Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF

The inherent jurisdiction may be available where a person lacks capacity and the statutory framework provides no sufficient, practical and effective remedy for protecting Convention rights. Its use requires careful scrutiny of the need for the application, the orders sought and the rights engaged. In an exceptional case involving treatment under section 63 of the Mental Health Act 1983, the court may scrutinise whether treatment should be given, delayed or withheld where the decision is finely balanced and failure to act may risk premature death. The court should not become a general advisory service for clinicians. Part 8 procedure may be used for declaratory relief, subject to review as the factual dispute and case-management needs develop.

Two NHS foundation trusts applied under Part 8 of the Civil Procedure Rules 1998 for declarations concerning QF, a detained patient who lacked capacity to conduct proceedings and to decide whether to undergo a blood transfusion. QF was detained under section 3 of the Mental Health Act 1983 and objected to a transfusion under general anaesthesia, involving physical and chemical restraint and significant medical risks.

The application was revised after the clinical evidence changed. The trusts sought declarations that treatment could lawfully be imposed under section 63, and that its imposition could lawfully be delayed for up to seven days to allow arrangements to be made and distress to be minimised. The central issues were whether the inherent jurisdiction was available and whether the proposed treatment and short delay were lawful.

1. Declarations granted. The proposed blood transfusion under general anaesthesia could lawfully be provided under section 63 of the Mental Health Act 1983, notwithstanding the associated risks to physical health and life. It was also lawful to delay treatment for up to seven days to allow QF to process the decision and to put arrangements in place which optimised success and minimised distress.
2. The inherent jurisdiction was available in principle where there was no remedy, or no effective remedy, consistent with Convention obligations, or another identified reason justified the application. It was available whether the person lacked capacity or was merely vulnerable. The exclusion of Court of Protection jurisdiction by section 28 of the Mental Capacity Act 2005, together with the practical obstacles to judicial review for a person lacking litigation capacity, supported that conclusion.
3. Applicants must scrutinise carefully the need for invoking the jurisdiction. In this case the relevant factors were QF’s lack of litigation capacity; the finely balanced decision whether to give, delay or withhold life-sustaining treatment under section 63; and the risk that exercising or not exercising the power within a particular timeframe could lead to premature death. Applications should identify the rationale, orders sought and Convention rights engaged.
4. The court balanced QF’s Article 2 and Article 8 rights, the risks of enforced treatment, the risk of death from delay or withholding treatment, the clinical evidence and the practical arrangements for safe treatment. By the hearing, there was clinical consensus that treatment should occur within seven days, although the timing remained more nuanced than the decision to treat.
5. Part 8 was an appropriate procedure on the facts, but its suitability had to remain under review. The overriding objective, the court’s case-management powers and rule 8.8 of the Civil Procedure Rules 1998 enabled the court to reconsider the procedure if a significant factual dispute emerged. The court also gave practical guidance on second opinions, draft directions, notification of the Official Solicitor, reporting restrictions and allocation to a full-time Family Division judge.