Court Of Protection Lacks Jurisdiction To Order That A Vulnerable Adult Should Be Force Fed

The Court of Protection plays an important role in making decisions on behalf of vulnerable individuals who lack the capacity to make specific decisions on their own accord. When an individual has been found to retain capacity the Court of Protection’s jurisdiction comes to an end and they cannot make any decisions that may bind that individual.

In the recent case of PH (by his litigation friend, the Official Solicitor) v Betsi Cadwaladr University Health Board [2022] EWCOP 16, Justice Hayden went further to comment that it is not for the Court of Protection to tell those with capacity what is in their best interests, stressing it would be unhealthy in a mature democratic society.

PH (by his litigation friend, the Official Solicitor) v Betsi Cadwaladr University Health Boar

Case background

In this case, PH (the Protected Party) had a tracheostomy and would regularly reject feeding. The Protected Party’s position was that he did not want food or nutrition as he preferred to die.

The Health Board, therefore, brought proceedings in order to make best interest decisions in respect of the Protected Party’s treatment and his feeding.

As with many Court of Protection cases, the Court’s starting position was to assess the Protected Party’s capacity in respect of his treatment, including his feeding. In order to assess capacity, the Court relied on evidence from the Protected Party’s Doctor and Justice Hayden also met with the Protected Party himself.

The Protected Party was able to clearly understand the effects of rejecting feeding and was able to explain why he was doing this. The Protected Party understood his actions would lead to early death and this was something he wanted as he was unhappy with his life and present circumstances. It was noted that the Protected Party was able to accept nutrition at times he wanted to increase his strength, such as when he visited another placement to which he hoped to be relocated. This confirmed that the Protected Party was fully aware of his actions and the consequences, and was able to change his instructions on feeding to suit his needs at the time.

On consideration, it was agreed that the Protected Party retained capacity in relation to his treatment. Based on that finding it was declared that the Court of Protection had no jurisdiction, whether that being the power to make declarations, orders, or provide further directions. Whilst the Protected Party’s decision to reject feeding was distressing, it was a decision he was able to make without the Court’s interference. Justice Hayden commented there were good reasons for this as it was not within the Court’s business to tell capacitous individuals what is in their best interests.

This case reinforces one of the key principles of the Mental Capacity Act 2005 – a person is presumed to have capacity unless it is proven to the contrary. The Court of Protection should only be called upon if it is established that a person lacks capacity. Even when capacity is not clear/limited, the Court’s role is also to ensure that all practicable steps are taken in order to encourage a person’s autonomy and their wishes should be taken into account.