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Communication technology can enable a person's wishes and feelings to be sought in the absence of speech

View profile for Jamie Gordon
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Court of Protection - Mental Capacity & Religious Observance

A remarkable case heard by Lord Justice Hayden sitting at the Court of Protection in London has highlighted the importance of going the extra mile to establish a person’s wishes and feelings, even in circumstances where a person may not be able to communicate through speech.

The case relates to a young male in his 20’s whom suffers from tetraplegic cerebral palsy, the condition has resulted in the young man losing movement in both of his arms and legs and his torso. The effects of the condition has also resulted in the man not being able to communicate through speech. He has been in hospital for an extended period of time whilst receiving treatment.

Following prolonged discussions between the clinicians involved in the man’s care it was determined that any future treatment would be futile and recommended that he should be moved on to palliative or end of life care. Given these findings, the Clinical Commissioning Group (CCG) requested the involvement of the Court of Protection and asked that it make a decision on the man’s care and treatment going forwards.

In order to enable him to make a decision in this case, Lord Justice Hayden saw it necessary and appropriate to visit the young man to establish his ‘wishes and feelings’. The seeking of a person’s wishes and feelings is at the heart of the best interests process and paragraph 4 (1) and (6) of the Mental Capacity Act 2005 states, 4(1) ‘When determining what is in a person's best interests, the person making the determination must not make it merely on the basis of the person's age or appearance, or, condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests……4(6) He must consider, so far as is reasonably ascertainable, the person's past and present wishes and feelings.'

The steps taken by Lord Justice Hayden in the case places great emphasis on the ways in which a person’s wishes and feelings can be determined.

Given that the young man was not able to communicate via speech to the judge, the judge saw it appropriate to visit him in hospital along with his solicitor. During the 90 minute meeting, the young man used a very modern and specialised communication book to convey his wishes and feelings to the judge. In doing so, the man’s solicitor placed the book before him, turning each page appropriately, and the man blinked when he wanted to convey what he wanted to his solicitor.

Following the visit by the judge, the matter returned to court and Lord Justice Hayden determined that it was in the man’s best interests to return home to live with his mother rather than moving to a hospice. During the handing down of his judgment, Lord Justice Hayden stated that, ‘His message was clear, he got it across very slowly and painstakingly, he told me that he wanted to go home, he didn’t want to go anywhere else but home. He wants to be with his mum, he was absolutely clear that he didn’t want to stay in hospital. Even if he would be better off at hospital than at home, he would, nonetheless, want to go home’.

Lord Justice Hayden the continued to conclude his judgment by stating, ‘It is in his best interests to return home to his mother’.

It is clear to see the important role that modern day technology plays in obtaining a person’s wishes and feelings when they are unable to communicate through speech. We cannot say for sure whether or not the case would have had a different outcome if the young man wasn’t able to convey his wishes and feelings using his communication book. However, we can say, as highlighted by the judge, that his wishes and feelings played a big part in allowing him to return home.

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