In a recent case, the Vice President of the Court of Protection, Hayden J, reminded us of the importance of the presumption of capacity and the requirement for proper assessment of mental capacity on an issue-specific basis.
Everyone is assumed to have mental capacity to make their own decisions, unless it is proven otherwise following proper assessment and the production of clear and cogent evidence to the contrary. In addition, just because someone has been assessed to lack capacity to make one decision, it does not follow that they also lack capacity to make a different decision.
The case of QJ v A Local Authority & Anor  EWCOP 7 concerned an application to the Court of Protection relating to a gentleman aged 87 years of age (referred to as QJ in the interests of anonymity). QJ has a diagnosis of vascular dementia and has suffered a number of strokes. He is extremely frail and unable to mobilise without assistance. He is residing in a care home and there was no doubt, following assessment, that QJ lacks capacity to decide where he should live and what care he should receive.
There was however a question as to whether QJ has capacity to decide what medical treatment to receive. He had been on a hunger strike, refusing food and drink.
The relevant NHS Trust was ordered to produce a report for the court as to QJ’s capacity to decide about his nutrition and hydration, and his medical treatment. The conclusion of the report was that QJ lacks capacity in relation to his residence and care (to decide to live at the care home and receive care there), but has capacity to decide about nutrition and hydration and medical treatment.
At a subsequent court hearing, the treating clinician said in a written statement that when he spoke to QJ about whether he would have a nasogastric tube inserted, he shook his head and “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”.
Mr Justice Hayden commented that:
“It is important to emphasise that lack of capacity cannot be established merely by reference to a person’s condition or an aspect of his behaviour which might lead others to make unjustified assumptions about capacity (s.2(3) MCA). An aspect of QJ’s behaviour included his reluctance to answer certain questions. It should not be construed from this that he is unable to. There is a good deal of evidence which suggests that this is a choice…
It is unnecessary for me to evaluate ‘best interests’ because I have concluded that QJ should be regarded as capacitous. However it is also right that I acknowledge 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. This is an extremely difficult case”.
This case highlights the difficulties and finely balanced nature of an assessment of someone’s capacity and the impact that the assessment can ultimately have on their autonomy. The court stressed the need to ensure proper assessment of a person’s mental capacity where there may be any doubts about their ability to make a decision, and that there must be clear evidence to rebut the presumption of capacity and take a decision out of a person’s own hands. The judge in this case stressed the need to distinguish between a reluctance to answer questions, and an inability to do so.
We are experienced in advising and representing clients in Court of Protection proceedings where challenges and issues often arise in relation to assessments of a person’s capacity by a doctor or social worker. Please do not hesitate to contact us on 01616 966 229 .