Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF [2026] EWHC 1621 (Fam)
Judge: Mrs Justice Theis DBE
Date: 29 June 2026
Background
QF was a 29-year-old woman detained under s.3 Mental Health Act 1983 (MHA) who had diagnoses of Complex PTSD and Autism. She had a long history of severe self-harm by cutting resulting in chronic and life-threatening anaemia caused by repeated blood loss.
There was no dispute that QF lacked capacity both to make decisions about the proposed treatment and to conduct the litigation.
Although she had previously accepted treatment, by 2026 she was refusing interventions aimed at addressing her anaemia. Earlier in the year, when her haemoglobin level fell to a dangerously low level, clinicians administered a blood transfusion under general anaesthetic pursuant to s.63 MHA despite her objections. [N.B. s.63 MHA states that the consent of a patient shall not be required for any medical treatment given to them for their mental disorder if given by or under the direction of the approved clinician in charge of the treatment.]
By June 2026, QF’s haemoglobin was again dangerously low. A multidisciplinary team initially hoped that further psychiatric engagement might persuade her to accept treatment voluntarily. However, her engagement deteriorated and clinicians, supported by an independent intensive care expert, concluded that a further blood transfusion under general anaesthetic should take place within 7 days.
The Trusts jointly applied to the High Court seeking declarations under the court’s inherent jurisdiction that it was lawful to administer the transfusion under s.63 MHA even if it carried a significant risk of harm, and that it was lawful to briefly delay that treatment (to allow practical arrangements to be made) notwithstanding the risks to QF. There was no dispute that the proposed blood transfusion was medical treatment under s.63.
Decision
Mrs Justice Theis granted the declarations sought. The medical evidence was that the proposed treatment carried significant risks because of QF’s obesity, the need for restraint and the requirement for general anaesthetic, there were risks of serious complications including respiratory failure, cardiovascular complications and death. Against this, however, was the risk that withholding treatment could itself lead to QF’s premature death. Hence the treatment decision was finely balanced.
A key issue was jurisdiction. Because the treatment fell within Part IV MHA, the Court of Protection could not determine the issue due to s.28 Mental Capacity Act 2005. [S.28 MCA preserves the primacy of the MHA in relation to compulsory treatment for mental disorder. Where treatment falls within Part IV MHA, the Court of Protection has no jurisdiction to determine whether that treatment should be given, even if the patient lacks capacity.]
Whilst a decision under s.63 MHA is ordinarily capable of challenge by judicial review, the judge recognised that this was not a practical or effective remedy for QF because she lacked litigation capacity.
The judge held that the High Court’s inherent jurisdiction remained available in exceptional circumstances where there was no effective alternative remedy and where judicial scrutiny was required to protect Convention rights. In this case, Articles 2 and 8 ECHR were plainly engaged and the consequences of both providing and withholding treatment carried substantial risks.
Comment
This judgment is significant because it confirms that the High Court’s inherent jurisdiction continues to operate as a safeguard where compulsory treatment under the MHA raises exceptional issues and no effective means of challenge exists.
Whilst the court emphasised that applications of this nature should be rare, it accepted that judicial scrutiny may be necessary where a detained patient lacks litigation capacity, life-sustaining treatment is in issue and important Convention rights are engaged.
The judge provided some practical guidance at paras 73-74 for Trusts considering similar applications, including the need for careful analysis before proceedings are issued and consideration of obtaining an urgent external second opinion.
Above all, the judgment reinforces the continuing role of the inherent jurisdiction as a “safety net” where the statutory frameworks of the MHA and MCA do not provide an effective route for judicial oversight in cases involving life-saving treatment.
The full judgment can be found here.
