The recent case of Nottingham University Hospitals NHS Trust and Nottinghamshire Healthcare NHS Foundation Trust v RL, VL and XY NHS Trust [2023] EWCOP 22 provides some useful guidance on how the Court of Protection might approach decisions as to capacity and best interests in circumstances where P will not engage in assessments or consultations.
In this case, RL, a 30-year-old man serving life in prison for murder, was selectively mute. He refused food and became severely malnourished, resulting in admission to hospital where he refused nasogastric feeding and antipsychotic medication. An urgent application was brought in the Court of Protection for a declaration that it was in his best interests to receive nasogastric feeding, alongside treatment for his mental health condition and a thyroid condition. The medical evidence available at the hearing indicated treatment was required urgently to avoid a life-threatening situation, the risk of which increased the longer RL was not fed.
Considering first whether RL had capacity to make his own decisions about his medical treatment, the court had evidence from RL’s treating psychiatrist, Dr D, who concluded RL was unable to use and weigh up the relevant information or communicate his decision. The difficulty with the assessment, however, was that (save for one very limited communication), RL had not communicated with Dr D at all, despite them meeting on numerous occasions. Similarly, RL had refused to engage in any way with representatives for the Official Solicitor when they visited him (he literally hid under his bedding).
The Judge accepted RL was unable, on the balance of probabilities, to weigh up the information or communicate his decision, noting:
‘He simply has made it impossible for anyone to know what his wishes are because he will not express them himself. He does not give an indication of understanding the link between receiving food and treatment and life and death.
It seems to me, therefore, clear that he does suffer from those two incapacities and that is caused by his psychosis.’
Turning then to best interests, whilst acknowledging that great weight should be given to what RL’s own views would be, the Judge noted his attitude towards food and drink had been inconsistent in the past, and unfortunately he would not communicate to indicate what his views were now. However, RL’s mother’s evidence was that his current presentation was out of character and she believed he would want treatment if he were well.
Together with the strong presumption in favour of the preservation of life, this led the Judge to the conclusion that it was in RL’s best interests to receive nasogastric feeding (and treatment for his mental health and thyroid conditions), including restraint if it became necessary to reinstate the nasogastric tube, subject to the court reviewing those decisions in 7 days’ time.
It is not uncommon for professionals to encounter a situation where P will not engage in capacity assessments or provide their views as part of the best interests process. This judgment is useful in demonstrating that s3(1)(d) of the Mental Capacity Act (MCA) 2005 – a person is unable to make a decision for himself if he is unable to communicate his decision (whether by talking, using sign language or any other means) – can potentially be relied upon even where P chooses not to communicate, provided that it is because of an impairment or disturbance in the functioning of the mind or brain (s2(1) MCA).
Where P will not engage in the best interests process, the court will look to those in P’s life for guidance as to what P’s wishes and feelings are likely to be. Decision makers must consult with and take into account the views of anyone named by P as someone to be consulted, anyone engaged in caring for P or interested in their welfare, any done of a lasting power of attorney, and any deputy appointed by the court, as to what would be in P’s best interests (s4(7) MCA), and they must consider, so far as reasonably ascertainable, P’s past and present wishes and feelings, beliefs and values, and any other factors they would be likely to consider (s4(6) MCA).
Please get in touch if you have any queries or require advice.
For further information, please contact:
Claire Christopholus, Hill Dickinson
claire.christopholus@hilldickinson.com
