Kings College NHS Foundation Trust v C and V

Judge: MacDonald J

Citation: [2015] EWCOP 80

Kings College NHS Foundation Trust v C and V [2015] EWCOP 59 (MacDonald J)

Mental capacity – assessing capacity – medical treatment

Summary

[Editorial note: this case has attracted much media coverage, which has used much of the judge’s description of C’s unconventional and ‘sparkly’ life-style.   Whilst we consider that the picture painted by MacDonald was one that sought – properly and sensitively – to examine C’s entire personality so as to be able to assess whether she had capacity to make the decision in question, we are conscious that there are ongoing proceedings as to whether C’s name should be revealed, and one of the points made on behalf of C’s family is as to the impact upon them of the case.   We also have some reservations about the extent to which the details of C’s lifestyle require wider circulation so as to be able to summarise the principles of law in play.   We have therefore taken a deliberate decision not to rehearse them in detail here, but instead to focus upon the law].

The question for MacDonald J was whether a woman, C had the capacity to decide whether or not to consent to the life-saving treatment that her doctors wished to give her following her attempted suicide, namely renal dialysis. Without such treatment the almost inevitable outcome was the death of C.  If the treatment were to have been administered the likelihood was that it would save C’s life, albeit that there remained an appreciable and increasing possibility that C would be left requiring dialysis for the rest of her life. C refused to consent to dialysis and much of the treatment associated with it. She was supported in that decision by her family, and in particular her two elder daughters G and V, who considered that she had the requisite capacity. The two psychiatrists who had examined C on behalf of the treating clinicians (including by way of a second opinion) were clear that she lacked decision-making capacity.   The independent expert jointly instructed by the Trust and the family, conversely, considered that she had the material capacity (although his evidence was given very little weight by the court in light of serious shortcomings in his report).   C, who was ‘present’ before the court by way of attendance notes of meetings with the representatives of the Official Solicitor, maintained she had the requisite capacity.

MacDonald J began his judgment by reminding us of the clear – and long-established – principle that a capacitous individual is entitled to decide whether or not to accept medical treatment, including treatment. As he noted at paragraph 2 “[t]his position reflects the value that society places on personal autonomy in matters 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),” such that “where a patient refuses life saving medical treatment the 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.”

MacDonald J took the opportunity to restate in clear form the principles relating to the assessment of capacity, which merit reproduction as a very useful tour d’horizon of the case-law decided since the MCA 2005 came into force:

“25. The following cardinal principles flow from the statute (PH v A Local Authority [2011] EWHC 1704 (COP) at [16]). First, a person must be assumed to have capacity unless it is established that they lack capacity (Mental Capacity Act 2005 s 1(2)). The burden 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]).

26. Second, determination 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.
27. Third, 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 (Mental Capacity Act 2005 s 1(3)).
28. Fourth, a person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise. It is important in this regard to recall the words of Peter Jackson J in Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7]:

“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.”

29. Likewise, the outcome 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]).
30. Within these contexts, the fact that a decision not to have life saving medical treatment may be considered an unwise decision and may have a fatal outcome is not 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).
31. Fifth, pursuant to s 2(1) 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]).
32. Sixth, pursuant to s 3(1) 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)).
33. The order in which the relevant terms 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 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.”.

34. Within this context, it is important to remember that for a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason 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.
35. In this case the Trust bases its submissions regarding the ‘functional test’ squarely on section 3(1)(c) 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).
36. In PCT v P, AH and The Local Authority [2009] COPLR Con Vol 956 at [35] Hedley J described the ability to use and weigh information as “the capacity actually to engage in the decision making process itself and to be able to see the various parts of the argument and to relate one to another”.
37. Within the context 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)).
38. It is important to note that s 3(1)(c) is engaged where a person is unable to use and weigh the relevant information as part 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.
39. Finally, whilst the evidence 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 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 [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.’” (emphases in original)

The first question for the court, MacDonald J held, was whether:

71. […] 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.
72. Notwithstanding the submission 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.

MacDonald J then reviewed that evidence in detail, noting that it was important to have regard that, in addition to the position that she had taken with regard to her prognosis, C had given a range of reasons for reaching the decision that she had regarding further treatment, and that she had undertaken the decision-making exercise on the basis of “placing into the balance many factors relevant to her decision” (paragraph 91).

As it was conceded by the Trust that C met the other criteria comprising the functional test, MacDonald J pronounced himself satisfied that C was not a person unable to make a decision for herself for the purposes of s.3(1) MCA and, accordingly, did not lack capacity to decide whether or not to accept dialysis.  He went on:

 “93. [h]aving found that C is not a person unable to make a decision for herself for the purposes 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.”

MacDonald J noted that his conclusion did not accord with the considered opinion of two very experienced psychiatrists, but was careful to make clear that this was “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” (paragraph 94).

In concluding, MacDonald J noted that

“97. The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect 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.

98. In circumstances where I have decided that C has at this time the capacity to make the decision in question, this 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.
99. As I said at the conclusion 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.”

It was subsequently reported that C had died some days after the hearing but before the judgment was handed down.

Comment

It is understandable perhaps that this case attracted significant media attention.   Standing back from it, however, it is primarily important for two reasons:

1. As a very clear statement of the law relating to the assessment of capacity which was both admirably succinct and (with one exception noted below, admirably accurate);
2. As a deeply sympathetic application of those principles to a real person viewed, above all, as a person. It is therefore absolutely of a piece with the approach adopted by Peter Jackson J in Wye Valley (and indeed with that adopted by Hayden J in the Re N case discussed in this Newsletter)

In its – frank – recognition at paragraph 94 of the fact that capacity assessment in complex cases such as this represents no more than the attempt to place a reasonable interpretation upon the information available, the case also stands as a reminder of:

1. The difficulty of imposing a necessary ‘binary’ black and white legal framework upon the realities of human beings; and therefore
2. How careful assessors must be to make sure that they have obtained all the relevant information and seek to approach – insofar as possible – the person that they are assessing on that person’s own terms.

The one area in which we would – respectfully – quibble with MacDonald J’s summary of the law is his assertion at paragraph 35 that a person seeking to prove that another lacks capacity has to show that they lack the capacity to both use and weigh the relevant information.   As discussed in greater detail in the guest note which follows prepared by Wayne Martin and Fabian Freyenhagen of the University of Essex, we would respectfully doubt that this in fact represents a correct statement of the law.  We should emphasise that we do not consider that applying the correct approach (i.e. that a person lacks the relevant capacity if they cannot either use or weigh the information) would have made any different on the facts of this particular case.

It should be noted, finally, that MacDonald J appeared to take it as axiomatic that – at least in the case before him – it was necessary to approach the test for capacity on the basis of the functional aspect first (i.e. in line with the approach suggested by the Court of Appeal in PC, and contrary to the approach suggested in the Code of Practice).   Parker J in NCC doubted whether the Court of Appeal had in fact intended to reverse the two, and this case may well therefore re-open the debate.   As suggested in our guidance note on the assessment of mental capacity, the way through this debate may well be:

1. To note that it may be a question of the focus upon the particular aspect of the test that is most relevant in the circumstances facing the assessor; and
2. In all cases to ask the vital third question – whether the apparent inability to take the decision is because of the relevant impairment of or disturbance in the mind or brain.

Mental capacity - Assessing capacity, Mental capacity - Medical treatment, Other proceedings - Civil 30th November 2015