The recent decision in PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16 demonstrates that judges will not make decisions on behalf of Protected Parties unless they are proven to lack the capacity to make such a decision for themselves. It is also a stark reminder to others that when it comes to medical treatment, no patient may be forced to accept treatment when that individual has the capacity to understand the consequences of refusal.
Case background
The PH (the Protected Party) decision concerned an individual who was refusing to be fed in a hospital. He had had a long history of health problems and was receiving other medication for depression and pain relief. However, he refused to accept nutrition. The clinicians who were treating him – it appeared – had overstepped the mark and had forcibly restrained the Protected Party so as to take blood samples from him.
A judgment from Mr Justice Hayden in October 2021 was critical of the Respondent’s health authority for forcibly taking samples from the Protected Party, having failed to apply to Court for a declaration that the Protected Party lacked the capacity to consent to treatment, and that the treatment was in his best interests. The health authority had also ignored a previous capacity report which addressed the issue of the Protected Party’s capacity. The Protected Party’s capacity had been assessed and the Official Solicitor, his litigation friend, had met with him. Both had gone through a series of questions with the Protected Party and he had given clear reasons when asked about his decision to refuse to be fed, acknowledging that he would probably die if he continued in the same vein.
The Court revisited the case recently. The Judge set out the provisions of the Mental Capacity Act 2005, particularly these points:
- An individual is presumed to have capacity unless proven otherwise;
- An individual should only be declared to lack capacity if all reasonably practicable steps to help him/her make a decision have been taken without success;
- A person should not be treated as unable to make a decision merely because the decision they want to make is unwise.
The Court found that the local health authority had failed to pay proper regard to the above and even though the Protected Party’s decision to refuse to accept nutrition was not wise given the high risk that he would die, the treating clinicians had no mandate to override his instructions. The Judge made this very compelling point:
“The Court has no business in telling capacitious individuals what is in their best interests nor any locus from which to compel others to bend to the will either of what capacitious individuals may want or what the Court might consider they require. Such a regime would be fundamentally unhealthy in a mature democratic society and would have the collateral impact of undermining the principle of autonomy which is central to the philosophy of the MCA.”
Comment
There was clearly a degree of upset on the part of the treating clinicians, who wanted to help the Protected Party and treat him so that he might have a better quality of life. However, this case – harsh though it may appear – is a key reminder of the fact that making the wrong decision about something does not mean that an individual cannot make that decision for themselves. The key is whether or not the individual understands the consequences of their decision, and the Protected Party demonstrated that he clearly did.
The Judge confirmed that due to the fact that the Protected Party had the capacity to decide to refuse to be fed, the Court of Protection had no jurisdiction and could not be asked to decide for him.
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