Judge: Keehan J

Citation: [2016] EWCOP 22

Summary and comment

In this case, Keehan J was concerned with the question of whether it was in the best interests of QQ, a young woman with a diagnosis of an emotionally unstable personality disorder and schizophrenia, to receive anti-coagulation medication on a prophylactic (i.e. anticipatory) basis so as to prevent episodes of deep vein thrombosis.   The actual decision (that she lacked the relevant decision-making capacity and that the treatment was in her best interests) was very shortly reasoned, and we would not report it but for the obiter observations of the judge about the construction of s.25(2)(c) MCA 2005.

Section 25(2)(c) MCA 2005 is ambiguous.   It provides that an advance decision is not valid if P “has done anything else [i.e. other than withdrawing it at the time they had capacity or granted an LPA subsequently which contains ‘overriding’ powers’] clearly inconsistent with the advance decision remaining his fixed decision.”

The wording of s.25(2)(c) raises two real questions:

  1. Does it only cover actions carried out prior to the onset of incapacity, or can it also cover the position where a person no longer has capacity to alter or withdraw their advance decision (and as a corollary whether to accept or refuse medical treatment)? In other words, is it apt to cover the situation envisaged by Munby J in HE v A Hospitals NHS Trust [2003] 2 FLR 408 where a person still has the ability (to a greater or lesser extent) to express his wishes and feelings whilst not retaining the capacity to alter or revoke his advance decision?; and
  2. What exactly does ‘do’ mean for purposes of s.25(2)(c)? Does it require that a person has taken a positive action (such as, in HE’s case, convert to Islam and thereby abandon the central tenet of the value structure upon which the decision was based, or, perhaps more commonly, accepting treatment offered by a medical professional), or can it extend to words (instance demanding or indicating that they would accept treatment)?Alex discussed some of the issues involved here in an article written several years ago, noting that there had yet to be specific judicial consideration of the meaning of s.25(2)(c). In Re QQ Keehan J gave some passing (obiter) consideration to the meaning of the provision.   It was obiter because he accepted that QQ had at all material times lacked the capacity to make decisions in relation to the medication.

It follows [he held] that I do not accept that when QQ made an advance decision in August 2015 in relation to her treatment that she was capacitous and therefore that it is a valid or lawful advance decision. If I were to be wrong on that issue, I accept Mr Wenban-Smith’s submission that the contrary views that QQ has recently and fleetingly expressed from time to time, namely that she would accept treatment, would not of themselves invalidate, pursuant to s 25 (2) (c) of the Mental Capacity Act 2005, what would otherwise have been a valid advance decision.

Keehan J’s judgment is – for these purposes – frustratingly brief.   However, he undoubtedly left open the possibility that a person can render invalid an advance decision that they have made to refuse treatment after the point that they have lost capacity both to withdraw it and to make decisions as to medical treatment (and hence it is prima facie applicable), for instance by making sustained (incapacitous) indications that they either wished or would accept medication that they had previously sought to refuse in their advance decision.

On one view, this must be right, and indeed, as noted in the article, it seems to us that in reality it is all but inconceivable that both clinicians and the courts would stand by and decline to treat a patient who (albeit from the other side of capacity) was seeking to undo an ADRT that they had previously made.   It also acknowledges the reality that (in most cases) it is not actually possible to anticipate precisely how you might feel at the point when you are deemed to lack capacity to make decisions as to your own medical treatment, and what at that point you might or might not want.

On another view, both as a matter of strict construction of the Act and from a purely philosophical perspective, we might question whether this is correct.   The very point of an advance decision to refuse treatment is that you are seeking – in advance of incapacity – to lay down your refusal to consent to that treatment, which you intend to be binding as if you were capacitously refusing at the point it is being offered it. It is, viewed from this perspective, a remarkably stark example of the ‘self-binding’ or Ulysses directive, and you should (arguably) be held to the consequences of your decision even at the point when, by definition, you are not in a position to make it.

In due course, it may well be that there will need to be a decision (or possibly statutory reform) which will assist us calibrate ADRTs in such a way as to ensure that they serve as a tool to exercise legal capacity without (inadvertently) binding those who make them into irreversible and (properly) unconscionable situations.   The recent Essex Autonomy Project Three Jurisdictions Project report touched upon this dilemma by reference to Article 12 CPRD (see pp.33) , and it is one that will only become more prevalent as – is to be hoped – the use of ADRTs become more widespread.

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