Judge: Peter Jackson J
Citation:  EWHC 342 (COP)
Summary: JB had suffered from paranoid schizophrenia for some time, and was also afflicted by many physical health problems including hypertension, poorly controlled insulin-dependent type II diabetes, diabetic retinopathy and anaemia. She had developed ulcers on her feet, and her right foot became gangrenous. She refused surgery to remove the foot, which became mummified and eventually detached from her leg. Surgeons subsequently wished to operate to remove part of her leg, to reduce the chance of infection. JB expressed differing views about the surgery, but was generally resistant to it. She was considered by her treating psychiatrist to lack capacity to consent to the operation, essentially because her ability to weigh the relevant information was ‘compromised by her tendency to minimise and disbelieve what the doctors are telling her’. Other professionals who assessed JB reached different views about her capacity to refuse the operation. An independently instructed psychiatrist and surgeon concluded that JB had capacity to decide about amputation.
The court preferred the evidence of the independent psychiatrist and surgeon that JB understood sufficient information about the proposed operation and the consequences of deciding one way or the other, and was able to weigh that information notwithstanding her psychiatric disorder. At paragraph 26, Peter Jackson J noted that “[w]hat is required here is a broad, general understanding of the kind that is expected from the population at large. JB is not required to understand every last piece of information about her situation and her options: even her doctors would not make that claim. It must also be remembered that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.”
Even though surgery was the only sensible course of action, from a clinical perspective, JB did not have to agree with or accept the advice of her doctors. The court was not satisfied that JB’s treating psychiatrist had established a causal link between JB’s mental illness her alleged incapacity, nor that incapacity could be ‘deduced from isolated instances of eccentric reasoning’ such as agreeing to IV antibiotics but refusing the necessary cannulation.
The court noted that in various of the written statements about JB’s capacity expressions had been used which suggested that the requirement to presume capacity, and the burden of proof of incapacity being on the person disputing capacity, had not been properly applied:
“27. At all events, it is for the Trust to displace the presumption that JB has capacity on a balance of probabilities. It is important that the right question is asked. When assessing JB in October, Dr O approached matters on the basis that JB was ‘unable to clearly show that she had considered the option’ of amputation. Similarly in January, Dr B remarked that ‘one needs to be certain of her capacity’ while in February, Dr O recorded that JB ‘’is unable to fully understand, retain and weigh information…’. These formulations do not sit easily with the burden and standard of proof contained in the Act.”
Discussion: This case, which has some striking resonances with the ground-breaking case of Re C (Adult: Refusal of Treatment)  1 WLR 290, is yet another illustration of the difficulty of separating incapacitous decisions from unwise decisions. JB’s previous refusal of unanimous and uncontroversial medical advice as to potentially life-saving surgery had clearly given rise to real concerns on the part of professionals responsible for her care. But the fact of JB’s psychiatric disorder was not in itself sufficient to show that any defects in her reasoning abilities demonstrated incapacity within the meaning of the MCA 2005. The judgment illustrates the care that needs to be taken with assessments of capacity. Phrases such as ‘unable to fully understand, retain and weigh information’ will be all too familiar to practitioners in the Court of Protection, but should raise warning flags about the standard of decision-making that is being demanded, particularly in respect of a person who is disagreeing with professional advice.