Court of Protection & Their Recent Decision On Limits Surrounding Capacity & Force Feeding

An NHS Trust and another v WA and Others [2020] EWCOP 37

Background

WA was a young man who claimed asylum in the UK. Prior to arriving in the UK, WA had sadly experienced extreme physical and sexual abuse which led to him being diagnosed with post-traumatic stress disorder and depression.

His state was worsened when clarification around his age was being determined following three age assessments, which concluded that WA was five years older than he was believed to be. WA was not able to accept this and began to feel hopeless, which led to him to start refusing food and drink. He was eventually admitted to Southmead Hospital in Bristol due to malnourishment.

At the date of the hearing, the Judge commented that if WA were to refuse tube feeding, death would occur through organ failure.

The objectives at the hearing were to identify whether WA had the capacity to take decisions relating to medical treatment and, if he did not, which treatment plan would be in his best interest.

Mental capacity

The Mental Capacity Act 2005 (MCA 2005) and the Mental Health Act 2007 (MHA 2007) provide the current framework of mental health and capacity law.

The following principles apply and are to be addressed whenever it is necessary to use or interpret the provisions of MCA 2005:

1. A person must be assumed to have capacity unless it is established that he/she lacks capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision;
4. An act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests; and
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

MHA 2007 sets out the fundamental principles that the Secretary of State should ensure that the following are addressed (s.8):

1. Respect for patients’ past and present wishes and feelings;
2. Respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation;
3. Minimising restrictions on liberty;
4. Involvement of patients in planning, developing and delivering care and treatment appropriate to them;
5. Avoidance of unlawful discrimination;
6. Effectiveness of treatment;
7. Views of carers and other interested parties;
8. Patient well-being and safety; and
9. Public safety.

The Courts have been willing, generally reluctantly, to uphold the clinician’s right to apply for permission to administer medical treatment without the consent of a mentally incapacitated person. However, MCA 2005 now adds the extra dimension of best interests, which will have to be considered.

However, it is also considered that it is potentially a criminal offence to carry out any invasive procedures on a person without their consent as, generally, it is the patient’s consent that makes invasive medical treatment lawful. Where a patient is unable to consent to treatment, it is lawful to give them treatment that is necessary for their best interests. Section 5 of the MCA 2005 now provides a general defence for acts done in connection with the care or treatment of a person, provided that the actor has first taken reasonable steps to establish whether the person concerned lacks capacity in relation to the matter in question and reasonably believes both that the person lacks capacity and that it will be in that person’s best interests for the act to be done.

The Court’s decision

The Court concluded that WA lacked capacity, however, it was further concluded that it was not in his best interest for forced nasogastric feeding to be carried out without his agreement and WA’s decision should be respected. However, the Judge further stated:

Comment

The Court’s decision clearly respected WA’s autonomy in making decisions involving such an invasive procedure, one which must likely fall under the definition of “serious medical treatment”, despite the lack of capacity. This further adds to the bank of examples of stances that the Court is willing to take in such decisions.