Judge: Moor J
Citation:  EWCOP 28
This case concerned SJ, a 43 year old diabetic suffering from chronic, unhealed bed sores in the context of significant obesity and incontinence. He had previously been detained under the Mental Health Act 1983 during which time he suffered from psychosis and some form of cognitive decline. SJ’s treating clinicians were united in the view that SJ lacked capacity to consent to medical treatment and that the insertion of a colostomy was vital to his recovery and survival. His consultant surgeon Mr V gave evidence – via telephone from a taxi, the pavement outside his home, and his home itself – that without colostomy surgery, SJ was likely to die within 6 months.
SJ’s sister MJ opposed the use of a colostomy on the basis that SJ had lost substantial amounts of weight and said he did not want the operation. She disputed the capacity evidence and argued the Court should allow SJ’s wishes not to have the surgery to be determinative.
Moor J noted SJ’s own opposition to the surgery and, at paragraph 35, the conclusions of Munby J in Re M; ITW v Z  EWHC 2525 that “… the weight to be attached to [P’s] wishes and feelings must depend upon the particular context…”; that the nearer to the borderline of capacity P is, the more weight must be attached to his wishes and feelings; the significance of the strength and consistency of the views P expresses; the possible impact upon him of his wishes and feelings not being given effect; the extent to which P’s wishes and feelings are or not rational; and the extent to which P’s wishes and feelings could be given effect to within the court’s assessment of his best interests. Moor J further noted the conclusion of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67 as to the starting point being, not the reasonable patient, but the person themselves.
He concluded (at paragraph 42):
I am clear that this is an operation that should now take place as being overwhelmingly in SJ’s interests. I take the view that, if he had capacity, he would, in fact, see that and would wish to save his life in that way. There is absolutely no indication that he really wants his life to end. I am quite clear that, if he could understand the evidence that I have heard today from the three doctors, he would say “Judge, I do not know why we are in court; of course I must have this operation. Please do it quickly”. Because of his incapacity, he is unable to weigh the matters up in this regard. But for that very reason I take the view that I should overrule his wishes, notwithstanding having very carefully considered all the law on this point and the wishes as he has set them out both to the doctors and to the Official Solicitor
In many cases, including others discussed in this report, sufficient clarity as to the answer as to what the person would have done would give the answer to what lies in their best interests. In other cases, of which this may be an example, what the person really wants and what they say they want (in CRPD language, what their will is and what their preferences appear to be) are in tension: the best interests test in its post-Aintree formulation allows this to be accommodated.
As an interesting aside, the case also provides an example of the robust yet flexible case managing powers available to judges which, it could be argued, more judges in the Court of Protection should exercise. Taking the unorthodox step required in light of the urgency of the case, Moor J heard evidence from one clinician via phone from a taxi. SJ’s sister MJ applied to vacate just 2 days before the hearing. Moor J refused to adjourn but made clear to MJ that he would hear any application to adjourn at court. In the event, MJ failed to appear at court without giving any clear reason why. Moor J concluded that it would help neither SJ nor his sister to adjourn matters, furthermore that the case was too urgent to delay. He therefore granted the order sought by the applicant trust in MJ’s absence and held that the matter should also be brought finally to an end.