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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Kings College Hospital NHS Foundation Trust v C & Anor [2015] EWCOP 80 (30 November 2015) URL: https://www.bailii.org/ew/cases/EWCOP/2015/80.html Cite as: [2015] EWCOP 80 |
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court
. The judge has given permission for this version
of
the judgment to be published. There is a reporting restriction order in force in respect
of
this case. Permission to publish this version
of
the judgment is given expressly subject to the terms
of
the reporting restriction order.
COURT OF PROTECTION
Courts of Justice![]() Strand, London, WC2A 2LL |
||
B e f o r e :
JUSTICE MACDONALD
____________________
| Kings College Hospital NHS Foundation Trust |
Applicant |
|
| - and - |
||
| C |
Respondent |
|
| - and - |
||
| V |
Respondent |
____________________
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
____________________
OF
JUDGMENT
Crown Copyright ©
INTRODUCTION
of
the patient. In Re T (Adult: Refusal
of
Treatment) [1993] Fam 95 at 102 Lord Donaldson observed that:
"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 anotherof
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."
of
medical treatment and the very long established right
of
the patient to choose to accept or refuse medical treatment from his or her doctor (voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).
court
is only entitled to intervene in circumstances where the
court
is satisfied that the patient does not have the mental capacity to decide whether or not to accept or refuse such treatment. Where the
court
is satisfied, on the balance
of
probabilities, that the patient lacks capacity in this regard, the
court
may take the decision as to what course
of
action is in the patient's best interests.
of
C. If the treatment is administered the likelihood is that it will save C's life, albeit that there remains an appreciable and increasing possibility that C will be left requiring dialysis for the rest
of
her life. C now refuses to consent to dialysis and much
of
the treatment associated with it. She is supported in that decision by her family, and in particular her two elder daughters G and V.
of
a concern on the part
of
her treating clinicians that C lacks capacity to decide whether or not to consent to dialysis, Kings College Hospital NHS Foundation Trust (hereafter 'the Trust') has applied to this
court
pursuant to s 15
of
the Mental Capacity Act 2005 for a declaration that C lacks capacity to make decisions about her medical care and treatment.
of
the Mental Capacity Act 2005 that the Trust and its staff are authorised to provide such medical care and treatment to C as they judge to be clinically indicated, to prevent C from leaving hospital without agreement and to use necessary and reasonable physical and/or chemical restraint for the purposes
of
giving effect to the declaration with respect to medical care and treatment.
of
Friday 13 November 2015, having considered the evidence filed in this matter and having heard oral evidence from three psychiatrists and C's daughter G and the submissions
of
counsel, I decided that, on balance, C does have capacity to decide whether or not to consent to dialysis. In the circumstances, I dismissed the application
of
the Trust. I now set out my reasons for coming to that conclusion. This matter was heard in open
court
. There is a reporting restriction order in force which prohibits the publication
of
certain information likely to lead to the identification
of
C as being the subject
of
an application with respect to serious medical treatment, including the identity
of
the doctors and other medical professionals treating C.
BACKGROUND
of
her eldest daughters and the account
of
her father, C has led a life characterised by impulsive and self-centred decision making without guilt or regret. C has had four marriages and a number
of
affairs and has, it is said, spent the money
of
her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption
of
alcohol has been excessive and, at times, out
of
control. C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and 'living the high life'. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C's words, '
sparkles
'.
of
glad because the timing was right". It is recorded in C's medical notes that she did not want to discuss the benefits and risks associated with chemotherapy but was "keen not to have any change in size or deficit that will affect her wearing a bikini". She refused to take medication prescribed for the disease because "it made her fat". There appear to have been no concerns expressed regarding C's capacity in this context.
of
anger in circumstances where this meant she would be a grandmother and made her feel "past her sell-by date". Within the foregoing context, in her statement V relates that C has often said over the years that she wanted to "go out with a bang" and has been firm in her conviction that, with regard to growing old, she "just would not let it happen".
of
her four marriages provided by V it would appear that C has, over the course
of
those four marriages, considered a downturn in the financial fortunes
of
her husbands an entirely reasonable ground for moving on and has taken requests that her spending be curtailed or limited to be unreasonable. The value that C places on wealth and possessions is further demonstrated by her statement to V that, her fortunes having suffered a downturn in recent times, she does not want to "live in a council flat" or to "be poor".
"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 pointof
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".
of
C's life has, sadly, followed a trajectory that has moved away from what she terms her "sparkly" lifestyle. As I have already noted, C was diagnosed with breast cancer in December 2014. She underwent a lumpectomy in January 2015 and radiotherapy in March 2015, with treatment concluding in May 2015. C has said that, understandably, this placed her under some stress. In August 2015 C experienced the acrimonious breakdown
of
a long term relationship. This also resulted in the loss
of
her business and the financial security attendant thereon, the loss
of
her home and the generation
of
significant debt. C was also the subject
of
arrest and criminal charges arising from an incident that occurred during the breakdown
of
her relationship. This situation is described in the report
of
Dr R as exposing C to 'back to back psycho-social stressors'.
of
C's attempted suicide have been grave and are described in detail in C's medical records and in the statements
of
Dr L, liver consultant and Dr S, consultant nephrologist. In summary, as a result
of
her paracetamol overdose C suffered an injury to her liver and an acute injury to her kidneys. Since admission to hospital C has, consequently, required renal replacement therapy. That therapy was provided initially by a 'filtration' machine and thereafter by intermittent haemodialysis for four hours three times per week.
of
intensive treatment after the overdose, C made slow but progressive improvement in her liver function. However, an improvement in her kidney function has yet to occur with her kidneys showing no signs
of
significant recovery. Dr L is clear that the ongoing care
of
C is now predominantly supportive in nature save for the essential requirement
of
kidney dialysis. The anticipated duration
of
that treatment is from a minimum
of
six weeks up to a maximum
of
several months. As at 6 November Dr L was
of
the view that the outlook for C's kidney function was unclear but that, generally, her doctors anticipated a recovery in due course. Dr L described the view regarding C's kidney function on that date as 'cautiously optimistic'.
of
people who suffer an acute kidney injury as a result
of
a paracetamol overdose recover independent kidney function, usually within four to six weeks. However, he further notes that in circumstances where C is now nearly nine weeks from her overdose, arriving at a confident prognosis is made more difficult. In C's medical records Dr S is recorded as informing C on 5 November 2015 that her prognosis remained unpredictable and that, even were the damage to her kidneys to be potentially reversible, the prognosis would remain uncertain.
of
C's kidney function is a combination
of
paracetamol related kidney injury, severe liver injury and several episodes
of
infection requiring antibiotic treatment, and that the most likely outcome remains that C will recover independent kidney function over the course
of
several months. Dr S however makes clear that it is possible that C has sustained irreversible damage to her kidneys in the form
of
cortical necrosis. The way to establish definitively whether this is the case for C would be to perform a kidney biopsy. At present however this is a high risk procedure due to C having abnormal blood clotting levels as a result
of
her liver injury. A kidney biopsy will become less risky as C's liver recovers.
of
chronic kidney damage. Within this context, if C recovers kidney function to the point where she does not need renal replacement therapy then Dr S would expect C's kidney function to have minimal effect on C's ability to continue as she had prior to the overdose. However, if C does not recover kidney function Dr S is clear that she would require regular renal replacement therapy in order to stay alive. The options for such replacement therapy would be a continuation
of
the haemodialysis that C currently has, peritoneal dialysis or a kidney transplant.
of
C's liver function to normal is anticipated within a four to six week period. Dr L further records that C's kidney function has still yet to recover but anticipates an 85 to 95% chance
of
this occurring having regard to the progression seen in a large majority
of
similar cases. However, like Dr S, Dr L acknowledges that, with the passage
of
time, the likelihood
of
full recovery diminishes. Dr L estimates that if C is not fully recovered within a period
of
three months, later recovery is unlikely, with the chances
of
delayed restoration after three months estimated at less than 20%. In such circumstances C would require long term renal replacement therapy.
of
potassium and acid in her blood increase to dangerous levels. These levels will typically become life threatening between three and seven days following the last haemodialysis session. If C drinks during this period then she will also endure fluid build up on her lungs and insufficient oxygen in her bloodstream as a result. The risks
of
a sudden cardiac event or deterioration will increase after more than three days without dialysis. If C's kidney function remains poor and she passes very little urine, it is likely that C will die within five to ten days
of
having no dialysis. C would become progressively drowsy and possibly confused after several days although a sudden cardiac arrest and death is possible at any point.
of
the dialysis. In order to achieve this safely the procedure would need to be undertaken in a high dependency setting. There are,
of
course, risks associated with heavy sedation, including respiratory depression and low blood pressure which may in turn necessitate further intervention including intubation and ventilation. Finally, Dr S states that a person seeking to avoid dialysis may remove the dialysis tubes when able to do so, resulting in the need to insert a dialysis tube into a large vein each time and under sedation. There is a risk
of
bleeding and infection each time this is done, which risk is significantly increased in C given her abnormal clotting. There is also a risk
of
damage to veins, thereby increasingly restricting venous access. Dr S opines that the minimum frequency
of
dialysis in this context would be once every five days, although the risks
of
a sudden cardiac event or deterioration increase over time after more than three days without dialysis.
of
this background C now refuses to undertake further haemodialysis. The parties are agreed that I should deal with the issue
of
capacity only at this stage. Accordingly, as set out above, the issue for the
court
is whether, at this time, C has the mental capacity to decide whether or not to consent to the life saving treatment that her doctors wish to continue to give her.
THE LAW
of
the Act relevant to my decision provide as follows:
1 The principles
This section has no associated Explanatory Notes
(1) The following principles apply for the purposesof
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 purposesof
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 lackof
capacity cannot be established merely by reference to—
(a) a person's age or appearance, or(b) a conditionof
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 meaningof
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 purposesof
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 partof
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 explanationof
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 consequencesof
—
(a) deciding one way or another, or(b) failing to make the decision.
of
proof lies on the person asserting a lack
of
capacity and the standard
of
proof is the balance
of
probabilities (Mental Capacity Act 2005 s 2(4) and see KK v STC and Others [2012] EWHC 2136 (COP) at [18]).
of
capacity under Part I
of
the Mental Capacity Act 2005 is always 'decision specific' having regard to the clear structure provided by sections 1 to 3
of
the Act (see PC v City
of
York Council [2014] 2 WLR 1 at [35]). Thus capacity is required to be assessed in relation to the specific decision at the time the decision needs to be made and not to a person's capacity to make decisions generally.
of
Peter Jackson J in Heart
of
England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7]:
"The temptation to base a judgmentof
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."
of
the decision made is not relevant to the question
of
whether the person taking the decision has capacity for the purposes
of
the Mental Capacity Act 2005 (see R v Cooper [2009] 1 WLR 1786 at [13] and York City Council v C [2014] 2 WLR 1 at [53] and [54]).
of
itself evidence
of
a lack
of
capacity to take that decision, notwithstanding that other members
of
society may consider such a decision unreasonable, illogical or even immoral, that society in general places cardinal importance on the sanctity
of
life and that the decision taken will result in the certain death
of
the person taking it. To introduce into the assessment
of
capacity an assessment
of
the probity or efficacy
of
a decision to refuse life saving treatment would be to introduce elements which risk discriminating against the person making that decision by penalising individuality and demanding conformity at the expense
of
personal autonomy in the context
of
a diverse, plural society which tolerates a range
of
views on the decision in question (see Mental Incapacity (1995) (Law Comm No 231) (HC 189), [1995] EWLC 231, para 3.4).
of
the 2005 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 (the so called 'diagnostic test'). It does not matter whether the impairment or disturbance in the functioning
of
the mind or brain is permanent or temporary (Mental Capacity Act 2005 s 2(2)). It is important to note that the question for the
court
is not whether the person's ability to take the decision is impaired by the impairment
of
, or disturbance in the functioning
of
, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof (see Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) at [38]).
of
the 2005 Act a person is "unable to make a decision for himself" if he is unable (a) to understand the information relevant to 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 (the so called 'functional test'). An inability to undertake any one
of
these four aspects
of
the decision making process set out in s 3(1)
of
the 2005 Act will be sufficient for a finding
of
incapacity provided the inability is because
of
an impairment
of
, or a disturbance in the functioning
of
, the mind or brain (see RT and LT v A Local Authority [2010] EWHC 1910 (Fam) at [40]). The information relevant to the decision includes information about the reasonably foreseeable consequences
of
deciding one way or another (Mental Capacity Act 2005 s 3(4)(a)).
of
the Mental Capacity Act 2005 are drafted places the 'diagnostic test' in s 2(1) before the 'functional test' in s 3(1). However, having regard to the wording
of
s 2(1), namely, "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" (emphasis added), the order in which the tests are in fact applied must be carefully considered. In York City Council v C [2014] 2 WLR 1 at [58] and [59] McFarlane LJ (with whom Richards and Lewison LLJ agreed) held as follows:
"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 elementsof
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.".
of
one or more
of
the functional elements set out in s 3(1)
of
the Act and the 'impairment
of
, or a disturbance in the functioning
of
, the mind or brain' required by s 2(1)
of
the Act.
of
the 2005 Act, which provides that a person is unable to make a decision for himself if he is 'unable to…use or weigh' the relevant information as part
of
the process
of
making the decision (as the disjunctive 'or' comes after the negative, 'unable to' in s 3(1)(c) the subsection requires the person asserting a lack
of
capacity to demonstrate an inability on the part
of
the individual to use and weigh the relevant information).
of
the argument and to relate one to another".
of
s 3(1)(c) it is not necessary for a person to use and weigh every detail
of
the respective options available to them in order to demonstrate capacity, merely the salient factors (see CC v KK and STCC [2012] EWHC 2136 (COP) at [69]). Even though a person may be unable to use and weigh some information relevant to the decision in question, they may nonetheless be able to use and weigh other elements sufficiently to be able to make a capacitous decision (see Re SB [2013] EWHC 1417 (COP)).
of
the process
of
making the decision. What is required is that the person is able to employ the relevant information in the decision making process and determine what weight to give it relative to other information required to make the decision. Where a
court
is satisfied that a person is able to use and weigh the relevant information, the weight to be attached to that information in the decision making process is a matter for the decision maker. Thus, where a person is able to use and weigh the relevant information but chooses to give that information no weight when reaching the decision in question, the element
of
the functional test comprised by s 3(1)(c) will not be satisfied. Within this context, a person cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision making process.
of
psychiatrists is likely to be determinative
of
the issue
of
whether there is an impairment
of
the mind for the purposes
of
s 2(1), the decision as to capacity is a judgment for the
court
to make (see Re SB [2013] EWHC 1417 (COP)). In PH v A Local Authority [2011] EWHC 1704 (COP) Baker J observed as follows at [16]:
"In assessing the questionof
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 [2007] EWHC136 (Fam) [2007] 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."
THE EVIDENCE
of
capacity in this case I have had the benefit
of
reading statements from Dr L, Dr S, the Official Solicitor and from V and G. I have also had the benefit
of
psychiatric reports from Dr R (Consultant Liaison Psychiatrist at Kings College Hospital), Professor P (Professor
of
General Psychiatry at Kings College) and Dr Stevens (retired Consultant Psychiatrist). I have heard oral evidence from Dr R, Professor P, Dr Stevens and G. In addition to this evidence I have also read the medical records for C, including the clinical notes which provide a running record
of
C's treatment and, importantly, her interactions with medical staff.
Dr R
of
occasions. In a report dated 6 November 2015 Dr R concludes that C does not have capacity to decide whether or not to receive dialysis. Dr R considers that this is by reason
of
C being unable to use and weigh the information required as part
of
the process
of
making a decision about whether to undergo dialysis, that inability being consequent upon an impairment
of
, or a disturbance in the functioning
of
, C's mind or brain which Dr R considers, tentatively, may comprise a personality disorder.
of
the four criteria by reason
of
the degree
of
subjective judgment involved, in respect to Dr R's assessment that C is unable to use and weigh the information required as part
of
the process
of
making a decision he confirmed in his oral evidence that the two key areas
of
concern were what he assessed to be (a) C's lack
of
belief in, and inability to use and weigh her positive prognosis notwithstanding her doctors reassuring her that the prognosis is positive and (b) C's inability to contemplate a future that includes her recovery, having closed her mind to this.
i) On 25 September 2015 C was noted to have "an overvalued idea that her qualityof
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."
of
an impairment
of
, or a disturbance in the functioning
of
, C's mind or brain Dr R was reluctant to diagnose a personality disorder in circumstances where C remains gravely ill. However, whilst Dr R considered it risky to make a diagnosis during the acute phase
of
a medical condition, he is satisfied that C's symptoms are 'in fitting' with a personality disorder. Within this context, Dr R acknowledged that the question
of
whether a particular person has a histrionic or narcissistic personality disorder, as opposed to simply a very strong or difficult personality can be an area
of
some controversy and said that there are no validated tools in this area to ascertain a baseline
of
'normal' in the context
of
diagnosing personality problems.
of
causation, Dr R gave evidence that C's presenting behaviour could be the result
of
a personality disorder or could be the result
of
her belief system. Dr R further accepted that the factors he considered militated against C being able to use and weigh relevant information (namely, the black and white thinking and rigidity in relation to her prognosis) were not listed on diagnostic criteria for histrionic or narcissistic personality disorder, although they are a common symptom
of
the same. Overall, Dr R opined that the rigid, 'black and white, cognitive position that, in Dr R's view, is preventing C from reaching what he describes as "a balanced, nuanced, used and weighed position", can be explained by the thinking associated with the dysfunction
of
disorders
of
personality in C.
court
determined that C has capacity he would accept that decision.
Professor P
of
his assessment Professor P came to the conclusion that C lacked capacity to decide whether to undergo dialysis. Like Dr R, Professor P considered that C was unable to use and weigh the information required as part
of
the process
of
making a decision, that inability being due to a combination
of
an underlying diagnosis
of
histrionic personality disorder and her current circumstances.
of
the process
of
decision making because, he believes, C demonstrated no ability to consider and weigh alternative futures, no ability to place herself in her daughters' shoes when considering the effect
of
her refusing treatment or to weigh the impact on them
of
her suicide and no ability in respect
of
her prognosis to accept anything other than the inaccurate view that the damage to her kidneys is irreversible and she could not survive without permanent dialysis. Professor P believes that C is exhibiting what he describes as a "petulant" response to a lack
of
timely recovery. In oral evidence the Professor reiterated that the evidence
of
C's inability to use and weigh comprises her inability to project herself into the future and her insistence that the future is not what the medial assessment says it will be.
of
an impairment
of
, or a disturbance in the functioning
of
, C's mind or brain Professor P diagnosed C as having a histrionic personality disorder (ICD-10 F60.4). The Professor based his diagnosis on both his interview with C and the longitudinal information concerning C's life history provided by her family.
of
a personality disorder.
Dr Stevens
of
instruction dated 10 November 2015. In examining the evidence provided by Dr Stevens I note and take into account that he was, by virtue
of
the particular circumstances
of
this case, working to a very tight timescale indeed with respect to the provision
of
his expert opinion. However, as I was forced to note during the course
of
the hearing, there are, unfortunately, significant shortcomings with respect to Dr Stevens' report.
of
the process by which he reaches that conclusion or his reasons for doing so. Nor does Dr Stevens' report contain a clear and detailed account
of
the questions he asked C in order to assess her capacity in this respect nor the answers she gave. A short adjournment to secure Dr Stevens' contemporaneous notes
of
his assessment did not result in any greater illumination. Further, during the course
of
examination in chief it became apparent that the one direct quote from C that Dr Stevens does set out in his report (and one which suggests C clearly accepts that she has a positive prognosis and has weighed it in her decision) occurred after C had been medicated with oxycodone (a synthetic opiate). This was not mentioned in Dr Stevens' report. Overall, Dr Stevens' report failed to evidence rigorous adherence to good practice when assessing capacity as set out in the Mental Capacity Act 2005 Code
of
Practice, and in particular Paragraph 4.49. These difficulties notwithstanding however, it is important for the
court
to note the following factual information contained in the report
of
Dr Stevens when coming to its own determination in respect
of
C's capacity.
"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 qualityof
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."
of
her mind. Having regard to his exchanges with C Dr Stevens considered that C was able to make a decision at that time regarding the withdrawal
of
active medical treatment.
Medical Records
of
the foregoing psychiatric evidence, it is important to consider the content
of
C's medical records which are before the
Court
. Those records are important for two reasons. First, they give a clear picture
of
the information that C was being given concerning her prognosis in the period leading up to her refusal
of
further medical treatment. Second, the medical records give a picture
of
how C treated that information when it was provided to her. I draw on aspects
of
the medical records below when setting out my reasons for the conclusions I have come to in this case.
of
capacity (understanding, weighing up, retaining and repeating information) although capacity was not clear cut. On 2 November 2015 Dr N took the view that C appeared to have capacity but noted that a psychiatric review was required. As noted above, thereafter both Dr R and Professor P took the view that C lacked capacity to decide whether or not to undergo dialysis.
Official Solicitor
court
and given the need for an urgent decision to be made in this case there has not been time to arrange for me to attend hospital to meet with her. I do however have the benefit
of
two comprehensive attendance notes prepared by the representative
of
the Official Solicitor who saw C in hospital on 10 November 2015 and on the morning
of
this hearing on 13 November 2015.
of
note that when she was seen on 10 November 2015 C stated "I don't want to do weeks or months
of
this…I have been through horrible stuff. I am not prepared to do that again. They are doing their best to do everything they can for me and unfortunately that is not what I want". Also
of
note is that C acknowledged the possibility that her kidneys will recover, saying "I am not prepared to wait for the possibility that my kidneys will get better". C did not reject the possibility
of
recovery out
of
hand but chose to highlight the uncertainties when asked whether she believed the doctors when they said she would get better, "Everything is 'ifs and ands and pots and pans'. My quality
of
life won't be what I want. I will be a burden". Later, when again pressed regarding the fact that the doctors were saying she might return, physically, to where she was in the past and, although they could not say when, they felt she would get better C responded "No, I'm not going to have weeks
of
this. I am at peace with myself".
of
her appointment with the representative
of
the Official Solicitor, C was asked whether she would make the same decision, i.e. to refuse treatment, if she knew she was going to get better, she responded "Yes, I don't want to do this life and the way they are presenting it. I am hurting everywhere." Later she said "I know they need to save lives. But I've chosen a different route." When asked whether, with professional support she would come to a different conclusion, "No, it comes from within. I don't want to fight for it. I don't want to be a burden. I've been through so much. I don't think mentally I'll be the same". At the end
of
the meeting C stated that "I want someone to say I can't do this anymore. Everyone makes a choice. It would be nice if they could give me some choice. I am not getting any choice. I am getting wheeled along. It's a bit unfair." When C saw the representative
of
the Official Solicitor again on the morning
of
the hearing on 13 November 2015 she maintained that she had capacity to make the decision to refuse further treatment.
Evidence from the Family
of
evidence to the
court
. C's daughter G has also provided a short statement indicating her agreement with that which V has said. At this hearing, V felt unable to speak to her statement due to the emotions generated by the current situation. In the circumstances, G gave oral evidence before the
court
. She did so with candour and great dignity.
of
the multidisciplinary meeting on 3 November 2015. V states that following Professor G telling C that her prognosis was good and that she could "be out with a drink in your hand by Christmas" and, within that context, C agreeing to "give it a go", C changed her mind a short time later. V makes clear her view that "She had clearly used the time to consider the prospect
of
having what Professor P described as a 'tolerable life', and decided that, although with the more optimistic prognosis, it required some thought, she still did not want to live." V further makes clear in her statement that C "repeatedly told us that she didn't care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless. She – in the full knowledge that it was entirely possible that she might make a full recovery – said that if her kidney function improved, and she were discharged, that she would 'throw [herself] under a train'". V confirms that it was at this point that she concluded that C had thought through her decision and understood the choice she had made.
of
G as follows:
"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 anyof
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'".
SUBMISSIONS
of
the Trust Mr Horne concedes, very properly, that this is a finely balanced case that sits close to the border that runs between an individual with capacity making an unwise decision and an individual lacking capacity to make the decision in question.
of
the process
of
making that decision. Specifically, the Trust submits that the examples given by Dr R show that (a) C lacks belief in, and is unable to use and weigh her positive prognosis and (b) that C is unable to contemplate a future that includes her recovery, having closed her mind to this. The Trust submits that this constitutes an inability to use and weigh information for the purposes
of
s 3(1)(c) and that this inability is because
of
the impairment
of
, or a disturbance in the functioning
of
, the mind or brain for the purposes
of
s 2(1) comprised
of
the personality disorder diagnosed by Professor P and Dr Stevens. In the words
of
Dr R, the Trust submits that C's decision to refuse treatment is not reached with significant using and weighing
of
information demonstratively ending with a balanced, nuanced, used and weighed position constituting a capacitous but objectively assessed unwise decision. Again, the Trust submits that this situation is arrived at because
of
the personality disorder under which C labours.
court
at this hearing the Official Solicitor submits that C does have capacity to decide whether or not to refuse treatment.
of
her outlook and values when coming to her decision. Within this context, citing Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) the Official Solicitor submits that, even were the
court
to consider C's approach to her prognosis as overly rigid or 'black and white' C has given many other valid reasons for refusing treatment more important to her than her prognosis, which reasons evidence capacitous decision making within the context
of
her particular outlook and belief system. In any event, the Official Solicitor cautions the
court
against characterising C's attitude towards her prognosis as rigid, or 'black and white' or irrational in circumstances where that prognosis remains uncertain and is worsening the longer C goes without her kidneys showing any sign
of
recovery. Were the
court
to conclude that C is unable to 'use or weigh' information relevant to the decision, the Official Solicitor further submits that the Trust cannot establish a causal link between this inability and C's personality disorder in circumstances where the inability in question could equally be attributed to C's belief system or stubborn character.
of
V are akin to those made on behalf
of
C by the Official Solicitor. V contends that her mother has the capacity to decide whether to accept treatment.
of
her medical prognosis. V submits that on a proper application
of
the criteria set out in the 2005 Act the evidence before the
court
shows C has made a clear and capacitous decision, which decision she has maintained, after using and weighing the information relevant to that decision in accordance with her particular outlook and values. Thus, V submits, C has reached a clear and reasoned decision by giving weight to the factors that are important to her (a risk
of
a life lived on dialysis that is unacceptable to her, a risk
of
long term disability that is unacceptable to her, exhaustion with treatment and her wish not to endure further weeks or months
of
the same, her wish not to continue to endure the symptoms and pain associated with treatment, the risk she will not be able to attain her former "sparkly" lifestyle, her desire not to get old and lose her appearance and her wish to attain her original goal
of
ending her life) and no weight to the factors that are not (namely, the possibility that she might recover to a point where she can live without dialysis, the possibility
of
a future life that is 'tolerable' and the impact
of
her death on those who care for her) within the context
of
her (very unusual) set
of
values and outlook. V submits that this is the very essence
of
a capacitous decision. Again, were the
court
to conclude that C is unable to use and weigh information relevant to her decision, V submits that the Trust cannot establish a causal link between this inability and C's personality disorder in circumstances where the inability in question could equally be attributed to C's belief system and stubborn character.
DISCUSSION
court
is whether the Trust has established on the balance
of
probabilities C is unable to make a decision about the matter in hand having regard to the matters set out in s 3(1) (the so called 'functional test'). The Trust accepts that C is able to understand the information relevant to the decision, to retain that information and to communicate her decision. In relation to the remaining element
of
the functional test I am not satisfied that the Trust has proved to the requisite standard that C is unable to use and weigh the information relevant to the decision in question.
of
the Trust, I am not satisfied that C lacks belief in her prognosis or a future that includes her recovery to the extent she cannot use that information to make a decision, or that C is unable to weigh her positive prognosis and the possibility
of
a future recovery in the decision making process. In my judgment, the evidence in this case, when viewed as a whole, is indicative
of
C acknowledging that her prognosis is positive, that there is a possible future in which she survives and
of
her weighing that information in her decision making process.
of
occasions over the span
of
her treatment, tacitly acknowledged that her prognosis is positive if she maintains treatment and has weighed that against other factors.
of
her life, saw a bleak future if she could not have a life
of
socialising, drinking and partying with friends, that getting old scared her both in terms
of
illness and appearance. C was recorded by Dr O (Liver SHO) as being clear in her understanding that without dialysis, adequate nutrition and treatment
of
her liver she would die and, within that context, as being able to take in the medical advice and fully understood the risk
of
refusing treatment. Following interventions from her father and a friend on 29 September, C changed her mind and consented to treatment. It is clear from the medical records that C appears, with the assistance
of
her father and her friend, to have undertaken an exercise
of
using or weighing information as it is recorded that an hour was spent talking to C about her grave medical condition, her chances
of
recovery, and her prognosis for the future.
of
life on long term dialysis following which C said she understood it but that her 'heart is not in it'.
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".
of
the Official Solicitor on 10 November 2015 C acknowledged the possibility that her kidneys will recover, saying "I am not prepared to wait for the possibility that my kidneys will get better". On 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. When Dr R spoke to C about being able to envisage a future when she was back on her feet again with no line in her neck and no pain C is recorded as saying "they have told me before that I would do that and I am still here"… "I can't go on like this for months and months or forever."
court of
C expressly acknowledging her positive prognosis and weighing the same. On 3 November 2015 V recalled that in deciding not to continue with treatment following the MDT meeting on that day C "had clearly used the time to consider the prospect
of
having what Professor P described as a 'tolerable life', and decided that, although with the more optimistic prognosis, it required some thought, she still did not want to live." More generally V was clear in her evidence that C "repeatedly told us that she didn't care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless. She – in the full knowledge that it was entirely possible that she might make a full recovery – said that if her kidney function improved, and she were discharged, that she would 'throw [herself] under a train'". No party sought to suggest that V was mistaken in her recollection
of
these conversations. On 10 November 2015 C told Dr Stevens that "I know that I could get better; I know that I could live without a health problem, but I don't want it". Dr Stevens states in his report that she "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." Whilst there are difficulties with Dr Stevens' report overall, I am prepared to accept that his recording
of
what C said to him is accurate, and indeed no party suggested otherwise.
of
course accept that there have been a number
of
occasions where C has appeared to reject out
of
hand her positive prognosis, in particular in conversations with Dr R on 29 September, 20 October, 3 November, 5 November, 9 November and 10 November 2015.
of
the other occasions, as summarised in the preceding paragraphs, when C has acknowledged her positive prognosis and weighed the same either tacitly or expressly. Thus, for example, whilst Dr R considered that on 29 September 2015 C 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", as I have noted, on the same day C was recorded by Dr O as being clear in her understanding that without dialysis, adequate nutrition and treatment
of
her liver she would die and, within that context, as being able to take in the medical advice and fully understood the risk
of
refusing treatment. Further, C was recorded as appearing to have capacity on that date. Likewise, whilst telling Dr R on 10 November that "there is no hope 'a tiny sliver
of
hope' as she put it today, that she will get better" she told Dr Stevens on the same day that "I know that I could get better; I know that I could live without a health problem." In this regard I recall G's evidence that her mother's response to professionals will, in G's experience, depend on whether she considers them to be 'on her side' (part
of
her 'charm team' as C styles that group) or not and that Dr R was not considered to be part
of
that 'team'.
of
the extent to which they demonstrate an inability to use and weigh information regarding the same, must also be placed in the context
of
the information that she was receiving during this period with respect to that prognosis.
of
Dr R and the opinion
of
Professor P that C lacks the ability to use and weigh information relevant to her decision is C's alleged rigid and insistent rejection
of
her prognosis within the context
of
consistent optimism in this regard expressed by her treating doctors, characterised by Dr L's statement on 9 November 2015 that C's prognosis "remains excellent with survival fully anticipated". However, I am not satisfied that the medical records bear out the assertion that C was, in fact, receiving uniformly positive and reassuring information concerning her prognosis (most especially in relation to the likelihood
of
her being able to live a life without dialysis).
of
life will not improve" on 25 September 2015 and at the time she refused dialysis on 29 September 2015, according to her medical records by that date she had, at best, received a guarded opinion to the effect that her prognosis was uncertain. When on 20 October 2015 C is recorded as stating that she does not want a life dependent on dialysis and
of
poor quality and apparently dismisses the medical opinion that she has every chance
of
making a good recovery and leading a fulfilling and normal life, she had the day before been told by Dr V only that there was a "possibility she may" get better and a "possibility she could" return to a degree
of
normality. Whilst On 3 November 2015, when 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 and that C considered that this meant she would not recover and did not want a lifetime
of
dialysis, the day before C had been told by Dr N that that no-one could predict how long it would take to recover and no one could tell for sure to what level
of
function she would recover. On 5 November, when Dr R was concerned that C was stating that "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", according to the medical records Dr L appears to have told C that dialysis may not be a permanent situation and Dr S confirmed to C that there was no evidence
of
recovery so far and, accordingly, the prognosis was still unpredictable and remained uncertain even if the damage was potentially reversible.
of
her being able to live a life without dialysis. Whilst it is the case that on occasion C received a very positive assessment
of
her prognosis after incidents
of
refusing treatment (for example on 29 September 2015, on 21 October 2015, when Professor G explained in the presence
of
C that "we feel that the patient should get better very soon and that they [her kidneys] could improve any day now" and on 3 November 2015, when Professor G told C that her prognosis was good and that she could "be out with a drink in your hand by Christmas) it is not in my judgment accurate to characterise the prognosis C was being given as consistently positive. Her more categoric responses in respect
of
her prognosis must in my judgment be seen in this context when determining whether they are probative
of
an inability to use and weigh her prognosis in her decision making.
of
categorically rejecting her prognosis in a way which gives the impression that she does not believe or accept that prognosis. However, on other occasions it is clear that her rejection
of
her prognosis is the result
of
her having considered it and given it no weight as against other factors more important to her. Thus, on 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. As I have noted, C told Dr Stevens on 10 November 2015 that "I know that I could get better; I know that I could live without a health problem, but I don't want it" and 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." Later she told the representative from the Official Solicitor that "They are doing their best to do everything they can for me and unfortunately that is not what I want" and "I know they need to save lives. But I've chosen a different route." As noted, V recalls C telling her on a number
of
occasions that "she didn't care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless."
of
those outlined further above, are more consistent with C acknowledging her prognosis and choosing to give it no weight as against other information within the context
of
her own values and outlook when making a decision than they are with her failing to believe or weigh her prognosis when making her decision.
of
reasons for reaching the decision she has regarding further treatment. C has, on a number
of
occasions, given very clear reasons for not wishing to continue her treatment. These reasons include the risk
of
a life lived on dialysis, the risk
of
long term disability, exhaustion with treatment and her wish not to endure further weeks or months
of
the same, her wish not to continue to endure the symptoms and pain associated with treatment, the risk she will not be able to attain her former lifestyle, her desire not to get old and lose her appearance and her wish to attain her original goal
of
ending her life.
of
having to live the rest
of
her life on dialysis. This expressed fear on the part
of
C is evident in her medical records. On 22 September 2015 C is recorded as continuing to state that, whilst hopeful
of
recovery, if her kidneys do not recover and she requires dialysis for the rest
of
her life she will not wish to live. C repeated this view on 23 September 2015. On 2 November C stated that she could not imagine herself dependent on dialysis and that it would be pointless to continue if she could not recover to a functional level where she could continue with her previous lifestyle. I pause to note that, in the context
of
the information given to C regarding her prognosis as summarised in Paragraphs 83 to 85 above, these fears on the part
of
C cannot be considered irrational.
of
a concrete or 'black and white' view taken in respect
of
her prognosis but rather on the basis
of
placing in the balance many factors relevant to the decision. That C considers that these factors outweigh a positive prognosis and the chance
of
life that it signals may not accord with the view that many may take in the same circumstances, and indeed may horrify some. However, they do in my judgment demonstrate C using and weighing information relevant to the decision in question when coming to that decision.
of
s 3(1) and, accordingly, does not lack capacity to decide whether or not to accept dialysis.
of
s 3(1) it is not necessary for me to go on to consider the so called 'diagnostic test'. It is right to record that, as I observed at the conclusion
of
the hearing, had I been satisfied that C was unable to use and weigh information in the manner contended for by the Trust, I believe I would have had difficulty in deciding that this inability was, on the balance
of
probabilities, because
of
an impairment
of
, or a disturbance in the functioning
of
, the mind or brain. Whilst it is accepted by all parties that C has an impairment
of
, or a disturbance in the functioning
of
, the mind or brain, the evidence as to the precise nature
of
that impairment or disturbance was far from conclusive. Further, and more importantly, with regard to the question
of
causation, and in particular whether what was being seen might be the operation
of
a personality disorder or simply the thought processes
of
a strong willed, stubborn individual with unpalatable and highly egocentric views the evidence was likewise somewhat equivocal. However, as I say, I need say no more about this in light
of
my conclusions as set out above.
of
course bear in mind that my decision does not accord with the considered opinions
of
two very experienced psychiatrists. Whilst I have some concern that Dr R in particular set the test for capacity too high in this case in looking for C to demonstrate significant using and weighing
of
information demonstratively ending with a balanced, nuanced, used and weighed position, the fact that I have differed from Dr R and Professor P is in large part a product
of
this being a finely balanced case in which a number
of
reasonable interpretations
of
the information available are possible. In reaching my decision I must survey all the available evidence (see PH v A Local Authority [2011] EWHC 1704 (COP) at [16]). In the final analysis, and having had the benefit
of
surveying the entirety
of
the information available to the
court
I have come to a different interpretation
of
the finely balanced evidence to that favoured by the two psychiatrists, to both
of
whom I am grateful for their considered and extremely helpful evidence.
CONCLUSION
court
that the Trust has established on the balance
of
probabilities that C lacks capacity to decide whether or not to accept treatment by way
of
dialysis.
of
C's stated wish to refuse the life saving treatment which renal haemodalysis represents for her I am acutely conscious
of
the gravity
of
my decision. However, as set out at the beginning
of
this judgment, a capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends to declining treatment that would, if administered, save the life
of
the patient and, accordingly, a capacitous patient may refuse treatment even in circumstances where that refusal will lead to his or her death.
of
growing old, the fear
of
living with fewer material possessions and the fear that she has lost, and will not regain, 'her
sparkle
' outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort
of
treatment, the fear
of
chronic illness and the fear
of
lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C's decision is certainly one that does not accord with the expectations
of
many in society. Indeed, others in society may consider C's decision to be unreasonable, illogical or even immoral within the context
of
the sanctity accorded to life by society in general. None
of
this however is evidence
of
a lack
of
capacity. The
court
being satisfied that, in accordance with the provisions
of
the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system
of
values and without conforming to society's expectation
of
what constitutes the 'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect
of
her own body and mind, sovereign.
court
has no jurisdiction to interfere with the decision making process. Accordingly, although rightly brought, I dismiss the application
of
the Trust for declarations under the Mental Capacity Act 2005.
of
this hearing, my decision that C has capacity to decide whether or not to accept dialysis does not, and should not prevent her treating doctors from continuing to seek to engage with C in an effort to persuade her
of
the benefits
of receiving life saving treatment in accordance with their duty to C as their patient. My decision does no more than confirm that in law C is entitled to refuse the treatment offered to her for her benefit by her dedicated treating team. Nothing I have said prevents them from continuing to offer that treatment.