Judge: Hayden J
Citation:  EWCOP 3
In QJ v A Local Authority Hayden J was considering the situation of an 87 year old man with vascular dementia challenging a DoLS authorisation under s.21A. The man was, in the run up to the first hearing (reported at  EWCOP 3), on hunger strike, but things changed on the morning of the hearing so that it appeared that he might have changed his mind (whether capacitously or not). Hayden J therefore directed a further assessment of P’s capacity.
By the time of the second hearing (reported at  EWCOP 7), the plan was (1) administering of Fortisip three times per day, with 750 to 1,000 calories per day, which would still be sub-optimal but not immediately life-threatening; (2) weighing of QJ twice a week; (3) discussing again with QJ, within a week, his present situation and a plan to discharge him back to the nursing home; (4) no readmission of QJ to hospital, once discharged back to the care home, if there he refuses to accept food or water.
There was also further evidence as to QJ’s capacity from his treating physician, Dr B, whose conclusion was that:
He did not seem to understand the gravity of what might happen to him if he did not eat and would barely talk although he was capable of speaking. It may be that he simply did not want to talk to me but my judgment was that he did not really understand the consequences of his action and could not communicate any view other than by occasionally shaking his head. I did not feel that he had any real depth of understanding of his situation. I could not get him to describe why he was in hospital, nor could I get him to even repeat minimally what the concerns about him were. I did not sense any evidence of him being able to weigh up or retain the information given to him.
Hayden J noted that:
Hayden J recognised:
Hayden J observed that “[i]t is potentially significant, and certainly interesting, that the agreed medical consensus as to the way forward accords exactly with what QJ himself expresses.” Whilst it was unnecessary for him to evaluate QJ’s best interests because QJ should be regarded as capacitous, he considered it was right that he acknowledged that “QJ, in conjunction with the doctors, has been able to put together a plan which both respects his autonomy and has regard to his dignity.”
Such cases as QJ’s are very fact specific, but Hayden J’s observations about the need to distinguish between a reluctance to answer questions and an inability to do so are of wider importance. Similarly, of wider import are Hayden J’s observations in the first judgment that:
“If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:
finely balanced, […]
Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.”
In other words, if a case about medical treatment is already before the court, then decisions relating to that treatment should be taken by the court, rather than by the clinicians.
 And as presaged in the BMA/RCP guidance as to CANH decision-making, which had noted (page 11, para. 46 that “[i]f an immediate decision is needed about whether or not to re-start CANH, if the feeding tube becomes blocked or dislodged, whilst a case is under consideration by the court, an urgent application should be made to the court, out of hours if necessary.”