Think about some of the really important decisions that you have made throughout your life.  Have they all been really sensible and thought through?  Have you ever regretted a choice that you made?

Our life choices maybe occasionally spectacularly foolish and ill informed – and yet, so long as we make them of our own free will and understand what we are doing, the law has no right to interfere.

Where the law will step in, in the form of the Court of Protection, is when significant decisions have to be made to protect (and empower) those individuals who have impaired mental capacity.  The impairment may be from injury or a disease, including dementia.

Media reporting of cases in the Court of Protection is often sensationalist and emphasises the so called secret nature of the court.  This is to wilfully misunderstand the purpose of this specialist court which has the power to make decisions for those who lack capacity both in relation to their property and finances and their health and welfare.  Any “secrecy” is almost always to protect the privacy of people for whom life changing decisions are often being made.

Recent cases have made it clear that although the court has a protective role, it does not take a paternalistic approach to decision making and in fact that the judges see their role as empowering and supporting individuals in often traumatic and difficult situations.

The Court of Protection has no jurisdiction if an individual has mental capacity.  When someone has been assessed as lacking capacity they are known as a protected party (P) and their wishes and feelings are an important consideration for the court.  A dementia sufferer does not automatically lack capacity.  If a diagnosis of dementia is made or suspected, that individual may still be perfectly capable of making a will and a power of attorney for example and other significant decisions.  So it’s important to be aware that two of the key principles of the Mental Capacity Act 2005 – which governs the work done by the Court of Protection – are:-

1. It is presumed a person has capacity unless it is determined otherwise.

2. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

It is clear – although difficult for many of us to accept – that if the court declares a person has capacity (and it cannot make a decision on their behalf) that this can mean that the person will go on to make an unwise (and, in some cases, life-ending) decision.

In Kings College Hospital NHS Foundation Trust v C [2015], the issue of P’s capacity and her wish to make an unwise decision was the central issue in the case.  P had attempted suicide and although this had failed it had left her with kidney damage and needing renal dialysis.  She refused and the hospital trust sought a declaration that she lacked capacity to refuse or consent to medical treatment.  The judge in this case found that she did have the capacity to refuse medical treatment, despite knowing that her refusal to accept the dialysis would inevitably cause her death.  The case was wrongly reported in the media as a “right to die” case; this was not a case brought by P to put the case for euthanasia, in fact it was the opposite as the hospital trust wanted to treat P but could only do so if she was found to lack capacity.  Sadly P died shortly after the judgement.

In Re: Z and Others [2016], the judge had to determine whether a 20 year old autistic girl had capacity to determine, amongst other things, who she should have contact with.  P was undoubtedly a vulnerable young adult who was obsessed with celebrities and wanted to become famous.  She had appeared on X Factor and the local authority had become concerned about her being exploited by the people she was in contact with.  The expert instructed in the case concluded that she lacked capacity to decide the relevant issues.  However the judge disagreed with the expert, finding that P did have capacity and so he could make no decisions on her behalf, despite any instinct he may have had to protect her.

The judge commented, “I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward.  It is tempting for the court to take a paternalistic, perhaps overly risk averse, approach to Z’s future; but this would be unprincipled and wrong.”

Helen Dandridge, solicitor with Ridley & Hall’s Court of Protection team, comments, “It would have been very easy for the judge to accept the expert evidence that Z lacked capacity and to go on to make best interests decisions prohibiting who she should have contact with.”

Two final cases are worth considering because of their similarities – and very different outcomes:

In the case of Surrey and Sussex Healthcare NHS Trust v AB [2015], P required an amputation above her left leg in order to prevent the spread of septicaemia.  She refused and there was an issue about her capacity to make this decision.  The judge declared that she lacked capacity as she did not understand the true nature of her medical condition or that she would die without the proposed surgery.  The judge went on to find that it was in her best interests for her to have the surgery.

In the case of Wye Valley NHS Trust v B [2015], P had developed a chronic foot ulcer as a result of not managing his diabetes.  It became gangrenous and required amputation, without which he would die.  Again, P refused the treatment and the NHS Trust issued proceedings and argued that P lacked capacity to refuse the treatment.  The judge found that P lacked capacity to refuse the treatment, however, he went on to say that the amputation was not in his best interests.  In balancing the various factors that he had to take into account, the judge attached significant weight to P’s wishes and feelings that he did not want the amputation because it would take away what little independence he had left.

Helen Dandridge says, “The judgement in the case of Wye Valley NHS Trust is important because it confirms that a court should not attach any less weight to a person’s wishes just because they do not have the relevant capacity to decide for themselves.  The two cases also highlight that each case turns on its own facts; while both patients were declared to lack the relevant capacity, one was subjected to the treatment and the other was not.  It was a brave decision for the judge to find that lifesaving medical treatment was not in P’s best interests knowing that his judgement was effectively signing his death warrant.”

The approach of the court is to focus on the individual before it.  Helen Dandridge comments, “Public bodies should not be criticised for bringing cases to court where there is a dispute over a person’s capacity to make a relevant decision.  Despite some parts of the media believing that the Court of Protection is a draconian secret court which is part of the nanny state, imposing decisions on people against their wishes – in reality a careful consideration of the decided cases shows that judges work very hard to protect and support the autonomy of the individuals to make their own choices in life, however misguided they may appear to be.  Cases like these represent a sea change away from an old fashioned paternalistic approach and are more in line with the ethos of the convention on the rights of persons with disabilities, which stresses the respect and dignity to be afforded to the disabled.”

Ridley & Hall’s Court of Protection team is able to advise on any issues concerning an adult who lacks mental capacity.  If the case concerns a health and welfare decision then legal aid may be available. Please call us on 01484 538421 for further advice or visit the Court of Protection Legal Centre website.