The recent case of PH v Betsi Cadwaladr University Health Board [2022] is a helpful reminder that the Court of Protection will only intervene and make a best interests decision where P lacks capacity or there is reason to believe that P lacks the capacity to make these decisions.
Mr Justice Hayden made it clear that where P has the capacity to make decisions, there is no further role for the Court of Protection.
The function of the Court of Protection
The Court of Protection is a specialist court set up to protect the interests of those who do not have the capacity to make certain financial and personal welfare decisions when those decisions need to be made.
Although the Court of Protection is seen by many as being required only for the appointment of a deputy, it has a much broader remit. Several applications can be brought to the Court of Protection, some being more complex than others – such as giving permission for people to make one-off decisions on behalf of P in respect of making large gifts or making a new Will; making decisions on both Lasting Powers of Attorney or Enduring Powers of Attorney including considering objections to their registration; making decisions on where P should live or the treatment they should receive, etc.
The Court of Protection can also make declarations where there is no clear evidence regarding P’s capacity. Under section 15 of the Mental Capacity Act 2005, the Court may make declarations as to whether a person has or lacks the capacity to make a decision, or it may make orders and directions, under section 48, in respect of a matter if there is a reason to believe that P lacks capacity in relation to the matter.
But what if P has capacity? Can the Court of Protection make decisions based on the basis that such decisions would be in their best interests?
The case of PH v Betsi Cadwaladr University Health Board [2022]
The scope of the Court of Protection’s jurisdiction recently came up in the case of PH v Betsi Cadwaladr University Health Board [2022].
In this case, P, a 41-year old gentleman, had a complex and challenging medical history, requiring percutaneous endoscopic gastrostomy (PEG) feeding into his stomach.
In February 2022, the Court of Protection was asked to resolve a Court of Protection dispute concerning P’s transfer from a general surgical ward to a mental health rehabilitation placement. P did not find the prospects of moving to a rehabilitation unit appealing as he wanted a more “normal” set-up. He initially stopped taking nutrition but then re-started taking nutrition to make himself strong enough to visit a private residential property that had been subsequently identified. The issue of P’s residence was resolved when P liked the private residential property. The Judge approved an agreed order without having to make any declarations regarding P’s capacity to consent to medical treatment.
A few weeks after his move, P refused to take nutrition, which lasted for over 41 days. The case returned before Mr Justice Hayden – this time regarding P not taking nutrition. Whilst P was agreeable to taking water and medication, he made it very clear and was consistent in expressing that he did not want food.
In this case, P spoke to his psychiatrist on several occasions about not wanting food and showed an understanding that without it, he would die. The psychiatrist concluded that P was able to weigh up the pros and cons, come to a decision, and communicate it. In Mr Justice Hayden’s words, “this is the essence of capacity”.
An interesting feature in this case is that there had been several hearings before this particular issue arose. P had participated in all of the hearings through a video conferencing platform. As a result, Mr Justice Hayden had the opportunity to listen to P and noted that he displayed an accurate understanding of his medical condition.
Given the evidence in the matter and P’s participation, Mr Justice Hayden was satisfied that P had the capacity to decide upon his treatment. Even though P’s decision to refuse feeding was upsetting to others, it was his decision and a decision that should be respected.
Invoking the Court’s inherent jurisdiction as an alternative?
Despite the expert’s conclusion that P had capacity, the Official Solicitor and NHS Wales argued that the Court of Protection could make declarations according to the inherent jurisdiction to the effect that supplements should be provided if P requests them.
As a reminder, an inherent jurisdiction is a tool used by the High Court to protect individuals who have capacity but are considered ‘vulnerable’ because their decision-making is compromised by abuse, undue influence, or coercion. In such cases, the High Court has an inherent jurisdiction to protect adults at risk, whether or not they lack capacity, and can exercise this jurisdiction where it is lawful, necessary, and proportionate.
In this case, Mr Justice Hayden rejected the submission of the Official Solicitor and NHS Wales and reminded everyone of the concept of inherent jurisdiction and its limitations. Whilst inherent jurisdiction can be invoked in some instances, it should only be done in limited circumstances, where a vulnerable person’s decision-making capacity is impaired somehow. He referred to the case of London Borough of Redbridge v SNA [2015] (a case that had previously come before him). He observed that inherent jurisdiction is not unlimited and cannot be regarded as a lawless void permitting judges to do whatever they consider to be right for children or the vulnerable.
There was no suggestion or evidence that P’s capacity was impaired in this case. Evidence pointed to P being able to consider matters, weigh up his options, and decide. Mr Justice Hayden did not see any need to make a best interests decision on behalf of P.
P had the capacity, and it is not the Court of Protection’s place to tell capacitous individuals what is in their best interests.
Doing so would undermine the principle of autonomy, which is central to the philosophy of the Mental Capacity Act 2005.
As a result, Mr Justice Hayden concluded there is no further role for the Court of Protection.
Conclusion
Capacity is time and issue-specific. Where there are concerns regarding a vulnerable person’s capacity to make certain decisions, the Court of Protection has the power to make declarations as to that person’s capacity or make an order if the Court has reason to believe that P lacks capacity about the matter.
However, where there is clear evidence that P has the capacity to make the decision in question unless P’s decision-making process is being compromised, this case makes it clear the Court of Protection would not have jurisdiction.
