of force and restraint in order to do so - on the condition that the authorised order complied with s 5 of the MCA.
In July 2013, the judge was notified that the man had gone back to Iran, making, in the doctors' opinion, a capacitous decision to do so. Following the hearing the man had been provided with artificial nutrition and hydration, which required restraint, and was placed on anti-psychotic medication which aided the improvement of his mental state. The reoccurrence of voluntary eating and drinking in May 2013 meant that his weight soon increased to a normal level once again. In June 2013 his detainment in hospital under s 3 of the MHA was rescinded as a result of his mental condition's improvement, and the man returned to Iran in the same month.