Court Of Protection Determines That Woman Diagnosed With Mental Illness And Severe Eating Disorder Has Capacity To Refuse Medical Treatment

This case (Q, Re [2022] EWCOP 6) involved an application by Lancashire and South Cumbria NHS Foundation Trust which sought three declarations from the Court of Protection as to the following:

Background

The Protected Party is a 50-year-old woman diagnosed with bulimia and struggled to combat this condition for over a decade. Sadly, the Protected Party has also been diagnosed with Emotionally Unstable Personality Disorder (‘EUPD’) and has a history of recurrent depression and PTSD, stemming from severe childhood trauma and sexual abuse by her adoptive father. It is understood that the Protected Party’s long-standing eating disorder has had a significant impact on her body’s ability to function on a day-to-day basis and she suffers from episodes of life-threatening metabolic complications, including hypokalaemia.

Over the years, the Protected Party has been admitted to mental health units on at least 8 separate occasions, and whilst has previously been willing to engage in the extensive treatment, her metabolic state has been highly unstable for the last two years. It follows that the medical professionals overseeing the Protected Party have raised concerns about the potentially life-threatening consequences of her low potassium levels; most significantly of which is the risk that she will suffer from a sudden onset of catastrophic cardiac arrhythmia. One of the clinicians described the Protected Party as having “the lowest potassium in a living person in all my years of medicine”, which puts into context the severity of the Protected Party’s condition.

On 14 October 2020, the Protected Party completed an ADRT document in which she refused all treatment relating to low electrolytes regardless of her physical condition. She also refused any life-saving interventions including CPR and admissions to mental health wards as a result of her chronic bulimia. She specified that she wanted to be kept physically comfortable at home only until her death.

Whilst there were no concerns as to the validity of the format or witnessing of this ADRT, the question arose as to whether the Protected Party had the capacity to make this document at the time she completed it, alongside the other issues noted above.

In January 2021, the Protected Party was subsequently detained under Section 3 of the Mental Health Act 1983 to ensure her compliance with medical treatment. She remained on a locked ward for a period of 8 months and required regular restraint in order to administer potassium intravenously.

Decision

Mr Justice Hayden described the Protected Party, who voluntarily gave oral evidence during the hearing, as “an eloquent, articulate woman who told me what she wanted to say in well-reasoned and carefully constructed terms” and “an engaging personality with much to offer”.

In making his decision, Mr Justice Hayden emphasised that where an individual lacks the capacity to decide about their own medical treatment, they will also frequently lack the capacity to litigate in a case relating to the same matters. The Court was of course reminded of the presumption of capacity established by the Mental Capacity Act 2005; i.e. an individual is presumed to have the capacity in relation to a specific issue until sufficient evidence is presented to prove otherwise.

Mr Justice Hayden stated that:

During the hearing, it became evident that the Protected Party’s legal representatives were highly confident in her ability to fully understand the significance of these proceedings. The Protected Party was deemed to be able to competently give her instructions and also take advice from her legal team.

The Protected Party’s General Practitioner and Consultant Psychiatrist (the latter a specialist in eating disorder psychiatry) gave pertinent evidence to the effect that the Protected Party was able to weigh up the information to make decisions regarding treatment for her physical health, including potassium treatment, and was also able to communicate her decision adequately to those overseeing her care.

The evidence indicated that whilst the Protected Party did not want to die, she also did not want to live under an oppressive and intrusive medical regime to which she was “sick” of being exposed.

Based on all of the circumstances, it was found that the Protected Party has the capacity to litigate, to make decisions in respect of treatment for hypokalemia, and had capacity at the time of the ADRT.

Comment

The Court’s decision in this case clearly indicates that whilst an individual may make an objectively unwise decision in respect of their own medical treatment, including one which may put them at a real risk of imminent death, this does not automatically mean that a person lacks the requisite capacity to make that decision. This case is a good example of a situation in which the presumption of capacity (which is always the starting point) has not been rebutted. In such a situation, the autonomy of an individual must be respected and protected.