Judge: Mr Justice Mostyn
Citation:  EWCOP 74
The issue in this case was whether it was in the best interests of a 43 year old woman, CD, who suffered from paranoid schizophrenia to have a total abdominal hysterectomy in circumstances where she lacked capacity to make that decision for herself.
CD had an established diagnosis of schizoaffective disorder and was detained under section 3 of the Mental Health Act 1983. Her illness had a remitting and relapsing course and her mental capacity had fluctuated in the past. She had a long history of aggression and violence. The evidence showed that CD’s delusional beliefs impaired her ability to weigh up the advantages and disadvantages of medical treatment. Mostyn J had no difficulty in finding that that CD manifestly lacked capacity to make the relevant decision.
The object of the surgery was to remove two very large ovarian growths or masses. All the medical experts and all the parties, including the Official Solicitor who represented CD, agreed that it was in CD’s best interests to have the operation. CD strongly expressed the wish to have the operation. Based on the totality of the medical evidence, and on CD’s wishes and feelings, Mostyn J concluded that it was in CD’s best interests that the operation must take place.
Ancillary to the operation taking place, it was necessary for Mostyn J to authorise a deprivation of CD’s liberty which engaged the difficult interface between the MHA and MCA. The question was whether CD was ineligible to be deprived of her liberty because the surgical removal of the ovarian masses was not in accordance with the MHA regime. There were two ways of reading this which gave rise to directly contradictory results. Mostyn J adopted a purposive (rather than literal) reading of paragraph 3(2) to schedule 1A to the MCA which permitted him to make the orders sitting in the Court of Protection under the MCA rather than in the High Court exercising power under the common law inherent jurisdiction. As an aside, Mostyn J commented that it was “counterintuitive” that someone going freely and enthusiastically to hospital to have an operation performed under general anaesthesia was deprived of her liberty. However, as it was not a decision that CD could make, and if she changed her mind she would be operated on nonetheless, Mostyn J was satisfied that the state of affairs fell within the acid test in Cheshire West (as to which he had a number of distinctly acerbic comments).
Following on from the recent and moving judgment in Wye Hospital NHS Trust v B  EWCOP 60, Mr Justice Mostyn concentrated on CD’s own wishes and feelings. However, he emphasised “it is vital that wishes and feelings are strictly confined to the best interests analysis and do not act subtly to undermine a capacity assessment. Where, as here, there is no doubt about incapacity when the wishes and feelings of the protected person cannot alter that fact even if they happen to align exactly with a rational, “capacitous”, decision.”
In reaching his conclusion on CD’s deprivation of liberty, Mostyn J reaffirmed the purposive and pragmatic approach in his earlier decision of An NHS Trust v A  EWCOP 761 reported briefly upon in our November newsletter. This puts another nail in the coffin for Re AB  EWCOP 31 where a contrary approach was taken.
Readers with a classical education (or ready access to Google Translate) will no doubt appreciate Mostyn J’s observations as to the views of hoplites as to the meaning of deprivation of liberty.