July 31
The patient, aged 19, suffered from a chronic degenerative disease with no cure. Having been hospitalised with community-acquired pneumonia and Covid which had led to a respiratory arrest, the treating clinicians were unable to extubate the patient and, as a consequence, she remained on mechanical ventilation via tracheostomy, fed via a PEG tube and with dialysis every alternate day until the end of her life. The treating clinicians recommended that the patient be moved to palliative care treatment. The patient indicated that she did not wish to accept the recommendation, that she did not believe that her prognosis was as poor as that communicated by the treating clinicians and that she wished to explore the possibility of travelling abroad to undertake experimental treatments for her condition. The NHS Trust applied to the Court of Protection for a declaration that the patient lacked capacity to make decisions as to her medical treatment under the Mental Capacity Act 2005. By the time of the hearing the unanimous view of the experts was that the patient did have capacity. The judge nevertheless found that the patient lacked capacity and made the declaration sought, holding, inter alia, that since the patient did not “believe” the information given to her about her condition and prognosis, she could not satisfy the functional test under section 3(1) of the 2005 Act. The patient died shortly after the declaration was made. Subsequently, her parents appealed against the declaration contending, inter alia, that the judge had erred in law in treating the patient’s lack of “belief” in her prognosis as determinative of the functional test under section 3(1).
On the appeal—
Held, appeal allowed. Although a lack of belief in their diagnosis or prognosis might, on the facts of a particular case, lead a clinician or court to conclude that a patient failed to satisfy the functional test under section 3(1) often Mental Capacity Act 2005 and so did not have the ability to make the decision in question, it would not inevitably do so, since there was no specific requirement of “belief” under section 3(1) whether subsumed into the general requirement of understanding or the ability to weigh and use information or otherwise. All that was required was an application of the statutory words without any gloss. The danger was that the introduction of the word “belief” was either the same as the statutory test, in which case it was otiose or, if that was not the case, there was a risk that my introducing a hard-edged requirement of “belief” people would look for something different from the statutory test. In the present case the judge had fallen into error in concluding that the patient’s refusal or inability to “believe” the information concerning her prognosis alone resulted in her failing the functional test under section 3(1) of the 2005 Act. Furthermore, the judge had failed to give adequate reasons for reaching a conclusion which was contrary to the unanimous view of the experts that the patient did have capacity to make decisions as to her medical treatment. Accordingly, the declaration of incapacity would be set aside (paras 9, 48–60, 123–129, 135–139, 141, 142, 143, 144).
Bruno Quintavalle (instructed by Andrew Storch Solicitors, Reading) for the parents.
Katie Gollop KC and Olivia Kirkbride (instructed by Official Solicitor) for the patient by her litigation friend, the Official Solicitor.
Vikram Sachdeva KC, Catherine Dobson and Isabella Buono (instructed by Bevan Brittain LLP) for the NHS Trust.
Alex Ruck Keene KC (Hon) and Neil Allen (instructed by MIND) for MIND, intervening.