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England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Kings College Hospital NHS Foundation Trust v C & Anor  EWCOP 80 (30 November 2015)
Cite as:  EWCOP 80
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Strand, London, WC2A 2LL
B e f o r e :
| Kings College Hospital NHS Foundation Trust
|- and -
|- and -
Miss Katie Gollop (instructed by Official Solicitor) for the First Respondent
Mr John McKendrick (instructed by Bindmans) for the Second Respondent
Hearing date: 13 November 2015
Crown Copyright ©
Mr Justice MacDonald:
"An adult patient who…suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered… This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent."
"My mother's values, and the choices that she made have always been based on looks (hers and other people's), money, and living (at all costs) what she called her "sparkly" lifestyle…her life was, from her point of view, a life well lived. I have never known her express regret, or really to take responsibility for anything, including the choices she has made".
1 The principles
This section has no associated Explanatory Notes
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
2 People who lack capacity
This section has no associated Explanatory Notes
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
3 Inability to make decisions
This section has no associated Explanatory Notes
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,(b) to retain that information,(c) to use or weigh that information as part of the process of making the decision, or(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or(b) failing to make the decision.
"The temptation to base a judgment of a persons capacity upon whether they seem to have made a good or bad decision, and in particular on whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary."
"It would be going too far to hold that in approaching matters in this way Hedley J plainly erred in applying the law. His judgment refers to the key provisions and twice refers to the nexus between the elements of an inability to make decisions set out in s 3(1) and mental impairment or disturbance required by s 2(1). There is, however, a danger in structuring the decision by looking to s 2(1) primarily as requiring a finding of mental impairment and nothing more and in considering s 2(1) first before then going on to look at s 3(1) as requiring a finding of inability to make a decision. The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence - 'mental impairment' and then 'inability to make a decision' - is the reverse of that in s 2(1) – 'unable to make a decision … because of an impairment of, or a disturbance in the functioning of, the mind or brain' [emphasis added]. The danger in using s 2(1) simply to collect the mental health element is that the key words 'because of' in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: 'referable to' or 'significantly relates to'…Approaching the issue in the case in the sequence set out in s 2(1), the first question is whether PC is 'unable to make a decision for herself in relation to the matter', the matter being re-establishing cohabitation with NC now that he is her husband and now that he is has regained his liberty.".
"In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P. In Oldham MBC v GW and PW  EWHC136 (Fam)  2 FLR 597, a case brought under Part IV of the Children Act 1989, Ryder J referred to a "child protection imperative", meaning "the need to protect a vulnerable child" that for perfectly understandable reasons may lead to a lack of objectivity on the part of a treating clinician or other professional involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective."
i) On 25 September 2015 C was noted to have "an overvalued idea that her quality of life will not improve and that she can die in a hospice."
ii) On 29 September 2015 C refused dialysis. Dr R was concerned that C's capacity to "weigh in the balance the risks and benefits of accepting/refusing treatment" was compromised by "very rigid thinking style and her distorted cognition such as black and white thinking and catastrophic thinking e.g. that she will forever require dialysis and will never recover to a stage where she can live an independent life again". Within this context Dr R concluded that C was unable to use or weigh information relevant to the decision being made. It is important to note that later on 29 September 2015 C changed her mind and consented to dialysis (which I deal with in more detail below);
iii) On 20 October 2015 C is recorded as stating that she does not want a life dependent on dialysis and of poor quality and seemed to dismiss the medical opinion that she has every chance of making a good recovery and leading a fulfilling and normal life and that she was expressing rigid ideas about not wanting treatment on that day.
iv) On 3 November 2015 C again refused dialysis. Dr R was concerned that the main driver of C's decision appeared to be her categoric belief that the timescale given to her for recovery had passed. C considered that this meant she would not recover and did not want a lifetime of dialysis. Within this context, Dr R concluded that "She is unflinching in her belief about this. I think this could be significantly influenced by her personality traits and as such are affecting her ability to use and weigh evidence presented to her thereby affecting adversely her ability to make a capacitous decision."
v) On 5 November 2015 Dr R recorded that, having against spoken to C, the concerns he had on 3 November subsisted. In his report dated 6 November 2015 Dr R records his conversation with C on 5 November as follows "C states she remains adamant that she does not wish to continue with dialysis treatment. The reasons, as she tells me, are that she has never wanted to have it (despite many weeks of engaging), she has acquiesced rather than engaged enthusiastically. Now she finds it painful, exhausting and she has had enough. She states she knows she will die as a result of not having it. She believes herself to have the capacity to make this decision…she also appears to have taken a very concrete categorical cognitive position around the inevitability of death despite her treating doctors' view of her prognosis. She believes she has no hope of recovery as she is now through the period of expected recovery as described to her. She is unflinching in her belief about this." Within this context, Dr R concluded "This unexplained and seemingly irrational decision is not met with significant using and weighing demonstrably ending with a capacitous but objectively assessed unwise decision."
vi) On 6 November Dr L noted that C was frustrated at the delay in recovery and was exhibiting an apparent indifference to the consistent message provided by her medical team that recovery would occur.
vii) On 9 November 2015 Dr R saw C again and noted that "We also spoke in more detail about being able to envisage a future in which she was back up on her feet again with no line in her neck and no pain. She stated that this was not possible – 'they have told me before that I would do that and I am still here' 'I can't go on like this for months or months or forever'."
viii) On 10 November 2015 Dr R again spoke to C and recorded that, when he pressed C about the reasons for making her decision to refuse treatment, "it comes back to her expressed belief that there is no hope 'a tiny sliver of hope' as she put it today, that she will get better. When I challenge her about this gently and ask what she hears when the doctors state they remain optimistic that she will recover from this acute phase, she tells me she hears that she cannot do what she wants to do."
"made very clear to me that she understands and has retained the information that her liver is making a good recovery and that her kidneys are recovering, albeit more slowly, such that her doctors wish her to undergo thrice weekly haemodialysis for some months to come. C also understands and has retained the information that her doctors expect her kidney function to recover such that haemodialysis can be discontinued at some point in 2016 and that her medical quality of life can be expected to improve thereafter. In response to my further exploration, C told me that she had thought a great deal about her medical condition and that, despite appreciating that she has been given a good prognosis, she remains steadfastly determined to die as soon as possible."
Evidence from the Family
"As I have said above, my mother would never have wanted to live at all costs. Her reasons for trying to kill herself in September and for refusing dialysis now are strongly in keeping with both her personality and her long held values. Although they are not reasons that are easy to understand, I believe that they are not only fully thought through, but also entirely in keeping with both her (unusual) value system and her (unusual) personality. Her unwillingness to consider 'a life she would find tolerable' is not a sign that she lacks capacity; it is a sign that what she would consider tolerable is different from what others might. She does not want any life that is on offer to her at this stage. Put bluntly, her life has always revolved around her looks, men, and material possessions: she understands that (as put to her by Professor [P]) other people have failed relationships, feel sad and continue living, but for her, as she has said, she doesn't want to 'live in a council flat', 'be poor' or 'be ugly' (which she equates with being old). As is set out in the notes, she truly means it when she says 'I have lost everything this year', and that being the case, she doesn't want to accept any of the options on offer to her as – as she sees it – an 'old grandma', even were her kidneys to fully recover. 'Recovery' to her does not just relate to her kidney function, but to regaining her 'sparkle' (her expensive, material and looks-orientated social life) which she believes she is too old to regain. Again, the references in the notes to her talking about being 'sociable, hosting parties and going out with the girls' are fitting: to those who know her well, her entire identity has been built around being a self-described 'vivacious and sociable person who lives life to the full and enjoys having fun'".