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Human Rights and Mental Capacity - an interplay in the Court of Protection

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Court of Protection decides that man with irreversible stoma has the right to choose to die

Re BNK (Dental Treatment) [2023] EWCOP 56 provided a restatement of the interaction between the Mental Capacity Act 2005 ('MCA') and the European Convention on Human Rights (‘the convention’). Factually, it concerned dental treatment in relation to a 36 year old man, BNK, with a diagnosis of severe learning disability, autism, and Noonan syndrome. BNK lacked capacity to consent to the treatments proposed (dental treatment including tooth extraction under general anaesthetic), and was expected to object to the treatment such that physical and pharmacological restraint may have been required.

Given the potentially serious consequences of the treatment, the fact that restraint may be required and the fact that BNK lacked capacity to decide whether to have the treatment, the NHS Trust properly sought authorisation of the proposed treatment from the Court of Protection. The Court of Protection (‘the court’) found that one available option was to be preferred, although accepted another would be in BNK’s best interests if certain facts came to light in future.

In his judgement, Paul Bowen KC highlighted that the parties had not made submissions in relation to the human rights aspects of the proposed treatment, namely whether they were lawful under section six of the Human Rights Act 1998 (which makes it unlawful for a public authority to act in a way which is incompatible with a convention right). The rights in question were that of Article 3 of the convention, the prohibition of ‘inhuman or degrading treatment or punishment’, that of Article 8 of the convention, the right to ‘respect for…private and family life’, and that of Article 2 of the convention, the right to life. Paul Bowen KC held:

Even if it might be said that the imposition of restraint and the administration of treatment against BNK’s wishes reached the threshold…for the purposes of Article 3, a medical intervention which is a therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading and is therefore not a violation…’

Further, Paul Bowen KC recognised the proposed treatment was a ‘prima facie interference with the right to bodily integrity protected by Article 8(1)’ but was justified under Article 8 (2) as a ‘necessary and proportionate means of achieving the legitimate end of preserving life and protecting BNK from harm.’.

With reference to the right to life, Paul Bowen KC stated ‘the state may be under a positive duty to protect an incapacitated adult…from serious pain and illness and from any real and immediate risks to life of which it is aware…’ and that such a duty would ‘outweigh any countervailing duty to respect BNK’s right to bodily integrity under Article 8’. However, on the facts of the case, the court did not need to decide whether such a duty was owed. It held that the state, in this instance, was entitled to have regard to the preservation of life as a factor that could permissibly be taken into account when considering the applicability of other convention articles.

The case served as a useful reminder of how convention rights legally interact with the practical operation of the MCA’s principles. It explained how necessary medical interventions - though they may be regarded as inhuman and degrading - can nevertheless be justified as an established principle of medicine, and not be in violation of an individual’s convention rights. Further, it explained the long-established principle that the right to respect and family life under Article 8 can be interfered with where such interference preserves the life of an individual and protects him or her from harm. In conclusion, as noted by Paul Bowen KC, ‘the state has a wide margin of appreciation when balancing its competing duties…’.