Judge: Cobb J
Citation:  EWCOP 41
JJ was 23 and lived with his parents. Months earlier he had been diagnosed with type 1 insulin dependent diabetes which he was struggling to come to terms with. Not taking daily injections, he collapsed in a GP surgery and was admitted to hospital. Close to requiring intensive care, the hospital sought authorisation from the court to, as a last resort, use physical restraint to administer the insulin in his best interests. Shortly before the hearing, he accepted a subcutaneous injection of rapid acting insulin which helped to avert a crisis. But without continued treatment, he would die within a week or so from diabetic ketoacidosis.
One of the issues was whether he had the necessary mental impairment for the purposes of the MCA 2005. Previous compulsory treatment had probably led to longer-term psychological consequences and made JJ quite distrustful of some of the staff. A consultant liaison psychiatrist confirmed that JJ had experienced “a psychological reaction” and another healthcare professional said he was “so medically unwell that there is a clear clouding of his thinking” and he was barely able to engage in conversation. On an interim basis, Cobb J was satisfied that there was reason to believe JJ lacked capacity to refuse the treatment and that the injections were in his best interests. Physical restraint to administer the insulin was very much to be a last resort, and the deprivation of liberty was authorised. Finally:
This case illustrates the elasticity of the concept of ‘impairment of, or disturbance in the functioning of, the mind or brain’, particularly in urgent matters. It resonates with the argument that the key issue ought to be whether someone is proven to be unable to decide. That is what matters. Whether it is because of a mental impairment or for some other reason is, one might argue, increasingly irrelevant in practice, although critical of course at present in terms of whether the MCA is available. Perhaps a Capacity Act rather than Mental Capacity Act is the way forward – and we will watch with interest to see how the Assisted Decision-Making (Capacity) Act 2015 in Ireland operates in practice when it comes into force, dispensing as it does with the ‘diagnostic’ element.